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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
FEDERAL COMMUNICATIONS COMMISSION et al. v. FOX TELEVISION STATIONS, INC., et al.
No. 10-1293.
Argued January 10, 2012
Decided June 21, 2012
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Breyer, Auto, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 259. Sotomayor, J., took no part in the consideration or decision of the cases.
Solicitor General Verrilli argued the cause for petitioners. With him on the briefs were Assistant Attorney Gen eral West, Deputy Solicitor General Stewart, Joseph R. Pal-more, Thomas M. Bondy, Anne Murphy, Austin C. Schlick, Peter Karanjia, Jacob M. Lewis, and Nandan M. Joshi.
Carter G. Phillips argued the cause for respondents Fox Television Stations, Inc., et al. With him on the brief were Mark D. Schneider, David S. Petron, Ryan C. Morris, Miguel A. Estrada, Susan Weiner, Robert Corn-Revere, Ronald G. London, Jonathan H. Anschell, and Susanna M. Lowy. Seth P. Waxman argued the cause for respondents ABC, Inc., et al. With him on the brief were Paul R. Q. Wolfson, Daniel S. Volchok, and John W. Zucker. Wade H. Hargrove, Mark J. Prak, and David Kushner filed a brief for respondents ABC Television Affiliates Association et al. Robert A. Long, Jr., Jonathan D. Blake, and Jennifer A. Johnson filed a brief for respondents CBS Television Network Affiliates Association et al. Andrew Jay Schwartz-man filed a brief for respondents Center for Creative Voices in Media et al.
Together with Federal Communications Commission v. ABC, Inc., et al., also on certiorari to the same court (see this Court’s Rule 12.4).
Briefs of amici curiae urging reversal were filed for the American College of Pediatricians et al. by Bryan H. Beauman; for the Decency Enforcement Center for Television by Thomas B. North; for Focus on the Family et al. by J. Robert Flores; for Morality in Media, Inc., by Patrick A. Trueman and Robert W. Peters; and for National Religious Broadcasters by Craig L. Parshall, Joseph C. Chautin III, and Elise M. Stubbe.
Briefs of amici curiae urging affirmance were filed for the American Academy of Pediatrics et al. by Angela J. Campbell; for the American Civil Liberties Union et al. by Steven R. Shapiro and Christopher A. Hansen; for the Cato Institute et al. by John P. Elwood, Ilya Shapiro, Thomas S. Leatherbury, and Harold Feld; for the National Association of Broadcasters et al. by Paul M. Smith, Elaine J. Goldenberg, Jessica Ring Amunson, Jane E. Mago, and Jerianne Timmerman; for the Pennsylvania Center for the First Amendment et al. by Robert D. Richards and Clay Calvert; for the Public Broadcasting Service by Ryan M. Christian and Daniel B. Levin; for the Reporters Committee for Freedom of the Press et al. by Lucy A. Dalglish, Gregg P. Leslie, and David M. Giles; for the Student Press Law Center et al. by Gregory Stuart Smith; and for the Thomas Jefferson Center for the Protection of Free Expression et al. by J. Joshua Wheeler.. 1
Briefs of amici curiae were filed for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and Walter M. Weber; for Former FCC Officials by Henry Getter, Glen 0. Robinson, and Newton N. Minow, all pro se, and by Timothy K. Lewis and Carl A. Solano; for the Parents Television Council by Robert R. Sparks, Jr.; for the Yale Law School Information Society Project Scholars et al. by Priscilla J. Smith; and for Judith A. Reisman et al. by Mathew D. Staver, Anita L. Staver, Stephen M. Crampton, and Mary E. McAlister.
Justice Kennedy
delivered the opinion of the Court.
In FCC v. Fox Television Stations, Inc., 556 U. S. 502, 529 (2009) (Fox I), the Court held that the Federal Communications Commission’s decision to modify its indecency enforcement regime to regulate so-called fleeting expletives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, however, because the United States Court of Appeals for the Second Circuit had yet to do so. On remand, the Court of Appeals found the policy was vague and, as a result, unconstitutional. 613 F. 3d 317 (2010). The case now returns to this Court for decision upon the constitutional question.
I
In Fox I, the Court described both the regulatory framework through which the Commission regulates broadcast indecency and the long procedural history of this case. The Court need not repeat all that history, but some preliminary discussion is necessary to understand the constitutional issue the case now presents.
A
Title 18 U. S. C. § 1464 provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined... or imprisoned not more than two years, or both.” The Federal Communications Commission (Commission) has been instructed by Congress to enforce § 1464 between the hours of 6 a.m. and 10 p.m., see Public Telecommunications Act of 1992, § 16(a), 106 Stat. 954, note following 47 U. S. C. §303, p. 113 (Broadcasting of Indecent Programming). And the Commission has applied its regulations to radio and television broadcasters alike, see Fox I, supra, at 505-506; see also 47 CFR § 73.3999 (2010) (Commission regulation prohibiting the broadcast of any obscene material or any indecent material between 6 a.m. and 10 p.m.). Although the Commission has had the authority to regulate indecent broadcasts under § 1464 since 1948 (and its predecessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce § 1464 until the 1970's. See Campbell, Pacifica Reconsidered: Implications for the Current Controversy Over Broadcast Indecency, 63 Fed. Com. L. J. 195, 198 (2010).
This Court first reviewed the Commission’s indecency policy in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In Pacifica, the Commission determined that George Carlin’s “Filthy Words” monologue was indecent. It contained “‘language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’” Id., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld the Commission’s ruling. The broadcaster’s statutory challenge was rejected. The Court held the Commission was not engaged in impermissible censorship within the meaning of 47 U. S. C. § 326 (1976 ed.), see 438 U. S., at 735-739, and that § 1464’s definition of indecency was not confined to speech with an appeal to the prurient interest, see id., at 738-741. Finding no First Amendment violation, the decision explained the constitutional standard under which regulations of broadcasters are assessed. It observed that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” id., at 748, and that “broadcasting is uniquely accessible to children, even those too young to read,” id., at 749. In light of these considerations, “broadcasting... has received the most limited First Amendment protection.” Id., at 748. Under this standard the Commission’s order passed constitutional scrutiny. The Court did note the narrowness of its holding, explaining that it was not deciding whether “an occasional expletive... would justify any sanction.” Id., at 750; see also id., at 760-761 (Powell, J., concurring in part and concurring in judgment) (“[C]ertainly the Court’s holding... does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here”).
From 1978 to 1987, the Commission did not go beyond the narrow circumstances of Pacifica and brought no indecency enforcement actions. See In re Infinity Broadcasting Corp., 3 FCC Rcd. 930 (1987) (Infinity Order); see also In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254 (1978) (Commission declaring it “intend[s] strictly to observe the narrowness of the Pacifica holding”). Recognizing that Pacifica provided “no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station,” the Commission distinguished between the “repetitive occurrence of the ‘indecent’ words” (such as in the Carlin monologue) and an “isolated” or “occasional” expletive, that would not necessarily be actionable. 69 F. C. C. 2d, at 1254.
In 1987, the Commission determined it was applying the Pacifica standard in too narrow a way. It stated that in later cases its definition of indecent language would “appropriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue].” In re Pacifica Foundation Inc., 2 FCC Rcd. 2698, 2699 (Pacifica Order). Thus, the Commission indicated it would use the “generic definition of indecency” articulated in its 1975 Pacifica order, Infinity Order, 3 FCC Rcd., at 930, and assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a “comprehensive index... of indecent words or pictorial depictions,” id., at 932.
Even under this context based approach, the Commission continued to note the important difference between isolated and repeated broadcasts of indecent material. See ibid. (considering variables in determining whether material is patently offensive including “whether allegedly offensive material is isolated or fleeting”)- In the context of expletives, the Commission determined “deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” Pacifica Order, 2 FCC Rcd., at 2699. For speech “involving the description or depiction of sexual or excretory functions... [t]he mere fact that specific words or phrases are not repeated does not mandate a finding that material that is otherwise patently offensive... is not indecent.” Ibid. (emphasis deleted).
In 2001, the Commission issued a policy statement intended “to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U. S. C. § 1464 and [its] enforcement policies with respect to broadcast indecency.” In re Industry Guidance on Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999. In that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium. Id., at 8002. Describing the framework of what it considered patently offensive, the Commission explained that three factors had proved significant:
“(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” Id., at 8003 (emphasis deleted).
As regards the second of these factors, the Commission explained that “[Repetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8008. The Commission then gave examples of material that was not found indecent because it was fleeting and isolated, id., at 8008-8009 (citing, e. g., L. M. Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595 (MMB 1992) (finding “a fleeting and isolated utterance” in the context of live and spontaneous programming not actionable)), and contrasted it with fleeting references that were found patently offensive in light of other factors, 16 FCC Rcd., at 8009 (citing, e. g., Tempe Radio, Inc. (KUPD-FM), 12 FCC Rcd. 21828 (MMB 1997) (finding fleeting language that clearly refers to sexual activity with a child to be patently offensive)).
B
It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” App. to Pet. for Cert. 89a. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “ ‘Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple.’ ” 613 F. 3d, at 323. The third incident involved an episode of NYPD Blue, a regular television show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed. 404 Fed. Appx. 530, 533-534 (CA2 2011). The Commission received indecency complaints about all three broadcasts. See Fox I, 556 U. S., at 510; 404 Fed. Appx., at 534.
After these incidents, but before the Commission issued notices of apparent liability to Fox and ABC, the Commission issued a decision sanctioning NBC for a comment made by the singer Bono during the 2003 Golden Globe Awards. Upon winning the award for Best Original Song, Bono exclaimed: “‘This is really, really, f***ing brilliant. Really, really great.’” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order). Reversing a decision by its enforcement bureau, the Commission found the use of the F-word actionably indecent. Id., at 4975-4976. The Commission held that the word was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” and thus found “any use of that word or a variation, in any context, inherently has a sexual connotation.” Id., at 4978-4979. Turning to the isolated nature of the expletive, the Commission reversed prior rulings that had found fleeting expletives not indecent. The Commission held “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” Id., at 4980; see also id., at 4982 (“Just as the Court [in Pacifica,] held that... the George Carlin routine ‘could have enlarged a child’s vocabulary in an instant,’ we believe that even isolated broadcasts of the ‘F-Word’ in situations such as that here could do so as well”).
c
Even though the incidents at issue in these cases took place before the Golden Globes Order, the Commission applied its new policy regarding fleeting expletives and fleeting nudity. It found the broadcasts by respondents Fox and ABC to be in violation of this standard.
1
As to Fox, the Commission found the two Billboard Awards broadcasts indecent in In re Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006). Numerous parties petitioned for a review of the order in the United States Court of Appeals for the Second Circuit. The Court of Appeals granted the Commission’s request for a voluntary remand so that it could respond to the parties’ objections. Fox Television Stations, Inc. v. FCC, 489 F. 3d 444, 453 (2007). In its remand order, the Commission applied its tripartite definition of patently offensive material from its 2001 order and found that both broadcasts fell well within its scope. See In re Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order); see also Fox I, supra, at 511-513 (discussing in detail the Commission’s findings). As pertains to the constitutional issue in these cases, the Commission noted that under the policy clarified in the Golden Globes Order, “categorically requiring repeated use of expletives in order to find material indecent is inconsistent with our general approach to indecency enforcement.” Remand Order, 21 FCC Rcd., at 13308; see also id., at 13325 (“[U]nder our Golden Globe precedent, the fact that Cher used the ‘F-Word’ once does not remove her comment from the realm of actionable indecency”). Though the Commission deemed Fox should have known Nicole Richie’s comments were actionably indecent even prior to the Golden Globes Order, 21 FCC Rcd., at 13307, it declined to propose a forfeiture in light of the limited nature of the Second Circuit’s remand. Id., at 13321. The Commission acknowledged that “it was not apparent that Fox could be penalized for Cher’s comment at the time it was broadcast.” And so, as in the Golden Globes case it imposed no penalty for that broadcast. Id., at 13324, 13326.
Fox and various intervenors returned to the United States Court of Appeals for the Second Circuit, raising administrative, statutory, and constitutional challenges to the Commission’s indecency regulations. See Fox Television Stations, Inc. v. FCC, 489 F. 3d 444. In a 2-to-1 decision, with Judge Leval dissenting, the Court of Appeals found the Remand Order arbitrary and capricious because “the FCC has made a 180-degree turn regarding its treatment of ‘fleeting expletives’ without providing a reasoned explanation justifying the about-face.” 489 F. 3d, at 455. While noting its skepticism as to whether the Commission’s fleeting expletive regime “would pass constitutional muster,” the Court of Appeals found it unnecessary to address the issue. Id., at 462.
The case came here on certiorari. Citing the Administrative Procedure Act, 5 U. S. C. § 551 et seq., this Court noted that the Judiciary may set aside agency action that is arbitrary or capricious. In the context of a change in policy (such as the Commission’s determination that fleeting expletives could be indecent), the decision held an agency, in the ordinary course, should acknowledge that it is in fact changing its position and “show that there are good reasons for the new policy.” Fox I, 556 U. S., at 515. There is no need, however, for an agency to provide detailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one. Ibid.
Judged under this standard, the Court in Fox I found the Commission’s new indecency enforcement policy neither arbitrary nor capricious. Id., at 517. The Court noted the Commission had acknowledged breaking new ground in ruling that fleeting and nonliteral expletives could be indecent under the controlling standards; the Court concluded the agency’s reasons for expanding the scope of its enforcement activity were rational. Ibid. Not only was it “certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words,” ibid., but the Court agreed that the Commission’s decision to “look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach [approved]... in Pacifica,” ibid. Given that “[e]ven isolated utterances can... constitute harmful ‘first blow[s]’ to children,” the Court held that the Commission could “decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable.” Id., at 518. Having found the agency’s action to be neither arbitrary nor capricious, the Court remanded for the Court of Appeals to address respondents’ First Amendment challenges. Id., at 529-530.
On remand from Fox I, the Court of Appeals held the Commission’s indecency policy unconstitutionally vague and invalidated it in its entirety. 613 F. 3d, at 327. The Court of Appeals found the policy, as expressed in the 2001 guidance and subsequent Commission decisions, failed to give broadcasters sufficient notice of what would be considered indecent. Surveying a number of Commission adjudications, the court found the Commission was inconsistent as to which words it deemed patently offensive. See id., at 330. It also determined that the Commission’s presumptive prohibition on the F-word and the S-word was plagued by vagueness because the Commission had on occasion found the fleeting use of those words not indecent provided they occurred during a bona fide news interview or were “demonstrably essential to the nature of an artistic or educational work.” Id., at 331 (internal quotation marks omitted). The Commission’s application of these exceptions, according to the Court of Appeals, left broadcasters guessing whether an expletive would be deemed artistically integral to a program or whether a particular broadcast would be considered a bona fide news interview. The Court of Appeals found the vagueness inherent in the policy had forced broadcasters to “choose between not airing... controversial programs [or] risking massive fines or possibly even loss of their licenses.” Id., at 334. And the court found that there was “ample evidence in the record” that this harsh choice had led to a chill of protected speech. Ibid.
2
The procedural history regarding ABC is more brief. On February 19, 2008, the Commission issued a forfeiture order finding the display of the woman’s nude buttocks in NYPD Blue was actionably indecent. See In re Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue,” 23 FCC Rcd. 3147 (2008). The Commission determined that, regardless of medical definitions, displays of buttocks fell within the category of displays of sexual or excretory organs because the depiction was “widely associated with sexual arousal and closely associated by most people with excretory activities.” Id., at 3150. The scene was deemed patently offensive as measured by contemporary community standards, ibid.; and the Commission determined that “[t]he female actor’s nudity is presented in a manner that clearly panders to and titillates the audience,” id., at 3153. Unlike in the Fox case, the Commission imposed a forfeiture of $27,500 on each of the 45 ABC-affiliated stations that aired the indecent episode. In a summary order the United States Court of Appeals for the Second Circuit vacated the forfeiture order, determining that it was bound by its Fox decision striking down the entirety of the Commission’s indecency policy. See 404 Fed. Appx., at 533.
The Government sought review of both judgments, see Brief for Petitioners 1, and this Court granted certiorari, 564 U. S. 1036 (2011). These are the cases before us.
II
A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) (“Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’ ” (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); alteration in original)). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are imper-missibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306.
Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
These concerns are implicated here because, at the outset, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 guidelines in force when the broadcasts occurred, a key consideration was “‘whether the material dwellfed] on or repeated] at length’ ” the offending description or depiction. 613 F. 3d, at 322. In the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. Fox I, 556 U. S., at 512. In the challenged orders now under review the Commission applied the new principle promulgated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were actionably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of § 1464 as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” Williams, supra, at 304. This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 871-872 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).
The Government raises two arguments in response, but neither is persuasive. As for the two fleeting expletives, the Government concedes that “Fox did not have reasonable notice at the time of the broadcasts that the Commission would consider non-repeated expletives indecent.” Brief for Petitioners 28, n. 3. The Government argues, nonetheless, that Fox “cannot establish unconstitutional vagueness on that basis... because the Commission did not impose a sanction where Fox lacked such notice.” Ibid. As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see 556 U. S., at 513, and in its order the Commission claimed that it would not consider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other context,” 21 FCC Rcd., at 13321, 13326. This “policy of forbearance,” as the Government calls it, does not suffice to make the issue moot. Brief for Petitioners 31. Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U. S. C. § 503(b)(2)(E). Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties]... at the mercy of noblesse oblige.” United States v. Stevens, 559 U. S. 460, 480 (2010). Given that the Commission found it was “not inequitable to hold Fox responsible for [the 2003 broadcast],” 21 FCC Rcd., at 13314, and that it has the statutory authority to use its finding to increase any future penalties, the Government’s assurance it will elect not to do so is insufficient to remedy the constitutional violation.
In addition, when combined with the legal consequence described above, reputational injury provides further reason for granting relief to Fox. Cf. Paul v. Davis, 424 U. S. 693, 708-709 (1976) (explaining that an “alteration of legal status... combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” Brief for Respondent CBS Television Network Affiliates Assn, et al. 17. This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox, see, e. g., 21 FCC Rcd., at 13310-13311, ¶ 30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see id., at 13311, ¶ 33 (finding Fox had failed to exercise “ ‘reasonable judgment, responsibility and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’”). Commission sanctions on broadcasters for indecent material are widely publicized. See, e. g., F. C. C. Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; FCC Plans Record Fine for CBS, Washington Post, Sept. 24, 2004, p. E1. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.
With respect to ABC, the Government with good reason does not argue no sanction was imposed. The fine against ABC and its network affiliates for the seven seconds of nudity was nearly $1.24 million. See Brief for Respondent ABC, Inc., et al. 7 (hereinafter ABC Brief). The Government argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the “televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. 1464.” Brief for Petitioners 32 (quoting Enbanc Programing Inquiry, 44 FCC 2303, 2307; internal quotation marks omitted). This argument does not prevail. An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech. The Commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably indecent. See, e. g., In re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts containing nudity to be indecent and emphasizing the difference between repeated and isolated expletives); In re WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schindler’s List not indecent). This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue. It does show, however, that the Government can point to nothing that would have given ABC affirmative notice that its broadcast would be considered actionably indecent. It is likewise not sufficient for the Commission to assert, as it did in its order, that though “the depiction [of nudity] here is not as lengthy or repeated” as in some cases, the shower scene nonetheless “does contain more shots or lengthier pictions of nudity” than in other broadcasts found not indecent. 23 FCC Rcd., at 3153. This broad language fails to demonstrate that ABC had fair notice that its broadcast could be found indecent. In fact, a Commission ruling prior to the airing of the NYPD Blue episode had deemed 30 seconds of nude buttocks “very brief” and not actionably indecent in the context of the broadcast. See Letter from Norman Goldstein to David Molina, FCC File No. 97110028 (May 26, 1999), in App. to Brief for Respondent ABC Television Affiliates Assn, et al. la; see also Letter from Edythe Wise to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992), id., at 18a, 19a. In light of this record of agency decisions, and the absence of any notice in the 2001 guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned.
The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.
h—( I I—I
It is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy. It is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e. g., ABC Brief 48-57; Brief for Respondent Fox Television Stations, Inc., et al. 15-26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_appnatpr
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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.
WESTMORELAND HOSPITAL ASSOCIATION, a non-profit corporation, Latrobe Area Hospital, a non-profit corporation, The Altoona Hospital, a non-profit corporation, The Hamot Medical Center of Erie, Pennsylvania, a non-profit corporation, Meadville City Hospital, a non-profit corporation, Saint Vincent Health Center, a non-profit corporation, Community Mental Health Center of Beaver County, a non-profit corporation, South Hills Health System, a non-profit corporation, and Henry Clay Frick Community Hospital, a non-profit corporation, Appellants, v. BLUE CROSS OF WESTERN PENNSYLVANIA, a non-profit corporation, Secretary of Health, Education and Welfare.
No. 78-2491.
United States Court of Appeals, Third Circuit.
Argued Aug. 7, 1979.
Decided Sept. 10, 1979.
Raymond G. Hasley (argued), Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, Pittsburgh, Pa., B. Patrick Costello, Costello & Berk, Greensburg, Pa., H. Reginald Belden, Jr., Stewart, Belden, Herrington & Belden, Greensburg, Pa., for appellants.
Edward L. Springer (argued), Joseph Friedman, Stephen F. Ban, Springer & Perry, Pittsburgh, Pa., for appellee Blue Cross of Western Pennsylvania.
Before ALDISERT, VAN DUSEN and WEIS, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal requires us to decide if there is federal question jurisdiction under 28 U.S.C. § 1331(a) to hear a claim brought by nine community hospitals against Blue Cross of Western Pennsylvania. The hospitals originally filed suit in the Court of Common Pleas of Westmoreland County, Pennsylvania to enjoin Blue Cross from computing reimbursement payments in a certain manner and to recover money damages. Blue Cross removed the action to the district court. The hospitals’ motion to remand to the state court was denied and judgment on the merits was entered in favor of Blue Cross. The hospitals have appealed. Determining that proper subject matter jurisdiction exists, we affirm.
This case is an outgrowth of two successive cost-reimbursement contracts, entered on July 1, 1966 and July 1, 1973, between the hospitals and Blue Cross. Under the terms of the contracts, Blue Cross agreed to pay for the medical care and treatment provided by the hospitals to Blue Cross subscribers. The agreements provided that the hospitals would charge Blue Cross only their costs attributable to rendering service to subscriber patients, rather than their standard rate. The computation of these costs involved what the district court described as “a complicated formula” that had been developed over several decades. Traditionally, Blue Cross has taken the position that federal grants awarded to hospitals are to be treated as restricted funds, and as such, not included in hospital operating costs, under the theory that only the actual costs incurred by the hospital itself for patient care and service should be factored into the amount borne by Blue Cross. What gave rise to this litigation was the application by Blue Cross of its accounting practice to a number of grants to appellants under the Community Mental Health Centers Act. 42 U.S.C. § 2688 to § 2688v (current version at 42 U.S.C. § 2689 to § 2689aa).
Under the Act, the Department of Health, Education and Welfare (HEW) administers the mental health program under which these hospitals have qualified for federal grants by providing community mental health services. One of the various grants, deemed central to this dispute, is designated as the mental health staffing grant, which is measured by a percentage of the total projected expenses for wages and salaries for professional and technical employees to staff the mental health centers. HEW required that staffing grants not be used to “supplant” amounts which would otherwise be received by the hospitals from insurance companies or other third-party payers. 42 U.S.C. § 2688a(a)(4). At various times since 1966 each of the hospitals has organized a community mental health center to provide the services and facilities authorized by federal law. Federal staffing grants allotted to them, already paid and forecast for the future, amount to approximately $28,000,000.
The Blue Cross accounting practice treated the federal grants as restricted funds, and in computing reimbursable costs to the hospitals, excluded the federal staff grants in determining the actual operating costs of the hospital. The hospitals, beginning in 1971 with the South Hills Health System, objected to this practice. South Hills contended that Blue Cross had no right to deduct the federal grants from the hospital’s ordinary costs of operation because, in a related program (Medicare), Blue Cross had accepted HEW’s designation that certain “start-up” grants were “seed grants” and did not require them to be applied to costs. South Hills wanted similar treatment for the mental health staff grants. As early as 1971, then, member hospitals and Blue Cross had begun a running disagreement over the accounting treatment by Blue Cross of the federal staffing grants.
HEW agreed with the hospitals’ interpretation of their Blue Cross contracts and contended that the Blue Cross accounting treatment was tantamount to a violation of 42 U.S.C. § 2688a(a)(4) because, in the absence of federal grants, Blue Cross would have included mental health center staff costs as reimbursable operating costs of the hospital. HEW also contended that the Blue Cross contract was unenforceable as against public policy. When Blue Cross rejected the interpretation urged by the hospitals, HEW threatened to cut off the grants to the hospitals! Thus, to use the current idiom, the appellant hospitals found themselves between a rock and a hard place — they valiantly sought reimbursement from Blue Cross, yet when they failed, HEW threatened to close off grants to them because Blue Cross interpreted the contract differently from the way HEW did. The district court has accurately described the situation:
The Secretary was aware of the controversy and, in fact, caused it. He had urged the hospitals to negotiate a change in the practice used by Blue Cross because the more money Blue Cross paid the hospitals, the better chance they would have of surviving without federal money, but Blue Cross wanted to protect its subscribers and its rates. The more Blue Cross had to pay, the higher the rates it would have to charge. Blue Cross said its subscribers would be subsidizing the taxpayers unless it was permitted to treat the federal grants as restricted grants. As was apparent to everyone, Blue Cross spends only its subscribers’ money and the Secretary spends only the taxpayers’ money. Finally, the Secretary precipitated this litigation when he threatened to cut off the staffing grants. The hospitals were placed in the middle because they could not operate the mental health clinics without the grants.
Appendix at 67a.
Thus it cannot be said that HEW was a casual bystander to the contract dispute. If the contract formed the basis of the controversy, it was the threatened HEW action that precipitated the present litigation.
Faced with these pressures, the hospitals filed suit seeking money damages from Blue Cross for alleged breaches of the contracts and injunctive relief to prevent Blue Cross from deducting the grants from the amount of allowable hospital costs. After removal, HEW was added as an indispensable party under Rule 19 of the Federal Rules of Civil Procedure, whereupon the Secretary counterclaimed against eight of the hospitals to recover for allegedly erroneous grant payments, claiming that the hospitals had breached the provisions of the post-1975 grants. The district court ruled in favor of Blue Cross on the hospitals’ claim and in favor of the hospitals on the Secretary’s counterclaim. Only the hospitals have appealed. ■
I.
The essence of the appellants’ jurisdiction argument is that the state court action involved only a contract, to be interpreted under the common law of Pennsylvania, and that no federal question appeared in its theory of the case. Blue Cross argues that the federal question appears on the face of the complaint and that interpretation of federal statutes permeates the entire controversy.
We start from the premise that for a civil action to arise under 28 U.S.C. § 1331(a), the “right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action” and that “the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936). An unwavering series of Supreme Court decisions has emphasized this rule. See e.g., Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974) (per curiam).
Furthermore, federal removal procedure clearly requires that the initial pleading in the state court must set forth the basis for removal. 28 U.S.C. § 1446(b). The Supreme Court has instructed us that the removal procedure reflects a congressional policy of severe abridgement of the right to remove a state action to federal court. In adjuring strict construction of the removal statutes, the Court has cautioned:
Not only does the language of the [removal statute, 28 U.S.C. § 1441] evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (other citations omitted). See also American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 95 L.Ed. 702 (1951).
There is much force to appellants’ contention that their claim for relief involved only the interpretation of the Blue Cross contract under Pennsylvania law. Certainly, this was the theory on which the law suit was ultimately decided. But our inquiry as to the presence of federal jurisdiction is not on the basis of how a complaint could have been structured or of what theory was eventually relied upon at trial. As in La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 343 (3d Cir. 1974), we perceive our task to require an examination of “the face of the complaint” for a federal question. Generally speaking, the nature of plaintiffs’ claim must be evaluated, and the propriety of remand decided, on the basis of the record as it stands at the time the petition for removal is filed. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939).
Our examination discloses that, unlike the situation in La Chemise Lacoste, where the federal question was introduced in the defense pleadings, here the plaintiffs’ complaint introduced the federal question. Paragraphs 9, 12 and 13 of the complaint made reference to the federal statutes in question; 114 described the federal grants in detail. Paragraph 15 was an averment of the mandatory sanction of federal law:
The federal law and/or regulations having the force and effect of law pertaining to seed money grants requires grantees such as plaintiff(s) to exert their/its best efforts to secure additional financing from sources other than the federal government, including insurance companies such as Blue Cross, to insure that the mental health care program will continue as a viable service after exhaustion of the seed money grants.
Appendix at 10a.
Notwithstanding their contention that it would have been possible to decide the contract dispute solely on state law precepts, we see that appellants gratuitously volunteered on the face of their complaint legal conclusions based on federal statutes and regulations. Although these allegations may have been unnecessary for the ultimate disposition of the case, and here we are accepting the appellants’ premise, surplusage of federal claims in pleadings is not the test. A subsequent amendment to the complaint after removal designed to eliminate the federal claim will not defeat federal jurisdiction. Hazel Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963). “The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.” Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561, 88 S.Ct. 1235, 1237-1238, 20 L.Ed.2d 126 (1968). We cannot say that as drafted and filed in the state court, the complaint did not require construction of a federal statute for its disposition. See Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974).
This in itself would have been sufficient to vest federal jurisdiction, but appellants made additional averments in their complaint that militate against the contentions they now urge on appeal. In 135, they averred that
the federal government, through HEW, has given notice to plaintiff(s) that they/it is/are and will be in violation of the conditions attached to the grants and ineligible for allotted staffing grant monies or terminated from the grant program until Blue Cross conforms with the condition that it give proper recognition to the seed money grants and not receive any benefit from the grant and, further, that applicable law requires restitution by the plaintiff(s) to HEW of those staffing grant amounts already paid unless Blue Cross makes proper restitution to said plaintiff(s). The date set for the discontinuance of funding is January 1, 1977. Letters from HEW setting forth that position are attached hereto as Exhibits “A”, “B” and “C” and intended to become part hereof.
Appendix at 14a. Paragraph 35 heightens the federal overtones of this litigation and makes applicable what we said in Lindy v. Lynn : “An action arises under the laws of the United States . . . if it requires the construction of a federal statute or a distinctive policy of a federal statute requires the application of federal legal principles for its disposition.” 501 F.2d at 1369.
Thus, notwithstanding the restrictive congressional policy against removal, American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), appellants’ argument cannot succeed. To accept their contention would require us to evaluate the question of federal jurisdiction at the time of trial in the federal court and to decide that subject matter jurisdiction did not obtain because appellants went to trial on state law theories only. To do so would be to ignore the rule in removal cases that subject matter jurisdiction is to be determined from the face of the complaint and on the basis of the record in the state court, at the time the petition for removal is presented. The hospitals’ complaint, so viewed, reveals alternative bases for relief against Blue Cross, namely, that the hospitals were entitled to relief under the contract whether it was interpreted according to state law principles or under the federal mental health statutes. Because appellants’ complaint was based in part on federal statutes, and federal agency regulations and interpretations, we conclude that there was jurisdiction under 28 U.S.C. § 1331(a). It is immaterial that at trial appellants relied solely on state law principles to make their case.
II.
On the merits, we have no difficulty affirming the judgment of the district court essentially for the reasons set forth in its opinion, Appendix at 64a-88a, The trial court determined, and we agree, that a restricted grant had been recognized by both Blue Cross and the hospitals as a grant to be used for a specific purpose and that the parties had followed
the practice, usage and custom of having costs determined by annual audits in which restricted grants were deducted in figuring allowable costs. They did this knowingly and intentionally. The contracts thus encompassed the custom employed. In fact, the custom was to allow Blue Cross to establish the accounting practices and to administer them and to determine what grants were to be excluded in figuring reimbursable costs in some 100 hospitals which served some 2,500,000 Blue Cross subscribers. The determination of allowable costs did not include restricted grants. Restricted grants were grants made for a specific purpose.
Appendix at 72a-73a.
The district court also determined
that for purposes of the administration of the contracts between Blue Cross and the hospitals, the federal grants were restricted grants because they were to be used strictly for purposes of paying staff salaries. Under the Blue Cross contracts, both the 1966 and the 1973 contracts and other contracts dating back to the early 50’s, the hospitals had given Blue Cross the privilege of establishing the accounting procedure to be used.
Appendix at 74a.
In a thoughtful analysis of HEW’s contention that the Blue Cross contract was void as against public policy, Judge McCune concluded:
We find that the Secretary, until this litigation, has never had a policy on this issue and has never contended that deduction of the grants is opposed to the law or public policy. Nor has he held hearings to establish a policy pursuant to his official regulations.
We refuse to find the Blue Cross contracts illegal or opposed to public policy. None of the Amendments in plain language made the practice, which was part of the contracts, illegal or opposed to public policy.
Appendix at 78a. Apparently HEW has acquiesced in the court’s rejection of its contention and denial of its counterclaim. An appeal previously lodged by HEW was withdrawn prior to briefing.
The judgment of the district court will be affirmed.
. 28 U.S.C. § 1331(a) provides:
The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,-000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.
. Appendix at 65a.
. 42 U.S.C. § 2688a(a) (1975), provided:
Grants under this part with respect to any community mental health center may be made only upon application, and only if—
******
(4) the Secretary determines that there is satisfactory assurance that (A) the services to be provided will constitute an addition to, or a significant improvement in quality (as determined in accordance with criteria of the Secretary) in, services that would otherwise be provided, and (B) Federal funds made available under this part for any period will be so used as to supplement and, to the extent practical, increase the level of State, local, and other non-Federal funds, including third party health insurance payments, that would in the absence of such Federal funds be made available for the program described in paragraph (2) of this subsection and will in no event supplant such State, local, and other non-Federal funds.
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_casetyp1_7-3-5
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I
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
RIDGE RADIO CORPORATION, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Dr. E. Z. Eperjessy, Louis Popp, and William H. Myers, co-partners, d/b/a Windber Community Broadcasting System, Intervenors.
No. 15946.
United States Court of Appeals District of Columbia Circuit.
Argued April 11, 1961.
Decided June 8, 1961.
Messrs. Robert Bennett Lubic and Isadore G. Aik, Washington, D. C., for appellant.
Mr. Richard M. Zwolinski, Counsel, Federal Communications Commission, with whom Mr. John L. FitzGerald, General Counsel, Federal Communications Commission, at the time the brief was filed, Mr. Max D. Paglin, now General Counsel, Federal Communications Commission, and Mr. Joel Rosenbloom, Counsel, Federal Communications Commission, at the time the brief was filed, were on the brief, for appellee. Mr. Daniel R. Ohlbaum, Asst. General Counsel, Federal Communications Commission, also entered an appearance for appellee.
Mr. William P. Bernton, Washington, D. C., for intervenor. Mr. E. Theodore Mallyck, Washington, D. C., also entered an appearance for intervenor.
Before Wilbur K. Miller, Chief Judge, and Bazelon and Fahy, Circuit Judges.
FAHY, Circuit Judge.
The Federal Communications Commission denied the request of Ridge Radio Corporation, herein referred to as Ridge, that its application for a new standard broadcasting station to operate on 1350 kilocycles at Windber, Pennsylvania, be consolidated for hearing with other mutually exclusive applications. At the same time the Commission dismissed Ridge’s application. Petition for reconsideration was also denied and Ridge then appealed to this court.
The question is whether Ridge was validly denied the consolidated hearing it sought because its application was filed after a cut-off date had been set by the Commission in circumstances now to be stated.
The Commission’s rule regarding consolidations, section 1.106(b) (1), reads as follows:
“In broadcast cases, no application will be consolidated for hearing with a previously filed application or applications unless such application, or such application as amended if amended so as to require a new file number, is substantially complete and tendered for filing by whichever date is earlier: (i) The close of business on the day preceding the day the previously filed application or one of the previously filed applications is designated for hearing; or (ii) the close of business on the day preceding the day designated by public notice published in the Federal Register as the day any one of the previously filed applications is available and ready for processing.”
On July 30, 1959, the Commission issued a public notice in which it listed fifty applications that would be considered ready and available for processing by September 5, 1959. The notice advised that,
“[A]n application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing at the offices of the Commission in Washington, D. C., no later than the close of business on September 4, 1959, or, if action is taken by the Commission on any listed application prior to September 4, 1959, no later than the close of business on the day preceding the day on which action is taken.”
As September 4, 1959 arrived before action was taken on any listed application that date became the cut-off date under the notice.
Ridge’s application was filed November 23, 1959. There were then on file, among others later to be mentioned, the following applications for a new station on 1350 kilocycles at Windber:
“Gosco Broadcasters, herein referred to as Gosco, filed May 15, 1959, public notice of the filing being announced on May 18, 1959; and
“Windber Community Broadcasting System, herein referred to as Community, filed September 4, 1959.”
On January 7, 1960, pursuant to section 309(b) of the Communications Act of 1934, the Commission advised twenty-nine applicants, as well as other known parties in interest; that since their proposals involved mutual interference a consolidated hearing would be required to determine which proposals should be granted. This is the consolidated hearing in which Ridge sought a place. Included among the twenty-nine was WKRZ, Incorporated, licensee of station WKRZ, Oil City, Pennsylvania, seeking increase in power on its frequency of 1340 kilocycles. Also among the twenty-nine was the application of Connellsville Broadcasters, Incorporated, herein referred to as Connellsville, licensee of station WCVF, Connellsville, Pennsylvania, filed August 25,1959, for increase in power on its frequency of 1340 kilocycles. Connellsville was included because of objectionable interference it would cause to station WKRZ. Also included were Gos-co and Community because of objectionable interference they would cause to the Connellsville proposal, and because they were mutually exclusive of each other. Ridge was not included although, like Gosco and Community, it sought a new station at Windber on a frequency of 1350 kilocycles.
Ridge had no interest in any application included in the list published July 30, 1959, but, as above indicated, it did have an interest in the applications of Gosco and Community. As stated, the latter were included in the consolidated hearing because Connellsville, which filed August 25, 1959, created a possible interference with station WKRZ, and Connellsville was also in possible conflict with Gosco and Community. Of these, all except Ridge had filed by September 4, 1959, though only WKRZ was listed in the notice of July 30, 1959, and Ridge had no conflict with WKRZ.
Since the Commission’s denial of Ridge’s request for inclusion in the comparative hearing referred to in the letter of January 7, 1960, was based on the filing of its application after September 4. 1959, we do not consider any other basis which might have been but was not advanced by the Commission for its decision.
It is not questioned that Ridge would have been entitled under the Ashbacker doctrine to the consolidation it sought unless Ridge was cut off, as the Commission found, under section 1.106(b) (1) of its rule and the July 30, 1959 notice given under the rule. This new provision of the Commission grew out of the administrative difficulties to which the Ashbacker decision gave rise. Some such provision became necessary to prevent inordinate delays which arose through “chain reaction” conflicts such as are illustrated by this case. The right to provide an administrative solution of this sort was suggested by the opinion of the Court in Ashbacker, where it is said: “Apparently no regulation exists which, for orderly administration, requires an application for a frequency, previously applied for, to be filed within a certain date.”
The Commission construes the rule to mean that unless filed before the cut-off date an application may not be consolidated for hearing with any application previously filed, which included WKRZ in this case, with which Ridge had no conflict, and Gosco and Community with which Ridge did have a conflict, but which were not on the list of July 30, 1959. The Commission explains that this meaning of the rule was made clear when the present text of the rule was adopted, though the Commission then recognized that it might exclude from consideration applications filed before the date of hearing itself. The Commission deemed this result to be in the public interest after weighing the rights of the excluded appplicant with the need for expeditious disposition of applications.
We do not in this case question the authority of the Commission to enforce the rule it has adopted, or to give it the construction above set forth. But in carrying out the rule so construed the Commission may not, however inadvertently, give public notice of a cut-off date which does not fairly advise prospective applicants of what is being cut off by the notice. In the present case the Commission published a list of fifty applications that would be considered ready and available for processing by September 5, 1959, and advised potential applicants that “an application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing * * * no later than the close of business September 4, 1959 * * In reading this notice one would reasonably conclude that it was directed only to applications having a possible conflict with some application on the list. It was not a warning that an application filed after September 4 would be precluded from Ashbacker consideration with an unlisted mutually exclusive application filed before that date and which in some way was in conflict with another unlisted application also filed before September 4, which in turn was in conflict with a listed application. To make the amended rule have that effect in a particular case the notice under the rule must be clearer as to the effect intended.
It is difficult enough to read section 1.106(b) (1) itself as the Commission interprets it, but we accept that interpretation in light of the history of the provision. Nevertheless, when a particular cut-off date is fixed by public notice a potential applicant is entitled to rely upon the terms of the notice. The Commission is not required in a notice to phrase its cut-off provision so broadly as to encompass all the rule itself permits. It may validly do less by the notice. In this case we think it did less. As phrased the notice was not fair warning that to be considered with Gosco and Community, not on the list, Ridge must file by September 4. Since, therefore, the notice did not deprive Ridge of its right to an Ash-backer hearing with other Windber-area applications, and since the rule was restricted in this case by the scope of the notice, the order of the Commission will be reversed and the case remanded to the Commission for further proceedings not inconsistent with this opinion.
We need hardly add that the question as to the adequacy of the notice does not evoke the principle of judicial deference to administrative expertise, often available to support Commission decisions of a different character.
It is so ordered.
. 47 C.F.R. § 1.106(b) (1) (Supp.1960).
. 24 Fed.Reg. 6248-49 (1959).
. 48 Stat. 1085 (1934), as amended, 47 U.S.C. § 309(b) (Supp. II 1959-60), 47 U.S.C.A. § 309(b), not including the amendment effective December 12, 1980.
. Since the Ridge application was not timely filed under the cut-off provisions of the Rules to be considered with the applications listed in the 309(b) letter of January 7, 1960, and since it is mutually exclusive with the applications of Gosco and Community listed therein, the application must be dismissed under the provisions of § 1.106(b) (4) of the Rules which states that, “Any mutually exclusive application filed after the date prescribed [cut-off date as published in Federal Register] * * * will be dismissed without prejudice and will be eligible for refiling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket.” Ridge Radio Corp., 20 Pike & Fischer R.R. 197, 202 (1960).
. Ashbacker Radio Corp. v. Federal Communications Comm’n, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108.
. See Revision of AM Processing Procedure, 18 Pike & Fischer R.R. 1565 (1959).
. 326 U.S. at page 333, note 9, 66 S.Ct. at page 151, note 9.
. In its petition for reconsideration filed with the Commission, Ridge laid emphasis upon the failure of the Commission in its discretion to waive the rule. But the Act does not limit our review to matters stressed in the petition for reconsideration. In view of the contentions and presentations as a whole, before the Commission and this court, we would not feel justified in failing to decide the case on the question of notice.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
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songer_two_issues
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
ANDERSON-TULLY CO. et al. v. CHICAGO MILL & LUMBER CO.
No. 13877.
United States Court of Appeals Eighth Circuit.
June 17, 1949.
Lamar Williamson, Monticello, Ark. (Williamson & Williamson, Monticello, Ark., were with him on the brief), for appellants. ,
C. E. Daggett, Marianna, Ark. (Daggett & Daggett, Marianna, Ark., were with him on the brief), for appellee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
WOODROUGH, Circuit Judge.
This appeal is taken to reverse a judgment entered in an action to quiet title to certain wild, unenclosed, unimproved land suitable only for growing timber, in Lee County, Arkansas. The judgment dismissed the plaintiff’s action and quieted the title in the defendant as against all claims of the plaintiff.
The case was tried to the court without a jury under- a stipulation of facts in which the parties agreed that it should “constitute all the evidence upon which the court will adjudicate the issues presented by the pleadings’’ and it appears that the controversy involves conflicting claims of ownership to an identified “area in controversy”, based on purchases of tax titles and payments of taxes and that the rights of the parties are governed by the law of Arkansas. The matter for determination on the appeal is whether or not the trial court reached and declared a permissible conclusion as to the applicable law of Arkansas.
The stipulation of facts is lengthy and the findings of the court thereon are appended, but it suffices for the purpose of this opinion to state that appellee owns the NE^ of Section 19, Township 1 North, Range 6 East, in Lee County, Arkansas, a part of which was riparian to the Mississippi river in about 1891 and the “area in controversy” in the action (fully identified by metes and bounds in the judgment) is land which has, since about 1891, been added to appellee’s riparian land by accretion. The appellee paid taxes on its said riparian NE% of Section 19 for nine consecutive years prior to the commencement of this action, and its predecessors in title ■paid taxes on it for more than 15 consecutive years. None of the payments or receipts therefor mentioned the accretions to the land and the receipts referred to the quarter section description for which taxes were paid as containing 160 acres. But under Arkansas law accretions belong to the owner of the riparian land to which they are added and they pass by conveyance describing said land without being further described or mentioned. Also generally the payment of taxes there upon descriptions of riparian land constitutes payment upon the accretions thereto and recitals in conveyances or tax receipts as to the amount of the acreage do not affect the results. Bush, Receiver v. Alexander, 134 Ark. 307, 203 S.W. 1028; Wallace v. Driver, 61 Ark. 429, 33 S.W. 641, 31 L.R.A. 317; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382, 389, Annotation; Towell v. Etter, 69 Ark. 34, 59 S.W. 1096, 63 S.W. 53; Crill v. Hudson, 71 Ark. 390, 74 S.W. 299; Mobbs v. Burrow, 112 Ark. 134, 165 S.W. 269; Plant v. Sanders, 209 Ark. 108, 189 S.W.2d 720; Sanders v. Plant, 211 Ark. 913, 204 S.W.2d 323. There is no slightest doubt that the sovereign state had full power to tax the accretions as soon as they appeared and as they expanded, but its policy to preserve the right of the riparian owner is manifest in its acceptance of his tax payments on his original holding as and for payment on such holding with accretions. So that under Arkansas law the ap-pellee was the owner of the NE]4= of Section 19 with all accretion thereto (which is the area in controversy in the action) unless there was proof to establish that appellants own it.
The appellants have a tax title to, and for the 24 years preceding the filing of this action have themselves or through predecessors in interest paid taxes on a description “Frl Section 17, Township 1 North, Range 6 East, in Lee County, Arkansas” and it is shown that that description appeared in the government survey of 1824 and there identified land in place then situated in the same geographical position now occupied by the accretions to appellee’s land referred to as the area in controversy in this action. Appellants rely upon that tax title and tax payments.
But prior to' about 1891 the Frl Section 17 marked on the old survey was washed away by the river and was covered by the deep channel. The description ceased to identify any land in place which was subject to individual ownership or use. As the new land was thereafter formed by the accretions and was added to the riparian ownership, that is, to appellee’s ownership, the description of the riparian land included the accretion and as the Arkansas court put it, “All original lines [implied in the old original description] ceased to exist.” Wallace v. Driver, 61 Ark. 429, loc.cit. 423, 33 S.W. 641, 642, 31 L.R.A. 317. In that situation this court held, in Chicago Mill & Lumber v. Tully, 8 Cir., 130 F.2d 268, that in paying taxes on an obsolete description analogous to “Frl Section 17” of the old survey which had ceased to define land in place subject to private ownership and use did not operate to deprive the.riparian owner of the accretions to his riparian land.
The ancient survey was not obsolete in the sense that it failed to identify a geographical situs. It marked the geographical location so that anyone could identify it as such. But it did not serve to connect the situs with ownership and that is the purpose of a land survey. As was pointed out by the Arkansas Supreme Court in Bracken v. Henson, 211 Ark. 572, 201 S.W.2d 580, 582, in discussing the survey necessary to identify an accretion severed from the mainland to which it has been added, “a survey is invalid which ignores the boundaries as defined in the title papers of the property owners. * * * The surveyor has no right or authority to ignore the existing boundary lines. On the contrary, it is his duty to make a survey conforming to the boundary lines and to make and have recorded a plat showing the survey thereof.” The gradual changes in the river change the boundary lines of riparian owners and a proper survey must take those changes into account.
The questions we were required to consider and determine in the Chicago Mill & Lumber case may not be distinguished from those controlling here, and we there had the benefit of the learning and research of the same peculiarly qualified counsel who appear and have filed some 200 pages of briefs on this appeal. There the plaintiff had acquired tax title and had paid taxes upon descriptions of land that had been washed away 'by the Mississippi river. The area in controversy in the lawsuit had been thereafter formed by accretion to riparian land belonging to defendants. The defendants had long paid the taxes upon the riparian lands and owned the accretions unless divested by the plaintiffs’ action. The master appointed by the trial court and the trial court concluded that under Arkansas law the defendants had not been deprived of their accretions. We affirmed the judgment.
The appellants here contend that the Arkansas law was not rightly declared in that case and argue (1) that the later decision of this court in Anderson-Tully Co. v. Mur-phree, 8 Cir., 153 F.2d 874, overrules it; (2) that our decision in Chicago Mill & Lumber overlooked certain Arkansas cases which are controlling and compel contrary decision, and (3) that the Arkansas Supreme Court has since handed down decisions contrary to our decision in the Chicago Mill & Lumber case.
(1) It is true that Anderson-Tully v. Murphree compelled our consideration of many of the same Arkansas cases that had been studied in Chicago Mill & Lumber Co. v. Tally, and the review shows that the vagaries of the Mississippi river have made it difficult for Arkansas to carry out her two clearly manifested purposes of preserving accretions in private ownership to riparian owners and of assessing and collecting from taxpayers and tax buyers all the land taxes she is entitled to. The legislative and judicial actions equally reflect the difficulties of the problem. In Chicago Mill & Lumber v. Tully, the riparian owner was awarded the accretions and the claims of the lumber company based on its tax payments and purchase of tax title were denied. In the Murphree case, the area in controversy was found not to be accretion but was island information that reappeared within the boundaries of the former owner. It was preserved to such owners by their tax payments upon their original holding under the special statutory provisions which we found to be applicable. The provisions preserved and restored the ancient descriptions and there were no riparian rights to accretions involved. We do not find our decisions in the two cases to be in conflict or that Murphree decision overruled Chicago Mill & Lumber Co.
(2) Our decision in Chicago Mill & Lumber Co. does not discuss Buckner v. Sugg, 79 Ark. 442, 96 S.W. 184, Maney v. Den-nison, 110 Ark. 571, 163 S.W. 783, or Wells v. Rock Island Improvement Co., 110 Ark. 534, 162 S.W. 572, now asserted by appellants to be controlling as to the Arkansas law and in conflict with our declaration of it. But we did consider the first two of those cases in the Murphree case, discerning in them no reason to overrule our decision in Chicago Mill & Lumber, and counsel for appellee herein has now supplied us with even more complete analysis of them which tends to support his position here.
It appears as to the Buckner case that the area there in controversy had not had the status of originally surveyed land in private ownership under legal description like Frl Section 17 of the original governmental survey here involved. It had not been lost to its original owner by being washed away and having the channel of the river located over it and then having new land form on the geographical situs by accretion to riparian ownership. It had emerged from a lake bed where it had not been subject to private ownership. After it emerged it was surveyed and became popularly known by appropriate designation given to it by the surveyor extending the existing survey and was so taxed. The court answering the contention that a decree of tax foreclosure through which Buckner claimed was void because the description employed was defective in that a section 12 of the extended survey therein used had never been govern-mentally surveyed and therefore did not legally exist, said [79 Ark. 442, 96 S.W. 186] : “The controlling question in this case, therefore, is whether a description otherwise than by reference to plats of the original public survey or to other recorded plats properly identifying the tracts or lots of land, can be aided by extrinsic evidence of facts which serve to connect the description with the particular tract or lot sought to be charged. * * * We think that the description was, when aided by evidence, that the land has been surveyed, and is popularly known and designated thereby, sufficient to form the basis of a valid assessment and sale for levee taxes.” Buckner v. Sugg does not require overruling the Chicago Mill and Lumber decision.
In Maney v. Dennison, Dennison sued to eject Maney from land which Dennison claimed to own under tax title and as accretion to adjoining land owned by him. Maney had no paper title but claimed title by adverse possession. The court found the land in controversy to be accretion added to land conveyed to Dennison and that his tax title describing the land as it was popularly known was also prima facie evidence of Dennison’s ownership. It found that Maney had not adduced sufficient evidence of adverse possession for the statutory period to justify submission of his claim to the jury. The question whether a riparian owner had been divested of his accretions through tax sale under description of land entirely washed away was not involved. Wells v. Rock Island Improvement Co. does not throw light on this case.
(3) The decisions handed down by the Supreme Court of Arkansas since Chicago Mill & Lumber Company which appellants assert to'be in conflict with our decision are Sanders v. Plant, 211 Ark. 913, 204 S.W.2d 323, decided June 23, 1947; and Burbridge v. Bradley Lumber Company, 215 S.W.2d 710, decided November 22, 1948.
As to the Plant case (which is one of two decisions of the Arkansas court settling many controversies between Sanders and Plant), it appears that the court found a description [211 Ark. 913, 204 S.W.2d 325] “accretions in section 20, 60 acres” under which land was sold at tax' sale to be void for uncertainty because it appeared that the area in controversy included accretions formed upon two different quarter sections and there had been a severance of the respective accretions from each of the riparian quarter sections. The court reiterated the law of Arkansas as it had been recognized by this court, that “a conveyance carries all of the riparian rights of the land conveyed * * * and a separate conveyance of riparian rights is unnecessary * * *” (1 syl.) and the decision implies, as we held, that the same principle controls as to tax payments and tax sales and titles. But in the cited Plant case the Supreme Court had before it an instance where the riparian owner of land and accretion to it had caused a severance to be made between her riparian land and the accretion as authorized by Arkansas statute and had secured a proper description of the accretion as a separate unit of land so that it could be identified for tax assessments and other purposes by reference to a plat of the survey she had caused to be made and which became a public record. Referring to that situation, there was added to the declaration of law we have quoted above, the following: “unless there has been a severance of the riparian rights from the land conveyed”. (1 syl.) The cited Plant case does not conflict with the Chicago Mill & Lumber Co. decision and we are unable to discern any conflict upon study of the’ learned and comprehensive majority and minority opinions in Burbridge v. Bradley Lumber Co.
The last mentioned opinions do bring forcibly home to us that Arkansas tax title law evolved from a vast amount of the hard work of learned and able men reflected in a large number of Arkansas decisions. But in the Chicago Mill & Lumber case and in this case the judgments appealed from were entered by judges also learned in Arkansas law. Judge Lemley correctly stated in his conclusions in the instant case that the facts bring it within the controlling facts in Chicago Mill & Lumber Co. v. Tully, and that the Supreme Court of Arkansas had not passed upon the questions involved here since decision in that case was rendered. In the performance of our limited function on this appeal, we conclude that the trial court reached and applied permissible conclusions as to the law of Arkansas not in conflict with controlling Arkansas statutes or decisions. Its judgment is therefore affirmed.
“I. Defendant, Chicago Mill and Lumber Company is the owner of the record title to the area originally surveyed in 1824 described as the Northeast Quarter (NE%) of Section 19, Township 1 North, Range 6 East, in Lee County, Arkansas. Said record title is deraigned by mesne conveyances recited in subdivision 5 of the stipulation, and. is based on early forfeitures for the non-payment of taxes and a Clerk’s tax deed, the validity of which is not questioned.
“II. (a) At the time of the original Government land survey in 1824, the Northeast Quarter (NE14) of Section 19 was original land. As then surveyed and platted, it contained 169 acres, and no part of it was riparian to the Mississippi River.
“(b) Subsequently, and prior to 1891, the Mississippi River eroded Southwest-wardly into said Northeast Quarter (NE 14) of Section 19 and had thereby destroyed a triangular portion of it, making it riparian to the River, as shown on “Exhibit C.”
“(c) About 1891, the River reversed its lateral movement and by gradual erosion moved Northeastwardly, as a result of which that portion of the Northeast Quarter (NE14) of said Section 19 which had been destroyed by -erosion was reformed by accretion and so.restored to its original acreage; as the River continued its Northeastward lateral move'ment, the entire ‘area in controversy’ was formed as accretions to said Northeast Quarter (NE%) of Section 19, as is recited in subdivisions 3 and 4 of the stipulation.
“III. It is not shown exactly when the Northeast Quarter (NE14) of Section 19 was restored to its original acreage by accretion, but:
“(a) By its decree in 1895, the Chancery Court of Lee County, Arkansas, in confirming the title of the St. Francis Levee District, as authorized by Act C of the General Assembly of the State of Arkansas, March 29, 1893, recited that the Northeast Quarter (NEJ4) of said Section 19 contained 160 acres.
“(b) When the St. Francis Levee District conveyed this description in 1899, its deed recited that the Northeast Quarter (NE14) of Section 19 then contained 160 acres.
“(c) By 1904 the accretions to said Northeast Quarter (NE%) of Section 19 had moved far beyond the original boundaries of Section 19 and had reformed a large portion of the area originally surveyed by the United States, in 1824, as Section 17, Township 1 North, Range 6 East.
“It is, therefore, safe to assume that nine years after the River began its Northeastward lateral movement from the line of ‘Maximum Recession’; and then the taxes were assessed against the Northeast Quarter (NE^) of Section 19 for the year 1900, and when the Clerk’s tax deed conveyed that description in 1903 (the validity of which con-veyanee is not questioned), the entire 160 acres was land in place.
“IV. Defendant, Chicago Mill and Lumber Oompany, and its predecessors in title, paid taxes in the form and manner set forth in Paragraphs 6(a), (b), (c), (d), (e), (f), (g) and (h) of the stipulation.
“V. As stipulated in Paragraph 7(a), ‘the Northeast Quarter (NE%) of Section 19, and all of the ‘area in controversy’ which formed by way of accretions on the area originally surveyed as Section 17, 18 and 20, as shown on ‘Exhibit B’, is now and always has been wild, uninclosed, unimproved land, suitable only for growing timber’.
VI. (a) Plaintiffs, B. C. Tully and Anderson-Tully Oompany, are the owners of the record title to the entire area originally surveyed in 1824 as 457.33 acres, described as ‘All of Fractional Section 17, Township 1 North, Range 6 East, in Lee County, Arkansas,’
“(b) Its record title is deraigned by the mesne conveyances recited in subdivision 8 of the stipulation.
“VII. (a) At the lime of the original Government land survey in 1824, Fractional Section 17 was riparian to the Mississippi River and was surveyed as then containing 457.33 acres.
“(b) But, prior to 1891, the Mississippi River had eroded Southeastwardly into the Northeast Quarter (NE%) of Section 19, thereby completely destroying all of Fractional Section 17, as originally surveyed in 1824.
“(c) About 1891 the River reversed its lateral movement, moved Northeast-wardly, and as the result thereof, the entire ‘area in controversy’ was formed as accretions and new-made land, as recited in subdivisions 3 and 4 of the stipulation.
“VIII. (a) Plaintiffs have continuously and consecutively paid all taxes assessed against ‘All of fractional Section 17’ for the years 1922 to 1945, inclusive, as shown by stipulation 9(a) and 9(b).
“IX. All of the area which comprised Fractional Section 17, as originally surveyed, and all of the ‘area in controversy,’ is now, and always has been, wild unin-closed, unimproved land.
“X. The ‘area in controversy’’ is properly shown in green color on ‘Exhibit B’ and is easily described correctly by metes and bounds.
“XI. If the area shown on M. R. O. Chart 25, 1913-15, (“Exhibit D”), which has been formed as accretions to the riparian shore line of 1891 (as it ran through Sections 18, 19 and 20 in said year) during the interim between the years 1891 and 1913, had then been apportioned according to Arkansas law, that portion of it apportionable to the Northeast Quarter (NE%) of Section 19 would have, in 1913, been bounded by North and South lines, as shown on ‘Exhibit B’ and as described in stipulation, Paragraph 3(1), extended to the bank of the Mississippi River as it ran in 1913. (See Exhibit “D”).
“XII. The approximate top Bank and Timber Line of the Mississippi River in October, 1904, is correctly shown by the broken blue lines as designated on Exhibit ‘O’; and is also the Bar Line of that date by the solid blue line on Exhibit ‘C’. (See stipulation, paragraphs 11(e) and 11(b).)”
Said Frl Section 17 does not coincide geographically with the “area in controversy" but includes it.
The other being Plant v. Sanders, 209 Ark. 108, 189 S.W.2d 720.
Question: Are there two issues in the case?
A. no
B. yes
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.
DAVID L. SKINNER & CO., Inc., et al. v. HITCHCOCK et al.
No. 2832.
Circuit Court of Appeals, First Circuit.
Sept. 15, 1933.
MORTON, Circuit Judge, dissenting.
C. Harold Baldwin and Spaulding, Baldwin & Shaw, all of Boston, Mass., for appellants.
William Harold Hitchcock, of Boston, Mass., for appellees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This ease originally came before this court on a petition for leave to appeal. While no transcript of the record in the District Court was filed with the petition, the facts on which the alleged erroneous ruling of the District Court was made are simple, and at the time of the hearing on the petition for leave to appeal were orally stated to this court by the parties. The petition for appeal was allowed and opportunity given the petitioner to file a transcript of the record in the District Court, and ten days given to each party in which to file briefs after the filing of the transcript with the clerk of this court.
This has been done. No new facts other than those agreed upon by the parties at the time of the hearing on the petition, or any new authorities cited in the briefs filed within the ten-day period in addition to those cited in the brief filed by the receivers in opposition to the granting of the petition, appear.
It now appears from the record that the only issues of fact raised by the answers to the petition in bankruptcy are: Whether an act of bankruptcy was committed by the appointment of a receiver in the state courts for the Nantasket Steamboat Company because of its insolvency; whether it was insolvent on the date of the filing of the petition in bankruptcy; and whether two of the three petitioning creditors participated in the state receivership proceedings to the extent of estopping them from joining in such petition.
Of course, no facts bearing on these issues are found in the record. Neither do any grounds appear therein on which the motion for postponement of the hearing was based.
The single issue of law raised by the assignment of errors is whether an order of the District Court continuing the hearing on the issues raised on the petition in bankruptcy and answers thereto filed June 12, 1933, until after September 15, 1933, without fixing any definite date for such hearing, is in compliance with section 18d of the Bankruptcy Act (11 USCA § 41 (d), which requires the issue thus raised to be determined “as soon as may be.”
The order of the District Court, which is the basis of the appeal, issued on motion of the appellees that the hearing on the issued thus raised “be continued until on or about September 15,1933,” and against the protest of the appellants, is as follows:
“Upon the foregoing motion, after hearing William Harold Hitchcock, petitioner, and C. Harold Baldwin of counsel for the petitioning creditors,
“It is ordered that hearing be continued until after September 15,1933.”
It may be that, by the time this opinion is filed, the question raised by the assignment of errors will have become of little concern to the parties to the cause, but an interpretation of section 18d of the act is essential for the future guidance of both court and counsel.
It is undoubtedly true that some discretion is permitted the District Court under section 18d of the act in fixing the time of hearing on the issues raised by a petition in bankruptcy and answer thereto, yet it is perfectly clear that Congress intended by the provisions of the act to have the issue of bankruptcy determined at an early date. The reasons therefor are so plain as not even to require a statement thereof.
While this court cannot control a proper exercise of judicial discretion by the District Court in such cases, it is of the opinion that the postponement of such hearing to an indefinite date more than three months after the filing of an answer is a clear abuse of the discretion vested in the District Court under the section above referred to. Adams v. Foster, 5 Cush. (Mass.) 156; Bentley v. Ward, 116 Mass. 333; Silverstein v. Daniel Russell Boiler Works, Inc., 254 Mass. 137, 149, 149 N. E. 795.
To approve of such an order would, in effect, defeat the obvious purpose of section 18d of the act.
The order of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_r_bus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LYMAN MFG. CO. v. BASSICK MFG. CO., and six other cases.
(Circuit Court of Appeals, Sixth Circuit.
March 23, 1927.)
(Nos. 4461-4464, 4571, 4572, 4601, 4611, 4612, 4766).
1. Patents @=>328 — Reissue, 14,667, for lubricating system for automobiles, held not infringed as to claim 6, and valid and infringed as to claim 12.
Winkley reissue patent, No. 14,667, for a lubricating system for metal bearings, particularly those of automobiles, held not infringed as to claim 6, and valid and infringed as to claim 12.
2. Patents @=26( I) — Modification of one element by another during one of successive steps of unitary operation is sufficient to make combination, as distinguished from mere aggregation.
It is not necessary that the mutual interaction of elements should be constant to make a patentable combination instead of mere aggregation, but modification of one element by another during one of the successful steps of the unitary operation is sufficient.
3. Patents @=>328 — 1,307,734, for lubricating means for automobiles, held valid as to claims 1-4, 7, 8, 14, 15, and invalid as to claim 12.
Gullborg patent, No. 1,307,734, for lubricating means for automobiles, held valid as to claims 1-4, 7, 8, 14, 15, and invalid as to claim 12.
4. Patents @=>328 — 1,459,662, for automobile lubricating system, held invalid for lack of invention.
Manzel patent, No. 1,459,662 for lubricating system, particularly for automobiles, held invalid for lack of invention.
5. Patents @=>210 — That patentees sanction use of invention on parts of automobile does not give owner license to use invention on other parts.
Because patentees of lubricating system for automobiles have sanctioned use of invention on a certain number of bearings on an automobile by furnishing the means therefor, owner of automobile does not have license to get same means from some other source for use of invention on other and additional bearings.
6. Patents @=3212(2) — Others than licensed users may keep part of patented combination in stock for sale to licensed users.
If a patented combination, which includes a normally and frequently remoyable element is in general use, others than licensed users may keep this part in stock for sale to licensed users.
7. Patents @=>259(2) — Sale to dealers of unpatented parts suitable and intended for use in patented lubricating system held “contributory infringement.”
Sale to garage keepers and dealers of parts suitable and intended for eventual use as part of patented lubricating system held to constitute contributory infringement, though part itself was unpatented.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]
8. Patents @=>301 (I) — That contributory infringement is trifling does not justify refusal of injunction.
That contributory infringement of patent is trifling may be good ground for denying accounting, but it does not justify refusal of injunction.
9. Patents @=>311— Defense to charge of contributory infringement that owner of patent caused confusion by not marking patented goods is in effect claim of license and must be proved.
Defense to charge of contributory infringement by sale of unpatented parts for patented combination that owner of patent caused confusion by not marking patented goods is in effect-claim of license, which must be pleaded, and burden of proving which is on defendants.
Appeals and Cross-Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.
Appeals and Cross-Appeals from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hiekenlooper, Judge.
Separate patent infringement suits by the Bassiek Manufacturing Company against the Lyman Manufacturing Company and others, against the Peerless Automatic Machine Company, against the O. K. Manufacturing Company and others, against the Larkin Automotive Parts Company, against the Wag’s Auto Accessories Company, and against the Riggs Tire & Supply Company. Prom the decrees in the first three cases, all parties appeal; and plaintiff alone appeals in the other eases.
Decrees respectively reversed or modified in accordance with opinion, and remanded, with directions.
Lynn A. Williams, of Chicago, Ill., and John Weld Peek, of Cincinnati, Ohio (Williams, Bradbury, McCaleb & Hinkle, of Chicago, III., Squire, Sanders & Dempsey, of Cleveland, Ohio, and Albín C. Ahlberg, of Chicago, Ill., on the briefs), for Bassiek Co.
Arthur J. Hudson, of Cleveland, Ohio (G. E. Dunstan, of Cleveland, Ohio, on the briefs), for Lyman Co. and Peerless Co.
Allen & Allen, of Cincinnati, Ohio, amici curias.
Alfred M. Allen, of Cincinnati, Ohio (Marston Allen, of Cincinnati, Ohio, Prank W. Krehbiel, of Dayton, Ohio, Howard C. Williamson, and Allen & Allen, all of Cincinnati, Ohio, on the briefs), for O. K. Co.
Edward L. Reed, of Dayton, Ohio, and Alfred M. Allen, of Cincinnati, Ohio (Allen & Allen, of Cincinnati, Ohio, and E. H. & W. B. Turner, of Dayton, Ohio, on the brief), for Larkin Co.
In 4461-4464:
Before DENISON, DONAHUE, and.MOORMAN, Circuit Judges.
In 4571, 4572, 4601, 4611, 4612, 4766:
Before DENISON and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
DENISON, Circuit Judge.
These cases can best be considered by one opinion, all the judges in each case concurring. They are patent cases, affecting the lubrication of metal bearings, and particularly those of automobiles. The universality of the automobile has made this a problem with which thousands must be somewhat familiar, where formerly only here and there a few of those engaged in mechanical pursuits were concerned. This change in the size of the community affected does not change the inherent character of the problem, but gives a different color, perhaps to a substantial extent, to the questions of utility involved. Prom the beginning of the automobile use until about. 1917, lubrication at the points where heavy oil or grease was the proper medium had been effected mostly through the so-called grease cup. The conduit leading to the point of final lubrication was, at its beginning at the outer and accessible location, enlarged into a serew-tjireaded opening. The grease cup was turned into this and might remain permanently attached. This grease cup was closed by a removable cap; the interior being filled with grease, the cap or a plunger contained in the cup was turned down, whereby the grease was driven through the conduit to the bearing. It was also common, where the outer opening was in a relatively inaccessible spot or where large amounts of grease were to be used, to close the opening with a removable cap, and upon the removal of that cap, or when desired upon the removal of the grease cup, what was called a grease gun was employed. This was a cylinder in which a plunger was forced along driving the grease out of the cylinder and grease gun through a coupling, often flexible, the end of the coupling being screwed into the threaded opening which led to the point of lubrication.
It is obvious, and was a matter of common observation, that these methods of lubricating were very greasy and dirty. Even if the work was not done in a garage, grease was likely to be left smeared about, where it would come in contact with the clothes of the user, and the vast number of men and women who must do this work themselves were forced to put on old clothes and gloves every time some greasing was necessary, even on the road, or else suffer damage; also the old grease commonly became dirty and hardened on the bearing or in the conduit and very difficult to remove by any simple available means. Thus there was undoubtedly a great and growing demand for many years for some method or device for this kind of lubrication, which would be efficient and cleanly and so simple that it could be used by the ordinary run of ear owners anywhere and at any time.
It is this demand which, in a commercial way, was first met and seems to have been, at least for the time being, fully satisfied by the device and plan known under the trade name of the Alemite high pressure system. By this system all the grease cups were removed and in their places were put devices, which contained little or no grease reservoir, but merely extended the conduit above the surface of the main member. They were identical in size and form, so that each one was just like any other, no matter in what part of the machinery it was found. They will be more particularly described hereafter, but in the most used form, each one carries a pin driven transversely through it and projecting at each side into the open. Hence they have taken, in this trade and in this litigation, the name of pin fitting. In connection with them there was supplied a device of general similarity to the old grease gun, but with changes adapted to make it peculiarly appropriate for this connection. It was provided at its nozzle with slots for engaging with the arms of the pin fittings to make a union of the bayonet joint type. Special construetions to be described tended to prevent' the extrusion of excess grease. The hose of the compressor could therefore be attached, by effective and grease-tight joints, instantly to any fitting anywhere, no matter how relatively inaccessible, the grease forced into the bearing even if a very high pressure was necessary, and the coupler could be instantly removed and attached to the next fitting.
No doubt the system was quick, efficient, and cleanly, far beyond anything in commercial use. It was probably first manufactured in 1916. In 1917 one of the strong automobile companies adopted it as standard equipment, by which is meant that when the automobile leaves the factory, all its greasing points are provided with these fittings instead of the old grease cups, and the compressor and coupler go along as part of the tool equipment. The system proved so acceptable to the public that in 1923 it had « been adopted as standard equipment by 85 per cent, (in number) of the automobile manufacturers in the country; but several of the largest manufacturers had not so accepted it. Hence all the older machines still in use, and all those being put out by these larger manufacturers, were still provided with the old grease cups or with threaded openings in which either grease cups or the Alemite fittings could be inserted, and these automobiles continued to furnish a general market for which the Alemite system could be sold. There was use also in other machinery. The total amount of sales has been and continues to be very large. The question involved in this litigation is, to how much patent protection, if any, the proprietors of this business are entitled.
The patents upon which whatever rights they have are based, and so far as involved in any of these appeals, are Winkley reissue 14,667, dated June 10, 1919, and reaching back to the original application of May 1, 1916, for a “lubricating system”; G-ullborg, for “lubricating means,” No. 1,307,734, issued to him June 24, 1919, upon an application filed December 21,1918; and Manzel, for “lubricating system,” numbered 1,459,-662, dated June 19, 1923, upon an application filed August 18, 1920.
Winkley contemplates using a fluid lubricant rather than a heavy grease; but, as these are only other terms for light and heavy oils, the patent is not necessarily for that reason inapplicable. Winkley provided a compressor with a movable piston, which forced oil under pressure into a discharging flexible hose, which carried it to the coupler for passing on into the fitting. This coupler comprised primarily an external easing cylinder or barrel with a central bottom orifice, and, sliding' vertically within the barrel, a secondary cylinder (which Winkley called a cup) having a central orifice in its hopper bottom adapted to project downward through the orifice in the barrel. The top of this interior cylinder was closed and its vertical motion was controlled by a spring interposed between the cup top and the barrel top whereby normally the cup would be forced downwardly, so that its hopper bottom would project, but would remain capable of a substantial, though limited, upward motion against the spring.
The oil-carrying flexible hose was connected to a circular opening through the side wall of the barrel, and at this point there was a slotted vertical opening through the cup well, whereby the passage of the oil from the hose to the cup would continue in spite of the cup’s vertical motion in the casing. The center orifice in the bottom of the cup was normally closed by a eheek valve, the upward stem of which was surrounded by an actuating spring, carried up to the under side of the cup cover; but the lower part of this cheek valve was carried on downwardly and when the valve was closed projected through and below the opening in the cup bottom. This coupler easing was also provided with downwardly projected and horizontally diverging claws, which were adapted to pass under appropriate shoulders in the head of the fitting below. The parts were so proportioned that when the two were thus clamped together, the head of the fitting would contact with and press upwardly the downwardly projecting valve stem, thus opening the eheek valve ■ in the cup. / This initial upward motion would be limited and stopped when the top of the fitting and the projecting bottom of the cup came together; but inaccuracies in the sizes and the slight irregularities of manufacture or of wear would be met, and the efficiency of the seal promoted, by the further upward motion of the cup in its recession against its spring resistance. Pressure applied to the oil column would then open the spring check valve in the fitting and the oil would flow through the lower conduit to the bearing. There was, therefore, at the joint between the two parts, the primary seal effected by the gripping, but unadjustable, contact of the claws and shoulders and the secondary reinforcing contact effected by the spring-pressed resistance of the sliding cup.
In the Lyman case, claims 6 and 12 of Winkley are in issue. In the O. K. case, many other claims are formally in issue, but the brief of counsel for the patents in this court alleges infringement only of claim 12. Many of the claims (including 6) include as an element the cheek valve whieh closes the lower or final orifice of this sliding member, the cup. The plaintiff in its commercial Ale-mite structures, and Lyman and the O. K. in theirs, make no use of any such valve in that location. Such structures all use a check valve at the opening into the sliding cup member; but claim 6 expressly calls for this valve at the discharge orifice of this member; and we agree that it is not infringed by any of the defendants’ structures shown.
. Claim 12 reads thus: “The connection with a lubricant receptacle of means for Supplying the lubricant thereto under pressure, comprising a conduit having means for detachably securing it to said receptacle, a perforated member yieldably mounted in said first named means, for contacting with one end of said receptacle to seal the connection between said conduit and said receptacle, and spring means for yieldingly holding said yieldably moimted • means in contact with.said receptacle.” This claim has evidently been selected for prosecution because in some particulars it is not so broad as some others, and yet is believed to be broad enough to" cover the defendants’ structures involved. One of the courts below apparently thought that the claim description of the sliding cup element should be restricted to substantially the form of Winkley’s sliding cup, having complete sides and top, and having the spring pressure applied from outside. It is plain that this claim and the group of which it is a member intended to. eliminate the cup orifice cheek valve as an element of the combination and to cover more broadly the remainder of the device as it would operate without any exit valve. There is no reason why, in a proper ease, this might not be done, since if this member were not inverted, or if the exit were small enough and the oil heavy enough not to run out, this valve would be only an addition to the structure, commonly useful, but often not necessary.
The defendants’ structures undoubtedly respond to this claim, excepting that they have cut away the top and part of the sides of the sliding cup member, so that it slides in the casing more as a piston plunger and is yieldably held to its lowermost position by a spring extending from its bottom up to the top of the casing. One court below thought this not the equivalent of Winkley’s cup. Of course, this depends upon the proper scope of equivalency; the language of the claim is amply broad enough to include this mutilated form. Unless for the matters hereafter stated, we see no reason to limit this claim to this extent. Unless -for those matters, Winkley did something entirely new when he provided for that compound joint and seal, between the meeting conduit members, which first made positive connecting grip between the pérmanent parts of the two and then added an intensive seal, provided by contact between the firm surface of the lower member and the yieldably retreating, but downwardly pressing sliding element of the other member, both in a combination which contemplated the passage of the lubricant through the sealed joint so made with the resulting protection against extrusion of the oil.
If this is what he did, Winkley ought not to be restricted to the particular form of his sliding member. The top and sides of his cup are quite clearly of little or no importance to its function. Its closed form prevents the oil from escaping through the sliding fit between cup and casing, but so long as the lower part of the cup is retained and given a tight sliding joint, the same result is maintained. The only other use of the complete form of the cup is that its top makes an abutment for one end of its pressing spring, but this abutment can just as well be anywhere else on the cup, or on its bottom. We must therefore inquire whether the state of the art prevents giving this normal scope of equivalency. In our judgment, most of the matters relied upon for this limiting effect are at once seen to be ineffective when we observe that they sought to use one means only for their complete union. They do not show a slidably mounted sealing member, wholly independent of and supplemental to the mechanical primary gripping means. The probably memoriona distinction, perhaps alone effecting satisfactory commercial utility, is that no single action quick detachable means can adjust itself, as against mechanical imperfections of construction or wear, to maintain continuously an efficient sealing for a high pressure lubricating device.
An argument, much relied upon, against finding a reasonably broad invention in this novel construction is that Winkley’s spring-pressed sliding member is merely a resilient element and that the gasket or washer of the old screw thread unions is an equivalent resilient element. We think not. A stationary packing, crowded against its support by an advancing screw head, makes a tight joint, for the time, and while not disturbed, but when compressed or worn by long or frequent use, the screw must be further advanced, or the joint leaks. With the quick detachable grip of the present form, there can never be any such advancement. The automatic supplementary adjustment which Winkley provided, was necessary to the best effectiveness of the quick detachable, grip. Other distinctions also exist. It may be said, as usual in such eases, that the defendants are at liberty to use a screw thread and gasket union. One of the defendants tried to, but gave it up, and adopted the secondary sliding element, giving the automatically adjustable intensive seal.
It is next contended that Winkley is but an aggregation. Counsel seem to mean both that it is an aggregation as distinguished from a true combination and that it is a mere selecting of existing elements and putting them together in a way which, though it *may produce a true combination, does not involve invention. Both claims will be considered. It is doubtless true that the compressor, the coupler and the fitting are not always dependent on each other. Each has useful functions not necessarily associated with the others; but the fact that they are not always in combination does not demonstrate mere aggregation when they are used together. The device is for the purpose of forcing lubricant into an interior bearing, and the situation at the moment of use must determine the character of the association of the parts.
It is not necessary that the mutual interaction should be constant; the modification of one element by another during one of the successive steps of the unitary operation is sufficient to make a true combination. Egry Co. v. Standard Co., C. C. A. 6, 267 F. 186, 191. Here we find that as the oil progresses under pressure from the advancing compressor it is received into and through the fitting, which has its valve opened by the pressure, and it passes through the joint between coupler and fitting, which is constantly held together by the opposed clamps and which is sealed by the spring-pressed sliding element. We find no room to doubt the existence' of a combination, as distinguished from that aggregation where two elements of the combination are never in use at the same time, like the lead pencil point and eraser tip (Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719), or where the action of one only indicates but takes no modifying part in producing the action of the other, like the ajutage (Gas Machinery Co. v. United Gas Improvement Co., C. C. A. 6, 228 F. 684, and cases cited).
The question whether Winkley did more than exercise mere mechanical skill in selecting and putting together existing elements is the most serious objection made to this patent; but we do not regard it as fatal. It brings us to the Alley British patent of 1906, and the Barcus United States patent No. 1,-117,762 of 1914. (Piquerez is not old enough to need consideration here.) Alley was for a grease gun for this general purpose. He had the idea that he would substitute for the old grease cup a fitting which would, project above the main member and be suitable for engagement with a nozzle at the end of the flexible hose attached to a grease compressor. He did not very clearly disclose, but he apparently contemplated, using identical fittings in place of all his grease cups, whereby the nozzle could be moved from one to another. He made a screw-threaded connection between nozzle and fitting, although he added to the description a general suggestion that a bayonet joint connection might be substituted. His nozzle was without any secondary resilient sealing means for its joint with the fitting; indeed, he did not shbw even a packing for this -purpose; and if he used a high pressure and the screw threads were adapted to quick attachment, extrusion of the grease would be probable.
Barcus was dealing withi a coupling for two lengths of water hose, apparently for large hose to be attached to a fire hydrant, because his device is too elaborate for lawn or garden use. This device is the only one before Winkley, found in any somewhat analogous art, in which there was a claiming connection supplemented by.anything in the nature of a spring-pressed, tight-sealing, element. In a general way, this element in Barcus resembles that of Winkley and of defendants. Each section of hose carries a coupler head between which heads there is a primary connection of the bayonet joint character. The outer head carries an annular sliding member which is spring-pressed toward the open end and, as the inner coupling member enters the outer head, it meets this spring-pressed sliding member and push-' es it back. The spring pressure tends to. maintain the proper sealing contact between the two coupler heads. It can well be said that, if some one had told Winkley to put the Barcus sliding member into the nozzle of the Alley hose, the necessary adaptation of parts necessary to produce Winkley’s own result would have been within the range of mechanical skill. It is in the conception of the transfer, followed by reduction to practice, that inventive merit is to be found, if anywhere; and we think it is. The transmission of water through a hose coupling where it would have unobstructed flow and where the connection once made remains unbroken during a substantial operation, and where the loss of some of the water at the. joint 'is of little consequence, directly or indirectly, does not present the same problems as the transmission of a small amount of oil through obstructed openings where a perfect seal is of primary rather than of secondary importance. It is true that both use couplings, and in that sense, the arts are analogous, but the conditions surrounding their use are different. The propriety of going to a fire hose to see how to get grease into a fitting is not wholly apparent.
Nor do we think that, even if both structures were observed, the advisability of the transfer of this element would be obvious. The Barcus sliding element is complicated. It consists of a ring or sleeve, sliding in the interior of the outer coupling, and wholly outside the main, unobstructed passage. It carries a cup-shaped washer, for sealing contact with the longitudinal walls, and held in place by a screw ring. The spring which makes it resilient is also wholly outside the main passageway, so as not to obstruct it, and is held against an annular shoulder in the coupler. It does not bear against the top closure of the nozzle, because there is no such closure — indeed, there is no nozzle at all. More than all, claim 12 indicates the change from Barcus open sliding tube to Winkley’s “perforated member,” with its relatively small central opening, obstructed from the sides to the perforation. There is no “lubricant receptacle,” nor “means for supplying the lubricant thereto.” In a fair sense, a new’result was produced by Winkley. Of course, it may be said that each (Bareus and WinHey) only passed a fluid element through a joint without leakage; but in the forms by which WinHey adopted this idea, and upon which adoption Gullborg based his development, they produced an unprecedentedly efficient lubricating device, adapted to the particular problems of the automobile and similar uses; and it swept the field.
Defining the phrase broadly enough, it will almost always appear that there was no “new result”; but the “new result” of Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177, was not to make cloth, but to make it faster — increased efficiency. Upon the whole, and applying as best we can the rule in such eases, we think there was invention in taking the sliding element from the water hose coupling of Bareus, modifying it as necessary, and using it in the grease gun nozzle of Alley. Considered as a matter of mere double use, we think the patent sustainable under the discussion of authorities found in our opinion in Weir Frog Co. v. Porter (C. C. A.) 206 F. 670, 675. “The physical change * * * signified transformation of one thing into another.” We have sustained as inventive generally similar adaptations of existing old elements to a new utility. Star Brass Works v. General Elec. Co. (C. C. A.) Ill E. 398; Herman v. Youngstown Car Mfg. Co. (C. C. A.) 191 F. 579, 582, 583, and eases cited. We have also found invention in the adaptation, to automobile problems, of formerly known mechanical means. Cadillac Co. v. Austin (C. C. A.) 225 F. 983, 991; American Ball Bearing Co. v. Finch (C. C. A.) 239 F. 885, 889; Inland Mfg. Co. v. American Wood Rim Co. (C. C. A.) 14 F.(2d) 657.
We now come to the Gullborg patent. The relations between WinHey and Gullborg are, in our opinion, those typical between a relatively generic patent and a specific improvement thereon. The improvement has contributed substantially to the public acceptance; perhaps the form shown in the generic patent has never been put upon the market and had some deficiencies which would have interfered with any general use unless perfected by the later patent; whatever inferences for patentable novelty come from commercial success and public acceptance belong to them jointly, because the article marketed traces origin to both; to attempt to apportion the credit is not required nor feasible.
Gullborg’s improvement pertained to the form and resulting functions of Winkley’s spring-pressed element for completing the seal. In place of Winkley’s cup, with top and sides complete, Gullborg substituted a cup-shaped perforated washer, which was spring-pressed into sealing contact with the head of the fitting. The additional functions gained by this change in form were two: The first was that after the initial sealing was effected by the spring pressure, it was intensified and made more efficient by the pressure developed in the liquid itself. The second was that by reason of the peculiar shape of the sliding member, and after it had been by the pressure of the fitting pushed up a substantial distance, upon the“ disunion of the parts the spring would throw it sharply down to its position of rest, leaving a vacuum behind it, and an upward inrush of air into this vacuum through the restricted opening would create a suction which would pull up into the opening the grease which at the moment of disunion had been below the opening, and which otherwise wotdd smear up the parts and impair the cleanliness of operation.
The first of these meritorious functions is not fanciful. Its existence is not only apparent from inspection, but tests show that the same pressure which is developed in the conduit below the fitting — as much as 1,000 pounds if need be — is also developed above and against the contacting bottom of this cup washer; and the actual efficiency in this pressure is demonstrated by the test showing that, while it is maintained, the fitting head and the lower side of the washer cannot be disturbed in their adherence without considerable force, while, when the pressure is removed, they would, except for the bayonet joint, drop apart. As to the second functional merit, its theoretical existence is apparent. Its actual existence in substantial degree seems to be demonstrated by high-pressure experiments and by the concurrence of the undisputed testimony that the claimed result does occur and that this is one of the efficient causes why the device has had its great success.
Considering only WinHey, we have no doubt of the practical merit in the Gullborg improvements; but after WinHey had shown the way, by adopting Barcus’ sealing member to use in a grease gun, the field of invention for subsequent improvements was thereby narrowed. However, it is plain that Gullborg did more than merely adopt the Barcus idea in the environment provided by WinHey.
One of these improvement functions Barcus did not suggest — much less perform. He had no restricted opening of any kind through the bottom of his sliding member. Hence the creation of any vacuum back of it, with the resulting indrawing suction, was impossible. The other improvement function, the added seal from inherent pressure, is found in Barcus. He says nothing about it, as his referenee to the lubricant pressure seal plainly refers to the sliding contact upon the sides; but it is this pressure which is exerted, through the interposed washer, to force the inner coupling member down, so that its pins are held in the depression of their corresponding slots. In this respect Gullborg used Barcus’ form more closely than WinHey did. Gullborg’s specific changes gave more sealing surface between fitting and sliding member than Barcus did; but we see nothing in this, except a change in degree. So far, therefore, as any claim in Gullborg depends upon this suction result, it is valid; so far as it must rest solely for its novelty upon the pressure produced adhesion, it is invalid. Of the claims in suit, Nos. 1, 2, 3, 4, 7, and 8, by their reference to a perforated sliding disc or cup washer, or means for removing excess lubricant, sufficiently imply dependence upon the con-, struetion which will give this novel suction effect. In claim 12 there is no novelty over WinHey, excepting that the interposed gasket is held against one of the members by the pressure of the lubricant.. This claim, for the reasons just stated, is invalid.
We see no reason for denying the patentable novelty of Gullborg’s particular form of -fitting, by reason of which it has come to be called a pin fitting, and by which the same pin which furnished bearings for the slot, was made to pass through the fitting and furnish an abutment for the valve closing spring; but it is only this complete eombi'nation that can be patentable. When the pin becomes merely arms projecting from each side, and the spring abutment is otherwise furnished, we have only the already common bayonet joint member. It follows that claims 14 and 15 are valid.
We see no invalidity in claim 7. It calls for the coupler member, including the perforated cup leather which is its novel characteristic, and in combination with any suitable coupled member leading to the bearing. This subassembly performs by itself a step in the operation and develops the new suction function; and we see no
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_state
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56
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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 Terry Allen CONNOR, Debtor, Jerry DENNIS, Appellee, v. Terry A. CONNOR, Debtor; Arkansas Rice Growers Cooperative Assoc. d/b/a/ Riceland Foods; United States of America, Appellant.
No. 83-1251.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 11, 1984.
Decided April 30, 1984.
George W. Proctor, U.S. Atty., Diane S. Mackey, Asst. U.S. Atty., Little Rock, Ark., Raymond W. Fullerton, Asst. Gen. Counsel, Margaret M. Breinholt, Deputy Asst. Gen. Counsel, U.S. Dept. of Agr., Washington, D.C., for appellant U.S.
Larry Hartsfield, Newport, Ark., for appellee Jerry Dennis.
Before ARNOLD, JOHN R. GIBSON and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.
The United States appeals from a decision of the District Court, which accorded priority to a security interest held by Jerry Dennis over a conflicting security interest held by the Farmers Home Administration (FmHA) of the United States Department of Agriculture. We reverse.
Terry and Paula Connor (Connor) borrowed $60,000 from the FmHA on November 20, 1978. Under the terms of the promissory note, the loan was to be repaid in eight installments. The first seven installments were to be handled in annual payments on each January 1, beginning in 1979 and continuing through 1985. The eighth installment was to be paid on November 20, 1985. To secure the loan, the FmHA obtained and perfected a security interest in Connor’s crops on a 220-acre tract of land in Jackson County, Arkansas that Connor leased from J.R. Sink. In May 1981, Connor had Jerry Dennis install an irrigation system on the leased property. On August 11, 1981 Connor, who had not yet paid for the irrigation system, executed a promissory note for the installation price. An accompanying security agreement gave Dennis a security interest in two-thirds of the rice crop then being grown on sixty acres of the leased property. Dennis properly perfected his security interest.
Connor defaulted on both the FmHA and Dennis notes and filed a petition in bankruptcy. In the ensuing bankruptcy proceedings, both the FmHA and Dennis claimed a superior interest in proceeds from the sale of Connor’s 1981 rice crop. On September 7, 1982, the bankruptcy court granted the United States’s motion for summary judgment, the effect of which was to accord priority to the FmHA’s security interest. Dennis appealed the decision of the bankruptcy court. On December 17, 1982 the District Court reversed the bankruptcy court’s decision, giving Dennis’s security interest priority. This appeal then was taken by the United States.
The sole question on this appeal is which of the two security interests should be given priority. Both the FmHA and Dennis have a perfected security interest in Con-nor’s 1981 rice crop that was grown on sixty acres of the Sink property. Both security interests were perfected by filing a financing statement in Jackson County, Arkansas; the FmHA filed on November 20, 1978 and Dennis filed on August 11, 1981.
Under Arkansas’s codification of the Uniform Commercial Code, when two security interests, both of which have been perfected by filing a financing statement, are in conflict, priority generally is given to the party who first filed its financing statement. See Ark.Stat.Ann. § 85-9-312(5) (Supp.1983). If this general rule is applied, the FmHA has priority over Dennis. But Dennis claims that, under an exception to the general rule, his security interest should be given priority.
Dennis relies upon Ark.Stat.Ann. § 85-9-312(2) (Supp.1983), which provides as follows:
A perfected security interest in crops for new value given to enable the debtor to produce the crops during the production season and given not more than three [3] months before the crops become growing crops by planting or otherwise takes priority over an earlier perfected security interest to the extent that such earlier interest secures obligations due more than six [6] months before the crops become growing crops by planting or otherwise, even though the person giving new value had knowledge of the earlier security interest.
Applying this statute, the District Court found that Dennis gave the requisite new value to Connor shortly after the 1981 crop in question became a growing crop and that Connor’s obligation to the FmHA was due more than six months before that crop became a growing crop. The District Court therefore gave priority to Dennis’s security interest. Designated Record at 55.
The facts of this case are similar to those in United States v. Minster Farmers Cooperative Exchange, Inc., 430 F.Supp. 566 (N.D.Ohio 1977). In that case, both the FmHA and the Minster Farmers Cooperative Exchange (MFCE) held a perfected security interest in certain crops of the debtor. On December 5, 1968 the FmHA had made the last in a series of loans to the debtor. Installment payments were due on the loans through December 1973. The loans were secured by an interest in all of the debtor’s crops. In April of both 1969 and 1970, MFCE had provided seed, fertilizer, and other materials to meet the requirements of planting the debtor’s 1969 and 1970 crops. To cover the cost of these materials, MFCE took a security interest in the debtor’s 1969 and 1970 crops. The 1969 and 1970 crops were delivered to MFCE. The United States then sued MFCE for unlawful conversion. Id. at 567-68.
The United States claimed that it was entitled to the debtor’s 1969 and 1970 crops because it had held a security interest in all of the debtor’s crops since 1965. Relying on a statute identical to the one relied on by Dennis in the instant case, MFCE claimed a superior interest in the debtor’s 1969 and 1970 crops. MFCE argued “that because the last promissory note between the [FmHA] and the [debtor] was executed on December 5, 1968, the [FmHA’s] security interest secured obligations ‘due’ more than six months before either the 1969 or the 1970 crops became growing.” Id. at 570. The district court construed the statute cited by MFCE as “ ‘entitling] one to priority only over obligations more than six months overdue at the time the crops in question become growing crops.’ ” Id. (quoting J. White & R. Summers, Uniform Commercial Code § 25.6, at 923 (1972)). The court concluded that because there were installments owed to the FmHA that had not yet come due within six months of the planting of the 1969 and 1970 crops and because such installments would continue to become due through 1973, MFCE was not entitled to priority under the statute. See id. The court granted the United States’s motion for summary judgment, giving priority to the FmHA’s security interest because it was the first to be perfected. Id. at 571.
We agree with the reasoning of the court in Minster, supra, and thus we find that Connor’s obligation to repay the FmHA was not more than six months overdue when Connor’s 1981 rice crop became a growing crop. At that time, the January 1, 1981 installment payment on the obligation was less than six months overdue. Moreover, the greater portion of the obligation was not overdue at all. Rather, it was to become due in increments through November 20, 1985. Accordingly, we hold that the District Court’s finding that Connor’s obligation to the FmHA was more than six months overdue before the 1981 rice crop became a growing crop is clearly erroneous. See Fed.R.Civ.P. 52(a). Dennis’s security interest thus is not entitled to priority under Ark.Stat.Ann. § 85-9-312(2) and the FmHA’s security interest, being the first to have been perfected, is entitled to priority under Ark.Stat.Ann. § 85-9-312(5).
The judgment of the District Court is reversed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_dissent
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5
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al. The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al.
Nos. 82-2445, 82-2477.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 14, 1983.
Decided March 9, 1983.
Mikva, Circuit Judge, filed opinion in support of reversal in which Wald, Circuit Judge, concurred.
Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright, Circuit Judge, filed concurring statement.
Harry T. Edwards, Circuit Judge, concurred and filed opinion.
Ginsburg, Circuit Judge, concurred in the judgment and filed opinion.
Wilkey, Circuit Judge, dissented and filed opinion in which Tamm, MacKinnon, Bork, and Scalia, Circuit Judges, joined.
Scalia, Circuit Judge, dissented and filed opinion in which MacKinnon and Bork, Circuit Judges, concurred.
Burt Neubome, New York City, of the bar of the State of N.Y., by special leave of Court, pro hac vice, with whom were associated Arlene S. Kanter, Laura Macklin, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., argued the case on behalf of appellants.
John D. Bates, Asst. U.S. Atty., with whom were associated Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., argued the case on behalf of appellees.
Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WIL-KEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.
ON REHEARING EN BANC
PER CURIAM:
Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs, in support of a judgment reversing. Chief Judge Robinson and Circuit Judge Wright file a statement joining in the judgment and concurring in Circuit Judge Mikva’s opinion with a caveat. Circuit Judge Edwards files an opinion joining in the judgment and concurring partially in Circuit Judge Mikva’s opinion. Circuit Judge Ginsburg files an opinion joining in the judgment. Circuit Judge Wilkey files a dissenting opinion, in which Circuit Judges Tamm, MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting opinion, in which Circuit Judges MacKinnon and Bork concur. The judgment appealed from is reversed, and the case is remanded to the District Court with instructions to enjoin appellees from prohibiting sleeping by demonstrators in tents on sites authorized for appellants’ demonstration.
MIKVA, Circuit Judge:
The Community for Creative Non-Violence (CCNV) applied for and was granted a renewable seven-day permit to conduct a round-the-clock demonstration, commencing on the first day of winter, on the Mall and in Lafayette Park in Washington, D.C. The declared purpose of the demonstration was to impress upon the Reagan Administration, the Congress, and the public the plight of the poor and the homeless. The National Park Service (Park Service) granted CCNV a permit to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents.
Although the permit allowed the demonstration participants to maintain a twenty-four hour presence at their symbolic campsites, the Park Service denied the participants a permit to sleep. According to the government, such conduct would violate the Park Service’s recently revised anti-camping regulations, see 36 C.F.R. §§ 50.19, 50.-27 (1982). CCNV claims that this prohibition strikes at the core message the demonstrators wish to convey — that homeless people have no permanent place to sleep. Accordingly, CCNV and seven individuals who wish to participate in the demonstration seek a court order invalidating the permit’s limitation on sleeping as an unconstitutional restriction on their freedom of expression. Following cross-motions for summary judgment, the district court decided in favor of the Park Service and the case arose on expedited appeal. After briefing and oral argument before a motions panel, but before that panel issued a decision, the ease was heard en banc.
Because we conclude that the government has failed to show how the prohibition of sleep, in the context of round-the-clock demonstrations for which permits have already been granted, furthers any of its legitimate interests, we reverse the district court’s decision and grant CCNV’s request for injunctive relief.
I. Background
A. The Regulatory Framework
This case presents the second occasion in which the government has sought to apply anti-camping regulations to demonstrations proposed by this appellant. In 1981, the Park Service allowed CCNV to erect nine tents in Lafayette Park to symbolize the desperation of homeless persons, but denied the demonstrators permission to dramatize this concern by actually sleeping in the tents. Under the regulations then in effect, 36 C.F.R. § 50.19(e)(8) (1981) (use of temporary structures); id. § 50.27(a) (camping), the Park Service reasoned that overnight sleeping would carry the demonstration beyond the permissible “use of symbolic campsites reasonably related to First Amendment activit[y]” and into the impermissible realm of “camping primarily for living accommodation,” see 46 Fed.Reg. 55,961 (1981). CCNV appealed that ruling.
In Community for Creative Non-Violence v. Watt (CCNV I), 670 F.2d 1213 (D.C.Cir. 1982), this court held that the Park Service had misapplied those regulations to CCNV’s proposed activity. Because the regulations precluded only camping “primarily for living accommodation,” and the act of sleeping in CCNV’s demonstration was not to be done for that purpose, the court found that such conduct fell outside of the Park Service’s proscription:
[T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended “primarily for living accommodation.” The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is “primarily” to express the protestors’ message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here — sleeping in already erected symbolic tents — cannot be considered “camping”
Id. at 1217. As a result of the court’s decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter.
The Park Service has since revised its camping regulations for the National Capital Region through a formal rulemaking. 47 Fed.Reg. 24,299-306 (1982) (codified at' 36 C.F.R. §§ 50.19, 50.27 (1982)). The new regulations, set out in the margin, specifically include within the definition of prohibited camping the act of sleeping “when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” 47 Fed.Reg. at 24,302. Although the amended regulation admittedly permits some leeway for administrative discretion, the Park Service has determined that the regulation prohibits the sleeping that would be done at CCNV’s demonstration this winter.
To understand fully the government’s current policy on sleeping in the capital’s parks, it is important to note that sleeping is not, per se, illegal. Visitors to the capital,' or workers on their lunch breaks, may safely catnap for short periods of time without running afoul of the law. Sleeping, in these circumstances, conjures up no threats to peace and public order. Although the Park Service’s anti-loitering regulation prohibits sleeping with intent to remain for more than four hours, it contains an exception for those with the proper authorization of the Superintendent of the National Capital Parks. See 36 C.F.R. § 50.25(k) (1982). And, as mentioned, the government’s camping regulation also allows for “sleeping activities” that are not deemed to constitute use of the area for living accommodation. An example of the discretion inherent in this latter determination is evidenced by the Park Service’s authorization, for participants in a Vietnam veterans’ demonstration on the Mall in May 1982, of all-night sleep at a mock Vietnam War-era “firebase” where some of the demonstrators were periodically roused to stand symbolic “guard duty.” See Park Service Permit to Vietnam Veterans Against the War dated April 20,1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans’ demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service’s interpretation of the new regulations, one’s participation in a demonstration as a sleeper becomes impermissible “camping” when it is done within any temporary structure erected as part of the demonstration.
The Park Service nonetheless allows the erection of temporary structures, including tents, in connection with permitted demonstrations under 36 C.F.R. § 50.19(e)(8) (1982). Originally worded to allow any “temporary structures... reasonably necessary for the conduct of the demonstration,” 41 Fed.Reg. 12,879,12,883 (1976), this regulation was amended in 1982 to state specifically that temporary structures “may be erected for the purpose of symbolizing a message,” 47 Fed.Reg. at 24,305. Since that amendment, the Park Service has, on at least two occasions besides this one, granted permits to groups of demonstrators to erect symbolic tents. See Park Service Permit to ACORN dated June 18, 1982, reprinted in RD 5 (50 tents dramatizing housing crisis); Park Service Permit to Palestine Congress of North America dated September 8, 1982, reprinted in RD 5 (107 tents symbolizing Palestinian refugee camp). Tents were also allowed prior to the amendment to symbolize conditions in Vietnam, the plight of American Indians, and the plight of the homeless. 47 Fed. Reg. at 24,301.
B. The Case Law
The dispute in this case over the Park Sérvice’s camping regulations bears similarities to numerous other disputes that this court has heard within the last fifteen years, each concerning the proper use of public park lands within the nation’s capital. Eg., CCNV I, 670 F.2d 1213 (D.C.Cir. 1982) (sleeping in Lafayette Park); United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (sleeping in Lafayette Park); Vietnam Veterans Against the War v. Morton (VVAW), 506 F.2d 53 (D.C.Cir.1974) (camping on Mall); A Quaker Action Group v. Morton (Quaker Action), No. 71-1276 (D.C.Cir. Apr. 19, 1971), vacated mem., 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971) (camping on Mall); see also O’Hair v. Andrus, 613 F.2d 931 (D.C.Cir.1979) (papal mass on Mall); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975) (public gathering in Lafayette Park); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir. 1972) (display on Ellipse); Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C.Cir.1969) (assembly on Capitol grounds). It should not be surprising, therefore, to learn that from this considerable history of decisionmaking the court has on several occasions addressed the propriety vel non of sleeping, in connection with public demonstrations, on the Mall and in Lafayette Park.
In 1971, in Quaker Action, No. 71-1276 (D.C.Cir. Apr. 19, 1971), this court modified a district court order limiting an anti-war demonstration on the Mall to the hours of 9:00 am to 4:30 pm. As a matter of summary reversal, the court lifted the district court’s nighttime curfew and allowed the demonstrators to use a section of the Mall “as part of their public demonstrations... for the purpose of sleeping in their own equipment, such as sleeping bags.... ” Id., cited in VVAW, 506 F.2d at 56 n. 9. The Supreme Court vacated our summary reversal in that case by a decree without opinion in Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), an action which a motions panel of this court recognized as controlling in a dispute between the same litigants and involving similar sleeping on the Mall three years later. See VVAW, 506 F.2d at 56. Despite the very specific nature of its holding, the VVAW panel expressed its view that camping overnight is an activity “whose unfettered exercise is not crucial to the survival of democracy ■ and... thus beyond the pale of First Amendment protection.” Id. at 57-58. In United States v. Abney, 534 F.2d 984 (D.C.Cir.1976), this court characterized the gratuitous statements in VVAW as non-binding dicta and held that, in the unusual circumstances of an individual protestor’s round-the-clock vigil in Lafayette Park, unavoidable sleeping “must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Id. at 985. The Abney court then held the Park Service’s anti-loitering regulation unconstitutional as applied, but stated in dicta that, “[i]t may well be that [a non-discretionary] across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable if duly promulgated and even-handedly enforced.” Id. at 986.
The question left open by Abney was not squarely before us last term in CCNV I; the Park Service’s anti-camping regulation was construed to avoid the constitutional issue. As part of the court’s decision, however, it was necessary to categorize the sleeping activities of the protestors as falling within one of two administrative classifications: (1) the use of symbolic campsites reasonably related to first amendment activities or (2) camping primarily for living accommodations. The CCNV I court concluded:
We have no doubt as to which category encompasses the activities in question here. First, the appellees are engaged in a political protest and a petition for redress of grievances. As part of their protest, the appellees desire permission to sleep in their tents in Lafayette Park. This appears to be no more than “the use of [a] symbolic campsiteQ” Moreover, as the District Court found, in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go.
670 F.2d at 1216-17 (footnote omitted) (emphasis in original). When the CCNV I decision is added to the decisions of this court in Abney and Quaker Action, it is quite clear that on several occasions this court has acknowledged that sleep can be “expressive,” or part of a political protest, for the purposes of either administrative or constitutional classifications.
II. Discussion
The district court’s decision in this ease necessarily followed from its conclusions that: (1) CCNV’s demonstration falls within the scope of the amended anti-camping regulations; (2) sleeping, within the context of. CCNV’s demonstration, falls outside the scope of the first amendment; and (3) even assuming first amendment scrutiny is required, the new anti-camping regulations are constitutional as applied to CCNV’s proposed sleeping activities. Although we agree that CCNV’s proposed activities fall within the government’s amended regulations, we cannot uphold the constitutionality of the regulations as applied to CCNV.
A. The Scope of the New Regulations
CCNV contends that it does not fall under the amended anti-camping regulations because it seeks to use sleep as a form of expression and not for “living accommodation” purposes. We cannot accept this argument. The regulation’s exclusion of “the intent of the participants or the nature of any other activities in which they may also be engaging,” 36 C.F.R. §§ 50.19(e)(8), 50.-27(a) (1982), underscores the evident purpose of the regulations to cover “living accommodations” that may also be expressive of the demonstrators’ message. Indeed, in the prefatory statement accompanying the 1982 amendments, the Park Service indicated that it was “amending § 50.19(e)(8) to forbid specifically the use of any such structures, including tents, for the purpose of conducting any living accommodation activity,” which was defined to include “sleeping.” 47 Fed.Reg. at 24,304 (emphasis added). As we stated in CCNV I, the court may rely upon an agency’s contemporaneously issued policy statement as an accurate representation of the agency’s purpose. 670 F.2d at 1216 (citing Environmental Defense Fund, Inc. v. EPA, 636 F.2d 1267, 1280 (D.C.Cir.1980)). It thus seems clear to us that these demonstrators come under the new regulations.
B. The Scope of the First Amendment
The scope of the first amendment’s protection of free expression is not as amenable to precise definition as the Park Service’s prohibition of “camping.” The Supreme Court has afforded first amendment scrutiny to government regulation of such expressive activities as demonstrating, marching, leafletting, picketing, wearing armbands, and affixing a peace symbol to an American flag. Although we acknowledge that all conduct need not be labelled “speech” merely because the doer “intends thereby to express an idea,” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), we also recognize that expressive conduct cannot be written out of the Constitution merely because the government may wish to label it “camping.” The values implicit in the first amendment are too multifaceted to be subject to wooden categorizations.
In the present case, our evaluation of the government’s ban on sleeping in symbolic structures is underscored by first amendment scrutiny because, as applied to CCNV’s proposed demonstration, the government’s ban will clearly affect expression: there can be no doubt that the sleeping proposed by CCNV is carefully designed to, and in fact will, express the demonstrators’ message that homeless persons have nowhere else to go. The “test” used by the Supreme Court to determine whether conduct is “sufficiently imbued with elements of communication to fall within the scope of the First... Amendment[ ],” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2729, 41 L.Ed.2d 842 (1974) (per curiam), is to examine the intent of the would-be communicator and the context in which his or her conduct takes place. In Spence, for example, the Court held that displaying the American flag with an attached peace symbol in the context of demonstrations against the bombings of Cambodia and the Kent State killings:
was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likeli hood was great that the message would be understood by those who viewed it.
Id. at 410-11, 94 S.Ct. at 2730-2731 (emphasis added). This court has already held that, within the context of an individual’s round-the-clock vigil, sleeping could be taken as “sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Abney, 534 F.2d at 985. In the present case, within the context of a large demonstration with tents, placards, and verbal explanations, the communicative context is sufficiently clear that the participant’s sleeping cannot be arbitrarily ruled out of the arena of expressive conduct.
Indeed, we cannot understand how the government can deny the indicia of political expression that permeate CCNV’s pointed use of the simple act of sleeping. The protestors choose to sleep, purposely across from the White House and Capitol grounds, in sparsely appointed tents which the Park Service has already designated as undeniably “symbolic.” Their permit application states that this conduct is intended to send the same message as this court recognized was sent in CCNV’s 1981-82 demonstration: that the problems of the homeless will not simply disappear into the night. Unlike the thousands of homeless men and women whose nights are spent on grates, in doorways, or in back alleys, these demonstrators propose to sleep within the conspicuous context of two organized demonstration sites that create a backdrop — by the combined use of structures, explanatory signs, and verbal discourse — to ensure that the message sought to be sent by the demonstrators’ conduct will, in all likelihood, be received. True, CCNV has devised a means of expression that also serves to provide the protestors with the “luxury” of a blanket and a bit of groundspace, within a tent, with which to pass a winter’s night. But for those genuinely homeless persons who choose to forsake temporarily their grates and doorways for these tents, the communicative dimension of the sleeping in this demonstration is not overshadowed by the simultaneous provision of a single amenity. The first amendment is not so rarefied that it cannot accommodate within its scope the conduct of these demonstrators who use their bodies to express the poignancy of their plight.
We add, moreover, that even were we not to focus on the peculiarly expressive nature of sleeping, first amendment scrutiny would still be implicated. This conclusion stems from the fact that the protestors’ purpose, whether asleep or awake, is to maintain a “symbolic presence that makes more visible and concrete the results of [presidential and congressional] inaction” on the conditions of the homeless. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. In short, the demonstrators seek to create an inescapable night- and-day reminder to the nation’s political leadership that homeless persons exist. Given this undeniable intent, and the contextual fact that the demonstration will take place at the seat of our national government, it is clear that CCNV’s proposed “presence” is intended to be expressive regardless of whether the demonstrators sit down, lie down, or even sleep during the course of the demonstration. Thus, whatever the particular form of the protestors’ presence at night, their presence itself implicates the first amendment. In this respect, CCNV’s twenty-four hour presence is entitled to the same first amendment protection as a vigil. Although not as small, stylized, or silent as the “reproachful presence” in Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1965) (silent civil rights vigil in a segregated public library), it is identical in both concept and purpose to such conduct. See United States v. Abney, 534 F.2d 984 (D.C. Cir.1976) (sleeping as part of a vigil in Lafayette Square entitled to first amendment scrutiny in the first instance).
We wish to make clear, however, that by holding sleeping to be expressive conduct within the context of this particular demonstration, we reject two subsidiary arguments urged on us by CCNV. First, we reject CCNV’s contention that sleeping in its demonstration is uniquely deserving of first amendment protection because it directly embodies the group’s message that homeless people have no place else to sleep. Under CCNV’s distinction, a group with a “no-place-to-sleep” message (such as the homelessness of refugees) could express it by deliberately sleeping, but a group with a different message (such as opposition to the nuclear arms race) could not sleep. Such a distinction is impermissible, however, because it would require the government to draw distinctions among groups desiring to express themselves through sleeping depending on the subject matter or content of their message and its alleged relationship to sleep, something the first amendment is designed to prevent. See, e.g., Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); L. Tribe, American Constitutional Law § 12-2, at 580 (1978). Second, we also reject CCNV’s argument that its sleeping must be protected because it is the most effective means by which the group can convey its message. The first amendment does not guarantee individuals access to the most effective channels of communication. See, e.g, Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-248, 17 L.Ed.2d 149 (1966). On the other hand, the fact that CCNV’s manner of expression may turn out to be quite effective does not make it any the less “speech.”
C. The Regulation as Applied
That CCNV’s conduct comes within the scope of the first amendment, however, only begins our constitutional analysis. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Supreme Court noted that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. at 376, 88 S.Ct. at 1678. The O’Brien Court then established that a governmental interest may be sufficiently justified
if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. at 377, 88 S.Ct. at 1679. In short, O’Brien requires us to engage in a balancing of first amendment freedoms and their societal costs that is structured to place a thumb on the first amendment side of the scales.
In approaching this task, we are mindful that CCNV seeks a permit for the exercise of first amendment rights on public parkland whose use for communication is of special importance:
There is an unmistakable symbolic significance in demonstrating close to the White House or on the Capitol grounds which, while not easily quantifiable, is of undoubted importance in the constitutional balance. Although this theory has been used to justify demonstrations near state capitols as well, see Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9 L.Ed.2d 697] (1963), it is in Washington — where a petition for redress of national grievances must literally be brought — that the theory has its primary application.
Women Strike for Peace v. Morton, 472 F.2d 1273, 1287 (D.C.Cir.1972) (Wright, J., concurring). As the Supreme Court added in Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), “[t]he right to use a public place for expressive activity may be restricted only for weighty reasons.”
The Park Service argues that its prohibition of CCNV’s sleeping in the symbolic tents is justified because such activity could: (1) deprive others of the use of nationally significant space; (2) cause significant damage to park resources; (3) create serious sanitation problems; (4) seriously tax law enforcement resources; and (5) increase requests for such activity in connection with other demonstrations that would, in turn, create pressure from nondemonstrating visitors for similar accommodations. 47 Fed.Reg. 24,302 (1982). These interests are identified by the Park Service in its brief in this case and were also identified in its 1982 rulemaking to justify the flat prohibition of “camping.” Id. “Camping,” however, includes such non-sleeping activities as making fires, digging, earth breaking, and cooking. Id. at 24,305. Because CCNV neither seeks to do any of these activities, nor requests permission to establish medical or sanitation facilities, to store personal belongings, or even to serve food, the government’s interests must be weighed against only that activity which CCNV seeks to do: sleep within tents that they have been given permission to erect and at which they have been allowed to maintain a twenty-four hour presence.
This is not to say, however, that the government’s interest in prohibiting expressive sleeping at symbolic campsites that is part of a demonstration must be weighed in a vacuum. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Supreme Court held that the government’s interest in prohibiting first amendment activity must be assessed not in terms of letting just one group pursue the activity but in terms of letting all similarly situated groups do so. Id. at 654, 101 S.Ct. at 2567. Transposed to the first amendment activity involved in this case, therefore, Heffron requires us to determine if the government’s interests in park preservation, law enforcement, and the like (outlined above) are furthered by prohibiting expressive sleeping by all individuals or groups similarly situated to CCNV — that is, by all those who wish to engage in sleeping as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also been allowed to erect temporary symbolic structures. The dissent insists that we weigh the government’s interests in prohibiting sleeping by all groups— whether for first amendment purposes or not — lest we “nickle and dime every regulation to death.” Dissenting Opinion at-616. The dissent’s addition of makeweights to the government’s side of the balance, however, shortchanges the first amendment’s premium on precision. Here, the Park Service has already established a renewable permit procedure that limits the number of people who are allowed to demonstrate or to erect symbolic structures. The interests of people who do not possess a permit are simply not at issue in this case.
Having properly focused the inquiry, it is difficult to imagine how the application of the Park Service’s regulations to groups similarly situated to CCNV will further any important interest. Because such groups are already allowed to erect tents and maintain an all-night presence during which time they may sit, stand, or even lie down in the tents, there are no incremental savings of park resources, sanitation facilities, or law enforcement personnel to be gained by proscribing only sleep. Indeed, allowing an all-night presence by wakeful protestors would seem to tax sanitation facilities, law enforcement personnel, and the park resource itself to a greater extent than would allowing those same protestors simply to sleep.
Our review of the prefatory rationale to the revised regulations reveals at most only one attenuated governmental interest in precluding CCNV’s demonstrators from sleeping:
Experience with administering the court’s decision allowing sleeping has revealed that sleeping activity by demonstrators expands to include other aspects of living accommodations such as the storage of personal belongings and the performance of necessary functions which have converted the sleeping area into actual campsites.
47 Fed.Reg. at 24,301. But this justification must be found wanting under O’Brien’s “no greater [restriction] than is essential” test; any interest in preventing other “camping” activity can be furthered by less restrictive means. Here, the Park Service’s renewable permit procedure provides a mechanism whereby permits can be revoked if illegal activities occur. See 36 C.F.R. § 50.19(f) (1982).
The government’s interest in preserving parkland for the use of others is also not furthered by its ban on sleep. If anything, the nighttime enjoyment of Lafayette Park and the Mall by nondemonstrators would probably be enhanced if the 150 CCNV demonstrators were asleep. Because CCNV has already been granted a renewable seven-day, twenty-four hour permit to demonstrate at its two discrete sites, a ban on sleeping simply does not preserve those parts of the parks for the use of others. To the extent that other demonstrators wish to use the space temporarily allocated to CCNV, the Park Service’s permit procedures already provide for nonrenewal of CCNV’s weekly permit. See id. § 50.-19(e)(5).
We are next urged to consider the government’s interest in preventing “pressure” for similar living accommodations from nondemonstrating visitors to Washington, D.C. 47 Fed.Reg. at 24,302. As a practical matter, we seriously question whether there is a large market for living accommodations in sparse tents on the Mall, in the winter, without heating, cooking, medical, or sanitation facilities. Even assuming that such a market is theoretically possible, we note that such an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). As a constitutional matter, moreover, the Park Service is free to apply its anti-camping regulations to such nondemonstrators who, by definition, have no first amendment interests to “balance” against the regulation. We add that any governmental interest in not treating certain groups — even those exercising first amendment rights — differently from others would appear to be marginally insignificant. Demonstrators are already accorded privileges not permitted nondemonstrators, such as the right to stay in the park all night despite the anti-loitering regulation, 36 C.F.R. § 50.25(k) (1982), and the right to erect temporary structures, id. § 50.19(e)(8). The additional privilege of sleeping at the demonstration site as part of the demonstration would seem of minimal consequence to the distinctions on treatment already drawn.
Finally, the government suggests that requests for convenient camping by persons pursuing speech activities would increase. If by this the government means that additional camping requests will be made by those who merely wish to sleep in parks near the sites of daytime demonstrations, such requests may be denied. It would seem an entirely permissible distinction to permit sleeping that is expressive as part of a twenty-four hour vigil, but not to permit sleeping that is a mere convenience to daytime demonstrators. See Quaker Action Group v. Morton, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971); VVAW, 506 F.2d 53 (D.C.Cir.1974). If, on the other hand, the government anticipates an increase in applications for symbolic campsites, with requests for permission to sleep during all night demonstrations, it may not deny all such requests merely because it expects a large number of people to apply.
Our holding does not mean, however, that the Park Service must grant every request, at any time, for any number of temporary structures or sleepers. Merely because we have held that expressive sleep may not be prohibited on the basis of the message conveyed does not mean that all forms of regulation are foreclosed to the government. Thus, the government may use valid, content-neutral, time, place, or manner regulations provided that such regulations are both reasonable and narrowly tailored to further the government’s substantial interests. See Police Department of Chicago v. Mosley, 408 U.S. 92, 101 n. 8, 92 S.Ct. 2286, 2293 n. 8, 33 L.Ed.2d 212 (1972); Grayned, 408 U.S. at 115, 92 S.Ct. at 2302. The government may, for example, limit the number of tents, the size of tents or campsites, and the number of persons allowed to sleep. It may continue its current practice of issuing permits on a renewable weekly basis, under which one group’s permit will not be renewed if another group requests the space, and under which the permit may be revoked if the demonstrators engage in such prohibited activities as cooking or making fires. It may set aside certain times when no demonstrations are allowed in order to accommodate other particularly heavy uses of the parks. See 36 C.F.R. § 50.19(d)(1), (e)(8) (1982). And possibly, it may be able to set aside some of the more serene areas of the Memorial Core area as “sanctuaries” at which round-the-clock demonstrations are never compatible.
In sum, the Park Service has failed to demonstrate that the government’s interests will be furthered by keeping these putative protestors from the sleeping activity which is the sole point in dispute. We reverse, therefore, because the indiscriminate line the government seeks to draw against sleeping cannot pass first amendment muster. Accordingly, we grant CCNV the injunctive relief it seeks, enjoining the Park Service from prohibiting sleep at CCNV’s demonstration.
Conclusion
The Mall and Lafayette Park are special places in the stockpile of American fora. They are at the very heart of the nation’s capital where ideas are to be expressed and grievances are to be redressed. Thus, the focus of this case is the symbolic locus of the first amendment.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, 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: 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_casetyp1_6-3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
AEROMOTIVE METAL PRODUCTS, INC., Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee.
No. 17935.
United States Court of Appeals Ninth Circuit.
Jan. 14, 1963.
George O. Bahrs and Robert J. Scol-nik, San Francisco, Cal., for appellant.
Kenneth C. Robertson, Regional Atty., U. S. Dept. of Labor, San Francisco, Cal., Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor of Labor, Jacob I. Karro, Associate Solicitor of Labor, and Isabelle R. Cappello, Attorney, United States Department of Labor, Washington, D. C., for appellee.
Before POPE, BROWNING and DUNIWAY, Circuit Judges.
PER CURIAM.
Aeromotive Metal Products, Inc. appeals from a judgment in favor of the Secretary of Labor in an action brought under the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. The judgment was on behalf of certain employees of appellant and is for unpaid wages and overtime compensation. The question is-whether a fifteen minute mid-morning rest period must be counted as hours of employment and paid for as such.
The rest period involved was originally instituted at the request of the employees at appellant’s Seattle, Washington plant in 1952. The year here involved is 1958-59. At the time that the employees involved were hired, they were given no choice as to whether to take the fifteen-minute uncompensated mid-morning rest period. It was a company rule that no productive work would be done during this period and that no employee would receive pay for this time. The plant was located in the industrial part of Seattle and the nearest commer•cial area was not within a fifteen-minute walking distance. Occasionally, employees would do personal errands, but this was not easy to do, and their homes were not accessible to them within the •fifteen-minute period. The majority of •the employees spent the fifteen-minute period in the immediate vicinity of the plant, smoking, having refreshments, ■etc. The Court found that the employees were free to spend the fifteen-minute ■period in such activities as they might ■desire, provided they returned promptly .at the end of the period. It was also found:
“The granting of such rest periods by employers to employees is a general practice in the industry. Actual production did not increase at the Seattle plant of the defendant after initiating the midmorning rest period nor were there any fewer mistakes nor was there any less absenteeism or employee turnover. The employees felt better after the rest period, and the granting of this rest period by defendant improved defendant’s employer-employee relationships.”
Among its conclusions of law is the following :
“The rest period of 15-minute duration was not under such conditions as would permit the employees to make beneficial personal use of this time. Such rest period was predominantly for the benefit of the employer.”
Essentially, it is appellant’s position that the Court’s conclusion that the rest period was predominantly for the benefit of the employer, is not supported by the finding quoted above. It relies upon Mitchell v. Greinetz, 10 Cir., 1956, 235 F.2d 621, 61 A.L.R.2d 956 and Mitchell v. Turner, 5 Cir., 1960, 286 F.2d 104. Its position is that a Court cannot determine that such a rest period is primarily for the benefit of the employer in a case in which, as here, production did not increase after the initiation of a rest period.
We do not think that either case cited stands for the proposition that appellant asserts. On the contrary, it seems to us clear that in each case the Court felt that the trial court should consider all of the facts in determining whether the rest period was predominantly for the benefit of the employer. The record here shows that the Court did consider all of the facts, and we think its determination, whether it should be considered a conclusion of law or a finding of ultimate fact, is fully supported by the record.
Affirmed.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. Clifford DAVIS, Appellant,
No. 72-1469.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 13, 1972.
Decided Feb. 12, 1973.
John A. Ramsey, Denver, Colo., for appellant.
James F. Housley, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., with him on the brief), for appellee.
Before HILL, SETH and DOYLE, Circuit Judges.
SETH, Circuit Judge.
The defendant was found guilty by a jury on two counts of unlawfully selling depressant or stimulant drugs in violation of section 331(q)(2), Title 21, United States Code, and from the judgment entered on that verdict, defendant Davis brings this appeal.
Defendant-appellant’s only contention on this appeal is that the trial court erred in not granting his motion to have the principal Government witness, Chris V. Saiz, barred from testifying at his trial.
Chris V. Saiz had been the Special Agent in Charge of the Salt Lake City Bureau of Narcotics and Dangerous Drugs office at the time defendant was arrested. The transaction which was the basis of the charge was between defendant and Saiz. There were no other eyewitnesses to the alleged sale to Saiz, although there was testimony from other officers as to the movements of then Agent Saiz in and out of the house of the defendant.
Defendant based his motion to have Saiz disqualified and barred from testifying on the fact that Saiz had entered a plea of guilty to a misdemeanor charge of depriving a person of his civil rights, after being named in a federal grand jury indictment charging him and other agents with conspiracy, perjury, and submitting a false report. This charge arose from testimony given by him at a trial in California involving facts similar to those present here. The indictment charged that Agent Saiz’s alleged illegal activity took place during about the same time as the events which led to defendant’s arrest and trial.
Saiz testified during the course of this trial that he had in the California trial signed an untrue report, and testified to the false facts contained in that report, and that he did so because of pressures from his superiors. He was extensively-cross-examined below as to this prior false testimony. Thus, all the information bearing on the credibility of the witness Saiz was brought out at defendant’s trial. The jury was faced with a choice as to whether or not they thought Saiz was telling the truth during this trial. They apparently believed that he was, and returned a verdict against the defendant.
Defendant urges that we should reverse and so rule to bar the Government from using testimony from such a witness. In support of his contention that it was error to not grant his motion to bar Saiz from testifying, defendant relies primarily on the case of Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956).
Mesarosh does not support defendant’s contention. In that case, the Solicitor General brought to the attention of the Supreme Court the fact that the witness Mazzei, a paid Government informer, had testified falsely in proceedings subsequent to those in which the petitioners had been convicted and asked that the case be remanded to the District Court to allow the trial judge to hold a a hearing as to the truth of Mazzei’s testimony in the pending case. The Supreme Court remanded the case for a new trial as to all defendants, holding that if Mazzei’s testimony had been false, the trial was tainted as to all petitioners. They did not, however, hold that Mazzei could not testify at the new trial simply because his credibility had been brought into question. The Seventh Circuit, in United States v. Smith, 335 F.2d 898 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 700, 13 L.Ed.2d 609 (1965), interpreted Mesa-rosh, quite properly we believe, to require only that the issue of the truthfulness of the witness be presented fully to the jury. We think this interpretation is also supported by the fact that in Mesarosh, the Supreme Court cited Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956). There the Supreme Court had also remanded for a determination as to the truthfulness of testimony given before the Board by three informers, paid employees of the Department of Justice, who the Government felt might have testified falsely in that proceeding. Also in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), the Court held that the testimony and the credibility of a paid Government informer was properly before the jury; that the jury was properly instructed, as they were in this case, as to the issue of credibility, and that no error had been committed. The credibility and the weight to be given the testimony of any witness is a matter for determination by the jury. United States v. Plemons, 455 F.2d 243 (10th Cir.); United States v. Frazier, 434 F.2d 238 (10th Cir.). The matter of disqualification of a witness to testify is covered under the Rules of Evidence for the United States Courts to be effective July 1, 1973. A great variety of witnesses testify and perhaps on occasion some not worthy of belief as to all their testimony but they are the only ones available. The jury is prepared under proper instructions to select and give proper weight to the testimony to be believed.
Thus we hold that the District Court was correct in permitting Agent Saiz to testify, and to leave the matter of his credibility to the jury.
Affirmed.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_7-3-6
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - property disputes".
UNITED STATES of America, Appellant, v. 122.00 ACRES OF LAND, MORE OR LESS, LOCATED IN KOOCHICHING COUNTY, MINNESOTA and the Estate of Agnes J. Rudser Ring, et al., Appellees.
No. 87-5486.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1988.
Decided Sept. 2, 1988.
Rehearing and Rehearing En Banc Denied Nov. 18, 1988.
Charles J. Sheehan, Washington, D.C., for appellant.
Charles H. LeDuc, International Falls, Minn., for appellees.
Before WOLLMAN and MAGILL, Circuit Judges, and EDWARDS, Senior Circuit Judge.
THE HONORABLE GEORGE C. EDWARDS, JR., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation.
MAGILL, Circuit Judge.
I. INTRODUCTION
This case involves an award of attorney’s fees, pursuant to the provisions of section 304(a)(2) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Relocation Act), 42 U.S.C. § 4654, in a condemnation action which was abandoned by the United States. Because we believe the attorney’s fees awarded by the district court were not “actually incurred” by the condemnee, as required by the statute, we reverse.
II. BACKGROUND
From 1982 through early 1984, the Department of the Interior negotiated for the purchase of a tract of land comprised of 122 acres owned by Victor Davis (Davis), which the United States sought to include in Voyageurs National Park in Minnesota. On March 28, 1985, the United States offered Davis $424,000 for the land; an offer which Davis rejected.
On June 24, 1985, the United States filed a “straight” condemnation action in the district court. Davis retained the services of attorney Charles LeDuc to contest the condemnation action. Davis and LeDuc executed a contingency fee arrangement, which provided in pertinent part:
If there is no recovery, the undersigned mil bear no expense for attorney’s fees. However, all items of expense incurred in connection with the matter mentioned in the above paragraph will be paid by client. These expense items may include such things as court costs, witness fees, depositions, the cost of all appraisal and other technical records and reports, photographic costs, private investigator’s fees, etc.
The attorney’s fees shall be ten (10) percent of the gross recovery over $424,-000.00 if obtained by settlement. If court action is necessary, the fee is 15% [of the gross recovery over $424,000], In the event the disposition of this case involves a structured settlement resulting in some deferred payments, the attorney’s fees and costs shall be paid from the initial up-front payment to the extent possible unless the parties mutually agree otherwise.
(Emphasis added.)
Trial was held, and the jury returned a verdict of $1,370,000 as just compensation. Ultimately, the United States determined that the jury award was beyond its budget capabilities; it chose to abandon the condemnation and move for dismissal of the action. Davis moved the district court for an order directing payment of the jury verdict and for expenses and attorney’s fees totalling $162,162.52. The district court dismissed the case, denied Davis’ motion to compel payment of the jury verdict and ordered the United States to pay expenses in an amount stipulated to by the parties. The district court took the question of attorney’s fees under advisement. On September 16, 1987, the court awarded attorney’s fees to Davis in the amount of $146,900, pursuant to the Relocation Act.
The United States now appeals only the award of attorney’s fees.
III. DISCUSSION
Section 304(a)(2) of the Relocation Act, 42 U.S.C. § 4654, provides in pertinent part:
The Federal court having jurisdiction of a proceeding instituted by a Federal agency to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if—
******
(2) the proceeding is abandoned by the United States.
42 U.S.C. § 4654 (emphasis added).
It is clear that the condemnation at issue was abandoned by the United States; Davis is therefore entitled to any reasonable attorney’s fees which were actually incurred by him.
In order to determine whether the United States is liable for attorney’s fees in this case, we must determine whether Davis has any legal.obligation to pay his attorney LeDuc, either by operation of the fee arrangement between them or otherwise. Our review of that contract convinces us that Davis has no such obligation. The clear language of the contract compels the conclusion that a condition precedent to Davis’ liability was the actual recovery of payment for his land from the government. Here, no recovery was obtained for Davis because the proceeding was abandoned. “In an abandoned condemnation, a contingent fee alone would give rise to no ‘incurred’ obligation because the contingency did not occur.” United States v. 431.60 Acres of Land, 355 F.Supp. 1093, 1096 (S.D.Ga.1973). The failure to fulfill this contingency is fatal to Davis’ claim.
Davis contends that the contingency referred to in the contract, i.e., “recovery,” did not mean recovery of money alone, but also encompassed abandonment of the condemnation action by the government. We cannot agree. The entire structure of the agreement mandates a conclusion that the term “recovery” relates solely to a monetary recovery.
Davis finally asserts that he and his attorney subjectively believed that the contingency arrangement encompassed both monetary recovery and retention of the land, and that the parties’ construction of their contractual terms, even if that construction is contrary to the ordinary meaning of the terms, is dispositive. While resort to the parties’ subjective intent may be necessary where terms are ambiguous, such is not the case here. Further, where the construction of a private contract implicates the federal treasury, we think the contract should be construed as plainly written. This is so for the simple reason that the private parties could, through ex-tracontractual agreement, cause the government to expend funds to benefit one or both of them, without either party bearing any expenses.
It should be noted that in 431.60 Acres of Land, 355 F.Supp. at 1095-96, the district court did award reasonable attorney’s fees based upon the fact that the parties had orally modified their written contract before the commencement of litigation, to provide for compensation to the attorney on a quantum meruit basis in the event the condemnation was abandoned. See also United States v. 243.538 Acres of Land, 509 F.Supp. 981, 988 (D.Haw.1981). Here, there was no such agreement. In fact, we believe that with the statement, “[i]f there is no recovery, the undersigned will bear no expense for attorney’s fees,” the attorney bargained away his right to compensation on a quantum meruit basis.
Accordingly, the award of attorney’s fees is reversed.
. For ease of discussion, appellees will be referred to collectively as Davis.
. In a "straight" condemnation action, under 40 U.S.C. § 257, the United States has the option to purchase the land at the price determined by the jury, or it may move for dismissal of the action if it does not wish to acquire the land at that price. This is in contrast to condemnation under 40 U.S.C. § 258a, where title and right to possession vest in the United States immediately upon deposit of an estimated just compensation with the district court. See Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 3-4, 104 S.Ct. 2187, 2190-91, 81 L.Ed.2d 1 (1984).
. This amount included $20,550.23 in expenses and $141,900 in attorney’s fees. The attorney fee amount was derived by applying the formula contained in the contingency fee arrangement between Davis and LeDuc, to the "gross recovery” of $1,370,000.
. The district court granted other relief which is not pertinent to this appeal.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
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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.
AMERICAN FOOTBALL LEAGUE et al., Appellants, v. NATIONAL FOOTBALL LEAGUE et al., Appellees.
No. 8780.
United States Court of Appeals Fourth Circuit.
Argued Jan. 22, 1963.
Decided Sept. 23, 1963.
Warren E. Baker, Washington, D. C. (Chadbourne, Parke, Whiteside & Wolff; David A. Peters, Washington, D. C., Thomas F. O’Toole, New York City, and Albert L. Ledgard, Jr., Washington, D. C., on brief), for appellants.
Gerhard A. Gesell, Washington, D. C. (Hamilton Carothers, Charles W. Havens, III, Washington, D. C., Covington & Burling, Washington, D. C., William D. Macmillan, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
The American Football League and owners of its franchises are contending against the National Football League and the owners of its franchises for victory in the courts. The American Football League and the owners of its franchises lost in the Court below, when the District Court held that there had been no violation of Sections 1, 2 or 3 of the Sherman Act by the National Football League and the owners of its franchises. We affirm.
The District Court wrote a full and comprehensive opinion, in which the facts are set forth in some detail. The facts need be stated only in summary fashion here, for the reader who desires more detailed information can find it in the District Court’s opinion.
The two football leagues, American and National, are unincorporated associations. Each has a commissioner who exercises some executive and administrative authority, but, in each, ultimate control is vested in the owners of the football teams for whose benefit the league exists. In each instance, the team owners are corporations, each of which was the holder of a franchise to operate a professional football team in a designated city. Most of the corporate team owners are controlled and dominated by a single individual, though in a minority of instances the role of the dominant individual is played by a small group of two or three, and in one instance of five. It is these individuals who exercise ultimate control of the leagues with which they are associated.
The National Football League was organized in 1920. For a number of years its existence was precarious. Until the last ten years, its membership was far from static, and until 1946 every major league professional football team operating in the United States was associated with it. In 1945, the All American Football Conference was organized, and it operated through the four seasons of 1946-1949 with eight teams, except that two of the teams were merged in 1949, and in the last season, there were but seven teams. Thereafter the All American Football Conference disbanded, but three of its teams were received into the National Football League, and teams franchised in those three cities, Baltimore, Cleveland and San Francisco, were operated under National League franchises when this action was commenced.
In 1959, the National Football League operated with twelve teams located in eleven cities. There were two teams in Chicago and one each in Cleveland, New York, Philadelphia, Pittsburgh, Washington, Baltimore, Detroit, Los Angeles, San Francisco, and Green Bay, Wisconsin. In 1960, two additional franchises were placed, one in Dallas and one in Minneapolis-St. Paul, the Dallas team beginning play in 1960 and the Minneapolis-St. Paul team in 1961. In 1961, one of the Chicago teams, the Cardinals, was transferred to St. Louis.
The American Football League was organized in 1959, and began with a full schedule of games in 1960. Affiliated with it were eight teams located in eight cities, Boston, Buffalo, Houston, New York, Dallas, Denver, Los Angeles and Oakland. After the 1960 season, the Los Angeles team was moved to San Diego.
In the first half of the 1952 season, a team operated under a National League franchise in Dallas. It failed and was replaced by a team located in another city, but a few years later there was substantial interest in Texas as a fruitful area for professional football.
Many of the National Leag-ue owners were interested in expanding the league. Halas, owner of the Chicago Bears, was the earliest and most ardent advocate of expansion. Early in 1956, he predicted that National would expand from twelve to sixteen teams during the period of 1360-1965.. In July 1957, Bert Bell, National’s Commissioner, predicted some expansion by 1960, and at National’s annual meeting in January 1958, an expansion committee was appointed composed of Halas and Rooney, owner of the Pittsburgh Steelers. Marshall, of the Washington Redskins, was an implacable foe of expansion, but the District Court found, with reason, that by 1959 a majority of the owners were in favor of expansion to sixteen teams and the granting of four additional franchises, two at a time.
As the National League contemplated expansion, the interest of the owners centered on Houston, Dallas, and two or three other cities. The weather in the Southwest was particularly favorable, and, with the improvement of the financial condition of the National League teams and the increasing revenues they received from television, it was thought that Houston and Dallas, with their natural rivalry, could each support a team. Those two cities were considered by National’s owners as the most likely prospects for expansion, with Minneapolis-St. Paul, Buffalo and Miami close behind.
Meanwhile, there were people actively interested in acquiring franchises to operate National League teams in Houston and Dallas. Clint Murchison, Jr. and his father, of Dallas, had sought to purchase the San Francisco 49’ers, the Washington Redskins and the Chicago Cardinals, intending, if successful in acquiring one of those teams, to move it to Dallas. In 1957 and 1958, Lamar Hunt, of Dallas, and the Houston Sports Association applied to National for franchises to operate teams in those two cities. Hunt also sought to acquire the Chicago Cardinals and move that team to Dallas. Early in 1959, Murchison and Hunt (Dallas) and Cul-linan, Kirksey and Adams (Houston Sports Association) were all actively seeking National League franchises. They were given encouragement by Bell, Halas and Rooney, all of whom were talking in terms of expansion into Houston and Dallas about 1961.
In February and April 1959, Halas held press conferences to stimulate sales of tickets to a preseason game between the Chicago Bears and the Pittsburgh Steel-ers, scheduled to be played in Houston in August. In those press conferences, he discussed expansion plans, predicting that expansion would begin about 1960, and that the most likely cities were Houston, Dallas, Miami and Buffalo. Upon inquiry by Murchison, Halas suggested that he plan to make a formal application for a Dallas franchise to be considered at National’s annual meeting in January 1960.
Meanwhile, in the spring of 1959, Hunt, of Dallas, decided that a new league was feasible and could be successfully organized. He had been told by Bell that he might submit a formal application for the Dallas franchise at the January 1960 annual meeting. However, he was either unsure of National’s expansion into Dallas, of when it would occur, or of his chances of obtaining the franchise in competition with Murchison.
The remainder of 1959 was very eventful. Hunt proceeded actively with his plan to organize a new league. In July, he disclosed his intention to Commissioner Bell. On July 28, Bell, with Hunt’s permission, told a congressional committee of Hunt’s plans, and stated that the National League owners favored organization of the new league. Early in August, Hunt and Adams publicly announced the formation of the new league, with teams owned by them to be located, respectively, in Dallas and Houston. Hunt and his associates were actively in touch with interested persons in a number of other cities. On August 22, representatives from Los Angeles, Dallas, Houston, New York, Minneapolis and Denver signed articles of association. Representatives from many other cities had been in touch with Hunt. Wilson, of Detroit, sought an American franchise for Miami, and later for Buffalo, and the Buffalo franchise was formally granted in October. In November, an application for a franchise to be placed in Boston was approved. Thus, in late November, American had tentative arrangements for teams in Houston, Dallas, Minneapolis, New York, Boston, Denver, Buffalo and Los Angeles.
In the meanwhile, Murchison, of Dallas, and Cullinan and Kirksey, who had been associated with Adams in efforts to obtain a National franchise for Houston, continued their efforts to obtain National franchises for those two cities. In late August, at their insistence, Halas, with the approval of a number of National owners, publicly announced that National’s expansion committee would recom-
mend to the 1960 meeting franchises for Dallas and Houston to begin play in 1961, the Houston franchise to be conditioned upon the availability of an adequate stadium. Construction of a new stadium in Houston was in contemplation, and there was hope that a National League team might obtain use of the Rice University Stadium until a new municipal stadium was constructed and available. Just after the death of Commissioner Bell on October 11, 1959, the National League owners met informally and agreed to adopt the announced recommendation of the expansion committee. This was followed by a widely publicized press release announcing that the National League would grant two new franchises in 1960, one of them to go to Dallas and the other to Houston if an adequate stadium was made available in Houston.
In October, however, it became known that the Rice University Stadium would not be made available for use by a National League team, and all further consideration of a National League franchise in Houston was then abandoned.
A number of people in Minnesota had been seeking a National League football team, but after Hunt’s plans for a new league had been disclosed to them, Winter, Boyer and Skoglund, of Minneapolis, entered into American’s Articles of Association, which were executed in August 1959. Winter, however, remained in touch with representatives of the National League, as did Johnson, an influential Minneapolis newspaperman. Johnson and Winter preferred a National League team to an American League team, but, on August 22, 1959, they had no assurance that the National League would place a franchise in Minnesota at any reasonably foreseeable date. They must have retained some hope their preference for the National League might be realized, however, when National’s announcements of its intention to place a team in Houston were conditioned upon the availability of an appropriate stadium, coupled with prominent mention of Minneapolis in connection with National’s later expansion to sixteen teams. When it became known that an appropriate stadium in Houston was not available, Johnson and Winter sought definite commitments from the National League. They obtained telegraphic commitments in November. Winter, Skoglund and Boyer failed to deposit the performance bond of $100,000, which was required of American League members in November, but, thereafter, Skoglund and Boyer sought to obtain leases from the Minneapolis Stadium Commission for an American League team. The Commission refused to enter into such lease arrangements until the placement of a National League team in Minneapolis-St. Paul was settled.
In January 1960, Winter, of Minneapolis, and Haugsrud, of Duluth, formally applied to the National League for a franchise. Boyer joined in its presentation, stating that he had withdrawn from the American League and had obtained a complete release and a return of the $25,000 deposit, which he, Winter and Skoglund had made. At National’s annual meeting on Janaary 28, 1960, franchises were granted to Dallas and Minneapolis-St. Paul, the grant to Minneapolis-St. Paul being conditioned upon the enlargement of the Minneapolis stadium and the sale of 25,000 season tickets for the 1961 season when play was to commence. The Dallas franchise, however, permitted it to operate in 1960, for Murchison was very anxious that his National League team commence play in Dallas in the same year Hunt’s American League team commenced play there.
On the next day, the American League had its annual meeting, during which it granted a franchise to Oakland, which took the place of Minneapolis-St. Paul. The American League owners preferred Oakland to other applicants, because they wanted a second team on the West Coast and because they regarded the Oakland area as promising.
It thus came to pass that in the 1960 season, teams of the two leagues were in direct competition in New York, Dallas, Los Angeles, and in the San Francisco-Oakland area. Each league had teams in other cities in which there was no direct competition between the leagues. The two leagues were competing on a national basis for television coverage, outstanding players and coaches, and the games of each league competed for spectators with the televised broadcast of a game of the other.
The first and most important question on appeal, therefore, is a review of the District Court’s determination of the relevant market. The District Court recognized that the two leagues and their member teams competed with each other in several ways, and that the relevant market with respect to one aspect of their competition would not necessarily be the relevant market with respect to another. Since each league recruited players and coaches throughout the nation, he concluded that the relevant market with respect to their competition in recruiting was nationwide. He necessarily found that their competition for nationwide television coverage, with a blackout only of the area in which the televised game was played, was nationwide. As for the competition for spectators, he found the relevant market to be those thirty-one metropolitan areas in the United States having a population of more than 700,000 people according to the 1960 census. This determination was based upon testimony that a metropolitan area of that size might be expected to support a major league professional football team. Indeed, Hunt, of the American League, had testified that a metropolitan area of 500,-000 might support such a team. The District Court’s determination was influenced by American’s contention that the bare existence of the National League and its member teams foreclosed certain markets to it and limited its capacity to operate successfully. It is reinforced by the evidence of many applications from other cities which were actively pressed upon American, some of which, at least, were thought worthy of real consideration.
In addition to those cities in which American actually placed franchises, Hunt testified that there was substantial interest in a franchise in Vancouver, Seattle, Kansas City, Louisville, Cincinnati, Philadelphia, Jacksonville, Miami, Atlanta, St. Louis and Milwaukee. The eighth franchise was placed in Oakland only after consideration of the “strong case” made by Atlanta. In short, it abundantly appears that cities throughout the United States and one Canadian city were actively competing for league franchises, there being many more applicants than available franchises.
In this Court, the plaintiffs contend that the relevant market is composed of those seventeen cities in which National now either has operating franchises, or which it seriously considered in connection with its expansion plans in 1959. They would thus include in the relevant market, New York, Chicago, Philadelphia, Cleveland, Pittsburgh, Washington, Los Angeles, San Francisco, Baltimore, Detroit and Green Bay, in which National teams were operating in 1959, plus Dallas and Minneapolis-St. Paul, in which franchises were authorized in 1960, plus Houston, Buffalo and Miami, which were considered by National for expansion, and St. Louis, to which the Chicago Cardinals were transferred in 1961 after American’s first operating season. They include in the relevant market all of the closed cities in which there is a National League team, but no American League team, but exclude from the relevant market all of those closed cities in which there is an American League team but no National League team, and all of those other cities in which there is now no major league professional football team, but which would be hospitable to a franchise and which have a potential for adequate support of a professional football team. They advance the unquestioned principle that the relevant market should be geographically limited to the area in which the defendants operate, or the area in which there is effective competition between the parties.
In very different contexts, the relevant market has been found to be a single city, a group of cities, a state, or several states. In considering an attempt to monopolize, it, of course, is appropriate to limit the relevant geographic market to the area which the defendant sought to appropriate to itself, and, if monopoly power has been acquired in a separably identifiable and normally competitive market, it is irrelevant that the defendant did not possess the same monopoly power in an unrelated market elsewhere.
Plaintiff’s contention here, however, is a simple fractionalization of a truly national market. Each league has teams franchised to cities on the Atlantic, on the Pacific and in the midlands. Each team in each league travels back and forth across the country to play before many different audiences in many different cities. Most of the official season games are played in a city in which there is a franchised team, but that is not invariable, and most of the preseason exhibition games are played in cities in which there is no franchised team. In locating franchises, neither league has restricted itself to any geographic section of the country or limited itself to any particular group of cities. In American’s brief history, it has moved one team from Los Angeles to San Diego, and the many changes which have occurred in National’s franchises belie any notion of geographic limitation.
Though we may concentrate our attention upon competition between the leagues for franchise locations and lay aside for the moment clearly national aspects of their competition for players, coaches and television coverage, location of the franchise is onjy a selection of a desirable site in a much broader, geographically unlimited market. It is not unlike the choice a chain store company makes when it selects a particular corner lot as the location of a new store. It preempts that lot when it acquires it for that purpose, but, as long as there are other desirable locations for similar stores in a much broader area, it cannot be said to have monopolized the area, or, in a legal sense, the lot or its immediate vicinity.
The National League was first upon the scene. In 1959, it had franchises in eleven cities, the two Chicago teams being in direct competition with each other. It now has franchises in fourteen cities, some of which the District Court found capable of supporting more than one professional football team. Obviously, the American League was of that opinion, for it placed teams in New York, Los An-geles, and the San Francisco-Oakland area, where National, at the time, had well established teams. Most of the other cities in which each league operates, however, are incapable of supporting more than one professional football team. In such a city, a professional football team, once located there, enjoys a natural monopoly, whether it be affiliated with the National or American League, but the fact that National had teams located in such cities before American’s advent does not mean that National had the power to prevent or impede the formation of a new league, or that National’s closed cities should be included in the relevant market if American’s closed cities are to be excluded. The fact is that the two leagues are in direct competition for regular season spectators only in New York, Dallas, and the San Francisco-Oakland area, and, during the 1960 season, in Los Angeles. If the relevant market is not to be limited to those cities, it must be, geographically, at least as broad as the United States, including Hawaii and portions of Canada.
Though there may be in the nation no more than some thirty desirable sites for the location of professional football teams, those sites, scattered throughout the United States, do not constitute the relevant market. The relevant market is nationwide, though the fact that there are a limited number of desirable sites for team locations bears upon the question of National’s power to monopolize the national market.
The District Court’s finding that National did not have the power to monopolize the relevant market appears plainly correct. In 1959, it occupied eleven of the thirty-one apparently desirable sites for team locations, but its occupancy of some of them as New York and San Francisco-Oakland was not exclusive, for those metropolitan areas were capable of supporting more than one team. Twenty of the thirty-one potentially desirable sites were entirely open to American. Indeed, the fact that the American League was successfully launched, could stage a full schedule of games in 1960, has competed very successfully for outstanding players, and has obtained advantageous contracts for national television coverage strongly supports the District Court’s finding that National did not have the power to prevent, or impede, the formation of the new league. Indeed, at the close of the 1960 season, representatives of the American League declared that the League’s success was unprecedented.
American advances a theory, however, that, since the National League won Minneapolis-St. Paul in competition with American, National could have taken several other cities away from American had it undertaken to do so. This is only a theory, however, unsupported by evidence. It ignores the fact that American won Houston over National’s competition, and that each league has won one and lost one in their direct competition for franchise locations. It ignores the fact that National was committed to expansion from twelve to sixteen teams in two separate steps, two teams at a time, so that it had but two franchises to place at the time American was being organized. American questions the finding that sixteen teams is a maximum that one league can efficiently accommodate, but the finding is based upon evidence and was not clearly erroneous. In short, there is' no basis for a contention that the evidence required a finding that National, had it wished, could have placed a team in every location sought by American, or in a sufficient number of them to have destroyed the league.
American complains that National, the first upon the scene, had occupied the more desirable of the thirty-one potential sites for team locations. Its occupancy of New York and San Francisco-Oakland was not exclusive, however, and the fact that its teams in other locations, such as Baltimore and Washington, enjoyed a natural monopoly does not occasion a violation of the antitrust laws unless the natural monopoly power of those teams was misused to gain a competitive advantage for teams located in other cities, or for the league as a whole. It frequently happens that a first competitor in the field will acquire sites which a latecomer may think more desirable than the remaining available sites, but the firstcomer is not required to surrender any, or all, of its desirable sites to the latecomer simply to enable the latecomer to compete more effectively with it. There is no basis in antitrust laws for a contention that American, whose Boston, Buffalo, Houston, Denver and San Diego teams enjoy natural monopolies, has a right to complain that National does not surrender to it other natural monopoly locations so that they too may be enjoyed by American rather than by National. When one has acquired a natural monopoly by means which are neither exclusionary, unfair, nor predatory, he is not disempowered to defend his position fairly.
American also charges the defendants with an attempt to monopolize. They say that National offered franchises to be located in Dallas and Houston, and later to Minneapolis-St. Paul in substitution for Houston, for the sole purpose of preventing organization of the American League. It relies upon certain statements made by Marshall, of the National League Washington Redskins, and it discounts all of National’s earlier discussion of its expansion plans as froth designed to influence congressional action upon a pending bill granting certain exemptions from the antitrust laws to professional football.
It is true that a lobbyist for the Sports Bill had informed the National League owners that expansion of the National League, or plans for its expansion, would be helpful in developing congressional support for the bill, particularly among Congressmen from the areas affected by the expansion. It is also true that after National’s absorption of three teams from the All American Conference in 1950, there was little talk in the National League of expansion until after the Supreme Court’s decision in Radovich in 1957. Early in 1956, however, Halas had predicted that National would expand from twelve to sixteen teams during the period, 1960-1965. Later, as indicated above, there was much discussion of it and much of it public. The remaining years of the 50’s were consistently referred to as a period of consolidation, while the early years of the 60’s were to witness the expansion of the league from twelve to sixteen teams in two separate steps. These declarations had gone so far and had become so specific that National would have greatly embarrassed itself if it had not undertaken their execution, though American had never appeared upon the scene. Moreover, the District Court found that there was substantial business and economic reasons for advocacy by National League owners of the planned expansion. The statement attributed to Marshall, of the Washington Redskins, that he had heard of no reason for expansion except to prevent formation of the American League, the District Judge found to be untrue, for Marshall had been present when business and economic reasons for the expansion had been discussed. Marshall, himself, consistently opposed expansion, though at the 1960 meeting, after some personal differences with Murchison and some of Murchison’s associates had been adjusted, he acquiesced in the granting of franchises to Dallas and Minneapolis-St. Paul. Marshall may have made the statement attributed to him, but, in light of his opposition to expansion and the evidence of business considerations which induced other National League owners to advocate expansion, the District Court was not required to find that Marshall’s statement was true. On the contrary, the District Court’s finding is abundantly supported by the evidence, particularly in light of the fact that what the National League did in 1959 and 1960 was simply to implement on schedule the plans it had announced much earlier.
The plaintiffs also charge as conspiratorial acts certain suggestions which were considered by some of the owners of each league during the late summer and autumn of 1959.
Both Hunt and Murchison, of Dallas, were naturally concerned about the impending direct competition- between the two Dallas teams. The Pauleys, of the National League’s Los Angeles Rams, and Hilton, of the American League’s Los Angeles Chargers, were similarly concerned about their direct competition in Los Angeles. Hunt and Murchison, both well-known businessmen of Dallas, were well acquainted with each other, while the Pauleys and Hilton were friends and business associates in Los Angeles, and, naturally, they discussed the problem among themselves. Hunt also travelled about the country to meet in New York with Rosenbloom, the owner of National’s Baltimore Colts, with Halas in Pasadena, California, and, later, in Chicago and with others. There were also conversations between Anderson, the owner of National’s Detroit Lions and Wilson, a resident of Detroit, a friend of Anderson’s and a’stockholder of the Lions, who was also the owner of American’s Buffalo Bills. Murchison attended some of the conversations in which Hunt participated with others.
During these several conversations, the first of which was held upon arrangements made during a telephone call placed by Hunt to Murchison, Murchison expressed a willingness to let Hunt join him as a co-owner of the National League team in Dallas. Later, Murchison indicated to Hunt that he would be willing to step aside entirely, so that Hunt might become the sole owner of the National League team in Dallas, but costly competition in Dallas was not so easily avoided, for Hunt declined such suggestions on the ground that he felt committed to other American League owners. This led to some suggestions that the ambitions of other American League owners might be met by their becoming owners of National League teams. In light of National’s planned expansion to sixteen teams, the suggestion was made that Adams, of Houston, might be a participant in a National League team in that city and the two remaining franchises would go to Minneapolis-St. Paul and to Wilson for a team to be placed in Buffalo or Miami. Nothing came of any such suggestions, however, for no National League owner-participant in the discussions was willing to consider a franchise for Denver, nor were they willing to consider enlargement of their expansion plans to include more than sixteen National League teams. At one time it was suggested that a fifth American League owner might be able to purchase the Chicago Cardinals and thus realize his ambition to become the owner of a major league football team, but, as the District Court found, there was never any indication that the National League would consider incorporating more than four new teams,
The District Court found that these conversations were not conspiratorial acts by National League owners. The evidence supports the finding. They grew out of informal talks among friends and business associates about their mutual problems, particularly in Dallas and Los Angeles. As the District Court found, they appeared to be welcomed by participants in them on both sides, but they were not originally initiated by any National League owner, and, as they evolved, the National League owners never indicated more than a willingness to consider some accommodation of ambitions of American League owners through National’s previously announced expansion plans. There was nothing in the nature of a concerted campaign by National League owners to thwart the ambitions of American League owners or to destroy the American League. In light of the previously existing relationships between Murchison and Hunt, the Pauleys and Hilton, and Anderson and Wilson, it would have been very surprising if some such informal discussions had not taken place between them. Indeed, it is interesting that in March 1960, Wilson, then in Miami, wrote to Anderson, of the Detroit Lions, warmly thanking him for all of the information and advice that Wilson had received and utilized in setting up a successful organization for his Buffalo Bills, a spirit of friendly and helpful advice which was evidenced by many other National League owners in conversations with Hunt and other American League owners from the beginning.
The witnesses disagreed as to precisely what was said in some of the informal conversations in which the possibility that National might grant franchises to some American League owners was discussed, though at times the dispute was limited to the person who initiated the particular conversation, or to the origin of a particular suggestion. Here, we view the evidence most favorable to the finding, and, so viewed, the District Court’s finding that these conversations were not conspiratorial acts on the part of National League owners is clearly supported by substantial evidence.
Finally, the plaintiffs attack some of the specific and ultimate findings as being inconsistent with notes made by Halas during, or immediately after, numerous conversations in which he particpated. We find no such inconsistency, however, between the notes and the findings or between the notes and the testimony of Halas at the trial. Isolated statements in the notes from which the plaintiffs would draw an inference that Halas was attempting to destroy the American League, are equally consistent with the finding that Halas intended no more than aggressive competition when the interests of the two leagues met in direct conflict, as when they were in open competition for Minneapolis-St. Paul. Indeed, we have reviewed all of the evidence and conclude that the District Court’s findings are adequately supported, and, under Rule 52 of the Federal Rules of Civil Procedure, we could not disregard them if we would.
We conclude, therefore, that the District Court properly held that the plaintiffs have shown no monopolization by the National League, or its owners, of the relevant market, and no attempt or conspiracy by them, or any of them, to monopolize it or any part of it. No violation of the Sherman Act having been established, the judgment of the District Court is affirmed.
Affirmed.
. 15 U.S.C.A. §§ 1, 2 and 3.
. D.C., 205 F.Supp. 60.
. It is not contended that there was any violation of the antitrust laws by the National Football League in connection with the dissolution of the All American Football Conference. National not only absorbed three teams of the disbanding conference, but it entered into certain agreements respecting disposition of player contracts of other teams of the Conference. Such contracts have not been attacked, however, and there has been no showing that whatever monopoly power is possessed by National or its affiliated teams was unlawfully acquired.
. As in other instances, the owner was actually a corporation, but Halas was the dominant individual in the Chicago Bears Football Club, Inc., and those dominant individuals at league meetings, and otherwise, were, generally, referred to as the owners, and the term is adopted here for convenience.
. Hunt met with Commissioner Bell and Donohue, one of the owners of the Philadelphia Eagles, on June 3. Hunt did not then disclose his purpose to organize a new league, but they discussed in some detail the operation of professional football teams in the National League.. Hunt testified that at that meeting Bell said there was no likelihood of National’s expansion, but, on conflicting evidence, the District Court found that Bell made no such statement, though Bell may have expressed an opinion that there was no likelihood of expansion in 1960.
. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580; Standard Oil Co. of Cal. & Standard Stations v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371. Cf. United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010; Indiana Parmer’s Guide Publishing Co. v. Prairie Parmer Publishing Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356.
. Gamco, Inc. v. Providence Emit & Produce Bldg., Inc., 1 Cir., 194 F.2d 484; Union Leader Corp. v. Newspapers of New England, Inc., D.Mass., 180 E.Supp. 125, 129, modified, 1 Cir., 284 F.2d 582.
. United States v. Griffith, 334 U.S. 100, 106-109, 68 S.Ct. 941, 92 L.Ed. 1236; Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 116, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Yellow Cab Co., 332 U.S. 218, 224-226, 67 S.Ct. 1560, 91 L.Ed. 2010; United States v. National City Lines, Inc., 7 Cir., 186 F.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
In re ALTON R. CO. GIBBONS v. GARDNER.
Nos. 9251, 9252.
Circuit Court of Appeals, Seventh Circuit.
Jan. 24, 1947.
Thomas Dodd Healy, of Chicago, Ill. (Louis Boehm, of New York City, of counsel), for appellants.
Anan Raymond, Tappan Gregory, Robert L. Hunter, and Carl A. Waldron, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and Delano Andrews, all of New York City, and Kenneth F. Burgess, Douglas F. Smith, George Ragland, Jr., and Luther M. Walter, all of Chicago, Ill. (Oliver & Donnally, of New York City, and Sidley, Austin, Burgess & Harper, of Chicago, Ill., of counsel), for appellees.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This appeal involves five orders of the District Court entered in the Alton Railroad Company reorganization proceedings under. Sec. 77 of the Bankruptcy Act, Title 11 U.S.C.A. § 205 et seq. The orders were entered October 21, November 13,. November 15 (only a portion of this order is appealed from), November 22 and November 27, 1946.
Appellants are a committee asserted to represent a substantial majority of all security holders participating in the Plan of Reorganization, who’ by permission, of the court intervened in the proceedings April 1, 1943. The Plan of Reorganization, after certification by the Interstate Commerce Commission and approval by the court, was submitted to and accepted by the requisite security holders and confirmed by the court on October 21, 1946. The essential purpose to be accomplished by the Plan is a sale of the debtor’s property to the Gulf, Mobile and Ohio Railroad Company (sometimes referred to as G. M. & O.), with that company issuing securities in exchange for distribution to the debtor’s bondholders. Other railroads were included in the reorganization setup, namely, the Kansas City, St. Louis and Chicago Railroad Company, the Joliet and Chicago Railroad Company, and the Louisiana and Missouri River Railroad Company.
All the orders appealed from were entered subsequent to the confirmation of the Plan by the court and have to do with its consummation. It appears unnecessary, therefore, to describe the provisions of the Plan other than those directly relevant to and concerned with such orders. While the contested issues are stated by the respective parties in numerous ways, we think the overall issue, succinctly stated, is whether the court exceeded its authority in entering the orders complained of.
The provisions of the Plan so far as material to the instant controversy may appropriately be noted at this point. Under the heading of “Reorganization Managers,” it provides:
. “There shall be - three reorganization managers, one of whom shall be designated by the Stephen B. Gibbons protective committee for holders of refunding-mortgage 3-percent bonds due October 1, 1949, of The Chicago and Alton Railroad Company, one by the Mutual Savings Bank Group and The Equitable Life Assurance Society of the United States, jointly, and one by the Thorvald F. Hammer independent committee for holders of 6-percent guaranteed preferred stock of the Kansas City, St. Louis and Chicago Railroad Company, all subject to the approval of the court; provided, however, that if the court shall find that at the time of designation either of the committees named has ceased to hold or to represent a substantial interest in' the property, the court may in its discretion designate in lieu of such committee. Should any of the parties named fail to make such designation within such time after confirmation of the plan and notice as the court shall consider reasonable, the court shall appoint the reorganization manager whom such party was entitled to designate. If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court. In case of failure of any party to designate any such successor within such time as the court shall consider reasonable, such successor shall be designated by the court.”
At this point, we note that there is no finding by the court or any contention that those authorized by this provision to designate managers had “ceased to hold or to represent a substantial interest in the property,” or that they failed to make such designation within such time “as the court shall consider reasonable,” or that they failed in case of vacancy to designate any such successor “within such time as the court shall consider reasonable.”
The Plan provides:
“Subject to limitations of law, including the limitations of subsection 77(c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power (a) to take all such action and to enter into such arrangements, financial and otherwise, as they may deem necessary or advisable in order to consummate and carry into execution the plan; (b) to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company; * * * (d) to provide the method by which creditors and other interested parties may participate in the plan, including the distribution of new securities of the reorganized Kansas City, St. Louis and Chicago Railroad Company and of the Gulf, Mobile and Ohio Railroad Company; * * * (f) to make subject to the approval of this court minor adjustments in details of the plan as they may deem advisable; and (g) to construe the plan.”
The Plan further provides:
“Any construction of the plan by the reorganization managers on advice of counsel shall, subject to the approval of the court, be conclusive. The reorganization managers shall, however, exercise only such powers as shall be necessary to carry out the plan in accordance with its provisions subject to the direction of the court * * *. The reorganization managers * * * may employ such agents, attorneys, and others as they may deem desirable to carry out the plan, and may delegate to others any powers or discretion conferred upon them, and no reorganization manager shall be liable for any action taken by him in good faith * * *.”
The Plan also provides “the carrying out of the plan shall be under the direction and supervision of the court,” and under a heading, “Construction of the plan,” provides :
“The construction of the plan by the court, whether before or after submission of the plan to creditors and stockholders shall be final and conclusive. The court, whether before or after submission, may cure any defect, supply any omission, or reconcile any inconsistency, in such manner or to such extent as may be necessary or expedient in order to carry out the plan effectively.”
Appellants in their brief enumerate at great length the “important functions, powers and discretions lodged in or to be exercised by the reorganization managers in carrying out and implementing the plan,” with which it is asserted appellants, on behalf of the security holders represented by them, are vitally concerned. On the other hand, appellees seek to minimize the importance of the duties and obligations with which the managers were vested. We are of the view that we need be little concerned with whether the duties and responsibilities which the Plan imposed upon the managers are as important as claimed by appellants or as insignificant as asserted by appellees. Whatever be the merits of the controversy in this respect, there is no escape from the fact that the manner of designating the reorganization managers, as well as their duties, rights and responsibilities, is definitely fixed by the Plan, certified by the Commission, assented to by the creditors, and confirmed by the court.
This brings us to a consideration of the orders complained of. On October 21 (the same date the Plan was confirmed by the court), the court entered the first order complained of, as follows:
“On the Court’s own motion, It Is Ordered That:
“(1) Henry A. Gardner, Trustee of the properties of the Debtor, be, and he hereby is, authorized and directed, to put into effect and carry out the Plan of Reorganization heretofore approved and confirmed by this Court, under the direction and supervision of this Court; and
“(2) The trustee be, and he hereby is, authorized and directed to employ Messrs. Sidley, Austin, Burgess & Harper as counsel to so put into éffect and carry out the Plan * *
On or prior to October 18, 1946, the names of the designees of the three groups authorized by the Plan to designate reorganization managers were submitted to the court. Immediately after, the entry of the order of October 21, the court announced from the bench its refusal to approve such designees for the reason that they were residents of New York, although they were “unquestionably men of high standing and men of ability.” The court at the same time announced:
“Now, I have directed the Trustee to take the steps necessary to put the plan into execution. It is my desire that that be done forthwith. * * * Accordingly I take it it will be unnecessary for the reorganization managers to employ counsel unless some extraordinary situation may arise which makes that employment necessary * * * »
Thus at the very inception the court authorized and directed the debtor’s trustee to carry out the Plan, in direct contravention of the provisions of the Plan which expressly and specifically vested such authority and power in reorganization managers. Also at the same time the court directed the trustee to employ certain designated counsel, in violation of Sec. 205, sub. c (2), which authorizes the trustee to select his own counsel subject to confirmation by the court.
The parties authorized, by the-Plan to designate reorganization managers evidently for the purpose of avoiding delay acquiesced in the court’s refusal to approve nonresident managers. It is not necessary, therefore, to consider the action of the court in this respect. On October 24, October 29 and November 4, 1946, the Thorvald F. Hammer committee, the Mutual Savings Bank group and the Equitable Life Assurance Society jointly, and appellants, in conformity with their authority contained in the Plan, designated respectively John E. Gavin, Roy D. Keehn and A. Bradley Eben, all of Chicago, to act as reorganization managers. With these newly designated managers awaiting its approval, the court on November 13, 1946 entered the second order complained of. This order was entered upon the petition of Gardner as trustee and provided:
“(1) That the Trustee be, and he hereby is authorized and directed to exercise all powers of the reorganization managers under the Plan, pending their designation and approval.
“(2) That the Clerk of this Court be, and he hereby is authorized and directed to forward a copy of the said petition to the Interstate Commerce Commission, Washington, D. C., together with a copy of this order, for the fixing of the maximum limits of, allowance for said expenses and services in connection with carrying out and putting into effect the Plan of Reorganization herein.”
On November 15, 1946, twenty-two days after the designation of Gavin, seventeen days after the designation of Keehn and eleven days after the designation of Eben. the court entered an order reciting their designation as reorganization managers and approved their appointment, “provided that their exercise of authority under the Plan shall at all times be subject to the direction of this Court.” This order further recited the court’s action of October 21, 1946, authorizing and directing that the trustee employ “Messrs. Sidley, Austin, Burgess & Harper as counsel to put into effect and carry out the Plan of Reorganization,” and without a scintilla of proof, so far as the record discloses, that “substantial progress has been made in effectuating said Plan.” The reorganization managers were speqifically directed not to “employ other counsel or in any manner limit or impair the direction heretofore given to the Trustee and his counsel above named.” The portion of this order which limits the authority of the managers as contained in the Plan is involved in this appeal.
At this point it is pertinent to note that no question is raised on this record as to the honesty, integrity or ability of Eben, Keehn or Gavin to serve as reorganization managers. In fact, they are all well and favorably known members of the Chicago Bar. Why the court so long delayed the approval of their appointment is not disclosed. More than that, the court by its orders of November 13 and November 15 renewed the authority of the trustee and the court-appointed counsel to carry the Plan into effect. Moreover, the authority thus conferred upon the trustee and counsel was not withdrawn or diminished in any respect. In fact, the order of Noyember 15 approving the appointment of Eben, Keehn and Gavin was little more than a meaningless gesture for the reason that by the same order the court stripped them of all substance of power and authority which was theirs according to the provisions of the Plan. Furthermore, the reorganization managers were specifically forbidden to employ counsel, notwithstanding the fact that they were specifically authorized so to do by the Plan.
On November 22, 1946, the court entered the fourth order involved in this appeal. This order also recites that it is on the court’s own motion and provides that the court’s order of November 15, 1946 “approving the designations of certain persons as reorganization managers be, and it hereby is, vacated and suspended pending the further order of this court.” Like the other orders, it was also entered without hearing and without any reason assigned as to why the approval of the reorganization managers theretofore made was “vacated and suspended.” They had been designated strictly in accordance with the provisions of the Plan, and we think the court was without authority to summarily remove them, especially without cause and without an opportunity to be heard.
Notwithstanding the fact that the approval of these reorganization managers had been “vacated and suspended,” the court in the same order directed that they and the trustee file reports on or before November 26, 1946, “showing what each of them had done, is doing, and contemplates doing, to carry out and put into effect the plan of reorganization.” In conformity with this direction, such reports were filed and a hearing was had on November 26, 1946. These reports were considered and the testimony of one witness connected with the legal firm designated by the court to represent the trustee was heard. Much is said concerning these reports and the testimony of this witness, most of which we think is beside the point and immaterial to the issues raised on this appeal.
At the conclusion of the hearing, on November 27, 1946, the fifth order involved in this appeal was entered, which in a large measure supersedes the prior orders. In this order it is recited that on October 21, 1946, when the Plan of Reorganization was confirmed, “it appeared that there would be delay in the designation and approval of Reorganization Managers, and properly to progress the consummation of the plan, notwithstanding that delay, the Court directed the Trustee to employ counsel experienced in railroad reorganization matters, named by the Court, and proceed at once to initiate the steps necessary to the consmmation of the plan.” The order further recites in effect that when the reorganization managers were approved by the court, the trustee and his counsel had made such progress in the effectuation of the Plan that the reorganization managers were “directed by the Court not to employ other counsel, and to proceed with the exercise of their authority under the plan.” The order recites as the reason for the order suspending the order approving the reorganization managers that “delay was being encountered in taking certain steps essential to an expeditious reorganization, and that further delay was threatened.” The order also states:
“The plan of reorganization does not in terms deal with the particular circumstances and the emergency situation which has developed herein except by the provision that the Court may cure any defect and supply any omission necessary to carry out the plan effectively.”
Thus it appears that the court by this order attempted to justify its previous orders upon two grounds, (1) a fear that there would be delay in the consummation of the Plan, and (2) that at the time the managers were approved (November 15, 1946), the trustee and his counsel had made such progress in the effectuation of the Plan that it was unnecessary for the reorganization managers to employ counsel, as they were authorized to do under the Plan. We think the first ground is wholly without merit and that the second ground is beside the point. Obviously, there was no reason on October 21, 1946 (the same day the Plan was confirmed) for thinking that reorganization managers designated as provided by the Plan would delay its execution, yet on that very day the court provided a means of its own for the execution of the Plan, contrary to its plain provisions. It would also appear that there was no basis for charging the reorganization managers designated under the Plan with delay during the time required by the court to make up its mind as to whether it would approve their appointment. It would appear equally certain that they cannot properly be charged with delay even after their approval, in view of the fact that the court stripped them of their prerogatives as set forth in the Plan. Thus with their authority impaired to the point where it was doubtful if they had a right to perform any function, it is difficult to discern how they could have been reasonably expected to make any progress in the execution and carrying out of the Plan. That the court was anxious to see the Plan expeditiously put into effect is to be commended, but speed cannot be indulged in at the expense of the rights of parties as fixed by a Plan. Therefore, we think that i't is 'immaterial' to the issues raised on this appeal that the trustee and his counsel had made progress,'if such be the fact, in the carrying out of the Plan. It is no answer to the charge that their appointment was unauthorized and illegal.
Neither do we think there was an emergency situation which justified the course pursued by the court. If, .however, there was any emergency existing on November 27, it was of the court’s own making. . Neither do we agree that there' was any defect or omission in the Plan which justified the court’s action. In fact, the provisions of the Plan, so far as they relate to the issues before us are written in such plain, clear and unambiguous language as to leave no room for doubt as to their meaning.
The court in its order of November 27 directed “that John E. Gavin, William T. Faricy and Claude A. Roth be, and they hereby are appointed by the Court as Reorganization Managers under the plan of reorganization herein.” (Gavin was one of the original designees.) These Court’s designated managers were not appointed under the Plan; in fact, they were appointed in contravention of its specific terms. Assuming that the removal of Gavin, Keehn and Eben was proper (which assumption we think is not tenable), and that a vacancy thereby existed, the court again ignored the Plan, which clearly provided the manner in which successor-managers were to be designated. It provides:
“If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court.”
The court at the hearing on November 27 further demonstrated its displeasure for the provision in the Plan pertaining to the appointment of reorganization managers by stating:
“* * * the reorganization ‘ managers are- sort of vermiform appendices, without any useful function. But we have them, and we will get along with them if we can.”
Again we think that if the court entertained that view as to the reorganization managers, it should have been given effect at the time it considered the merits of the Plan, as a prerequisite to its approval. It is true, of course, that the court had the authority and -the duty, both under the Act and by the provisions of the Plan, to supervise its execution. Such authority, how-, ever, did not confer upon the court the right to substitute a means of execution of its own contrary to 'and- in derogation of the provisions of the Plan. The duties and responsibilities of the reorganization managers in the execution and carrying into effect its provisions were as definite and certain as those of the court in its supervisory capacity. And the fact that the court might have thought that its means was better or more advantageous to the interested parties than that provided by the Plan can furnish no excuse for depriving the reorganization managers of their duties and responsibilities. To think otherwise is to work an injustice upon the creditors whose required assent to the Plan was procured on its stated terms and conditions, including those for its execution. In this connection, it is pertinent to observe that the means for the execution of a Plan of Reorganization is a positive requirement of the Act. Sec. 77, sub. b (5).
We desire to make it plain that nothing said in this opinion is intended to reflect upon the court’s appointed counsel for the trustee, Messrs. Sidley, Austin, Burgess and Harper. The court evidently had great confidence in their ability to promptly and expeditiously carry the Plan into effect. So have we. Again, however, this is no answer to the contention that the orders complained of were unauthorized.
It may be well at this point to call attention to a few of the cases for the purpose of showing the limited authority which is given the court under Sec. 77, and particularly after a plan has been approved. In Palmer et al. v. Commonwealth of Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the court stated:
“But the whole scheme of § 77 leaves no doubt that Congress did not mean to grant to the district courts the same scope as to bankrupt roads that they may have in dealing with other bankrupt estates.”
In Ecker et al. v. Western Pacific Railroad Corporation, 318 U.S. 448, 468, 63 S.Ct. 692, 705, 87 L.Ed. 892, the court stated:
“When examined to learn the purpose •of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation bv the court.”
In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 672, 55 S.Ct. 595, 604, 79 L.Ed. 1110, the court in referring to Sec. 77 stated:
“As outlined by that section, a plan of reorganization, when confirmed, cannot be distinguished in principle from the composition with creditors authorized by the act of 1867, as amended by the act of 1874.”
While we find no case exactly in point, numerous courts have construed the court’s authority in connection with the execution of a plan under Sec. 77 (B). This court, for instance, in In re Corona Radio & Television Corporation, 7 Cir., 102 F.2d 959, 963, held that the court was without authority to direct the execution of a plan in a manner inconsistent with its terms. To the same effect is In re Pilsener Brewing Co., 9 Cir., 79 F.2d 63, 68, and In re Diversey Building Corporation, 7 Cir., 141 F.2d 65, 68. It has also been held that a plan of reorganization is, when certified, approved, accepted and confirmed, in effect a binding contract between a debtor, the security holders and all other parties concerned. Downtown Inv. Ass’n v. Boston Metropolitan Buildings, Inc., 1 Cir., 81 F.2d 314; American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574.
Counsel for appellees in their brief and argument in this court go even further than the court in attempting to justify the orders complained of. For instance, it is argued: “Particularly fresh in the Judge’s mind was the recent hearing on fees in connection with the approval of the Plan.” In this connection, it is pointed out that appellants filed with the Interstate Commerce Commission excessive claims for compensation and reimbursement of expenses. Assuming that such is the case, we think it is irrelevant to the orders under attack. If the purpose of such contention is to impugn appellants’ motive or integrity, it is sufficient answer to state that the application for fees referred to and the action of the Commission thereon took place long before October 21, 1946, when the Plan was approved by the court. Such activities certainly were as “fresh in the Judge’s mind” at that time as when he later entered the orders complained of. If there was anything in appellants’ previous conduct which indicated that it was undesirable that they be given the right under the Plan to designate the reorganization managers, it was a. matter for the court’s concern before the Plan was approved rather than subsequently. Furthermore, appellants appear to have played an important part in the formulation of the Reorganization Plan. The Commission in its report of April 25, 1946 stated :
“Counsel and the committee and its advisers, on and after April 17, 1945, concluded the negotiations which led to agreement with the Gulf, Mobile & Ohio on the terms of the plan, and took the lead; in proceedings which thereafter culminated in approval of the plan by the. Commission and the. court * *
Appellees further argue that the court properly exercised its discretion because appellants attempted to block the reorganization and circumvent Sec. 77, sub. c (12). At this point it is pertinent to recall that the court in its order of November 13, 1946 directed its clerk to forward to the Interstate Commerce Commission the petition of the trustee to prescribe maximum limits of 'expenses pursuant to Sec. 77, sub. c(12). The clerk complied with the direction of the court in this respect. Thereupon, New York counsel for the appellant Committee, under date of November 15, 1946, directed a letter to the Commission opposing the petition “on the ground that the Trustee has no power to put into effect and carry out the Plan.of Reorganization.” The letter also called attention to the provision of the Plan by which such power was lodged in the reorganization managers. On November 21, 1946, appellants by the same New York counsel filed with the Commission an answer to the trustee’s petition in which was set forth the provisions of the Plan as well as the orders complained of designed to show that the latter were entered without authority. It was asserted in such answer that the execution of the Plan by the trustee would be in violation of the Plan and would cast a serious doubt and cloud upon the title of the G. M. & O. and on other interested parties. 'It was also asserted that Sec. 77, sub. c(12), was without application because the Plan of Reorganization provided that the compensation and expenses of those employed in carrying out the Plan should be paid by the G. M. & O.
Appellees assert that by this action the appellant Committee “immediately undertook to block the required proceeding before the Interstate Commerce Commission,” and that “It will be seen that while pretending to name a Reorganization Manager to participate in the consummation of the Plan, appellant was actually moving to defeat the consummation of the Plan under and pursuant to the vital limitations imposed by subsection c(12) * *
Thus it will be observed that the attack which appellants sought to make before the Commission was substantially the same as that made here, that is, that the court was acting without authority and in contravention of the terms of the Plan. We are of the view that appellants were not only within their rights in attacking the orders of the court before the Commission but that they would have been derelict in their duty if they had failed to do so.
We have heretofore quoted the provision of the Plan conferring broad and exclusive powers upon the reorganization managers in the execution of the Plan. We repeat this provision, so far as material to the instant discussion. It provides:
“Subject to limitations of law, including the limitations of subsection 77 (c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power * * * to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company * *
Sec. 77, sub. c (12), provides, so far as here material:
“Within such maximum limits as are fixed by the Commission, the judge * * * may make an allowance, to be paid out of the debtor’s estate, for the actual_ and reasonable expenses * * * incurred in connection with the proceedings ana plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.”
It is true, as appellees assert, that the provision of the Plan imposing upon the railroad the obligation of paying the expenses incurred in the execution of the Plan is “subject to limitations of law, including the limitations of Sec. 77 (c) (12).” Obviously, this limitation in the Plan is of no consequence unless the statutory provision is controlling. We think it is not. The latter expressly limits the allowances to those payable “out of the debtor’s estate.” This fact is emphasized in Reconstruction Finance Corporation v. Bankers Trust Co., 316 U.S. 163, 166, 63 S.Ct. 515, 87 L.Ed. 680. In the instant case, the fees and expenses incurred are not to be paid out of the debtor’s estate. The Plan specifically provides that the compensation and expenses of those authorized to execute the Plan “shall be paid by the Gulf, Mobile & Ohio Railroad Company.” We must assume that there is nothing wrong with a plan containing such a provision; otherwise the Commission would not have certified and the court would not have approved it. We think the creditors and interested parties whose assents were necessary to the validity of the Plan are entitled to have this provision as well as others respected and put into effect.
We might go further and state that even though it be assumed that appellants' action before the Commission, taken in response to the trustee’s petition, was ill-advised, still there would be no basis for properly charging them with blocking the execution of the Plan. It cannot be said that their action was frivolous or not taken in good faith. Certainly the very least that can he said is that they presented a meritorious legal question, which they were entitled to do before the Commission as they have before this court. Furthermore, as already pointed out, the court entered upon a course contrary to the provisions of the Plan prior to appellants’ action now asserted to have blocked consummation of the Plan.
In conclusion, we regret to relate that the court below during the hearing on November 27, 1946, in discussing the provision of the Plan imposing upon the G. M. & O. the obligation of paying the compensation and expenses incurred in its execution, made inquiry as to whether the railroad was represented in court. Upon being informed that its general counsel was present, the court threatened it with contempt “if any engagement is made or if any payment is made by way of attorneys fees or expenses of attorneys or otherwise in and about this reorganization other than within maximum limits fixed by the Interstate Commerce Commission and approved within those limits by this Court.” In our opinion, this threat of contempt directed at the railroad was not only improper but without justification. After all, the G. M. & O. was merely taking over the assets of the debtor corporation; in effect it was the purchaser of those assets. It was solvent and we assume possessed of officials capable of attending to its business. It is doubtful if the court had any jurisdiction over its funds and certainly no authority over the railroad other than to supervise its part in the execution of the Plan. As already shown, the railroad was obligated to pay the expenses of carrying the Plan into effect. Even though there had been a serious legal question as to its obligation in this respect, which we think there was not, such a question could have been more appropriately decided in the traditional judicial manner than by threatened contempt.
The orders appealed from are reversed, with the direction that they be vacated and set aside and that the Plan of Reorganization approved by the court be consummated according to its terms and provisions.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the GARFIELD HEIGHTS CITY SCHOOL DISTRICT and James A. Harper, Superintendent, Defendants-Appellees.
No. 77-3012.
United States Court of Appeals, Sixth Circuit.
Aug. 7, 1978.
Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Edward H. Levi, Atty. Gen. of U. S., Judith E. Wolf, Appellate Sect., Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
John F. Lewis, John T. Meredith, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees.
ORDER
Before EDWARDS, ENGEL and MERRITT, Circuit Judges.
ORDER
The issue presented by this appeal is whether the Attorney General has the authority to bring pattern or practice equal employment suits under Title VII of the 1964 Civil Rights Act against public employers in the absence of a referral of the case by the Equal Employment Opportunity Commission to the Attorney General for the institution of suit.
Prior to the 1972 Civil Rights Act amendment, the Attorney General had independent authority to bring equal employment cases against private employers under Title VII of the 1964 Civil Rights Act without a referral from the EEOC. Prior to the 1972 amendments, neither the Attorney General nor the EEOC had authority over public employers. The 1972 Civil Rights Amendment transferred much of the Attorney General's authority under Title VII to the EEOC and conditioned the institution of pattern or practice cases against private employers on a referral from the EEOC. At the same time the 1972 amendments gave the EEOC investigatory and conciliation authority in connection with Title VII equal employment cases involving public or governmental employers.
The 1972 amendments are unclear and ambiguous with respect to the question whether the Attorney General obtained independent pattern or practice authority under Title VII against public employers while losing such authority in the case of private employers.
We conclude that this question of statutory interpretation should be resolved against the position of the Attorney General that he has independent pattern or practice authority against public employers in the absence of a referral from the EEOC for the reasons set out by District Judge Thomas in his Memorandum Opinion filed October 4, 1976, 435 F.Supp. 949 (1976) and for the reasons set out in the Opinion of the three judge District Court in the case of United States v. State of South Carolina, 445 F.Supp. 1094, 1110-11 (D.So.Car.1977). This conclusion is buttressed by the action of the Supreme Court in summarily affirming on appeal the decision of the three judge District Court in South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978). While the question is not entirely free from doubt, we believe that the Supreme Court necessarily affirmed the conclusion of the three judge District Court in South Carolina that the Attorney General’s former independent pattern or practice authority under Title VII of the 1964 Civil Rights Act, including his new authority to bring such suits against public employers granted by the 1972 amendments thereto, did not survive the 1972 amendments and that referral by the EEOC to the Attorney General is necessary prior to the institution of such suits.
Accordingly, the judgment of the District Court is hereby affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_lcdisagreement
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
COMMISSIONER OF INTERNAL REVENUE v. PHIPPS.
No. 83.
Argued December 10, 1948.
Decided March 14, 1949.
Stanley M. Silverberg argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Helen Goodner.
W. Clayton Carpenter argued the cause for respondent. With him on the brief were Montgomery Dorsey and William L. Branch.
Mr. Justice Murphy
delivered the opinion of the Court.
This case involves a tax-free liquidation by a parent corporation of some of its subsidiaries. At the time of the liquidation the parent had earnings and profits available for distribution, and the subsidiaries had an aggregate net deficit. The issue now before us is whether the rule of Commissioner v. Sansome, 60 F. 2d 931, requires the subtraction of the subsidiaries’ deficit from the parent’s earnings and profits, in determining whether a subsequent distribution by the parent constituted dividends or a return of capital to its stockholders.
The Sansome case, supra, arose from a tax-free reorganization in which the transferor corporation had a surplus in earnings and profits available for distribution. It was there held that those earnings and profits, for purposes of a subsequent distribution by the transferee corporation to its stockholders, retain their status as earnings or profits and are taxable to the recipients as dividends. The rule has been held to include liquidations of a subsidiary by its parent. Robinette v. Commissioner, 148 F. 2d 513; U. S. Treas. Reg. 101, Art. 115-11, promulgated under the Revenue Act of 1938 and made retroactive, 52 Stat 447.
The facts were stipulated, and so found by the Tax Court. So far as relevant, they are as follows: In December, 1936, Nevada-California Electric Corporation liquidated five of its wholly-owned subsidiaries by distributing to itself all of their assets, subject to their liabilities, and by redeeming and canceling all of their outstanding stock. No gain or loss on the liquidation was recognized for income tax purposes under § 112 (b) (6) of the Revenue Act of 1936. On the date of liquidation, one of the subsidiaries had earnings and profits accumulated after February 28, 1913, in the amount of $90,362.77. The four others had deficits which aggregated $3,147,803.62. On December 31, 1936, the parent had earnings and profits accumulated after February 28, 1913, in the amount of $2,129,957.81, which amount does not reflect the earnings or deficits of the subsidiaries. In 1937, Nevada-California had earnings of $390,387.02. In the years 1918 to 1933 inclusive the parent and its subsidiaries filed consolidated income tax returns.
Respondent was the owner of 2,640 shares of the preferred stock of Nevada-California. During 1937 that corporation made a pro rata cash distribution to its preferred stockholders in the amount of $802,284, of which respondent received $18,480. The Commissioner determined that the distribution was a dividend under § 115 of the Revenue Act of 1936 and constituted ordinary income in its entirety.
Of the 1937 distribution, approximately 49% was chargeable to earnings and profits of the taxable year. Consequently, respondent conceded in the Tax Court that that percentage of her share, or about nine thousand dollars, was taxable as a dividend under § 115 (a) (2). The Tax Court held in her favor that the balance was not a taxable dividend out of earnings and profits, on the theory that all of Nevada-California’s accumulated earnings and profits, plus the accumulated earnings and profits of the subsidiary that had a surplus, were erased by the aggregate deficits of the other four subsidiaries. 8 T. C. 190. The Court of Appeals affirmed by a divided court, 167 F. 2d 117. We brought the case here on a writ of certiorari, 335 U. S. 807, because of its importance in the administration of the revenue laws, and because of an alleged conflict of the decision below with that of the Court of Appeals for the Ninth Circuit in Cranson v. United States, 146 F. 2d 871.
Commissioner v. Sansome, 60 F. 2d 931, arose thus: A Corporation sold out all its assets to B Corporation, both organized under the laws of New Jersey. B Corporation assumed all liabilities and issued its stock to the stockholders of A Corporation, without change in the proportions of' their holdings. The only change was that the charter of B Corporation- gave it slightly broader powers. At the time of the reorganization, A Corporation had on its books a large surplus and undivided profits. The new corporation made no profit and the company soon dissolved. The liquidating distributions in 1923, the year when the dissolution was begun, did not exhaust the amount of accumulated profits of the predecessor corporation, and the Commissioner contended that those distributions were taxable to the stockholders as dividends and not, as claimed by them, as a return of capital. The Court of Appeals for the Second Circuit agreed with the Commissioner, and held that since the reorganization was nontaxable under § 202 (c) (2) of the Revenue Act of 1921, the accumulated earnings and profits of the transferor retained their character as such for tax purposes in the hands of the transferee and were consequently taxable on distribution as ordinary income under § 201 of the same Act. The view of the court was thus expressed by Judge Learned Hand: “Hence we hold that a corporate reorganization which results in no ‘gain or loss’ under section 202 (c) (2) (42 Stat. 230) does not toll the company’s life as continued venture under section 201, and that what were ‘earnings or profits’ of the original, or subsidiary, company remain, for purposes of distribution, ‘earnings or profits’ of the successor, or parent, in liquidation.” 60 F. 2d 931, 933. The rule has been consistently followed judicially and has received explicit Congressional approval.
The rationale of the Samóme decision as a “continued venture” doctrine has been often repeated in the cases, and in some of them the fact that the successor corporation has differed from the predecessor merely in identity or form has lent it plausibility. Other cases, however, demonstrate that the “continued venture” analysis does not accurately indicate the basis of the decisions. The rule that earnings and profits of a corporation do not lose their character as such by virtue of a tax-free reorganization or liquidation has been applied where more than one corporation has been absorbed or liquidated, where there has been a “split-off” reorganization, and where the reorganization has resulted in substantial changes in the proprietary interests.
In Commissioner v. Munter, 331 U. S. 210, this Court reversed a decision of the Court of Appeals for the Third Circuit which had held in favor of the taxpayer on the ground that the ownership of the successor corporation was so different from that of the two predecessors that there was not sufficient continuity of the corporate entity to apply the Samóme doctrine. The opinion of the Court stated our unanimous view of the basis of the rule: “A basic principle of the income tax laws has long been that corporate earnings and profits should be taxed when they are distributed to the stockholders who own the distributing corporation. . . . Thus unless those earnings and profits accumulated by the predecessor corporations and undistributed in this reorganization are deemed to have been acquired by the successor corporation and taxable upon distribution by it, they would escape the taxation which Congress intended. . . . The congressional purpose to tax all stockholders who receive distributions of corporate earnings and profits cannot be frustrated by any reorganization which leaves earnings and profits undistributed in whole or in part.” 331 U. S. at 214, 215. See Murchison’s Estate v. Commissioner, 76 F. 2d 641, 642; Putnam v. United States, 149 F. 2d 721, 726; Samuel L. Slover, 6 T. C. 884, 886. We conclude from the cases that the Sansome rule is grounded not on a theory of continuity of the corporate enterprise but on the necessity to prevent escape of earnings and profits from taxation.
The decision of the Court of Appeals for the Second Circuit in Harter v. Helvering, 79 F. 2d 12, is not inconsistent with this view. In that case the situation was as follows: A Corporation and B Corporation, each of which had accumulated earnings and profits, merged to form C Corporation. By the operation of the Sansome rule, the earnings and profits retained their character as such in the hands of C. Some time later, D Corporation acquired all the stock of C, and thereafter liquidated it in a transaction in which no gain or loss was recognized. At the time of the liquidation of C Corporation, D Corporation, the parent, had a deficit in earnings and profits. The court held, in determining the amount of earnings and profits available to D Corporation after the liquidation for distribution as dividends, that its deficit should be deducted from the accumulated earnings and profits acquired from its subsidiary. It is vigorously contended that the logic of the Harter case compels the allowance of a deduction of the deficits of the subsidiaries from the accumulated earnings and profits of the parent. We believe this view to be the product of inadequate analysis. The difference between the Harter situation and the problem before us may perhaps be clarified by comparing them taxwise if neither liquidation had occurred. Briefly stated, in the case of a distribution to a corporation with a deficit from either current or prior losses, the corporation receiving the distribution has no taxable income or earnings or profits available for current distribution until current income exceeds current losses, and no accumulated earnings or profits until its actual deficit from prior losses is erased. See 1 Mertens, Law of Federal Income Taxation (1942) § 9.30, and cases cited therein n. 44 et seg. In the instant situation, however, the parent did have accumulated earnings and profits available for distribution as dividends, absent the liquidation. Congressional intent to tax such earnings and profits on their distribution cannot be prevented by the fact of an intervening reorganization or liquidation.
The operation of the Sansome rule on the taxation of corporate distributions is brought into high relief by consideration of the economic relation between a parent corporation and its subsidiary. Congress requires that earnings and profits, current or accumulated, be taxed to the recipients thereof as dividends on their distribution. If a subsidiary has a surplus in earnings and profits, the parent has a choice of two methods by which it may “realize” this surplus. It may cause the subsidiary to declare a dividend, or it may liquidate its interest or part of its interest in the subsidiary. In the former case, the distribution would of course be taxable as ordinary income to the parent insofar as that distribution, plus the parent’s other income, represented net income to it. If the parent uses the second method, two alternatives again are available: the liquidation may take the form of a sale outright, or may be performed within the framework of the reorganization sections of the Internal Revenue Code or its predecessor acts. If the former, gain is of course realized, and is also recognized for tax purposes. We note in passing, in this connection, that such gain will correspond, if at all, only by coincidence with the amount of earnings and profits of the subsidiary. If the latter, Congress has determined that the gain shall not be recognized at that time, but that such recognition shall be deferred. If the subsidiary has a deficit in earnings and profits, the deficit may be “realized” by the parent only by liquidation, and the same two alternatives are present as when the subsidiary has a surplus: sale, and reorganization within § 112. Again, in the former case, loss is realized and also recognized. And in the case of a reorganization or liquidation in the framework of the Code, the recognition of loss is deferred by Congressional mandate to a later time.
If the assets of the parent and subsidiary are combined via a tax-free reorganization or liquidation, the effect of the Sansome rule is simply this: a distribution of assets that would have been taxable as dividends absent the reorganization or liquidation does not lose that character by virtue of the tax-free transaction. Respondent’s contention that the logic of the Sansome rule requires subtracting the deficit of the subsidiary from the earnings and profits of the parent as a corollary of carrying over the earnings and profits of the subsidiary has a superficial plausibility; but the plausibility disappears when it is noted that the taxpayer would thus obtain an advantage taxwise that would not be available absent the liquidation, since there is no way to “declare” a deficit, and thus no method of loss realization open to the parent parallel to a declaration of dividends as a mode of realizing the profits of a subsidiary.
It is urged upon us that the deficits of the subsidiaries should be subtracted from the earnings and profits of the parent in order to make the tax consequences of the liquidation correspond with corporate accounting practice. The answer is brief. The Sansome rule itself, as applied to earnings and profits, has never been thought to be controlled by ordinary corporate accounting concepts; its uniform effect is to treat for tax purposes as earnings or profits assets which are properly considered capital for many if not most corporate purposes, and it has long been a commonplace of tax law that similar divergences often occur. See Commissioner v. Wheeler, 324 U. S. 542, 546; Putnam v. United States, 149 F. 2d 721, 726; 1 Mertens, op. cit. § 9.33; Rudick, op. cit. 878-906.
Congress has expressed its purpose to tax all stockholders who receive distributions of earnings and profits. In order to facilitate simplification of corporate financial structures, it has further provided that certain intercorporate transactions shall be free of immediate tax consequences to the corporations. There has been judicially superimposed by the Sansome rule, with the subsequent explicit ratification of Congress, the doctrine that tax-free reorganizations shall not disturb the status of earnings and profits otherwise available for distribution. Nevada-California at the time of the 1937 distribution to respondent had such earnings and profits. Since we believe that to allow deduction from these earnings of the deficits of its subsidiaries would be in effect to recognize losses the tax effects of which Congress has explicitly provided should be deferred, the judgment of the Court of Appeals is reversed.
Reversed.
Mr. Justice Douglas concurs in the result.
“SEC. 112. RECOGNITION OF GAIN OR LOSS.
“(a) General Rule. — Upon the sale or exchange of property the entire amount of the gain or loss, determined under section 111, shall be recognized, except as hereinafter provided in this section.
"(b) Exchanges Solely in Kind.—
“(6) Property received by corporation on complete liquidation op another. — No gain or loss shall be recognized upon the receipt by a corporation of property distributed in complete liquidation of another corporation. . . .” 49 Stat. 1648, 1678-79.
It does not appear in what years occurred the subsidiaries’ losses which resulted in their deficits, or to what extent they were set off against the net income of the parent in consolidated return years. To the extent that such set-offs did exist, the basis of the subsidiaries’ stock to Nevada-California had been reduced and the losses realized by the parent and availed of for tax purposes prior to the liquidation. U. S. Treas. Reg. 94, Art. 113 (b)-l, promulgated under the Revenue Act of 1936.
“SEC. 115. DISTRIBUTIONS BY CORPORATIONS.
“(a) Definition of Dividend. — The term ‘dividend’ when used in this title (except in section 203 (a) (3) and section 207 (c) (1), relating to insurance companies) means any distribution made by a corporation to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.
“(b) Source of Distributions. — For the purposes of this Act every distribution is made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits. Any earnings or profits accumulated, or increase in value of property accrued, before March 1, 1913, may be distributed exempt from tax, after the earnings and profits accumulated after February 28, 1913, have been distributed, but any such tax-free distribution shall be applied against and reduce the adjusted basis of the stock provided in section 113.” 49 Stat. 1687.
Respondent agrees that the earnings and profits of the subsidiary with a surplus become, by virtue of the Sansome rule, earnings and profits of the parent, whatever the ultimate treatment of the deficits of the other subsidiaries.
Section 201 of the 1921 Act specifies what corporate distributions are taxable as dividends; §202 (c) (2) provides for the nonrecognition of gain or loss from certain corporate reorganizations.
Commissioner v. Munter, 331 U. S. 210; United States v. Kauffmann, 62 F. 2d 1045; Murchison’s Estate v. Commissioner, 76 F. 2d 641; Harter v. Helvering, 79 F. 2d 12; Georday Enterprises, Ltd. v. Commissioner, 126 F. 2d 384; Reed Drug Co. v. Commissioner, 130 F. 2d 288; Robinette v. Commissioner, 148 F. 2d 513; Putnam v. United States, 149 F. 2d 721. See also Coudon v. Tait, 61 F. 2d 904, which was decided a few months after Sansome and reached the same result independently.
The Senate Finance Committee Report on § 115 (h) of the Revenue Act of 1936, S. Rep. No. 2156, 74th Cong., 2d Sess., p. 19 (1939-1 Cum. Bull, (part 2) 678, 690), recognized the rule of the Sansome case, and said that the amendment made by that Act intended no change in existing law, but was added only in the interest of clarity. U. S. Treas. Reg. 94, Art. 115-11, promulgated under the 1936 Act, incorporates the substance of the report. The Revenue Act of 1938 amended § 115 (h) only by extending its application to distributions of “property or money” as well as of “stock or securities”; the effect was to make § 115 (h) harmonize with § 112 (b) (6) and (7); and Treasury Regulations 101, promulgated under the 1938 Act, was amended to conform. The Internal Revenue Code contains the section substantially unchanged.
Section 501 of the Second Revenue Act of 1940 added § 115 (1) to the Internal Revenue Code, to elaborate the law with regard to the effect of tax-free distributions on earnings and profits. The reports accompanying the bill in Congress, H. R. Rep. No. 2894, 76th Cong., 3d Sess., p. 41 (1940-2 Cum. Bull. 496, 526), and S. Rep. No. 2114, 76th Cong., 3d Sess., p. 25 (1940-2 Cum. Bull. 528, 546-547), both recognize the application of “the principle under which the earnings and profits of the transferor by reason of the transfer become the earnings and profits of the transferee.” Ibid., p. 25. The reports do not mention deficits.
See, e. g., Murchison’s Estate v. Commissioner, Reed Drug Co. v. Commissioner, United States v. Kauffmann, all supra, n. 6.
Harter v. Helvering, Baker v. Commissioner, 80 F. 2d 813.
Barnes v. United States, 22 F. Supp. 282; Estate of McClintic, 47 B. T. A. 188; Stella K. Mandel, 5 T. C. 684.
Commissioner v. Munter, supra.
See Note, The Effect of Tax-Free Reorganizations on Subsequent Corporate Distributions, 48 Col. L. Rev. 281; Atlas, The Case of the Disappearing Earnings and Profits, in Seventh Annual Institute of Federal Taxation, 1155; ef. 1 Mertens, Law of Federal Income Taxation (1942) §9.58; 1 Montgomery, Federal Taxes — Corporations and Partnerships 1948-49, 154 (1948); Green, Recent Trends Under the Sansome Rule, in Sixth Annual Institute on Federal Taxation, 338; cf. Rudick, “Dividends” and “Earnings or Profits” Under the Income Tax Law: Corporate Non-Liquidating Distributions, 89 U. Pa. L. Rev. 865, 896.
Senior Investment Corp., 2 T. C. 124, did not involve the question before us, but was concerned with the applicability, for purposes of computing surtax on undistributed profits, of §§26 (c) (1) and 26 (c) (3) of the Revenue Act of 1936, the' latter as amended by § 501 (а) (2) of the Revenue Act of 1942, to the transferor corporation in a tax-free reorganization. 49 Stat. 1664; 56 Stat. 798, 954. The question of “inheritance” of a deficit was not in issue. See Green, supra, note 12, at 341.
The operation of the Sansome rule is restricted, of course, to earnings and profits which are not considered to be distributed to its own stockholders by the transferor corporation in a tax-free reorganization. Commissioner v. Munter, 331 U. S. 210, 215-16; Samuel L. Slover, 6 T. C. 884. Cf. U. S. Treas. Reg. 111, § 29.112(b) (б) -4 as to the effect of a tax-free reorganization on minority stockholders of the transferor corporation.
On the merits, respondent’s argument is not convincing. It fails to take into account the difference between the concept of surplus or deficit, which is a summary of the operations of the corporation reporting it, and the concept of gain or loss, which reports the effect of the tax-free transaction itself. So various are the possible permutations and combinations of the economic factors that equivalence of surplus or deficit in the accounts of the subsidiary with the gain or loss to the parent would be mere coincidence. Consider for example the case where a corporation acquires all the stock of another which at the time has a large deficit. If the subsidiary is soon liquidated, the deficit will still be large, and the parent may realize little or no loss on the liquidation. See the first two texts cited note 12, supra.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_respond1_8_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
PACIFIC NATIONAL FIRE INSURANCE COMPANY, a corporation, Appellant, v. J. J. MICKELSON, Trustee in Bankruptcy of the Estate of Wirt Cook, an individual doing business as St. Paul Sporting Goods Company, and United States of America, Appellees.
No. 15523.
United States Court of Appeals Eighth Circuit.
July 10, 1956.
Rehearing Denied Aug. 10, 1956.
Samuel Levin, St. Louis, Mo. (LeRoy Bowen, Minneapolis, Minn., was with him on the brief), for appellant.
W. M. Kronebuseh, Minneapolis, Minn., for appellee J. J. Mickelson, trustee.
Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
VOGEL, Circuit Judge.
J. J. Mickelson (plaintiff-appellee), Trustee in Bankruptcy of the Estate of Wirt Cook, an individual doing business as St. Paul Sporting Goods Company, brought this suit against Pacific National Fire Insurance Company, a corporation, (defendant-appellant) to recover on a policy of fire insurance issued by the appellant to the St. Paul Sporting Goods Gompany. A second suit against the Homeland Insurance Company on its policy of insurance awaits, by stipulation, the outcome of this appeal. The United States intervened in the suits to protect its lien for unpaid income taxes and penalties due from Wirt Cook. This suit was tried to the court without a jury and resulted in judgment against the appellant. The principal question at the time of trial in District Court was whether Wirt Cook was responsible for causing the fires which resulted in the damage to the insured property. The sole issue then was one of fact. There was no dispute as to the liability of the appellant pursuant to the coverage contracted for, provided the fire was not intentionally set by, for or on behalf of the insured, Wirt Cook.
The fire out of which this litigation arose occurred around midnight on Wednesday, October 8, 1952. The insured, Wirt Cook, left the premises where he conducted his business at about 4:00 p. m. and proceeded to his home on Mississippi River Road, where he had dinner with his family. He then drove to the Dyckman Hotel in Minneapolis for a 7:00 p. m. appointment with a sporting goods salesman. Following this meeting, he left alone about 9:30 p. m. by automobile for an appointment with a school official at White Bear, Minnesota, in connection with a possible sale of his merchandise. He arrived at White Bear about 10:00 p. m. He stayed until about 10:30 or 10:45. He then left for his home, arriving there about 11:30 p. in. He was there informed by his wife that she had just had a telephone call advising that the store was on fire. While waiting for his wife to dress for the purpose of accompanying him, Cook received a confirming telephone call from the St. Paul Police Department, that call being between 11:30 p. m. and midnight.
Investigations by the St. Paul Fire and Police Departments were made. The investigators concluded that two separate fires had been set in the store shortly before midnight on October 8, 1952. They also observed evidence of a third fire in the basement which had occurred at some prior date. The evidence indicated that the store had only one door and there were only two keys to the door. A store clerk, Hansen, had one key and Wirt Cook had the other. Hansen and his wife both testified that about 6:00 o’clock in the evening of October 8, 1952, he locked the door. His wife was present. She left some parcels in the store. They went to a nearby restaurant and had dinner, coming back about 7:00 o’clock p. m. They unlocked the door, got the parcels and then relocked the door, after which Hansen tried it to be certain that it was locked. Hansen and his wife both accounted for their whereabouts after they left the store until they were apprised of the fire. No motive for the burning of the store can be attributed to Hansen.
When the St. Paul Fire Department responded to the fire call, they found the door to the store unlocked. There was no evidence of anyone having broken into the store. The evidence indicated that Wirt Cook was in financial difficulty at the time of the fire. His business showed a heavy loss during the year 1952 up to the time of the fire. He was being pressed for payment by the government, by the people from whom he originally purchased the business, and by merchandise creditors. Judgments had been obtained against him. Life insurance on himself and his wife was cancelled for non-payment of premiums, notices of which Cook had received shortly before the fire. Other judgments were threatened. His bank accounts were practically depleted. A large number of his checks had come back for insufficient funds. Threat had been made to cut off his telephone service.
Cook’s financial history sometime prior to buying the St. Paul Sporting Goods Company was gone into at some length. It appeared that prior to December, 1949, Cook had been employed as a branch sales manager of the Ford Motor Company in St. Paul. At that time automobiles were hard to obtain. He distributed Ford cars to dealers and others and illegally received from the dealers $100.00 per car in what he termed “under-the-counter payments”. As a result of these operations, Cook accumulated approximately $40,000.00 Sometime later “the Government finally caught up * * * ” to Cook and at the time of the fire he was still owing substantial amounts on income tax liability.
The trial court found specifically that the fire “ * * * was of undetermined origin and not intentionally set by, for or on behalf of the insured named in said policy” and entered judgment for the appellee.
Appellant complains in this court that “the clear and uncontroverted evidence shows incendiary fires, pressing debts, judgments and motive to collect insurance”, that “the trial court’s opinion, findings and judgment are against the manifest weight of the evidence and erroneous”, and that this court has authority to reverse the judgment. In other words, the appellant is asking this court to set aside the trial court’s findings of fact and hold that on the evidence the fire was incendiary in nature and was set by the insured, Wirt Cook, and to order judgment for the appellant.
Appellant argues that in Minnesota, the law of which state is controlling herein, in an action on a policy of insurance to recover for fire loss it is only necessary to prove a defense by a preponderance of the evidence, citing Thoreson v. Northwestern Nat. Ins. Co., 29 Minn. 107, 12 N.W. 154. Appellant cites State v. Lytle, 214 Minn. 171, 7 N.W.2d 305, as being directly in point and decisive of this case. That case merely held that the circumstantial evidence introduced by the state was sufficient to justify the jury in finding that the fire which the defendant was accused of setting was an incendiary fire and that defendant set it. In that case, the Supreme Court of Minnesota was passing upon the sufficiency of the evidence to justify a verdict of guilty by the jury. That is not our situation in the instant case and that case is not authority for appellant’s contention.
The Lytle case and the other Minnesota cases relied upon by the appellant are authority for the proposition that circumstantial evidence, including evidence of motive and opportunity, such as we have in the instant case, are sufficient to justify sustaining, on appeal, the ultimate conclusion of the fact-finding agency. They are not authority for the proposition that circumstantial evidence, such as we have here, will justify this court in reversing the conclusions of a jury or the trial judge who sat in place thereof.
Only one case cited by the appellant lends some support to its contention. In Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68, the Supreme Court of Louisiana reversed the district court in a somewhat similar situation. A careful reading of that opinion, however, indicates that the facts supporting the contention that the insured set the fire or had it set for him were a great deal stronger than they are in the instant case. The evidence connecting the insured with the setting of the fire in that case was overwhelming. In that case, strange as it may seem, a sheriff and his deputy, in investigating another fire, had taken photographs of the interior of plaintiff’s house shortly before the fire, which photographs disclosed a condition which would justify only the conclusion that the fire was incendiary in nature. The evidence in that case justified the appellate court’s reversal of a clearly erroneous finding. We do not consider the situation herein as being comparable. There is no direct evidence which hooks up Wirt Cook with the setting of the fire. Possible motive and possible opportunity only have been shown. Wirt Cook was not seen anywhere near the place of the fire at or near the time thereof. His movements are accounted for. We do not consider the evidence against him nearly so strong as that introduced in the Sumrall case and therefore do not view it as comparable.
There is little question in our minds but what from the evidence disclosed by the record the trial court could have found that this was an incendiary fire and that it was set by or on behalf of the insured, Wirt Cook. The point is, however, that the testimony was entirely circumstantial and the burden and responsibility of making the ultimate conclusion on conflicting testimony or testimony which is merely circumstantial rests with the jury or, where a jury has been waived, with the court itself.
With reference to the findings of a trial court, we said, in Imperial Assur. Co. v. Joseph Supornick & Son, 8 Cir., 1950, 184 F.2d 930, 933:
“Findings of the trial court are presumptively correct and will not be set aside unless clearly erroneous, due regard being given to the opportunity of the trial court to judge of the credibility of the witness. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.”
See also Pendergrass v. N. Y. Life Ins. Co., 8 Cir., 1950, 181 F.2d 136, 138, post.
The appellant attacks the finding of the trial court to the effect that “the fire was of undetermined origin”. Appellant complains:
“ * * * that the Trial Judge erroneously found that the fire in question ‘was of undetermined origin and not intentionally set by, for or on behalf of the insured named in said policy’. This conclusion of the Trial Judge' is we submit contrary to the manifest weight of the evidence. The evidence of incendiarism, is undisputed.” (Emphasis supplied.)
Even if it was error to fail to find that the fire was incendiary in nature, the error is without prejudice. The important fact question was whether or not the fire was intentionally set by, for or on behalf of Wirt Cook. The trial court found specifically that 'the fire was “ * * * not intentionally set by, for or on behalf of the insured named in said policy.” As already pointed out, there was no direct evidence to the effect that Wirt Cook set the fire. The evidence was only circumstantial. The burden of proving incen-diarism on the part of Wirt Cook rested on the appellant. The trial court held that that burden had not been met. See Barich v. Pa. Fire Ins. Co., 1934, 191 Minn. 628, 255 N.W. 80.
The appellant herein cites United States v. United States Gypsum Co., 1947, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, and quotes as follows:
“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
The foregoing is inapplicable here because we are not left with the “definite and firm conviction that a mistake has been committed.”
This court commented on the statement in the Gypsum case in Pendergrass v. N. Y. Life Ins. Co., 8 Cir., 1950, 181 F.2d 136, 138, supra, as follows:
“The opinion in that case shows that the Supreme Court regarded the findings which it held to be erroneous as contrary to the clear weight of the evidence. The statement above quoted, when read in connection with what was later said by the Supreme Court on the same subject in Graver Tank & Mfg. Co., Inc., v. Linde Air Products Co., 336 U.S. 271, 275-276, 69 S.Ct. 535 [93 L.Ed. 672], furnishes no warrant for the belief that we can retry doubtful issues of fact upon a cold record, and substitute our judgment for that of the trial court with respect to such issues, or that a district court, in non jury cases, is to act as a sort of special master for this Court, to report testimony, to make advisory findings, and to enter an advisory judgment.
“There is no logical reason for placing the findings of fact of a trial judge upon a substantially lower level of conclusiveness than the fact findings of a jury of laymen, or those of an administrative agency, which may be set aside only if unsupported by substantial evidence. The findings of fact of a trial court should be accepted by this Court as being correct unless it can be clearly demonstrated that they are without adequate evidentiary support or were induced by an erroneous view of the law. The entire responsibility for deciding doubtful fact questions in a non jury case should be, and we think it is, that of the district court.”
Here the trial judge saw and heard the witnesses and was in a far better position to determine close questions of fact than is an appellate court on a cold record. It is argued by appellant that Wirt Cook had a motive in setting the fire, that is, financial profit, yet appellee points out that the amount of Wirt Cook’s indebtedness eliminated any possibility of his recovering anything for himself. Ap-pellee also points out that the record is devoid of any evidence directly connecting Wirt Cook with the setting of the fire. These things are matters which peculiarly present themselves for determination by the finder of the facts and, where the finder of such facts does not abuse the discretion which the law places on him, an appellate court has no right to substitute its judgment therefor.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_usc1
|
26
|
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.
DICKMAN LUMBER COMPANY, a Washington corporation, Appellant, v. UNITED STATES of America, Appellee.
No. 19923.
United States Court of Appeals Ninth Circuit.
Jan. 19, 1966.
Rehearing Denied Feb. 28, 1966.
Owen P. Hughes, Neal, Bonneville & Hughes, Tacoma, Wash., for appellant.
Richard M. Roberts, Acting Asst. Gen., Meyer Rothwacks, Gilbert E. Andrews, Martin T. Goldblum, Attys., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Tacoma, Wash., for ap-pellee.
Before POPE, BARNES and HAM-LEY, Circuit Judges.
POPE, Circuit Judge.
Appellant corporation was assessed an accumulated earnings tax under the provisions of § 531 of the Internal Revenue Act of 1954. It paid the tax and then sued for refund in the court below.
The tax assessed related to accumulated income for 1959. In that year such income amounted to $142,091.88. From this it paid dividends and other sums to stockholders amounting to $13,060.76. Upon the balance, $129,031.12, the tax of $38,676.98 was assessed. As of December ”31, 1959, appellant’s current assets and current liabilities (in round dollars) were as follows:
Current Assets:
Cash $ 331,852
Short Term Securities 850,000
Accounts Receivable 102,965
Log Inventories 463,186
TOTAL $1,748,003
Current Liabilities
Accounts — Wages Payable 36,545
Accrued Income Tax 156,086
192,631 TOTAL
All of the stock of the corporation (except for four qualifying shares in the names of employees) were owned by Ralph L. Diekman and his wife. Had the entire $129,000 mentioned been distributed in dividends in 1959, the Dickmans’ tax liability would have been increased by more than $87,000.
The trial court held that appellant’s “accumulated earnings and profits were in excess of its reasonably anticipated needs as of the end of 1959 and that the said $129,031.12 was not so needed”; that plaintiff had failed to sustain its burden of proving that it did not have, as one of its purposes for accumulating earnings and profits, the avoidance of income taxes on its shareholders.
Appellant contends that “[a] 11 undistributed earnings and surplus in excess of cash dividends paid in the sum of $12,000 at the end of 1959, were necessary for the four following reasonably anticipated needs of appellant’s business, and by reason thereof such earnings and surplus had not been accumulated for the purpose of avoiding surtax upon the shareholders of appellant: 1. Reserves required to meet competition, fluctuations and hazards of business. 2. Large amounts of available money required in supplying appellant’s mill with logs and timber. 3. Expenditures required for planned modernization and improvements of appellant’s mill. 4. Corporate funds required for payment of federal estate, state inheritance taxes and expenses of administration on retirement of a decedent shareholder’s stock under § 303 of the 1954 Code on the death of either or both of the two principal shareholders of appellant.”
The findings of the court examine in detail and in depth each of these claimed reasons for the accumulations made. In each case the court found as a fact that these claims were without basis, that “the earnings and profits of the plaintiff, in addition to the said $129,031.12 were more than sufficient, in view of the liquidity of the corporation, to meet its anticipated needs.”
The key question here is whether there was accumulation “beyond the reasonable needs of the business”. This, in our view, was a question of fact. Lundgren v. Freeman, 9 cir., 307 F.2d 104 And the trial court’s finding with respect thereto is supported by evidence.
Since we hold that the findings of the trial court are not clearly erroneous, we must affirm the judgment. It is so ordered.
. That section and related sections are as follows:
“§ 531 [Title 26, U.S.C.A.] Imposition of accumulated earnings tax. In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of — •
“(1) 27% percent of the accumulated taxable income not in excess of $100,000 plus
“(2) 38% percent of the accumulated taxable income in excess of $100,000.”
“§ 533 [Title 26 U.S.C.A.] Evidence of purpose to avoid income tax. (a) Unreasonable accumulation determinative of purpose. — For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.”
Ҥ 537 [Title 26, U.S.O.A.] Reasonable needs of the business.
“For purposes of this part, the term ‘reasonable needs of the business’ includes the reasonably anticipated needs of the business.”
. Among the statements cited as authoritative in appellant’s brief is the following from Mertens, Law of Federal Income Taxation, § 39.32: “The question of reasonable accumulation is one of fact to be decided upon the basis of principles of sound business management.”
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_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
The FALMOUTH NATIONAL BANK, Plaintiff, Appellant, v. TICOR TITLE INSURANCE COMPANY, Defendant, Appellee.
No. 90-1335.
United States Court of Appeals, First Circuit.
Heard Sept. 7, 1990.
Decided Dec. 12, 1990.
Douglas A. Hale,. with whom Wynn & Wynn, P.C., Raynham, Mass., was on brief, for plaintiff, appellant.
Mary E. O’Neal, with whom Masterman, Culbert & Tully, Boston, Mass., was on brief, for defendant, appellee.
Before CAMPBELL and TORRUELLA, Circuit Judges, and CAFF REY, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
CAFFREY, Senior District Judge.
This is an appeal of an order of the United States District Court for the Do-trict of Massachusetts dismissing the plaintiffs, The Falmouth National Bank (“Bank”), complaint without prejudice for failure to state a claim. The Bank brought this diversity action against the defendant, Ticor Title Insurance Company (“Ticor”), to recover for Ticor's failure to pay a loss sustained by the Bank as an insured under a mortgagee’s title insurance policy. The alleged loss resulted from an adverse decision by the Massachusetts Supreme Judicial Court in the case of Thibbitts v. Crowley, a case specifically covered by the policy. The complaint alleged two counts, one for breach of the title insurance policy and a second count for violation of Mass.Gen.L. ch. 93A, Section 11. Ticor moved for an order dismissing or, in the alternative, staying all proceedings until the disposition on remand of the case which was pending in state court. The district court allowed Ti-cor’s motion. On appeal, the Bank argues, as it did below, that Ticor’s liability was “definitely fixed” according to the terms of the policy when the Supreme Judicial Court rendered its decision, and therefore, that Ticor breached the policy by failing to pay within thirty days. Thus, the Bank argues that the district court erred as a matter of lav/ in dismissing the complaint as premature. Ticor, on the other hand, argues that its liability will not be “definitely fixed” until the final determination of the Bank’s losses on remand. After reviewing the record and the appellant’s arguments, we affirm the district court’s dismissal of the complaint without prejudice.
I.
The relevant facts are not in dispute. On May 22, 1985, John F. Thibbitts (“Buyer”) entered into a purchase and sale agreement with Patrick M. Crowley (“Seller”) for land located in Mashpee, Massachusetts. Thibbitts assigned his rights under the agreement to South Cape Industrial Park, Inc. (“South Cape”). Thereafter, a dispute arose, and the Buyer sued the Seller in state superior court. The parties entered into a consent judgment which called for a conveyance on or before March 9, 1987. Difficulties arose at the closing, and when it became clear that the sale would not be consummated on the date set by the consent judgment, the Buyer brought an ex parte motion to extend time for performance. The judge granted that ex parte motion, extending the closing date to March 23, 1987. The closing did in fact go through on that date, the Seller conveying the Mashpee property to the Buyer, South Cape, for $1,250,000.00. At the same time, the Buyer executed a note and granted the Bank a mortgage to secure the note in the amount of $2,150,000.00. The amount of this loan in excess of the purchase price was to be advanced as a construction loan according to a set payment schedule.
In April, shortly after the closing, the Seller appealed the judge’s order extending the time for performance under the consent judgment to the Massachusetts Appeals Court. Thereafter, the Supreme Judicial Court, on its own initiative, agreed to hear the appeal. The Bank did not learn of the Seller’s appeal until September, at which time it notified the title insurer, Chicago Title Company (“Chicago”), of the pending appeal. When Chicago refused to insure any further advances from the Bank to the Buyer, the Bank similarly refused to disburse any more money. To remedy this situation, the Buyer arranged to have Ticor provide title insurance to the Bank. This policy provided coverage up to the amount of $2,150,000.00, and in a special “Note I,” affirmatively insured against all loss, including attorney’s fees, arising out of the appeal, final decision, judgment or award of the state court action Thibbitts v. Crowley.
Subsequent to the issuance of this policy, the Supreme Judicial Court held that the judge below had lacked the authority to extend unilaterally the time for perform-anee under the consent judgment. Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035, 1038 (1989). The Supreme Judicial Court therefore remanded the case to Barnstable Superior Court for reconveyance and for such other proceedings as were necessary, including making adjustments for the passage of time and for the Buyer’s improvements to the property. Id. at 230, 539 N.E.2d at 1040.
As a result of the decision, the Bank made a claim to Ticor in a letter dated July 12, 1989 for payment of all losses. They set this amount at $1,915,878.46 plus interest, which represented the principal indebtedness outstanding on the Buyer’s loan obligation. Ticor responded to the letter stating that the claim was premature, and that it would not pay until the Barnstable Superior Court, on remand, established the amount of actual damages. When Ticor refused to pay, the Bank sent a demand letter pursuant to Mass.Gen.L. ch. 93A. Since that time, both Ticor and the Bank have sought and were granted permission to intervene in the state court action.
The Bank instituted this action in Federal District Court for the District of Massachusetts for payment under the policy. Ticor moved for dismissal on the grounds that the complaint was premature given the Supreme Judicial Court’s remand to the Barnstable Superior Court. The district court allowed that motion, holding that “liability” as used in the policy does not merely mean a determination regarding title, but also includes losses and damages, and therefore, that liability had not been “definitely fixed.”
It is this determination that the Bank is appealing. After a careful review of the record, we affirm the district court’s dismissal without prejudice of both counts of the complaint.
II.
The parties’ dispute is basically one of contract interpretation. Application of the terms of an insurance policy to established facts is a question of law. Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982); Robert Indus., Inc. v. Spence, 362 Mass. 751, 755, 291 N.E.2d 407, 409-10 (1973); Ober v. National Casualty Co., 318 Mass. 27, 31, 60 N.E.2d 90, 91 (1945). Thus, our review of the district court’s dismissal of the plaintiff’s complaint is plenary.
Title insurance policies are subject to the same rules of construction that apply to other types of insurance policies. Brown v. St. Paul Title Ins. Corp., 634 F.2d 1103, 1107 (8th Cir.1980); Lawyers Title Ins. Corp. v. Research Loan & Inv. Corp., 361 F.2d 764, 768 (8th Cir.1966); Sandler v. New Jersey Realty Title Ins. Co., 36 N.J. 471, 479, 178 A.2d 1, 5 (1962); 9 Appleman, Insurance Law and Practice § 5201 (1981). The overall goal in interpreting an insurance policy is to ascertain the expectations of the parties. Cullen Enter., Inc. v. Massachusetts Property Ins. Underwriting Ass’n, 399 Mass. 886, 900 n. 27, 507 N.E.2d 717, 725 n. 27 (1987); Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co., 530 F.Supp. 1110, 1118 (D.D.C.1982), aff'd in relevant part and rev’d in part, 743 F.2d 932 (D.C.Cir.1984).
In attempting to discern the expectations of the parties, Massachusetts courts look at the insurance contract as a whole in order to effectuate its overall purpose. Cullen Enter., Inc., 399 Mass. at 900 n. 27, 507 N.E.2d at 725 n. 27; Ober, 318 Mass. at 31, 60 N.E.2d at 91 (1945); see Lawyers Title Ins. Corp., 361 F.2d at 768. The corollary of this rule is that whenever possible, each word in an insurance policy should be considered and given some meaning. Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958).
When considering an insurance policy in its entirety, the general rule is that any ambiguity should be construed against the insurer as it is the insurer who supplies the contract. Marston v. American Employers Ins. Co., 439 F.2d 1035, 1039 (1st Cir.1971); Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 362, 553 N.E.2d 909, 914 (1990) (quoting Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686, 688 (1972)); Lawyers Title Ins. Corp., 361 F.2d at 768. The rationale behind interpreting ambiguities against the insurer would not seem to apply as strongly when the transaction is between two parties of equal sophistication and equal bargaining power. Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 21 n. 6 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983); First State Underwriters Agency of New England Reinsurance Corp. v. Travelers Ins. Co., 803 F.2d 1308, 1314 n. 5 (3d Cir.1986); Industrial Risk Insurers v. New Orleans Pub. Serv., 666 F.Supp. 874, 881 (E.D.La.1987); McNeilab, Inc. v. North River Ins. Co., 645 F.Supp. 525, 547 (D.N.J.1986), aff'd, 831 F.2d 287 (3d Cir.1987); D. Burke, Jr., Law of Title Insurance 59 (1986); see Commercial Ins. Co. of Newark, N.J. v. Gonzalez, 512 F.2d 1307, 1313 n. 11 (1st Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (1975).
We now turn to an application of these principles to the mortgagee title insurance policy in dispute. The first step is to examine the specific language of the provisions at issue. The Bank points to Paragraph 6 of the insurance policy, a standard provision in mortgagee policies. See Burke, supra, at 499. Paragraph 6 is entitled “Determination and Payment of Loss,” and reads as follows: “(c) When liability has been definitely fixed in accordance with the conditions of this policy, the loss or damage shall be payable within 30 days thereafter.” The Bank argues that liability was “definitely fixed” when the Supreme Judicial Court ordered the Buyer to reconvey the property to the Seller, and that the policy required Ticor to pay the loss within thirty days of that decision. Ticor argues, and the district court agreed, that liability would not be “definitely fixed” until the Barnstable Superior Court determined the damages on remand. The district court essentially equated loss with liability in interpreting Paragraph 6.
According to the canons of construction previously discussed, we must look at the meaning of the word “liability” in the context of the policy as a whole. Although 6(c) could be read as distinguishing between “loss” on one hand, and “liability” on the other, an examination of Paragraph 6 as a whole suggests that the two words are used synonymously. Paragraph 6 states that “(a) The liability of the Company under this policy shall in no case exceed the least of: (i) the actual loss of the insured claimant, or (ii) the amount of insurance stated in Schedule A_” Similarly, Endorsement No. 1 equates liability with the amount of loss, stating that “[liability ... is hereby increased ... bringing the total liability to $1,412,655.00.” Thus, the language of the policy does not clearly support the interpretation that the Bank suggests. Furthermore, the sophistication of the Bank and the fact that it negotiated specific terms of the policy lead us to believe that the general rule of interpreting ambiguities in favor of the insured does not apply with the same force here and therefore does not compel us to adopt the Bank’s interpretation.
The general rule regarding ambiguities also does not apply because the interpretation of the word “liability” propounded by the Bank conflicts with the basic characteristics of title insurance. First, title insurance is a contract of indemnity, not guarantee. Gibraltar Sav. v. Commonwealth Land Title Ins. Co., 905 F.2d 1203, 1205 (8th Cir.1990); Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d 571, 574 n. 2 (2d Cir.1976); Goode v. Federal Title and Ins. Corp., 162 So.2d 269, 270 (Fla.Dist.Ct.App.1964) (quoting Annotation, Measure, extent, or amount of recovery on policy of title insurance, 60 A.L.R.2d 972, 975-76); Green v. Evesham Corp., 179 N.J.Super. 105, 111, 430 A.2d 944, 947 (quoting Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d at 574), certif. denied, 87 N.J. 422, 434 A.2d 1095 (1981); Grunberger v. Iseson, 75 A.D.2d 329, 331, 429 N.Y.S.2d 209, 210 (1980); Burke, supra, at § 1.3.1. Thus, an insurer does not guarantee the state of the title, but rather, agrees to indemnify the insured for any loss. Burke, supra, at § 1.3.1. Another distinguishing characteristic of a contract to indemnify is that the loss must be actual; the mere existence of a defect covered by the policy in and of itself is not sufficient to justify recovery. Title & Trust Co. of Fla. v. Parker, 468 So.2d 520, 523 (Fla.Dist.Ct.App.1985); Ferrell v. Inter-County Title Guar. & Mortgage Co., 213 So.2d 518, 521 (Fla.Dist.Ct.App.1968); see Green, 179 N.J.Super. 105, 111, 430 A.2d at 947-48; Goode, 162 So.2d at 270; Burke, supra, at § 1.3.1. Currently, there is no determination of the exact amount of loss, if any, that Ticor owes the Bank.
The Bank’s argument regarding the meaning of “liability” also fails to recognize the important distinction between a title insurance policy issued to the owner of property, and a policy such as the one in question here, issued to a mortgagee who merely has a security interest in the property. See Bank of Miami Beach v. Lawyers’ Title Guar. Fund, 214 So.2d 95, 96 (Fla.Dist.Ct.App.1968), cert. dismissed, 239 So.2d 97 (1970); Goode, 162 So.2d at 270; CMEI, Inc. v. American Title Ins. Co., 447 So.2d 427, 428 (Fla.Dist.Ct.App.1984); Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Blackhawk Production Credit Association v. Chicago Title Insurance, 144 Wis.2d 68, 78-9, 423 N.W.2d 521, 525 (1988); Burke, supra, at § 2.2. This distinction relates to the definition and measurement of the loss. More specifically, an owner-insured is entitled to the full market value of the property, a value that is immediately diminished by the presence of title defects.
On the contrary, a mortgagee-insured’s loss cannot be determined unless the note is not repaid and the security for the mortgage proves inadequate. Blackhawk Prod. Credit Ass’n v. Chicago Title Ins. Co., 144 Wis.2d at 78-79, 423 N.W.2d at 525 (1988); CMEI, Inc., 447 So.2d at 428; Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Burke, supra, at § 2.2. Such is the case because it is only after the insurer or the insured sues on the note and the debtor fails to pay, that the actual loss can be determined. Burke, supra, at § 2.2. Put another way, it is not the mortgage note that is insured, but rather, what is insured is the loss resulting from a defect in the security. Southwest Title Ins. Co. v. Northland Bldg. Corp., 552 S.W.2d 425, 430 (Tex.1977). In the case at hand, the exact amount of this actual loss remains uncertain. The Supreme Judicial Court remanded the case for a determination of the loss, taking into consideration the passage of time and the Buyer’s improvements to the property. Until that determination, there is no reconveyance, no repayment of the purchase price from the Seller to the Buyer, and no way to ascertain the dollar amount of the Bank’s impaired security.
The plaintiffs attempt to circumvent this result by arguing that Ticor can pay the outstanding principal, interest and late charges due under the note and subrogate to the Bank’s rights. This argument is unavailing. Paragraph 5 of the policy states in relevant part that “[Ticor] shall have the option to pay or otherwise settle ... any claim insured against.” Furthermore, it states that “[i]n case loss or damage is claimed under this policy by an insured, [Ticor] shall have the further option to purchase such indebtedness for the amount owing thereon_” Upon exercising the option, Ticor becomes subrogated to the Bank’s rights according to Paragraph 10. The language of the policy makes it clear that subrogation is an option to be exercised at Ticor’s discretion. To require Ticor to pay at this juncture would have the effect of amending the policy by making subrogation mandatory rather than optional.
There are two cases not raised in the parties’ briefs that shed additional light on the meaning of Paragraph 6 entitled “Determination and Payment of Loss.” In McHenry Savings Bank v. Pioneer National Title Insurance Co., the Illinois Appellate Court examined Paragraph 6 of a mortgagee’s title insurance policy, the language of which was identical to Paragraph 6 of Ticor’s policy. 186 Ill.App.3d 238, 132 Ill.Dec. 617, 540 N.E.2d 357 (1989). In reversing the lower court’s grant of the insurer’s motion for summary judgment, the court emphasized that the mortgagee policy only insured against “actual loss.” On the point of actual loss, the court stated that there was an issue of material fact given that the record did not indicate if the property in question had been sold, nor did it indicate what its present value was. The court then equated “loss” with “liability” holding that “[wjithout such factual determinations it is impossible to ascertain what actual loss, if any, plaintiff has suffered as a result of the invalid mortgage lien, and, therefore it cannot be determined what the extent of defendant’s liability is under paragraph 6.” Id. 132 Ill.Dec. at 621, 540 N.E.2d at 361. This conclusion applies with equal force in the situation at hand, where the extent of liability will not be determined until the conclusion of the proceedings in Barnstable Superior Court.
The second case addresses the specific language of Paragraph 6(c) concerning when liability is “definitely fixed.” In Davis v. Stewart Title Guar. Co., the Missouri Court of Appeals for the Western District addressed the question of whether the insurer had vexatiously refused to pay under a title insurance policy issued on owned property. 726 S.W.2d 839, 842 (Mo.App.1987). When the plaintiff attempted to sell the property to an abutting church, he was told that the church had an easement for parking over part of the tract. Upon learning of the right of easement asserted by the church, the plaintiff contacted the title insurer and requested that it take action. The insurer refused and the plaintiff therefore brought an action on his own against the church for unlawful de-tainer.
The title insurance policy in Davis provided that when presented with a claim of an adverse interest to the insured property, the insurer had the option of pursuing a quiet title action without unreasonable delay, or of paying any loss resulting from the defect. Davis, 726 S.W.2d at 845. Regarding the timing of payment of the loss, the policy contained precisely the same language as Ticor’s policy, namely, that “[wjhen liability has been definitely fixed ... the loss or damage shall be payable within 30 days thereafter.” Davis, 726 S.W.2d at 845 n. 2. In a lengthy opinion, the court held that the liability of the insurer was definitely fixed when it refused to take any action to quiet title. Thus, the court held that an offer of payment of the loss was due thirty days thereafter. Davis, 726 S.W.2d at 855.
At first glance, this holding would seem to lend support to the Bank’s argument that “liability” and “loss” are not synonymous as liability was “fixed” in Davis before the loss was calculated. Upon closer examination, however, Davis is distinguishable because the policy in Davis was an owner’s policy and not a mortgagee’s policy such as that issued by Ticor. As discussed above, there are substantive differences between the two types of policies. The interest of an owner, such as the plaintiff in Davis, is immediately diminished by the presence of a defect, in that case, the easement. CMEI, 447 So.2d at 428; Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Burke, supra, at § 2.2. The policy issued by Ticor, however, is a mortgagee's policy which means that the actual loss can only be determined after the Buyer is sued on the outstanding note and fails to pay the judgment. See Burke, supra, at § 2.2. This determination will be made by way of the complaint in intervention asserted by the Bank for payment of the note. We are not unsympathetic to the plaintiffs concern that the loss may exceed the policy’s limit while the state action is pending. Until that action is concluded, however, the amount owed by Ticor is undetermined.
Our conclusion that the Bank’s action in this case was premature is supported by the existence of Paragraph 7 which states that “[n]o claim shall arise or be maintainable under this policy ... in the event of litigation until there has been a final determination by a court of competent jurisdiction_” According to the principles of construction discussed previously, we must assume that this provision can be read together with Note I which expanded the standard coverage to include the pending state case. Reading the two provisions together supports Ticor’s position, as “final determination” clauses refer to a “final determination of any litigation concerning the subject matter of a claim.” Burke, supra, at § 9.4.3 (Supp.1989) (emphasis added); see Eureka, 530 F.Supp. at 1118 n. 8 (no liability until “the litigation was finally resolved”). “Any litigation” would include the Supreme Judicial Court’s remand to Barnstable Superior Court in Thibbitts v. Crowley.
This construction of the “final determination” provision in Ticor’s policy is consistent with those cases addressing the issue of when a judgment is final for appeal purposes. The United States Supreme Court has held that a final decision is one that ends litigation and leaves the court with nothing to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Thus, a determination of liability is not a final decision where the issue of damages remains unresolved. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976); Director, Office of Workers’ Compensation Programs, U.S. Dep’t of Labor v. Bath Iron Works Corp., 853 F.2d 11, 15 (1st Cir.1988) (rejecting argument that because remand involved a purely ministerial arithmetic function, the judgment was final).
Despite our conclusion that the Bank’s action in this case was premature, it is worth noting that, although rare, it is possible to negotiate a title insurance policy provision that permits recovery for losses prior to a final determination of litigation. See, e.g., Eureka, 530 F.Supp. at 1118. For example, the parties in one case drafted “Note II” of an owner’s title insurance policy to encompass loss or damage arising out of the enforcement or attempted enforcement of rights by tenants in the building covered by the policy. Id. at 1114. The court had to resolve the conflict between Note II and a “final determination” clause identical to that in Ticor’s policy.
The court held that standing alone, the “final determination” provision meant that the insurer would not be liable for any amount until “litigation was finally resolved.” Id. at 1118 n. 8. Unlike the present situation, however, the “final determination” provision could not be reconciled with “Note II.” Given that the parties had specifically negotiated the unique coverage of Note II, the court held that Note II prevailed, and the company was liable for losses regardless of the ultimate outcome of the tenants’ action. Id. at 1118. The court noted, however, that coverage of interim losses as provided for by the parties in Eureka was novel. Id. at 1117. Moreover, it is worth pointing out that Eureka involved an owner’s rather than a mortgagee’s policy of title insurance.
It follows that because there has been no breach of the title insurance contract, the plaintiffs have also failed to state a claim for violation of Mass.Gen.L. ch. 93A. Thus, that count of the complaint was also properly dismissed.
In sum, and for all of the reasons stated above, the district court did not err in dismissing without prejudice as premature the Bank’s action for payment under the title insurance policy and for violation of Mass. Gen.L. ch. 93A. Accordingly, the district court’s judgment is hereby affirmed. Costs to appellees.
. Honorable Douglas P. Woodlock, United States District Judge, presiding.
. Patrick M. Crowley was acting as Trustee of the Mashpee Industrial Park Realty Trust. He was replaced by Richard P. Crowley, who at the closing, conveyed the Mashpee property to South Cape. For simplicity purposes, the term "Buyer” shall be used to refer to both Thibbitts and South Cape.
. The court quoted Paragraph 6 in "pertinent part,” namely 6(a)(i) and (ii) which state:
6. Determination and Payment of Loss
(a) The liability of the Company under this policy shall in no case exceed the least of:
(i) the actual loss of the insured claimant; or
(ii) the amount of insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in paragraph 2(a) hereof, or
(iii) the amount of the indebtedness secured by the insured mortgage as determined under paragraph 8 hereof, at the time the loss or damage insured against hereunder occurs, together with interest thereon.
. The opinion in Davis states that the plaintiff received the land as security for a promissory note. Davis, 726 S.W.2d at 842. Nonetheless the opinion makes it clear that the policy was "issued on owned property.” Likewise, in a previous appeal, the court stated that the plaintiff took out the title policy in conjunction with the real estate purchase. See Davis v. Stewart Title Guar. Co., 695 S.W.2d 164, 165 (Mo.App.1985). The plaintiff would not be considered an owner simply by virtue of a security arrangement given that Missouri follows the lien theory of mortgages. See R.L. Sweet Lumber Co. v. E.L. Lane, 513 S.W.2d 365, 368 (Mo.1974).
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_3_3
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
The AMERICAN PETROLEUM INSTITUTE et al., Petitioners, The Manufacturing Chemists Association and the Chemical Specialties Manufacturers Association, Intervenors, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al., Respondents, Industrial Union Department, AFL-CIO, Intervenor.
Nos. 78-1253, 78-1257, 78-1486, 78-1676, 78-1677, 78-1707 and 78-1745.
United States Court of Appeals, Fifth Circuit.
Oct. 5, 1978.
Liskow & Lewis, Gene W. Lafitte, New Orleans, La., Kirkland, Ellis & Rowe, Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for petitioners.
Andrew T. A. MacDonald, Washington, D. C., for Manufacturing Chemists Assoc.
Neil J. King, Washington, D. C., for American Iron & Steel Inst.
Robert L. Ackerly, Marilyn L. O’Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc.
Carin A. Clauss, Sol. of Labor, Nancy L. Southard, Allen H. Feldman, U. S. Dept. of Labor, William S. McLaughlin, Executive Secy., OSHRC, Washington, D. C., for intervenors.
Gene W. Lafitte, New Orleans, La., Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for American Petroleum Institute, et al.
Robert P. Stranahan, Jr., Washington, D. C., for American Iron & Steel Institute, etc., et al.
Robert R. Bonczek, John F. Dickey, Wilmington, Del., for E. I. duPont de Nemours & Co.
Harold B. Scoggins, Jr., Gen. Counsel, Independent Petroleum Assoc. of America, Washington, D. C., for Independent Petroleum Institute, et al.
Charles F. Lettow, Lee C. Buchheit, Price O. Gielen, Washington, D. C., for Rubber Manufacturers Assoc., Inc., et al., and Armstrong Rubber Co., and Uniroyal, Inc.
John H. Pickering, Andrew T. A. MacDonald, Neil J. King, Washington, D. C., for Manufacturing Chemists Assoc., American Iron & Steel Institute, et al.
Robert L. Ackerly, Marilyn L. O’Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc.
Carin A. Clauss, Nancy L. Southard, Benjamin W. Mintz, Assoc. Sol., Sol. of Labor, Dept. of Labor, Washington, D. C., for Department of Labor.
William S. McLaughlin, Executive Secretary, OSHRC, Washington, D. C., for Occupational Safety and Health Adm.
George D. Palmer, III, Associate Regional Solicitor, Dept. of Labor, Birmingham, Ala., Ronald M. Gaswirth, Assoc. Regional Sol., Dept. of Labor, Dallas, Tex., Eula Bingham, Asst. Sec. of Labor, OSHRC, Dept. of Labor, Washington, D. C., for Dept. of Labor.
F. Ray Marshall, Secretary of Labor, U. S. Dept. of Labor, Washington, D. C., for Dept. of Labor.
Griffin B. Bell, Atty. Gen., Dept. of Justice, Washington, D. C., for Dept. of Justice.
Jeremiah Collins, George H. Cohen, Washington, D. C., for Industrial Union Dept. AFL-CIO.
Before COLEMAN, CLARK, and TJO-FLAT, Circuit Judges.
CHARLES CLARK, Circuit Judge:
This case presents consolidated petitions for review of a new health standard limiting occupational exposure to benzene promulgated by the Occupational Safety and Health Administration of the Department of Labor (OSHA), pursuant to the Occupational Safety and Health Act, 29 U.S.C.A. § 651 et seq. (1975) (the Act). The basis for the standard is OSHA’s determination that benzene is a carcinogen for which there is no known safe level of exposure. Briefly, the standard requires employers to assure that no employee is exposed to an airborne concentration of benzene in excess of one part benzene per million parts of air (1 ppm) averaged over an eight-hour day; it requires employers to assure that no employee is exposed to dermal contact with liquid benzene; and it requires employers to assure that caution labels are affixed to all containers of products containing benzene and that the labels remain affixed when the product leaves the employer’s workplace. In addition, the standard imposes numerous compliance requirements for “each place of employment where ben-zené is produced, reacted, released, packaged, repackaged, stored, transported, handled, or used,” with certain exceptions. These requirements include initial and continual exposure monitoring, engineering and work practice controls to reduce and maintain exposure below the permissible level, respiratory protection to prevent excessive exposure in limited situations, protective clothing and equipment to prevent dermal contact with liquid benzene, initial and continual medical surveillance, employee training programs, and retention of records regarding exposure monitoring and medical surveillance.
The petitioning producers and users of benzene and benzene-containing products principally attack the reduction of the permissible exposure limit to 1 ppm, the prohibition of dermal contact with liquids containing benzene, and the labeling requirements for such liquids. The petitioners also attack several of the ancillary provisions of the standard, including its broad scope, the monitoring and medical surveillance' requirements, and the specification of mandatory engineering and work practice controls.
I.
The Act authorizes the Secretary of Labor to promulgate occupational safety and health standards. 29 U.S.C.A. § 655. An “occupational safety and health standard” is defined as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment” 29 U.S.C.A. § 652(8). In'promulgating standards dealing with toxic materials, such as benzene, the Secretary is required to
set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity evpn if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
29 U.S.C.A. § 655(b)(5). When necessary or appropriate, standards may prescribe labels or other forms of warning, protective equipment, control or technological procedures, exposure monitoring, and medical examinations. 29 U.S.C.A. § 655(b)(7).
Judicial review of occupational safety and health standards is authorized by 29 U.S.C.A. § 655(f), and on review “[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” Several courts, including this one, have pointed out the problems involved in attempting to apply the traditional substantial evidence test in assessing OSHA standards resulting from informal rulemaking. E. g., Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 347-50 (2d Cir. 1973); Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 127-29 (5th Cir. 1974); Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 336-340, 499 F.2d 467, 472-76 (1974); Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155, 1158-60 (3d Cir. 1974). The problem centers not on how to apply the test to factual findings subject to evidentiary development, but rather on how to review legislative-like policy judgments. With respect to the former, the substantial evidence standard provided in the statute clearly is applicable. See, e. g., Industrial Union Department, AFL-CIO v. Hodgson, supra, 499 F.2d at 474; American Iron & Steel Institute, et al. v. OSHA, 577 F.2d 825, No. 76-2358 et al. (3d Cir., filed March 28, 1978). Policy choices, though not so susceptible to verification or refutation by the record, must be scrutinized nevertheless. See Associated Industries of New York, Inc. v. United States Department of Labor, supra, 487 F.2d at 348. Although the courts have differed in their articulation of the standard of review of these policy judgments, they have required the Secretary’s action to be consistent with the statutory language and purpose. Synthetic Organic Chemical Manufacturers Association v. Brennan, supra, 503 F.2d at 1159. As this court stated in assessing an emergency temporary standard in Florida Peach Growers, “it seems clear that even with the required substantial evidence test, our review basically must determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him.” 489 F.2d at 129. This includes, of course, a review of whether the Secretary exercised his decisionmaking power within the limits imposed by Congress.
II.
Benzene is a ubiquitous hydrocarbon compound (CeHe) that is manufactured for a wide variety of industrial uses. The petrochemical and petroleum refining industries are responsible for 94 percent of the total domestic production of benzene, and the steel industry produces the remaining 6 percent primarily as a by-product of the coking process. The primary use of benzene is as a feedstock in the manufacture of other organic chemicals; it is also used in the manufacture of detergents, pesticides, solvents, and paint, and as a solvent and reactant in chemical laboratories. Industries currently using benzene include the chemical, printing, lithograph, rubber cements, rubber fabricating, paint, varnish, stain removers, adhesives, and petroleum industries. Among the products that contain benzene are motor fuels such as gasoline, which contain up to 2 percent benzene.
Benzene has been recognized since 1900 as a toxic substance capable of producing acute and chronic nonmalignant effects in humans. When benzene vapors are inhaled, the benzene diffuses rapidly through the lungs and is quickly absorbed into the blood. Acute circulatory failure resulting in death within minutes often accompanies exposure to benzene concentrations as high as 20,000 ppm. Other acute effects of exposure to milder, though still high (250-500 ppm), concentrations of benzene include vertigo, nervous excitation, headache, nausea, and breathlessness. When exposure is stopped, rapid recovery from these symptoms usually occurs.
The most common nonmalignant effects of chronic exposure to low benzene concentration levels are a non-functioning bone marrow and deficiencies in the formed elements of the blood. The degree of severity of such disorders ranges from mild and transient episodes to severe and fatal effects. Chromosomal aberrations have also been associated with chronic benzene exposure, and dermatitis or other dermal infections can be caused by direct bodily contact with liquid benzene.
As a result of its toxicity, benzene’s history has been one of regulation. In 1946, the American Conference of Governmental Industrial Hygienists recommended a threshold limit value for benzene exposure of 100 ppm. This value was reduced to 50 ppm in 1947, to 35 ppm in 1948, to 25 ppm in 1963, and to 10 ppm in 1974. The American National Standards Institute adopted a threshold limit value of 10 ppm in 1969, which OSHA adopted in 1971 without rule-making under the authority of 29 U.S.C.A. § 655(a). This standard, codified at 29 C.F.R. § 1910.1000 Table Z-2 (1977) and still in effect, was based on the nonmalignant toxic effects of benzene exposure and not on any possible leukemia hazard.
Widely scattered through the benzene literature are studies suggesting a link between benzene exposure and leukemia, a usually fatal cancer of the blood-forming organs. During the 1970’s several additional studies reported a statistically significant increased risk of leukemia among workers occupationally exposed to high levels of benzene and concluded benzene was a leuk-emogen. As a result of this new evidence, OSHA began procedures which culminated with the present proposal, among other things, to reduce the permissible exposure level from 10 ppm to 1 ppm.
In January 1977 OSHA issued voluntary Guidelines for Control of Occupational Exposure to Benzene recommending exposure not to exceed an eight-hour time-weighted average of 1 ppm. An Emergency Temporary Standard for Occupational Exposure to Benzene also providing for a reduction in the permissible exposure limit to 1 ppm was issued in May 1977, but this standard never went into effect because of judicial challenges. The proposed permanent benzene standard, which was based on OSHA’s determination that the available scientific evidence established that employee.exposure to benzene presents a leukemia hazard and that exposure therefore should be limited to the lowest feasible level, was published on May 27,1977. This proposal provided for a reduction in the permissible exposure limit from 10 ppm to 1 ppm and established requirements relating to dermal and eye contact, exposure monitoring, medical surveillance, methods of compliance, labeling, and recordkeeping. Public hearings were held July 19 through August 10, 1977, at which 95 witnesses testified. In addition, numerous exhibits and documents were submitted to OSHA as part of the rulemak-ing record. The resulting permanent benzene standard was promulgated on February 3 and published on February 10, 1978, with a March 13, 1978 effective date.
III.
The American Petroleum Institute on behalf of itself and member companies filed petitions for review of the standard in this court on February 2 and February 3, 1978. The American Iron and Steel Institute, the Independent Petroleum Association of America, the Manufacturing Chemists Association, the Rubber Manufacturers Association, the Armstrong Rubber Company and Uniroyal, Inc., E. I. Du Pont de Nem-ours and Company, and the Chemical Specialties Manufacturers Association subsequently either intervened on behalf of the American Petroleum Institute or filed original petitions for review in other circuits that were transferred to this circuit and consolidated with the American Petroleum Institute case. In addition, the Industrial Union Department, AFL-CIO, intervened on behalf of OSHA in support of the standard.
The petitioners filed motions for a stay of the standard pending review on March 10, 1978, and on March 13 a judge of this court issued a temporary stay of the standard pending a hearing before a three-judge panel. The issues concerning the stay were fully briefed by the parties on an expedited basis, and after hearing oral argument a panel of the court on April 18,1978, ordered a stay of the standard to be continued pending disposition of the petitions for review.
The principal argument of the petitioning producers of benzene and benzene-containing products is that substantial evidence and the best available evidence do not show that the reduction of the permissible exposure limit from 10 ppm to 1 ppm is reasonably necessary or appropriate to provide safe or healthful employment and places of employment. These petitioners also attack several of the ancillary provisions of the standard, including its broad scope, the monitoring and medical surveillance requirements, and the specification of mandatory primary means of compliance, as not being supported by substantial evidence that they are reasonably necessary or appropriate to provide safe or healthful employment. The attack of the petitioning users of benzene and benzene-containing products is two-fold: (i) They contend that substantial evidence and the best available evidence do not show that the dermal contact prohibition is reasonably necessary or appropriate to provide safe or healthful employment, and that the dermal contact prohibition is not feasible; and (ii) they contend that substantial evidence does not show the labeling requirement to be reasonably necessary or appropriate to provide safe or healthful employment, that the labeling requirement is not feasible, and that the labeling requirement is beyond OSHA’s jurisdiction. OSHA, in addition to arguing that substantial evidence, the best available evidence, feasibility considerations, and its statutory mandate to protect workers justify the standard in its entirety, contends that Congress imposed on it no substantive requirement to promulgate only standards that are reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
On June 21, 1978, the day before oral argument, OSHA promulgated an amended standard to exempt from the scope of the benzene standard work operations where the only exposure to benzene is from liquid mixtures containing 0.5 percent (0.1 percent after June 28, 1981) or less of benzene by volume, and to exempt from the labeling requirements liquid mixtures containing 5.0 percent or less benzene by volume which were packaged before June 27, 1978. 43 Fed.Reg. 27,971 (1978). Although the proposed emergency temporary standard and the proposed permanent standard had exempted work operations where exposure to benzene resulted only from liquid mixtures containing 1 percent or less of benzene by volume, the permanent standard that was promulgated contained no such exemption. As a result, the permanent standard prohibited all dermal contact with liquids containing any amount of benzene and it imposed the labeling requirements on all such liquids. Several industry groups petitioned OSHA for a stay of the dermal contact prohibition and labeling requirements as they applied to liquids containing small amounts of benzene. OSHA subsequently granted a stay as to work operations where the sole exposure to benzene was from mixtures containing 0.1 percent or less of benzene and instituted a new rulemaking proceeding which resulted in the June 21, 1978 amendment.
The court called for supplemental briefing to address the effect of this amendment on the issues already briefed and argued. This briefing has been completed, and it appears that the major effect of the amendment is on the arguments regarding the feasibility of the dermal contact and labeling provisions. Since the considerations associated with the feasibility of those provisions have been significantly changed by the amendments, we do not address the merits of the feasibility arguments in this opinion.
IV.
OSHA justifies the reduction of the permissible exposure limit for benzene from 10 ppm to 1 ppm by coupling two factual findings, which it contends are supported by substantial evidence in the record, with a regulatory policy which OSHA contends is required by its mandate to protect workers. The factual findings, are that benzene causes leukemia and that there presently exists no known safe level for benzene exposure. The regulatory policy is to limit employee exposure to carcinogens to the lowest feasible level.
The producer petitioners, in addition to attacking the factual finding that no known safe level for benzene exposure exists, contend that OSHA has failed to meet a burden which the Act imposes of determining that the reduction of the permissible exposure limit from 10 ppm to 1 ppm is “reasonably necessary” to provide a safe workplace. In support of the latter contention, these petitioners point to this circuit’s recent decision in Aqua Slide ‘N’ Dive Corp. v. Consumer Product Safety Commission, 569 F.2d 831 (5th Cir. 1978), and assert that OSHA failed to assess benefits expected to be achieved by the standard in light of the expected costs of compliance. The petitioners argue that by defining an “occupational safety and health standard” as one requiring conditions “reasonably necessary” to provide safe or healthful places of employment, 29 U.S.C.A. § 652(8), Congress recognized that safety and health resources are not unlimited and required OSHA somewhere in its decisionmaking process to (1) attempt to determine the extent to which its standards will benefit workers, and (2) decide whether the projected benefits justify the costs of compliance with the standard. Only if all standards are subjected to such assessment, argue the petitioners, can OSHA assure maximum benefit from the finite amount industry can expend on safety and health and thus carry out Congress’ overriding policy “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C.A. § 651(b). Since OSHA has not made a valid determination that reducing the permissible exposure level of benzene from 10 ppm to 1 ppm is reasonably necessary to protect workers from a risk of leukemia, the producers ask us to set that part of the standard aside.
OSHA denies that the “reasonably necessary” language imposes any substantive obligation on it in promulgating standards. OSHA would distinguish Aqua Slide, which dealt with the Consumer Product Safety Act, on the basis that the “reasonably necessary” language in that Act appeared as a part of the sections which dealt with the agency’s process of setting standards, 15 U.S.C.A. §§ 2056(a), 2058(c)(2)(A), whereas the “reasonably necessary” counterpart in the act it administers appears only in the section which defines the type of standard it may promulgate.
In authorizing the Consumer Product Safety Commission to promulgate safety standards, Congress provided that “[a]ny requirement of such a standard shall be reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product.” 15 U.S.C.A. § 2056(a). It also required the Consumer Product Safety Commission to make a specific finding that its rules were “reasonably necessary to eliminate or reduce an unreasonable risk of injury.” 15 U.S.C.A. § 2058(c)(2)(A). Rather than following this format, the Occupational Safety and Health Act defines the occupational safety and health standard it authorizes as one “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C.A. § 652(8). We decline to construe the precisely similar requirements of these two Acts differently or to read words out of the OSHA legislation. The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact.
OSHA next argues that even if the conditions required by occupational safety and health standards must be reasonably necessary to provide safe or healthful places of employment, the Act still imposes on OSHA no obligation to undertake a cost-benefit analysis with respect to the standards it promulgates. OSHA argues that 29 U.S.C.A. § 655(b)(5) defines when conditions imposed by a standard dealing with toxic materials are reasonably necessary. It urges that the emphasis of that section on making of a standard “which most adequately assures... that no employee will suffer material impairment of health. [from] regular exposure. for the period of his working life,” overcomes any requirement to make a cost-benefit analysis. Nevertheless, OSHA contends that it did undertake economic analyses of both costs and benefits associated with the standard as required by Aqua Slide, and that after assessing those analyses it promulgated the standard.
Although 29 U.S.C.A. § 655(b)(5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the contrary, that section requires standards to be feasible, and it contains a number of pragmatic limitations in the form of specific kinds of information OSHA must consider in enacting standards dealing with toxic materials. Those include “the best available evidence,” “research, demonstrations, experiments, and such other information as may be appropriate,” “the latest available scientific data in the field,” and “experience gained under this and other health and safety laws.” Moreover, in standards dealing with toxic materials, just as with all other occupational safety and health standards, the conditions and other requirements imposed by the standard must be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C.A. § 652(8).
Since the purpose of the Act to protect workers from dangerous conditions of employment is parallel to the purpose of the Consumer Product Safety Act to protect consumers from dangerous products, we must be guided by 4qua Slide in determining whether OSHA has met its burden of showing that the benzene standard is reasonably necessary to protect workers from a leukemia hazard. There we said:
In evaluating the “reasonable necessity” for a standard, the Commission has a duty to take a hard look, not only at the nature and severity of the risk, but also at the potential the standard has for reducing the severity or frequency of the injury, and the effect the standard would have oh the utility, cost or availability of the product.
569 F.2d at 844; see also D. D. Bean & Sons v. Consumer Product Safety Commission, 574 F.2d 643 (1st Cir. 1978). Before it regulates, the agency must show that a hazard' exists and that its regulation will reduce the risk from the hazard, for “no [occupational safety and health] standard would be expected to impose added costs or inconvenience... unless there is reasonable assurance that the frequency or severity of injuries or illnesses will be reduced.” 569 F.2d at 839. More importantly for today’s case, Aqua Slide also requires the agency to assess the expected benefits in light of the burdens to be imposed by the standard. Although the agency does not have to conduct an elaborate cost-benefit analysis, 569 F.2d at 840, it does have to determine whether the benefits expected from the standard bear a reasonable relationship to the costs imposed by the standard. 569 F.2d at 842.
The only way to tell whether the relationship between the benefits and costs of the benzene standard is reasonable is to estimate the extent of'the expected benefits and costs. See 569 F.2d at 843. OSHA did this with respect to costs by engaging a consulting firm to assess the expected compliance costs and economic feasibility of the proposed standard. 43 Fed.Reg. 5934-39. Based on this study and other evidence, OSHA estimated compliance costs for all affected industries to be $187-205 million first year operating costs, $266 million engineering control costs, and $34 million recurring annual costs. OSHA determined these costs to be feasible since they would not threaten the financial welfare of the affected firms or the general economy. However, OSHA disclaimed any obligation to balance these costs against expected benefits. 43 Fed.Reg. 5940-41. Rather than attempting to measure the extent to which the leukemia hazard of benzene exposure would be reduced by lowering the permissible exposure limit from 10 ppm to 1 ppm, OSHA merely assumed that benefits from the reduction “may be appreciable.” It based this assumption on a finding that benzene was unsafe at any level and its conclusion that exposures to lower levels of toxic materials would be safer than exposure to higher levels.
OSHA’s fail-back position attempts to justify its standard as being reasonably necessary within the meaning of Aqua Slide. It contends the standard promises appreciable benefits at a cost which industry can absorb. This justification is deficient in one crucial way: substantial evidence does not support OSHA’s conclusion that benefits are likely to be appreciable. Without an estimate of benefits supported by substantial evidence, OSHA is unable to justify a finding that the benefits to be realized from the standard bear a reasonable relationship to its one-half billion dollar price tag.
OSHA’s assumption that the standard is likely to result in benefits is- not unsupported. The divided opinion in the scientific community over the existence or not of safe threshold levels of exposure to carcinogens provides substantial evidence which would support the finding that exposure to benzene at the present level of 10 ppm poses some leukemia risk. The general agreement in the scientific community that exposure to carcinogens at low levels is safer than exposure at higher levels permits the further factual deduction that reducing the permissible exposure limit from 10 ppm to 1 ppm will result in some benefit. This finding and deduction, however, does not yield the conclusion that measurable benefits will result, and OSHA is unable to point to any studies or projections supporting such a finding. As we noted in Aqua Slide, mere rationality is not equivalent to substantial evidence that conditions required by standards are reasonably necessary. 569 F.2d at 841. The lack of substantial evidence of discernable benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971. OSHA’s assertion that benefits from reducing the permissible exposure limit from 10 ppm to 1 ppm are likely to be appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies involving these levels or sound statistical projections from the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA’s action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order to determine whether those benefits bear a reasonable relationship to the standard’s demonstrably high costs.
We are not persuaded by OSHA’s argument that this standard should be upheld since the lack of knowledge concerning the effects of exposure to benzene at low levels makes an estimate of benefits expected from reducing the permissible exposure level impossible. The statute requires all conditions imposed by a standard to be reasonably necessary to provide safe or healthful employment, and it requires decisions to be based on “the best available evidence,” “research, demonstrations, experiments, and such other information as may be appropriate,” “the latest scientific data in the field,” and “experience gained under this and other health and safety laws.” By requiring the consideration of such kinds of /information, Congress provided that OSHA ¡regulate on the basis of knowledge rather I than on the unknown. But see Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1801, 1308 (2d Cir. 1975). Until OSHA can provide substantial evidence that the benefits to be achieved by reducing the permissible exposure limit from 10 ppm to 1 ppm bear a reasonable relationship to the costs imposed by the reduction, it cannot show that the standard is reasonably necessary to provide safe or healthful workplaces.
This does not mean that OSHA must wait until deaths occur as a result of exposure at levels below 10 ppm before it may validly promulgate a standard reducing the permissible exposure limit. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 132 (5th Cir. 1974). Nevertheless, OSHA must have some factual basis for an estimate of expected benefits before it can determine that a one-half billion dollar standard is reasonably necessary. For example, when studies of the effects of human exposure to benzene at higher concentration levels in the past are sufficient to enable a dose-response curve to be charted that can reasonably be projected to the lower exposure levels, or when studies of the effects of animal exposure to benzene are sufficient to make projections of the risks involved with exposure at low levels, then OSHA will be able to make rough but educated estimates of the extent of benefits expected from reducing the permissible exposure level from 10 ppm to 1 ppm. Until such estimates are possible, OSHA does not have sufficient information to determine that a standard such as the one under review which it can only say might protect some worker from a leukemia risk is reasonably necessary.
We will not attempt to reconcile our decision with the cases from other circuits which uphold other standards regulating exposure to carcinogens. See Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974) (asbestos dust standard); Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975) (vinyl chloride standard); American Iron & Steel Institute et al. v. OSHA, 577 F.2d 825, No. 76-2358 et al. (3d Cir., filed March 28, 1978) (coke oven emission standard). Those opinions did not address what Congress meant by requiring the conditions imposed by standards to be reasonably necessary to provide safe or healthful places of employment. In this circuit, under our Agua Slide decision, substantial evidence must support a finding that those conditions are reasonably necessary, a showing that OSHA has not made. In addition, those cases were decided on their own records. Without critical analysis of what was established in those proceedings, we hold in today’s case that Congress intended for OSHA to regulate on the basis of more knowledge and fewer assumptions than this record reflects.
OSHA’s failure to provide an estimate of expected benefits for reducing the permissi-f ble exposure limit, supported by substantial '■ evidence, makes it impossible to assess the reasonableness of the relationship between expected costs and benefits. This failure means that the required support is lacking to show reasonable necessity for the standard promulgated. Consequently, the reduction of the permissible exposure limit from 10 ppm to 1 ppm and all other parts of the standard geared to the 1 ppm level must be set aside.
V.
OSHA’s prohibition of dermal contact with benzene is based on “OSHA’s policy that, in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) be limited to the extent feasible.” 43 Fed.Reg. 5948. OSHA, while acknowledging that the record evidence on the effect of benzene on the skin is “extremely limited” and that the few studies in the area “are not definitive as to the extent of benzene that is absorbed through the intact skin or as to the comparative rate of absorption through damaged skin,” 43 Fed.Reg. 5948-49, nevertheless decided to prohibit dermal contact with liquids containing benzene. In arriving at this decision OSHA relied on animal studies and one human study suggesting that benzene is absorbed through intact skin, on the assumption that benzene would more readily be absorbed through damaged skin than undamaged skin, and on the belief that substances containing benzene are readily absorbed through the skin and act as vehicles for absorption of benzene.
OSHA now seeks in part to justify this prohibition as an adjunct to the permissible exposure limit for airborne concentrations of benzene and because of a concern for dermatitis. To the extent that the dermal contact prohibition is an adjunct of the permissible exposure limit, it would have to be set aside along with the permissible exposure limit. The concern for dermatitis, on the other hand, appears to be a post hoc rationalization for the dermal contact prohibition since it was not a significant part of OSHA’s reasoning process that led to this provision. The requirements of this standard were based on the possible leukemia hazard associated with exposure to benzene, 43 Fed.Reg. 5918, 5948, and our review must be of the reasoning process of the agency at the time it promulgated the standard based on the record before it. Dry Color Manufacturers’ Association, Inc. v. Department of Labor, 486 F.2d 98, 104 n.8 (3d Cir. 1973).
The user petitioners contend that substantial evidence and the best available evidence do not support a finding that the dermal contact provisions are reasonably necessary to provide safe or healthful employment, and in addition they contend that the dermal contact prohibition is not feasible since it is impossible for certain industries to operate without some dermal contact with liquids containing small amounts of benzene. Since the amendment to the standard on June 21, 1978, significantly affects the feasibility issue, we will not address that issue in this opinion. We agree with the users, however, that OSHA has not shown the dermal contact prohibition to be reasonably necessary to protect workers from contracting benzene-related leukemia since readily available evidence of the kind Congress required OSHA to consider was neglected. The record therefore fails to support the finding that benzene is absorbed through the skin. Since entry to the body by dermal contact was not established, the record will not support a finding that the prohibition of all dermal contact with benzene will result in quantifiable benefits in terms of a reduced risk of leukemia justifying the costs
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
|
songer_othjury
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?" 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".
LOCAL UNION NO. 749, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, California Blowpipe & Steel Co., Inc., and Sequoia Employers Council, Intervenor.
No. 71-2006.
United States Court of Appeals, District of Columbia Circuit.
June 30, 1972.
Rehearing Denied Aug. 16, 1972.
Messrs. Charles P. Scully and Donald C. Carroll, San Francisco, Cal., were on the brief for petitioner.
Messrs. Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph E. Mayer and William H. DuRoss, III, Attys., N. L. R. B., were on the brief for respondent.
Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
PER CURIAM:
Petitioner Union challenges the National Labor Relations Board’s findings that it violated Sections 8(b) (2) and 8(b) (1) (A) of the National Labor Relations Act, 29 U.S.C. §§ 158(b) (2) and 158(b) (1) (A). The single issue before us is whether a union may lawfully request an employer, with whom it has a union security agreement, to fire an employee who, although willing to pay the requisite union dues and fees, refuses to assume formal union membership.
Intervenor California Blowpipe and Steel Company and the Union were parties to a collective bargaining agreement which provided:
All employees covered by this Agreement . . . shall, within the time required by the Union after the thirtieth day following the beginning of their employment . . . become and remain members of the Union in good standing, as a condition of continued employment. ...
[W]hen the Employer is notified by the Union in writing that an employee is delinquent in the payment of dues, or, within the time required by the Union, has failed to make proper application and pay the initiation fee required, the Employer shall immediately terminate such employee.
It is undisputed that during the year 1970 the Union requested the Company to terminate the employment of three employees who, although willing to pay the required Union dues and initiation fees, refused to sign the Union’s membership application card. On the basis of an interpretation of Section 8(a) (3) of the Act first adopted in Union Starch and Refining Company, 87 NLRB 779 (1949), enf’d, 186 F.2d 1008 (7th Cir.), cert. denied, 342 U.S. 815, 72 S.Ct. 30, 96 L.Ed. 617 (1951), the Board concluded that these requests were forbidden by the Act. The Union contends, eontrarily, that such requests are expressly permitted by Section 8(a) (3), and urges this court to reject Union Starch.
Section 8(a) (3) provides in pertinent part:
8(a) It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:
Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership.
Section 8(b) (1) makes it an unfair labor practice for unions generally “to restrain or coerce employees in the exercise of the rights guaranteed in Section 7,” and Section 8(b) (2) specifically prohibits unions from causing or attempting to cause an employer “to discriminate against an employee in violation of subsection (a) (3).”
It is the Board’s position that part (B) of the second proviso in Section 8(a) (3) forbids a union from attempting to cause an employer to discharge an employee for any reason other than the employee’s failure to tender periodic dues and fees. As one court has put it:
Even where, as in the instant case, all the statutory requirements of a valid union shop agreement are met, the Act provides that the only ground upon which an employee can be lawfully discharged is for non-payment of initiation fees or periodic dues. Nothing else suffices.
N. L. R. B. v. Technicolor Motion Picture Corp., 248 F.2d 348, 352 (9th Cir. 1957). The Union argues, on the other hand, that (1) Section 8(a) (3) expressly permits unions and employers to agree to condition continued employment on union “membership” and that “membership” is not equivalent to a mere willingness to pay dues and fees, (2) the Board’s interpretation in effect imposes on unions a definition of membership which violates the statutory right of labor organizations under Section 8(b) (1) (A) to establish membership qualifications for themselves, (3) the legislative history does not support the Board’s position, (4) that position effectively destroys union security, which the Act was manifestly designed to protect, and abolishes the distinction between “union shops” and “agency shops” which the framers of Section 8(a) (3) clearly recognized, and (5) the Board’s interpretation of part (B) of the proviso renders part (A) a nullity.
Whatever force these arguments might have were the question before us res nova, the Union Starch rule which the Board applied here has been sanctioned by virtually every other circuit court of appeals in the United States and referred to approvingly by the Supreme Court and this court. In N. L. R. B. v. General Motors Corp., 373 U.S. 734, 742, 743, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963), the Supreme Court stated quite unambiguously:
It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. “Membership” as a condition of employment is whittled down to its financial core. .
If an employee in a union shop unit refuses to respect any union-imposed obligations other than the duty to pay dues and fees, and membership in the union is therefore denied or terminated, the condition of “membership” for § 8(a) (3) purposes is nevertheless satisfied and the employee may not be discharged for nonmembership even though he is not a formal member.10
10. Union Starch & Ref. Co. v. [National] Labor [Relations] Board, 186 F.2d 1008 (C.A. 7th Cir.). . . .
See also N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 197, n. 37, 87 S. Ct. 2001, 18 L.Ed.2d 1123 (1967); Amalgamated Ass’n etc. Motor Coach Employees v. Lockridge, 403 U.S. 274, 284, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). In view of this long-established array of authority, we regard the issue as settled.
The Union's petition for review is denied, and the Board’s cross-petition for enforcement of its order is granted.
It is so ordered.
. The Union argues alternatively that Union Starch is factually distinguishable, in that the employees there desired membership, whereas the employees here did not. In terms of an employee’s right under Section 8(a) (3) to be protected from discharge for non-union membership, we think it irrelevant whether the employee did or did not desire membership in the Union. See N.L.R.B. v. General Motors Corp., 373 U.S. 734, 742, 743, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963).
. See, e. g., I.U.E., Local 801 v. N.L.R.B., 113 U.S.App.D.C. 342, 345, 307 F.2d 679, 682, cert. denied, 371 U.S. 936, 83 S.Ct. 307, 9 L.Ed.2d 270 (1962) ; N.L.R.B. v. Zoe Chem. Co., 406 F.2d 574, 579 (2d Cir. 1969) ; N.L.R.B. v. Philadelphia Iron Works, Inc., 211 F.2d 937, 941 (3rd Cir. 1954) ; N.L.R.B. v. Pape Broadcasting Co., 217 F.2d 197, 199 (5th Cir. 1954) ; J. A. Utley Co. v. N.L.R.B., 217 F.2d 885, 886 (6th Cir. 1954) ; N.L.R.B. v. Spector Freight Systems, Inc., 273 F.2d 272 (8th Cir.), cert. denied, Local 600 etc. v. N.L.R.B., 362 U.S. 962, 80 , S.Ct. 878, 4 L.Ed.2d 877 (1960) ; N.L.R.B. v. Technicolor Motion Picture Corp., 248 F.2d 348, 352 (9th Cir. 1957) ; N.L.R.B. v. Broderick Wood Products Co., 261 F.2d 548, 558 (10th Cir. 1958).
. Our decision here is limited to the issue of discharge from employment. We decide nothing, and we intimate no opinion, as to the extent of a union’s power to discipline an employee who, though refusing formal membership, pays union dues and fees.
Question: Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MARYLAND CASUALTY COMPANY, Appellant, v. PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee. PACIFIC EMPLOYERS INSURANCE COMPANY, Cross-Appellant, v. MARYLAND CASUALTY COMPANY, Cross-Appellee.
Nos. 5148, 5149.
United States Court of Appeals Tenth Circuit.
Nov. 7, 1955.
Samuel M. January, Denver, Colo. (January & Gilchrist, Denver, Colo., on the brief), for appellant.
Kenneth Wormwood, Denver, Colo. (Wolvington & Wormwood, Denver, Colo., on the brief), for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
BRATTON, Circuit Judge.
Maryland Casualty Company, hereinafter referred to as Maryland, instituted this action against Pacific Employers Insurance Company, hereinafter referred to as Pacific, for a declaratory judgment determining the rights and liabilities of the two companies under liability insurance policies issued by them, respectively. The material facts were not in controversy. A. M. Corkins, of Greeley, Colorado, was a commercial carrier by motor vehicle within the intent and meaning of the laws of Colorado. Maryland issued to Corkins its policy of liability insurance. The policy described the insured as a grain dealer, and it expressly covered a certain trailer and tractor to which reference is hereinafter made. The maximum amount of coverage in the policy was $25,000 for each person, $50,-000 for personal injury for each accident, and $5,000 for damage to property for each accident. The policy provided that the word “insured” should include the named insured, any person while using the vehicle, and any organization legally responsible for the use thereof, provided the actual use of the vehicle was by the named insured or with his permission. And it further provided that if the insured had other insurance against a loss covered by such policy, the company should not be liable for a greater proportion of such loss than the applicable limit of liability stated in such policy bore to the total applicable limit of all valid and collectible insurance against such loss. Colorado Milling and Elevator Company and Denver Flour Mills Company were corporations; the latter was a wholly owned subsidiary of the former; both were engaged in the grain elevator and milling business; and both were operating motor vehicles under commercial carrier permits issued by the Public Utilities Commission of Colorado. Pacific issued to Colorado Milling and Elevator Company its-policy of liability insurance. The policy designated as the named insured Colorado Milling and Elevator Company and certain subsidiary companies, including Denver Flour Mills Company. The vehicles covered were all equipment owned, used, or operated by the named insureds. The maximum amount of coverage in the policy was $100,000 for each person, $300,000 for each accident, and $5,000 for damage to property for each accident. In respect to the word “insured” covering the named insured and any other person while using the motor vehicles with the permission of the named insured, and in respect to the limit of liability in the event of other insurance, the policy contained provisions substantially identical with those in the policy issued by Maryland. An endorsement was attached to the policy which related to hired automobiles. It provided that the insurance afforded for bodily injury liability and for property damage should apply with respect to hired automobiles, subject to the provisions following therein. The substance of the subsequent provisions referred to was that the words “hired automobile” should mean a motor vehicle used under contract in behalf of, or loaned to, the named insured provided such automobile was not owned by or registered in the name of the named insured, an executive officer or partner of the named insured, or an employee or agent of the named insured, who was granted an operating allowance of any sort for the use of such automobile; that the word “automobile” whenever used in the policy, with respect to the insurance afforded under the endorsement, should include “hired automobile”; that the definition of insured agreement of the policy should apply to the insurance afforded under the endorsement, except to the owner of the automobile or any employee of such owner; that the insurance should apply to the maintenance or use, for the purposes stated in the schedule forming a part thereof, of any hired automobile; and that the definitions in the policy of commercial and pleasure and business should apply respectively to automobiles of the commercial or truck type and to automobiles of the private passenger type, except as otherwise provided. There was also attached to the policy the motor vehicle public liability and property damage insurance certificate which the statutes and the rules require to be filed with the Public Utilities Commission of Colorado setting forth that Pacific had issued to the Denver Flour Mills Company the policy of bodily injury liability and property damage liability insurance required by the statutes and the rules; and there was also attached the uniform public liability and property damage endorsement required by the statutes and the rules. The last endorsement provided among other things that Pacific agreed to pay any final judgment, within the limits set forth in the policy or endorsements attached thereto for death or personal injury and damage to property resulting from the ownership, maintenance, or use of any and all motor vehicles, pursuant to a certificate of public convenience and necessity or a permit issued by the Commission; that liability for death or injury to any one person should not exceed $5,000; and that liability for property damage should not exceed $1,000.
Corkins entered into an oral agreement with Denver Flour Mills Company to furnish a truck and driver to such company for the purpose of hauling grain from various elevators to Denver. Everett Wayne Kent had been regularly employed by Corkins as a truck driver for eighteen or twenty years. He was driving the tractor and trailer owned by Corkins and covered by the policy issued by Maryland. A load of grain was being transported for Denver Flour Mills Company pursuant to the oral agreement. The trailer and tractor was involved in an accident with two automobiles on a highway in Colorado. One person was killed, another was injured, and both automobiles were damaged. Kent filed a claim for benefits under the Workmen’s Compensation Act; Corkins and Maryland were named as employer and insurance carrier, respectively; and benefits were awarded to Kent. Two suits were filed in the state court, one to recover damages for the death of the person killed in the accident and the other to recover damages for the personal injury sustained therein. Corkins, Colorado Milling and Elevator Company, and Kent were joined as defendants in each case. Maryland accepted coverage under its policy according to the terms thereof and made demand upon Pacific that it accept coverage under its policy for it's pro•portionate share of any and all claims and demands'arising out of the accident. Pacific denied liability and rejected the demand. Judgment for plaintiff was entered in each case, and the two judgments aggregated $11,000. Maryland paid both judgments under an agreement between it and Pacific that such payment would not be' considered voluntary and would be without prejudice to the rights of the two companies.
The trial court entertained the view that Kent was an employee of Corkins; that he was not an employee of Denver Flour Mills Company; that the hired automobile endorsement attached to the policy issued by Pacific was applicable; that Corkins and Kent were excluded from coverage under such endorsement; that the uniform public liability and property endorsement attached to the policy issued by Pacific covered Kent in the respective amounts stated therein; and that the proportion of liability of Pacific was 16.666, per cent on 'the death or personal injury coverage and 20 per cent on the property damage coverage. And in-harmony with such views, the court entered judgment .which provided that Maryland recover from Pacific $1,833.26, representing 16.666 per cent of the $11,-000 which had been paid in the discharge •of the two judgments rendered in the •state court, and further provided that in the event settlement should be made of the two property damage claims, Maryland should pay 80 per cent and Pacific 20 per cent thereof. The parties perfected separate appeals.
On its appeal, Maryland states with candor that the real question in the case is whether Kent was at the time of the accident an employee of Denver Flour Mills Company. It urges that under the terms of the statutes of Colorado and the rules and regulations promulgated by the Public Utilities Commission of that state, Kent was an employee of Denver Flour Mills Company and that the judgment should have determined the rights of the two companies under their respective policies accordingly. Corkins, Colorado Milling and Elevator Company, and Denver Flour Mills Company were subject to the statutes of Colorado and the rules and regulations promulgated by the Public Utilities Commission relating to carriers by motor vehicle. Section 11, article 10, chapter 115, Colorado Revised Statutes 1953, empowers the Commission to promulgate such rules and re'gulations as may be reasonably necessary for the effective administration of the provisions of the chapter. Rule 11 promulgated by the Commission relates to ownership or leasing of equipment of carriers by motor vehicle, and it provides :
“(a) AH permit holders shall either own the motor vehicles operated under their permits or shall lease such equipment. Leasing of equipment shall not include the service of a driver of operator, but the employment of drivers or operators shall be made upon a basis óf a separate transaction by which the driver or operator shall bear the relationship of an employee to the carrier. The leasing of equipment or employing of drivers with compensation on a percentage basis; dependent upon tonnage hauled per trip, or for any period of time, is prohibited. All leases shall provide that the lessee shall have absolute and exclusive control and management of leased vehiclés during the term of the lease.
“(b) Leases of equipment shall be in writing and a duplicate original of such lease, with the actual signatures of lessor and lessee thereon, shall be filed with the Commission.
“(c) The Commission shall at all times have the right to examine all leases of equipment, and approve or disapprove the same.”
Rule 12(a) concerns itself with permits for emergency equipment, and it provides :
“(a) Whenever any commercial •carrier by motor vehicle, in cases of emergency or unusual demands for transportation, must.use equipment not listed with the Commission, and for which identification cards have not been issued, the permit holder shall furnish the operator of each emergency vehicle with, and the operator of any such vehicle, shall carry, a letter stating that the emergency vehicle described in such letter is being operated as such under the authority of the permit held by the commercial carrier using such emergency vehicle. Such letter of authority shall specify the number and class of the permit held by the writer thereof, the name and address of the owner of such emergency vehicle, license number, identification of insurance policy which covers- the emergency vehicle, a complete description of the vehicle, the nature of the emergency requiring use of such equipment, for what trip or trips such emergency equipment is needed, particularly describing the points of origin and destination of same, and the period for which, the emergency vehicle is to be operated as such.”
An emergency letter was issued to Denver Flour Mills Company. It authorized that company to operate as emergency equipment for a specified period the motor vehicle owned by Corkins and involved in the accident. But Rule 11 requires that a lease of equipment shall be in writing; that a duplicate original with the actual signatures of the lessor and lessee thereon shall be filed with the Commission; and that the Commission shall at all times have the right to examine all leases, and to approve or disapprove the same. Corkins and Denver Flour Mills Company did not comply with that strict command of the rule. They never entered into a written lease, and therefore no duplicate thereof with the signatures of the parties thereon was ever filed with the Commission. The rule provides that the leasing of equipment shall not include the service of a driver or operator and that the employment of drivers or operators shall be made upon a basis of a separate transaction by which the driver or operator shall bear the relationship of an employee to the carrier. There was a complete failure to comply with that inflexible provision of the rule. Instead of complying with it, the oral agreement into which Cor-kins and Denver Flour Mills Company entered included the furnishing of the equipment and the driver. The agreement did not include upon the basis of a separate transaction the furnishing of the driver. ■ The regulation expressly forbids the leasing of equipment or the employing of drivers with compensation on a percentage basis, dependent upon tonnage hauled per trip. In violation of that unyielding provision in the rule, the agreement between Corkins and Denver Flour Mills Company provided for remuneration for the hauling of grain on a percentage basis, dependent upon haulage per trip. And the regulation exacts in clear terms that the lessee shall have absolute and exclusive control and management of the leased vehicles. The agreement between Corkins and Denver Flour Mills Company did not contain any provision of that kind. Under it, the lessee merely designated the grain to be hauled and fixed the destination. It did not have any further control or management of the vehicle. The rule was promulgated pursuant to statutory authority vested in the Commission. It had the force and effect of law and therefore the agreement was subject to its requirements. Universal Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776. Since the agreement fell far short of complying with the rule in certain fixed respects, and affirmatively contravened its clear commands in other respects, the rule did not have the force and effect in law of making Kent the employee of Denver Flour Mills Company.
Maryland attacks the judgment on the further ground that aside from the statutes of Colorado and the rules promulgated by the Public Utilities Commission, Kent was as a matter of common law an employee of Denver Flour Mills Company at the time of the accident. The rationalizing general rule is that a servant may be lent or hired by his master to another for some special purpose and become the servant of such other person in the performing of the particular service contemplated by the loan or hire. But while a person in the general employ of one person may be lent or hired to another in such way as to become the servant of the person to whom he is lent or hired for the time and occasion, the mere fact that an employee is sent to do .certain work pointed out to him' by the person who made the arrangement with his general employer does not make him that person’s servant. Kelley v. Summers, 10 Cir., 210 F.2d 665.
Kent was a regular employee of Corkins and had been for eighteen or twenty years. Corkins selected him, determined and paid his compensation, determined and assigned his work, directed its performance, and had the right to discharge him at will. There was no provision in the agreement between Cor-kins and Denver Flour Mills Company that while the grain was being transported for the latter, it should have directing supervision and control over Kent. ' And in carrying out the agreement, Denver Flour Mills Company merely told Kent the location of the grain to be hauled and the point of its destination. It did not exercise any further supervision, direction, or control.over him. It did not pay him anything. And it did not have the power to replace him with another driver of the truck. Corkins had that power. And Corkins had the power to direct Kent at any time to cease transporting grain for Denver Flour Mills Company, go elsewhere, and engage in other work. Viewed in the light of these uncontroverted facts and circumstances, it is clear that under the common law as it obtains in Colorado, Kent was not an employee of Denver Flour Mills Company. Instead, he was an employee of Cor-kins. Thayer v. Kirchhof, 83 Colo. 480, 266 P. 225; Landis v. McGowan, 114 Colo. 355, 165 P.2d 180.
On its appeal, Pacific advances the contention that the fact that Denver Flour Mills Company was insured under..the policy of Pacific does not make Pacific liable' to Maryland. As we understand the argument in support of the contention, it is in substance that if Kent was not covered under the policy issued by Pacific, then in the event Denver Flour Mills Company was forced to pay anything by reason of Kent’s negligence, it would have a claim or cause of action against Kent to recover back that amount; and that in order to avoid circuity of action, judgment should have been rendered in favor of Pacific. The argument is ingenious but not persuasive. Maryland being liable under its policy, Pacific being liable under the uniform public liability and property damage endorsement attached to its policy, and the two companies occupying that juxtaposition, the proration provisions contained in the two policies came into play. And such provisions required the two companies to participate in the loss on the basis of the formula therein specified.
The judgment is affirmed.
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_const1
|
101
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
GEORGETOWN MANOR, INC., a Florida Corporation, Plaintiff-Counterclaim-Defendant-Appellee, Cross-Appellant, George Levin, Plaintiff-Third Party Plaintiff-Third Party-Defendant, Classic Motor Carriages, Inc., a Florida Corporation, Thomasville Showcase Interiors, Inc., a Florida Corporation, Furniture Industries of Florida, Inc., a Florida Corporation, Plaintiffs, Joe Krau, Counterclaim-Defendant, v. ETHAN ALLEN, INC., a Delaware Corporation, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff-Appellant, Cross-Appellee, Nathan Ancell, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff. GEORGETOWN MANOR, INC., a Florida Corporation, Plaintiff-Counterclaim-Defendant-Appellant, Cross-Appellee, George Levin, Plaintiff-Third Party-Defendant, v. ETHAN ALLEN, INC., a Delaware Corporation, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff-Appellee, Cross-Appellant, Nathan Ancell, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff, Joe Krau, Counterclaim-Defendant, Classic Motor Carriages, Inc., a Florida Corporation, Thomasville Showcase Interiors, Inc., a Florida Corporation, Furniture Industries of Florida, Inc., a Florida Corporation, Third Party-Defendants.
Nos. 91-5343, 91-5600.
United States Court of Appeals, Eleventh Circuit.
May 28, 1993.
Ronald P. Weil, Weil, Robert Zarco, Lucio, Mandler, Croland & Steele, P.A., Miami, FL, Andrew L. Frey, Michael A. Vatis, Cynthia Tripi, Mayer, Brown & Platt, Washington, DC, for Ethan Allen, Inc.
Joel S. Perwin Podhurst, Orseck, Josep-berg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for George Town Manor, Inc.
Before HATCHETT and BLACK, Circuit Judges, and DYER, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In this appeal involving a claim for tor-tious interference with a business relationship, we affirm the district court’s rulings on several issues and certify to the Supreme Court of Florida one issue regarding damages recoverable under Florida law.
BACKGROUND
This appeal follows protracted litigation involving several claims and counterclaims between a furniture manufacturer, Ethan Allen, Inc. (“Ethan Allen”), and its former furniture dealer, Georgetown Manor, Inc. (“Georgetown”). The unraveling of the longstanding dealership relationship between Ethan Allen and Georgetown began in December, 1984, because of a dispute over Georgetown’s credit for future furniture deliveries. On January 9, 1985, Georgetown informed Ethan Allen that it had decided to convert its five Ethan Allen galleries to Thomasville Furniture Industries, Inc. (“Thomasville”) furniture outlets. Georgetown’s owner, George Levin, formed a new corporation, Thomasville Showcase Interiors to operate the new Thomasville galleries at the old Georgetown locations. On January 11, 1985, Georgetown issued a press release announcing the conversion of its stores from Ethan Allen to Thomasville, stating that “Thomasville offers the best opportunities for our company as we look into the future.” Georgetown also sent a letter to its past customers advising them of the conversion and announcing a conversion sale of the Ethan Allen furniture in stock.
On January 24,1985, Ethan Allen’s chairman of the board, Nathan Ancell, sent a memo to other Ethan Allen dealers stating that Georgetown owed $1.6 million as of May, 1984, and that Georgetown had allowed the bills to mount without proper payment even though Ethan Allen had been willing to help Georgetown recover. In addition, on February 3, 1985, Ethan Allen placed a one-day advertisement in several South Florida newspapers, stating:
Dear Valued Customer:
Ethan Allen recently announced a major change in the distribution in the Miami [or General Pompano] Area. Since this change affects you, our valued customer, I would like to explain the situation directly. For about 20 years, Ethan Allen enjoyed a wonderful relationship with the Blau family who operated the Georgetown Manor stores in the Miami area. Because of family illness, the business was sold to a new group. Financial problems developed and our bills were not paid. The debt rose to a high level and we could no longer deliver merchandise to them until the debt was reduced. Reluctantly, we then had to discontinue distribution of Ethan Allen by Georgetown completely. We, therefore, are presently opening new Ethan Allen galleries in this area to serve our many customers of long standing.
One of our fine dealer families in the area, Bob and Brenda Stacy, have established an Ethan Allen office in our present Ethan Allen Contemporary Gallery at 5070 N. Federal Highway, Lighthouse Point (Pompano). The phone number is 305-421-5300. This Gallery will soon become an Ethan Allen American Traditional Gallery. The Stacys will be opening other Ethan Allen Galleries very shortly to serve you.
Many Ethan Allen customers have unfilled orders with Georgetown Manor. We and the Stacys are very anxious to effect deliveries of these orders and can handle them very expeditiously.
Please contact Stacy’s Service Center in Pompano and they will handle your inquiries and orders. Again, the number is 305-421-5300.
The new galleries will be called Ethan Allen Carriage House and will continue to bring you our beautiful furniture and professional services.
We are sorry about this disruption as we took great pains to avoid it.
We look forward to serving you again.
Nathan S. Ancell /s
Nathan S. Ancell
Chairman of the Board
Ethan Allen Inc.
Danbury, CT 06811
PROCEDURAL HISTORY
On January 8, 1985, Georgetown filed an action against Ethan Allen seeking damages and a preliminary injunction compelling Ethan Allen to deliver furniture pursuant to the dealership relationship. During the next several months, Georgetown amended its complaint to include the following six claims against Ethan Allen: (1) intentional interference with the advantageous business relationship between Georgetown and Thomasville; (2) conversion of commissions which Georgetown would have earned on undelivered furniture; (3) breach of contract based on Ethan Allen’s failure to provide Georgetown with an adequate period of time to terminate their relationship, and based on Ethan Allen’s failure to arrange less burdensome payment terms for it as a dealer with satisfactory credit standing; (4) misrepresentation based on Ethan Allen’s failure to provide adequate notice of termination and failure to arrange less burdensome payment terms; (5) trade libel and slander based on the publication of a January 24, 1985 dealer memorandum to all Ethan Allen dealers and the publication of a February 3, 1985 advertisement; and (6) violations of the Sherman and Clayton Acts based on Ethan Allen’s alleged attempts to maintain market power and monopoly position as a furniture supplier in South Florida. Georgetown also added Levin as a plaintiff and Ancell as a party defendant in its amended complaint.
Ethan Allen answered Georgetown’s complaints and asserted the following eight counterclaims against Georgetown, George Levin, and another company which Levin owns, Classic Motor Carriages, Inc. (“Classic Motor”); (1) an account stated claim for the amount that Georgetown owed Ethan Allen for previously delivered furniture; (2) misrepresentations based on Georgetown’s representations that it had sufficient funds to make timely payments for the furniture being delivered; (3) fraudulent concealment of the fact that Georgetown did not have sufficient funds to pay for furniture being delivered; (4) fraudulent conveyance based on transfers of Georgetown’s assets to Levin, Thomasville, Classic Motor, or others without adequate consideration and without regard to Georgetown’s debts to Ethan Allen; (5) conspiracy to commit civil theft based on an alleged scheme to obtain Ethan Allen’s furniture without paying for it; (6) civil theft; (7) conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO); and (8) violations of RICO.
On July 28, 1986, the district court dismissed all of Georgetown’s claims except the tortious interference claim. On April 13,- 1987, the district court granted summary judgment against Georgetown on four new claims (breach of fiduciary duty, violation of the Connecticut Franchise Act, maintenance, and violation of Florida’s Security of Communications Act) it raised in a third amended complaint. In addition, on October 24, 1988, the district court granted summary judgment against Georgetown on its renewed claim that Ethan Allen violated the Sherman and Clayton Acts. Georgetown filed its fourth and final amended complaint on November 6, 1989, dropping Levin and Ancell as parties and alleging only a tortious interference claim and a conversion claim against Ethan Allen. Georgetown’s amended tortious interference claim alleged that “Ethan Allen wrongfully interfered with plaintiff Georgetown’s customers, past, present, and future,” as opposed to its earlier allegation of interference with its relationship with Thomasville. In an order denying Ethan Allen’s motion for summary judgment, the district court limited the scope of proof on Georgetown’s tortious interference claim to exclude prospective customers as a yardstick for lost profits. Order Denying Motions for Summary Judgment (March 30, 1990) (ruling that “Georgetown must show interference with an existing contractual or business relationship, coupled with legal rights and damages.”) (emphasis in original).
Thus, the case proceeded to trial before a jury on Georgetown’s conversion, claim, Georgetown’s tortious interference as limited in the March 30, 1990, order, and Ethan Allen’s several counterclaims. At the close of Georgetown’s case, the district court directed a verdict in favor of Ethan Allen on the conversion claim. At the close of the trial, on February 12, 1991, the district court entered an order dismissing Ethan Allen’s civil theft, RICO, and two conspiracy counts without prejudice based on a stipulation between the parties.
The jury returned the following verdicts on the remaining claims and counterclaims: (1) on the tortious interference claim, the jury returned a special verdict finding that Ethan Allen had intentionally and maliciously interfered with Georgetown’s business relationships with its customers and that this interference proximately caused damages to Georgetown in the compensatory amount of $285,000 for lost profits on existing contracts, and $7,380,000 for the “loss of the value of Georgetown’s business, including goodwill”; (2) that Ethan Allen was privileged in placing the disputed advertisement because it sought to protect a legitimate economic interest, but that Ethan Allen had not “fairly and truthfully” represented to Georgetown’s customers the reason.for the termination of the dealership relationship; (3) on the interest due on the account stated claim (the amount was not disputed), the jury found that the parties had agreed that Georgetown would pay simple interest at the prime rate for the past due debt; (4) the jury found against Ethan Allen on its misrepresentation, fraudulent concealment, and fraudulent conveyance counterclaims.
Based on the jury’s finding that it was privileged to place the disputed advertisement, Ethan Allen moved that Georgetown’s tortious interference claim be dismissed. On February 27, 1991, the district court denied Ethan Allen’s motion to dismiss the tortious interference claim based on its authority to harmonize the answers to the interrogatories and the jury’s special verdict. In light of the instructions to the jury, the evidence, and other surrounding circumstances,.the district court found that the jury’s responses was a determination that “Ethan Allen did not exercise its privilege truthfully and in accordance with contemporary business standards” and concluded that its use of improper means vitiates its privilege of protecting its economic interest.
ISSUES AND CONTENTIONS
Ethan Allen raises the following claims of error: (1) the district court erred in denying its motion for judgment notwithstanding the verdict (JNOV) or new trial because Georgetown could not, as a matter of law, establish that the advertisement caused the alleged loss of profits on existing orders, or establish a protected interest in potential future sales to past customers, or state a valid tortious interference claim for alleged interference with business relationships in which Ethan Allen was a party; (2) the district court erred in failing to dismiss Georgetown’s tortious interference claim based on its common law privileges of competition and the protection of its legitimate economic interest, and its privilege to publish truthful information under the First Amendment; (3) the district court erred in refusing to grant a new trial based on its admission of prejudicial hearsay; (4) insufficiency of the evidence to support the jury’s award of damages for alleged loss of profits on existing furniture orders, and alleged loss of value of Georgetown’s business, including goodwill; (5) insufficiency of the evidence to support the jury’s finding that Georgetown agreed to pay only simple interest on its outstanding indebtedness for the account stated claim; (6) the district court erred in refusing to instruct the jury on “badges of fraud” factors to consider in determining Georgetown’s intent for purposes of the fraudulent conveyance counterclaim; and (7) the district court erred in refusing to instruct the jury that under capitalization is relevant for purposes of Ethan Allen’s alter ego theory of fraudulent conveyance.
Georgetown responds that it did establish that Ethan Allen’s placement of the advertisement caused the alleged loss of profits on existing orders, and did establish a protected interest in potential future sales to past customers under Florida law. Georgetown contends that Ethan Allen’s other claims of error are waived based on its failure to present the issues in a timely fashion for a ruling in the district court. Alternatively, Georgetown contends that the evidence was sufficient to support the jury’s award of damages, and sufficient to support the finding that Georgetown was obligated to pay only simple interest on the account stated claim. In addition, Georgetown contends that the district court did not abuse its discretion in failing to give Ethan Allen’s proposed jury instructions where the actual instructions adequately covered the relevant law on Ethan Allen’s fraudulent conveyance claim.
DISCUSSION
(i) Jury Instructions
We find no reversible error in the district court’s denial of Ethan Allen’s motion for a new trial on its fraudulent conveyance counterclaim based on the district court’s refusal to identify “badges of fraud” on the issue of intent, and refusal to instruct the jury that under-capitalization is relevant to its theory that Levin was the alter ego of Georgetown and the other counter-defendants. We note that a district court has “broad discretion in formulating a jury charge.” United States v. Turner, 871 F.2d 1574, 1578 (11th Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 552, 107 L.Ed.2d 548 (1989). “In reviewing the adequacy of a jury instruction, the appellate court must examine the entire charge and determine whether, taken as a whole, the issues and law presented to the jury were adequate.” United States v. Bizzard, 674 F.2d 1382, 1389 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Contrary to Georgetown’s argument, Ethan Allen did preserve this claim of error for appellate review based on its objections to the proposed charge during the charge conference. See Mark Seitman & Associates, Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1530 (11th Cir.1988) (holding that the right to appellate review of jury instructions for error is not barred where a party apprises the trial court of its objections during the charge conference).
On the badges of fraud claim, Ethan Allen based its proposed charge on the codification of the “badges of fraud” in Fla.Stat.Ann. § 726.105(2) which lists factors that “may” be considered along with other factors in determining intent. See Fla.Stat.Ann. § 726.105(2) (1988). Ethan Allen expressly conceded at the charge conference that the badges of fraud factors are relevant only if a transfer is made without receiving a reasonably equivalent value in exchange for the transfer. Because Ethan Allen relied on section 726.-105(2) which provided that consideration “may” be given to the badges of fraud factors, we hold that the district court did not err in refusing to specifically recite the particular badges of fraud factors in the jury instructions, which we find otherwise sufficient on the issue of intent. See Bizzard, 674 F.2d at 1389 (holding that “the mere failure to recite the jury instructions in the precise language requested by defendant is not error where, as here, the instructions are otherwise sufficient”). Moreover, in light of the undisputed jury finding that Georgetown did receive reasonably equivalent value in exchange for the disputed transfers, Ethan Allen cannot be heard to complain since it conceded at the charge conference that the badges of fraud factors are relevant only if the disputed transfers were made without Georgetown receiving a reasonably equivalent value.
We also find no error in the district court’s refusal to give Ethan Allen’s proposed charge on under-capitalization as relevant to its alter ego theory of fraudulent conveyance. Ethan Allen’s proposed jury instruction on under-capitalization did not merely state that under-capitalization is relevant to an alter ego claim. Rather, it would have charged the jury that “if a company has been under-capitalized and as a result prevents creditors from being able to collect their debts, the person who caused the under-capitalization is considered to be the alter ego of the company and thus personally liable for its debts.” Because under-capitalization is only one of the factors relevant to an alter ego claim, we hold that the district court properly refused to charge the jury that the person who caused the under-capitalization of a corporation must be considered the alter ego of the company. In addition, we find no error in the district court’s actual charge to the jury on Ethan Allen’s alter ego theory because it adequately summarizes the factual controversies under the applicable law. See Bizzard, 674 F.2d at 1389. Accordingly, we hold the district court did not err in denying Ethan Allen’s motion for a new trial based on its refusal to give requested jury instructions.
(ii) Interest on Account Stated Claim
As to Ethan Allen’s challenge of the jury’s award of only simple interest on Georgetown’s outstanding indebtedness, we find that Ethan Allen waived its right to challenge the jury’s finding as not supported with sufficient evidence. A party challenging sufficiency of the evidence on appeal must file a timely motion for a directed verdict at the end of all the evidence. Fed.R.Civ.P. 50(b); Coker v. Amo co Oil Co., 709 F.2d 1433, 1437-38 (11th Cir.1983), superseded by statute in part on other grounds as stated in Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir.1989). Ethan Allen failed to move for a directed verdict on the issue of simple interest at the end of all the evidence.. Thus, we would ordinarily review the district court’s submission of the issue to the jury under the plain error standard to determine whether any evidence supported submission of the issue. Coker, 709 F.2d at 1437 (applying the plain error standard of review where the objecting party failed to make a timely objection).
In this case, however, Ethan Allen agreed to submit the question of how interest was to be calculated on the undisputed principal amount of its account stated claim. At the charge conference, the parties agreed to provide the jury with three alternatives, including one calculated with simple interest. In addition, Ethan Allen suggested submitting a fourth alternative of the statutory rate in case the jury could not agree on one of the other three alternatives. Ethan Allen cannot now complain that the jury elected one of those three alternatives because “[i]t is a ‘cardinal rule’ of appellate procedure ‘that a party may not challenge as error a ruling or other trial proceeding invited by that party.’ ” Charter Co. v. United States, 971 F.2d 1576, 1582 (Johnson, J., concurring in part and dissenting in part) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985) and citing additional cases). Accordingly, we hold that the district court did not err in denying Ethan Allen’s motion for a new trial on the question of simple interest for its account stated claim.
(iii) Hearsay
We also reject Ethan Allen’s contention that the district court erred in denying its motion for a new trial based on the alleged admission of prejudicial hearsay. The claim concerns the district court’s admission of the testimony of two Georgetown witnesses about statements that customers made about the reason for their demand for a refund of their deposits on existing orders. The district court struck the testimony of one of the two disputed witnesses, Preve, and ruled that the testimony of the other witness, Cormick, was • admissible only as evidence of verbal acts under Fed.R.Evid. 801(c). The district court instructed the jury that “the statements of the customers that they saw the ad and demanded their money back is not admissible for the truth of the statements,” but only as support for the plaintiff’s position that “these customers demanded their refunds from Georgetown. Nothing else. Just the act of demanding the money.”
Because of the district court’s clear limiting instruction that the testimony be considered only as evidence of the verbal acts of demanding refunds, we hold that the district court did not abuse its discretion in admitting Cormick’s testimony as non-hearsay under rule 801(c). See United States v. Rodriguez-Cardenas, 866 F.2d 390, 394 (11th Cir.1989) (recognizing that this court will not disturb an evidentiary ruling absent a clear showing that the district court abused its discretion), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1017 (1990); United States v. Peaden, 727 F.2d 1493, 1500 (11th Cir.) (noting that rule 403 is the appropriate standard of reviewing a district court’s admission of a statement for a non-hearsay purpose of rule 801(c), and setting forth the two limited categories of cases warranting reversal under that standard), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 118 (1984).
(iv) Privileges and Affirmative Defense
For the reasons stated in the district court’s excellent February 27, 1991 Memorandum of Decision and Order, we hold that the district court did not err in denying Ethan Allen’s motion to dismiss the tortious interference claim based on the asserted common law privileges to compete and to protect legitimate economic interest.
We also hold that Ethan Allen waived its right to assert that its publication of the February 3, 1985 advertisement is not actionable as tortious interference, based on its status as a party to the relationships allegedly interfered with and its privilege to publish truthful information. Contrary to Ethan Allen’s claims, we find that Ethan Allen failed to assert either argument as a ground for a directed verdict at the close of all evidence. After the district court denied Ethan Allen’s motion to dismiss the tortious interference claim, the court specifically asked Ethan Allen to clarify the basis for its contention that it was protecting its own rights when publishing the ad. In response, Ethan Allen.cited cases and made arguments for the sole proposition that its publication of the ad was privileged because it has “an economic interest in the marketplace.” Ethan Allen made absolutely no argument that it was protecting its right to publish truthful information under the common law and First Amendment. Moreover, even though Ethan Allen cited cases which also discuss the principle that a tortious interference claim does not lie against a party to the disputed relationship, Ethan Allen pointed to these cases only as support for the argument that it was privileged to protect its "economic interest in the marketplace.” We note that Ethan Allen voiced no objection to the district court’s jury charge, which did not include any instructions on a truthful information privilege or a defense based on Ethan Allen’s alleged status as a party to the disputed business relationships.
Because a motion for JNOV is technically only a renewal of a motion for a directed verdict made at the close of the evidence, Ethan Allen cannot assert grounds supporting its motion for JNOV that were not included in its motion for a directed verdict. See Litman v. Massachusetts Mutual Life Ins. Co., 739 F.2d 1549, 1557 (11th Cir.1984). Accordingly, we hold that the district court did not err in denying Ethan Allen’s motion for JNOV or new trial based on the truthful information privilege and its alleged status as a party to the disputed business relationships, because Ethan Allen waived its right to assert these grounds through its failure to assert them in its motion for directed verdict.
(v) Merits of Tortious Interference Claim
■ Having concluded that the district court did not err in denying Ethan Allen’s motion for JNOV or a new trial on the grounds of privilege and the party to the business relationship defense, we now turn to the merits of Ethan Allen’s claims of error regarding the judgment in favor of Georgetown on the tortious interference claim. Under Florida law, a plaintiff must prove the following elements to state a valid tortious interference with advantageous business relations claim:
(1) the existence of a business relationship under which the plaintiff has legal rights; (2) an intentional and unjustified interference with the relationship; and (3) damage to the plaintiff as a result of the tortious interference with that relationship.
Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336, 1348-49 (11th Cir.1987) (citations omitted); see also Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985).
Ethan Allen contends that Georgetown did not establish a tortious interference claim as a matter of Florida law. Ethan Allen also argues that the evidence was insufficient to support the jury’s award of damages under either theory of Georgetown’s tortious interference claim. We note that Ethan Allen properly preserved its arguments on the tortious interference claim for appellate review. Ethan Allen twice moved for summary judgment on the tortious interference claim which resulted in the district court’s April 13, 1987 and March 30, 1990 orders limiting Georgetown’s proof to showing “interference with an existing contractual or business relationship, coupled with legal rights and damages.” At the close of all evidence, Ethan Allen moved for a directed verdict on Georgetown’s tortious interference claim based on the absence of evidence showing causation between the disputed advertisement and the cancellation of existing orders, based on the absence of evidence demonstrating causation between the advertisement and lost future profits, and based on an argument that the 89,000 persons in Georgetown’s prospective customer base cannot be the basis for any tortious interference claim under Florida law. After the court denied Ethan Allen’s motion at the close of evidence and the jury returned its verdict, Ethan Allen raised the same arguments in its motion for a JNOY or new trial, and remittitur of damages.
Existing Orders
We find Ethan Allen’s first argument concerning Georgetown’s failure to establish causation to be without merit. Ethan Allen contends that Georgetown did not establish causation between the advertisement and the lost profits on existing orders. Ethan Allen argues that Georgetown could no longer fill the existing orders fo.r Ethan Allen furniture, regardless of the advertisement, once Ethan Allen had exercised its right to terminate the dealership relationship. Ethan Allen’s causation argument is flawed because it takes too narrow a view of an “advantageous business relationship” under Florida law. “An action for intentional interference is appropriate even though it is predicated on an unenforceable agreement, if the jury finds that an understanding between the parties would have been completed had the defendant not interfered.” Landry v. Hornstein, 462 So.2d 844, 846 (Fla. 3d D.C.A. 1985) (citation omitted). Based on our review of the evidence, we find that a reasonable jury could have concluded that Georgetown and the customers with existing orders had an “understanding,” not evidenced in the written orders, that they would purchase furniture from Georgetown even if that meant converting their orders to Ethan Allen furniture already in stock or Thomasville furniture. Therefore, we hold that the district court did not err in denying Ethan Allen’s motion for a JNOV based on the argument that Georgetown failed to establish causation between the publication of the advertisement and the cancellation of Georgetown’s existing orders. See Ad-Vantage Telephone, 849 F.2d at 1351 (stating that a motion for JNOV is inappropriate where jury’s determination of causality is adequately supported in the record).
In addition, we affirm the jury’s award of $285,000 damages for the lost profits on existing orders. Georgetown’s expert estimated the lost profits on existing orders to be $285,000, after reducing his original estimate to account for ordinary cancellations not attributable to the alleged interference. Based on the expert testimony, we hold that the district court did not err in denying Ethan Allen’s motion for a new trial based on the sufficiency of the evidence supporting the jury’s award of damages for lost profits on existing orders.
Loss of Georgetown’s Business, Including Goodwill
The gravamen of this appeal and the issue most troubling to this court is Ethan Allen’s assertion of error regarding the legal basis for the jury’s award of $7,380,000 for the “loss of the value of Georgetown’s business, including goodwill.” Ethan Allen argues that Georgetown’s tortious interference claim is limited to alleged interference with existing advantageous business relations, as opposed to prospective customers. Thus, Ethan Allen argues that Georgetown could not establish a protected interest under Florida law for the loss of potential future sales to the 89,000 past customers in its customer database. Georgetown responds that Florida law does recognize a tortious interference claim based on the future profitability of an existing business enterprise, and based on prospective contractual or business relationships. Georgetown also argues that damages for a tortious interference claim need not be attributable to lost profits caused to identifiable contracts or relationships under Florida law.
We note that Georgetown’s fourth amended complaint alleged that Ethan Allen had interfered with its “past, present, and future customers.” In the March 30, 1990 order, the district court expressly limited Georgetown’s proof to showing “interference with an existing contractual or business relationship.” In addition, based on our review of the charge to the jury, we cannot say as a matter of law that Georgetown failed to establish intentional and unjustified interference with existing advantageous business relationships that caused some damages. Indeed, we' have already held that Georgetown stated a valid tor-tious interference claim as it relates to the cancellation of existing orders. Thus, the issue before us is not simply whether Georgetown failed to establish a prima fa-cie case for tortious interference with a business relationship under Florida law. The question before us is properly recast as whether the evidence supporting the jury’s $7.38 million damage award is within the scope of damages under Florida law. It was on the issue of damages that the district court gave the jury instructions, which countenanced both Georgetown’s theory for lost profits on existing orders, and its theory that Florida law on tortious interference allows recovery of damages for interference with an existing business enterprise, including goodwill.
Ethan Allen argues that “the tort of interference with a business relationship does not operate as a broad protection of commercial reputation or potential businéss opportunities generally. Rather, [Florida law] protects only actual, identifiable relationships.” Ethan Allen acknowledges that a protectible business relationship need not be evidenced in an enforceable contract, but argues that a plaintiff must identify particular relationships, which accord the plaintiff some legal rights against the other party, in order to recover damages for a defendant’s interference. Ethan Allen relies on decisions from several Florida appellate courts. See, e.g., Southern Alliance Corp. v. City of Winter Haven, 505 So.2d 489, 496 (Fla. 2d D.C.A.1987) (rejecting the tortious interference claim of a bar owner who did not identify a particular advantageous business relationship, after finding no case that recognized “a cause of action exists for the tortious interference with a business relationship with the community at large”); Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303, 306 (Fla. 5th D.C.A.1980) (holding that “economically advantageous business relationships, capable of ascertainment, existed between [the plaintiff] and its numerous insurance company clients, pursuant to which [the plaintiff] had legal rights”); Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769, 771-72 (Fla. 4th D.C.A. 1978) (rejecting a tortious interference claim because “a mere offer to sell a business which the buyer says he will consider, does not by itself give rise to legal rights which bind the buyer or anyone else with whom he deals”).
In contrast, Georgetown relies on Insurance Field and other Florida decisions as recognizing that a plaintiff may recover damages in a tortious interference action for the loss of goodwill with past customers, even in the absence of present legal rights. In considering the scope of damages that an insurance auditor could recover from a former employee for his tortious interference with sixteen insurance company clients, the court in Insurance Field concluded that the plaintiff could recover damages based on loss of goodwill “occasioned solely by [the defendant’s] conduct.” See Insurance Field, 384 So.2d at 308 (noting that “Plaintiff’s business, like most companies, revolves, in large measure, upon the building of goodwill accomplished when a client becomes accustomed to dealing with someone who is regularly performing a service. [The plaintiff’s] field representatives and the individual [defendants] had been performing services for [plaintiff’s] customers in a satisfactory manner, and the record provides no indication that its customers had any inclination to terminate using appellee’s services”). Based on the Insurance Field court’s decision and its favorable citation to the Restatement (Second) of Torts, Georgetown argues that Florida law allows recovery for the loss of value in a continuing business, including goodwill, in a tortious interference action. See Restatement (Second) of Torts § 766B, comment c (1979).
Because we do not find the decisions of the Florida district courts of appeal determinative of whether a business may recover for the loss of its value, including goodwill, and we find no controlling precedent of the Florida Supreme Court on the scope of damages under the tortious interference cause of action, we consider it appropriate to certify to the Florida Supreme Court for resolution this potentially recurring question on whether loss of a business’s goodwill with past customers is recoverable under the tortious interference cause of action.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO ARTICLE 5, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION
TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:
Based upon the facts recited herein, we certify the following question in the above-styled case to the Florida Supreme Court:
Under Florida law, in a tortious interference with business relationships tort action, may a plaintiff recover damages for the loss of goodwill based upon future sales to past customers with whom the plaintiff has no understanding that they will continue to do business with the plaintiff, or is the plaintiff’s recovery of damages limited to harm done to existing business relationships pursuant to which plaintiff has legal rights, as discussed in Landry v. Hornstein, 462 So.2d 844, 846 (Fla. 3d D.C.A.1985); Douglass Fertilizers & Chemical, Inc. v. McClung Landscaping, Inc., 459 So.2d 335, 336 (Fla. 5th D.C.A.1984); Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303, 306 (Fla. 5th D.C.A.1980); and Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769, 771-72 (Fla. 4th D.C.A.1978)?
Our phrasing of this question is not intended to limit the Supreme Court of Florida in considering the issue presented. The entire record in this case and the briefs to the parties shall be transmitted to the Florida Supreme Court for assistance in answering this question.
CONCLUSION
We affirm the judgment of the district court in all respects on Ethan Allen’s counterclaims. On Georgetown’s tortious interference claim, we reject the various claims of error and affirm that portion of the judgment of the district court that awards Georgetown $285,000 in damages for its lost profits attributable to Ethan Allen’s tortious interference with Georgetown’s advantageous business relationships with those customers who had existing orders. We certify the loss of the value in Georgetown’s business, including goodwill, question to the Florida Supreme Court. We affirm the judgment of the district court on Georgetown’s other claims
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_genapel2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
Eugene A. WAHL and Vibra Screw, Incorporated, Appellants, v. REXNORD, INC.
No. 79-2054.
United States Court of Appeals, Third Circuit.
Argued Feb. 15, 1980.
Decided June 16, 1980.
John W. Logan, Jr. (argued), Thomas M. Ferrill, Jr., Robert P. Seitter, Ferrill & Logan, Fort Washington, Pa., Harold Friedman, Kirsten, Friedman & Cherin, Newark, N. J., for appellants.
Thomas F. McWilliams (argued), McWil-liams, Mann & Zummer, Chicago, 111., for appellee.
Before ALDISERT, WEIS and HIGGIN-BOTHAM, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
It is a generally recognized precept in patent law that an inventor can obtain no more than one patent for any original discovery. Many decisions of this and other circuits have analyzed the circumstances in which a patented discovery can be said to copy an earlier patented discovery, and therefore is invalid as a double patent. This case, one of first impression in this court, requires us to analyze double patenting in the unusual circumstance where the two patents are of different types; the first is a design patent covering the “ornamental design for an article of manufacture,” while the second is a utility patent covering the mechanical claims of an article of manufacture. Because we conclude that there are remaining issues of material fact on whether the design and utility patent in this case embody the same inventive concept, we will reverse the district court’s grant of summary judgment.
I.
The appellants, Vibra Screw, Inc. (Vibra Screw) and Eugene Wahl, have sued the appellee, Rexnord, Inc. (Rexnord), for patent infringement of a utility patent. This appeal concerns the holding by the district court for Rexnord on the ground that the utility patent Rexnord allegedly infringed was invalid because it was a double patent of an earlier issued design patent.
On August 24, 1965 a design patent was issued to Eugene Wahl under United States Patent No. 202,068 (’068 patent). A design patent covers a “new original and ornamental design for an article of manufacture.” Wahl’s invention concerned the external design of a “storage bin flow promoter,” a device used at the base of a storage bin to expedite the flow of material out the bottom of the bin. On July 19, 1966, one year later, Wahl secured a utility patent, United States Patent No. 261,508 (’508 patent). A utility patent covers a “new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.” Wahl’s patent covered the internal structure of a “vibratory bin activator,” the same type of device that was the subject of his design patent. Generally speaking while the ’068 patent covered an external ornamental design of the device, the ’508 utility patent covered an internal mechanical structure.
The exclusive United States licensee for both patents was Vibra Screw, of which Wahl served as president. Under an agreement between Wahl and Vibra Screw, Wahl received 2lA% of net sales price of all patented devices sold by Vibra Screw.
On April 30, 1976 Wahl and Vibra Screw filed suit against Rexnord for patent infringement of the ’508 utility patent. They claimed, inter alia, that Rexnord was using and selling vibratory bin activators embodying the inventions described and claimed in the utility patent. Rexnord moved for summary judgment on July 8, 1978 on the ground that the ’508 utility patent was invalid as a double patent of Wahl’s earlier issued ’068 design patent. Wahl and Vibra Screw, in turn, moved for summary judgment on the ground that the ’508 utility patent was not invalid.
The parties submitted three types of evidence in support of their motions.
The first, and most important, were the patents themselves. The ’068 design patent claimed “the ornamental design for a storage bin flow promoter as shown and described” in the three patent diagrams included below.
Des. 202,068
United States Patent Office Patented Aug. 24. 1965
202,068
STORAGE BIN FLOW PROMOTER Eugene A. Wahl. 294 Forest Ave.. Glen Ridge, N.J.
Filed Nov. 27, 1963, Ser. No. 77.588 Term of patent 14 vears (CL D55 — 1)
The distinctive features of the ’068 design are the plurality of increasingly narrow convex surfaces that are outlined by the full lines in the diagram. It is important to note that the patent diagram can only claim the aesthetic appearance of these dominant lines. The internal broken lines explain the environment in which the patent exists, but are technically not part of its claims. See Transmatic, Inc. v. Guiton Industries, Inc., 601 F.2d 904, 912 (6th Cir. 1979); Application of Blum, 874 F.2d 904, 907 & n. 1 (C.C.P.A.1967). Thus, the outline suggesting an interior of concave surfaces and the mechanical gyrator attached to the baffle in figure two are not specifically claimed by the design patent.
The ’508 utility patent claimed a vibratory bin activator which was portrayed in patent diagrams similar to the interior suggested by the ’068 patent. These diagrams are as follows:
JULY 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 1
July 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 2
July 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 3
The diagrams accompanying the utility patent provide an illustration of the mechanical claims of the mechanical invention and do not constitute the patent claim itself. Anchor Hocking Corp. v. Eyelet Specialty Co., 377 F.Supp. 98, 101 (D.Del.1974). The actual patent is embodied in the word claims included with the diagram. A representative claim in the ’508 utility patent states it is an
[apparatus for promoting the flow of material from a storage hopper having a discharge opening formed in the bottom thereof, said apparatus comprising,
(a) a material-receiving member having a bottom wall defined by a plurality of concave surfaces terminating in a central outlet opening,
(b) means vibrationally suspending the material receiving member from the hopper and in spaced position to the hopper wall, and
(c) means for vibrating the material-receiving member.
The second type of evidence the parties submitted was depositions and affidavits by Wahl and other experts on the unique inventive contribution of each patent. Finally, the appellants submitted drawings of hypothetical devices with non-conforming interiors and exteriors which would supposedly infringe one patent and not the other.
On January 25, 1979 the district court granted summary judgment for Rexnord on the ground that the utility patent was invalid because it was a double patent of the design patent. Wahl v. Rexnord, Inc., 481 F.Supp. 573 (1979) (Wahl I) To find double patenting, it reasoned, “the features in which the novel aesthetic effect resides [must be] the identical features which produce the novel function claimed in the utility patent.” Id. at 583. In this case, the novel feature of the design patent was its
outside proportions and the exterior configuration thereof, which produce a plurality of convex exterior surfaces for the bottom walls of the storage bin promoter. This novel design feature clearly produces the novel interior configuration which forms surfaces of the dish-shaped sides, resulting in a positive discharge of material through the outlet when the gyrator is operating, while at the same time preventing discharge of material when the gyrator is not operating. Such construction facilitates the movement of material down from the upper regions of the storage bin and alleviates the congestion and packing of material at the bin discharge opening, thereby assuring a positive and uniform flow.
Id. at 583. The court conceded that there were elements of the utility patent not necessarily found or even “necessarily implied” by the design patent, but concluded “[double patenting in the design-utility situation cannot turn on the niceties of precise ornamentation,” but rather “on the presence or absence of design features which produce the novel function claimed in the utility patent.” Id.
The appellants subsequently moved for reconsideration of the court’s decision on the basis of newly submitted evidence of over 50 instances of commercial sales of bin flow promoters with non-conforming interiors and exteriors. On May 25, 1979 the district court denied the motion on the ground that this evidence did not undermine its conclusion that the two patents were “the same.” Wahl v. Rexnord, 481 F.Supp. 573, 597 (D.N.J.1979) (Wahl II).
Wahl and Vibra Screw have appealed from the district court’s decision on two grounds. First, while they agree that the district court adopted the appropriate standard for determining double patenting in a design utility context, they argue it interpreted that standard too “liberally.” They contend, in effect, that there must be a one-to-one correspondence between all of the features claimed or necessarily implied by each patent in order to establish double patenting. Second, even if the district court interpreted the standard properly, they claim that the facts of this case do not warrant summary judgment. They suggest that the presence of not insignificant commercial sales of devices with nonconforming interiors and exteriors creates a material issue of fact under any interpretation. We will first review the standard the courts have applied in this context and then analyze the district court’s interpretation. Finally, we will consider the legal significance of the sale of bin activators with non-conforming interiors and exteriors under this interpretation.
II.
It has long been recognized that an inventor may not secure a second patent on a discovery in which he already has secured a prior patent. This principle derives from the temporal limitation placed on the monopoly granted for a patent. Design and utility patents provide their inventors with a statutory monopoly over their claims for fourteen or seventeen years, respectively. A second patent on a previously patented discovery would impermissibly extend the inventor’s monopoly over the discovery beyond these limitations, and therefore is invalid. Enforcement of this prohibition, however, is complicated by the nuances of discerning when patents embody identical inventive ideas.
Most of the prior decisions in this area have considered double patenting of two utility patents and, less frequently, two design patents. In these cases comparison of the patentable contributions of the two inventions is facilitated by the fact that they both consider the same type of subject matter — either the mechanical or the ornamental qualities of a device. The most frequently cited expression of the standard to be applied in this circumstance appears in Miller v. Eagle Manufacturing Co., 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121 (1894). There the Supreme Court stated that “no patent can issue for an invention actually covered by a former patent, especially to the same patentee, although the terms of the claims may differ.” It noted that
where the second patent covers matter described in the prior patent, essentially distinct and separable from the invention covered thereby, and claims made thereunder, its validity may be sustained.
In [this] class of cases it must distinctly appear that the invention covered by the later patent was a separate invention, distinctly different and independent from that covered by the first patent; in other words, it must be something substantially different from that comprehended in the first patent. It must consist in something more than a mere distinction of the breadth or scope of the claims of each patent.
Id. at 198, 14 S.Ct. at 315.
This court applied this standard for comparing utility inventions in Pierce v. Allen B. DuMont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961), cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55 (1962). We observed:
Since Miller v. Eagle, courts have repeatedly ruled that an inventor’s separate applications embodying the same inventive concept afford proper bases for the issuance of separate patents at different times only if one of them also embodies an additional inventive concept not present in the other. In other words, the difference between the claims of the two applications must itself be inventive.
Id. at 327.
Discerning whether double patenting exists between design and utility patents is more complex. By definition the two inventive ideas in these cases are not identical because they cover different subject matter. One concerns mechanical performance, while the other concerns ornamental design. Indeed, some courts originally held that a design and utility patent could never embody the same inventive contribution, and therefore could not double patent. In Gross v. Norris, 18 F.2d 418, 420 (D.Md.1927), modified on other grounds, 26 F.2d 898 (4th Cir. 1928), the court observed:
But it is difficult to understand how a situation of double patenting can arise in the case of a design and of a mechanical patent applicable to the same device, notwithstanding certain statements in the books to the contrary. . . . There may be double patenting when two patents for the same mechanical structure are sought, . . . and when two patents for the same design are applied for .. But a design patent and a mechanical patent relate to different subject matter. The first pertains to the appearance while the second relates to the mechanical structure of a device, and it is well settled that a design and a mechanical patent covering the same article of manufacture, may coexist.
This position was underscored by the absence of an express statutory prohibition on double patenting of a design and utility patent. See Application of Thorington, 418 F.2d 528, 536 (C.C.P.A.1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1356, 25 L.Ed.2d 649 (1970).
Most recently, however, the Sixth and Seventh Circuits, in Transmatic, Inc. v. Guiton Industries, Inc., 601 F.2d 904 (6th Cir. 1979), and Ropat Corp. v. McGraw-Edison Co., 535 F.2d 378 (7th Cir. 1976), and the Court of Customs and Patent Appeals in Thorington, have held that double patenting can occur between a design and utility patent. See also In re Hargraves, 53 F.2d 900 (C.C.P.A.1931). These courts recognized, and we concur, that the unique inventive contribution reflected in an ornamental design can be identical to the unique inventive contribution of a mechanical process. The underlying purposes of federal patent law empower courts to invalidate patents in this context. See Thorington, 418 F.2d at 536. We also agree with the standard adopted by the Seventh Circuit in Ropat and followed by the Sixth Circuit in Transmatic for determining double patenting in this context. The court in Ropat stated:
The law of double patenting in the precise situation where a design patent and a utility patent are involved is plagued by a dearth of case law. A review of the cases which do exist reveals various “tests” for determining whether a design patent and a utility patent claim the “same invention.” We believe the best formulation of the applicable standard in this situation is that set forth in such decisions as In re Hargraves, 53 F.2d 900 (Cust. & Pat.App.1931), and Application of Du-Bois, 262 F.2d 88, 46 C.C.P.A. 744 (1958). Those cases state that double patenting exists if the feature in which the novel esthetic effect resides is the identical feature which produces the novel function so that a structure embodying the mechanical invention would of necessity embody the design, and vice versa.
535 F.2d at 381 (footnote omitted and emphasis added). Like the district court below, we adopt this as the appropriate standard.
III.
While both parties agree that Ropat articulates the proper standard, they disagree sharply on what that standard requires. The source of this disagreement is the district court’s holding that the Ropat test does not mandate that the two patents “cross-read.”
Cross-reading is a standard for comparing the unique contribution of patents. To say that patents cross-read means that a device embodying the patentable design of the design patent must infringe the utility patent; and that a device embodying the patentable claims of the utility patent must infringe the design patent. The importance of this requirement can be shown by a simple illustration. If patent M includes inventive factors ABC and patent Q includes inventive factors ABC as well as DEF, patent M would infringe Q, but Q would not infringe M; Q would cover inventive contributions not included in patent M, thereby precluding a finding of infringement. The district court held as a matter of law that Ropat only requires that the patents read in one direction. Thus, the court only needed to consider whether a device embodying the design of the ’068 design patent would necessarily infringe the ’508 utility patent.
The appellants challenge this interpretation on the basis of the inclusion in Ropat of the clause “vice versa.” The appellees, on the other hand, while conceding that cross-reading is required of utility patents, see, e. g., Application of Stanley, 214 F.2d 151, 155 (C.C.P.A.1954), contend it is not required when utility and design patents are involved. Reading the first to issue design patent on the utility patent is all that is necessary to preclude an extension of monopoly. To require more would protect an extension of that monopoly.
We agree with the appellants that to establish double patenting in this context the patents must cross-read. Requiring only that the design patent infringe the utility patent, but not vice versa, could invalidate utility patents that make a unique patentable contribution independent of the contribution they share with the design patent. As we noted in Pierce, double patenting cannot occur if “the difference between the claims of the two applications [is] itself inventive.” 297 F.2d at 327. A similar approach was adopted by the Sixth Circuit in Transmatic, which reversed the district court for failing to cross-read the two patents. Although the design and utility patents in that case shared a unique external design for a subway light fixture, the utility patent included special novel features concerning the location of the lighting source and type of bulb that were not claimed by the external design. 601 F.2d at 912. This requirement of cross-reading assures that a utility patent is not invalidated when it possesses a unique inventive contribution beyond that of the prior design patent. The failure of the district court in this case to cross-read the patents was error.
Having held that the two patents must cross-read, however, we note that this does not require, as the district court noted, that every feature of each patent must always be replicated in the other. The appellants have essentially taken the position that there must be a mathematical one-to-one correspondence between the claim of each patent. Many aspects of each patent, however, may be unrelated to its unique patentable contribution. These obvious variations on the basic contribution do not preclude a finding of double patenting when two utility patents are concerned, see, e. g., Miller v. Eagle Manufacturing Co., 151 U.S. at 198 (1894), and there appears to be no reason that they should in themselves prevent a finding of double patenting here. As the court in Ropat observed:
Double patenting in the design-utility situation cannot turn on niceties of precise ornamentation . . ., but rather must turn on the presence or absence of design features which produce the novel function claimed in the utility patent. If narrow, nonfunctional decorative variations which contribute in no way to the novel function were allowed to enter into the inquiry, it would become virtually impossible ever to find double patenting in the design utility situation. . A design patent and a utility patent need not claim every incidental feature of the other in order to claim the “same invention.”
535 F.2d at 382. See also Application of DuBois, 262 F.2d 88, 90-91 (C.C.P.A.1958). To require that every feature of each patent be replicated in the other would elevate form over substance and sanction the protection of patents with no inventive contribution other than obvious variations on pri- or patents.
We also note, as the district court held, that a patent can cover certain items not specifically claimed in the patent but necessarily implied by it. Section 171 authorizes a patent on the design of an article of manufacture, and not just on its appearance. Thus, a patent on the design of an article of manufacture may necessarily imply the mechanical function associated with that design. See Ropat, 535 F.2d at 382; Thorington, 418 F.2d at 537; In re Aslanian, 200 U.S.P.Q. 500, 503 (S.D.N.Y.1979).
IV.
Having outlined the standard for evaluating double patenting in this context, we must consider whether there was a dispute of material fact on this issue. The district court held that the two patents embodied the “same invention.” The novel external configuration of the design patent “produce[d] the novel interior configuration which forms the surfaces of the dish-shaped sides.” Wahl I, 481 F.Supp. at 583. The court’s decision was based on the substance of the two patents themselves, and depositions of experts concluding that the patentable contributions of both patents were identical. Wahl II, 481 F.Supp. at 600 & n.5.
A motion for summary judgment may only be granted if there are no remaining issues of material fact which, if believed by the trier of fact, would justify a finding for the party opposing that judgment. Bryson v. Brand Insulation, Inc., 621 F.2d 556, 559 (3d Cir. 1980). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Applying this standard we believe it was error for the district court to grant summary judgment.
Affidavits of the appellant establish the existence of not insignificant commercial sales of bin activators with non-conforming internal and external surfaces. The appellees even produced some of these bin activators. This raises the substantial probability that the novel feature of the design patent is not the “identical feature” that produces the utilitarian function. There may be a novel patentable advantage to the peculiar design exterior which is unrelated to the mechanical interior. The present record simply cannot resolve this question.
Though appellants have a very strong factual case in their favor, we are not holding on the present record that it would clearly be reversible error to make a finding of double patenting. At a minimum on the present record the issue is at least one which requires a fact finder’s careful evaluation of the evidence before the conclusion of double patenting would be permissible. The standard for double patenting in a design/utility context cannot be too rigorous because of the necessary incongruity between inventions in the two areas. It is clear that appellants’ ability to posit hypothetical nonconforming devices which would infringe one patent and not the other does not defeat summary judgment. The court in Thorington, 418 F.2d at 537 & n.10, rejected a similar claim which, if adopted generally, would prevent any finding of double patenting. It is always possible to conjure designs that will not be associated with the mechanical claim. Moreover, the fact that appellants have provided affidavits showing that these hypothetical devices are commercially feasible is not necessarily determinative. However, here the record does not consist of mere hypothesis devoid of reality. Instead, here we have the record of the actual market place associated with the mechanical claim. Whether the record establishes double patenting is a subtle question of fact concerning the unique inventive contribution of each patent that must be considered in the first instance by the trier of fact.
V.
For these reasons we will reverse the grant of summary judgment by the district court and remand for further proceedings not inconsistent with this opinion.
. 35 U.S.C. § 171:
Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
. 35 U.S.C. § 101:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
. In the alternative, Rexnord moved for summary judgment on the ground that it had not infringed the utility patent.
. The storage bin flow promoter is described in the patent as follows: Figure 1 is a front, eleva-tional view of a storage bin flow promoter. Figure 2 is a side, elevational view. Figure 3 is a top plan view. The dominant features of the design reside in the portions, shown in full lines. The bottom of the cylindrical projection on the bottom of the promoter has a conventional cylindrical opening.
. Indeed, the patent itself states, “The dominant features of my new design reside in the portions, shown in full lines.” ’068 patent, reprinted in App., at 481a.
. The ’508 utility patent, reprinted in App., at 477a, describes the diagrams as follows:
FIGURE 1 is a top plan view of apparatus made in accordance with this invention, with a portion of the baffle member broken away;
FIGURE 2 is a side, elevational view thereof, with a portion of the side walls of the concave members broken away;
FIGURE 3 is a side elevational view showing the apparatus attached to a storage bin, and drawn to a reduced scale; and
FIGURE 4 is an enlarged, fragmentary, view showing the apparatus attached to the storage bin, with certain parts in cross-section.
. The district court denied Rexnord’s motion for summary judgment that it had not infringed the ’508 utility patent. Wahl I, Id. at 586-87. That decision has not been challenged on appeal.
. The district court also dismissed a separate claim and counterclaim of the parties that are not involved in this appeal. Wahl and Vibra Screw’s claim against Rexnord was for infringing another utility patent, No. 3,173,583. In an earlier opinion of May 19, 1977, the district court granted summary judgment for Rexnord on this claim on the ground that the patent had previously been held to be invalid by the Seventh Circuit; the district court’s decision was upheld by this court, without opinion, in Wahl v. Rexnord, No. 77-1968 (3d Cir. April 12, 1978). Rexnord’s counterclaim against Wahl and Vibra Screw was for allegedly harassing Rexnord and its customers by filing meritless patent infringement claims in Idaho in violation of Sections One and Two of the Sherman Act, 15 U.S.C. §§ 1 and 2. In Wahl I the district court granted summary judgment to the plaintiff on the Section One violation. The court dismissed the claim of a Section Two violation on December 20, 1979.
. The decision of the Sixth Circuit in Transmatic is not to the contrary. There the court held that the novel characteristics of the interior of light fixtures were not necessarily implied by the external design covered by the design patent. It specifically held that each of the features were part of the novel contribution of the patent and there were numerous variations consistent with the design patent that would not replicate these features. 601 F.2d at OH-12.
. Appellants also argue that the gyrator and the means for suspending the device are unique features included in the utility patent and are not necessarily implied by the design patent. We think this question is also better left for consideration by the trier of fact in the first instance.
We recognize that other evidence may on remand support an opposite conclusion. Wahl apparently conceded in response to one question on the differences between the two patents that there was “[o]nly one difference, really, that is apparent from the sketchy presentation in the [design] patent, and that has to do with the baffle.” Deposition of Eugene Wahl, May 19, 1977, reprinted in App., at 449a. Rexnord’s expert, Don Fisher, also stated via affidavit that the only difference was in the baffle. Affidavit of Eugene Fisher, June 22, 1978, reprinted in App., at 70a. Neither apparently considered evidence of commercial sales of non-conforming interior and exterior walls.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_stid
|
26
|
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.
STEIN v. BOSTIAN et al. (two cases).
Nos. 12213, 12246.
Circuit Court of Appeals, Eighth Circuit.
Feb. 25, 1943.
Phineas Rosenberg, of Kansas City, Mo., for appellant.
Warren S. Earhart and Roy B. Cunningham, both of Kansas City, Mo., for appellees.
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether the court of bankruptcy could subject a cash exemption, to which the bankrupt was entitled under the laws of Missouri, to the payment of claims for taxes filed by that State and by the City of Kansas City.
The facts are stipulated. Sigmund Stein, a merchant of Kansas City, Missouri, and the head of a family, was adjudicated a bankrupt February 17, 1941, upon an involuntary petition. On that day he filed his schedules showing his liabilities, among which were taxes aggregating $530, and his assets which consisted of his stock in trade, fixtures and accounts receivable. In' his schedules the bankrupt made the following claim for exemptions: “I claim as exempt under and by virtue of Article 19, Chapter 5 of the Revised Statutes of Missouri, 1929 [Art. 19, Ch. 6, Revised Statutes of Missouri, 1939, Mo.R.S.A. § 1316 et seq.], all of my household goods, wearing apparel, furniture, household stores, and ornaments of myself and family heretofore scheduled, as well as all other personal property heretofore scheduled herein, all of them not exceeding in value the amount allowed me by law or the sum of $400.”
William B. Bostian was appointed receiver on February 17, 1941, and on February 18, without notice to the bankrupt, he procured from the referee in bankruptcy an order to sell the bankrupt’s merchandise and fixtures free of liens. The sale was at public auction, and the highest bid received was $710 for the merchandise and fixtures together, and they were sold for that amount. Prior to the sale, the referee had mailed notice thereof to the bankrupt, who did not appear and object. The sale was confirmed on February 26, 1941. The bankrupt did not waive his exemption rights or stipulate them away.
At the first meeting of creditors, held on March 10, 1941, William B. Bostian was elected trustee. On March 12, 1941, he filed a report of exemptions, specifying as exempt:
“Household goods and furniture
Wearing apparel if unencumbered and if encumbered the equity therein
Household stores.”
The attorney for the bankrupt objected to the failure of the trustee to “set off merchandise or cash equivalent as exempt, and as claimed in bankrupt’s schedules.” On April 29, 1941,, the trustee filed a supplemental report of exemptions, specifying as exempt: “Cash $300 (Subject to costs of administration and claims adjudged prior to cash exemptions by the Bankruptcy Court).”
No creditor of the bankrupt filed exceptions to or challenged in any way the trustee’s reports of exemptions. The bankrupt filed exceptions to so much of the trustee’s supplemental report as sought to subordinate his cash exemption to costs of administration and claims adjudged prior to such exemption.
The tax claims filed against the estate of the bankrupt were as follows: State of Missouri, $191.05; Jackson County, Missouri, $71.93; City of Kansas City, Missouri, $267.02. None of these tax claimants had levied upon or seized or sold any part of the assets for taxes or commenced any proceedings for that purpose or for establishing a lien thereon.
The referee on July 9, 1941, issued an order directing the bankrupt and the tax claimants to show cause why the referee “should not make either an order allowing the payment by the trustee in bankruptcy of $300.00 as cash exemptions out of the proceeds of the sale of the assets of this estate, or an order that the bankrupt is not entitled to such cash exemptions as against said tax claims or rights of the trustee in bankruptcy.”
After a hearing, the referee decided that the court of bankruptcy had jurisdiction to determine the controversy between the bankrupt and the tax claimants over the $300 cash exemption conditionally set off to the bankrupt; that the tax claimants, State of Missouri and Kansas City, Missouri, had rights superior to those of the bankrupt in the $300 exemption; that it should be equitably divided between these two tax creditors; and that Jackson County, Missouri, “having defaulted”, had forfeited its right to participate in a distribution of the bankrupt’s exemption. The bankrupt petitioned for a review of the referee’s order directing the application of the exemption to the payment of the tax claims. The District Court affirmed the referee, and the bankrupt appealed.
The effect of what the court of bankruptcy did was to set off to tax creditors the cash exemption to which the bankrupt was entitled.
The trustee contends that the Bankruptcy Act confers jurisdiction on the courts of bankruptcy to determine all claims to exemptions of bankrupts; that the object and effect of the Missouri statutes is to abolish exemptions as against taxes due the State and its subdivisions; and that when an exemption is set apart in cash, the court of bankruptcy may order it applied to the claims of creditors against whom the bankrupt can not claim exemptions. The trustee does not contend that the exemption is subject to costs of administration.
The statutes of Missouri providing that certain property “owned by the head of a family, shall be exempt from attachment and execution,” are Sections 1324 and 1327, Revised Statutes of Missouri, 1939, Mo.R.S.A. §§ 1324, 1327. Section 1330 of the same Statutes provides: “Sec. 1330. Nothing contained in this article shall be construed so as to exempt any property from seizure and sale for the payment of taxes due this state, or any' city, town or county thereof.”
Thus, while exempt property in Missouri is not subject to attachment and execution, it is subject to seizure and sale for taxes due the State or its subdivisions. It is agreed, however, that none of the property of the bankrupt had been seized or sold for taxes or that any lien for taxes had been established thereon. The right to an exemption under Missouri law is not made to depend upon the payment of taxes, nor is the amount of the exemption determined by deducting the amount of the debtor’s liability for taxes.
The question presented is, in our opinion, so well settled that we shall not indulge in a discussion of the pertinent provisions of the Bankruptcy Act or a review of the cases construing those provisions.
The exempt property to which a bankrupt is entitled is no part of his estate in bankruptcy, is not subject to administration by the court of bankruptcy, and the title to such property does not pass to the trustee, but remains in the bankrupt. Lockwood v. Exchange Bank, 190 U.S. 294, 299, 300, 23 S.Ct. 751, 47 L.Ed. 1061. The authority of the court of bankruptcy to determine claims of bankrupts to their exemptions is “to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered.” Lockwood v. Exchange Bank, supra [p. 299 of 190 U.S., 23 S.Ct. at page 753, 47 L.Ed. 1061]. See also, Smalley v. Laugenour, 196 U.S. 93, 97, 98, 25 S.Ct. 216, 49 L.Ed. 400; Lucius v. Cawthon-Coleman Co., 196 U.S. 149, 151, 25 S.Ct. 214, 49 L.Ed. 425. If creditors of a bankrupt assert that property, while exempt generally, is not exempt from process to enforce their particular debts, they must resort to courts other than the court of bankruptcy to enforce payment out of such property. Duffy v. Tegeler, 8 Cir., 19 F.2d 305, 308. Compare, Hukill-Hunter Co. v. Oliver, 3 Cir., 43 F.2d 100.
It may be true, as the referee points out, that the cash exemption set off to the .bankrupt can be reached by his tax creditors through other proceedings, and that it would be convenient, expeditious and economical to have the court of bankruptcy order that the exemption be applied to the payment of the tax claims. That, however, does not alter the fact that Congress has not conferred upon the courts of bankruptcy jurisdiction to administer the exempt property of a bankrupt when a claim for exemptions has been filed, or to treat such property as any part of a bankrupt’s estate.
The fact that, prior to the appointment of a trustee, the property of the bankrupt was converted into cash and that he did not protest against the sale, is immaterial. He claimed his exemptions in his schedules, and it is conceded that he did not waive his right to his exemptions or stipulate it away. It was the duty of the trustee and of the court to safeguard the right of the bankrupt to his exempt property. That right was, under the plainest principles of equity and fair dealing, transferred, without impairment, to the proceeds of the sale. Smith v. Thompson, 8 Cir., 213 F. 335, 336; In re Miller, 7 Cir., 95 F.2d 441, 443; In re Kane, 7 Cir., 127 F. 552, 554; Bank of Nez Perce v. Pindel, 9 Cir., 193 F. 917, 922. Compare, Steele v. Leonori, 28 Mo.App. 675, 683; State, to Use of Codding v. Finn, 8 Mo.App. 261, 264; Marchildon v. O’Hara, 52 Mo.App. 523, 526, 527.
It is evident that both the referee and the District Court thought that the decision of the Supreme Court of Missouri in the case of United States ex rel. First Nat. Bank v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8, sanctioned the action taken in this case. That case is not controlling and is clearly distinguishable. In the Lufcy case the court ruled that the bankrupt had consented to the sale of his exempt homestead upon condition that out of the proceeds liens of creditors upon it should be paid, and that his right to an exemption should be transferred to the proceeds, if any, in excess of such liens. In the case at bar there were no liens on the exempt cash and no consent by the bankrupt that tax creditors should be paid out of his exemptions.
The order appealed from is reversed, and the case is remanded, with directions to allow the bankrupt his cash exemption unconditionally.
The bankrupt, not being certain whether be could appeal as of right or whether this court must allow his appeal, gave notice of appeal and also procured from this court an order allowing his appeal. That is why this case is captioned as though it involved two appeals. Hereafter, we think that appeals so taken should be treated as a single appeal and not as two separate appeals as has been done in the past.
In Missouri, taxes are not by statute made a lion on personal property, exempt or unexempt. See: State ex rel. Davis v. Goodnow, 80 Mo. 271, 275; State, to Use of Phillips v. Rowse, 49 Mo. 586, 592; City of Carondelet v. Picot, 38 Mo. 125, 130; Greeley v. Provident Sav. Bank, 98 Mo. 458, 460, 11 S.W. 980. Personal property may be seized and sold for taxes “in the same manner as goods and chattels are or may bo required to be seized and sold under execution issued on judgments at law,” and after demand and notice. § 11086, R.S.Mo.1939, Mo.R.S.A. § 11086. Personal taxes are a debt to be collected only in the manner authorized by statute. National Lumber & Creosoting Co. v. Burrows, Mo.App., 284 S.W. 153, 154, and may be presented against the estates of insolvent debtors in the same manner as other indebtedness. State ex rel. and to Use of Graves v. Farmers’ Trust Co. of Macon, Mo.Sup., 31 S.W.2d 1069, 1070.
Sec. 24, Title 11 U.S.C.A. “This title shall not affect the allowance to bankrupts of the exemptions which are yrcscribed by the laws of the United States or by the State laws in force at the time of the filing of the petition * * * .”
Sec. 75, sub. a (6), Title 11 U.S.C.A. “Trustees shall * * ~ (6) set apart the bankrupts’ exemptions allowed by law, if claimed, and report the items and estimated value thereof to the courts as soon as practicable after their appointment.”
Sec. 110, Title 11 U.S.C.A. “The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition in bankruptcy * * * except insofar as it is to property which is held to be exempt, * * *.”
Sec. 11, sub. a (11), Title 11 U.S.C.A., gives to the courts of bankruptcy jurisdiction to “determine all claims of bankrupts to their exemptions.”
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_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Clarissa MIRANDA a/k/a Clarissa Miranda Rodriguez, et al., Plaintiffs, Appellants, v. PONCE FEDERAL BANK, etc., et al., Defendants, Appellees.
No. 90-2214.
United States Court of Appeals, First Circuit.
Heard Sept. 10, 1991.
Decided Oct. 29, 1991.
Antonio Bauza Torres, Guaynabo, P.R., for plaintiffs, appellants.
Danilo M. Eboli, with whom Francisco A. Besosa and Goldman Antonetti Ferraiuoli & Axtmayer, Hato Rey, P.R., were on brief, for defendants, appellees.
Before SELYA, Circuit Judge, COFFIN and TIMBERS, Senior Circuit Judges.
Of the Second Circuit, sitting by designation.
SELYA, Circuit Judge.
This appeal seeks to reconfigure the dimensions of the pleading framework for civil actions brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1988). Finding the district court’s order of dismissal to be consonant with applicable law, we reject the plaintiffs’ suggested architecture and affirm the judgment below.
1. BACKGROUND
Because this appeal arises from a dismissal for failure to state an actionable claim, we summarize the facts consistent with our obligation under Fed.R.Civ.P. 12(b)(6) to give the complaint a deferential reading, accepting the well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs. See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 37 (1st Cir.1991); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989).
Appellant Clarissa Miranda Rodriguez (Miranda) was employed by Ponce Federal Bank (Bank) from June 9, 1980 until March 25, 1988. Beginning in the summer of 1986, Miranda cooperated in a federal money-laundering probe. The Bank’s officers repeatedly encouraged her to mislead federal investigators, implied that she might be promoted if she did so, and stressed the importance of fealty to her employer. This gestalt — cooperation on Miranda’s part notwithstanding dissuasion by her superiors— continued for almost two years and climaxed in Miranda’s dismissal. Eventually, however, the Bank was charged with, and convicted of, numerous currency-reporting violations. See United States v. Ponce Fed. Bank, 883 F.2d 1 (1st Cir.1989) (per curiam).
After losing her job, Miranda brought suit in federal district court against the Bank and several of its officers. Jurisdiction was premised on the existence of a federal question. See 28 U.S.C. § 1331 (1988). On defendants’ motion, the district court dismissed most of Miranda’s federal claims, but gave her an opportunity to re-plead certain RICO counts. Miranda did so, purposing in her amended complaint to invoke 18 U.S.C. § 1962(c) and (d). When the defendants renewed their Rule 12(b)(6) motion, the district court acted favorably on it. 751 F.Supp. 18. This appeal followed.
II. STANDARD OF REVIEW
Appellate review of a dismissal under Fed.R.Civ.P. 12(b)(6) is plenary. In the course thereof, we apply the principle that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of h[er] claim which would entitle h[er] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). There are, however, limits on this generous formulation. For one thing, the complaint must be anchored in a bed of facts, not allowed to float freely on a sea of bombast. See Dartmouth Review, 889 F.2d at 16. That is to say, a court assessing a claim’s sufficiency has no obligation to take matters on blind faith; “[d]espite the highly deferential reading which we accord a litigant’s complaint under Rule 12(b)(6), we need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation.” Correa-Martinez, 903 F.2d at 52.
For another thing, in cases alleging civil RICO violations, particular care is required to balance the liberality of the Civil Rules with the necessity of preventing abusive or vexatious treatment of defendants. See, e.g., Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir.1990); see also Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982) (elucidating a similar principle in respect to civil rights suits), cert. denied, 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1301 (1983). Civil RICO is an unusually potent weapon — the litigation equivalent of a thermonuclear device. The very pendency of a RICO suit can be stigmatizing and its consummation can be costly; a prevailing plaintiff, for example, stands to receive treble damages and attorneys’ fees. See 18 U.S.C. § 1964(c). For these reasons, it would be unjust if a RICO plaintiff could defeat a motion to dismiss simply by asserting an inequity attributable to a defendant’s conduct and tacking on the self-serving conclusion that the conduct amounted to racketeering. Hence, to avert dismissal under Rule 12(b)(6), a civil RICO complaint must, at a bare minimum, state facts sufficient to portray (i) specific instances of racketeering activity within the reach of the RICO statute and (ii) a causal nexus between that activity and the harm alleged.
With these tenets in mind, we turn to the particulars of the case at bar.
III. THE RICO ENTERPRISE
Insofar as appellant's suit named the Bank as a RICO defendant, it was clearly insupportable. The statute under which suit was brought provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). We have consistently interpreted the statutory requirement that a culpable person be “employed by or associated with” the RICO enterprise as meaning that the same entity cannot do double duty as both the RICO defendant and the RICO enterprise. See Arzuaga-Collazo v. Oriental Fed. Sav. Bank, 913 F.2d 5, 6 (1st Cir.1990) (“[T]he unlawful enterprise itself cannot also be the person the plaintiff charges with conducting it.”); Odishelidze v. Aetna Life & Casualty Co., 853 F.2d 21, 23 (1st Cir.1988) (per curiam) (“[I]t is clear that under § 1962(c) the ‘person’ alleged to be engaged in a racketeering activity ... must be an entity distinct from the ‘enterprise.’ ”) (footnote omitted); Schofield v. First Commodity Corp., 793 F.2d 28, 29-30 (1st Cir.1986) (identifying similar rulings in other circuits). Because the racketeer and the enterprise must be distinct, Miranda’s claim against the Bank cannot succeed.
Appellant’s attempt to avoid this result by casting the Bank as an active participant in the RICO scheme is ineffectual. The enterprise, even if itself blameworthy, cannot also be answerable as a defendant under section 1962(c). See Schofield, 793 F.2d at 30. Her attempt to invoke the specter of vicarious responsibility is equally lame. Section 1962(c) does not recognize corporate liability on the enterprise’s part under a theory of respondeat superior, even though individual officers or employees of the enterprise, acting within the scope and course of their employment, may themselves be culpable. See id. at 32-33.
We decline to paint the lily. It is enough to say that, as to the Bank, the RICO claims were properly dismissed.
IV. THE RICO SCHEMES
Upholding the order of dismissal as to the Bank does not complete our task. Officers of a corporate enterprise may be personally liable for civil RICO violations if they conducted their employer’s affairs through a proscribed pattern of racketeering activity. See Schofield, 793 F.2d at 30. We must, therefore, examine the particular allegations of the amended complaint as those allegations pertain to the individual defendants.
The pleadings, though copious, are vague and inexplicit. Read indulgently, the amended complaint and the accompanying case statement, see supra note 3, hint at RICO claims based, variously, on actual obstruction of justice and on conspiracy to obstruct justice. Miranda’s appellate brief is in the same vein. At oral argument, however, Miranda’s counsel seemed to confess that the only discernible pattern of racketeering activity involved the money-laundering scheme. For the sake of completeness, we overlook the inconsistencies in the appellant’s presentation and explore all three theories.
A. Obstruction of Justice.
In her amended complaint, Miranda alleges in substance that the defendants entered into a scheme of RICO activity, the purpose of which was to obstruct the ongoing federal investigation in violation of 18 U.S.C. § 1510 (1988). She then claims that her discharge was in furtherance of this obstruction-of-justice scheme. We believe that the effort to rest a RICO count on this jerry-built foundation possesses three significant flaws.
First, it is settled beyond peradventure that civil liability under 18 U.S.C. § 1962(c) requires a named defendant to have participated in the commission of two or more predicate crimes within the compendium described in 18 U.S.C. § 1961(1). See Feinstein, 942 F.2d at 41; Fleet Credit Corp. v. Sion, 893 F.2d 441, 444 (1st Cir.1990). In her case statement, Miranda, responding to the district court’s request that she “[l]ist the alleged predicate acts and the specific statutes which were allegedly violated,” speaks only of her treatment at the defendants’ hands and cites only 18 U.S.C. § 1510. That statute provides in relevant part:
Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined not more than $5,000, or imprisoned not more than five years, or both.
18 U.S.C. § 1510(a) (1988). The appellant does not allege that she was induced through offers of money or tangible goods to mislead the federal investigators or to cease her participation in the probe. Indeed, the only averment that could possibly be construed as constituting bribery within the ambit of section 1510 is Miranda’s claim that a promotion was dangled as a possible reward for steering federal investigators down the garden path. Assuming, for argument’s sake, the adequacy of this averment qua bribery, more was required; proof of at least two predicate acts is needed to establish a pattern of racketeering-activity. See 18 U.S.C. § 1961(5) (defining “pattern of racketeering activity”); Sedima, S.P.R.L. v. Imrex Co., 478 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985) (noting that while two acts of racketeering activity are necessary to comprise a RICO pattern, they may not be sufficient). Thus, if the implied promise of a future promotion could be viewed as one act of bribery — a matter on which we do not opine — the requisite second act would still be wanting. For that reason, the amended complaint failed to state an actionable claim under 18 U.S.C. § 1962(c).
Second, even on the supposition that two related predicate acts could somehow be tortured from the sprawling rhetoric contained in the pleadings, the appellant, on this record, would run up against another insurmountable obstacle. To succeed on a claim under 18 U.S.C. § 1962(c), Miranda must plead and prove that the defendants’ scheme amounted to, or posed a threat of, continuing criminal activity. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 238-39, 109 S.Ct. 2893, 2900-01, 106 L.Ed.2d 195 (1989); Feinstein, 942 F.2d at 44. The only scheme to obstruct justice that is alleged in the amended complaint is a scheme to prevent Miranda from participating in the federal indagation. There was no claim that, after Miranda had been cashiered, other obstructionist tactics were afoot or that other employees remained in similar jeopardy. As the pleadings stand, once Miranda was discharged, the scheme, by definition, was at an end. Continuing racketeering activity of the type alleged, i.e., obstruction of justice, no longer persisted, nor was there any serious threat that such activity would likely be resumed. In such circumstances, the essential element of continuity could not be found. See, e.g., Feinstein, 942 F.2d at 45-46 (discussing continuity requirement); Fleet Credit, 893 F.2d at 445-46 (similar).
Finally, apart from the predicate act and continuity prerequisites, another crucial element of a successful RICO claim was missing from the amended complaint. In order to prevail under 18 U.S.C. § 1962(c), a plaintiff must establish a causal relationship between the racketeering predicates and her asserted injury. See Sedima, 473 U.S. at 497, 105 S.Ct. at 3285 (“Any recoverable damages occurring by reason of a violation of § 1962(c) will flow from the commission of the predicate acts.”). Because the injury complained of here — Miranda’s loss of employment — was not the product of bribery or any other predicate crime, see generally 18 U.S.C. § 1961(1) (enumerating RICO predicates), but of her dismissal, the injury cannot be said to have occurred “by reason of” a RICO violation. Put another way, a claim for wrongful discharge cannot be successfully pursued under civil RICO when the injury itself is not the result of a predicate act. See Pujol v. Shearson/American Express, Inc., 829 F.2d 1201, 1205 (1st Cir.1987) (injury stemming from discharge is not actionable under RICO because it does not flow from defendant’s acts of mail and wire fraud); Nodine v. Textron, Inc., 819 F.2d 347, 349 (1st Cir.1987) (similar); see also Reddy v. Litton Indus., Inc., 912 F.2d 291, 294 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 332, 116 L.Ed.2d 272 (1991); Kramer v. Bachan Aerospace Corp., 912 F.2d 151, 154-56 (6th Cir.1990); O’Malley v. O’Neill, 887 F.2d 1557, 1561-62 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 (3d Cir.1989); Burdick v. American Express Co., 865 F.2d 527, 529 (2d Cir.1989) (per curiam); Cullom v. Hibernia Nat’l Bank, 859 F.2d 1211, 1216 (5th Cir.1988).
Notwithstanding the rule that wrongful discharge claims are not ordinarily redress-able under RICO, we at one time left open the possibility that a different result might inure if the firing occurred as a direct result of an obstruction-of-justice predicate act. See Nodine, 819 F.2d at 349 n. 3 (dictum). By recasting her RICO claim on the fundament of a scheme to obstruct justice instead of resting it on the money-laundering scheme, Miranda was plainly laboring to bring her own situation within the confines of this dictum. She did not succeed. While it may be theoretically possible to allege a wrongful discharge which results directly from the commission of a RICO predicate act, as Nodine suggests, any such safe harbor would be severely circumscribed.
In any event, we need not determine here the exact dimensions of the No-dine dictum. In this case, crediting appellant’s factual allegations, it is nonetheless readily apparent that Miranda was fired not as a means of obstructing justice, but in retaliation for her refusal to facilitate the cover-up. A retaliatory discharge simply does not violate 18 U.S.C. § 1510 — a statute which proscribes only those actions in the nature of bribery that a defendant may utilize to impede another person’s cooperation with federal law enforcement authorities. In short, Miranda has failed to bring her case within any recognized exception to the general rule governing instances of wrongful discharge. Her section 1962(c) count was, therefore, appropriately dismissed. See Pujol, 829 F.2d at 1205 (discussing RICO causal connection requirement in retaliatory discharge cases).
B. Conspiracy to Obstruct Justice.
Invoking 18 U.S.C. § 1962(d), the appellant also alleges that the individual defendants, with others, conspired to devise a scheme of racketeering activity focused on obstruction of justice. On the record before us, we are hard pressed to see how this charge adds materially to the section 1962(c) claim. We explain briefly.
To succeed, a RICO conspiracy claim must charge that defendants knowingly entered into an agreement to commit two or more predicate crimes. See Feinstein, 942 F.2d at 41 (“[E]ach defendant in a RICO conspiracy case must have joined knowingly in the scheme and been involved himself, directly or indirectly, in the commission of at least two predicate offenses.”); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 852, 928, 109 S.Ct. 138, 314, 102 L.Ed.2d 110, 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 1250, 75 L.Ed.2d 479 (1983). Here, the conspiracy allegation is perfunctory. It fails to provide any specifics as to the details of the alleged conspiracy or the predicate acts committed in the pursuit thereof. Like RICO claims generally, see supra Part II, a RICO conspiracy claim that is alleged in wholly conclusory terms will not withstand a motion to dismiss. Cf. e.g., Brennan v. Hendrigan, 888 F.2d 189, 195 (1st Cir.1989) (conclusory allegations of conspiracy are impuissant to state a claim under 42 U.S.C. § 1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977) (similar), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). The section 1962(d) claim is, therefore, insufficient as a matter of law.
At any rate, even if appellant had adequately alleged the existence of an obstruction-of-justice conspiracy, her claim would not pass muster. An actionable claim under section 1962(d), like one under section 1962(c), requires that the complainant’s injury stem from a predicate act within the purview of 18 U.S.C. § 1961(1). Accord Reddy, 912 F.2d at 295 (upholding dismissal of RICO conspiracy charge because injury did not result from the commission of a specified predicate act); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.1990) (“[W]e hold that standing may be founded only upon injury from overt acts that are also section 1961 predicate acts, and not upon any and all overt acts furthering a RICO conspiracy.”). Congress painstakingly enumerated a com-píete list of predicate acts in 18 U.S.C. § 1961(1). For judges, under a conspiracy rubric, to allow RICO damages for an injury caused other than by an enumerated predicate offense would be tantamount to rewriting the statute. Although the Court has stated that Congress intended RICO to be generously construed, see Sedima, 473 U.S. at 497, 105 S.Ct. at 3285, there are bounds to interpretive liberality.
In this instance, as already demonstrated, see supra Part IV(A), the injury Miranda alleged in consequence of the obstruction-of-justice conspiracy (her discharge) was not caused by the commission of a predicate act within the contemplation of 18 U.S.C. § 1961(1). Thus, the district court properly dismissed her section 1962(d) claim.
C. Money Laundering.
At oral argument, the appellant virtually abandoned the claims pleaded in the amended complaint, relying instead upon the underlying scheme to launder money to supply the needed pattern of racketeering activity under 18 U.S.C. § 1962(c). This was, of course, the theory that Miranda pursued in her initial complaint and then disowned when given leave to amend. Although we could simply refuse to consider the argument on grounds of procedural default — it was, after all, neither preserved in the lower court nor meaningfully briefed on appeal — we choose to address it.
Once a RICO pattern has been established, it does not follow that every malefaction a defendant commits will give rise to civil RICO liability. See Sedima, 473 U.S. at 496-97, 105 S.Ct. at 3285; Hecht, 897 F.2d at 24; Norman v. Niagara Mohawk Power Corp., 873 F,2d 634, 636 (2d Cir.1989). So, even if the amended complaint pleaded the money-laundering scheme as a pattern of racketeering activity, nothing would be gained unless the claimant could establish that her injury resulted from the RICO activity. See Sedima, 473 U.S. at 497, 105 S.Ct. at 3285; see also supra Part IV(A) and cases cited. Since Miranda was injured by the loss of her job, however, not as a direct consequence of the defendants’ money-laundering activities, the requisite causal nexus was lacking in her case. The cases are legion that an employee who is fired for tattling about an employer’s wrongdoing, or for refusing to participate in or conceal an illegal scheme, is not deemed to have been injured by reason of a RICO predicate act. See, e.g., Reddy, 912 F.2d at 294; Kramer, 912 F.2d at 154-56; O’Malley, 887 F.2d at 1561-62; Shearin, 885 F.2d at 1168; Burdick, 865 F.2d at 529; Cullom, 859 F.2d at 1216; Pujol, 829 F.2d at 1205; Nodine, 819 F.2d at 349.
V. CONCLUSION
We pause to add an eschatocol of sorts. If the facts are as Miranda alleges, then the defendants’ conduct was reprehensible. But the RICO statute, though often criticized as overly broad, see, e.g., Sedima, 473 U.S. at 500, 506, 105 S.Ct. at 3292, 3295 (Marshall, J., dissenting), is not entirely open-ended. It cannot be used as a surrogate for local law, as a panacea to redress every instance of man’s inhumanity to man, or as a terrible swift sword capable of righting all the wrongs of a troubled world. In the last analysis, we must remember that federal courts are courts of limited jurisdiction. In many cases, as here, our duty is done when we enforce a valid statute as Congress wrote it.
We need go no further. Because Miranda never adequately alleged a RICO claim, and because her pendent claims were subject to dismissal without prejudice for want of subject matter jurisdiction if no federal claim passed muster, see, e.g., Feinstein, 942 F.2d at 47; Brennan, 888 F.2d at 196, her amended complaint was properly dismissed under Civil Rule 12(b)(6). And, since the co-plaintiffs’ federal-law claims, to the extent cognizable at all, see supra note 1, are plainly dependent upon Miranda’s claims, the same result must obtain as to them.
Affirmed. Costs in favor of appellees.
. To flesh out the cast of characters, we note that Miranda's husband and daughter are co-plaintiffs; that the co-defendants include Ramiro Colon (the Bank’s president), Andres Vinas (a vice-president who served as Miranda’s immediate superior during the relevant period), and Jose Alonso (another vice-president); and that the complaint also lists an assortment of John Does, Jane Does, and conjugal partnerships. For ease in reference, we treat Miranda alone as the plaintiff-appellant, taking no view as to the propriety of including her family members as RICO plaintiffs. We abjure further reference to anonymous and/or matrimonial defendants.
. Miranda does not argue that the court erred in originally dismissing her other federal-law causes of action. As her case is presently postured, then, her right to a federal forum depends solely on the adequacy vel non of her RICO claims. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir.1990) (points neither briefed nor argued are waived); United States v. Zarmino, 895 F.2d 1, 17 (1st Cir.) (same), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).
. Miranda’s amended complaint was served on March 21, 1990. Approximately twenty days thereafter, in pursuance of a standing order of the district court applicable to all RICO cases, Miranda filed a so-called “RICO case statement.” The parties and the court below have treated the case statement as an extension of the amended complaint, rather than as a "matter[] outside the pleadings” which would, under Fed.R.Civ.P. 12(b), convert the motion to dismiss into a motion for summary judgment. On appellate review, we follow the same course, considering the facts set forth in the case statement as part of the amended complaint.
. Miranda also asserts a claim against the Bank based on RICO's conspiracy provision, 18 U.S.C. § 1962(d). But, this claim alleges a conspiracy to violate 18 U.S.C. § 1962(c). Thus, the conspiracy claim suffers from precisely the same infirmity as the section 1962(c) claim, and need not be discussed separately.
. To be sure, the amended complaint alleged in conclusory fashion that the “defendants were ... engaged in a similar scheme” against another Bank employee, Awilda Arroyo, and that, roughly contemporaneous with Miranda’s firing, Arroyo was likewise cashiered. But these allegations (a) were never fleshed out, (b) appear to have been abandoned in the case statement, and (c) do not suggest that bribery, or other conduct inimical to 18 U.S.C. § 1510, transpired with respect to Arroyo. By the same token, the amended complaint also mentioned 18 U.S.C. § 1511 (1988). That statute criminalizes obstruction of state or local law enforcement activities. See id. Because appellant's reference to any investigation other than a federal investigation is vague and unparticularized, and because section 1511 was not cited as the basis for any predicate offenses in either Miranda’s case statement or appellate brief, we need not dwell upon this reference.
. To the extent that Miranda envisions each individual incident of harassment as constituting a predicate act within the purview of 18 U.S.C. § 1510(a), her asseveration is unworthy of extended discussion. Such a construction of the obstruction statute is bereft of any discernible basis in law, language, or logic. And in the bargain, so balkanized a reading would eviscerate the pattern requirement upon which RICO liability depends.
. The appellant’s mention of a similarly situated coworker, Arroyo, even if otherwise cognizable, see supra note 5, did not fill this void. By the appellant’s own account, both she and Arroyo were fired at roughly the same time.
. In Nodine, although holding an obstruction-of-a-criminal-investigation allegation to be inadequate for lack of factual basis, we observed that this allegation came “closest to satisfying [RICO’s] injury requirement.” Nodine, 819 F.2d at 349 n. 3. At least one other court has taken this observation to suggest that "allegations of obstruction of justice might satisfy [the] standing requirement in certain cases involving dismissals of employees for reporting violations." Kramer, 912 F.2d at 155 (emphasis in original).
. This case is factually distinguishable from Shearin, 885 F.2d 1162, a case in which the Third Circuit ruled that "[p]redicate acts for [a RICO] conspiracy do not of necessity consist of section 1961(1) racketeering activity.” Id. at 1169. At any rate, to the extent, if at all, that Shearin is doctrinally incompatible with the rule we announce today, we, like other circuits, see, e.g., Reddy, 912 F.2d at 295; Hecht, 897 F.2d at 25-26, find Shearin's reasoning to be unconvincing.
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_r_fiduc
|
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 "fiduciaries". 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.
NEW YORK LIFE INS. CO. v. TOLBERT.
No. 527.
Circuit Court of Appeals; Tenth Circuit.
Jan. 5, 1932.
Henry McAllister, of Denver, Colo. (Louis H. Cooke, of New York City, on the brief), for appellant.
Erskino R. Myer, of Denver, Colo. (Norton Montgomery, of Denver, Colo., on the brief), for appellee.
Before COTTERAL and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.
COTTERAL, Circuit Judge.
The appellant issued a poliey, dated August 23, 1928, for $10,000, to Don A. Tolbert, naming his wife, the appellee, as his beneficiary, in consideration of an annual premium of $363, for the period of one year from said date, and a like payment each year thereafter. He died on December 30, 1929. After proofs of the death were furnished by the appellee to the company and payment of the insurance was refused, she brought this suit on the policy. The cause was tried upon an agreed statement of tho facts. The question involved was whether, by virtue of the premiums paid, the poliey was in force at the death of the insured. The District Court ruled it was and rendered judgment for the appellee. The company appeals and assigns the judgment as error, contending the poliey had lapsed before his death, for nonpayment of the necessary premium.
The application for the insurance was dated August 14, 1928, and stipulated that it should not take effect “unless and until the poliey is delivered to and received by the applicant and tho first premium thereon paid in full during his life time.” Tho policy was both dated and executed on August 23, 1928. It contained these provisions: ’
“This contract is made in consideration of the application therefor and of the payment in advance of the sum of $363.00', tho receipt of which is hereby acknowledged, constituting tho first premium and maintaining this Policy for the period terminating on the Twenty-third day of August, Nineteen Hundred and Twenty-nine, and of a like sum on said date and every Twelve calendar months thereafter during the life of tho Insured. * * *
“This Policy takes effect as of the Twenty-third day of August, Nineteen Hundred and Twenty-eight, which day is the anniversary of tho Poliey.”
Tho policy recites the contract was to consist of tho poliey and the application 'therefor, and was to he deemed as made and payable in Colorado. There were provisions that grace of one month was allowed for tho payment of every premium after 1ho first; it might be paid annually, semiannually, or quarterly in advance; the payment was not to maintain tho policy beyond tho time the next payment should become due (except as to certain benefits), and the poliey was incontestable after two years from date of issue except for nonpayment of premium.
Tho poliey was sent to the soliciting agent; he delivered it to the insured on September 1, 1928, and on that date the first payment of premium was made.
On August 16, 1929, the insured wrote the company the premium of $363 was due on August 23, 1929, he wished to make quarterly payments, and asked the amounts due on that plan. On his request, the company agreed to quarterly payments of $96.30 each, specifying that the terms and conditions of the policy, including its anniversary date, should remain unchanged. On September 21, 1929, he wrote the company, remitting $96.30 by a special delivery letter, in order to reach the company on September 23. The company issued its receipt to him, reciting the due date of the premiums as August 23, 1929. He wrote the company on November 24, 1929, stating his quarterly premium of $96.30 was due, he could not afford those payments for the next few months, and he would like to split the poliey “up to where my payments would not exceed $40.00 per quarter, and have option (if possible to arrange it) of going back later on and paying up the difference.”
On November 27, 1929, the company replied, suggesting that, if he could not pay the premiums every three months, the insurance be reduced by a form inclosed to $5,000 at a quarterly premium of $48.15, adding that the last day of grace of the November premium would expire December 23, and asking a remittance of $48.15 on the changed basis, on or before that date. On December 5, 1929, the company wrote him it would be pleased to receive the changed form, with cheek for $48.15, the quarterly premium on the new basis, on or before December 23, the last day for the payment of the November 23d quarterly premium. On December 13, 1929, the company wrote him it had not received the quarterly premium of $48.15, reminding him that December 23 was the last grace day for payment of the November 23d premium, and urging such payment by that date.
On December 18, 1929, he wrote the company that conditions compelled him to lapse the poliey, but he wished some arrangement, if possible, for reinstatement, as he expected to have $200 or $300 in March or April, for payment on premiums.
On December 23, 1929, the company replied that, if he became able later to take up a part of the policy or fully pay the premiums, it would advise him of the requirements for re-instatement.
There were no further communications between the parties. The inquiry is whether the poliey had lapsed at the death of the assured on December 30, 1929, or was still in force. It is obvious the decisive point is the date on which the premium fell due; in other words, the anniversary date of the policy. If it was on August 23, as appellant claims, then, as the premium was paid only for a year and a quarter and up to November 23, 1929, and one month of grace being added, the poliey lapsed on December 23, 1929, which was seven days before the death of the assured. But if, as appellee claims, the premium date and the anniversary of the poliey was September 1, then the poliey was in force until one day after his death.
In our opinion, the premium due date was August 23, because the policy expressly provided that the insurance was made in consideration of the first premium carrying the poliey until August 23, 1929, and of a like sum on said date each year thereafter, and, further, that August 23 was the anniversary of the poliey. True, the application recited that the insurance should not take effect unless the policy should be delivered and received by the applicant and the first premium should be paid. And counsel for appellee, insisting there is a conflict in these provisions, invoke the settled rule, where there is ambiguity in an insurance contract it should be resolved in favor, of the assured. But there was no such conflict of agreement with regard to the due date of the premiums and the anniversary of the poliey. The poliey fixed those dates and the application merely annexed a condition precedent to the liability of the insurance company and not to the existence of the policy. Hurt v. N. Y. Life Ins. Co. (C. C. A.) 51 F.(2d) 936.
The question whether there is a conflict between like terms of a policy and an application has been decided in, many eases. It is thoroughly settled by the authorities that there is none, and that the policy alone embodies the contract of the parties. The principle was reaffirmed in the Eighth circuit as late as December 1, 1931, in New York Life Ins. Co. v. Silverstein, 53 F.(2d) 986, where the precedents cited were Mc-Campbell v. New York Life Ins. Co. (C. C. A.) 288 E. 465, McConnell v. Prov. Sav. Life Assur. Soc. (C. C. A.) 92 F. 769, and Sellars v. Cont. Life Ins. Co. (C. C. A.) 30 F.(2d) 42. It is unnecessary to cite the numerous decisions to the same effect.
But if it be assumed the contract of these parties was ambiguous, the premium due dates and the anniversary of the poliey were as fixed by the policy. One reason is that the poliey rather than the application then controls. N. Y. Life Ins. Co. v. Silverstein, supra; N. Y. Life Ins. Co. v. Cohen (D. C.) 48 F.(2d) 903. Another reason is that the correspondence of the insured showed he clearly understood those dates, and this construction of the contract with which the company agreed is not only entitled to great weight, but it is also the best indication of the meaning of the contract. Brooklyn L. Insurance Co. v. Dutcher, 95 U. S. 269, 24 L. Ed. 410; Manhattan Life Ins. Co. v. Wright (C. C. A.) 126 F. 82; Candelaria v. Col. N. L. Ins. Co., 60 Colo. 340, 153 P. 447; Mut. Life Ins. Co. v. Hill, 193 U. S. 551, 24 S. Ct. 538, 48 L. Ed. 788. But, as heretofore stated, no such ambiguity existed. As was aptly ruled by-Judge Sanborn in Standard L. & A. Ins. Co. v. McNulty (C. C. A.) 157 F. 224, 226, a rule of construction “ought not to be permitted to have the effect to make a plain agreement ambiguous, and then to interpret it in favor of the insured.”
Counsel for the appellee contend that by the laws of Colorado the policy was in force at the death of the insured. We do not find any provision therein which justifies that contention. We advert to statutes cited which appear to bear on the subject.
Section 2528, Comp. Laws 1921, prohibits discrimination between insurants of the same class, ete., or in other terms and conditions. Session Laws, 1927, c. 115, p. 450, provides that a policy shall by its terms constitute the entire contract; no statement by the assured shall avoid the policy unless contained in a written application indorsed upon or attached to the policy; and there shall be a grace of one month for the payment of every premium after the first year. Only one of these provisions is pertinent, and it is that the policy shall constitute the contract. But the application was made a part of the policy in suit, and, furthermore, if it were not so, the appellee may not claim it had any force as a part of the contract.
It is argued that, as the policy authorized a grace of one month for the payment of every premium after the first, and the statute reads “for the payment of every premium after the first year,” the insurance was valid from September 1 to December 1, 1929, plus one month, or up to December 31, 1929. But this is a misconception, which arises from the erroneous assumption that the statute refers to years dating from the delivery of the policy instead of years which by the contract followed the dates of the policy and of the premium payments.
The insistence that the policy permits any discrimination between insurants is without support in any of the terms of the policy in suit. The remaining contentions based on the state law are not deemed to possess merit.
Many cases are cited by counsel for appellee to sustain her claim. Generally, the facts upon which they proceed are so vitally different from those shown here that the citations are not in point. It would be a vain effort to analyze them and point out the difference. It may not be amiss, however, to notice McMaster v. New York Life Ins. Co., 183 U. S. 25, 22 S. Ct. 10, 46 L. Ed. 64, on which appellee relies. In that case, the understanding of the assured and agent of the company was that payment of one year’s premium obtained insurance for thirteen months. That period had not expired at the death of the assured. It was held the company might not maintain the. insurance ran from the earlier date of the application and lapsed before his death, when it appeared the agent had inserted in the application, without the knowledge or consent of the assured, a request that the policies be dated and take effeet on the date of the application; and it was further held that the plaintiff was not estopped to deny the insurance was forfeited in thirteen months from that date. It is obvious the case is inapplicable, and the courts have distinguished it. Forch v. West L. I. Co., 157 Ill. App. 244; Johnson v. Mut. Benefit L. Ins. Co. (C. C. A.) 143 F. 950; Tigg v. Register L. & A. Ins. Co., 152 Iowa, 720, 133 N. W. 322; Pladwwll v. Trav. Ins. Co., 134 Misc. Rep. 205, 234 N. Y. S. 287; Wilkie v. N. Y. Life Ins. Co., 146 N. C. 513, 60 S. E. 427; McCampbell v. N. Y. Life Ins. Co. (C. C. A.) 288 F. 465; Wilkinson v. Commonwealth L. Ins. Co., 176 Ky. 833, 197 S. W. 557, 6 A. L. R. 769.
It was certainly competent for the parties to this insurance to agree upon the dates of the policy and of the premium payments. Mut. Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; Whitney v. Union Cent. L. Ins. Co. (C. C. A.) 47 F.(2d) 861. Accordingly, the policy lapsed on December 23, 1929, before the death of the insured, for the nonpayment of premium required by the contract of the parties. New York Life Insurance Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789; Klein v. Insurance Co., 104 U. S. 88, 26 L. Ed. 662; Lincoln Nat. Life Ins. Co. v. Hammer (C. C. A.) 41 F.(2d) 12.
The District Court therefore erred in rendering judgment for the appellee. The appellant should have prevailed. The judgment is reversed, and the cause is remanded, with direction to render judgment dismissing the action, and taxing all costs to appellee. Howbert v. Penrose (C. C. A.) 38 F.(2d) 577, 68 A. L. R. 820.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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sc_certreason
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K
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
Eleanor McCULLEN, et al., Petitioners
v.
Martha COAKLEY, Attorney General of Massachusetts, et al.
No. 12-1168.
Supreme Court of the United States
Argued Jan. 15, 2014.
Decided June 26, 2014.
Held Unconstitutional
M.G.L.A. c. 266, §§ 120E1/2(b-d)
Syllabus*
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act, which had been enacted in 2000 to address clashes between abortion opponents and advocates of abortion rights outside clinics where abortions were performed. The amended version of the Act makes it a crime to knowingly stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any "reproductive health care facility," defined as "a place, other than within or upon the grounds of a hospital, where abortions are offered or performed." Mass. Gen. Laws, ch. 266, §§ 120E 1/2(a), (b). The Act exempts from this prohibition four classes of individuals, including "employees or agents of such facility acting within the scope of their employment." § 120E 1/2 (b)(2). Another provision of the Act proscribes the knowing obstruction of access to an abortion clinic. § 120E 1/2(e).
McCullen and the other petitioners are individuals who attempt to engage women approaching Massachusetts abortion clinics in "sidewalk counseling," which involves offering information about alternatives to abortion and help pursuing those options. They claim that the 35-foot buffer zones have displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts. Their attempts to communicate with patients are further thwarted, they claim, by clinic "escorts," who accompany arriving patients through the buffer zones to the clinic entrances.
Petitioners sued Attorney General Coakley and other Commonwealth officials, seeking to enjoin the Act's enforcement on the ground that it violates the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied both challenges, and the First Circuit affirmed. With regard to petitioners' facial challenge, the First Circuit held that the Act was a reasonable "time, place, and manner" regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661.
Held : The Massachusetts Act violates the First Amendment. Pp. 2528 - 2541.
(a) By its very terms, the Act restricts access to "public way[s]" and "sidewalk[s]," places that have traditionally been open for speech activities and that the Court has accordingly labeled "traditional public fora," Pleasant Grove City v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853. The government's ability to regulate speech in such locations is "very limited." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736. "[E]ven in a public forum," however, "the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information,' " Ward, supra, at 791, 109 S.Ct. 2746. Pp. 2528 - 2530.
(b) Because the Act is neither content nor viewpoint based, it need not be analyzed under strict scrutiny. Pp. 2530 - 2534.
(1) The Act is not content based simply because it establishes buffer zones only at abortion clinics, as opposed to other kinds of facilities. First, the Act does not draw content-based distinctions on its face. Whether petitioners violate the Act "depends" not "on what they say," Holder v. Humanitarian Law Project, 561 U.S. 1, 27, 130 S.Ct. 2705, 177 L.Ed.2d 355, but on where they say it. Second, even if a facially neutral law disproportionately affects speech on certain topics, it remains content neutral so long as it is " 'justified without reference to the content of the regulated speech.' " Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29. The Act's purposes include protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets. The Court has previously deemed all these concerns to be content neutral. See Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333. An intent to single out for regulation speech about abortion cannot be inferred from the Act's limited scope. "States adopt laws to address the problems that confront them." Burson v. Freeman, 504 U.S. 191, 207, 112 S.Ct. 1846, 119 L.Ed.2d 5. There was a record of crowding, obstruction, and even violence outside Massachusetts abortion clinics but not at other kinds of facilities in the Commonwealth. Pp. 2526 - 2532.
(2) The Act's exemption for clinic employees and agents acting within the scope of their employment does not appear to be an attempt to favor one viewpoint about abortion over the other. City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36, distinguished. Given that some kind of exemption was necessary to allow individuals who work at the clinics to enter or remain within the buffer zones, the "scope of employment" qualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. Even assuming that some clinic escorts have expressed their views on abortion inside the zones, the record does not suggest that such speech was within the scope of the escorts' employment. If it turned out that a particular clinic authorized its employees to speak about abortion in the buffer zones, that would support an as-applied challenge to the zones at that clinic. Pp. 2532 - 2534.
(c) Although the Act is content neutral, it is not "narrowly tailored" because it "burden[s] substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U.S., at 799, 109 S.Ct. 2746. Pp. 2534 - 2540.
(1) The buffer zones serve the Commonwealth's legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. See Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1. At the same time, however, they impose serious burdens on petitioners' speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to "protest" outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners' message. Pp. 2535 - 2537.
(2) The buffer zones burden substantially more speech than necessary to achieve the Commonwealth's asserted interests. Subsection (e) of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances. While the Commonwealth contends that individuals can inadvertently obstruct access to clinics simply by gathering in large numbers, that problem could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police. In any event, crowding appears to be a problem only at the Boston clinic, and even there, only on Saturday mornings.
The Commonwealth has not shown that it seriously undertook to address these various problems with the less intrusive tools readily available to it. It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s. The Commonwealth responds that the problems are too widespread for individual prosecutions and injunctions to be effective. But again, the record indicates that the problems are limited principally to the Boston clinic on Saturday mornings, and the police there appear perfectly capable of singling out lawbreakers. The Commonwealth also claims that it would be difficult to prove intentional or deliberate obstruction or intimidation and that the buffer zones accordingly make the police's job easier. To meet the narrow tailoring requirement, however, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier. In any event, to determine whether someone intends to block access to a clinic, a police officer need only order him to move; if he refuses, then there is no question that his continued conduct is knowing or intentional. For similar reasons, the Commonwealth's reliance on Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5, is misplaced. There, the Court upheld a law establishing buffer zones outside polling places on the ground that less restrictive measures were inadequate. But whereas "[v]oter intimidation and election fraud" are "difficult to detect," id., at 208, 112 S.Ct. 1846, obstruction and harassment at abortion clinics are anything but subtle. And while the police "generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process," id., at 207, 112 S.Ct. 1846, they maintain a significant presence outside Massachusetts abortion clinics. In short, given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked. Pp. 2537 - 2540.
708 F.3d 1, reversed and remanded.
ROBERTS, C.J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.
Mark L. Rienzi, Washington, DC, for Petitioners.
Jennifer Grace Miller, Boston, MA, for Respondents.
Ian H. Gershengorn, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Edward C. DuMont, Todd C. Zubler, Matthew Guarnieri, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Jason D. Hirsch, Adriel I. Cepeda Derieux, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Mark L. Rienzi, Counsel of Record, The Catholic University of America, Columbus School of Law, Washington, DC, Michael J. DePrimo, Hamden, CT, Philip D. Moran, Salem, MA, for Petitioners.
Martha Coakley, Attorney General, Jennifer Grace Miller, Counsel of Record, Jonathan B. Miller, Sookyoung Shin, Assistant Attorneys General, Commonwealth of Massachusetts, Office of the Attorney General, Boston, MA, for Respondents.
Chief Justice ROBERTS delivered the opinion of the Court.
A Massachusetts statute makes it a crime to knowingly stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Mass. Gen. Laws, ch. 266, §§ 120E 1/2(a), (b) (West 2012). Petitioners are individuals who approach and talk to women outside such facilities, attempting to dissuade them from having abortions. The statute prevents petitioners from doing so near the facilities' entrances. The question presented is whether the statute violates the First Amendment.
I
A
In 2000, the Massachusetts Legislature enacted the Massachusetts Reproductive Health Care Facilities Act, Mass. Gen. Laws, ch. 266, § 120E 1/2 (West 2000). The law was designed to address clashes between abortion opponents and advocates of abortion rights that were occurring outside clinics where abortions were performed. The Act established a defined area with an 18-foot radius around the entrances and driveways of such facilities. § 120E 1/2 (b). Anyone could enter that area, but once within it, no one (other than certain exempt individuals) could knowingly approach within six feet of another person-unless that person consented-"for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." Ibid. A separate provision subjected to criminal punishment anyone who "knowingly obstructs, detains, hinders, impedes or blocks another person's entry to or exit from a reproductive health care facility." § 120E 1/2(e).
The statute was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F.3d 45 (2004)( McGuire II ), cert. denied, 544 U.S. 974, 125 S.Ct. 1827, 161 L.Ed.2d 724 (2005); McGuire v. Reilly, 260 F.3d 36 (2001)( McGuire I ).
By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate. At legislative hearings, multiple witnesses recounted apparent violations of the law. Massachusetts Attorney General Martha Coakley, for example, testified that protestors violated the statute "on a routine basis." App. 78. To illustrate this claim, she played a video depicting protestors approaching patients and clinic staff within the buffer zones, ostensibly without the latter individuals' consent. Clinic employees and volunteers also testified that protestors congregated near the doors and in the driveways of the clinics, with the result that prospective patients occasionally retreated from the clinics rather than try to make their way to the clinic entrances or parking lots.
Captain William B. Evans of the Boston Police Department, however, testified that his officers had made "no more than five or so arrests" at the Planned Parenthood clinic in Boston and that what few prosecutions had been brought were unsuccessful. Id., at 68-69. Witnesses attributed the dearth of enforcement to the difficulty of policing the six-foot no-approach zones. Captain Evans testified that the 18-foot zones were so crowded with protestors that they resembled "a goalie's crease," making it hard to determine whether a protestor had deliberately approached a patient or, if so, whether the patient had consented. Id., at 69-71. For similar reasons, Attorney General Coakley concluded that the six-foot no-approach zones were "unenforceable." Id., at 79. What the police needed, she said, was a fixed buffer zone around clinics that protestors could not enter. Id., at 74, 76. Captain Evans agreed, explaining that such a zone would "make our job so much easier." Id., at 68.
To address these concerns, the Massachusetts Legislature amended the statute in 2007, replacing the six-foot no-approach zones (within the 18-foot area) with a 35-foot fixed buffer zone from which individuals are categorically excluded. The statute now provides:
"No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway." Mass. Gen. Laws, ch. 266, § 120E 1/2(b) (West 2012).
A "reproductive health care facility," in turn, is defined as "a place, other than within or upon the grounds of a hospital, where abortions are offered or performed." § 120E 1/2(a).
The 35-foot buffer zone applies only "during a facility's business hours," and the area must be "clearly marked and posted." § 120E 1/2(c). In practice, facilities typically mark the zones with painted arcs and posted signs on adjacent sidewalks and streets. A first violation of the statute is punishable by a fine of up to $500, up to three months in prison, or both, while a subsequent offense is punishable by a fine of between $500 and $5,000, up to two and a half years in prison, or both. § 120E 1/2(d).
The Act exempts four classes of individuals: (1) "persons entering or leaving such facility"; (2) "employees or agents of such facility acting within the scope of their employment"; (3) "law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment"; and (4) "persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility." § 120E 1/2 (b)(1)-(4). The legislature also retained the separate provision from the 2000 version that proscribes the knowing obstruction of access to a facility. § 120E 1/2(e).
B
Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call "sidewalk counseling," which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: "Good morning, may I give you my literature? Is there anything I can do for you? I'm available if you have any questions." App. 138. If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners' view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.
The buffer zones have displaced petitioners from their previous positions outside the clinics. McCullen offers counseling outside a Planned Parenthood clinic in Boston, as do petitioners Jean Zarrella and Eric Cadin. Petitioner Gregory Smith prays the rosary there. The clinic occupies its own building on a street corner. Its main door is recessed into an open foyer, approximately 12 feet back from the public sidewalk. Before the Act was amended to create the buffer zones, petitioners stood near the entryway to the foyer. Now a buffer zone-marked by a painted arc and a sign-surrounds the entrance. This zone extends 23 feet down the sidewalk in one direction, 26 feet in the other, and outward just one foot short of the curb. The clinic's entrance adds another seven feet to the width of the zone. Id., at 293-295. The upshot is that petitioners are effectively excluded from a 56-foot-wide expanse of the public sidewalk in front of the clinic.1
Petitioners Mark Bashour and Nancy Clark offer counseling and information outside a Planned Parenthood clinic in Worcester. Unlike the Boston clinic, the Worcester clinic sits well back from the public street and sidewalks. Patients enter the clinic in one of two ways. Those arriving on foot turn off the public sidewalk and walk down a nearly 54-foot-long private walkway to the main entrance. More than 85% of patients, however, arrive by car, turning onto the clinic's driveway from the street, parking in a private lot, and walking to the main entrance on a private walkway.
Bashour and Clark would like to stand where the private walkway or driveway intersects the sidewalk and offer leaflets to patients as they walk or drive by. But a painted arc extends from the private walkway 35 feet down the sidewalk in either direction and outward nearly to the curb on the opposite side of the street. Another arc surrounds the driveway's entrance, covering more than 93 feet of the sidewalk (including the width of the driveway) and extending across the street and nearly six feet onto the sidewalk on the opposite side.
Id., at 295-297. Bashour and Clark must now stand either some distance down the sidewalk from the private walkway and driveway or across the street.
Petitioner Cyril Shea stands outside a Planned Parenthood clinic in Springfield, which, like the Worcester clinic, is set back from the public streets. Approximately 90% of patients arrive by car and park in the private lots surrounding the clinic. Shea used to position himself at an entrance to one of the five driveways leading to the parking lots. Painted arcs now surround the entrances, each spanning approximately 100 feet of the sidewalk parallel to the street (again, including the width of the driveways) and extending outward well into the street. Id., at 297-299. Like petitioners at the Worcester clinic, Shea now stands far down the sidewalk from the driveway entrances.
Petitioners at all three clinics claim that the buffer zones have considerably hampered their counseling efforts. Although they have managed to conduct some counseling and to distribute some literature outside the buffer zones-particularly at the Boston clinic-they say they have had many fewer conversations and distributed many fewer leaflets since the zones went into effect. Id., at 136-137, 180, 200.
The second statutory exemption allows clinic employees and agents acting within the scope of their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses "escorts" to greet women as they approach the clinic, accompanying them through the zones to the clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners' attempts to communicate with patients by blocking petitioners from handing literature to patients, telling patients not to "pay any attention" or "listen to" petitioners, and disparaging petitioners as "crazy." Id., at 165, 178.
C
In January 2008, petitioners sued Attorney General Coakley and other Commonwealth officials. They sought to enjoin enforcement of the Act, alleging that it violates the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied petitioners' facial challenge after a bench trial based on a stipulated record. 573 F.Supp.2d 382 (D.Mass.2008).
The Court of Appeals for the First Circuit affirmed. 571 F.3d 167 (2009). Relying extensively on its previous decisions upholding the 2000 version of the Act, see McGuire II, 386 F.3d 45;McGuire I, 260 F.3d 36, the court upheld the 2007 version as a reasonable "time, place, and manner" regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). 571 F.3d, at 174-181. It also rejected petitioners' arguments that the Act was substantially overbroad, void for vagueness, and an impermissible prior restraint. Id., at 181-184.
The case then returned to the District Court, which held that the First Circuit's decision foreclosed all but one of petitioners' as-applied challenges. 759 F.Supp.2d 133 (2010). After another bench trial, it denied the remaining as-applied challenge, finding that the Act left petitioners ample alternative channels of communication. 844 F.Supp.2d 206 (2012). The Court of Appeals once again affirmed. 708 F.3d 1 (2013).
We granted certiorari. 570 U.S. ----, 133 S.Ct. 2857, 186 L.Ed.2d 907 (2013).
II
By its very terms, the Massachusetts Act regulates access to "public way[s]" and "sidewalk[s]."
Mass. Gen. Laws, ch. 266, § 120E 1/2 (b) (Supp. 2007). Such areas occupy a "special position in terms of First Amendment protection" because of their historic role as sites for discussion and debate. United States v. Grace, 461 U.S. 171, 180, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). These places-which we have labeled "traditional public fora"-" 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Pleasant Grove City v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment's purpose "to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail," FCC v. League of Women Voters of Cal., 468 U.S. 364, 377, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice.
In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt-and respondents do not dispute-that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny. See Brief for Respondents 26 (although "[b]y its terms, the Act regulates only conduct," it "incidentally regulates the place and time of protected speech").
Consistent with the traditionally open character of public streets and sidewalks, we have held that the government's ability to restrict speech in such locations is "very limited." Grace, supra, at 177, 103 S.Ct. 1702. In particular, the guiding First Amendment principle that the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" applies with full force in a traditional public forum. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). As a general rule, in such a forum the government may not "selectively... shield the public from some kinds of speech on the ground that they are more offensive than others." Erznoznik v. Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).
We have, however, afforded the government somewhat wider leeway to regulate features of speech unrelated to its content. "[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' " Ward, 491 U.S., at 791, 109 S.Ct. 2746 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). 2
While the parties agree that this test supplies the proper framework for assessing the constitutionality of the Massachusetts Act, they disagree about whether the Act satisfies the test's three requirements.
III
Petitioners contend that the Act is not content neutral for two independent reasons: First, they argue that it discriminates against abortion-related speech because it establishes buffer zones only at clinics that perform abortions. Second, petitioners contend that the Act, by exempting clinic employees and agents, favors one viewpoint about abortion over the other. If either of these arguments is correct, then the Act must satisfy strict scrutiny-that is, it must be the least restrictive means of achieving a compelling state interest. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Respondents do not argue that the Act can survive this exacting standard.
Justice SCALIA objects to our decision to consider whether the statute is content based and thus subject to strict scrutiny, given that we ultimately conclude that it is not narrowly tailored. Post, at 2541 (opinion concurring in judgment). But we think it unexceptional to perform the first part of a multipart constitutional analysis first. The content-neutrality prong of the Ward test is logically antecedent to the narrow-tailoring prong, because it determines the appropriate level of scrutiny. It is not unusual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g.,Bartnicki v. Vopper, 532 U.S. 514, 526-527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001); Holder v. Humanitarian Law Project, 561 U.S. 1, 25-28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny).
The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission, 572 U.S. ----, ----, 134 S.Ct. 1434, 1445-1446, 188 L.Ed.2d 468 (2014) (plurality opinion). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon-the standard that was assumed to apply-would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.
At the same time, there is good reason to address content neutrality. In discussing whether the Act is narrowly tailored, see Part IV, infra, we identify a number of less-restrictive alternative measures that the Massachusetts Legislature might have adopted. Some apply only at abortion clinics, which raises the question whether those provisions are content neutral. See infra, at 2531 - 2532. While we need not (and do not) endorse any of those measures, it would be odd to consider them as possible alternatives if they were presumptively unconstitutional because they were content based and thus subject to strict scrutiny.
A
The Act applies only at a "reproductive health care facility," defined as "a place, other than within or upon the grounds of a hospital, where abortions are offered or performed." Mass. Gen. Laws, ch. 266, § 120E 1/2(a). Given this definition, petitioners argue, "virtually all speech affected by the Act is speech concerning abortion," thus rendering the Act content based. Brief for Petitioners 23.
We disagree. To begin, the Act does not draw content-based distinctions on its face. Contrast Boos v. Barry, 485 U.S. 312, 315, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (ordinance prohibiting the display within 500 feet of a foreign embassy of any sign that tends to bring the foreign government into " 'public odium' " or " 'public disrepute' "); Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (statute prohibiting all residential picketing except "peaceful labor picketing"). The Act would be content based if it required "enforcement authorities" to "examine the content of the message that is conveyed to determine whether" a violation has occurred. League of Women Voters of Cal., supra, at 383, 104 S.Ct. 3106. But it does not. Whether petitioners violate the Act "depends" not "on what they say," Humanitarian Law Project, supra, at 27, 130 S.Ct. 2705, but simply on where they say it. Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.
It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the "inevitable effect" of restricting abortion-related speech more than speech on other subjects. Brief for Petitioners 24 (quoting United States v. O'Brien, 391 U.S. 367, 384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). But a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, supra, at 791, 109 S.Ct. 2746. The question in such a case is whether the law is " 'justified without reference to the content of the regulated speech.' " Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); emphasis deleted).
The Massachusetts Act is. Its stated purpose is to "increase forthwith public safety at reproductive health care facilities." 2007 Mass. Acts p. 660. Respondents have articulated similar purposes before this Court-namely, "public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways." Brief for Respondents 27; see, e.g., App. 51 (testimony of Attorney General Coakley); id., at 67-70 (testimony of Captain William B. Evans of the Boston Police); id., at 79-80 (testimony of Mary Beth Heffernan, Undersecretary for Criminal Justice); id., at 122-124 (affidavit of Captain Evans). It is not the case that "[e]very objective indication shows that the provision's primary purpose is to restrict speech that opposes abortion." Post, at 2544.
We have previously deemed the foregoing concerns to be content neutral. See Boos, 485 U.S., at 321, 108 S.Ct. 1157 (identifying "congestion," "interference with ingress or egress," and "the need to protect... security" as content-neutral concerns). Obstructed access and congested sidewalks are problems no matter what
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_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.
Allen N. BRUNWASSER, Appellant, v. PITTSBURGH NATIONAL BANK, a Corporation, and John S. Warwick.
No. 15270.
United States Court of Appeals Third Circuit.
Argued Oct. 21, 1965.
Decided Nov. 12, 1965.
Rehearing Denied Dec. 27, 1965.
Allen N. Brunwasser, Pittsburgh, Pa., pro se.
B. A. Karlowitz, Pittsburgh, Pa. (Patterson, Crawford, Arensberg & Dunn, Pittsburgh, Pa., on the brief), for appel-lee Pittsburgh Nat. Bank.
John M. Brant, Atty., Dept, of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Meyer Roth-wacks, Atty., Dept, of Justice, Washington, D. C., Gustave Diamond, U. S. Atty., James P. McKenna, Jr., Asst. U. S. Atty., on the brief), for John S. Warwick.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
PER CURIAM.
The order of the United States District Court for the Western District of Pennsylvania of November 6, 1964 granting the motion for summary judgment on behalf of the Pittsburgh National Bank and John S. Warwick, defendants, and denying the motion for summary judgment of Allen N. Brunwasser, plaintiff, was proper and will be affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
HOCK et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 12991.
Circuit Court of Appeals, Eighth Circuit.
Dec. 27, 1945.
Paul Bakewell, Jr., of St. Louis, Mo. (John E. Cramer, Jr., of St. Louis, Mo., on the brief), for petitioners.
Helen Goodner, Sp. Asst, to the Atty. Gen. (Samuel 0. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and L. W. Post, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The question on these petitiqns for review is whether the proceeds of a policy of insurance on the life of decedent, Edward H. Simmons, who died in 1937, are includi-ble in his gross estate under section 302(g) of the Revenue Act of 1926, as amended by section 404 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, pages 227, 231.
The applicable statutory provisions are:
“Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States—
******
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.”
Petitioners are the transferees of the assets of decedent’s estate, each having received a share of the assets in excess of the deficiency in estate tax which the Commissioner has determined and the Tax Court has sustained. Paul Bakewell, Jr., and St. Louis Union Trust Company are testamentary trustees of decedent’s estate. Dorothy Simmons Hock, his surviving daughter, named as irrevocable beneficiary in the policy of insurance, received the pro-, ceeds of the policy.
The policy of insurance, dated October 11, 1920, was issued upon the application of decedent in which he waived the right to change the beneficiary. The printed portions of the policy contained the following provisions:
“Beneficiary Clauses, (a) Unless otherwise specifically provided herein, upon the death of any beneficiary hereunder during the lifetime of the insured, any interest of such beneficiary shall revert to any surviving beneficiaries (in equal shares) then named hereunder, but if there be none to the insured or assigns.
“(b) The insured if of legal age may, whenever and as often as he likes, change any beneficiary designated herein by filing at the Home Office of the Company a written notice thereof duly executed and accompanied by the policy for record and endorsement of the change thereon by the Company. Unless the notice is so recorded and endorsed it shall not take effect, but when recorded and endorsed, whether the insured be then living or not, it shall relate back and take effect as of the date of the execution of said notice by the insured.
“(c) The interest of any beneficiary hereunder shall be subj ect to and 'bound by any assignment, pledge or release of this policy by the insured, dated either prior or subsequent to the nomination of such beneficiary.”
To conform to the surrender of the right to change beneficiary contained in decedent’s application for the policy, the insurance company stamped upon it the following clause:
“Beneficiary Clause. At the request of the insured in the application herefor the beneficiary provisions of paragraphs b and c, Section 9 hereof are hereby made inoperative and the beneficiary hereunder is made irrevocable. The insured reserves the right to make premium loans, to change the method of applying any dividends and to change the mode of paying premiums, but during the lifetime of the beneficiary, no other change may be made in the policy or value allowed without the consent of such beneficiary.”
The Tax Court sustained the action of the Commissioner in including the proceeds of the policy in decedent’s gross estate, on the ground that under the terms of the policy the decedent retained a possibility of reversion in the proceeds of the policy, since had he survived his daughter, the irrevocable beneficiary, her interest would have reverted to him or his assigns. It based its holding upon Helvering v. Hal-lock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and upon the Treasury Regulations in force at the time of the trial in the Tax Court.
For reversal the petitioners assert that the Tax Court erred (1) in its interpretation of the insurance contract, (2) in holding that the Hallock case is controlling on the issue here, and (3) in applying the Treasury Regulations in force at the time of the hearing before the Tax Court instead of the regulations in force at the time of decedent’s death on October 16, 1937.
In support of the first assignment of error petitioners assert that there is a conflict between the printed beneficiary clause in the policy, which provides that the interest of the beneficiary dying in the lifetime of the insured shall revert to the insured or his assigns, and the provision endorsed on the policy, which provides that the insured may make premium loans or change the method of applying dividends and paying premiums, but that during the lifetime of the beneficiary no other change may be made in the policy without the consent of the beneficiary. In this situation, the petitioners say that the provision stamped on the policy must control the printed clause. We answer this argument, as did the Tax Court, by saying that there is no conflict between the printed and stamped provisions of the policy. There is no discoverable inconsistency in contracts of insurance appointing an irrevocable beneficiary and providing that upon the death of the beneficiary during the lifetime of insured the interest of the beneficiary in the policy shall revert to the insured.
Petitioners argue in support of the second assignment of error as follows: The appointment of the 'beneficiary of the policy having been irrevocable from the moment of its issue, the proceeds of the policy vested immediately in the beneficiary. The decedent as the insured under the policy, therefore, never owned any interest in the policy proceeds, and hence could not make and did not make a transfer of the proceeds of the policy during his lifetime. The decedent could not have a reversionary interest in property which he never owned. At most, he had only the hope or bare possibility that if he survived the beneficiary he might acquire an interest in property in which he had had no interest at any time during his life. From this interpretation of the policy petitioners argue that this case is ruled by decisions of this court (Walker v. United States, 8 Cir., 83 F.2d 103; Helvering v. Parker, 8 Cir., 84 F.2d 838) and of the Supreme Court of the United States (Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934; Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Bingham v. United States, 296 U. S. 211, 56 S.Ct. 180, 80 L.Ed. 160; and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191), all of which came down before the decision of the Hallock case. Petitioners assert that the principles announced in the Hal-lock case have no application in the case of life insurance, since the Supreme Court was there dealing only with trust property under section 302(c) of the applicable revenue act. Aside from the fact that petitioners’ interpretation of the insurance contract ignores that part of it which provides that on the death of the beneficiary during the life of the insured the proceeds of the policy shall become payable to the insured or his assigns, the decisions of this and other circuit courts of appeals, following the Hallock case, have held that the principles there announced in respect to trust property are applicable in the case of life-insurance, and that the Bingham case and earlier decisions to the same effect, dealing with the proceeds of life insurance policies, are no longer law. Schultz v. United States, 8 Cir., 140 F.2d 945, 949; Bodell v. Commissioner, 1 Cir., 138 F.2d 553, 556, 150 A.L.R. 1262; Commissioner v. Washer, 6 Cir., 127 F.2d 446, 448, 449; Liebermann v. Hassett, 1 Cir., 148 F.2d 247; Schongalla v. Hickey, 2 Cir., 149 F.2d 687. The cases rule that where there exists in an insured the possibility of a reversion to him or his assigns of the proceeds of a policy of insurance (as where the policy provides for payment to the insured or his estate or assigns in the event of the prior death of the beneficiary), the transfer of the proceeds of the policy from the insured to the beneficiary, named in the policy takes effect only upon the death of the insured. And see Chase National Bank v. United States, supra, 278 U.S. 327 at page 339, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323; Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 111, 65 S. Ct. 508; Commissioner v. Field’s Estate, 324 U.S. 113, 65 S.Ct. 511; Paul, Federal Estate and Gift Taxation, § 10.20.
Petitioners’ third assignment of error must also be denied. Prior to decedent’s death on October 16, 1937, Articles 25 and 27 of Regulations 80 provided:
“Art. 25. Taxable insurance — The statute provides for the inclusion in the gross estate of insurance taken out by the decedent upon his own life, as follows: (a) All insurance receivable by, or for the benefit of, the estate; (b) all other insurance to the extent that it exceeds in the aggregate $40,000.
“ * * * Legal incidents of ownership in the policy include, for example: The right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc. The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent.”
“Art. 27. Insurance receivable by other beneficiaries. — The statute requires the inclusion in the gross estate of the decedent of the proceeds of any policy, or the aggregate proceeds of all policies, not receivable by or for the benefit of decedent’s estate, to the extent that such proceeds exceed $40,000, regardless of when the policy was or the policies were issued, if the decedent possessed at the time of his death any of the legal incidents of ownership.”
On March 18, 1937, following the decision of the Supreme Court in the Bingham case, the sentence “The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent” was struck out of the Regulations by Treasury Decision 4729 (C.B. 1937-1, pp. 284-288), which adopted as to insurance proceeds the principles announced in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L. Ed. 29, 100 A.L.R. 1239. The Supreme Court’s decision in the Hallock case came down in 1940, and the Treasury Regulations were amended to restore Article 25 of Regulations 80 to its original form. The amended regulation was in force at the time of the trial in the Tax Court. We think it was applicable in the present case in preference to the regulations, in existence at the time of decedent’s death, which fell with the Bingham case. I Merten’s Law of Federal Income Taxation, par. 3.25; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528; Helvering v. Hallock, supra, 309 U.S. 106 at page 121, 60 S.Ct 444, 84 L.Ed. 604, 125 A.L.R. 1368, Note 8; Helvering v. Griffiths, 318 U.S. 371, 397, Note 49, 63 S.Ct. 636, 87 L.Ed. 843; Helvering v. Edison Bros. Stores, 8 Cir., 133 F.2d 575; Oberwinder v. Commissioner, 8 Cir., 147 F.2d 255.
The decision of the Tax Court is affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casesource
|
020
|
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.
BOSE CORP. v. CONSUMERS UNION OF UNITED STATES, INC.
No. 82-1246.
Argued November 8, 1983
Decided April 30, 1984
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., concurred in the judgment. White, J., filed a dissenting opinion, post, p. 515. Rehnquist, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 515.
Charles Hieken argued the cause for petitioner. With him on the briefs was Blair L. Perry.
Michael N. Pollet argued the cause for respondent. With him on the brief were Marshall Beil and Carol A. Schrager
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James F. McHugh, Charles S. Sims, and John Reinstein; and for New York Times Co. et al. by Floyd Abrams, Dean Ringel, Devereux Chatillon, Robert Sack, Alice Neff Lucan, Cory-don B. Dunham, David Otis Fuller, Jr., W. Terry Maguire, Richard M. Schmidt, Jr., R. Bruce Rich, and Peter C. Gould.
Justice Stevens
delivered the opinion of the Court.
An unusual metaphor in a critical review of an unusual loudspeaker system gave rise to product disparagement litigation that presents us with a procedural question of first impression: Does Rule 52(a) of the Federal Rules of Civil Procedure prescribe the standard to be applied by the Court of Appeals in its review of a District Court’s determination that a false statement was made with the kind of “actual malice” described in New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964)?
In the May 1970 issue of its magazine, Consumer Reports, respondent published a seven-page article evaluating the quality of numerous brands of medium-priced loudspeakers. In a boxed-off section occupying most of two pages, respondent commented on “some loudspeakers of special interest,” one of which was the Bose 901 — an admittedly “unique and unconventional” system that had recently been placed on the market by petitioner. After describing the system and some of its virtues, and after noting that a listener “could pinpoint the location of various instruments much more easily with a standard speaker than with the Bose system,” respondent’s article made the following statements:
“Worse, individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet wide and a piano stretched from wall to wall. With orchestral music, such effects seemed inconsequential. But we think they might become annoying when listening to soloists.” Plaintiff’s Exhibit 2, p. 274.
After stating opinions concerning the overall sound quality, the article concluded: “We think the Bose system is so unusual that a prospective buyer must listen to it and judge it for himself. We would suggest delaying so big an investment until you were sure the system would please you after the novelty value had worn off.” Id., at 275.
Petitioner took exception to numerous statements made in the article, and when respondent refused to publish a retraction, petitioner commenced this product disparagement action in the United States District Court for the District of Massachusetts. After a protracted period of pretrial discovery, the District Court denied respondent’s motion for summary judgment, 84 F. R. D. 682 (1980), and conducted a 19-day bench trial on the issue of liability. In its lengthy, detailed opinion on the merits of the case, 508 F. Supp. 1249 (1981), the District Court ruled in respondent’s favor on most issues. Most significantly, the District Court ruled that the petitioner is a “public figure” as that term is defined in Gertz v. Robert Welch, Inc., 418 U. S. 328, 342, 345, 351-352 (1974), for purposes of this case and therefore the First Amendment, as interpreted in New York Times Co. v. Sullivan, 376 U. S., at 279-280, precludes recovery in this product disparagement action unless the petitioner proved by clear and convincing evidence that'respondent made a false disparaging statement with “actual malice.”
On three critical points, however, the District Court agreed with petitioner. First, it found that one sentence in the article contained a “false” statement of “fact” concerning the tendency of the instruments to wander. Based primarily on testimony by the author of the article, the District Court found that instruments heard through the speakers tended to wander “along the wall,” rather than “about the room” as reported by respondent. Second, it found that the statement was disparaging. Third, it concluded “on the basis of proof which it considers clear and convincing, that the plaintiff has sustained its burden of proving that the defendant published a false statement of material fact with the knowledge that it was false or with reckless disregard of its truth or falsity.” 508 F. Supp., at 1277. Judgment was entered for petitioner on the product disparagement claim.
The United States Court of Appeals for the First Circuit reversed. 692 F. 2d 189 (1982). The court accepted the finding that the comment about wandering instruments was disparaging. It assumed, without deciding, that the statement was one of fact, rather than opinion, and that it was false, observing that “stemming at least in part from the uncertain nature of the statement as one of fact or opinion, it is difficult to determine with confidence whether it is true or false.” Id., at 194. After noting that petitioner did not contest the conclusion that it was a public figure, or the applicability of the New York Times standard, the Court of Appeals held that its review of the “actual malice” determination was not “limited” to the clearly-erroneous standard of Rule 52(a); instead, it stated that it “must perform a de novo review, independently examining the record to ensure that the district court has applied properly the governing constitutional law and that the plaintiff has indeed satisfied its burden of proof.” Id., at 195. It added, however, that it “[was] in no position to consider the credibility of witnesses and must leave questions of demeanor to the trier of fact.” Ibid. Based on its own review of the record, the Court of Appeals concluded:
“[W]e are unable to find clear and convincing evidence that CU published the statement that individual instruments tended to wander about the room with knowledge that it was false or with reckless disregard of whether it was false or not. The evidence presented merely shows that the words in the article may not have described precisely what the two panelists heard during the listening test. CU was guilty of using imprecise language in the article — perhaps resulting from an attempt to produce a readable article for its mass audience. Certainly this does not support an inference of actual malice.” Id., at 197.
We granted certiorari to consider whether the Court of Appeals erred when it refused to apply the clearly-erroneous standard of Rule 52(a) to the District Court’s “finding” of actual malice. 461 U. S. 904 (1983).
I — (
To place the issue m focus, it is necessary to state m somewhat greater detail (a) the evidence on the “actual malice” issue; and (b) the basis for the District Court’s determination.
Evidence of Actual Malice.
At trial petitioner endeavored to prove that the key sentence embodied three distinct falsehoods about instruments heard through the Bose system: (1) that their size seemed grossly enlarged; (2) that they seemed to move; and (3) that their movement was “about the room.”
Although a great deal of the evidence concerned the first two points, the District Court found that neither was false. It concluded that the average reader would understand that the reference to enlarged instruments was intended to describe the size of the area from which the sound seemed to emanate rather than to any perception about the actual size of the musical instruments being played, rejecting as “absurd” the notion that readers would interpret the figurative language literally. 508 F. Supp., at 1266. After referring to testimony explaining that “a certain degree of movement of the location of the apparent sound source is to be expected with all stereo loudspeaker systems,” the District Court recognized that the statement was accurate insofar as it reported that “instruments... tended to wander....” Id., at 1267. Thus, neither the reference to the apparent size of the instruments, nor the reference to the fact that instruments appeared to move, was false.
The statement that instruments tended to wander “about the room” was found false because what the listeners in the test actually perceived was an apparent movement back and forth along the wall in front of them and between the two speakers. Because an apparent movement “about the room” — rather than back and forth — would be so different from what the average listener has learned to expect, the District Court concluded that “the location of the movement of the apparent sound source is just as critical to a reader as the fact that movement occurred.” Ibid.
The evidence concerning respondent’s knowledge of this falsity focused on Arnold Seligson, an engineer employed by respondent. Seligson supervised the test of the Bose 901 and prepared the written report upon which the published article was based. His initial in-house report contained this sentence: ‘“Instruments not only could not be placed with precision but appeared to suffer from giganticism and a tendency to wander around the room; a violin seemed about 10 ft. wide, a piano stretched from wall to wall, etc.’ ” Id., at 1264, n. 28. Since the editorial revision from “around the room” to “about the room” did not change the meaning of the false statement, and since there was no evidence that the editors were aware of the inaccuracy in the original report, the actual-malice determination rests entirely on an evaluation of Seligson’s state of mind when he wrote his initial report, or when he checked the article against that report.
Seligson was deposed before trial and testified for almost six days at the trial itself. At one point in his direct examination, he responded at length to technical testimony by Dr. Bose, explaining the scientific explanation for the apparent movement of the source of sound back and forth across a wall. App. 117-122. The trial judge then questioned Selig-son, and that questioning revealed that the movement which Seligson had heard during the tests was confined to the wall. During his cross-examination, at counsel’s request he drew a rough sketch of the movement of the sound source that he intended to describe with the words “tended to wander about the room”; that sketch revealed a back and forth movement along the wall between the speakers. He was then asked:
“Q. Mr. Seligson, why did you use the words ‘tended to wander about the room’ to describe what you have drawn on the board?
“A. Well, I don’t know what made me pick that particular choice of words. Would you have been more satisfied if we said ‘across/ — I think not — instead of before. I have the feeling you would have objected in either event. The word ‘about’ meant just as I drew it on the board. Now, I so testified in my deposition.” Id., at 169.
The District Court’s Actual-Malice Determination.
The District Court’s reasons for finding falsity in the description of the location of the movement of the wandering instruments provided the background for its ruling on actual malice. The court concluded that “no reasonable reader” would understand the sentence as describing lateral movement along the wall. Because the “average reader” would interpret the word “about” according to its “plain ordinary meaning,” the District Court unequivocally rejected Selig-son’s testimony — and respondent’s argument — that the sentence, when read in context, could be understood to refer to lateral movement.
On similar reasoning the District Court found Seligson’s above-quoted explanation of the intended meaning of the sentence incredible. The District Court reasoned:
“Thus, according to Seligson, the words used in the Article — ‘About the room’ — mean something different to him than they do to the populace in general. If Seligson is to be believed, at the time of publication of the Article he interpreted, and he still interprets today, the words ‘about the room’ to mean ‘along the wall.’ After careful consideration of Seligson’s testimony and of his demeanor at trial, the Court finds that Seligson’s testimony on this point is not credible. Seligson is an intelligent person whose knowledge of the English language cannot be questioned. It is simply impossible for the Court to believe that he interprets a commonplace word such as ‘about’ to mean anything other than its plain ordinary meaning.
“Based on the above finding that Seligson’s testimony to the contrary is not credible, the Court further finds that at the time of the Article’s publication Seligson knew that the words ‘individual instruments... tended to wander about the room’ did not accurately describe the effects that he and Lefkow had heard during the ‘special listening test.’ Consequently, the Court concludes, on the basis of proof which it considers clear and convincing, that the plaintiff has sustained its burden of proving that the defendant published a false statement of material fact with the knowledge that it was false or with reckless disregard of its truth or falsity.” 508 F. Supp., at 1276-1277.
Notably, the District Court’s ultimate determination of actual malice was framed as a conclusion and was stated in the disjunctive. Even though the District Court found it impossible to believe that Seligson — at the time of trial — was truthfully maintaining that the words “about the room” could fairly be read, in context, to describe lateral movement rather than irregular movement throughout the room, the District Court did not identify any independent evidence that Seligson realized the inaccuracy of the statement, or entertained serious doubts about its truthfulness, at the time of publication.
II
This is a case in which two well-settled and respected rules of law point in opposite directions.
Petitioner correctly reminds us that Rule 52(a) provides:
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
We have repeatedly held that the Rule means what it says. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 855-856 (1982); Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982); United States v. United States Gypsum Co., 333 U. S. 364, 394-396 (1948). It surely does not stretch the language of the Rule to characterize an inquiry into what a person knew at a given point in time as a question of “fact.” In this case, since the trial judge expressly commented on Seligson’s credibility, petitioner argues that the Court of Appeals plainly erred when it refused to uphold the District Court’s actual-malice “finding” under the clearly-erroneous standard of Rule 52(a).
On the other hand, respondent correctly reminds us that in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, 376 U. S., at 284-286. See also NAACP v. Claiborne Hardware Co., 458 U. S. 886, 933-934 (1982); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6, 11 (1970); St. Amant v. Thompson, 390 U. S. 727, 732-733 (1968). Although such statements have been made most frequently in cases to which Rule 52(a) does not apply because they arose in state courts, respondent argues that the constitutional principle is equally applicable to federal litigation. We quite agree; surely it would pervert the concept of federalism for this Court to lay claim to a broader power of review over state-court judgments than it exercises in reviewing the judgments of intermediate federal courts.
Our standard of review must be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v. Sullivan. The conflict between the two rules is in some respects more apparent than real. The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record; Rule 52(a) never forbids such an examination, and indeed our seminal decision on the Rule expressly contemplated a review of the entire record, stating that a “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., supra, at 395 (emphasis supplied). Moreover, Rule 52(a) commands that “due regard” shall be given to the trial judge’s opportunity to observe the demeanor of the witnesses; the constitutionally based rule of independent review permits this opportunity to be given its due. Indeed, as we previously observed, the Court of Appeals in this case expressly declined to second-guess the District Judge on the credibility of the witnesses.
The requirement that special deference be given to a trial judge’s credibility determinations is itself a recognition of the broader proposition that the presumption of correctness that attaches to factual findings is stronger in some cases than in others. The same “clearly erroneous” standard applies to findings based on documentary evidence as to those based entirely on oral testimony, see United States Gypsum Co., supra, at 394, but the presumption has lesser force in the former situation than in the latter. Similarly, the standard does not change as the trial becomes longer and more complex, but the likelihood that the appellate court will rely on the presumption tends to increase when trial judges have lived with the controversy for weeks or months instead of just a few hours. One might therefore assume that the cases in which the appellate courts have a duty to exercise independent review are merely those in which the presumption that the trial court’s ruling is correct is particularly weak. The difference between the two rules, however, is much more than a mere matter of degree. For the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.
Rule 52(a) applies to findings of fact, including those described as “ultimate facts” because they may determine the outcome of litigation. See Pullman-Standard v. Swint, 456 U. S., at 287. But Rule 52(a) does not inhibit an appellate court’s power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law. See ibid.; Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S., at 855, n. 15. Nor does Rule 52(a) “furnish particular guidance with respect to distinguishing law from fact.” Pullman Standard v. Swint, 456 U. S., at 288. What we have characterized as “the vexing nature” of that distinction, ibid., does not, however, diminish its importance, or the importance of the principles that require the distinction to be drawn in certain cases.
In a consideration of the possible application of the distinction to the issue of “actual malice,” at least three characteristics of the rule enunciated in the New York Times case are relevant. First, the common-law heritage of the rule itself assigns an especially broad role to the judge in applying it to specific factual situations. Second, the content of the rule is not revealed simply by its literal text, but rather is given meaning through the evolutionary process of common-law adjudication; though the source of the rule is found in the Constitution, it is nevertheless largely a judge-made rule of law. Finally, the constitutional values protected by the rule make it imperative that judges — and in some cases judges of this Court — make sure that it is correctly applied. A few words about each of these aspects of the rule are appropriate.
The federal rule that prohibits a public official from recovering damages for a defamatory falsehood unless he proves that the false “statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” New York Times, 376 U. S., at 279-280, has its counterpart in rules previously adopted by a number of state courts and extensively reviewed by scholars for generations. The earlier defamation cases, in turn, have a kinship to English cases considering the kind of motivation that must be proved to support a common-law action for deceit. It has long been recognized that the formulation of a rule of this kind “allows the judge the maximum of power in passing judgment in the particular case.” Moreover, the exercise of this power is the process through which the rule itself evolves and its integrity is maintained. As we have explained, the meaning of some concepts cannot be adequately expressed in a simple statement:
“These considerations fall short of proving St. Amant’s reckless disregard for the accuracy of his statements about Thompson. ‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication.” St. Amant v. Thompson, 390 U. S., at 730-731.
When the standard governing the decision of a particular case is provided by the Constitution, this Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance. This process has been vitally important in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of “unprotected” speech.
The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty— and thus a good unto itself — but also is essential, to the common quest for truth and the vitality of society as a whole. Under our Constitution “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U. S., at 339-340 (footnote omitted). Nevertheless, there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942).
Libelous speech has been held to constitute one such category, see Beauharnais v. Illinois, 343 U. S. 250 (1952); others that have been held to be outside the scope of the freedom of speech are fighting words, Chaplinsky v. New Hampshire, supra, incitement to riot, Brandenburg v. Ohio, 395 U. S. 444 (1969), obscenity, Roth v. United States, 354 U. S. 476 (1957), and child pornography, New York v. Ferber, 458 U. S. 747 (1982). In each of these areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance. In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expression of protected ideas. The principle of viewpoint neutrality that underlies the First Amendment itself, see Police Department of Chicago v. Mosley, 408 U. S. 92, 95-96 (1972), also imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected. See generally Terminiello v. Chicago, 337 U. S. 1, 4 (1949).
We have exercised independent judgment on the question whether particular remarks “were so inherently inflammatory as to come within that small class of 'fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace,’” Street v. New York, 394 U. S. 576, 592 (1969), and on the analogous question whether advocacy is directed to inciting or producing imminent lawless action, Hess v. Indiana, 414 U. S. 105, 108-109 (1973) (per curiam); compare id., at 111 (Rehnquist, J., dissenting) (“The simple explanation for the result in this case is that the majority has interpreted the evidence differently from the courts below”); Edwards v. South Carolina, 372 U. S. 229, 235 (1963) (recognizing duty “to make an independent examination of the whole record”); Pennekamp v. Florida, 328 U. S. 331, 335 (1946) (“[W]e are compelled to examine for ourselves the statements in issue... to see whether or not they do carry a threat of clear and present danger... or whether they are of a character which the principles of the First Amendment... protect”).
Similarly, although under Miller v. California
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
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138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appbus
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6
|
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.
William HAEBERLE and John W. Magee, Jr., Trading as Villanova Leasing Company, William Haeberle and Harman S. Spolen, Trading as Wayne Leasing Co. and William Haeberle and Oliver Vanderbilt, Trading as Windsor Leasing Company, Plaintiffs-Appellants, v. TEXAS INTERNATIONAL AIRLINES, Defendant-Appellee.
No. 83-2087.
United States Court of Appeals, Fifth Circuit.
Aug. 20, 1984.
Rehearing Denied Oct. 3, 1984.
Drinker, Biddle & Reath, Lawrence J. Fox, Philadelphia, Pa., Stradley, Barnett & Stein, William J. Stradley, James Douglas Ogle, Houston, Tex., for plaintiffs-appellants.
Sowell & Ogg, Michael L. Landrum, Jack C. Ogg, Houston, Tex., for defendant-appellee.
Before BROWN, GEE, and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
The best language is but a mean method of conveying thought with precision. Despite the imprecision of words, however, the purpose of embodying an agreement in a formal document is to substitute a single written declaration, whatever the hazards of its interpretation, for the uncertainties and vicissitudes inherent in an effort to define in any fashion what two parties have agreed upon. The extrinsic evidence rule precludes the use of extraneous evidence to vary the terms of a writing intended to be an integrated contract. When the words of the contract, considered in the context of the transaction, are susceptible of but one reasonable interpretation, the meaning of the words is a question for the court, and the jury need not hear extraneous evidence of the parties’ intent. When the words are susceptible of different interpretations, however, either because their meaning when read alone is unclear or because apparent lucidity is muddied by evidence of a different meaning arising from the circumstances under which the agreement was negotiated, states following the rule admit extrinsic evidence to explain and clarify the formal statement.
The trial court found the terms of an airplane-leasing contract clear and unambiguous with regard to the lessee’s maintenance obligations and excluded evidence that the parties may have intended a different meaning than the one found by the court. Adopting the controlling state-law rule in this diversity case, we find that the court erred in excluding all evidence dehors the contract and, considering the evidence we hold admissible, we find the contract susceptible to several reasonable alternative constructions. We therefore reverse the judgment and remand the case for retrial so that a jury may determine first what were the lessee’s obligations and then whether the lessee breached them.
I.
In 1968, Texas International Airlines (known then as Trans Texas Airways) sold three Convair 600 airplanes for $925,-000 each, one to each of three limited partnerships operating under the names Wayne Leasing Company, Windsor Leasing Company, and Villanova Leasing Company (“the partnerships”). The aircraft were then twenty years old, but they had recently been rebuilt; new engines, propellers, auxiliary power units, fuel systems, cockpit instrumentation, and other new equipment had been installed.
Shortly thereafter, the partnerships leased the three airplanes to Systems Capital Aircraft, Inc. Systems Capital, in turn, leased them back to Texas International Airlines for ten years for $1,236,512 each. Thus a sale and leaseback were accomplished.
In 1975, the partnerships and Systems Capital entered a novation agreement under which the partnerships assumed all of Systems Capital’s rights and duties under the three identical contracts by which it had subleased the airplanes back to Texas International. The partnerships then became direct lessors of the aircraft to Texas International, their original owner.
The subleases contained extensive provisions regarding maintenance of the airplanes and their condition upon return. They provided, inter alia: “Except if [Texas International] exercises its options as provided herein, upon termination of [the subleases], the leased property will be returned to [the partnerships] in its original condition (reasonable wear and tear excepted)”; “[Texas International] will, at its own expense, be responsible for the readying for use, use and maintenance of the leased property and will make all necessary replacements and repairs. All such replacements and repairs shall become the property of [the partnerships]”; “[Texas International] will operate and maintain the Leased Property with maintenance practices and procedures meeting all requirements of the Federal Aviation Administration”; and “[At its own] sole cost and expense, [Texas International] will accomplish FAA Airworthiness Directives applicable to the Leased Property; and accomplish the licensing and relicensing of said Leased Property as required by the FAA or other appropriate governmental authorities.”
When the leases expired in 1978, Texas International informed the partnerships that it had taken the leased aircraft out of service in 1976 and 1977, stored the airframes in the Arizona desert, and removed and stored elsewhere the engines, propellers, auxiliary power units and other major components. Texas International offered evidence that all components were prepared for storage and stored in conformity with the procedures recommended by their manufacturers. While the airframes and components were in storage, however, no ongoing maintenance, repairs, modifications, or overhauls were performed by Texas International. The partnerships eventually sold each of the airplanes in its “as is, where is” condition for $133,333.
The partnerships sued Texas International for breach of the subleases. They alleged that the airline had, by dismantling and storing the airplanes and thereby ceasing regular operation and maintenance, neglected the aircraft and rendered them less valuable at the expiration of the lease term than they would have been if operated and maintained in accordance with the contracts. They contended that the subleases required Texas International to return the airplanes in “zero time condition,” a phrase used in the airline industry to mean, in essence, freshly overhauled. Arguing that the language of the contract is ambiguous with respect to whether the airplanes’ components were required to satisfy zero time or other specific overhaul standards upon return, the partnerships sought to establish before trial that the testimony of three negotiators — “contemporaneous parol evidence” — would be admissible to clarify the subleases. The trial court entered the following pretrial order without further explanation: “having considered the motion, the arguments of counsel, the record and the law [, the court] concludes that the sublease is ‘clear and unambiguous’ and that the motion shall be ... DENIED.” The clear and unambiguous meaning discerned by the trial court is reflected in its charge to the jury:
The Defendant was required by the lease to return the aircraft to the Plaintiffs in their original condition (reasonable wear and tear excepted). The Defendant was also responsible for making all necessary overhauls, replacements and repairs on the aircraft regardless of whether the aircraft were, being operated or were in storage. The Defendant was further required to operate and maintain the aircraft so as to meet all requirements of the FAA.
Stated another way, the term of the lease was 10 years and during that period the three aircraft, engines and other parts, would through normal use and aging, experience some wear and deterioration. So the Defendant was not required to keep or return the aircraft, including the engines, propellers and other parts in perfect condition, but it was required to use, keep or store them in a reasonable and prudent manner, to overhaul or make repairs or replacements when due and return the aircraft to the Plaintiffs in an airworthy condition. If overhauling, repairs or replacements were required, it could not avoid overhauling or making those required repairs or replacements by putting the aircraft, the engines or other parts into storage and keeping them there until the lease expired. Similarly, if it removed good working parts from the leased aircraft that were in storage and used them as replacement parts on its own operating aircraft, it would be obligated to replace those parts with parts in similar good order (with like time remaining) before returning the aircraft to the Plaintiffs. There has been considerable evidence introduced concerning overhauling, repairs and replacements of various parts on the three aircraft after the termination of the lease. The Defendant is not necessarily liable for the overhauling or for the repairs or replacements that were made on the aircraft after the termination of the lease, but only for such overhauling or repairs or replacements that should have been made by the Defendant under the lease agreement before returning the aircraft to the Plaintiffs.
The jury returned a verdict for the defendant, Texas International, answering “we do not” to the question, “Do you find from a preponderance of the evidence that the Defendant failed to use or maintain the three aircraft in question as required by the lease agreement?” The court denied the partnerships’ motion for judgment notwithstanding the verdict and entered judgment for Texas International. The partnerships challenge this ruling as well as the order excluding parol evidence.
II.
The law of Pennsylvania, made applicable to this dispute by a provision of the subleases, forbids the admission of extraneous evidence to vary or contradict the terms of a written contract. The state supreme court has stated its rule thus:
Where [a writing] purports to contain the entire agreement between the parties, and there is no averment and proof that anything was omitted therefrom by fraud, accident or mistake, all prior negotiations and verbal agreements are merged in and superseded by the subsequent written agreement and parol evidence is inadmissible to alter, contradict, vary, subtract from or add to the written agreement.
In re Estate of Fessman, 386 Pa. 447, 126 A.2d 676, 677-78 (1956).
This rule does not, however, forbid the admission of evidence to establish the intended meaning of written contract terms. External evidence of the parties’ mutual intent, such as testimony regarding prior or contemporaneous negotiations, is admissible to aid interpretation of ambiguous written terms. Although “[n]o parol evidence ... can be said to vary or contradict a writing until by process of interpretation it is determined what the writing means,” the jury plays no role in this process unless the writing is susceptible of more than one reasonable interpretation. Therefore, the exclusion of testimony regarding what condition the parties intended their writing to require the airplanes to be returned in was proper if, but only if, the trial court correctly found that writing unambiguous in this respect. Our review of this finding is plenary because Pennsylvania treats ambiguity as a question of law for the court to decide.
The Third Circuit has carefully reviewed the Pennsylvania precedents and determined that the clarity or ambiguity of a document should not be assessed from its four corners alone, but in the light of circumstances surrounding its adoption. The court explained:
It is the role of the judge to consider the words of the contract, the alternative meaning suggested by counsel, and the nature of the objective evidence to be offered in support of that meaning. The trial judge must then determine [whether] a full evidentiary hearing is warranted. If a reasonable alternative interpretation is suggested, even though it may be alien to the judge’s linguistic experience, objective evidence in support of that interpretation should be considered by the factfinder. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.1980) (emphasis in original).
This analysis follows the recommendation of the Restatement (Second) of Contracts, subsection 212(1): “The interpretation of an integrated agreement is directed to the meaning of the terms of the writing ... in the light of the circumstances ____” As comment b explains,
extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in context. Accordingly, the rule stated in subsection (1) is not limited to cases where it is determined that the language used is ambiguous. Any determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transactions, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. (Emphasis added.)
The partnerships contend that the lease provisions are ambiguous in that they may reasonably be interpreted not only as described in the jury instructions but alternatively as imposing an obligation to return the aircraft with components in zero-time condition or in less-than-half-time condition. The district court did not explain what led it to reject these alternatives. The ruling preceded the trial; it was made before the partnerships submitted depositions of the witnesses whose testimony was excluded and without the benefit of testimony. If, as these circumstances suggest, the trial court employed a “four corners” approach to assessing ambiguity, its method was flawed.
The partnerships later submitted three depositions as an offer of proof during the trial, but the court immediately reaffirmed its exclusionary order. Travis Reed explained in his deposition that he negotiated the substance of the subleases with Texas International on behalf of Systems Capital, though the contract document was drafted by unidentified attorneys representing Systems Capital, the partnerships, and their lenders. During the deposition, Reed repeatedly recalled discussions with representatives of Texas International (including William Mackey) who gave oral assurances that the airplanes would be maintained in half-time condition or better. Reed’s deposition did not relate these assurances to the contract term “reasonable wear and tear excepted” but more generally to maintenance provisions of the contract and the term “original condition.”
The second deposition was that of William Mackey, who, as Vice President for Finance of Texas International, had negotiated the subleases with Reed. According to Mackey, he and Reed negotiated a $75,-000 guaranteed-residual-value provision to ensure that the partnerships would realize an adequate return on their investment. Mackey explained that the two of them had discussed the fact that the airplanes would be obsolete upon expiration of the subleases and that their sale would probably realize only a limited scrap value of around $25,000, an insufficient amount to make limited partnerships an attractive investment. Consistent with anticipated obsolescence and mere scrap value, Texas International was to surrender the planes, according to Mackey, in simply “flyable” condition.
The third deposition was sworn by Michael McClurg, who represented Capital Management Company, an enterprise that provided equity capital to Systems Capital for the sublease transactions. As McClurg described his firm’s role, “we were responsible for raising the equity capital that provided the down payment investment ____ We were responsible for properly forming and administering the limited partnerships that provided such equity capital. We were responsible for reviewing [on behalf of the partnerships] all of the legal documentation with respect to the leases and subleases ____” McClurg personally reviewed the written terms of the subleases. He recounted discussions among representatives of Capital Management, the partnerships, and Systems Capital regarding the provision governing return-condition of the airplanes. The substance of these discussions was that the partnerships’ investment was adequately protected because all mechanical parts would be in original — zero time — condition upon return, while the airframes and interiors would be in the condition occasioned by reasonable wear and tear, such as frayed carpets, worn upholstery, and similar deterioration. McClurg acknowledged, however, that he had never participated in negotiations with Texas International and that he had no knowledge of discussions between Texas International and Systems Capital.
We have omitted discussion and consideration of statements regarding the deponents’ intentions, contemplations, and understandings unless the depositions indicate that those thoughts were communicated to others. Evidence of intent may be considered in testing the reasonableness of alternative interpretations of a writing only when there is reason to believe the intent was shared. Therefore, notwithstanding the fact that intent is always subjective, it is relevant to the meaning of contract terms if objectively manifested for both parties’ observation, ordinarily by simple expression, or if it bespeaks a mutual understanding. See Lyons v. Cantor, 363 Pa. 413, 70 A.2d 285, 287 (1950); Melon Bank, 619 F.2d at 1011. For this reason, McClurg’s deposition must be disregarded in its entirety. His statements shed light on an understanding shared through discussions with every party to this complex transaction except the one sought to be bound: Texas International. Because the deposition does not suggest that the airline knew anything about the 'discussions, they cannot demonstrate mutual understanding among the parties to the sublease. Nor can McClurg’s statements fairly be read to describe a trade usage or course of dealing to provide context for the language of the subleases, for the partnerships concede that these were among the first commercial aircraft leases executed and no trade usage or course of dealing existed.
However, neither the sublease documents themselves nor Mackey’s deposition provides a basis for finding unreasonable the understanding of the return-condition requirement reflected by Reed’s deposition. Moreover, his deposition testimony provides objective support for his interpretation; for it recalls communication of that reading to Texas International during negotiation of the subleases.
Texas International argues that the phrase “original condition (reasonable wear and tear excepted)” is without ambiguity because of its customary meaning as a legal term of art. It asserts that, under Pennsylvania law, a reasonable-wear-and-tear exception frees the lessee from any duty to repair deterioration due to normal use, even deterioration so extensive as to prevent further use. None of the Pennsylvania cases involve the leasing of airplanes, a kind of property that, by virtue of FAA regulation and the nature of its use, differs significantly from refrigerators, stoves, and houses.
As objective evidence of what the contract term might mean, its usage even in other contexts is certainly relevant to assessing whether the term is ambiguous when used in an airplane lease. Terms like “original condition (normal wear and tear excepted)” have a generally accepted meaning in the context of human affairs with which we are all familiar. However, terms whose meaning is clear in common usage may be obscure when applied to unfamiliar circumstances. In a lease involving commercial airplanes, the same words may indicate a different intention because of the nature of the equipment and FAA maintenance and overhaul requirements. The common understanding of the layman may differ from the meaning the term has to a person conversant with the airline industry.
New would suggest, for example, that the proper storage of a leased refrigerator in adequate working condition would breach the lessee’s duty to maintain the appliance. In the airline industry, by contrast, storage even in adequate flying condition removes an airplane from its maintenance cycle. Unlike the refrigerator, use of an airplane may, by triggering mandatory overhaul requirements, cause the plane’s condition to improve over what it would be if stored for the same period.
In the light of the special circumstances of commercial aviation and evidence of contemporaneous negotiations of the subleases, we cannot say that the district court’s interpretation of them is the only reasonable one. The district court therefore erred by excluding parol evidence of objectively voiced intent and surrounding circumstances and by taking from the jury the interpretation of the language of the subleases. We must therefore remand the case for retrial.
The parties should be permitted to adduce any evidence of mutual intent or understanding, not only testimony about discussions during the negotiations. Testimony regarding whether the rental payments reimbursed the full value of the airplanes, including interest, for example, might reveal the return value necessary to make the transaction profitable for the partnerships. Tax regulations existing at the time might also shed light on what the parties sought to accomplish. These examples are not intended either to be exhaustive or to preclude exclusion on some other basis, but merely to suggest the range of relevant evidence that might help the jury determine what the subleases required to assure the condition anticipated by the parties upon the return of the airplanes. After considering the evidence, the jury may read the contract to require either more or less of Texas International than the trial court’s interpretation did. With the limited record on appeal, we cannot determine whether, or in which direction, its interpretation missed the mark.
III.
Because our disposition of the extrinsic evidence claim requires a new trial, we do not address the sufficiency of the evidence to sustain the judgment in Texas International’s favor (an issue that may not have been preserved for review) except to note that under the district court’s interpretation of the subleases, the jury’s verdict would be difficult to square with evidence of the airplanes' condition upon expiration of the subleases.
For these reasons, the judgment of the district court is REVERSED and the case is REMANDED.
. Throughout this opinion, we will refer to the airline as Texas International, regardless of the name it used at the referenced time.
. Each sublease provided for thirty-six quarterly payments of $34,142 followed by the final four quarterly payments of $1,850, a total of $1,236,-512. If the rent payments were discounted to their then "present value,” the price for each plane would exceed the value of the rent. But if tax advantages to the partnerships in the form of investment tax credit and depreciation deductions are considered, then the price might be equal to the benefits received by the partnerships — perhaps even if the planes were worthless when the leases expired.
. Accord 3 A. Corbin, Contracts § 573, at 357 (2d ed. 1960); Note, A Critique of the Parol Evidence Rule in Pennsylvania, 100 Pa.L.Rev. 703, 704 (1952).
. E.g., In re Estate of Fessman, 126 A.2d at 678; Pavlich v. Ambrosia Coal and Construction Co., 441 Pa. 210, 273 A.2d 343, 345 (1971); see generally Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 Cornell L.Q. 161, 170-71 (1965).
. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir.1982) (applying Pennsylvania law in diversity case); Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1010-11 (3d Cir.1980) (same).
. A. Corbin, supra note 3, § 579 at 412-13 (1960).
. See Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1010-11 & n. 10 (3d Cir.1980). Cf. A. Corbin, Contracts, § 579 at 650-51, 654-55 (Supp.1984).
. Vlastos v. Sumitomo Marine & Fire Insurance Co., 707 F.2d 775, 778 (3d Cir.1983); Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 371 (3d Cir.1982). "Analytically, what meaning is attached to a word or other symbol by one or more people is a question of fact____ Historically ... partly perhaps because of the fact that jurors were often illiterate, questions of interpretation of written documents have been treated as questions of law in the sense that they are decided by the trial judge rather than by the jury. Likewise, since an appellate court is commonly in as good a position to decide such questions as the trial judge, they have been treated as questions of law for appellate review.” Restatement (Second) of Contracts § 212 comment d.
. Accord A. Corbin, supra note 3 at 650-51, 654-55 (Supp.1984); see generally Corbin, supra note 4. Wigmore calls the four-corners approach a "stiff formalism.” 9 Wigmore, Evidence § 2470 (Chadbourn rev. 1981). “The truth had finally to be recognized that words always need interpretation; that the process of interpretation inherently and invariably means the ascertainment of the association between words and external objects; and that this makes inevitable a free resort to extrinsic matters for applying and enforcing the document.” Id.
. A component is said to be in zero-time condition immediately after overhaul or replacement because none of the use time before FAA-prescribed overhaul or replacement has elapsed. Similarly, a component is in half-time condition when half its FAA-regulated air time has elapsed.
. In support, the airline cites United States Gypsum Co. v. Schiavo Bros., Inc., 668 F.2d 172, 177-78 (3d Cir.1982), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982) and the Restatement (Second) of Property, Landlord and Tenant § 12.2.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Vito GENOVESE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 465, Docket 30780.
United States Court of Appeals Second Circuit.
Argued May 16, 1967.
Decided May 26, 1967.
Vincent J. Fuller, Washington, D. C. (Edward Bennett Williams and Robert L. Weinberg; Washington, D. C., and Wilfred L. Davis, New York City, on the brief), for appellant.
David M. Dorsen, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for Southern District of New York, New York City, John E. Sprizzo and Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.
Before LUMBARD and MOORE, Circuit Judges, and BARTELS, District Judge.
Of the Eastern District of New York, sitting by designation.
MOORE, Circuit Judge:
Petitioner, Vito Genovese, appeals from an order, denying his application pursuant to 28 U.S.C. § 2255 or, in the alternative, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, to vacate or modify his judgment of conviction and sentence thereunder. We affirm Judge Weinfeld’s denial of the relief sought.
Previous Proceedings
Indicted in July 1958, appellant and 16 other defendants were tried jointly for conspiring to violate sections 173 and 174 of Title 21 of the United States Code. In April 1959 appellant and 15 co-defendants by jury verdict were convicted. On direct appeal to this court, the judgment was affirmed. United States v. Aviles, 2 Cir., 274 F.2d 179; cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960). A motion for a new trial on newly discovered evidence was denied, 197 F.Supp. 536 (D.C.1961); a second phase of the case involving the alleged failure of the Government to produce certain notes was decided adversely to appellant. 200 F.Supp. 711 (D.C. 1961), affirmed by this court, 315 F.2d 186, but vacated and remanded sub nom. Evola v. United States, 375 U.S. 32, 84 S.Ct. 24, 11 L.Ed.2d 106 (1963), again affirmed by this court, 337 F.2d 552 (2 Cir. 1964), cert. denied, 380 U.S. 906, 85 S.Ct. 885, 13 L.Ed.2d 794 (1965).
On September 14, 1965, appellant moved pursuant to 28 U.S.C.A. § 2255 or, in the alternative, under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., for an order vacating the judgment and sentence on the ground that there was no evidence against him of an essential element of the offense of conspiracy, namely, the element of knowledge of illegal importation of narcotics, and also on the ground that the court’s instructions never presented the issue of such knowledge before the jury. In the alternative, the appellant seeks to correct the sentence and modify the judgment to one for a lesser conspiracy offense supportable by the record.
The district court denied the petition to vacate or modify the judgment and sentence on the ground that there was more than ample evidence of constructive possession to permit a finding of knowledge of illegal importation of narcotics. It also concluded that the attack upon the instructions was without merit, apart from the fact that the objection was not available under Section 2255, distinguishing United States v. Massiah, 2 Cir. 1962, 307 F.2d 62 (reversed on other grounds, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246), cited by the appellant.
The Present Issue
Preliminarily, the issue raised here is whether the deficiencies in proof or errors of law charged by appellant are properly before this court under Section 2255. As a general principle, they cannot be considered collaterally upon a § 2255 application (Sunal v. Large, 1947, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; United States v. Sobell, 2 Cir. 1963, 314 F.2d 314, cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077) except to the extent that they may assume constitutional dimensions under the principles of Thompson v. City of Louisville, 1960, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, and Garner v. State of Louisiana, 1961, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, which appellant claims are applicable here. In this connection, it is particularly significant to note that appellant has heretofore obtained on his direct appeal to this court an unsuccessful review of his claim of insufficiency of evidence to support his conviction. See, United States v. Aviles, 2 Cir. 1960, 274 F.2d 179, cert. denied, 1960, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009. This determination necessarily adjudicated the sufficiency of the evidence as to the individual elements of the crime. Thus, the petitioner’s opportunity, which he took, to have the sufficiency of the evidence determined on direct appeal would normally foreclose, and does foreclose here, any attempt to raise the same issue collaterally. See United States v. Re, 372 F.2d 641, 645-646 (2 Cir. 1967 (Waterman, J., concurring)). Since in Thompson and Garner there was (i) no previous review of the claim of evidentiary insufficiencies, and (ii) a complete lack of evidence to support the convictions, they are in-apposite.
Appellant predicates his contention of lack of evidence of knowledge of illegal importation upon the fact that there was no evidence of constructive possession permitting an inference of such knowledge. The indictment accused appellant of conspiring to commit the offenses set forth in Section 174, consisting, among other things, of knowingly importing or buying or selling narcotics imported or brought into the United States with knowledge of the illegal importation. Under 21 U.S.C.A. § 174 possession was sufficient to authorize conviction “unless the defendant explains "the possession to the satisfaction of the jury.” No such explanation was forthcoming. As indicated in Judge Weinfeld’s able opinion, there was ample evidence of constructive possession from which the jury could have easily inferred knowledge of illegal importation and, in addition, independent evidence from which an inference of such knowledge was permissible. But appellant claims that the inference from possession was never invoked by the Government or judicially noticed by the court at the trial and there was no such finding by the jury. .He asserts that this inference cannot supply evidence of knowledge of illegal importation now missing from the record. The answer is that an inference never appears on the record as evidence but is left to the judgment of the jury. The permissibility of the inference was judicially invoked by the mere reading of Section 174 of Title 21 of the United States Code. Appellant is also foreclosed from raising the point at this late date because of his failure to request a specific instruction upon the point or to object to the instruction as given. Upon this record, the court finds no constitutional questions presented.
As to the charge, even if the attack upon the court’s instructions were available under Section 2255, it would be unsuccessful. The trial court instructed the jury on the essential elements of the crime including the relevant portions of Sections 173 and 174 of Title 21 of the United States Code and the five pertinent paragraphs of the indictment. Reading the charge as a whole, the conclusion follows that the trial court adequately informed the jury of the essential elements necessary to constitute the crime of conspiracy under 21 U.S. C.A. § 174. The trial court’s mistaken reference to 18 U.S.C.A. § 371 did not affect the substance of its charge under 21 U.S.C.A. § 174. United States v. Bentvena, 2 Cir. 1963, 319 F.2d 916, cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271; United States v. Agueci, 2 Cir. 1962, 310 F.2d 817, cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed. 2d 11.
The alternative relief based upon the theory that the evidence as to conspiracy could at most support only a conspiracy for distribution of narcotics without registration in violation of 26 U.S.C.A. § 4724(b), or for distribution of narcotics without tax-paid stamps in violation of 26 U.S.C.A. § 4704, both carrying a lesser penalty under 26 U.S.C.A. § 7237(a), or a conspiracy to defraud the United States in violation of 18 U.S.C.A. § 371, also carrying a lesser penalty, must be denied for the reasons above stated.
Affirmed.
. See, Brief of Yito Genovese, p. 17.
. See, 21 U.S.C.A. § 174.
. This included possession, trafficking and transportation of narcotics without registration and without proper stamps. See, 26 U.S.C.A. §§ 4704(a) and 4724.
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_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Leroy JEFFERSON, Appellant, v. UNITED STATES of America, Appellee.
No. 18216.
United States Court of Appeals Ninth Circuit.
Jan. 5, 1965.
Rehearing Denied Feb. 12, 1965.
Isabella H. Grant, San Francisco, Cal., for appellant.
Cecil F. Poole, 'U. S. Atty., Terry J. Hatter, Jr., Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before ORR, JERTBERG and MERRILL, Circuit Judges.
JERTBERG, Circuit Judge.
On February 18, 1959, the Grand Jury returned an indictment containing twenty-one counts. Count One charged at a time and place unknown to the Grand Jury the appellant, Leroy Jefferson, Fred Jones, Leroy Lemons, Jane Doe Marie, John Doe Vic, John Doe Tommy, Clarence Criss, William Catlett, Patricia Catlett, Clark Elegan, Gerald Elegan, Richard Smith, Berthelma Nolen, aka Victoria Johns, Lou Jones, aka Lulu Parker, Leon T. Graves, Ernest Duke Arnold and John Doe Otis thereinafter referred to as the defendants] did unlawfully conspire with Rose Holland, Fred Berry, Henrietta Lee, Juanita Smith, Tom Hicks, deceased, Velmer Dorsey, Julia Dorsey, Dolores Mitchell, Theodore Glass, Will Riley, Cecil Nunn, Wallis R. Hanks, and others to the Grand Jury unknown, all of which persons named and unknown, thereinafter referred to as co-conspirators, the co-conspirators not being named as defendants nor indicted therein, fraudulently and knowingly received, concealed, sold, and facilitated the concealment and sale of certain quantities of narcotic drugs, to wit: heroin and cocaine, knowing the same to have been imported into the United States contrary to law, in violation of 21 U.S.C. § 174. Fifty-seven overt acts were charged under Count One. The first fifty-five overt acts covered a period of time from April 1, 1957 through December 16, 1958; overt acts 56 and 57 are alleged to have occurred in January of 1958. It appears clear from the record that overt acts 56 and 57 occurred in January, 1959. In addition to Count One, appellant was charged in seven of the remaining twenty counts.
Counts Two and Five charged appellant with selling and facilitating the sale of cocaine in violation of 21 U.S.C. § 174. Counts Three and Six charged appellant with purchasing and dispensing of cocaine not in the original stamped packages in violation of 26 U.S.C. § 4704(a). Counts Four and Seven charged appellant with dispensing of cocaine not in the original stamped package in violation of 26 U.S.C. § 4705. Count Eight charged appellant with use of a communication facility to violate the narcotic laws in violation of 18 U.S.C. § 1403.
Following trial to a jury appellant and co-defendant Clarence Criss were the only defendants found guilty of the offense charged in Count One. Defendants Lou Jones, Leroy Lemons, Richard Smith and Ernest Duke Arnold were found not guilty. The jury was unable to agree as to the guilt or innocence of the other defendants charged in Count One.
During the trial prosecuting counsel stated to the District Court that no proof would be offered on the other counts [Counts Two through Eight] in which the appellant was charged.
Judgment of conviction as charged in Count One was pronounced and appellant was sentenced to imprisonment for a term of twenty years.
The judgment of conviction pronounced upon appellant, after reciting that the appellant had been convicted upon his plea of not guilty and a verdict of guilty as to Count One of the offense of violation of Title 21 U.S.C. § 174, in part states that the appellant:
“did unlawfully conspire with a certain number of co-conspirators to fraudulently and knowingly receive, conceal, sell, and facilitate the concealment and sale of certain quantities of narcotic drugs, to wit, heroin and cocaine, knowing the same to have been imported into the United States contrary to law, and to effect the objectives of conspiracy did, during the period beginning on or about April 1, 1957 through January 14, 1958, do a number of overt acts, as charged in Count One (1) of the indictment”.
The government states in its brief: “It would appear from the record below that legally the conspiracy alleged in the instant case did indeed continue from April of 1957 until the filing of the indictment on February 18, 1959. The court below so instructed the jury.”
It is also to be noted that the indictment alleges that overt act 56 occurred on or about January 4, 1958, and that overt act 57 occurred on or about January 14, 1958.
Appellant’s specifications of error may be summarized as follows:
(1) That the District Court was without jurisdiction of the offense for which appellant was convicted in that:
(a) absence of evidence of the unlawful importation of any narcotic drugs;
(b) absence of evidence of possession of heroin by appellant; and
(c) absence of evidence of illegal importation of cocaine.
(2) Prejudicial error in instructing the jury;
(3) Appellant has been twice placed in jeopardy for the same offense;
(4) Errors in the admission of evidence ;
(5) Errors in certain rulings and actions of the District Court;
(6) Appellant was deprived of a fair trial by prejudicial misconduct of government counsel during the course of the trial and in his argument to the jury; and
(7) Title 21 U.S.C. § 174 is unconstitutional.
21 U.S.C. § 174, makes it a Federal offense to import narcotic drugs illegally or to deal with such drugs knowing that the same have been illegally imported. Under the second paragraph of Section 174, the proof of possession of a narcotic drug by defendant shifts to him the burden of explaining such possession to the satisfaction of the jury. In the absence of such satisfactory explanation, the application of the statutory rule of evidence or prima facie presumption set forth in Section 174 shall be deemed sufficient to authorize conviction. In such circumstances the statutory rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug, and the defendant’s knowledge that the narcotic drug was illegally imported. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Erwing v. United States, 323 F.2d 674 (9th Cir. 1963); United States v. Jones, 308 F.2d 26 (2nd Cir. 1962); Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962); Cellino v. United States, 276 F.2d 941 (9th Cir. 1960); Caudillo v. United States, 253 F.2d 513 (9th Cir. 1952), C.D. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373.
The term “possession” is not further defined in the section. It has not been narrowly construed by the courts. The term has been construed by the courts to embrace power to control the disposition of the drugs as well as mere physical custody. As stated in Hernandez v. United States, supra, 300 F.2d at pp. 116-117:
“We early held that ‘possession’ of narcotic drugs sufficient to support the inference of guilt under the statute meant ‘having [the narcotic drugs] in one’s control or under one’s dominion.’ Mullaney v. United States, 82 F.2d 638, 642 (9th Cir. 1936), and we have recently reexamined and re-affirmed this basic position. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199. As the Rodella opinion and the authorities which it cites amply demonstrate, it follows from this definition of ‘possession’ in Section 174 that so long as the evidence establishes the requisite power in the defendant to control the narcotic drugs, it is immaterial that they may not be within the defendant’s immediate physical custody, or, indeed, that they may be physically in the hands of third persons — ’‘possession’ as used in this statute includes both actual and constructive possession. The power to control an object may be shared with others, and hence ‘possession’ for the purposes of Section 174 need not be exclusive, but may be joint. Moreover, like other facts relevant to guilt, ‘possession,’ actual or constructive, may be proven by circumstantial evidence. We have not hesitated to uphold convictions under Section 174 wherever either actual or constructive possession by the defendánt could be honestly, fairly and conscientiously inferred. This interpretation of the statute, equating the term ‘possession’ with dominion and control, and permitting proof of dominion and control by circumstantial evidence, has been adopted in other circuits as well.” (Footnotes omitted.)
Section 174 also malees it a Federal offense to conspire to import narcotic drugs illegally or to conspire to deal with such drugs knowing that they have been illegally imported. In this case we are concerned only with that part of the section which makes it illegal to conspire to deal with such drugs knowing that they have been illegally imported. Since substantive offense of dealing with such drugs under Section 174 requires proof of specific knowledge by the defendant that the drug was illegally imported, the same specific knowledge is also an essential element of the conspiracy to commit such substantive offenses. As stated in Hernandez v. United States, supra, 300 F.2d at page 120, in footnote 16:
“ ‘[C]onspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.’ Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959), quoting with approval from Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920 at 939. See also United States v. Bufalino, 285 F.2d 408, 416 (2d Cir. 1960) (‘Evidence of the same intent or knowledge would be required to convict conspirators or to convict those charged with the substantive offense’); United States v. Ausmeier, 152 F.2d 349, 356 (2d Cir. 1945); Fulbright v. United States, 91 F.2d 210, 211 (8th Cir. 1937) (‘Thus knowledge * * * is made an essential element of the substantive crime; and it must adhere in a charge of conspiracy to commit that crime’). Compare Pine v. United States, 135 F.2d 353, 357 (5th Cir. 1943), cert. denied 320 U.S. 740, 64 S.Ct. 40, 88 L.Ed. 439.”
In the light of the foregoing background we proceed to consider certain of appellant’s specifications of error.
The only instruction which the District Court gave to the jury in respect to the application of the provisions of Section 174 is as follows:
“[T]o prove this violation against any of the defendants the government must establish beyond a reasonable doubt that the defendants knew that the narcotic drugs which they concealed, sold, or facilitated the concealment or sale of, had been imported into the United States contrary to law. However, when the government proves the fact of possession of either heroin or cocaine by any of the defendants in this case, then, from that fact, you are at liberty to presume that the defendant knew that the heroin or the cocaine had been imported into the United States contrary to law.
“Further, if you are satisfied from the evidence beyond reasonable doubt that a conspiracy to conceal and sell or facilitate the concealment and sale of heroin or cocaine did exist, then the knowledge of one member of the conspiracy is imputed to all the members of the conspiracy. And heroin and cocaine are narcotic drugs.”
It is to be noted under the second paragraph of the instruction that the jury was instructed that the knowledge of one member of the conspiracy that the heroin or cocaine had been imported into the United States contrary to law was to be imputed to all members of the conspiracy without proof of possession, either actual or constructive, of heroin or cocaine by the conspirator having such knowledge, and without proof of possession, either actual or constructive, of heroin or cocaine by the members of the conspiracy to whom such knowledge was imputed. We believe that the giving of such instruction constituted plain error, prejudicial to the substantial rights of the appellant. The indictment charged that the appellant and sixteen others conspired with twelve named, and others unnamed, as co-conspirators but not as defendants to violate Section 174. Hence, the jury was instructed that if any one of the sixteen other defendants had knowledge that the heroin or cocaine in question had been imported contrary to law, such knowledge was to be imputed to the appellant without proof of an essential element of the crime charged, to wit: his knowledge that the cocaine or heroin had been imported contrary to law. As stated in Hernandez v. United States, supra, 300 F.2d at pages 121-122:
“A construction of Section 174 which would permit a presumption of defendant’s guilt to be based not only upon his own actual or constructive possession but also upon the possession of a co-conspirator, would involve no small extension of the statute’s coverage. Under the general law of conspiracy, the common course of conduct between defendant and the third person need not be based upon express agreement- — ■ tacit understanding is enough. Neither the existence of the common scheme nor the fact of defendant’s participation in it need be proved by direct evidence; both may be inferred from a ‘development and collocation of circumstances.' Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, [86 L.Ed. 680] (1942). Once the existence of the common scheme is established, very little is required to show that defendant became a party — ‘slight evidence may be sufficient to connect a defendant with it.’ Nye & Nissen v. United States, 168 F.2d 846, 852 (9th Cir. 1948), affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919. Once it is found that the defendant was connected with the conspiracy, he is equally liable with those who originated and dominated the common scheme, though he joined it after its inception and his part was minor and subordinate. He is responsible not only for the acts of the conspirators in furtherance of the conspiracy following his joinder, but also for those that precede it. Moreover, he is liable for the acts of his co-conspirators though he was not aware of the performance of those acts, nor even of the existence of the actors.
“In the light of these general principles of conspiracy law, a construction basing the statutory presumption upon the possession of a co-conspirator would sweep within the presumption situations in which the rational connection between defendant’s ‘possession’ and the probability that defendant had knowledge of the source of the drugs, would be remote, and the burden of explanation imposed upon the defendant would be difficult if not impossible to discharge. Thus ‘possession’ within Section 174 would include possession of which defendant had no knowledge and over which he had no control, by third persons of whose existence defendant was unaware and who (as in the present case) were not present at trial to testify to the possibly legitimate source of the narcotic drugs, perhaps known only to them.
“Engrafting the doctrines of vicarious liability taken from the general law of conspiracy upon the presumption of guilt in this highly penal statute would extend the statutory presumption over so wide and uncertain an area of conduct, and with such severe consequences to the actors,’ that it is a step not to be taken by a court without clear congressional direction.” (Footnotes omitted.)
The government tacitly concedes in its brief that the above quoted instruction was erroneous but contends that the appellant was not prejudiced thereby because of the existence in the record of testimony showing that the appellant had control over the narcotics in question. Such statement, if true, is no answer to the highly prejudicial instruction which we have quoted since it is impossible to determine whether the jury based its implied finding that the appellant had knowledge that the narcotics in question were imported contrary to law on the statutory rule of evidence arising from his control of the narcotics, or upon imputed knowledge arising from knowledge of one of the other conspirators.
We note, sua sponte, that the error in the giving of the instruction was compounded by the government’s prosecutor when, in his argument to the jury, he stated:
“Now, another point to bear in mind is, and I believe you will be instructed on it, is that the acts and declarations of one conspirator are imputed to all the other members of the conspiracy. That is important for this reason, ladies and gentlemen: If you find that any one of these — that a conspiracy existed, that any one of these people had heroin or cocaine in their possession during the course of that conspiracy, then he is presumed to have knowledge of its being unlawfully imported and, therefore, all other members of the conspiracy, even though there is no evidence of their having had narcotics in their possession.”
Since the judgment of conviction must be reversed because of prejudicial error in the giving of the instruction, we deem it unnecessary to pass upon the remaining specifications of error except appellant’s contention that Title 21 U.S.C. § 174 is unconstitutional. There is no merit in such contention. The constitutionality of the rule of evidence created under the language contained in the second paragraph of Section 174, and similar provisions contained in 21 U.S.C. § 176a, relating to marijuana, have been expressly or impliedly sustained in many cases involving opium, heroin and marijuana. See cases cited in Hernandez v. United States, supra.
The judgment of conviction is reversed and the cause remanded to the District Court with instructions to grant appellant a new trial. In the event of a new trial, consideration should be given by the District Court to appellant’s contention that he had twice been put in jeopardy for the same offense. The government contends on this appeal that the plea of double jeopardy was waived by the appellant when he failed to put such plea in issue at the trial. The claim of waiver should be viewed in the light of the admittedly typographical errors appearing in the indictment and the judgment of conviction as to the date of the termination of the conspiracy, and which errors were adverted to in the earlier part of this opinion.
. It is clear from the record that the correct date is January 14, 1959.
. Omitting "the specification of penalty, 21 U.S.C. § 174, reads as follows:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation '*’! the laws of the United States, shall be imprisoned * * *
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
W. D. NOLEN, Appellant, v. Lawrence E. WILSON, Appellee.
No. 20984.
United States Court of Appeals Ninth Circuit.
Feb. 1, 1967.
W. D. Nolen, in pro. per.
Thomas C. Lynch, Atty. Gen., of Cal., John T. Murphy, Frank C. Damrell, Jr., Albert W. Harris, Jr., Robert R. Gran-nucci, Jennifer F. Bain, Deputy Attys. Gen., San Francisco, Cal., for appellee.
Before HAMLIN, JERTBERG and MERRILL, Circuit Judges.
HAMLIN, Circuit Judge.
In 1963, W. D. Nolen, appellant herein, was convicted by a jury in the Superior Court of Alameda County, California, of first degree robbery, a violation of California Penal Code § 211. He is now serving his sentence in the California State Prison at San Quentin. His conviction was affirmed on appeal by the California District Court of Appeal in an unpublished opinion, People v. Nolen, 1 Crim. 4385, June 16, 1964. During his arraignment, plea, trial and appeal, he was represented by counsel.
On March 25, 1966, appellant filed an application for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, raising substantially the same legal issues presented to the California court on direct appeal. The application was denied by the district court and thereafter a certificate of probable cause and permission to appeal in forma pauperis was granted.
Appellant raises seven issues on appeal. He contends that during his trial (1) there was deliberate misconduct by the district attorney; (2) the court erred in denying his motion to exclude certain evidence; (3) the court erred in failing to grant a mistrial and to admonish the jury concerning the handling of an exhibit; (4) he was improperly cross-examined; (5) certain comments of the trial judge concerning the effect of an admission by a co-defendant was error; (6) the testimony of an accomplice was not sufficiently corroborated; and (7) the evidence was insufficient to support the verdict. All of these contentions were determined adversely to appellant in a carefully written opinion of the District Court of Appeal, supra.
Appellant contends that each of the claimed errors at the trial was a violation of his constitutional right to due process of law. We do not agree.
Denial of due process within the meaning of the Constitution of the United States in the trial of a criminal case in a state court sufficient to justify federal court interference is “the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Hendrix v. Hand, 312 F.2d 147 (10th Cir. 1962); Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). “[I]n the ordinary case of this kind a United States Court will refuse to grant habeas corpus if it is satisfied from the record as a whole that the state courts gave fair consideration to the issues, reached a satisfactory result, and protected the rights of the petitioner under the Constitution of the United States.” Hendrix v. Hand, supra, 312 F.2d at 149.
Respecting appellant’s first contention, the record shows that the prosecutor asked appellant on cross-examination about a gun in the glove compartment of a car driven by appellant after the robbery in question. The gun was not the one used in the robbery. No adequate objection was made concerning this examination and the motion of appellant’s counsel to strike .certain of the testimony was granted. Thereafter, appellant without objection volunteered that he had placed a gun in a purse in the automobile. The District Court of Appeal stated that the prosecutor’s cross-examination was improper. However, “the fact that a trial court error is prejudicial to defendant [does not] necessarily transform an otherwise fair trial into one which offends Fifth Amendment due process. It does not do so unless it has the effect of converting what was otherwise a fair trial into one which is repugnant to an enlightened system of justice.” Vandergrift v. United States, 313 F.2d 93 (9th Cir. 1963). In view of the circumstances concerning this testimony we hold that there was neither prejudicial error nor fundamental unfairness to appellant.
The other contentions of appellant have been carefully examined and are without merit. The evidence alleged to be erroneously admitted in point two was a gun identified by a witness as having been used in the robbery. It was properly admitted.
This gun was unloaded at the bailiff’s desk in court during the trial. Some days later during the trial appellant claimed that the unloading of the gun was prejudicial and moved to admonish the jury to disregard it. After a conference in chambers the court refused to give such admonition unless there was evidence introduced as to whether or not the gun was loaded when it came into possession of the authorities. Appellant and his counsel refused to consent to the introduction of such evidence, and the court refused to give the admonition. We see no error in this procedure.
Appellant’s contention number four is essentially the same as his contention number one. The basis of appellant’s contention number five is that while a witness for the prosecution was being examined as to statements made by a co-defendant the testimony of the witness established that in these statements the co-defendant implicated the appellant. At the suggestion of appellant’s counsel the court instructed the jury that the statements were offered only against the co-defendant and were not to be considered as any evidence against appellant. The District Court of Appeal held that the trial court had properly advised the jury of the limitation of the testimony. We agree.
In contention number six appellant states that the testimony of an accomplice was not sufficiently corroborated as required by the California Penal Code. The record shows that there was ample corroboration of this accomplice. There was no denial of due process. Cf. Lisenba v. People of State of California, supra. It also may be pointed out that under the federal rule the testimony of an accomplice need not be corroborated.
Appellant’s last contention equally has no merit. Witnesses positively identified him as having been the holdup man at the time of the robbery. Due process is denied only when there is a complete lack of evidence, Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Obviously, there was sufficient evidence in this case to satisfy the due process standard.
A consideration of the entire case indicates there was no lack of due process during appellant’s trial and that there was no failure to observe fundamental fairness essential to the very concept of justice. Lisenba v. People of State of California, supra.
Judgment affirmed.
. No objection or request for admonition was made at this time.
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_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
MT. CLEMENS POTTERY CO. v. ANDERSON et al.
No. 9924.
Circuit Court of Appeals, Sixth Circuit.
May 21, 1945.
Frank E. Cooper, of Detroit, Mich., and Bert V. Nunneley, of Mt. Clemens, Mich. (Beaumont, Smith & Harris and Frank E. Cooper, all of Detroit, Mich., and Bert V. Nunneley, of Mt. Clemens, Mich., on the brief), for appellant.
Edward Lamb, of Toledo, Ohio, for appellee.
Before HICKS, HAMILTON, and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
A local CIO union and seven of its members, suing on behalf of all similarly situated employees, brought this action against the appellant employer, charging violations of the Fair Labor Standards Act (52 Stat. 1060, 29 U.S.C.A. §§ 201-219) in numerous respects. Approximately 300 employees or ex-employees of appellant were permitted, by order of the district court, to sign and file designations authorizing the plaintiffs to represent them.
The appellant corporation for twenty-eight years has operated a pottery plant at Mt. Clemens, Michigan; and during the period with which we are concerned, employed some 1,000 to 1,200 individuals. The original complaint, which was filed a few days after an organizational strike had been instituted by the union at the pottery plant, charged among other things that the time clocks of the company had been so rigged or “doctored” that the figures punched on the cards failed to reflect correctly the actual time at which the card was punched. This charge was abandoned and, in lieu, the charge was made that the employer did not compute the working time of the employees, or pay them, in accordance with the time-card records. The complaint further charged that the employees were worked by the company 45 hours a week from late in October, 1938, until the action was filed. There was no proof made to support the charges of the complaint that certain employees performed homework without compensation or that certain employees earned less than thirty cents an hour. Numerous motions were made and other preliminary steps taken, resulting in the filing by plaintiffs of two bills of particulars.
It was charged by plaintiffs that the company had credited employees with working time only from the succeeding quarter hour when an employee checked in to the preceding quarter hour when he checked out; and that under this practice the company “has deducted from the time worked, as shown on said time cards, a period of as much as 56 minutes each day.”
Numerous new charges were made and dropped and numerous motions were made and acted upon which it is immaterial to detail.
The district judge finally referred the cause to a special master to hear the parties, to take testimony with respect to the issues as framed by the pleadings, and to report his findings of fact and conclusions of law.
The lengthy proceedings before the master were recorded in a typewritten transcript comprising more than 3500 pages. During the course of the procedure before the master charges not set up in the pleadings were made by the plaintiffs, including claims that office workers were not compensated in accordance with the Act, that the company had violated the child labor provisions thereof, and that company meetings were held without crediting the employees with the time spent in attendance. The master held that, in the absence of amendment of the pleadings, testimony would not be received upon such issues.
The evidence adduced before the master consisted largely of testimony of eight union employees or former employees of the company on behalf of the plaintiffs, while the testimony offered by the pottery company was primarily that of its foremen and managerial representatives. Each side introduced expert testimony as to industrial customs and practices; and an inspector of the Wage and Hour Division of the United States Department of Labor testified for the plaintiffs.
The special master reported that the employees involved in the case were engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act; that the plaintiffs were not estopped to maintain the action by reason of acquiescence for a long time in the practices of the company with respect to the computation of time; that the prior inspection of the plant by the Wage and Hour Division was irrelevant upon the issues in suit; and that the defense of lack of authority of the union to sue was invalid, He recognized that employees subject to the provisions of the Fair Labor Standards Act are entitled to receive full payment for the time they have worked in excess of its limited statutory period at a rate not less than time and one-half for the extra time worked.
The master stated that, while legal questions as to what constitutes working time were involved, the principle issue is factual. He found that the pottery company employs an average of approximately 1200 persons in ten or twelve departments, of which only four, the clay shop, brushing and dipping, glost belt and decorating departments, were directly represented by the witnesses who had testified for the plaintiffs. He found further that more than 95% of the employees in the plant, who are engaged in production work, are compensated upon a piece work basis; that the rate of pay is generally based upon the output of a group or a crew, but in departments where employees work individually the rate is based upon the output of the individual; and that the pottery company operates generally on a five-day week, the departments variously operating from one to three shifts per day, with shifts in the different departments beginning at different times during the morning, although the established starting time was always on an even quarter hour. The bisque and glost kiln departments operated on a three-shift seven-day basis.
The pottery plant covers more than eight acres of ground, the employees’ entrance being at the northeast corner immediately adjacent to which are cloak and toilet rooms for men and women. Upon entering the production part of the plant, an employee must pass and punch a time clock. There were two time clocks placed at different locations in the plant, a third one having been added shortly before the commencement of this action. In checking in and out at the clocks, the employee removes his card from the rack, places it in a slot, pushes down a hand lever, and removes the card with the time recorded on it. He then places the card in another rack. An average of 25 employees a minute can check in and out in this manner. After' punching the time clock, the employees proceed by somewhat defined aisles to their particular places of work. The distance from the time clock to the place of work varies from 130 to 325 feet in the glost kilns to 820 or 890 feet in the mold department.
The master found further that the time clock system was first installed by the company in 1933; and that employees are not permitted fo punch their cards more than fourteen minutes prior to the time which the company designates as starting time. For computation of time worked by the employees, the time cards are removed from the racks and the time is calculated from the succeeding even quarter hour after employees ring in, to the quarter hour immediately preceding the time when they punch out. For example, an employee whose card is punched in at 6:46 A. M., punched out at 12:03 P. M., punched in at 12:50 P. M., and punched out again at 4:07 P. M., is credited with 8 hours’ working time. The resultant figure is entered on the card in the righthand column and the card is returned to the rack. In computing overtime pay under the Fair Labor Standards Act the method employed by the company is to divide the gross pay received by the employee in each work week by the number of hours credited to him, and the resultant average hourly rate is multiplied by time and half for the overtime hours. This method conforms to the system prescribed by the Wage and Hour Division of the Department of Labor.
Because the shifts in the different departments commenced at different times in the morning, no whistle signalized the commencement of work on most shifts, but clocks belonging to the company or to employees were distributed freely throughout the plant. Whistles were blown, however, at 6:55 and 7 A. M., as the most commonly established starting time in the morning. Whistles were also blown at several other times during the day.
The policy of the company, put into effect through the operation of the Fair Labor Standards Act, was to keep the working hours of its employees below the statutory limitation for payment of straight time as far as possible. Before the passage of the Act, the company had been officially on a forty-five hour week, but lay-offs during that period had reduced the working hours of employees to less than forty-five.
The matter of compliance with the Act was frequently discussed at weekly meetings of foremen; and employees were informed of the policy adopted by the company and were instructed, when possible, to keep their hours below the statutory period.
Practically all the workmen in the plant had certain preliminary duties to perform, after arriving at their respective departments and before commencing production work, such as putting on their aprons or overalls, removing their shirts, taping or greasing their arms and putting on finger cots, and preparing equipment for commencement of production work by turning on switches for lights and machinery, opening windows and assembling and sharpening tools. The nature of this work varied from department to department, and from job to job within the department.
The "master reviewed at length the evidence introduced with respect to the working time of the employees. It was pointed out that the foremen had testified that the employees were not instructed to report for work at fourteen minutes to starting time, but rather at such time as to be in their respective departments ready for work at the even quarter hour set for the start of the shift, and that they could ring in at any time after “14 to.” They testified further that production work, was not commenced until the established starting time, except in rare instances where employees may have “jumped the gun” a minute or two, and that frequently, where a crew had to be assembled, work was not commenced until considerably after starting time. It was conceded that in order for employees to be in their departments ready for work by starting time, it was necessary for them to punch the time clocks some minutes before starting time. The time consumed by the employees in walking from time clocks to the departments was not treated by the company as working time. None of the estimates of the time consumed by employees in reaching their departments, ranging from one and one-half to three minutes, was based upon actual clocking of the time in transit.
The testimony was conflicting concerning the extent of the personal activities of the employees prior to commencing work. Witnesses for the company testified that most of an employee’s time, after he had arrived in a department in advance of regular starting time, was spent in conversation or personal activities not connected with his work. The master stated in his report that there was practically no direct testimony by the witnesses for the plaintiffs as to their procedure when going out for lunch, returning therefrom and when leaving at the end of a shift; but that, on cross-examination, several had admitted that they did not work fourteen minutes beyond quitting time, but on the contrary frequently stopped production and cleaned up before quitting time. Such testimony was in line with that of the foremen. The time card exhibits reveal that the employees came in at a practically uniform rate during the first seven minutes that the clocks were open, and that by five minutes to 7 o’clock 95% of the employees had rung in. In three of the four departments concerning which testimony was offered, employees worked in groups; and production work could not be commenced until the entire group had arrived.
The master found that the proof demonstrated that no practice existed of working the employees of the pottery company fourteen minutes after quitting time for lunch or at the end of a shift. More difficulty was found in passing upon the claims of the plaintiffs that all time between punched entries on the cards was working time. In appraising the evidence, both direct and. circumstantial, the master concluded that the plaintiffs had not carried the burden of proof on the issue.
The master rationalized upon the proven facts and circumstances in arriving at this conclusion. He did so upon a consideration of pertinent authorities. He stated that a computation of overtime on the basis of a finding that the employees worked more than the time credited to them, but less than the time shown by the entries on the cards would, on the record in the case, be speculative, inasmuch as the witnesses for the plaintiffs had kept no record of their time and admitted that, apart from the time clock cards, they could not tell on any particular day when they arrived at their departments or commenced preliminary work. The time consumed in preliminary activities varied in each department and in the same department on different days.
The master found that the evidence did not bear out that women employees were paid sub-minimum wages. He found no violation of the Wage and Hour Act in respect of deductions for tools or for the “invisible man.” The claim of employees as to “charity work” was not found on the facts to be in violation of the Act.
The general conclusion reached by the master, based upon the evidence and applicable law, was that the plaintiffs had not established by a fair preponderance of evidence a violation of the Fair Labor Standards Act by the employer. Accordingly, he recommended that the complaint be dismissed. We have not deemed it essential to rewrite from the master’s report, which embraces seventy-four printed pages of the record, his discussion of the evidence in the case; but, from careful examination, we find that the master’s findings of fact were all supported by substantial evidence contained in the voluminous record and are not clearly erroneous.
Notwithstanding the findings of the special master, which were adopted by the district court except as hereinafter specified, the court applied an arbitrary formula, set up in its labeled “Findings of Fact,” as follows:
“2. The Court finds that some of the plaintiffs started work before the regular starting time at the beginning of the work day and at the resumption of work after the lunch periofl. Plaintiffs are not entitled to pay from the minute they punched the time clock; but in computing their hours of work there should be allowed 5 minutes for punching the clock plus an additional 2 minutes to go from the clock to' their place of employment, or a total of 7 minutes, before the beginning of work in the morning. There should be allowed a total of 5 minutes at the resumption of work after the lunch period.
“3. In computing the hours of work of plaintiffs as employees of defendant Mt. Clemens Pottery Company there should be included in addition to the hours of work as computed by the company the following:
“(a) In cases where an employee punched his time clock card more than 7 minutes before his regular starting time at the beginning of a shift, there shall be computed as part of his hours of work the number of minutes by which the punch-in time shown on his time card preceded 7 minutes before the regular starting time.
“(b) In cases where an employee punched his time clock card more than 5 minutes before his regular starting time after his lunch period, there shall be computed as part of his hours of work the number of minutes by which the punch-in time shown on his time card preceded 5 minutes before the regular starting time.”
The district court concluded as a matter of law that the “plaintiffs have established that work was done by some of them which the Company did not give them credit for, and the computation thereof, on the basis above stated, forms a basis for recovery of overtime pay.” Judgment was entered in favor of the employees on the basis of this formula; an equal amount was added thereto as liquidated damages; and the plaintiffs were allowed, as costs to be taxed against the appellant, $2,000 as fee compensation to their attorneys. The compensation of the special master was taxed to the appellant company.
The judgment of the district court must be reversed. There was abundant substantial evidence to support the findings of the special master and it could not appropriately be said that such findings are clearly erroneous. Civil Procedure Rule 53 (e) (2), 28 U.S.C.A. following section 723c, distinctly provides that “in an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.”
The district court is as much obliged to accept the findings of a master, unless clearly erroneous, as this court is to accept the findings of the district court unless clearly erroneous. See Santa Cruz Oil Corporation v. Allbright-Nell Co., 7 Cir., 115 F.2d 604, 607. Cf. Morris Plan Industrial Bank v. Henderson, 2 Cir., 131 F.2d 975, 976.
Rule 53(e) (2), as well as Rule 52(a) which binds this court to accept the findings of the district judge unless clearly erroneous, is based on the same principle, long recognized in law, that the master or judge who personally observes the witnesses is in better position to pass upon conflicting testimony and the credibility of witnesses than is a tribunal which has neither seen nor heard the witnesses.
Moreover, the arbitrary formula applied by the district judge, in lieu of acceptance of the master’s findings, produced a judgment based upon surmise and conjecture, which cannot be sustained. See Townsend v. New York Cent. R. Co., 7 Cir., 141 F.2d 483.
The Fair Labor Standards Act is of course applicable to employees compensated on a piece rate basis. United States v. Rosenwasser, 323 U.S. 360, 65 S.Ct. 295. But the burden rested on each of the plaintiffs here to prove by a preponderance of the evidence that he did not receive the Wages that he was entitled to receive under the Fair Labor Standards Act, and to show by evidence, not resting upon conjecture, the extent of overtime worked. It does not suffice for the employee to base his right to recovery on a mere estimated average of overtime worked. To uphold a judgment based on such uncertain and conjectural evidence would be to rest it upon speculation. Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, 175. See also Tennessee Coal, Iron & R. Co. et al. v. Muscoda Local No. 123 et al., 5 Cir., 135 F.2d 320; Epps v. Weathers, D.C.Ga., 49 F.Supp. 2.
In Tennessee Coal, Iron & R. Co. et al. v. Muscoda Local No. 123, et al., 321 U.S. 590, 593, 64 S.Ct. 698, 88 L.Ed. 949, the judgment of the Fifth Circuit Court of Appeals, in the same case cited supra, was affirmed, to the effect that iron ore miners were at work, within the meaning of the Fair Labor Standards Act, while engaged in underground travel which they were obliged to perform on the property of and under the direction of their employers as a necessary concomitant of their employment. It should be observed, however, that the Circuit Court of Appeals, whose judgment was affirmed, had also held that with respect to time spent by the employees in checking in and out and procuring and returning tools, lamps and carbide, no overtime was allowable. The Court of Appeals, in its opinion, said: “In addition to the practical difficulties incident to the computation of isolated moments so elusive in character, we think these pursuits should not be computed as work-time, since they fall within the category of duties incident to qualifying the employee to perform his work rather than within the scope of his actual employment.” 135 F.2d 320, 323, supra.
It seemS appropriate to quote the language of Mr. Justice Jackson, writing the unanimous opinion of the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 163: “We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court.”
The crucial question of fact in the instant case had been resolved against the appellees, upon substantial evidence, by a special master to whom the district judge had referred the cause. The fact findings of the master were certainly not clearly erroneous. Wherefore, the district judge should have upheld the master’s findings and should have based his judgment thereon. This he failed to do; but, instead, supplied an arbitrary formula not derivable from substantial evidence of record.
Accordingly, the judgment of the district court is reversed and the cause of action is ordered dismissed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.
No. 24418.
United States Court of Appeals, Ninth Circuit.
July 8, 1971.
Ely, Circuit Judge, dissented and filed opinion.
William N. Fielden (argued), La Jol-la, Cal., for appellant.
Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge
Honorable M. D. Crocker, United States District Judge for the Eastern District of California, sitting by designation.
PER CURIAM:
Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.
Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).
Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.
Other points asserted by appellant we find to be without merit.
Judgment affirmed.
. Although (as Judge Ely mentions in his dissent, footnote 1), the drugs were found secreted in a part of the car that had been searched when it crossed the border, there was evidence from which it could be deduced that the drugs had originally been hidden beneath the car in an area that had not been searched.
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS and Salaried Employees Association of the Baltimore Division v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant.
No. 83-5765.
United States Court of Appeals, Third Circuit.
Argued May 18, 1984.
Decided June 12, 1984.
Alfred W. Vadnais (argued), John J. Myers, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant Westinghouse Electric Corporation.
Patrick J. Thomassey (argued), Monroe-ville, Pa., for appellees Federation of Westinghouse Independent Salaried Unions and Salaried Employees Association of the Baltimore Division.
Before GIBBONS and HUNTER, Circuit Judges, and RAMBO, District Judge .
Hon. Sylvia H. Rambo, United District District Judge for the Middle District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Westinghouse Electric Corporation appeals from an order, entered in a suit by the Federation of Westinghouse Independent Salaried Unions and the Salaried Employees Association of the Baltimore Division, pursuant to Section 301(A) of the Labor Management Relations Act, 29 U.S.C. § 185(a), directing Westinghouse to arbitrate a grievance on behalf of a former Westinghouse employee. The appeal requires that we determine what statute of limitations applies to a suit to compel arbitration in accordance with the terms of a collective bargaining agreement, whether that limitations period expired before the suit was filed, and whether the underlying dispute is arbitrable. We conclude that section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) is the most analogous statute of limitations, that there are material issues of disputed fact as to whether the action to compel arbitration was timely under that statute, and that if the suit was timely filed the dispute is arbitrable. Thus we remand for a determination of the question of when the cause of action to compel arbitration accrued to the plaintiff unions.
I.
The Dispute
On June 25, 1981, Dorothea Armstrong, an employee in the Westinghouse Aerospace Division in Baltimore, was notified by the division personnel manager that she would be treated as a “voluntary quit” because she had been absent from work without explanation for several weeks. The personnel manager relied on a local supplement to the Collective Bargaining Agreement between Westinghouse and the Federation providing:
An employe who is absent without permission for a period of (5) working days, and the employe’s supervisor or, in his absence, the Medical Department, has not received a report during this period giving a satisfactory reason for such absence, shall be considered as having voluntarily quit unless he can show extenuating circumstances making it impossible for him to report.
App. at 284.
On June 29, 1981 the Salaried Employees Association filed a grievance on Armstrong’s behalf, claiming that she had been unjustly released, and seeking reinstatement with back pay. The grievance was filed pursuant to Section XV of the Federation-Westinghouse Collective Bargaining Agreement which provides a local grievance procedure, and, with specified exceptions, a no-strike undertaking. The grievance went through company grievance procedures, culminating, at the final in-house stage, with a denial on December 18, 1981. In the December 18, 1981 letter denying the grievance Westinghouse took the position that Armstrong, having repeatedly failed to respond to requests that she provide information about her claimed illness or return to work, should be treated as a voluntary quit.
On January 15, 1982 the Federation demanded arbitration. This demand was made pursuant to Section XY-A of the Federation-Westinghouse Collective Bargaining Agreement which provides in relevant part:
1. Grievances, other than those concerning probationary employes, which remain unsettled after the grievance procedure has been exhausted pursuant to Section XV and which protest only a disciplinary penalty, release, or discharge of an employe allegedly imposed without just cause, shall be arbitrable upon a valid request of either the Federation or the Company. In the arbitration of such grievances, the authority and jurisdiction of the arbitrator shall be limited to determining whether the Company’s action was without just cause, and if so, what shall be the remedy.
2. Grievances involving any other disputes, including alleged violations of this Agreement or a local supplement hereto, shall not be arbitrable except by mutual written agreement between the Federation and the Company setting forth the specific dispute to be arbitrated.
App. at 38. On January 29, 1982, Westinghouse responded to the demand for arbitration by stating that it would not arbitrate because “[t]his dispute is not subject to demand arbitration and the Company is unwilling to process the grievance into arbitration by special agreement.” Thus on January 29, 1982 Westinghouse informed the Federation that it would arbitrate under neither of the quoted arbitration clauses.
On February 1, 1982, the Federation informed Westinghouse in writing that it did not intend to pursue legal action to compel arbitration, but would, instead, authorize its Baltimore Affiliate to strike. The reference to strike authorization was made because the no strike covenant in Section XV is qualified by this provision:
The Federation may authorize an Affiliate to strike a bargaining unit in which a grievance arises provided the grievance procedure has been exhausted at the appeal level, a written request has been made for arbitration and denied in writing or a response agreeing to arbitrate is not made within fifteen (15) days after receipt of the request, and the federation notifies the Company, in writing, that it does not intend to pursue legal action seeking to compel arbitration.
App. at 36a (emphasis in original). Faced with the threat of a local strike, Westinghouse negotiated further. As a result of those negotiations it received from the Federation’s General Counsel the following letter:
This confirms our telephone conversations yesterday on the above case.
I had reported to you last week that this office had forwarded the letter of February 1, 1982 to you notifying you that the Union did not intend to pursue action to compel arbitration, and authorizing the Affiliate to strike, in error. As you know, the local has taken no action with respect to the strike notice.
I suggested to you that we should agree that the said letter of February 1, 1982 may be withdrawn by us.
Your suggestion yesterday was that we should proceed to withdraw the letter of February 1, 1982 and you indicated your belief that we had the right to do so. Accordingly, I am hereby notifying you that we are withdrawing the notifications set forth in the February 1, 1982 letter, a copy of which is enclosed for your convenience. At the same time, I ask you to reconsider your denial of arbitration in this case, as your classification of it as inarbitrable as a voluntary quit is clearly without any legal justification, particularly in view of the court’s opinion in the Bender case.
Also, I believe it would be justified for you to even reconsider the merits of the case at this time, in view of the terrible injustice that has resulted to Miss Armstrong.
App. at 112. On June 25, 1982 Westinghouse responded:
After various Company-Union communications subsequent to your January 15, 1982, request for arbitration of the captioned dispute, including a request that the Company reconsider its denial of arbitrability, the subject grievance has again been reviewed.
While the Company continues to believe that the dispute is not arbitrable as a matter of right under Section XV-A, Paragraph 1, it would be willing to proceed to arbitration by mutual agreement in this particular case, providing there is agreement as to the matter to be decided by an arbitrator, as noted in Paragraph 2 of Section XV-A.
To this end, I am enclosing the original and three copies of a Submission Agreement. If it is suitable to you, please sign and return the original and two copies to me for completion. I will then send you the completed original, and a copy for your files, and you could forward the original to the American Arbitration Association when requesting a panel of arbitrators under Section XV-A, Paragraph 5.
It should be understood that the enclosed Submission is offered on the condition that should it be rejected, such offer will not in any way operate or be construed to prejudice the Company’s already stated position as to non-arbitrability of the subject grievance. Similarly, it is understood that your acceptance of the Submission in this specific instance will not prejudice the Federation’s position as to arbitrability in any other case.
The Federation and Westinghouse were unable to agree on a form of submission for voluntary arbitration under Section XV-A, Clause 2, and on October 2,1982 the Federation filed this suit to compel arbitration under Clause 1, of Section XV-A of the Agreement.
II.
Proceedings in the District Court Westinghouse moved to dismiss the complaint on the ground that the action was time barred by the thirty day limitations period in 42 Pa.Cons.Stat.Ann. § 7314(b) (Purdon 1982), governing applications to vacate arbitration awards. Distinguishing United Parcel Service Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), and relying on United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966) the district court held that the most appropriate statute of limitations was the six-year time bar of 42 Pa. Cons.Stat.Ann. § 5527 (Purdon 1982), governing actions for the enforcement of contracts.
Thereafter, the Federation moved for summary judgment. On October 13, 1983, the district court granted that motion, and ordered Westinghouse to submit the Armstrong grievance to arbitration. This appeal followed.
III.
The Appropriate Statute of Limitations
When the district court denied Westinghouse’s motion to dismiss on statute of limitations grounds it was without the benefit of the Supreme Court’s subsequent decision in DelCostello v. Int’l. Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). That important decision requires that we consider whether the rule of United Auto Workers v. Hoosier Cardinal Corp., supra, which referred actions under section 301 of the Labor Management Relations Act to state statute of limitations laws, retains vitality.
DelCostello involved a suit by union members against their employers for breach of collective bargaining agreements, and against their collective bargaining representatives for breach of the duty of fair representation. Relying on United Parcel Service v. Mitchell, Inc., supra, lower courts had applied the relatively short state law statutes of limitations governing actions to vacate arbitration awards. The Supreme Court reversed, holding that the six-month statute of limitations in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) which establishes a six-month period for making charges of unfair labor practices to the NLRB, was the appropriate reference.
The DelCostello court rejected the statutes of limitation for vacation of arbitration awards as far too short, since an employee pursuing the kind of hybrid section 301 duty of fair representation claim there presented would ordinarily be without the assistance of an expert advising him of the time within which a suit to compel arbitration should be brought. 462 U.S. at —, 103 S.Ct. at 2291. Moreover, the Court rejected Justice Stevens’ suggestion that state-law statutes of limitations for legal malpractice should be used as the closest analogy to a duty of fair representation claim. Id. at —, 103 S.Ct. at 2292. Referring to its recent decision in United Parcel Service, Inc. v. Mitchell, supra, the DelCostello majority emphasized that the system of industrial self-government encouraged by federal law, “with its heavy emphasis on grievance, arbitration, and the ‘law of the shop,’ could easily become unworkable if a decision which has given ‘meaning and content’ to the terms of an agreement ... could suddenly be called into question ... years later.” Id. at —, 103 S.Ct. at 2293, quoting Mitchell, supra 451 U.S. at 64, 101 S.Ct. at 1564. The Court therefore turned to section 10(b) as “a federal statute of limitations actually designed to accommodate a balance of interests . very similar to that at stake here.'...” Id. A violation of the duty of fair representation was found to be substantially similar to an unfair labor practice, and section 10(b) manifested Congressional concern for “the proper balance between the national interests in stable bargaining relationships and the finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective bargaining system.” Id. 462 U.S. at —, 103 S.Ct. at 2294, quoting Mitchell, supra 451 U.S. at 70, 101 S.Ct. at 1567 (Stewart, J., concurring). The Court concluded with the observations that it would disregard a state law statute of limitations “when a rule from elsewhere in Federal law provides a closer analogy than available state statutes, and when the Federal policies at stake and the practicabilities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking....” Id.
Unlike this case, in which the Federation relies solely on section 301, DelCostello presented hybrid section 301 duty of fair representation claims. Thus it was not necessary for the Court to expressly overrule United Auto Workers v. Hoosier Cardinal Corp. In a somewhat Delphic footnote, Justice Brennan observed:
In some instances, of course, there may be some direct indication in the legislative history suggesting that Congress did in fact intend -that state statutes should apply. More often, however, Congress has not given any express consideration to the problem of limitations periods. In such cases, the general preference for borrowing state limitations periods could more aptly be called a sort of fallback rule of thumb than a matter of ascertaining legislative intent; it rests on the assumption that, absent some sound reason to do otherwise, Congress would likely intend that the courts follow their previous practice of borrowing state provisions. See also Auto Workers v. Hoosier Corp., 383 U.S. 696, 703-704, 86 S.Ct. 1107, 1111-1112, 16 L.Ed.2d 192 (1966).
Justice Stewart pointed out in Mitchell that this line of reasoning makes more sense as applied to a cause of action expressly created by Congress than as applied to one found by the courts to be implied in a general statutory scheme— especially when that general statutory scheme itself contains a federal statute of limitations for a related but separate form of relief. 451 U.S. at 68, n. 4, 101 S.Ct. at 1564, n. 4 (opinion concurring in the judgment); see also McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 228-229, 78 S.Ct. 1201, 1206, 2 L.Ed.2d 1272 (1958) (BRENNAN, J., concurring). The suits at issue here, of course, are amalgams, based on both an express statutory cause of action and an implied one. See infra, at 2290-2291 and n. 14. We need not address whether, as a general matter, such cases should be treated differently; even if this action were considered as arising solely under § SOI, the objections to use of state law and the availability of a well-suited limitations period in § 10(b) would call for application of the latter rule.
462 U.S. at —, n. 12, 103 S.Ct. at 2287, n. 12 (emphasis added). The only clear signal that can be read from footnote 12 in Del-Costello is that the applicability of Hoosier Cardinal to pure section 301 suits is now an open question. Those courts which have considered that question have evidenced uncertainty. In McPeek v. Dayton Forging and Heat Treating Co., 574 F.Supp. 300, 304 (S.D.Ohio 1983) a case in which the plaintiff asserted that a duty of fair representation claim was also a straight-forward breach of collective bargaining agreement claim, the court observed in dicta that “even if Plaintiffs’ suit were somehow capable of being construed as a non-hybrid § 301 action, only against the employer, it would not follow that NLRA § 10(b) would not govern.” In United Brotherhood of Carpenters & Joiners v. FMC Corp., 724 F.2d 815 (9th Cir.1984), considering a union’s suit to vacate an arbitration award, the court applied a state 20-day statute of limitations for such actions. Arguably, in suits to vacate an arbitration award that result is consistent with the policy relied on by the DelCostello majority of prompt termination of industrial disputes. In International Union of Elec. Radio & Machine Workers v. Ingram Mfg. Co., 715 F.2d 886, 888-89 (5th Cir.1983), and Derwin v. General Dynamics Corp., 719 F.2d 484, 487 (1st Cir.1983), both involving suits by unions under § 301 to enforce arbitration awards, the courts applied much longer general state statutes of limitations. Here, too, the results are arguably consistent with the DelCostello policy of stability in industrial relations, since the Union may reasonably assume that employers will abide by arbitration awards and thus preserve stability in the bargaining relationship. No gost-DelCostello case has been called to our attention dealing with the issue presented here-a union’s section 301 suit to compel arbitration.
We hold that essentially for the same reasons relied on in DelCostello for borrowing section 10(b) as the statute of limitations in hybrid suits, that section should be' borrowed for application to actions under section 301 to compel arbitration. Application of a six-year state statute of limitations stretches out industrial disputes far longer than most recent cases have deemed desirable. Application of the extremely short Pennsylvania statute of limitations governing actions to confirm arbitration awards unnecessarily shortens the time during which parties to a collective bargaining agreement may, after exhaustion of in-house grievance steps, attempt an informal resolution of disputes. Moreover, grievances often involve an alleged activity which is also an unfair labor practice over which the National Labor Relations Board has jurisdiction. The Board frequently defers the consideration of such charges to the arbitral forum if it is available. See Spielberg Mfg. Co., 112 N.L.R.B. 1080, 1082 (1955); Collyer Insulated, Wire, 192 N.L.R.B. 837, 842 (1971). Thus it makes a great deal of sense to have a common statute of limitations for unfair labor practice charges and for suits to compel arbitration.
We recognize that there is an interaction between the statute of limitations governing the Union’s cause of action to compel arbitration and the employee’s cause of action for breach of a duty of fair representation. It is clear, however that the two causes of action arise at different times and out of different circumstances. The Union’s cause of action to compel arbitration arises when the employer takes an unequivocal position that it will not arbitrate. The employee’s hybrid cause of action arises when the Union takes an unequivocal position that it will not seek arbitration, or when the statute of limitations on its cause of action has run. Thus, by holding that the section 10(b) six-month statute of limitations governs both the Union’s section 301 cause of action and the employee’s hybrid cause of action we achieve a maximum period of twelve months within which a grievance which an employer refuses to arbitrate may result in litigation. That result is, we believe, consistent with the policies identified in the DelCostello opinion.
IV.
Application of Section 10(b)
Because the district court held that the Pennsylvania six-year statute of limitations applied, it did not consider precisely when the Federation's cause of action to compel arbitration arose. Westinghouse contends that we may nevertheless affirm, because as a matter of law that cause of action arose when the Union received its January 29, 1982 letter. Thus, Westinghouse urges, the cause of action was time barred no later than July 31, 1982. The Federation contends that had nothing more occurred after January 29, 1982, Westinghouse would be right, but that the negotiations outlined in Part I above establish that Westinghouse did not finally refuse to arbitrate until some time in June of 1982. If the court so concluded, the October 1982 suit would be timely. In light of the correspondence outlines in Part I, we conclude that the date on which Westinghouse finally refused arbitration presents a material issue of disputed fact, which must be resolved in the first instance by the trial court. Thus unless we can hold, as a matter of law, that the underlying dispute clearly lies outside the scope of the arbitration clause, a remand for resolution of that fact issue is required.
V.
The Underlying Dispute is Arbitrable
Westinghouse contends that the trial court erred in granting summary judgment against it on the issue of arbitrability, because clause 1 of Section XV-A does not include Armstrong’s grievance among those for which compulsory arbitration is available. It urges, moreover, that summary judgment was granted on the erroneous assumption that the question of arbitrability is for the arbitrator, not for the court.
It is not at all clear that the district court proceeded on the assumption that the question of arbitrability was for the arbitrators rather than for the court, although ambiguous language in the court’s opinion might be so construed. The ambiguity is of no moment for the disposition of the appeal, however, because our review of a summary judgment is plenary. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 257 (3d Cir.1983). Thus we must make an independent determination of the question of arbitrability.
It is Westinghouse’s position that Armstrong’s termination was not a “disciplinary penalty, release, or discharge of an employe[e] allegedly imposed without just cause,” to which clause 1 applies, but a “voluntary quit.” That, however, is a matter of dispute between the parties going to the merits of the grievance, which alleges that the termination was in fact involuntary and without just cause. Clearly this factual dispute is one for which the parties selected an arbitral forum, for Westinghouse’s “voluntary quit” position is inextricably interwoven with the propriety of Armstrong’s conduct. Thus we cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). Doubts concerning arbitrability must be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 23-26, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). The fact that the merits of the underlying dispute and the question of arbitrability are interrelated does not enlarge the court’s authority to resolve the grievance. Sharon Steel Corp. v. Jewell Coal & Coke Co., 735 F.2d 775 at 778. (3d Cir.1984). Thus we conclude that the trial court did not err in granting summary judgment that the underlying dispute is arbitrable.
V.
Conclusion
The judgment appealed from will be reversed and the case remanded for a determination of the date when Westinghouse finally declined to arbitrate, and whether in light of that determination the action to compel arbitration is barred by section 10(b) of the Labor Management Relations Act. If the action is not time-barred arbitration should be ordered.
. The Court noted that a Maryland statute might be an appropriate reference, but found no significant difference between the law of the forum state, Pennsylvania, and that of the place of employment, Maryland.
. In Scott v. Local 863, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., 725 F.2d 226, 227 (3d Cir.1983) we held that the DelCostello holding should be applied retroactively to district court decisions made before it was announced.
. See, e.g., Service Employees Int'l. Union v. Office Center Services, 670 F.2d 404, 409 (3d Cir.1982); Liotta v. Nat'l. Forge Co., 629 F.2d 903 (3d Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981); Assad v. Mount Sinai Hospital, 703 F.2d 36 (2d Cir.), vacated sub nom. Dist. 1199, Natl Union of Hospital Employees v. Assad, — U.S. —, 104 S.Ct. 54, 78 L.Ed.2d 73 (U.S. Sept. 27, 1983); Lumber Prod. & Indust. Workers Local 3038 v. Champion Int'l. Corp., 486 F.Supp. 812 (D.Mont.1980).
. The same statute of limitations probably should apply to employer section 301 suits to compel arbitration. That issue is not likely to arise with any frequency, however, since employers usually couple requests for such relief with requests for Boys Market injunctions, and are not likely to delay in instituting such actions.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_applfrom
|
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).
Daniel Harold GRIEGO, Appellant, v. UNITED STATES of America, Appellee.
No. 6826.
United States Court of Appeals Tenth Circuit.
Jan. 10, 1962.
Eugene Deikman, Denver, Colo., for appellant.
Lawrence M. Henry, U. S. Atty. for District of Colorado, Denver, Colo., for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge.
BREITENSTEIN, Circuit Judge.
Appellant-defendant Griego appeals from a judgment entered on a jury verdict finding him guilty on all four counts of an indictment charging the receipt, concealment, and sale of unlawfully imported narcotic drugs in violation of 21 U.S.C.A. § 174. The sole ground urged for reversal is that the trial court erred in its instructions to the jury.
So far as pertinent Section 174 reads:
“Whoever * * * knowingly * * * receives, -conceals, buys, sells, * * * any such narcotic drug after being imported * * * knowing the same to have been imported * * * contrary to law * * * shall be imprisoned * * *.
“Whenever * * * the defendant is shown to * * * have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
Evidence for the government was that defendant told a federal narcotics agent that he could obtain heroin for the agent and did so on four occasions with money furnished by the agent. On each occurrence the defendant withheld some of the heroin to use in /the satisfaction of his own addiction. The defendant took the stand in his own defense, admitted the transactions in question, and denied knowledge of the unlawful importation of the heroin.
In his instructions the trial judge, after referring to the second-paragraph of Section 174, told the jury that denial of knowledge of unlawful importation, standing alone, was not a defense and that the only sufficient explanation was one which convinced the jury that the defendant came into possession of the heroin legally. Timely and adequate objections were made by defense counsel to this portion of the charge.
The constitutionality of Section 174 has consistently withstood challenge. The government urges that denial of knowledge, standing alone, is not sufficient as a matter of law to require submission of the question of knowledge to the jury because it is not accompanied by an assertion of legal possession. Additionally the government contends that the Narcotic Control Act of 1956 by declaring all heroin to be contraband makes lawful possession impossible and hence precludes the possibility of a satisfactory explanation.
The essential elements of the crime charged are: (1) receipt, concealment, or sale of heroin by the defendant; (2) unlawful importation of the heroin by some one; and (3) the defendant’s knowledge of such unlawful importation. Receipt, concealment and sale of the heroin were established by the prosecution’s evidence and are not controverted by the defendant. To sustain the presence of the other two elements the government relies on the second paragraph of Section 174. While the provisions of that paragraph have been referred to as a statutory presumption, actually they do no more than make proof of possession prima facie proof of the elements of the crime. Such was our holding in Velasquez v. United States. Prima facie proof is always rebuttable. The effect of the second paragraph is to insulate the prosecution against the. hazard of a directed verdict when nothing more than possession is proved and to authorize, but not require, conviction when possession, not satisfactorily explained, is established.
If, as the government contends, the satisfactory explanation provision of that second paragraph requires evidence of lawful possession which cannot be made because heroin is contraband, then proof of knowing possession with dominion and control over the heroin is conclusive, not prima facie, proof of the commission of the crime. Such construction involves constitutional difficulties. Congress no doubt has broad powers pertaining to the receipt of evidence in federal courts and may make proof of one fact prima facie proof of another fact as a matter of public policy when there is a rational connection between the fact proved and the fact inferred. Still, by the use of that power, Congress may not go beyond the powers delegated to the federal government under the Constitution of the United States. Congress may control traffic in narcotic drugs in accordance with its power over interstate and foreign commerce and under its tax power but its ability to declare mere possession of a narcotic drug unlawful is doubtful. In this connection it should be noted that the Narcotic Control Act of 1956, while declaring heroin to be contraband, imposes penalties only for border crossings and the use of communication facilities.
The acceptance of the government’s position would make it impossible for a defendant, in a case such as this, to controvert one of the essential elements of the crime. The due process implications are apparent. To avoid constitutional problems the second paragraph of Section 174 must not be construed as denying to a defendant the right to contest an essential element of the crime with which he is charged. Such we believe to be the effect of holdings of the Supreme Court. In Harris v. United States, the Court, in considering a conviction under Section 174, said that the “ * * * petitioner could, by offering evidence tending to controvert one presumption or the other as to the ultimate facts, have earned an acquittal * * Yee Hem v. United States, supra, quotes with approval Mobile, Jackson & Kansas City R. R. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78, wherein the Court, after referring to a statutory presumption said:
“ * * * it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.”
The defense here is that the defendant had no knowledge of the unlawful importation of the heroin. The subjective character of knowledge is such that the statement of the individual accused of having particular knowledge is substantial evidence. ’ At the same time it is probable that many narcotic offenders can testify truthfully that they had no knowledge of unlawful importation. Those so engaged are not concerned with the primary sources of the contraband commodity. It is a reasonable inference from the testimony of the defendant in this case that he neither knew nor cared to know the source of the heroin. While negligence is not sufficient to charge a person with knowledge, one may not wilfully and intentionally remain ignorant of a fact, important and material to his conduct, and thereby escape punishment. The test is whether there was a conscious purpose to avoid enlightenment. The instant situation is comparable to that presented in Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 43 L.Ed. 1150, where a bank officer was charged with violation of the banking laws and asserted in defense that he lacked knowledge of the status of certain accounts. The Court, after pointing out that the accused may not remain “grossly indifferent in his duty in respect to the ascertainment” of the facts, held in effect that he was entitled to have his defense of no knowledge considered by the jury under proper instructions.
This conforms to the general rule that in a criminal case instructions are erroneous if they exclude from jury consideration an affirmative defense as to which evidence has been received. As the instructions given in the ease at bar violate this rule, the judgment must be reversed.
This disposition of the case does not mean that upon retrial the court should exclude from the instructions all reference to the second paragraph of Section 174. In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin. Further, to be effective as a defense the denial of knowledge must be believed by the jury. If the jury finds the defense available and believes the denial, the defendant should be acquitted. If the jury finds the defense not available or disbelieves the denial, then, in accordance with the second paragraph of Section 174, the jury may convict if it is satisfied beyond a reasonable doubt that the defendant had possession.
Reversed and remanded for a new trial.
. The material portions of the instructions were these:
“ * * * So, if you find beyond a reasonable doubt that the defendant so had possession, knowingly and fraudulently of the heroin described in the indictment, or any substantial portion thereof, then you will be warranted in giving effect to the statutory presumption, and you may presume that the narcotic had been imported and brought into the United States contrary to law, and you may presume that the defendant knew it had been brought into the United States unlawfully. And in such cases, it is not necessary that the Government otherwise prove the unlawful importation or that the defendant knew the heroin was unlawfully imported.
“Now, this presumption would follow as a matter of law, if you are satisfied beyond a reasonable doubt that the defendant had possession of the heroin as I have defined such possession to you.
“Now, this presumption may be overcome if the defendant explains to your satisfaction that the possession of the heroin came to him legally. In the absence of an explanation by the defendant which satisfies you that the defendant did come into possession of the heroin legally, that is, in accordance with law, you are authorized to convict the defendant. The fact, if it be a fact, that the defendant did not know that the heroin was imported or brought into the United States contrary to law, is not standing alone a defense if you find from the evidence beyond a reasonable doubt that the defendant had possession of the heroin.”
. See Velasquez v. United States, 10 Cir., 244 F.2d 416, 418-419, and cases there cited.
. See United States v. Feinberg, 7 Cir., 123 F.2d 425, certiorari denied 315 U.S. 801, 62 S.Ct. 626, 86 L.Ed. 1201, and United States v. Moe Liss, 2 Cir., 105 F,2d 144. Cf. Yee Hem v. United States, 268 U.S. 178, 182, 45 S.Ct. 470, 471, 69 L.Ed. 904, affirming a conviction under statutes now superseded by 21 U.S.C.A. §§ 174 and 181 in a case where the court instructed the jury that it devolved on the defendant to explain “that he was rightfully in possession,” and Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632, affirming the constitutionality of that portion of the Harrison Narcotic Act now found at 26 U.S.C. § 4704 and saying that it was reasonable to call on a person possessing narcotics to show that he obtained them in a mode permitted by law.
. 18 U.S.C. §§ 1401-1407.
. Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597.
. See note 2, supra.
. Cf. Guevara v. United States, 5 Cir., 242 F.2d 745, 746-747.
. Cf. United States v. Malfi, 3 Cir., 264 F.2d 147, 150, certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; and Bergedorff v. United States, 10 Cir., 37 F.2d 248, 249.
. Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 603, 72 L.Ed. 632; Yee Hem v. United States, 268 U.S. 178, 184, 45 S.Ct. 470, 69 L.Ed. 904.
. See note 5, supra.
. United States v. Erie R. R. Co., 3 Cir., 222 F. 444, 450, 451.
. United States v. General Motors Corporation, 3 Cir., 226 F.2d 745, 749.
. Smith v. United States, 6 Cir., 230 F.2d 935, 939; and Coleman v. United States, 5 Cir., 167 F.2d 837, 841. Cf. Morissette v. United States, 342 U.S. 246, 274-275, 72 S.Ct. 240, 96 L.Ed. 288.
. See Caudillo v. United States, 9 Cir., 253 F.2d 513, 518, certiorari denied 357 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373; Morgan, “Instructing the Jury Upon Presumptions and Burden of Proof,” 47 Harv.L.Rev. 59, 83; and McCormick on Evidence, § 321, pp. 681-685.
Question: 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_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.
Frank L. HAWKINS, Plaintiff-Appellant, Cross-Appellee, v. HOLIDAY INNS, INC., Defendant-Appellee, Cross-Appellant.
Nos. 78-1244, 78-1245.
United States Court of Appeals, Sixth Circuit.
Argued June 9, 1980.
Decided Nov. 5, 1980.
Edward W. Kuhn, McDonald, Kuhn, Smith, Gandy, Miller & Tait, Memphis, Tenn., David Berger, Warren D. Mulloy, Alan C. Kessler, Berger & Montague, Philadelphia, Pa., Harold Brown, Brown, Prifti, Leighton & Cohen, Boston, Mass., for plaintiff-appellant, cross-appellee.
George D. Reycraft, Richard Wiener, Cadwalader, Wickersham & Taft, Haven C. Roosevelt, Robert A. Lonergan, New York City, Charles E. Walpole, Charles Y. Caldwell, III, Memphis, Tenn., for defendantappellee, cross-appellant.
Before KEITH, KENNEDY, and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
This case was commenced in October 1974 by Frank L. Hawkins against Holiday Inns, Inc. for alleged violations of Section 1 of the Sherman Act (15 U.S.C. § 1) and Section 3 of the Clayton Act (15 U.S.C. § 14). Prior to trial, Hawkins dismissed his claims under Section 3 of the Clayton Act.
Hawkins has been a franchisee of Holiday Inns in the Mobile, Alabama area since 1961, and for an even longer period of time elsewhere. As of 1973, Hawkins owned three motels in the Mobile area, all three then being operated as Holiday Inns motels pursuant to franchises granted by Holiday Inns.
In the franchise agreements between Holiday Inns and Hawkins, Hawkins agreed not to own, operate, be connected with or associated with any hotel or motel other than Holiday Inns hotels or motels. This is the so-called “non-Holiday Inn clause.”
The non-Holiday Inn clause reflected Holiday Inns’ unilaterally adopted policy of not granting franchises to competitors. It is undisputed that Holiday Inns never prevented Hawkins from owning, operating, being connected with or associated with any other hotel or motel. In fact, on two occasions Hawkins owned motels other than Holiday Inns motels, without objection from Holiday Inns.
In 1972 and 1973, Hawkins, through a real estate broker, Hardin B. Arledge, solicited negotiations with Radice Realty and Construction Corp. looking toward the sale of his Mobile motels and the franchises granted to him by Holiday Inns. Although Hawkins owned the motels, the franchise agreements between Holiday Inns and Hawkins could not be unilaterally assigned by Hawkins to a third party. At the time of the negotiations with Hawkins, Radice Realty owned motels other than Holiday Inns motels.
While Hawkins knew of Holiday Inns’ policy of not granting a franchise to a competitor, he wrote to Holiday Inns and generally inquired if Holiday Inns would waive its non-Holiday Inn policy for a potential purchaser of his motels and franchises. Hawkins did not disclose Radice Realty’s identity or submit any information relating to it, other than to state that the potential purchaser owned competing motels. Hawkins did not seek a waiver of the non-Holiday Inn policy on his own behalf because he was not seeking to own or operate a competing motel.
Holiday Inns responded by restating its policy of not issuing franchises to competitors and its intention to maintain this policy to the extent permitted by law. Hawkins did not communicate further on this subject with Holiday Inns; Radice Realty never communicated with Holiday Inns.
Hawkins sued. Simply put, the gravamen of Hawkins’ complaint was that Holiday Inns unreasonably restrained trade by enforcing the clause in his franchise agreements which prevented Hawkins from buying an interest in a competing motel by preventing him from selling his trademark and service mark agreements with Holiday Inns (i. e., his franchises) to a competitor. Hawkins admits he was free to sell his motels without the Holiday Inns license agreements.
Hawkins has never asserted any claim for or on behalf of Radice Realty, nor has Rad-ice Realty asserted any claim on its own behalf. Rather, Hawkins asserted that Holiday Inns’ conduct constituted an unreasonable restraint which injured him in his trade or business and sought damages of $2-million before trebling.
The case was tried in Memphis. At the close of Hawkins’ case, Holiday Inns moved for a directed verdict, pursuant to Rule 50(b), Federal Rules of Civil Procedure. The trial court took the motion under advisement.
At the close of all the evidence, both parties moved for a directed verdict. Hawkins’ motion was summarily denied; the trial judge continued to reserve decision on Holiday Inns’ motion. The jury returned responses to jury interrogatories finding in favor of Hawkins in the amount of $674,000 single damages, subject to trebling.
The trial court never entered judgment based upon the responses to jury interrogatories. On January 25, 1978, an opinion granting Holiday Inns’ motion for a directed verdict was entered which stipulated that if the directed verdict were set aside by this Court, the verdict would be set at a maximum of $280,000 damages, before trebling. On February 7, 1978, the Clerk of Court filed a judgment in accordance with the memorandum opinion.
Hawkins appealed the judgment entered on the directed verdict in favor of Holiday Inns. Holiday Inns cross-appealed from the portion of the judgment which allows, in the event judgment in its favor is set aside, the verdict to be set at $280,000, subject to trebling.
The trial court applied the correct standard in directing a verdict in favor of Holiday Inns as a matter of law, and the evidence was such that there could be but one reasonable conclusion as to the correct verdict. Hawkins never received a bona fide offer to purchase his Holiday Inns motels from Radice Realty.
Holiday Inns never enforced the non-Holiday Inn clause in its franchise agreements with Hawkins against Hawkins. There was no evidence from which it could reasonably be concluded that Holiday Inns refused to deal with anyone. Holiday Inns’ contracts with Hawkins' were not in restraint of trade. The rule of law sought to be imposed by Hawkins lacks any commercial value.
Considering all the evidence most favorably to Hawkins, at most he has proven that Holiday Inns unilaterally refused to deal with an unidentified entity, Radice Realty, conduct which was and is lawful under United States v. Colgate & Company, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919).
As a matter of law, there was no evidence from which anyone could reasonably conclude that: (a) Holiday Inns caused Hawkins any injury in fact; (b) the interest Hawkins sought to protect was in the zone of interests protected under Section 1 of the Sherman Act; or (c) any injury to Hawkins was a direct result of Holiday Inns’ conduct. Hawkins has suffered no legally cognizable injury, for he still owns and operates the three inns as Holiday Inns motels and is receiving all of the benefits of his contractual relationship with Holiday Inns.
In Byars v. Bluff City News Co., 609 F.2d 843 (6th Cir. 1979), this Court outlined the law on refusals to deal for the benefit of the lower court to which it was remanding the case. At the outset, the Court stated that, as a general rule, “there exists no duty to deal, so long as the determination is made unilaterally.” 609 F.2d at 854. The Court then noted:
Franchisees and distributors which have been unilaterally terminated have discovered to their chagrin that ordinarily the law offers them no remedy absent proof that a conspiracy against them took place. (Citations omitted).
Even the use of unfair business practices as part of the termination may not invoke sanction under the antitrust laws. (Citations omitted)
609 F.2d at 854-855.
This Court concluded by stating that if the defendant in Byars were found not to possess monopoly power, it could have terminated, with impunity, its relationship with plaintiff.
It is clear from the record that Holiday Inns has acted unilaterally in the instant case. Further, there was not even an allegation that Holiday Inns possessed monopoly power in the hotel-motel business. Holiday Inns did not refuse to deal with Radice Realty. Even if it had refused, however, the refusal was unilateral and, as recognized in Byars, would not invoke sanction under Section 1 of the Sherman Act.
The judgment of the District Court in favor of the defendant Holiday Inns, Inc. is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_counsel2
|
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.
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
E. E. BENOIST et al., Plaintiffs-Appellants, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Defendants-Appellees.
No. 77-1179.
United States Court of Appeals, Eighth Circuit.
Submitted May 24, 1977.
Decided May 26, 1977.
Rehearing and Rehearing En Banc Denied June 10, 1977.
See also, D.C., 425 F.Supp. 1138.
Charles P. Todt and Susan M. Hammer, Clayton, Mo., filed brief for appellants.
Richard H. Kraushaar, Cleveland, Ohio, and John L. Rooney, St. Louis, Mo., filed brief for appellee Broth, of Locomotive Engineers.
John H. Haley, Jr., St. Louis, Mo., filed brief for appellee United Transp. Union.
Albert E. Schoenbeck and Robert D. Tucker, St. Louis, Mo., and Martin M. Lu-cente, Chicago, 111., filed brief for appellee Norfolk & Western R. Co.
Before HEANEY, ROSS and WEBSTER, Circuit Judges.
PER CURIAM.
Plaintiffs appeal from the district court’s denial of their motion for an extension of time for filing their notice of appeal.
Plaintiffs’ cause of action was dismissed without prejudice on December 29, 1976. On February 1,1977, the clerk of the district court received a notice of appeal on behalf of plaintiffs. As it was received four days after the expiration of the 30 day time period allowed for filing notices of appeal, F.R.A.P. 4(a), plaintiffs’ notice of appeal was marked “lodged” rather than “filed.” Thereafter, on February 4, 1977, plaintiffs filed a motion for an extension of time for filing their notice of appeal, alleging excusable neglect. On February 8, 1977, following a hearing, the district court denied the motion. Plaintiffs now appeal from that denial, contending that the district court abused its discretion in finding no excusable neglect.
Plaintiffs’ claim of excusable neglect was premised on the following allegations:
A. That Plaintiffs’ attorney was out of town until January 13, 1977.
B. That the Plaintiffs’ contact with the class member leader was attempted on numerous occasions by phone and was unsuccessful because he was out of town or on various work shifts and unavailable by phone.
C. That a letter was sent by Plaintiffs’ attorney to the class member leader to set up a conference.
D. That other class members had to be reached by the class member leader in order to hold said conference.
E. That the members of the large class had to converge and obtain a necessary retainer.
F. That the class was so numerous as to make necessary appeal arrangements difficult.
G. That said appeal was prepared timely and placed in the office bin to be mailed timely; that said appeal was mailed Monday instead of Friday, one day late.
In general, excusable neglect may be found where a party has failed to learn of an entry of judgment, or in extraordinary cases where injustice would otherwise result. See Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944 (8th Cir. 1973); Winchell v. Lortscher, 377 F.2d 247 (8th Cir. 1967). We cannot say that plaintiffs have made such a compelling showing of excusable neglect that the district court’s finding to the contrary was an abuse of its discretion. We note that plaintiffs have been represented by co-counsel throughout this litigation, and that only one of its attorneys was alleged to have been out of town until January 13. We note further that within the initial 30 day period for filing appeals, plaintiffs could have sought an extension of time ex parte. F.R.A.P. 4(a). Finally, even if plaintiffs’ notice of appeal had been mailed on Friday, January 28, rather than Monday, January 31, it would still have been untimely.
The district court’s denial of plaintiffs’ motion for an extension of time is affirmed.
. The time for filing a notice of appeal may be extended an additional 30 days upon a showing of excusable neglect; however, only the district courts are empowered to grant such an extension. F.R.A.P. 4(a). Our inquiry, therefore, is limited to whether the district court abused its discretion in refusing to find excusable neglect. See, e. g., Buckley v. United States, 382 F.2d 611 (10th Cir. 1967); 9 Moore’s Federal Practice ¶ 204.13[4] (1975).
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_casetyp1_7-3-4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
MITCHELL v. NELSON et al. (two cases). In re LOUCKES.
(Circuit Court of Appeals, Fourth Circuit.
January 11, 1927.)
Nos. 2532, 2543.
1. Chattel mortgages <©=>196 — In Maryland unrecorded chattel mortgages were void against subsequent creditor without notice, and he could acquire superior lien.
Under law of Maryland, where bankrupt’s creditor had no knowledge of prior chattel mortgages having legal status of unrecorded incumbrances because recorded in wrong counties, they w.ere void as to him, and he could by judgment and execution or by attachment acquire lien superior to mortgage liens, though he knew of mortgages when he began legal proceedings.
2. Chattel mortgages <©==153 — Holders of prior unrecorded' chattel mortgages and subsequent creditor without notice, who took mortgage with notice, held entitled to share ratably.
Where ■ bankrupt’s creditor, when he became such, had no knowledge of two prior chattel mortgages having status of unrecorded incumbrances because recorded in wrong counties, but learned thereof before he took chattel mortgage, held that, as all three mortgagees were simple contract creditors, they were, as between themselves, entitled to share ratably in proceeds of mortgaged property.
3. Bankruptcy <©=>440 — Adjudication awarding proceeds of property to prior unrecorded incumbrancers to exclusion of subsequent creditor without notice held reviewable by appeal, and not petition to revise.
Adjudication awarding proceeds on sale of property to holders of prior unrecorded chattel mortgages to exclusion of subsequent creditor without notice, who took chattel mortgage with notice, held reviewable by appeal, and not by petition to revise, where review proceedings were commenced by such creditor before amendatory Bankruptcy Act of 1926 (44 Stat. 662) became effective.
On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy; Morris A. Soper, Judge.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy'; Morris A. Soper, Judge.
In the matter of Frank I. Louekes, bankrupt, in which Norman T. Nelson was appointed trustee in bankruptcy. On petition of Guy K. Mitchell, executor of Annie W. Mitchell, deceased, to superintend and revise in matter of law, and on appeal from, proceedings of the District Court awarding proceeds of sale of propex*ty to West Baltimore Bank and another to the exclusion of petitioner.
Petition to revise dismissed. Decree reversed and remanded.
Charles S. Hayden, of Baltimore, Md., for petitioner and appellant.
Clarence A. Tucker, of Baltimore, Md. (Knapp, Tucker & Thomas, Jacob F. Mux*bach, and Wendell D. Allen, all of Baltimore, Md., on the brief), for respondents and appellees.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
ROSE, Circuit Judge.
Upon a petition filed February 16,1925, Frank I. Louekes was on that date adjudicated a bankrupt. Among his assets were a crane and a steam shovel, both covered by a duly executed and recorded chattel mortgage to one Mitchell. This mortgage dated and recorded on September 18, 1924, secured a debt of $1,760.40 contracted between February 29 and May 14, 1924. On the 16th of March, 1923, the bankrupt had mortgaged the crane and other property to the West Baltimore Bank, and on the 28th. of February 1924, in like fashion he mortgaged the shovel to the Fidelity Trust Compaq ny. These last two mortgages were recorded in the wrong county and had the legal status of unrecorded incumbrances. When Mitchell became a creditor of the bankrupt, he was in entire ignorance of these instruments, but he-learned of their existence just before he took his own mortgage.
By agreement the crane and shovel were sold by the trustee in bankruptcy. Neither of them brought enough to satisfy the unrecorded mortgage upon it and the net proceeds of' both together did not equal the balance due-on that to Mitchell. The referee and the District Court held that the trustee in bankruptcy was not entitled to any of the money-coming from either of them because the mortgage to Mitchell had been made and recorded more than four months before the filing of the petition in bankruptcy. He was awarded the proceeds of .such property as was covered by either of the unrecorded mortgages but was not mentioned in that to Mitchell because, as he represented creditors who had trusted the bankrupt, without having any notice of the unrecorded instruments, his rights were not affected by them. It was, however, adjudged that the mortgagees in them should be preferred to Mitchell because when he took his mortgage, he knew of the existence of the other two. In substance, it was ruled that while the mortgage to Mitchell gave him nothing, it was effectual to take from the trustee money which would otherwise have gone to him.
It was thought that this somewhat peculiar result was required by the Maryland decisions and especially by the comparatively recent ease of Roberts v. Robinson, 141 Md. 37, 118 A. 198. In it a bankrupt had entered into an unrecorded agreement with Robinson. This agreement the court construed to be at once a conditional sale of cans with reservation of title to them and the creation of a lien upon whatever the bankrupt put into them. In either aspect, it was held to be altogether ineffectual as against the trustee in bankruptcy representing subsequent creditors. The proceeds of the sale of the cans and their contents amounting to some $9,000, would therefore have gone to him had there been nothing in the case other than this unrecorded agreement. It so happened, however, that after its execution, and with the knowledge of its existence, and before the bankruptcy, Roberts actually advanced some $8,500 to the bankrupt and took actual possession of the cans and their contents ás security therefor. As the loan was for present consideration, it was said it was good as against the trustee in bankruptcy, but that, as Roberts knew of the prior agreement when he made it, he would not be allowed to profit by what the law said was his fraudulent act. It was consequently ruled that, while his advance of $8,500 was to that amount effectual to defeat the claim of the trustee, it profited him nothing as against Robinson.
In point of fact, the Roberts advance of $8,500 was treated as having, so far as it went, made good against the world Robinson’s otherwise void lien, and the latter was held entitled to the proceeds of the canned goods in which, but for it, he would have had the rights of an unsecured creditor only. The sum of less than $500, which represented the difference between the value of the cans and their contents and the advance of Roberts, was all that was allotted to the trustee.
In the instant ease, not only has the trustee refrained from appealing, but he has expressly disclaimed all interest in the controversy. We intimate no opinion as to whether he was or was not well advised in so doing, or as to what we should have held his rights to have been had he here challenged the decree below. Under the circumstances our review is limited to the relative pretensions of Mitchell and of the holders of the unrecorded instruments. The position of Mitchell differs from that of Roberts in the case referred to, in that, when Roberts made his advance, he knew of Robinson’s prior equitable lien. When the bankrupt became indebted to the former, he knew nothing of these prior papers, and under the law of Maryland they were void as to him. Nelson v. Hagerstown Bank, 27 Md. 52; Carson v. Phelps, 40 Md. 73; Sixth Ward Building Association v. Willson, 41 Md. 506; Dyson v. Simmons, 48 Md. 209; Pfeaff v. Jones, 50 Md. 263; Stanhope v. Dodge, 52 Md. 485; Brown v. Maryland Mining & Manufac. Co., 55 Md. 547; Nally v. Long, 56 Md. 567; Hoffman v. Gosnell, 75 Md. 577, 24 A. 28; Textor v. Orr, 86 Md. 392, 38 A. 939; Davis v. Harlow, 130 Md. 165, 100 A. 102; Roberts v. Robinson, supra. By judgment and execution thereon, or by process of mesne attachment, if circumstances justified, he could have acquired a lien upon the property covered by the prior mortgages, superior to any which their holders could assert, although at the time he began legal proceedings he knew of them. Pfeaff v. Jones, supra; Brown v. Maryland M. & M. Co., supra.
Why, then, might he not secure by mortgage rights which the courts would have given him for the asking ? Because he could not get a mortgage unless the bankrupt gave him one, and that was something which both he and the bankrupt then knew the latter had no moral right to give. However ineffective the prior mortgages were as against Mitchell, they were binding on the conscience of the man who had executed and delivered them, and Mitchell could not profit by the bankrupt’s breach of faith. 2 Pomeroy’s Equity Jurisprudence, § 688. Does it follow that the decree below was right? We think not. Mitchell, it is true, took nothing by his mortgage, but we do not see that he lost anything by it. Before it was given him, the unrecorded mortgages were void as to him. As far as he was concerned their holders, like himself, were simple contract creditors, and, if he was the only other person entitled to share in the proceeds of the mortgaged property, as the trustee concedes he is, such proceeds would have been distributed among the mortgagees and Mitchell in proportion to their respective claims. We see no reason why the same rule should not now apply. To hold otherwise would be, not only to set aside the mortgage to Mitchell as we do, but to forfeit that to which, but for it, he was entitled.
It follows that Mitchell, to the extent of his claim, after crediting upon it whatever he has received from the property mortgaged to him and not covered by either of the prior mortgages, should participate ratably with the prior mortgagees in the net avails of the crane and the shovel. The sum going to him should be deducted proportionately from the net proceeds of the crane and the shovel respectively. The balance remaining of each should be paid to the holder of the unrecorded mortgage upon the article from which it was derived.
The proceedings to secure a review were begun before the going into effect of the amendatory Bankruptcy Act of 1926 (44 Stat. 662). Mitchell has brought his ease before us both by petition to superintend and revise and by appeal. The latter appears to us to be the proper remedy. It follows that the petition to superintend and revise, in case No. 2532 on our docket, will be dismissed, with costs, and in No. 2543 the decree below will be reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Case No. 2532, dismissed.
Case No. 2543, reversed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
|
songer_crossapp
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
George Washington O’NEAL, Jr., et al., Plaintiffs-Appellants, Cross-Appellees, v. DeKALB COUNTY, GEORGIA, et al., Defendants-Appellees, Cross-Appellants.
No. 87-8682.
United States Court of Appeals, Eleventh Circuit.
July 25, 1988.
James W. Howard, Howard, Secret & Wilde, Atlanta, Ga., for plaintiffs-appellants, cross-appellees.
Albert Sidney Johnson, DeKalb County Attorneys Office, Decatur, Ga., Judson Graves, Alston & Bird, Paul J. Quiner, Wade H. Watson, III, Johnson & Montgomery, Atlanta, Ga., for defendants-appellees, cross-appellants.
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.
KRAVITCH, Circuit Judge:
The survivors of a man killed in a police shootout in DeKalb Counly, Georgia brought this action pursuant to 42 U.S.C. § 1983 against the officers involved in the shootout, certain county officials, and the County. The district court granted the defendants’ motion for summary judgment on the ground that the decedent’s constitutional rights had not been violated and therefore no section 1983 action could be maintained, 667 F.Supp. 853. We affirm.
I.
On the evening of December 15, 1983, the decedent, George Washington O’Neal, Sr., a patient at Doctor’s Hospital in De-Kalb County, Georgia, went on a rampage through the hospital and stabbed seven people with a pocketknife. Officer Steven Waits, a DeKalb County police officer, arrived at the hospital in response to a police call. Waits, armed with his service revolver, found O’Neal on the second floor, holding a bloody knife. Waits identified himself as a police officer and ordered O’Neal to drop his knife. Ignoring Waits’s demand, O’Neal ran away down the hallway. As Waits chased O’Neal through the second floor corridors, he observed “a lot of blood on the floor ... a piece of intral [sic] of some kind” and a person with a severe stomach wound lying on the floor. Deposition of Steven W. Waits, at 54. He also noticed that the nursing supervisor had a stab wound in his back. Police Report, Plaintiffs Exhibit 2.
After Waits had chased O’Neal for approximately five minutes, Officer Rick Ro-seberry, armed with a shotgun, arrived at the hospital to assist Waits. Roseberry also saw “blood all over the floor” and walls and “a piece of human tissue lying there in [sic] the floor in front of me.” Deposition of Rickie Emmit Roseberry, at 66. Soon after Roseberry’s arrival, the two officers cornered O’Neal at the end of one of the second floor corridors so that O’Neal was standing only six feet from Roseberry and between five and six feet from Waits. With their weapons raised, the officers repeatedly ordered O’Neal to drop his knife and lie on the floor. Instead of complying, O’Neal rushed toward Rose-berry with the knife raised over his head; in response, both officers fired their weapons at O’Neal. Although struck by both shots, O’Neal did not fall, but rather twisted around from the force of the shots, still waving his knife above his head. Immediately after the first volley of shots, Rose-berry fired a second shot, which hit O’Neal in the small of the back and brought him to the ground. O’Neal died as a result of the gunshot wounds.
O’Neal’s survivors brought this section 1983 action against Waits, Roseberry, the Director of Public Safety of DeKalb County, the Chief of Police and Assistant Chief of Police of DeKalb County, and DeKalb County. The complaint alleged that Waits and Roseberry had deprived O’Neal of his constitutional rights by using excessive force against him, and that this use of excessive force was the result of a custom or policy of DeKalb County. Concluding that O’Neal’s constitutional rights had not been violated because the officers had not used excessive force, the district court granted summary judgment for all the defendants. In a separate order, the district court denied the defendants’ motion for attorney’s fees under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11. The plaintiffs appeal, arguing that the district court erred in granting summary judgment on the issue of excessive force. The defendants cross-appeal from the denial of attorney’s fees.
II.
To succeed on their section 1983 claim, the plaintiffs must establish that O’Neal was deprived of a constitutional right. Baker v. McCollan, 443 U.S. 137, 138, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A 1981). The plaintiffs advance two plausible constitutional theories to support their section 1983 action; they assert that the officers’ use of force against O’Neal violated his right to substantive due process and his rights under the fourth amendment. We will consider these assertions separately. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir.1985) (en banc) (analyzing claim of excessive force under both substantive due process and fourth amendment), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
A. Substantive Due Process
The starting point for any discussion of a substantive due process claim in the context of police abuse is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the Supreme Court held that incriminating evidence obtained by subjecting a criminal suspect to a stomach pump was inadmissible. As the Court explained, substantive due process is violated when the government engages in actions that “ ‘offend those canons of decency and fairness which express the notions of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Id. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). In other words, government conduct that “shocks the conscience,” id. at 172, 72 S.Ct. at 209, or “offend[s] even hardened sensibilities,” id., 72 S.Ct. at 210, transgresses the bounds of substantive due process.
Since Rochin, the lower courts have developed more definite standards for identifying substantive due process violations. In determining whether force used by police officers amounts to a constitutional deprivation, a court must consider “‘the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
The plaintiffs’ substantive due process argument is two-tiered. First, they maintain that the use of gunfire against a suspect armed only with a knife was constitutionally excessive because less harmful methods of apprehension were available. Second, they argue that assuming the first volley of gunfire was constitutional, Rose-berry’s second shot was not. We reject both parts of the plaintiffs’ argument.
Unquestionably, the situation at Doctor’s Hospital on the evening of December 15, 1983 suggested the need for the application of force. O’Neal had just stabbed several people and, at the time he was shot, was charging at Roseberry with his knife raised over his head. He refused to respond to the officers’ demands that he surrender, leaving them with the definite impression that force was required to stop him from hurting Roseberry or someone else. Moreover, the amount of force used did not exceed the need for the use of force. The plaintiffs maintain that O’Neal’s rights were violated because the officers could have disarmed him by negotiating with him or by using a baton or stungun, instead of resorting to gunfire. However, they point to no authority holding that the Constitution requires police officers to use a minimum of force to apprehend a violent, dangerous suspect who is threatening the lives of the officers and others nearby. In this case, the use of gunfire to disarm O’Neal was not excessive in light of the obvious danger he posed to the lives of others. In addition, the undisputed evidence demonstrates that the officers fired their guns in a good faith effort to stop O’Neal, not out of a malicious desire to cause harm. Although the injury inflicted was the worst possible, death, the result of the use of force is but one factor to be considered in determining if such force was excessive. Despite the tragic outcome of Waits’s and Roseberry’s encounter with O’Neal, we remain convinced that they did not use excessive force in attempting to subdue him. In short, then-reaction to O’Neal’s violent behavior does not “shockQ the conscience” or “offend ... hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. at 209-10.
Our opinion does not change because Roseberry fired a second shot at O’Neal. As the plaintiffs admitted in their brief and at oral argument, Roseberry fired his second shot “immediately” after his first, and at the time of the second shot, O’Neal was still on his feet, holding his knife and spinning from the force of the first volley of shots. These undisputed facts convince us that Roseberry’s second shot was part of his initial reaction to O’Neal’s attempt to stab him, and not, as the plaintiffs would have us believe, a brutal, gratuitous use of force against a visibly disabled suspect. Viewed as part of his initial reaction to O’Neal’s attack, and in light of the unusual circumstances facing the officers that evening, Roseberry’s firing of two shots in rapid succession in an attempt to guarantee O’Neal’s apprehension did not constitute excessive force.
B. The Fourth Amendment
The plaintiffs also base their section 1983 action on the fourth amendment, which provides in pertinent part that “[t]he right of the people to be secure in then-persons ... against unreasonable searches and seizures shall not be violated.” As the Court recently noted in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7, 105 S.Ct. at 1699. Reasonableness is determined by “ ‘balancing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at 8, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).
Under this balancing test, the plaintiffs’ fourth amendment claim must fail. Although O’Neal’s “fundamental interest in his own life need not be elaborated upon,” id. at 9, 105 S.Ct. at 1700, even such a weighty interest may be counterbalanced by governmental interests in effective law enforcement, as in this case. Waits and Roseberry used deadly force to protect themselves and the people at the hospital from O’Neal, who was armed and, as the blood-covered floors and injured bodies demonstrated, extremely dangerous. Considering the trying circumstances that the officers faced, their reaction, including Ro-seberry’s second shot, was reasonable and hence within the bounds of the fourth amendment.
III.
On cross-appeal, the defendants argue that the district court abused its discretion in not granting them attorney’s fees under 42 U.S.C. § 1988 or Federal Rule of Civil Procedure 11. Pursuant to section 1988, a district court may award attorney’s fees to prevailing defendants if “ ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Id., 101 S.Ct. at 178. Similarly, a court may require a party or its counsel to pay reasonable attorney’s fees to the prevailing party pursuant to Federal Rule of Civil Procedure 11 as a sanction for filing an action that has no factual or legal foundation. See Donaldson v. Clark, 819 F.2d 1551, 1555-56 (11th Cir.1987) (en banc).
Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous. As the district court pointed out in its order denying fees, in ruling on the motion for summary judgment, it “reviewed a great deal of caselaw [sic] on the issue of when deadly force constitutes unreasonable and excessive force within the meaning of the Constitution,” and “did not find any case with a fact situation similar to the one at hand.” We agree with the district court that although the plaintiffs’ section 1983 suit does not merit relief, their causes of action were plausible. Given this, we cannot say that the district court abused its discretion in denying attorney fees under section 1988 or Rule 11. Cf. Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 179 (allegations properly dismissed for failure to state a claim deserved and received careful attention of the courts and thus were not groundless or without foundation).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. The plaintiffs claim that O’Neal’s outburst was caused by medication he was given while a patient at the hospital.
. The complaint also asserted pendent state claims against Roseberry and Waits for wrongful death and against Doctor’s Hospital for wrongful death and medical malpractice. Upon granting summary judgment for the defendants, the district court dismissed the pendent claims without prejudice.
. In pertinent part, 42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
.The complaint alleged that the defendants had violated O’Neal’s rights "to life, equal protection of the laws, and freedom from cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution." The district court noted that “[i]n response to defendants’ motion for summary judgment, plaintiffs appear to assert that O’Neal’s life was unreasonably seized in violation of the Fourth Amendment." Accordingly, the district court analyzed the plaintiffs’ claim under the fourth amendment, even though it was not mentioned in their complaint. In their briefs to this court, the plaintiffs continue to argue that O’Neal’s rights under the fourth amendment were violated. Thus, we will also proceed on the assumption that the plaintiffs’ claim is brought under both the fourth and fourteenth amendments.
As for the remaining constitutional claims asserted in their complaint, the plaintiffs concede that their eighth amendment claim must fail as a matter of law; their equal protection claim is also groundless and does not merit discussion.
. The plaintiffs stress that Roseberry’s second shot hit O’Neal in the back, as if this conclusively demonstrates that this shot was fired "maliciously and sadistically for the very purpose of causing harm.” Gilmere, 774 F.2d at 1501. As the plaintiffs admit, however, Roseberry fired his second shot “immediately" after his first. At the time Roseberry fired his second shot he could not have known that O’Neal would twist around from the force of the first round of shots and consequently be hit in the back by the second shot. Ilius, the fact that Roseberry’s second shot hit O’Neal in the back does not transform Rosebenys conduct into a violation of substantive due process.
. The dissent maintains that summary judgment was improper because there is a conflict in the record regarding the proportionality of the force used, and "such conflict is for the ultimate fact finder, not this court, to resolve and then weigh against the fact that O’Neal lost his life.” The dissent, however, seems to confuse the process of finding historical facts, a function of the jury, with the distinct process of determining whether those historical facts constitute a substantive due process or fourth amendment violation, a function of the court. See Gilmere, 774 F.2d at 1500-01 (court must determine whether there was substantive due process violation by looking to four factors); Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (reasonableness under fourth amendment is question of law). The proportionality of the force used, the focus of the second prong of the Gilmere due process test and a factor in determining reasonableness under the fourth amendment, is for the court, not the jury, to consider. In a case such as this, where the historical facts are undisputed, it is this court's duty to decide, as a matter of law, whether the facts support the appellants’ constitutional claim.
. Citing Gamer, the plaintiffs argue that the officers violated O’Neal’s fourth amendment rights because they shot at him although he was not trying to escape. The passage from Gamer that the plaintiffs rely upon states as follows:
[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
471 U.S. at 11-12, 105 S.Ct. at 1701.
We are not persuaded by this argument. Initially, we take issue with the plaintiffs’ underlying factual assumption that O’Neal was not trying to escape when he was shot. O'Neal’s attempt to stab Roseberry could very well be interpreted as an attempt to escape from the officers and continue his rampage through the hospital. Next, we note that the plaintiffs have misread Gamer to hold that a police officer can no longer use deadly force to defend himself against a suspect’s use of deadly force, unless the suspect is also trying to escape. A more sensible interpretation of the above quoted passage is that a police officer may, under certain circumstances, use deadly force to prevent the escape of a suspect; it does not mean that the use of deadly force is limited to those instances where a suspect is trying to escape.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
songer_respond1_2_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
PORT OF BOSTON MARINE TERMINAL ASSOCIATION et al., Plaintiffs, Appellees, v. BOSTON SHIPPING ASSOCIATION, INC., et al., Defendants, Rederiaktiebolaget Transatlantic, Defendant-Intervenor, Appellant.
No. 7368.
United States Court of Appeals First Circuit.
Heard Oct. 8, 1969.
Decided Jan. 8, 1970.
Certiorari Granted April 20, 1970.
See 90 S.Ct. 1360.
George F. Galland, Washington, D. C., with whom Stephen Moulton, Boston, Mass., Amy Scupi, Washington, D. C., David T. Stitt, Washington, D. C., Moul-ton, Looney, Mazzone, Falk & Markham, Boston, Mass., and Galland, Kharasch, Calkins & Lippman, Washington, D. C., were on brief, for appellant.
John M. Reed, Boston, Mass., with whom Neil L. Lynch, George W. Stuart, and Withington, Cross, Park & Groden, Boston, Mass., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, WOODBURY, Senior Circuit Judge, and McENTEE, Circuit Judge.
By designation.
. Swedish asserted a conflict with Volkswagenwerk Aktiengesellschaft v. FMC, 1968, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090, hereinafter VW, a case which postdated the Boston Shipping decision.
ALDRICH, Chief Judge.
The members of the Port of Boston Marine Terminal Association (Terminals), operate pursuant to Federal Maritime Commission Agreement No. 8785, a conference arrangement approved by the Commission under section 15 of the Shipping Act. 46 U.S.C. § 814. Approval permits uniform rates for all “services, facilities, rates, and charges incidental thereto: — wharfage, dockage, free time, wharf demurrage, usage charges, passenger charges, water, electricity.” The tariffs so established were first filed with the Commission in 1962. Wharf demurrage was therein defined as a storage charge “levied against cargo remaining on a pier or wharf after the expiration of free time.” On imported cargo “free time” was the first five days after unloading, an arbitrary period to permit consignees sufficient access to the cargo to satisfy the carrier’s obligation to make delivery. If delivery was not taken within the free time, the charge, by accruing against the cargo, became the consignee’s obligation.
If access to cargo was prevented by a strike, the demurrage rate was substantially reduced, but it remained as a charge against unloaded cargo. This led to complaints by consignees. By December 1964, through a series of amendments, Terminals changed the tariff to provide that if the consignee’s access was prevented by a strike of longshoremen or other agents of the ship, as distinguished from employees of Terminals, the reduced demurrage would be called “strike storage” and charged to the vessel instead of to the cargo. This charge was expressed in broad terms, and resulted in shifting the obligation to the vessel even if the strike did not commence until after the expiration of the free time. The new tariff purported to be immediately effective, and hence was imposed without approval by the Commission.
Appellant Rederiaktiebolaget Transatlantic (Swedish) is a common carrier serving the Port of Boston. On January 8, 9, and 10, 1965, its vessel MATTA-WUNGA unloaded cargo in Boston at Mystic Terminals. On January 11 there was a general longshoremen’s strike. Longshoremen are employees of the stevedoring concerns which serve all vessels. Tally clerks, who are also agents of the vessel, correspondingly struck. Accordingly there could be no completed delivery of cargo to consignees who had not called before January 11. Non-delivery was additionally assured because transportation employees serving consignees observe picket lines. Under the 1964 amendments Terminals charged the resultant demurrage to the various vessels. Mattawunga’s bill was $8,154. Swedish denied the obligation. Other carriers similarly situated took the same position.
Thereafter Terminals brought an action in the Massachusetts Superior Court for declaratory relief and for payment against Boston Shipping Association (Shipping), representing various vessel owners and agents. Shipping removed the case to the district court. At the suggestion of Terminals the district court ruled that the Commission had primary jurisdiction and entered a stay permitting Shipping to proceed there. Shipping did so, and lost. Boston Shipping Ass’n, Inc. v. Port of Boston Marine Terminal Ass’n, 1967, 10 F.M.C. 409, hereinafter Boston Shipping. It then appealed to the D.C. Court of Appeals, but the appeal was dismissed for late filing. Subsequently Swedish, which was not a member of Shipping, sought to appear before the Commission and to petition for reconsideration. The petition was refused docketing because of lateness. Swedish then sought to intervene as a defendant in the district court proceedings, and that motion was allowed. Upon intervening, Swedish filed an answer raising defenses on the merits. On stipulations of fact the court, without jury, found against all defendants, including Swedish. Swedish, only, appeals.
The first question must concern the jurisdiction of the district court. There is no diversity jurisdiction as to Swedish, for lack of the jurisdictional amount. 28 U.S.C. § 1332. We see no basis for aggregation of the claims against the several defendants. Cf. Snyder v. Harris, 1969, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319; Pinel v. Pinel, 1916, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817; Troy Bank of Troy Ind. v. G. A. Whitehead & Co., 1911, 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81. If this wére a suit under a tariff, jurisdiction would automatically attach under 28 U.S.C. § 1337, where the amount involved is of no consequence. Peyton v. Railway Express Agency, Inc., 1942, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525; Turner, Dennis & Lowry Lumber Co. v. Chicago, Milwaukee & St. Paul Ry., 1926, 271 U.S. 259, 261, 46 S.Ct. 530, 70 L.Ed. 934. Terminals’ tariff was not, however, a tariff in the sense of being within 46 U.S.C. § 817, and was filed with the Commission only as a condition imposed by the prior approval of the conference agreement. We nevertheless find a sufficient federal issue. While it is commonly held that the question must appear on the face of the complaint, Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; Louisville & Nashville R. R. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, the necessity for construing a federal statute may appear by inference. Peyton v. Railway Express Agency, Inc., supra. It is true that the complaint did not allege that the change in the agreement had not been approved by the Commission, but neither did it allege approval. Hence we conclude, albeit with some hesitation, that the necessity of approval was raised, and that it sufficiently appeared that a question of construction of the Shipping Act was presented. This is enough to satisfy section 1337.
We turn to this question forthwith, as it constitutes Swedish’s most significant defense. Section 15 requires that “modifications,” as well as the original agreement, receive the prior approval of the Commission. In Boston Shipping the Commission, without any discussion of the broad language of the act held that where, under the already approved agreement, there was power to fix charges, a change in incidence, as to who was obligated to pay, was not a modification requiring section 15 filing and approval. In the light of the strictures expressed in VW, supra, n. 1, this holding seems unsupportable. While, with some consistency, it represented the Commission’s past reading of the statute, the Court in VW pointed to the “expansive language” of section 15, and the Commission’s “extremely narrow view,” and specifically rejected the binding effect of the Commission’s administrative construction. 390 U.S. 261, 272-273, 88 S.Ct. 929. Then, referring to the statute’s “literal provisions,” the Court spoke of possible exceptions only in terms of a “de minimis or routine character,” and stated that even these must be defined by “appropriate administrative proceedings.” 390 U.S. 261, 276, 88 S.Ct. 929.
Even this exception could not apply in the case at bar. No administrative proceedings had been held to establish guidelines under which modifications might be found “de minimis or routine.” Administrative standards cannot be established ex post facto. Cf. NLRB v. Wyman-Gordon Co., 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709, 5 U.S.C. § 553.
We may add, for good measure, that a change in incidence, as distinguished from a change in rate, seems to us anything but routine. Even less routine is an unjustifiable change. The Commission expressly found this one “unjust and unreasonable” to the extent that de-murrage was to be charged to the vessel even if the strike did not commence until after the expiration of free time, when the vessel’s obligation to make the goods available had been fully performed. 10 F.M.C. at 417-18. It would peculiarly violate section 15’s “expansive language” to hold that an unreasonable modification could be rewritten nunc pro tunc and saved in part.
We need consider only one other matter, the question of the binding effect of the Boston Shipping decision even though erroneous. We are not concerned with the parties to the proceeding, as they did not join in the present appeal. Nor is the question whether the decision was an appropriate approval— to the extent that it was an approval— of demurrage charges incurred after its date. We must hold that the decision did not bind non-parties to charges sought to be imposed for services rendered prior thereto. See Columbia Broadcasting System, Inc. v. United States, 1942, 316 U.S. 407, 418, 62 S.Ct. 1194, 86 L.Ed. 1563; Davis, 2 Administrative Law Treatise § 18.05. Any other conclusion would destroy the statutory requirement.
Reversed; judgment for the intervening defendant.
. General filing requirements for marine terminal tariffs were added by the Commission’s General Order 15, 46 C.F.R. §§ 533.1 et seq., which became effective on October 5, 1965, and hence does not apply here.
. The statute requires the filing of “every agreement * * * or modification * * * thereof * * * fixing or regulating transportation rates or fares * * It then provides that the Commission shall approve or disapprove, upon terms stated, and that “before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation * * See also n. 4, infra.
. The Commission’s prior view, that all rate changes under such an agreement are without section 15, Empire State Highway Transp. Ass’n, Inc. v. American Export Lines, Inc., 1959, 5 F.M.B. 565, affirmed, Empire State Highway Transp. Ass’n, Inc. v. Federal Maritime Board, 110 U.S.App.D.C. 108, 1961, 291 F.2d 336, cert. denied, Empire State Highway Transportation Association Inc. v. United States, 368 U.S. 931, 82 S.Ct. 360, 7 L.Ed.2d 194, fell with the overruling of the Commission in VW, supra. Some changes in rates and charges are now expressly allowable without approval under the 1961 amendment of section 15. This portion is quoted in VW, supra, 390 U.S. at 269-270, n. 16, 88 S.Ct. 929. The Commission did not rely upon that provision, nor do appellees herein
. See n. 3, supra.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff, Appellee, v. POLE NO. 3172, HOPKINTON, etc., Defendant, Appellee. Appeal of Alice GAZDA, Ida Ambrosio and Charles Fogarty, Claimants.
No. 87-1600.
United States Court of Appeals, First Circuit.
Argued April 8, 1988.
Decided July 29, 1988.
John F. Cicilline, Providence, R.I., for claimants, appellants.
Michael P. Iannotti, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for plaintiff, appellee U.S.
Before BOWNES, BREYER and TORRUELLA, Circuit Judges.
TORRUELLA, Circuit Judge.
In this case the defendant is a piece of real estate, while the real party in interest, Charles Fogarty, has disappeared, and his mother and aunt, who have been found by a jury to have no interest in the defendant, are prosecuting Fogarty’s case in his absence. On May 30, 1986, the government filed a complaint against the named property, seeking to forfeit the same on the basis that it was purchased with the proceeds of drug trafficking. 21 U.S.C. § 881(a)(6). The record owner of the property is Fogarty, but the other two claimants, Ida Ambro-sio and Alice Gazda, argued that they provided the money for its purchase pursuant to a family joint venture. Fogarty, through a power of attorney he gave his mother (Gazda), appeals from an order of the district court granting the government’s motion for summary judgment against him. Gazda and Ambrosio, on their own behalf, appeal after a jury found that they did not have an ownership interest in the property.
The issues raised on appeal are several. All three appellants argue that the government’s complaint was inadequate as a matter of law, for lack of particularity. Fogarty challenges the dismissal of his claim both as a result of the application of the fugitive from justice doctrine to this case, see Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), and as a Rule 37(d) sanction for failure to comply with a deposition subpoena. Finally, Gazda and Ambrosio assert that the district court improperly limited the issues presented to the jury. After careful consideration of these issues we reverse and remand the claims for further proceedings.
I. The Adequacy of the Complaint
The threshold issue concerns the adequacy of the complaint in terms of particularity. Forfeiture complaints are governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. See 21 U.S.C. § 881(b). Supplemental Rule E(2)(a) requires that “the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” As the Eleventh Circuit has stated, “a section 881(a) forfeiture complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture.” United States v. $38,000 in United States Currency, 816 F.2d 1538, 1548 (11th Cir.1987). See also United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1219 (10th Cir.1986) (“specific facts sufficient to support an inference that the property is subject to forfeiture ... ”).
The peculiar stringency of the particularity requirement in these cases is based on a concern for due process which arises by reason of the “drastic nature” of these remedies. See $39,000 in Canadian Currency, at 1217-18, and cases cited therein. The requirement is not merely a procedural technicality, but a way of ensuring that the government does not seize and hold, for a substantial period of time, property to which, in reality, it has no legitimate claim. The failure to meet the standard set forth above requires dismissal of the complaint, albeit without prejudice. See $38,000, 816 F.2d at 1549; $39,000, 801 F.2d at 1222.
There is no question that the complaint in this case fails to meet the standard. The government merely described the property, and, parroting the language of the statute, stated that it was forfeitable as proceeds of a drug transaction. The government, in effect, provided no facts whatsoever to support its claim.
The government argues, however, that dismissal is inappropriate under the facts of this case. The government seized the property pursuant to a seizure warrant issued by a magistrate. The magistrate found probable cause to seize the property on the basis of an affidavit, signed by Special Agent McCarthy and filed by the federal agents. The government argues that (a) due process concerns are allayed by the magistrate’s determination of probable cause, and (b) the affidavit should be deemed incorporated by reference into the complaint, to supply the requisite particularity, because the claimants were on notice that it existed. We reject both arguments.
As to the due process problems, the affidavit upon which the probable cause determination was based does little to set us at ease. If anything, it provides a striking illustration of the need to strictly enforce the requirements of Rule E(6). The affidavit was described by the district court here in less than complimentary terms: “even a cursory examination ... reveals it to be riddled with hearsay on virtually all its constitutive assertions.” The fact that parts of the affidavit consist of third-hand allegations that Fogarty was arrested in connection with an unsuccessful drug run in 1978, although charges against him were subsequently dropped, makes the affidavit even less reassuring. While a probable cause determination may be based on otherwise inadmissible evidence, the evidence must still be found reliable. United States v. $250,000 in United States Currency, 808 F.2d 895, 899 (1st Cir.1987). In this case, the district court made no such determination. In addition, the probable cause determination of the magistrate and that in the complaint address two different questions: the first, whether the government has probable cause to hold the property until it can file a complaint against it, includes considerations of the need to protect the government’s interest, and comes at an earlier stage in the proceedings; the second, whether the facts in the government’s possession support an inference that the property is subject to forfeiture, must be more narrowly tailored to precisely identify the portion of the property the government can keep. We cannot say, therefore, that this affidavit alone provides all the due process to which Fogarty is entitled.
The second argument also meets insurmountable obstacles. Even taking its allegations at face value, the affidavit itself falls far short of supplying facts sufficient to support a belief that the entire property is forfeitable. The very earliest indication of Fogarty’s involvement with drugs is his arrest, described above, for an operation which, since it was unsuccessful, could not have generated any revenue. Furthermore, it took place two years after the purchase of the property. The property was purchased with a downpayment constituting 20.8% of its value. Since that 20.8% interest was acquired two years before the earliest indication of drug activity there is absolutely no reason to believe it is forfei-table.
The government, however, tells us the property is forfeitable in any event because Fogarty has continued making mortgage payments over periods of time for which there are indications of drug dealing. We agree that the interest acquired as a result of mortgage payments made with the proceeds of drug transactions should be forfei-table. We do not believe, however, that forfeitability spreads like a disease from one infected mortgage payment to the entire interest in the property acquired prior to the payment. After all, only the actual proceeds of drug transactions are forfeita-ble. Unless section 881(a)(6) deprives persons accused of dealing drugs of the right to own any property, the existence of an undivided interest in a felon’s property which constitutes proceeds cannot mean that his entire property is proceeds.
It appears, therefore, that the government may have an interest equal only to the portion of the property acquired by Fogarty as a result of mortgage payments (if, of course, the government can demonstrate probable cause to believe those payments were made with proceeds of drug transactions). In consequence, at the pleadings stage, the government must allege facts from which one could infer that the payments claimed to be proceeds actually were tainted; the fact finder can then later determine the percentage interest acquired as a result of tainted payments.
The McCarthy affidavit fails to allege the requisite facts. We find it completely devoid of any allegations of lucrative drug dealing until July 14, 1981. On that date an anonymous “reliable informant” stated that Fogarty “travelled from Rhode Island to Miami, Florida on a weekly basis to purchase not less than a kilogram of cocaine.” Only sheer speculation could provide an earlier starting date for this activity. Further information from anonymous tipsters, however, indicates Fogarty may have been profiting from the sale of cocaine on February 17, 1982, and September 19, 1983. These three allegations of ongoing cocaine dealing, coupled with the lack of legitimate income, may well support a reasonable belief that the government could demonstrate probable cause for mortgage payments made between July 14, 1981, and September 19, 1983 or even thereafter, given the profits to be had from such extensive dealing.
It also appears, however, from documents in the record, that Alice Gazda took over responsibility for the mortgage payments in 1986. Appendix 8, at 30. The government has not argued that her income is the result of drug transactions, so, unless it has more facts that it does not disclose in the affidavit, any interest acquired during and after 1986 is also not forfeitable.
Even taking the affidavit as fully incorporated into the complaint, therefore, it appears that the government only has a facially valid claim to a proportion of the property equal to the percentage of principal paid on the mortgage from July 14, 1981 to 1986, when Gazda began making the payments.
To recapitulate: the complaint itself is patently inadequate, but the government argues that we should consider the affidavit as part of the complaint, because the claimants knew or should have known its contents; and it argues that incorporating the contents of the affidavit into the complaint would bring the complaint into compliance with Rule E(2). We find, however, that this particular affidavit is inadequate to meet Rule E(2) requirements as to the whole property. In addition, we reject a rule that would require district courts generally to look at the knowledge of the claimants in determining the sufficiency of a forfeiture complaint. It is hardly a heavy burden to impose on the government the requirement that it express in the complaint the facts which it has already disclosed to the claimants. Nor can the government claim to be surprised by this requirement: Rule E(2) leaves little room to doubt that a higher than normal standard of particularity is in order, and several courts have emphasized the need for particularity in the complaint itself. See, e.g., $38,000 in United States Currency, 816 F.2d at 1547-49; $39,000 in Canadian Currency, 801 F.2d at 1219; United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 612 F.Supp. 1492, 1498 (S.D.Fla.1985).
Furthermore, this case demonstrates that the district court must insist on knowing the factual grounds of the government’s claim. Here, the United States was given full title to a parcel of land that was purchased two years before the forfeiture statute was even passed, two years before any indication of involvement with drugs, and five years before the date on which the government first shows the owner profiting from a transaction in drugs. Such a result could only have come about because the government was not forced to clearly articulate in its complaint the facts on which the seizure was premised. The district court therefore should have dismissed the complaint for lack of particularity. Nothing in this opinion, of course, precludes the government from refiling an amended complaint.
Ordinarily, our discussion would end here, since dismissal of the complaint voids all subsequent proceedings based on that complaint. However, two issues raised by Fogarty in his appeal are likely to recur on remand. These issues concern the apparent dismissal of Fogarty’s claim on alternate grounds: as a Rule 37 sanction for failing to appear at a scheduled deposition; and pursuant to the fugitive from justice doctrine established in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed. 2d 586 (1970). We find that neither of these grounds justified dismissal of his complaint.
II. Rule 37 Sanctions
Federal Rule of Civil Procedure 37 provides that whatever sanctions are “just,” including dismissal, may be applied against a party who fails to appear at his own deposition after being served with proper notice. The decision to sanction and the choice of the sanction lie in the discretion of the district judge. National Hock ey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976).
Several considerations go into the choice of a sanction. These include the willfulness or bad faith of the non-complying party, see National Hockey League, 427 U.S. at 640, 96 S.Ct. at 2779, and the prejudice to the opposing party resulting from the failure to appear. See Batson v. Neal Spelce Associates, Inc., 765 F.2d 511, 514 (5th Cir.1985). See also Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (Rule 37 does not authorize dismissal in absence of “wilfulness, bad faith, or any fault of petitioner”). These two factors appear to have been the determinative ones in the lower court’s decision against Fogarty:
Fogarty, having invoked the processes of the court to prosecute his claim to the real estate, cannot simultaneously ignore those processes to deprive his foes of customary pretrial discovery. To hold otherwise would be to allow a real party in interest unfairly to confound his litigation adversaries by wrapping himself in the protective cocoon of a power of attorney.
The government urges us to find willfulness “in that he [Fogarty] deliberately absented himself from this jurisdiction without leaving any method for one holding the power of attorney to contact him. Obviously, Fogarty was attempting to escape from his discovery obligations as well as the criminal charges.” It also claims that Fogarty’s failure to appear at that deposition caused “extreme prejudice” to its case.
Neither of these assertions finds any support in the record. Fogarty left the jurisdiction — leaving his mother the power of attorney — long before the government began this action. There is no indication that he is still alive, let alone that he knows anything at all about this litigation. Under these circumstances we cannot see how the court could find that he was willfully refusing to appear. The cases cited by the government are not to the contrary. In each of these cases, the attorney upon whom notice was served was in contact with his client, or it was clear that the client himself decided, after learning of his discovery obligations, not to appear. See United States v. $239,500 in U.S. Currency, 764 F.2d 771 (11th Cir.1985); United States v. One Lot of U.S. Currency totalling $506,537.00, 628 F.Supp. 1473 (S.D.Fla.1986). At least insofar as the failure to appear for the deposition is concerned, there is no evidence of willfulness.
We also fail to see any evidence of prejudice to the government. The allocation of the burden of proof itself in forfeiture cases goes a long way towards protecting the government. The government must initially show that it has probable cause to believe that the defendant property has been purchased with proceeds of drug transactions. Once probable cause is established, the burden passes to the claimant, who must show by a preponderance of the evidence that the property was legitimately acquired. See United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987). The government’s burden is not overly weighty: it need only demonstrate — even by otherwise inadmissible evidence, id. at 899 — that it reasonably believes the property is forfeita-ble, and that its belief is supported by more than mere suspicion, although less than prima facie proof. See, id. at 897, and cases cited therein. The government is not even required to link the alleged proceeds to any particular drug transaction. Id. at 899-900.
What, then, was the government seeking to discover by deposing Fogarty? In the first place, we are not aware of any showing by the government of a need for this deposition. Furthermore, if we were to speculate, we would note that it already knew that Fogarty had claimed little or no legitimate income since 1976. Any evidence of undeclared non-drug income would only contribute to Fogarty’s refutation of the government’s initial case and the satisfaction of his own burden of proof. On the other hand, any information which could be supplied by Fogarty connecting him with a drug transaction the government did not yet know about is obviously protected by the Fifth Amendment privilege against self-incrimination, especially in light of the indictment pending in Florida. At most, the government may have needed information about alleged legitimate earnings in order to prepare to rebut Fogarty’s attempts to prove the property was not purchased with drug proceeds. In light of Fogarty’s absence, however, that need does not appear too pressing.
In any event, the court could have denied Fogarty that advantage by means much less drastic than outright dismissal. It could have, for example, precluded Fogarty from using at trial any information he should have produced at that deposition, perhaps even allowing the government to prevail after a showing of probable cause.
The most drastic of sanctions must be available to the district court to serve as a deterrent for future offenders, see National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781; and the question “is not whether we would have imposed a more lenient penalty had we been sitting in the trial judge’s place.” Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988) (emphasis supplied). However, we still consider in reviewing the district court’s exercise of its discretion “whether the district court could have fashioned an equally effective but less drastic remedy.” Griffin v. Aluminum Company of America, 564 F.2d 1171, 1172 (5th Cir.1977). The reason for this is, as we noted in the Rule 41 context, that “unconditional dismissal with prejudice is a ‘harsh’ and ‘severe’ sanction that runs counter to our ‘strong policy favoring disposition of cases on the merits.’ ” Enlace Mercantil Internacional, Inc. v. Senior Industries, 848 F.2d 315, 317 (1st Cir.1988) (footnotes omitted). While Rule 37 and Rule 41 address significantly different problems, the same considerations are at work whenever a sanction precludes disposition of a case on the merits. We conclude, therefore, that dismissal of Fogarty’s claim as a sanction for failing to appear at a deposition was an abuse of discretion, under the facts of this case.
We are troubled by the government’s disingenuous attempt to rid itself of even the light burden of showing probable cause by simply noticing a party for a deposition, when it knows that party probably will not appear, and when it has little if any need for the deposition. We refuse to condone a rule that essentially allows the government to go through the missing persons list and seize all the property of everyone who fails to respond to a forfeiture complaint, without even showing the court that it reasonably believes the property is forfeitable as Congress intended it to do.
III. The Fugitive from Justice Doctrine
The alternative basis on which the district court granted the government’s motion to dismiss also cannot stand. The fugitive from justice doctrine simply cannot be extended far enough to justify the seizure of this property. One of the main considerations in the fugitive from justice cases is the fact that the fugitive is trying, either successfully or unsuccessfully, to reap the benefit of the judicial process without subjecting himself to an adverse determination. See, e.g., United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir.1987); United States v. Gordon, 538 F.2d 914, 915 (1st Cir.1976). That concern does not arise here. Fogarty is not appealing a conviction or seeking habeas relief. On the contrary, the government seized his property and will hold it forfeit if Fogarty does not respond. As we see below, while technically he is a claimant, in reality Fogarty’s claim is more in the nature of a response.
The Supreme Court recognized this possibility in Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). There, the Court reversed the imposition of sanctions on plaintiff by the district court for failing to comply with a discovery order in a case in which it was trying to recover assets previously seized by the government. The Supreme Court said “petitioner, though east in the role of plaintiff, cannot be deemed to be in the customary role of a party invoking the aid of a court to vindicate rights asserted against another. Rather petitioner’s position is more analogous to that of a defendant, for it belatedly challenges the government’s action by now protesting against a seizure and seeking the recovery of assets -” Id. at 210 (emphasis in original). These observations apply equally well to Fogarty in this case. We thus disagree with the district court’s determination that Fogarty has “invoked the processes of this court.”
Neither can Fogarty avoid the “rigors of an adverse determination” by failing to appear. Again, Fogarty’s situation is similar to the plaintiff’s in Societe Internationale. The allocation of the burden of proof, and, as a result, the effect of Fogarty’s noncompliance (here non-appearance) on the trial is the same. The Court in Societe Internationale recognized that the petitioner bore the ultimate burden of proof, and that by not producing the documents at issue, it was simply impairing its own ability to carry that burden. Id. at 212-13, 78 S.Ct. at 1095-96. In the same way here, if Fogarty does not appear to prove an alternate source of income once the government establishes probable cause, he stands to lose his property. Fogarty, therefore, would fully feel the rigors of an adverse determination, and can do nothing to avoid such a result without submitting to the court’s jurisdiction.
Furthermore, while we have previously extended the application of the doctrine beyond an appeal in a criminal case, to a civil case, see United States, ex rel. Bailey v. U.S.C.O. of Provost Marshal, U.S. Army, 496 F.2d 324, 326 (1st Cir.1974), it is clear that this must be a civil case closely related to the criminal matter from which the applicant is a fugitive. See United States v. $129,374 in United States Currency, 769 F.2d 583, 588 (9th Cir.1985) (“clear ... that Lewis’ criminal conviction and the property involved in this civil forfeiture proceeding are integrally related parts of the same unlawful drug dealing scheme”); Schuster v. United States, 765 F.2d 1047, 1049 (11th Cir.1985) (“no question that the civil case here at issue ... is related to the criminal case”); United States v. $45,940 in United States Currency, 739 F.2d 792 (2d Cir.1984) (criminal prosecution was for illegally importing the money subject to forfeiture in civil case); Conforte v. C.I.R., 692 F.2d 587, 590 (9th Cir.1982) (criminal conviction and tax court appeal “are each related components of a general tax evasion scheme.”)- The two proceedings here — the civil forfeiture and the Florida criminal indictment — may very well be related. At this point, however, we can only speculate as to the contents of that indictment. The fact that the property was purchased eight years before the indictment was obtained only suggests that this action cannot be based solely on the facts alleged in that indictment. Without more, we cannot conclude that Fogarty’s status as a fugitive is sufficiently related to the civil forfeiture to deprive him of the right to process of any sort before his property is taken from him.
Perhaps most importantly, there is no evidence that Fogarty had notice of this proceeding, and elected not to defend it. Compare, United States v. $129,374, 769 F.2d at 589; United States v. $45,940 in U.S. Currency, 739 F.2d 792 (2d Cir.1984). The record here does not show that Fogarty is acting willfully and hiding from the court while asking it to resolve his claims. True, he has not appeared to answer the indictment in the Southern District of Florida, but there is no evidence that he is purposely avoiding the Rhode Island District court or flaunting its processes. The core concept in the fugitive from justice doctrine seems to be that the courts need not act on behalf of an individual who has attempted to bring about the same result by the “self-help” method of escaping from justice. That characterization simply does not fit Fogarty’s actions. Fogarty should be treated, therefore, like any other absent civil litigant, and any misconduct or prejudice to the opposing party should be redressed subject to the strictures of the rules set up for that purpose.
As we have seen, Rule 37 does not support the drastic sanction of dismissal, and we see no other reason under the facts of this case to relieve the government of even its minimal burden of showing probable cause.
The case is reversed and remanded for proceedings consistent with this opinion. The district court may dismiss the government’s complaint with leave to amend, if it feels such action is proper.
APPENDIX
AFFIDAVIT
I,DANIEL J. McCarthy, being duly sworn deposes and says:
1. I am a Special Agent of the Drug Enforcement Administration, United States Department of Justice, and have been so employed for the past twenty years. I am presently assigned to the Providence Office of the Drug Enforcement Administration (DEA).
2. This affidavit is submitted in support of an application to seize property in Hop-kinton, Rhode Island namely one parcel of real property with buildings, appurtenances, and improvements, known as Plat # 20, Lots 18,18B, and 19 located at Pole # 3172, Dye Hill Road, in the Town of Hopkinton, Rhode Island owned by Charles E. Fogarty hereinafter collectively referred to as “The Property” and more fully described as follows:
That certain lot or parcel of land with any improvements thereon, situated in the northerly side of Dye Hill Road and the easterly side of Woody Hill Road, in the Town of Hopkinton, County of Washington, State of Rhode Island....
$ * * * ‡ *
3. Said “Property” is the proceeds of the exchange of controlled substances in violation of Title 21, United States Code, Section 841(a)(1) and is subject, therefore, to seizure and forfeiture under Title 21, United States Code, Section 881(a)(6).
4. I have reviewed the deeds for the “Property” and Special Agent Gilbert Howard has spoken to the previous owner Helen M. Dinwoodie. Howard advises me that Dinwoodie advised him that Fogarty purchased the “Property” on October 29, 1976 for $120,000. A cashier’s check in the amount of $25,000 was given to her by Fogarty with the rest of the purchase price covered by mortgage. A new deed was written and filed to correct defects on November 30, 1984.
I am advised by Assistant U.S. Attorney James H. Leavey that he has reviewed a civil tax audit of Fogarty for the years 1974, 1975, 1976, and 1977. Fogarty reported an income of only $7,956.25 in 1974; $9,380.88 in 1975; $12,265.89 in 1976; and $9,974.16 in 1977. And yet, defendant was able to purchase the “Property” as noted above. Furthermore the mortgages on said “Property” have been paid from 1976 to present without any apparent legitimate occupation of Fogarty despite an intensive investigation. Fogarty holds all offices of Dutch Cove Development Corporation which was incorporated in June 1972. On May 7, 1981 Fogarty pleaded guilty to False Statement on a Tax Return on behalf of the corporation in United States District Court for the District of Rhode Island. I have checked with the Rhode Island Secretary of State and am advised that the mailing address of Dutch Cove Development Corporation is RR2, Box 248, Boston Neck Road, Narragansett, Rhode Island. I am advised by Geraldine Steinmetz of the United States Postal Inspectors office that she spoke with the postal carrier for Boston Neck Road on May 27, 1986. Said postal carrier told her that there is no such address. He did say Charles Fogarty had a box 24A, Boston Neck Road many years ago. I am also advised by New England Telephone company that it has no listing for Dutch Cove Development Corporation.
5. I am advised by Special Agent Gordon J. Rayner (Rayner) of the Savannah, Georgia DEA office that he has been advised by the Georgia Bureau of Investigation (GBI) that on October 27, 1978 at a farm in Wrens, Georgia, GBI agents arrested Fogarty and Neil P. Coady (Coady) immediately after they had flown 3,500 pounds of marijuana from Columbia to Georgia. Rayner advises me that the charges were dismissed due to a defective search warrant.
6. On or about July 14, 1981, I received information from a reliable informant, hereinafter referred to Source # 1, (all informants mentioned in this affidavit shall be referred to in the masculine gender to protect his/her identity) that Fogarty trav-elled from Rhode Island to Miami, Florida on a weekly basis to purchase not less than a kilogram of cocaine. Information provided by Source # 1 to DEA has led to numerous multi-kilogram seizures of cocaine and information provided by him has never been found to be false by me or other agents to my knowledge. Source # 1 stated that Fogarty conceals the cocaine in plastic packets inside cowboy boots that he wears and returns to Green Airport in Warwick, Rhode Island or to Logan Airport in Boston, Massachusetts usually on a nonstop flight. Source # 1 further said that Fogarty has several customers in the State of Rhode who purchase all the cocaine he has within twelve to twenty-four hours of Fogarty’s return.
7. I was advised on February 17, 1982 by Special Agent Joseph F. Ritucci (Ritucci) that he has a confidential informant hereinafter referred to as Source # 2. Source # 2 advised Ritucci that Fogarty and Coady utilized North Central Airport in Lincoln, Rhode Island to smuggle drugs. He further stated that Fogarty recently purchased a Cessna 310 which he converted in order to fly to and from Columbia.
8. On August 10, 1984 Fogarty, along with Coady and fifteen others were indicted in the Southern District of Florida on a four count indictment. Said indictment charged Fogarty with two counts of conspiracy to import into the United States in excess of five hundred pounds of cocaine and two counts of possession with intent to distribute in excess of five hundred pounds of cocaine. Source # 1 advised me that Fogarty’s role in the conspiracy was to fly the cocaine from Columbia. Fogarty is presently a fugitive on said indictment and despite an intensive search, his whereabouts are unknown.
9. On September 19, 1983 Coady sold Special Agent Richard Scovel (Scovel) of DEA four ounces of cocaine for $5,600. I was one of the surveillance agents during that transaction. Also present during the transaction was Source #1. I am advised by Source # 1 that Fogarty as well as a now deceased North Smithfield police officer who was also a defendant in the above-mentioned Florida indictment played a peripheral role in the four ounce sale to Scov-el.
10. On April 13, 1985 I conducted a surveillance of the wedding of Fogarty in Newport, Rhode Island. At said wedding I observed a vehicle registered to Michael Kelly of North Miami, Florida. This is a known alias of William McCann a co-defendant of Fogarty in the above-mentioned Florida indictment. I also observed at the said wedding vehicles registered to other major cocaine dealers from Connecticut.
11. I am advised by Special Deputy U.S. Marshal Lisa Silvestro that she has periodically been contacted by an anonymous individual hereinafter referred to as Source # 3. Source # 3 is extremely knowledgeable concerning the drug operation headed by Coady and Fogarty. Much of his information has been corroborated by other informants and surveillances. In January, 1986 Source # 3 advised Silvestro that Fo-garty was then in Florida negotiating a cocaine transaction.
12. Fogarty has been under investigation with varying intensity by DEA since at least 1978. During that period of time I have been unable to discover any legitimate source of income for him. He has been listed as an officer and/or shareholder of several corporations. Only one corporation known to me has performed any legitimate work. That corporation is the Dutch Cove Development Corporation. As noted in paragraph 4 above, it has apparently been out of business for many years and Fogarty’s reported income from 1974 through 1977 does not justify his purchase of the “Property”.
13. Fogarty although a fugitive is presently attempting to sell the “Property” for $550,000. His aunt, Ida Ambrosia, of South Kingston, Rhode Island apparently has the power of attorney to sell the “Property”. On May 1, 1986 I attempted to interview Ambrosia and upon identifying myself she slammed the door in my face. Despite having apparently no legitimate income, Fogarty has continued to made mortgage payments on the land from the time of its purchase up to the present time.
WHEREFORE, there is probable cause to believe that the “Property” as more fully described above is the proceeds of violations of Title 21, United States Code, Sections 841(a)(1) and 846 and are therefore subject to seizure and forfeiture under Title 21, United States Code, Section 841(a)(6).
(s) Daniel J. McCarthy
daniel j. McCarthy
Special Agent
Drug Enforcement Administration
. This last issue is meritless. The government conceded every relevant point concerning Gaz-da and Ambrosio’s claims, except for the existence of their ownership interest. The jury therefore was correctly instructed to decide only this one issue.
. The operative paragraphs of the complaint, in their totality, stated:
6. That the defendant real property with buildings, appurtenances, and improvements is a proceed traceable to exchanges of controlled substances as within the meaning of 21 U.S.C. 881(a)(6).
7. That by reason of the foregoing, the defendant real property, with buildings, appurtenances, and improvements is forfeited to the United States pursuant to the provisions of 21 U.S.C. 881(a)(6).
. The Affidavit is reproduced as an appendix to this opinion.
. That information is readily available from the mortgage holders, who keep schedules of the percentage of the principal that is paid off with each remittance of the mortgagee.
. There is also mentioned a 1984 indictment for a drug-related conspiracy. The allegations in that indictment may well provide specific facts to indicate a drug-related income for other periods of time, but the affidavit itself presents not an inkling of the time frame involved in those allegations or the extent of Fogarty's participation in the scheme.
.As an aside, we sincerely hope that the quality of this affidavit is not indicative of the general quality of affidavits on which seizure warrants are routinely based. Magistrates should not so lightly authorize the taking of a person’s property before the factual background is even alleged, let alone proven.
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_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.
Lynn MARTIN, Secretary of Labor, United States Department of Labor v. SELKER BROTHERS, INC., and Helen Selker, Executrix of the Estate of Bernard Selker, Deceased, for him Individually and as Employer for Selker Brothers, Inc., Appellants.
No. 90-3762.
United States Court of Appeals, Third Circuit.
Argued Oct. 1, 1991.
Decided Dec. 4, 1991.
Chester S. Fossee (argued) and Bradley S. Dornish, Reale, Fossee & Ferry, P.C., Pittsburgh, Pa., for appellants.
Paul J. Brysh, Office of the U.S. Atty., Pittsburgh, Pa., Marshall H. Harris, Regional Sol., Lauriston H. Long (argued), and William J. Stone, U.S. Dept, of Labor, Washington, D.C., for appellee.
Before SLOVITER, Chief Judge, COWEN and ROSENN, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal requires us to determine the standards for defining employment relationships under the Fair Labor Standards Act, “willful” violations of that statute, and the method for computing damages for such violations in the absence of employer records. The defendant in this case, a distributor of gasoline, oil, and related products, appeals the order of the United States District Court for the Western District of Pennsylvania determining that the operators of six gas stations were employees rather than independent contractors, and that defendant willfully violated the requirements of the Fair Labor Standards Act. Also before us is the award by the district court of liquidated damages to compensate the station operators for wages lost as a result of the statutory violations. Subject only to a minor mathematical adjustment, we will affirm the judgment of the district court.
I
The Secretary of Labor brought this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1988) (“FLSA” or “the Act”), to enjoin Selker Brothers, a distributor of gasoline, oil and other related products, from violating the Act’s minimum wage, overtime, recordkeeping and anti-retaliation provisions. The action also named Bernard Selker, the President of Selker Brothers, in his personal capacity. Following his death on April 15, 1991, his executrix, Helen Selker, was substituted as a party. We refer to the defendants collectively as “Selker.” The Secretary sought liquidated damages pursuant to section 216(c) of the Code, as well as back wages under the three-year statute of limitations set out in section 255(a), on the ground that Selker’s violations had been willfully committed.
Selker Brothers owned twenty gas stations, of which seven were directly operated by Bernard Selker and his family, five were leased, and eight were operated by commissioned operators. This appeal concerns six of the eight stations Selker classified as independent contractor stations. Two stations were in Franklin, Pennsylvania, one at Eighth and the other at Thirteenth Street. The remaining stations were located in Rimersburg, Seneca, Tionesta, and Snydersburg, Pennsylvania. It is stipulated that Selker owned the gas the stations sold, station operators had no investment in the gas, and Selker determined the price of gas at every station. The operators had keys to the pumps, but Selker did not give them the keys to the gasoline storage tanks. Nor did he allow the operators to paint cars or do body work at the stations.
The only compensation the station operators received from Selker was three cents commission on every gallon of gas sold and ten cents per gallon commission on sales of kerosene. This commission was not negotiable; it was set by Selker and could not be changed by the operators. For credit card sales of gasoline, operators were required by Selker to add a surcharge of three percent.
Each station had an island for pumping gas, a building for an office, as well as a sales area, storage area and garage. None of the station operators had written leases. The operators paid no rent, but did pay a portion of the stations’ monthly utilities, which Selker deducted from their commission checks along with other deductions for supplies, shortages and start up inventory. Selker controlled the hours of operation of each station and illumination of the stations at night. Selker maintained no records of the wages, hours, and other conditions of employment for the station operators or for other persons employed at the stations.
The Eighth Street Station in Franklin was run by Michael Cassano, who worked on average sixty hours per week, and employed workers to pump gas and do mechanical work. From July 20, 1986 through August 1988, Selker paid Cassano $19,826.01. Cassano supplemented these earnings by selling non-gasoline items including batteries, oil, candy and tobacco. His earnings from these sales averaged $400 per month. Bernard Selker fired Cas-sano and one of his assistants on August 31, 1988. Cassano testified that he complained to Bernard Selker that earnings based on commissions per gallon fell short of the minimum wage and Selker admitted the arrangement could be illegal. The district court found that Cassano and the assistant were fired because they complained to the Department of Labor about FLSA violations at the station.
The Thirteenth Street station was operated by William Koch from July 1986 through July 1989. Koch did not testify, but the district court found that he was paid a total of $21,520.37 in commissions during this three year period.
The Rimersburg station was an old-style station, a registered landmark with an old-fashioned pit but no lift. William McKinney operated this station from February 1986 through March 1988. From February 1986 to July 1987, he was paid on an hourly basis. In July 1987, Selker changed the method of payment to a commission basis. McKinney testified that the reason for the change, as explained to him by Bernard Selker, was that paying the hourly rate to the employees resulted in excessive overhead. From July 1987 to March 1988, McKinney was paid $7,202.21 in total commissions, and earned an average profit of $7.50 per month from the sale of non-gasoline items. McKinney testified that he used the pit as little as possible. He purchased the existing inventory of potato chips, soft drinks, candy, tobacco, motor oil and batteries from Selker at the time the station was converted to a commission basis. The district court found that Selker Brothers required McKinney to make this purchase. Upon terminating his tenure as station operator, McKinney sold the existing station inventory back to Selker Brothers.
Keith Zellefrow took over the operation of the Rimersburg station in April, 1988 and closed off the garage area to open a take-out restaurant. Zellefrow worked an average of 102 hours per week between April 1988 and January 1990, and was paid a total of $13,802.93 in commissions for gasoline sales.
The Tionesta station was run by six different operators between June 1986 and July 1988. Each received commissions from which station utility costs were deducted. Irvin Jenkins operated the station from June through August of 1986 but did not testify at trial. Keith Justice operated the Tionesta station from April 1987 through July 1987. He testified that he worked an average of 83 hours per week, and earned a total of approximately $270 per week from both gasoline and non-gasoline sales. The district court found that Justice worked an average of 98 hours per week for a total of 15 weeks and received commissions totalling $2,700.14. Based upon this estimate of hours worked, the district court awarded him $1,993.18 in back wages. Selker Brothers purchased the inventory when Justice quit.
The Snydersburg station was operated by Margaret and Roy Wolbert from May 1986 until December 18, 1987. The Wol-berts kept the station open from 7:00 a.m. to 9:00 p.m. Monday through Saturday, and from 9:00 a.m. to 9:00 p.m. on Sundays. They earned approximately $100 per month from mechanical work and approximately $10 per month from the sale, of non-gasoline items. Their son also worked at the station for a total of 37 weeks. The Wol-berts received commissions totalling $11,-608.29 between July 20, 1986 and December 1987. Raymond Hummell operated the Snydersburg station from April 1988 to June 1988. He made no profit from the sale of non-gasoline items, but earned a total of $480 by performing mechanical work. He worked 85 hours per week for total of eleven weeks and received commissions totalling $1,654.89.
The Seneca station was operated by Charles Kinear and his son Richard, from 1986 to March 1989. The station was open 94 hours per week. The Kinears rented the station garage to a mechanic, and received thirty percent of all labor performed, plus a mark-up on all parts used. In 1989, the Kinears sold their equipment to Al and Larry Stover, who performed their own mechanical work and hired others to pump gas. The district court found that the Department of Labor introduced insufficient evidence to substantiate the Ki-nears’ earnings and therefore assessed no damages. The Secretary has not appealed the district court’s findings with regard to this station.
The district court entered an order enjoining Selker from violating the minimum wage, overtime, retaliatory discharge and recordkeeping provisions of the FLSA. From the applicable findings of fact and conclusions of law, the sum of back wages due the aggrieved employees amounted to $142,220.91. The district court awarded liquidated damages in the amount of $140,-143.19. The court ordered Selker to pay the Secretary $280,286.38, an amount representing both the back wages and liquidated damages due.
II
The employment status of the station operators is a legal conclusion. Castillo v. Givens, 704 F.2d 181, 185-86 (5th Cir.), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983). Thus our standard of review of the legal determination of employee status is plenary. United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985). However, the district court’s findings of fact and the reasonable inferences in which it engaged are subject to the clearly erroneous standard. The factual findings underlying the district court’s computation and award of back wages are subject to the clearly erroneous standard. See United States v. Gambino, 864 F.2d 1064, 1071 n. 3 (3d Cir.), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 566 (1989).
The statute of limitations to be applied in this case depends upon the court’s determination of whether Selker “willfully” violated the FLSA. The findings of fact underlying this determination are subject to the clearly erroneous standard of review. Whether Selker’s knowledge or intent amounted to willfulness under the statute is a question of law subject to plenary review.
The determination of good faith and reasonableness is a conclusion of law based upon findings of fact. Williams v. Tri County Growers, Inc., 747 F.2d 121, 129 n. 15 (3d Cir.1984); Smith v. Harris, 644 F.2d 985, 990 n. 1 (3d Cir.1981). The district court’s findings of fact and reasonable inferences therefrom are subject to the clearly erroneous standard, and its conclusions of law subject to plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981); Schultz v. Wheaton Glass Co., 421 F.2d 259, 267 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970).
Ill
There is no single test to determine whether a person is an employee or an independent contractor for purposes of the FLSA. The statutory definitions regarding employment status are necessarily broad to effectuate the remedial purposes of the Act. See United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 296-97, 89 L.Ed. 301 (1945); Donovan v. American Airlines, Inc., 686 F.2d 267, 271 (5th Cir.1982). The Act defines an employee as “any individual employed by an employer,” 29 U.S.C. § 203(e)(1) (1988), and an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee____” Id. § 203(d). In accordance with these expansive definitions, the Supreme Court has emphasized that the courts should look to the economic realities of the relationship in determining employee status under the FLSA. Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947).
It is a well-established principle that the determination of the employment relationship does not depend on isolated factors but rather upon the “circumstances of the whole activity.” Id. Courts have developed several criteria to assist them in determining the existence of an employment relationship under the Act. Although neither the presence nor the absence of any particular factor is dispositive, we have held that there are six factors to determine whether a worker is an “employee”:
1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; 2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; 6) whether the service rendered is an integral part of the alleged employer’s business.
Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 (3d Cir.), cert. denied, 474 U.S. 919, 106 S.Ct. 246, 88 L.Ed.2d 255 (1985). See also Donovan v. Sureway Cleaners, 656 F.2d 1368, 1370 (9th Cir.1981); Real v. Driscoll Strawberry Associates Inc., 603 F.2d 748, 754 (9th Cir.1979). Not only should courts examine the “circumstances of the whole activity,” they should “consider whether, as a matter of economic reality, the individuals ‘are dependent upon the business to which they render service.’ ” DialAmerica, 757 F.2d at 1382 (quoting Sureway Cleaners, 656 F.2d at 1370). See also Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947); Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1311 (5th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976); Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5th Cir.1975).
The district court applied the six-part multifactor “economic realities” test and concluded that an employment relationship between Selker and the station operators had been established. That conclusion was based upon the court’s analysis of the facts with respect to each of the established criteria for determining the existence of an FLSA employment relationship. Selker argues that these indicators support the contention that the station operators were independent contractors, not employees, and consequently, the district court’s findings should be set aside as clearly erroneous. We proceed to analyze the facts of this case as agreed to by the parties or found by the district court in light of the established criteria for determining employment vel non.
1. Control. The district court found that Selker had significant control over the manner in which the station operators performed their services. Because the sale of gas was not always the main profit center at each station, Selker contends that this finding was clearly erroneous. Selker argues that the operators were independent business people who had freedom to enter other activities such as the sale of convenience items and mechanical work, and who kept their own books and accounts with respect to their side businesses. Consequently, Selker argues, the stations were not really gas stations, but full service stations over which Bernard Selker exerted only limited control.
The record, in contrast, reflects Selker’s pervasive control over the stations in question. Selker set the price of cash sales of gasoline; station operators were required to make daily sales reports to Selker and to deposit the previous day’s receipts into a Selker Brothers bank account; station operators conducted their business operations without leases or written contracts; Bernard Selker visited each station regularly to oversee its operations; Selker controlled the hours of operation and the appearance of the stations; and he participated in decisions to hire and pay at least four mechanics. Collectively, the historic facts as agreed and those expressly found by the district court adequately support a finding of employer control over the day-to-day operations of the stations.
2. Opportunity for Profit or Loss. The district court concluded that the station operators had no meaningful opportunities for profit nor any significant risk of financial loss, because the volume of business depended upon the location of each station rather than upon the managerial skills of the operators. Selker points to three stations, Tionesta, Seneca and Rim-ersburg, where the relative success of each station changed, and argues that the professionalism of different operators increased the profit margin despite no change in location of the stations. Nonetheless, unlike truly independent station operators, who buy and resell gasoline for their own account, the earnings of these individuals were not tied to price levels and resale profit margins. On the contrary, the income of the various operators was derived primarily from their fixed commission from Selker. The evidence at trial showed that gasoline sales, non-gasoline sales, and mechanical work depended heavily upon the location of the station and the traffic volume flowing past the station. Since gasoline sales receipts were found to have been ten times the total receipts from the sale of non-gasoline items and mechanical work combined, the potential for profit from these side activities does not undermine the finding of the district court that the predominant money-making activity of the stations was the sale of gasoline.
3. Investment in Equipment and Employment of Workers. The district court found that the station operators had no significant investment in equipment and materials at their stations. Selker argues that it provided no inventory, tools or equipment, and therefore the investment of the operators was a function of their independent entrepreneurial incentive. The record, in contrast, shows that Selker Brothers required new station operators to obtain an inventory of supplies and equipment. Selker helped the operators fulfill this requirement by financing their inventory purchases and deducting from their semi-monthly commission checks pre-deter-mined amounts to be applied to those purchases. Selker reimbursed operators for all the gasoline and purchased inventory remaining at the termination of the operator’s service. The station operators had no capital investment in gasoline, which represented the single largest item in value carried by the stations. In view of these facts, the district court was justified in concluding that the operators’ side activities, which were merely incidental to the sale of gasoline, were irrelevant to the FLSA employment relationship arising from the predominant underlying business activity of selling gasoline. See Usery, 527 F.2d at 1313-14.
4. Special Skill. Though Selker concedes pumping gas requires no special skills, it maintains the stations were not just gas stations but rather all-around service stations, selling convenience items, auto supplies and mechanical services. Nevertheless, the predominant work performed was selling gas, and it was to that source that each operator looked for the mainstay of his or her income. “Routine work which requires industry and efficiency is not indicative of independence and nonemployee status.” Id. at 1314. Given the wide range of establishments selling gasoline on the highways, a distinction between service stations and gas stations may in some cases be valid, but the facts of this case adequately support the conclusion of the district court that the operators were employees. See Donovan v. Williams Oil Co., 717 F.2d 503 (10th Cir.1983); Marshall v. Truman Arnold, Distributing Co., Inc., 640 F.2d 906 (8th Cir.1981). In addition, the use of special skills is not itself indicative of independent contractor status, especially if the workers do not use those skills in any independent way. Brock v. Superior Care, Inc., 840 F.2d 1054, 1060 (2d Cir.1988). Given the degree of control exercised by Selker over the day-to-day operations of the stations, this criterion cannot be said to support a conclusion of independent contractor status.
5. Permanence of the Working Relationship. The district court found the station operators worked exclusively for Selker and their tenure appeared to have the length and continuity characteristic of employment. Selker asserts that the station operators were independent contractors because they built a client base for non-gasoline business they could take with them should their relationship with Selker terminate. It strains credulity to suggest that an operator’s “client base” for convenience items could be transferred to another station. Even if such a transfer could be made it would be irrelevant for the purpose of determining employment status in this case, given reliance of the operators on the sale of gas for the best part of their income. It cannot be said that the district court’s finding on this component of the multifactor test was clearly erroneous.
6. Integral Economic Relationship. The district court found that the sale of gasoline was an integral part of Selker’s business. Selker draws a distinction between the role of employees at the. seven stations operated directly by Bernard Selker and the six stations that are the subject of this case. At the seven stations operated directly by Selker, the employees pumped gas, made mechanical repairs, and sold convenience items, but did not make decisions regarding ongoing business operations. The operators of the six subject stations, Selker argues, were not an essential part of its operations, because when performing a tune-up or selling convenience items, they were not performing an activity that inured directly to Selker’s benefit. Selker characterizes non-gas sales as strictly personal to the station operator. Such a characterization disregards the purpose of offering convenience products and mechanical services, which was to attract gasoline customers to the stations. The primary business and economic purpose of the stations was to transact sales of gasoline.
In other service station cases where distributors have attempted to establish an independent contractor relationship in somewhat similar factual situations, courts have rejected such attempts, holding the workers to be employees of the distributors. See Williams Oil Co., 717 F.2d at 503; Marshall 640 F.2d at 906. The critical consideration in assessing the integral relationship factor is
the nature of the work performed by the workers: does that work constitute an “essential part” of the alleged employer’s business? In other words, regardless of the amount of work done, workers are more likely to be “employees” under the FLSA if they perform the primary work of the alleged employer.
DialAmerica, 757 F.2d at 1385 (citations omitted). Since Selker’s primary work was distributing and selling gasoline, and gasoline sales receipts constituted ninety percent of a station operator’s business, the integral economic relationship between Selker and the commissioned station operators was clearly one of employment. The district court correctly concluded that, as a matter of economic reality, the station operators were dependent upon Selker and, for purposes of the FLSA, were employees of Selker.
IV
The district court further concluded that Selker’s conduct was willful, and accordingly found that the applicable statute of limitations for enforcement of the FLSA was three years. Selker contends that the station operators were independent contractors, or, at the very least Bernard Selker reasonably believed the station operators to be independent contractors, and the applicable standard of limitations should be two years.
The controlling provision regarding the statute of limitations states in relevant part that
Any action... to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the [FLSA]... may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.
Portal-to-Portal Pay Act of 1947, 29 U.S.C. § 255(a). The Supreme Court set forth the standard which determines whether violations of the FLSA are willful in McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). There the Court held that an employer “willfully” violated the Act when it “knew or showed reckless disregard for the matter of whether its conduct was prohibited” by the Fair Labor Standards Act. Id. at 133, 108 S.Ct. at 1681. The Court adopted the same standard it had set in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), an Age Discrimination in Employment Act case, which defined a “willful” employer for liquidated damages purposes as one who shows a “disregard for the governing statute and an indifference to its requirements.” Id. at 127, 105 S.Ct. at 625.
Selker asserts that its conduct was reasonable, including its determination that the operators were independent contractors. The district court made a finding of fact that Bernard Selker knew paying employees on a commission basis could result in violations of the FLSA, and a conclusion of law that Selker displayed reckless disregard whether its conduct was prohibited by the FLSA. The court’s finding and conclusion are supported by the record. One operator testified that Bernard Selker told him there was a “fine line” regarding the legality of paying employees on a commission basis, and Selker instructed him to “hush it up.” App. at 253. Selker’s prior counsel testified that Bernard Selker expressed concern that “employees at the station [were] either not getting paid or [were] being paid in a way that he thought was inappropriate on a gallonage basis.” App. at 618. Selker adopted the commission system because “the overhead was too high on paying the hourly rate,” app. at 198, and then continued using it despite concerns and doubts as to its legality. Selker’s evident indifference toward the requirements imposed by the FLSA is fully consistent with the district court’s determination that Bernard Selker had willfully violated the Act.
V
A. Award of Back Wages In The Absence of Employer Records.
It is undisputed that Selker Brothers maintained no records of the wages, hours, and other conditions of employment for the station operators or their assistants. Because Selker failed to maintain adequate employer records as required by the FLSA, the district court permitted the Department of Labor to submit evidence from which violations of the Act and the amount of the award could reasonably be inferred. Selker contends that the district court’s calculation of damages was clearly erroneous.
The Supreme Court has instructed us how to calculate wages in the absence of employment records.
In such a situation [where the employer’s records are inadequate] we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate.
Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192-93, 90 L.Ed. 1515 (1946). The burden of any consequent imprecision from the absence of an employer’s records must be borne by that employer. “The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” Id. at 688, 66 S.Ct. at 1193. In such a situation, “the employer, having received the benefits of [the employees’] work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.” Id. See also Williams, 747 F.2d at 128 (“[o]nce an employee establishes that the employer’s records are inadequate, the employee need only introduce enough evidence to support a reasonable inference of hours worked,” at which point the burden shifts to the employer to rebut that inference). In the absence of adequate employer records of employees’ wages and hours, as required by the FLSA, the solution is not to penalize the employees by denying recovery based on an inability to prove the extent of undercompensated work, but rather to allow the employee or the Secretary to submit sufficient evidence from which violations of the Act and the amount of an award may be reasonably inferred. See Mt. Clemens, 328 U.S. at 687, 66 S.Ct. at 1192.
The Department of Labor bore the burden of proving that the employees for whom relief was claimed were not properly compensated. It carried its burden by proving the operators in fact performed work for which they were not paid, and by producing sufficient evidence to show by reasonable inference the extent of that work and the amount of compensation the operators actually received. See id. at 688, 66 S.Ct. at 1193. Since Selker failed to keep adequate records of employment practices and conditions at the stations, the district court found that the commission earnings received by the station operators constituted sufficient evidence of their total earnings as a matter of just and reasonable inference. The burden accordingly shifted to Selker to come forward with evidence of the precise amount of earnings received and work performed by the operators or with evidence to negate the district court’s reasonable inferences based on the evidence. Id. at 687-88, 66 S.Ct. at 1192-93.
Selker Brothers failed to produce evidence at trial regarding the work performed and earnings received by the employees. The district court was well within its authority to award damages on behalf of the aggrieved employees, even though the result was approximate, because the uncertainty in awarding the damages was a result of Selker’s failure to keep records as required by the FLSA.
B. Award of Back Wages for Employees Who Did Not Testify.
The fact that William Koch and Irvin Jenkins did not testify does not render erroneous the district court’s findings of fact with regard to the Thirteenth Street or Tionesta stations. When an employer does not have accurate records, the employee need only show that he has in fact performed work for which he was not properly compensated, and produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. See id.; Brock v. Norman’s Country Market, Inc., 835 F.2d 823, 828 (11th Cir.), cert. denied, 487 U.S. 1205, 108 S.Ct. 2845, 101 L.Ed.2d 883 (1988); Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113, 1116 (4th Cir.1985); Brennan v. General Motors Acceptance Corp. (“GMAC”), 482 F.2d 825, 829 (5th Cir.1973). It is not necessary for every single affected employee to testify in order to prove violations or to recoup back wages. The testimony and evidence of representative employees may establish prima facie proof of a pattern and practice of FLSA violations. See Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 86 (10th Cir.1983) (testimony of twelve employees sufficient to support award for all former employees); Williams Oil Co., 717 F.2d at 504-05 (testimony of nineteen attendants sufficient to establish pattern of hours worked for thirty-four attendants at nine separate stations); GMAC, 482 F.2d at 829 (testimony of sixteen employees sufficient to support award for all thirty-seven employees); Marshall v. Brunner, 500 F.Supp. 116, 122 (W.D.Pa.1980) (testimony of forty-eight truck drivers working varying hours and receiving different amounts of pay sufficient to support award to ninety-three employees), aff'd, 668 F.2d 748 (3d Cir.1982).
Once the pattern or practice is established, the burden shifts to the employer to rebut the existence of the violations, Mt. Clemens, 328 U.S. at 687-688, 66 S.Ct. at 1192-93, or to prove that individual employees are excepted from the pattern or practice, GMAC, 482 F.2d at 829. Where employers have failed to comply with their statutory duty to keep adequate records, courts have resorted to documentary evidence as a basis for inferring hours worked. Williams Oil Co., 717 F.2d at 506 (back wage award partially based on gal-lonage records maintained by employer). In the absence of records and rebuttal evidence by Selker as to Koch’s average hourly work week, the district court had an adequate basis upon which to infer an average work week and sufficient documentary evidence as to gallonage with which to estimate damages. Documentary evidence exists as to the gallonage handled by William Koch at the Thirteenth Street station and at each of the other stations, from which an inference of hours worked can be made.
While it is true that neither William Koch nor any other employee testified as to operations at the Thirteenth Street station, the district court’s award of back wages to William Koch based upon the representative testimony of other Selker employees was not clearly erroneous.
Selker concedes that through the testimony of other representative operators, the court could reasonably infer that the Tionesta station was open ninety-five hours a week when Irvin Jenkins was the operator. Selker contends, however, that even though Jenkins’ station might have been open ninety-five hours a week, that does not mean he worked ninety-five hours. While this is perhaps true, it ignores the major principle of Mt. Clemens that, once the Secretary’s prima facie case is made, the burden shifts to the employer to dispute it with precise evidence of hours worked. This Selker has failed to do.
Selker disputes the ninety-eight hour average work week used by the district court in computing Keith Justice’s back wages. Indeed, Justice testified that he worked eighty-three hours per week. Since the record supports Selker’s contention as to Keith Justice, his back wage award must be reduced. Use of the eighty-three hour figure would reduce Selker’s back wage liability to this employee by $1,130.62, leaving a net liability of $862.56.
C. Full Liquidated Damages
The Secretary sought, and the district court awarded, liquidated damages equal to the back wages owed. Selker contends that only compensatory damages would be warranted since Bernard Selker believed his employees to be independent contractors. The district court found that Selker’s actions in establishing the operators as commission workers were not in good faith and he had no reasonable grounds for believing that such arrangements were valid under the FLSA. The evidence amply supports the factual findings of the district court that Bernard Selker knew he was violating the Act. Consequently, liquidated damages were mandatory.
The FLSA provides that “[a]n employer who violates the provisions of section 206 or section 207... shall be liable to the employees affected in the amount of their unpaid minimum
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_certreason
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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.
AYERS, ACTING WARDEN v. BELMONTES
No. 05-493.
Argued October 3, 2006
Decided November 13,2006
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Auto, JJ., joined. Scaua, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 24. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 25.
Mark A. Johnson, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Mary Jo Graves, Chief Assistant Attorney General, Robert R. Anderson, former Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Assistant Supervising Deputy Attorney General, and Ward A. Campbell, former Supervising Deputy Attorney General.
Eric S. Multhaup, by appointment of the Court, 547 U. S. 1190, argued the cause for respondent. With him on the brief was Christopher H. Wing
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Don Clemmer, Deputy Attorney General, and Gena Bunn and Edward L. Marshall, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, John W. Suthers of Colorado, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Jim Hood of Mississippi, George J. Chanos of Nevada, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, and Rob McKenna of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice Kennedy
delivered the opinion of the Court.
Fernando Belmontes, the respondent here, was tried in 1982 in the Superior Court of the State of California in and for the County of San Joaquin. A jury returned a verdict of murder in the first degree and then determined he should be sentenced to death. The issue before us concerns a jury instruction in the sentencing phase.
The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” App. 184. Under the then-applicable statutory scheme this general or catchall factor was codified at Cal. Penal Code Ann. § 190.3(k) (West 1988); and it is referred to as “factor (k).”
Belmontes contended, on direct review, in state collateral proceedings, and in the federal habeas proceedings giving rise to this case, that factor (k) and the trial court’s other instructions barred the jury from considering his forward-looking mitigation evidence — specifically evidence that he likely would lead a constructive life if incarcerated instead of executed. The alleged limitation, in his view, prevented the jury from considering relevant mitigation evidence, in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. See, e. g., Penry v. Johnson, 532 U. S. 782, 797 (2001); Skipper v. South Carolina, 476 U. S. 1, 4-5, 8 (1986); Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). The California Supreme Court, affirming the judgment and sentence, rejected this contention and other challenges. People v. Belmontes, 45 Cal. 3d 744, 799-802, 819, 755 P. 2d 310, 341-343, 355 (1988).
In February 1994, after exhausting state remedies, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California denied relief, App. to Pet. for Cert. 140a-141a, 145a, but a divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, Belmontes v. Woodford, 350 F. 3d 861, 908 (2003). Over the dissent of eight judges, the Court of Appeals denied rehearing en banc. Belmontes v. Woodford, 359 F. 3d 1079 (2004). This Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Brown v. Payton, 544 U. S. 133 (2005). Brown v. Belmontes, 544 U. S. 945 (2005). On remand, a divided panel again invalidated respondent’s sentence; it distinguished Payton on the grounds that the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, though applicable in that case, does not apply here. Belmontes v. Brown, 414 F. 3d 1094, 1101-1102 (2005). Over yet another dissent, the Court of Appeals again denied rehearing en banc. Belmontes v. Stokes, 427 F. 3d 663 (2005). We granted certiorari, 547 U. S. 1110 (2006), and now reverse.
I
The evidence at trial showed that in March 1981, while burglarizing a home where two accomplices had attended a party, respondent unexpectedly encountered 19-year-old Steacy McConnell. Respondent killed her by striking her head 15 to 20 times with a steel dumbbell bar. Respondent had armed himself with the dumbbell bar before entering the victim’s home. See Belmontes, supra, at 760-764, 755 P. 2d, at 315-317.
In the sentencing phase of his trial Belmontes introduced mitigating evidence to show, inter alia, that he would make positive contributions to society in a structured prison environment. Respondent testified that, during a previous term under the California Youth Authority (CYA), he had behaved in a constructive way, working his way to the number two position on a fire crew in the CYA fire camp in which he was incarcerated. App. 44-45, 53. About that time he had embraced Christianity and entered into a Christian sponsorship program. He admitted that initially he participated in this program to spend time away from the camp. Later, after forming a good relationship with the married couple who were his Christian sponsors, he pursued a more religious life and was baptized. Although his religious commitment lapsed upon his release from the C YA, he testified that he would once again turn to religion whenever he could rededicate himself fully to it. Id., at 46-48, 53-55. Finally, he answered in the affirmative when asked if he was “prepared to contribute in anyway [he] can to society if [he was] put in prison for the rest of [his] life.” Id., at 58.
Respondent’s former CYA chaplain testified at the sentencing hearing that respondent’s conversion appeared genuine. The chaplain, describing respondent as “salvageable,” expressed hope that respondent would contribute to prison ministries if given a life sentence. Id., at 79-83. An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison. Id., at 95-96. And respondent’s Christian sponsors testified he was like a son to them and had been a positive influence on their own son. They also indicated he had participated in various activities at their church. Id., at 99-103, 110-114.
After respondent presented his mitigating evidence, the parties made closing arguments discussing respondent’s mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) (2005).
II
In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See Brown v. Pay-ton, supra; Boyde v. California, 494 U. S. 370 (1990). In Boyde, the Court rejected a claim that factor (k), with its focus on circumstances “ 'extenuating] the gravity of the crime,’” precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant’s background and character. Id., at 377-378, 386. The “proper inquiry,” the Court explained, “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id., at 380. Since the defendant in Boyde “had an opportunity through factor (k) to argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime,” the Court saw “no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.” Id., at 382 (citing Penry v. Lynaugh, 492 U. S. 302, 319 (1989)). During the sentencing phase in Boyde, moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade,’ ” 494 U. S., at 383 (quoting California v. Brown, 479 U. S. 538, 542 (1987)), but also to disregard another instruction requiring the jury to “ ‘consider all of the evidence which has been received during any part of the trial of this case,”’ 494 U. S., at 383.
In Payton, the Court again evaluated arguments that factor (k) barred consideration of constitutionally relevant evidence — this time, evidence relating to postcrime rehabilitation, rather than precrime background and character. See 544 U. S., at 135-136. Payton did not come to this Court, as had Boyde, on direct review, but rather by federal habeas petition subject to AEDPA. Relief was available only if “the state court’s adjudication of the claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” Payton, supra, at 141 (quoting 28 U. S. C. § 2254(d)(1)). Although the prosecutor in Payton had argued to the jury — incorrectly—that factor (k) did not permit consideration of postcrime rehabilitation evidence, this Court concluded that the California Supreme Court reasonably applied Boyde in finding no Eighth Amendment violation. 544 U. S., at 142, 146-147. Accepting the prosecutor’s reading would have required “the surprising conclusion that remorse could never serve to lessen or excuse a crime.” Id., at 142. Furthermore, countering any misimpression created by the prosecution’s argument, the defense in Payton had presented extensive evidence and argument regarding a postcrime religious conversion and other good behavior. The trial court had instructed the jury to consider all evidence admitted “‘during any part of the trial in this case, except as you may be hereafter instructed,’” and the prosecution itself “devoted substantial attention to discounting [the postcrime evidence’s] importance as compared to the aggravating factors.” Id., at 145-146. Hence, the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard. 544 U. S., at 147.
III
As the Court directed in Boyde, we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U. S., at 380. Here, as in Payton, respondent argues that factor (k) prevented the jury from giving effect to his forward-looking evidence. And, as in Payton, respondent’s case comes to this Court in federal habeas proceedings collaterally attacking the state court’s ruling. Unlike in Payton, however, the federal petition in this case was filed before AEDPA’s effective date. AEDPA and its deferential standards of review are thus inapplicable. See Woodford v. Garceau, 538 U. S. 202, 210 (2003). The Court of Appeals distinguished Payton on this ground. See 414 F. 3d, at 1101-1102. It was mistaken, however, to find a “reasonable probability” that the jury did not consider respondent’s future potential. Id., at 1138.
A
The Court of Appeals erred by adopting a narrow and, we conclude, an unrealistic interpretation of factor (k). “Most naturally read,” the Court of Appeals reasoned, “this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense.” Id, at 1134. As both Boyde and Payton explain, however, this interpretation is too confined. “The instruction did not . . . limit the jury’s consideration to ‘any other circumstance of the crime which extenuates the gravity of the crime.’ The jury was directed to consider any other circumstance that might excuse the crime.” Boyde, swpra, at 382; see also Payton, supra, at 141-142. And just as preerime background and character (Boyde) and postcrime rehabilitation (Payton) may “extenuare] the gravity of the crime,” so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. Cf. Skipper, 476 U. S., at 4-5 (explaining that while inferences regarding future conduct do not “relate specifically to [a defendant’s] culpability for the crime he committed,” those inferences are “ ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death’ ” (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion))).
The Court of Appeals failed to heed the full import of Pay-ton’s holding, a holding that has significance even where AEDPA is inapplicable. Payton indicated that reading factor (k) to preclude consideration of postcrime evidence would require “the surprising conclusion that remorse could never serve to lessen or excuse a crime.” 544 U. S., at 142. So, too, would it be counterintuitive if a defendant’s capacity to redeem himself through good works could not extenuate his offense and render him less deserving of a death sentence.
In any event, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)’s purview. See 494 U. S., at 381 (describing the evidence at issue as including evidence of the defendant’s “strength of character”). Both types of evidence suggest' the crime stemmed more from adverse circumstances than from an irredeemable character. See 414 F. 3d, at 1141-1142 (O’Scannlain, J., concurring in part and dissenting in part); cf. Johnson v. Texas, 509 U. S. 350, 369 (1993) (noting that the “forward-looking” future-dangerousness inquiry “is not independent of an assessment of personal culpability”).
B
Our interpretation of factor (k) is the one most consistent with the evidence presented to the jury, the parties’ closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn.
As the Court of Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F. 3d, at 1134. Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life “as a crutch to say I am in a situation right now, I’m here now because of that.” App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencing — evidence including testimony from two prison chaplains, respondent’s church sponsors, and respondent himself — the jurors could have disregarded respondent’s future potential only if they drew the unlikely inference that “the court's instructions transformed all of this ‘favorable testimony into a virtual charade,’” Boyde, supra, at 383 (quoting Brown, 479 U. S., at 542). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court.
Arguments by the prosecution and the defense assumed the evidence was relevant. The prosecutor initially discussed the various factors that were to guide the jury. He referred to factor (k) as “a catchall.” App. 153. He then discussed respondent’s religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: “I’m not sure it really fits in there. I’m not sure it really fits in any of them. But I think it appears to be a proper subject of consideration.” Id., at 154. These seemingly contradictory statements are explained by the prosecutor’s following comments.
The prosecutor suggested (quite understandably on the record) that respondent’s religious evidence was weak. He stated: “You know, first of all, it’s no secret that the evidence upon which the defendant’s religious experience rests is somewhat shaky.” Ibid. He also opined that the experience had to be taken “with a grain of salt.” Id., at 155. The jury would have realized that, when the prosecutor suggested respondent’s religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury’s ability to consider it. After all, he thought religion was “a proper subject of consideration.” Id., at 154.
The prosecutor then discussed how the jury should weigh respondent’s “religious awakening”:
“I suppose you can say it would be appropriate because — in this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There’s something to that.
“On the other hand, the fact that someone has religion as opposed to someone doesn’t should be no grounds for either giving or withholding life. I mean let’s turn it around and look at the other side of the coin. Suppose someone said he didn’t belong to a church and didn’t talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don’t think that that should be an influencing factor at all in that respect. I don’t think the law contemplates that and I don’t think it’s right.” Id., at 155.
These remarks confirmed to the jury that it should analyze respondent’s future potential, his future “value to the community.” Ibid. This is what respondent himself wanted it to do. And while the prosecutor commented that the law did not contemplate jury consideration of respondent’s religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future “value to the community,” not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent’s religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent’s future potential, especially since he indicated that this is exactly what the jury had “to weigh” in its deliberation. Ibid.
After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered “an opportunity to achieve goals and try to better yourself.” Id., at 163. He also stated: “I myself would really like to have my life and try to improve myself.” Id., at 164. Respondent’s personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose.
Defense counsel’s closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: “I’m not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in.” Id., at 166. Read in context defense counsel’s remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal. Penal Code Ann. § 190.3(k) (“[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime”).
That defense counsel did, in fact, want the jury to take into account respondent’s future potential became manifest near the end of his argument. He suggested that the “people who came in here [and] told you about [respondent]” provided the jury with “a game plan” for what respondent could do with his life. App. 170. He continued: “We’re just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can.” Ibid. This would have left the jury believing it could and should contemplate respondent’s potential.
Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent’s full case in mitigation. Before enumerating specific factors for consideration — factors in-eluding the circumstances of the crime, the defendant’s age, and “[t]he presence or absence of any prior felony conviction,” id., at 184, as well as the factor (k) catchall — the judge told the jury: “In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed.” Id., at 183. After listing the factors, he indicated:
“After having heard all of the evidence and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.
“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.” Id., at 185.
The judge then gave a supplemental instruction regarding aggravating and mitigating factors:
“I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.
"However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. Belmontes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case.” Id., at 185-186.
Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent’s future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider “all of the evidence,” and “all of the evidence” included respondent’s forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier “except as you may be hereafter instructed,” id., at 183, he did not later instruct the jury that it should disregard respondent’s future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent’s central mitigation theory. By contrast, in response to a juror’s question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison.
The sharp contrast between the court’s instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were “merely . . . examples,” id., at 186) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to “pay careful attention” to the listed mitigating factors, ibid., moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples.
It is implausible that the jury supposed that past deeds pointing to a constructive future could not “extenuat[e] the gravity of the crime,” as required by factor (k), much less that such evidence could not be considered at all. Boyde concludes that in jury deliberations “commonsense understanding of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hairsplitting.” 494 U. S., at 381. Here, far from encouraging the jury to ignore the defense’s central evidence, the instructions supported giving it due weight.
In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury’s initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. Cf. 414 F. 3d, at 1135. In response, the judge reread portions of the instructions and stated that “all 12 jurors must agree, if you can.” App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place:
“JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing?
“THE COURT: That was the listing, yes, ma’am.
“JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet?
“THE COURT: That is right. It is a balancing process. Mr. Meyer?
“JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other?
“THE COURT: No. It is not that.
“JUROR MEYER: It is an either/or situation?
“THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you.
“JUROR HAILSTONE: Could I ask a question? I don’t know if it is permissible. Is it possible that he could have psychiatric treatment during this time?
“THE COURT: That is something you cannot consider in making your decision.” Id., at 191.
The Court of Appeals decided Juror Hern’s questions indicated she thought (incorrectly) that only listed mitigating factors were on the table — an error, in the Court of Appeals’ view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was relevant. 414 F. 3d, at 1136. The Court of Appeals further supposed the response to Juror Hailstone’s question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. Id., at 1137.
The Court of Appeals’ analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one, see Belmontes, 45 Cal. 3d, at 804, 755 P. 2d, at 344. It is at least as likely that the juror was simply asking for clarification about California’s overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal. Penal Code Ann. § 190.3 (providing that, “[i]n determining the penalty, the trier of fact shall take into account” any relevant listed factors); see generally Tuilaepa v. California, 512 U. S. 967, 978-979 (1994) (noting that the § 190.3 sentencing factors “do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence”).
Even assuming the Court of Appeals correctly interpreted Juror Hern’s questions, the court’s conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent’s future prospects as “extenuat[ing] the gravity of the crime,” so nothing barred it from considering such evidence under the rubric of the “listing.” As for Juror Hailstone’s psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent’s potential. The trial court’s response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care.
In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court’s holding in Johnson v. Texas, 509 U. S. 350 (1993), a subject raised by Judge O’Scannlain in his separate opinion in the Court of Appeals. See 414 F. 3d, at 1141-1142 (opinion concurring in part and dissenting in part).
IV
In this case, as in Boyde and as in Payton, the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence in their closing arguments. This Court’s cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense’s evidence as a factor “extenuating] the gravity of the crime.” The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_bank_app1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt.
UNITED STATES of America, Appellee, v. Nathan STEIN, Appellant.
No. 91-3368.
United States Court of Appeals, Eighth Circuit.
Submitted April 14, 1992.
Decided Aug. 10, 1992.
Thomas Cotter, St. Louis, Mo., argued (Norman London, on the brief), for appellant.
Rosemary Casey Meyers, Asst. U.S. Atty., St. Louis, Mo., argued, for appellee.
Before JOHN R. GIBSON, Circuit Judge, PECK, Senior Circuit Judge, and BEAM, Circuit Judge.
The HONORABLE JOHN W. PECK, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
BEAM, Circuit Judge.
Nathan C. Stein was convicted of two counts of bribing a public official, in violation of 18 U.S.C. § 201(b)(1). He appeals from the judgment of the district court, claiming that the district court erred in calculating his offense level because he was the victim of “sentencing entrapment.” We affirm.
I. BACKGROUND
Stein was a certified public accountant, with an office in St. Louis, Missouri. Trial Transcript at 451. His practice included tax return preparation and representing clients before the IRS. Id. at 4-5. One of Stein’s clients was the Field Floor Company, a carpet and floor covering business. Id. at 2-3. Field Floor hired Stein in 1987 to help it resolve its delinquent tax problem. Some time later, Stein purchased some carpet from his client, at a cost of nearly $10,000, for installation in a house he was then renovating. Id. at 15. In late August 1987, the IRS was about to close Field Floor’s business because of its continued delinquency. Stein realized that this might prevent the delivery and installation of his carpet. Stein telephoned Frank Lip-ski, the IRS officer assigned to collect Field Floor’s taxes, and explained his problem and the construction delays on his home. Stein asked Lipski to delay the closing of Field Floor until after his carpet was installed. In consideration for the delay, Stein offered Lipski the use of his home at Lake of the Ozarks for a weekend. Id. at 148-51. Lipski declined the offer and reported the conversation to his supervisor. Id. at 152. (IRS inspectors thereafter recorded all telephone calls between Stein and Lipski. Id. at 154.) A couple of weeks later, Stein offered the, use of his lake home to Lipski again. This time, at the direction of IRS agents, Lipski accepted the offer. Id. at 587. Once Stein’s carpet was installed, Stein informed Lipski that he could close the Field Floor business and suggested to Lipski that they continue to work together. Id. at 222.
Approximately one month before Stein offered the use of his lake home to Lipski, IRS agents had already planned an undercover operation to investigate Stein. Agents had heard allegations that Stein was making “illegal offers and compromise^].” Id. at 536, 587-88. To investigate these allegations, they established a fictitious tax account in the name of Joseph Gallo, with an IRS agent playing the role of Gallo. Id. at 427-31. This undercover operation was postponed when Stein offered his bribe to Lipski, but it was continued again in November 1987, with the collection of Gallo’s delinquent taxes assigned to Lipski. Id. at 593-94.
Lipski began his collection of Gallo’s “delinquency” by filing fictitious federal tax liens against Gallo in the amount of $116,-156.22. Id. at 226. In January 1988, after the liens were filed, Stein sent a letter to Gallo offering to represent him. Id. at 431-32. (Stein’s accounting firm had a practice of sending such letters to taxpayers against whom liens in amounts of at least $10,000 were filed. Id. at 43.) Stein then met with Gallo and suggested that he conceal his assets, in preparation for making an offer to the IRS in an amount lower than was owed. Later, Stein met with Lipski and suggested to him that he “bury” Gallo’s delinquent account, meaning “to put it in uncollectible status.” Id. at 242. Lipski agreed to do so and Stein later gave Lipski $700 of $1,000 he had received from Gallo as a down payment on the bribe. Stein then reached an agreement with Lip-ski that the bribe amount would be $30,000 (Lipski had suggested a much lower amount), with $20,000 for Lipski and $10,-000 for Stein. Gallo eventually agreed to pay $20,000, but before any money changed hands, Stein was arrested. Id. at 255-63.
Following a jury trial, Stein was convicted, as noted above, of two counts of bribing a public official. The first count of conviction was for the bribe to Lipski in consideration for delaying the closing of the Field Floor Company. The second count of conviction was for Stein’s bribe to Lipski on behalf of Gallo. At sentencing, the district court calculated Stein’s offense level, as required by the guidelines, according to the amount of Stem’s bribes. Under the guidelines, the severity of an offense level increases incrementally, according to the amount of a bribe. Pursuant to U.S.S.G. § 2C1.1 and Application Note 2 of that section, the “amount of a bribe” is to be determined by looking to the “greater of the value of the bribe or the value of the benefit received, or to be received, in return for the bribe.” U.S.S.G. § 2C1.1, comment. (n. 2). In Stein’s case, the value of the benefit received in his second count of conviction was the greater, value — that is, the elimination of Gallo’s tax liability of $116,156.22.
II. DISCUSSION
Stein claims that the district court erred in calculating the offense level for his second count of conviction. He argues that the government’s actions amounted to “sentencing entrapment” because the value of the bribe, which was determined by the IRS when it set up the fictitious account for Gallo, ultimately determined the severity of his sentence. Stein argues that because the IRS knew his office would send a letter to anyone against whom a tax lien of at least $10,000 was filed, the government, by filing fictitious tax liens in the amount of about $116,000, laid a bigger trap, so to speak, than was necessary. It is Stein’s position, apparently, that the government’s actions were a violation of the due process clause of the Fifth Amendment. We disagree.
To date, we have not recognized “sentencing entrapment” in this circuit. In United States v. Lenfesty, 923 F.2d 1293 (8th Cir.), cert. denied, — U.S.-, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991), we noted that the argument, at least with respect to an amount of illicit drugs, might “bear fruit” if “outrageous official conduct overcomes the will of an individual predisposed only to dealing in small quantities.” Id. at 1300. In Lenfesty, the record showed that the defendant was predisposed in the opposite respect — that is, he was willing to supply drugs in any quantity desired. Id. See also United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992) (noting that the guidelines may permit “sentencing factor manipulation,” but declining “to chart the line between permissible and impermissible conduct”; sentencing court, moreover, has power to exclude “the tainted transaction” or depart); United States v. Stuart, 923 F.2d 607, 613-14 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991) (record does not show that the defendant committed a drug offense “greater than that which he was predisposed to commit”); cf. United States v. Barth, 788 F.Supp. 1055, 1057-58 (D.Minn.1992) (departing from guideline-specified sentence on the basis that the government agent made continuous drug buys until the amount of drugs sold by the defendant required a mandatory minimum sentence). The principle suggested in Len-festy can also be applied to Stein’s case, and with a similar result.
If Stein were to succeed in his argument, he would have to demonstrate that the IRS agents acted outrageously in overcoming a predisposition on his part to only offer bribes for clients whose tax liabilities were smaller than Gallo’s. There is nothing in the record of Stein’s case to support this. In fact, there was some evidence that Stein was predisposed to deal in schemes with a high value. Stein, for example, had a practice of sending letters to potential clients against whom tax liens in an amount of at least $10,000 were filed. Stein tries to distinguish Lenfesty on the basis that the repeated drug sales in that case were necessary to an ongoing investigation and that there was no evidence in Lenfesty that the government was attempting to achieve a lengthier prison sentence for the defendant by selling him a larger quantity of drugs. This is not a convincing distinction. It is of no consequence whether the criminal acts were part of an ongoing investigation, and Stein has presented no evidence in his own case that the IRS agents were attempting to achieve a particular sentence for him when they established Gallo’s fictitious tax status. Gallo’s tax liens were filed on November 12, 1987, but the undercover operation investigating Stein was planned and started in the summer of 1987 — well before the sentencing guidelines became effective on November 1, 1987.
III. CONCLUSION
For the reasons stated above, the judgment of the district court is affirmed.
. Stein also argues that the district court erred in permitting certain IRS agents and other government employees to testify after these witnesses had refused to be interviewed by him beforehand without a government attorney present. The issue raised by Stein does not require more than this mention, for the district court did not abuse its discretion in allowing the witnesses to testify and Stein has not demonstrated that he was prejudiced by the district court’s decision.
Question: Is the first listed appellant bankrupt?
A. Yes
B. No
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.
Sumner G. WHITTIER, Administrator of Veterans Affairs, et al., Appellants, v. Herman L. R. EMMET, Jr., On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. James A. DEERING, On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. Robert H. MABBUTT et al., Suing for Themselves and all Persons Similarly Situated, Appellees.
Nos. 15066-15068.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 19, 1959.
Decided June 23, 1960.
Petition for Rehearing en Banc Denied Sept. 16, 1960.
See, also, 164 F.Supp. 563.
Mr. Lionel Kestenbaum, Atty., Dept, of Justice, with whom Asst. Atty. Gen., George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on the brief, for appellants.
Mr. John Geyer Tausig, Washington, D. C., with whom Messrs. Henry F. Butler and John T. Koehler, Washington, D. C., were on the brief, for appellees.
Before Mr. Justice Burton, retired, and Washington and Danaher, Circuit Judges.
Siting by designation pursuant to 28 U.S.C. § 294(a).
Mr. Justice BURTON.
Under Article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the United States guaranteed the payment of premiums on limited amounts of commercial life insurance policies carried by servicemen. In 1942 the Act was amended to include, for the first time, an express provision that when such an insurance premium payment was made by the United States, it evidenced a debt due to the United States from the insured serviceman on whose account the payment was made. The amendments also provided that such debts to the United States were collectible either by their deduction from amounts due the insured servicemen from the United States or as otherwise authorized by law.
The Administrator of Veterans’ Affairs interpreted Article IV of the 1940 Act, prior to the 1942 Amendments, as establishing by implication a comparable obligation on the part of the insured servicemen to reimburse the Government for its payment of the guaranteed premiums. Under this interpretation, the Administrator collected over $1,640,000 from approximately 8,400 insured servicemen. He did this in large part by offsetting against the debts of the respective servicemen the dividends due them in connection with their National Service Life Insurance policies.
Although there was some acquiescence in the Administrator’s interpretation of the 1940 Act, there also was vigorous opposition to it. This resulted in conflicting judicial decisions culminating in 1957 in the Supreme Court’s decision, with three Justices dissenting, in United States v. Plesha, 352 U.S. 202, 77 S.Ct. 275, 1 L.Ed.2d 254. In that case the Supreme Court held that, contrary to the Administrator’s interpretation of the 1940 Act, prior to the 1942 Amendments, the insured servicemen were not obligated to reimburse the Government for its payment of premiums on their account.
After the Plesha decision, the next problem was that of returning to the servicemen their funds which had been used erroneously by the Government to reimburse itself for its payment of the guaranteed premiums.
To facilitate such refunding, Congress, in 1958, enacted Public Law 85-586. That Act authorized the Administrator of Veterans’ Affairs, upon timely application, to refund to the servicemen, without interest, all amounts collected from them by the United States under its erroneous interpretation of the 1940 Act. Public Law 85-586 made available the money to make such refunds and also provided that the right to such refunds was not to be denied by reason of statutory time limitations, judgments theretofore rendered, or “any other technical defense.”
In the three cases now before us plaintiffs ask not only for the principal of the sums claimed, but also for interest on delayed dividends due them under their National Service Life Insurance policies. Furthermore, they ask for the allowance of attorneys’ fees to cover services rendered not only to the named parties to the litigation, but to all persons similarly situated.
In No. 15066, the plaintiff, Emmet, sought a writ of mandamus from the District Court for the District of Columbia ordering the defendant officials to make the payments requested.
In Nos. 15067 and 15068 the plaintiffs, Deering and Mabbutt, brought suit, respectively, in the District Court for the Southern District of New York and the District Court for the Northern District of California for the payment of their claims pursuant to the Tucker Act, and the National Service Life Insurance Act. Those courts transferred the cases to the District Court for the District of Columbia in reliance upon 28 U.S.C. § 1404(a).
That court consolidated the cases and granted a preliminary injunction, which is still in effect, forbidding the disburse* ment of more than 90% of the respective payments authorized by Public Lav/ 85-586. It overruled all objections to its jurisdiction and to the propriety of taking action on the merits of the issues presented. After a plenary hearing it ordered payment by the Government not only of the amounts provided for in Public Law 85-586, but also of interest at 3% per annum on an amount equal to the value of the National Service Life Insurance dividends. It also authorized the payment of attorneys’ fees of 5% on the aggregate amount of principal and interest to be refunded under Public Law 85-586.
The Government, on appeal, seeks a reversal of the judgment below on the ground that none of these actions should have been heard by the District Court for the District of Columbia. On the merits, the Government contends that neither the allowance for interest nor that for attorneys’ fees was justified. For the reasons hereafter stated, we agree with the Government.
In No. 15066, originating in 1955 in the District Court for the District of Columbia, Emmet sought to litigate the question later resolved by the Supreme Court in United States v. Plesha, supra. He asked for a writ of mandamus directed against the Administrator of Veterans’ Affairs, the Secretary of the Treasury, the Treasurer of the United States and the Comptroller General. It is elemental, however, that this extraordinary remedy was not available for such purpose, inasmuch as the Tucker Act provided an adequate remedy at law to test the question. The pecuniary liability of the United States may be determined only through such procedures as the United States has authorized. Moreover, a writ of mandamus will be issued only to compel the performance of a ministerial duty as distinguished from one calling for exercise of discretion. In this case the amounts claimed had not yet been determined at the time the action was filed. While this case was pending, the decision in the Plesha case and the enactment of Public Law 85-586 settled the major legal issues. They did not, however, authorize an allowance for interest and another for attorneys’ fees as sought by the plaintiff. The way to reach those issues is not by writ of mandamus. Accordingly, the complaint in the Emmet case must be dismissed on jurisdictional grounds insofar as it applies to mandamus.
Deering and Mabbutt sought relief comparable to that sought in the Emmet case but by a different procedure. They filed their complaints in the District Courts of their respective districts of residence. Each alleged that jurisdiction existed in those courts both under the Tucker Act and the National Service Life Insurance Act. On motions of plaintiffs those courts transferred both cases to the District Court for the District of Columbia under authority of 28 U.S.C. § 1404(a). The Government here contends that the complaints should have been dismissed or the cases re-transferred to permissible districts.
Section 1404(a) limits transfers of such cases to those districts where the action might have been brought in the first instance. Such limitation excludes vende in this district under the Tucker Act, because by § 1402(a) venue under the Tucker Act is limited to the courts of the districts of the plaintiffs’ residence or to the Court of Claims.
But plaintiffs also contend that venue lies in the District Court for the District of Columbia under the National Service Life Insurance Act of 1940. Under the jurisdictional provision of that Act, actions involving disagreements as to claims under National Service Life Insurance contracts may be brought either in the district of the plaintiff’s residence or in the District Court for the District of Columbia.
That provision, however, does not apply to the instant cases because the complaints here seek to recover the collections erroneously made by the Government in reliance upon the Soldiers’ and Sailors’ Civil Relief Act of 1940, not the National Service Life Insurance - Act. The cases before us do not involve any disagreement about dividends under the Insurance Act. The Government admits the plaintiffs’ right to those dividends. It disbursed them from the Insurance Fund and credited plaintiffs’ accounts by •offsetting the erroneous claims of the Government under the Soldiers’ and Sailors’ Civil Relief Act.
Even if these differences be treated as disagreements as to dividends, it still would be necessary to show here that this disagreement was one for an “insurance benefit” within the meaning of 38 U.S.C. § 784(h). Candell v. United States, 10 Cir., 1951, 189 F.2d 442, indicates that disputes over dividends do not so qualify. As was pointed out in Candell, insurance dividends are realized as a result of low mortality experience and economies in the operation of the insurance company. They are unrelated to the obligation to pay the particular policyholder for a loss insured against and are not the same sort of payment as an insurance benefit.
Furthermore, the “disagreement” which is a prerequisite to a suit under the Insurance Act must include the filing of a claim or protest and a denial. That is absent here. United States v. Christensen, 10 Cir., 1953, 207 F.2d 757.
After the court below had declined to dismiss these cases or to transfer them to other District Courts, it considered them on their merits and granted substantially the relief requested. On these appeals, the parties have argued the merits. Although we have concluded that the lower courts were in error in deciding that venue in Deering and Mabbutt lies in the District of Columbia, this does not preclude us from disposing of these cases on the merits. Section 1406(b) of the Judicial Code provides that deficiencies in venue shall not impair a District Court’s jurisdiction if objection to the deficiency is not timely and sufficient. Venue is primarily designed to protect defendants from inconvenient forums and courts from inconvenient lawsuits. Once the case has been heard fully and fairly on the merits, the reasons for reversing the judgment on grounds of improper venue are substantially diminished in the absence of prejudice to a- party who has preserved his standing to complain by timely objection. This factor distinguishes the cases before us from those where the decision of the District Court on the venue question was brought before the Court of Appeals by petition for mandamus or interlocutory appeal before a hearing on the merits.
We proceed to a disposition of the instant cases on their merits because the erroneous determination of the venue questions below does not constitute reversible error as to any of the parties. These cases were transferred to this district on motions of the plaintiffs and their view of 'the venue questions prevailed below. Having invoked the transfer provisions of § 1404(a) themselves, and having failed to take a cross-appeal from the judgment below in their favor on the merits, they have waived their right to complain of the improper venue. Peoria & P. U. R. Co. v. United States, 1924, 263 U.S. 528, 44 S.Ct. 194, 68 L.Ed. 427.
As for the Government, if it prevails on the merits, the erroneous determination of the venue amounts to harmless error. It would not make any significant difference from the Government’s point of view whether the cases were tried in New York and California, or in the District of Columbia. In fact, the Government has had the advantage of having to try only one proceeding and take appeals in one circuit rather than to' have had three trials and take appeals in three circuits. In this situation there is no basis for concluding that prejudice to the Government resulted from trial in an improper district. It would be an obviously questionable result if we should find for the Government on the merits, and yet order it to re-litigate the cases in other forums merely because improper venue had been imposed upon it over its timely objections.
On the merits, the court below ordered the defendants to pay plaintiffs, inter-venors, and each veteran similarly situated, the amount the Administrator of Veterans’ Affairs had wrongfully applied to the reimbursement of the United States for premiums advanced by it on the serviceman’s commercial life insurance under the Civil Relief Act of 1940. The court below also ordered the payment of interest at 3% per annum on the amount so to be paid.
An obvious reason for denying this allowance of interest is that Congress has made no provision for its payment. It is elemental that pre-judgment interest cannot be assessed against the Government in the absence of a specific provision authorizing such assessment. Furthermore, since all but the few named parties to these actions will receive payment of their claims solely under Public Law 85-586, rather than under the judgments rendered in these cases, the terms of such payments are to be determined by such statute. It expressly states that the payments authorized are "without interest.”
There is no authority in the National Service Life Insurance Act for the allowance of interest claimed by the named plaintiffs in these actions. In fact, the Supreme Court has held that no interest was allowable under the World War I Insurance Act, which is substantially identical to the National Service Life Insurance Act, even in the extreme case of a wrongfully withheld death benefit.
The court below also ordered the allowance of attorneys’ fees of 5% of the aggregate principal and interest which the court ordered paid under Public Law 85-586. These fees were to be applied first to reimbursement for legal expenses in certain named cases and the balance was to be divided among counsel named in the order. This allowance was not dependent upon statutory authority but rested upon the equity powers of a court to allow attorneys’ fees in exceptional cases and for dominating reasons of justice. Sprague v. Ticonic Nat. Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. The nature and extent of the legal services performed control the allowance rather than any formal, relationship between client and attorney. The decision in the Plesha case authoritatively established the rights of the claimants and in that sense was a necessary precondition to the payment of any refunds to the veteran claimants. This decision, however, was merely an application of law which was available to other litigants under the doctrine of stare decisis. One who is influential in litigation leading to the announcement of a rule of law does not thereby gain a right to compensation from all those who later benefit from the application of the rule. Nor did the Plesha decision create such a distinct fund for the benefit of the class of claimants either by way of stare decisis or otherwise. It merely decided the claims of a few veterans out of about 8,400 who had claims involving a common question of law. Many of those claims would have been defeated by technical defenses, statutes of limitation, voluntary payments, or res judicata, except for the waiver of such defenses by Congress as set forth in Public Law 85-586. In that Act, Congress made available the Civil Relief Fund and other funds for reimbursement of the veterans entitled to it.
From the small number of claimants who have joined these actions during the four years since the litigation was commenced, it is probable that few will join before judgment. Of the nine present intervenors, only two were not parties to one of the class suits or to Plesha. New more, if any, are likely to join now in view of Public Law 85-586. The saving of so few, out of about 8,400 claimants, from the operation of the statute of limitations is not an adequate reason for imposing attorneys’ fees upon all 8,400 litigants.
Appellees’ ultimate position is that they are entitled to attorneys’ fees because Congress was moved by this litigation to pass an Act assisting these claimants. The class Congress favored is broader than that covered by the Plesha decision. The assertion of a noncontractual claim for compensation for services rendered in sponsoring favorable legislation does not deserve prolonged discussion.
The judgments of the District Court are reversed and the cases are remanded to it with directions that the complaint in No. 15066 be dismissed and that the complaints in Nos. 15067 and 15068 be dismissed unless the appellees move for a transfer to courts having jurisdiction over the actions for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. 54 Stat. 1183-1186, 50 U.S.C.A.Appendix, §§ 540-554.
. 56 Stat. 775, 50 U.S.C.A.Appendix, § 546.
. Collected by offset against
National Service Life Insurance dividends ........... $ 960,000
Insurance dividends ...... 65,000
By offset against disability compensation .......... 22,000
Cash payments in response to demands by letters . .. 600,000
As a result of final judgments ................. 2,000
$1,649,000
. Veteran required to reimburse the United States for its payment of guaranteed premiums. United States v. Hendler, 10 Cir., 1955, 225 F.2d 106; Morton v. United States, D.C.N.D.N.Y. 1953, 113 F.Supp. 496; United States v. Nichols, D.C.N.D.Iowa 1952, 105 F.Supp. 543. Veteran not required to reimburse the United States for such payments. Plesha v. United States, 9 Cir., 1955, 227 F.2d 624 reversing D.C.N.D. Cal.1953, 123 F.Supp. 593; Hormel v. United States, D.C.S.D.N.Y.1954, 123 F.Supp. 806.
. “Be it enacted by the Senate and Biouse of Representatives of the United States of America in Congress assembled, That the Administrator of Veterans’ Affairs is hereby authorized to make refunds, without interest, which are due on account of amounts collected by the United States Government by offset or otherwise from persons who made valid application for and were legally entitled to the protection of article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as it existed prior to the amendments of October 6, 1942. No refund shall be made pursuant to this Act unless application therefor is made to the Veterans’ Administration, within two years after the date of enactment of this Act and refund hereunder shall not be denied by reason of any other statutory time limitations, judgments heretofore rendered, or any other technical defense.
“Sec. 2. The Soldiers’ and Sailors’ Civil Relief Fund may be used by the Veterans’ Administration for making refunds pursuant to this Act and there is hereby authorized to be appropriated such additional sums as may be necessary to carry out the purposes of this Act.” Public Law 85-586, 72 Stat. 487-488, 50 U.S.C.A.Appendix, § 540 note.
. See 28 U.S.C. § 1346(a) (2) and § 1402 (a).
. 38 U.S.C. § 784.
. “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
. The interest was to be computed from the date that the dividends were withdrawn from the National Service Life Insurance Fund to the date on which they were paid to the servicemen entitled to them.
. United States ex rel. Girard Trust Co. v. Helvering, 1937, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272; 28 U.S.C. §§ 1346, 1491 et seq.; see Plesha v. United States, 9 Cir., 1955, 227 F.2d 624.
. See Reeside v. Walker, 1851, 11 How. 272, 13 L.Ed. 693. The Code vests extensive unreviewable discretion in the Administrator to determine matters of law and fact in this area. See 38 U.S.C. §§ 785, 211.
. See note 8, supra.
. § 784. Suits on insurance.
“(a) In the event of disagreement as to claim, including claim for refund of premiums, under contract of National Service Life Insurance, United States Government life insurance, or yearly renewable term insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may he brought against the United States either in the United States District Court for the District of Columbia or in the district court of the United States in and for the district in which such person or any one of them resides, and jurisdiction is conferred upon such courts to hear and determine all such controversies. * * * The courts of appeals for the several circuits, including the District of Columbia, shall respectively exercise appellate jurisdiction and, except as provided in section 1254 of title 28, the decrees of such courts of appeals shall be final.
# * * * *
“(h) The term ‘claim’ as used in this section means any writing which uses words showing an intention to claim insurance benefits; and the term ‘disagreement’ means a denial of the claim, after consideration on its merits, by the Administrator or any employee or organizational unit of the Veterans’ Administration heretofore or hereafter designated therefor by the Administrator.” 38 U.S.C. § 784.
Before Title 38 was enacted into positive law in 1958, the provisions of this section were contained in 38 U.S.C. (1952 ed.) §§ 445, 817.
. See note 13, supra.
. “(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” 28 U.S.C. § 1406(b).
Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 340, 74 S.Ct. 83, 98 L.Ed. 39; Bankers Life & Cas. Co. v. Holland, 1953, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106; Polizzi v. Cowles Magazines, Inc., 1953, 345 U.S. 663, 665, 672, 73 S.Ct. 900, 97 L.Ed. 1331; Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167; Commercial Casualty Insurance Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252.
. See 28 U.S.C. § 2111; Fed.Rules Civ.Proc., 61, 28 U.S.C.
Cf. Bankers Life & Cas. Co. v. Holland, supra, 346 U.S. at page 382, 74 S.Ct. at page 147; Paramount Pictures, Inc. v. Rodney, 3 Cir., 1950, 186 F.2d 111; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766, 768; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 330; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866, 869.
Before the adoption of the Federal Rules of Civil Procedure, a defendant was required to raise his venue point by special appearance and motion to quash before he pleaded to the merits or he would be deemed to have waived his defense. See e. g., Commercial Casualty Insurance Co. v. Consolidated Stone Co., supra. Venue questions, therefore, did not arise in the federal courts on appeal after an adjudication on the merits. Rule 12(b) of the Federal Rules of Civil Procedure abolished the special appearance and permitted an attack on the venue of the court to be pleaded by motion or in the answer along with the other defenses going to the merits. While we have not found any reported federal decisions since the adoption of the federal rules considering a venue contention on appeal after trial on the merits and coming to the conclusion that the error was harmless, a number of state courts have reached this decision in analogous circumstances. See e. g., Straus Bros. Co. v. Fisher, 1928, 200 Ind. 307, 163 N.E. 225; City of Georgetown v. Cantrill, 1914, 158 Ky. 378, 164 S.W. 929; Hayes v. Oertel, La.App. 1940, 195 So. 388; Sanders v. Atlantic Coast Line R. Co., 1920, 114 S.C. 164, 103 S.E. 564; Oldham v. Reiley, 1921, 44 S.Dak. 428, 184 N.W. 250; Woodson Independent School Dist. v. State ex rel. Cox, Tex.Civ.App.1939, 130 S.W.2d 1038; Ramirez v. Sanchez, Tex.Civ.App.1936, 97 S.W.2d 1034; Peters v. Allen, Tex.Civ.App.1927, 296 S.W. 929; Floor v. Mitchell, 1935, 86 Utah 203, 41 P.2d 281; Kalb v. Luce, 1941, 239 Wis. 256,1 N.W.2d 176.
. See e. g., Continental Grain Co. v. Federal Barge Lines, Inc., 5 Cir., 1959, 268 F.2d 240, certiorari granted 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59; Behimer v. Sullivan, 7 Cir., 1958, 261 F.2d 467, certiorari granted 361 U.S. 809, 80 S.Ct. 50, 4 L.Ed.2d 58; Blaski v. Hoffman, 7 Cir., 1958, 260 F.2d 317, certiorari granted 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; In re Josephson, 1 Cir., 1954, 218 F.2d 174; All States Freight, Inc. v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 1952, 194 F.2d 410, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695; Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Paramount Pictures, Inc. v. Rodney, supra; Atlantic Coast Line R. Co. v. Davis, supra; Ford Motor Co. v. Ryan, supra; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra.
. 28 U.S.C. §§ 2411, 2516. See United States v. New York Rayon Importing Co., 1947, 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Thayer West Point Hotel Co., 1947, 329 U.S. 585. 67 S.Ct. 398. 91 L.Ed. 521.
. United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; United States v. Worley, 1930, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. 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".
Donald Lee McLAUGHLIN, and all others similarly situation, Plaintiffs-Appellees, v. COUNTY OF RIVERSIDE and Cois Byrd as Sheriff and individually, Defendants-Appellants.
No. 89-55534.
United States Court of Appeals, Ninth Circuit.
Sept. 5, 1991.
Before SCHROEDER and BEEZER, Circuit Judges, and KING, District Judge.
Honorable Samuel P. King, Senior U.S. District Judge for the District of Hawaii, sitting by designation.
Pursuant to the mandate of the United States Supreme Court in County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the case is remanded to the district court for further proceedings consistent with the opinion of the United States Supreme Court.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_petitioner
|
027
|
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.
UNITED STATES v. ENMONS et al.
No. 71-1193.
Argued December 4, 1972
Decided February 22, 1973
Stewart, J., delivered the opinion of the Court, in which Bren-Nan, White, Marshall, and Blackmun, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 412. Douglas, J., filed a dissenting opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 413.
William Bradford Reynolds argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Petersen, and Jerome M. Feit.
Bernard Dunau argued the cause for appellees. With him on the briefs were Louis Sherman, Thomas X. Dunn, Elihu I. Leifer, Alex W. Wall, and Sam J. D’Amico.
Briefs of amici curiae urging reversal were filed by Milton Smith and Jerry Kronenberg for the Chamber of Commerce of the United States, and by Arthur B. Hanson and Ralph N. Albright, Jr., for the American Newspaper Publishers Association.
J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Mr. Justice Stewart
delivered the opinion of the Court.
A one-count indictment was returned in the United States District Court for the Eastern District of Louisiana charging the appellees with a violation of the Hobbs Act, 18 U. S. C. § 1951. In pertinent part, that Act provides:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.”
“Extortion” is defined in the Act, as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear...” 18 U. S. C. § 1951 (b)(2).
At the time of the alleged conspiracy, the employees of the Gulf States Utilities Company were out on strike. The appellees are members and officials of labor unions that were seeking a new collective-bargaining agreement with that company. The indictment charged that the appellees and two named coconspirators conspired to obstruct commerce, and that as part of that conspiracy, they
“would obtain the property of the Gulf States Utilities Company in the form of wages and other things of value with the consent of the Gulf States Utilities Company..., such consent to be induced by the wrongful use of actual force, violence and fear of economic injury by [the appellees] and co-conspirators, in that [the appellees] and the co-conspirators did commit acts of physical violence and destruction against property owned by the Gulf States Utilities Company in order to force said Company to agree to a contract with Local 2286 of the International Brotherhood of Electrical Workers calling for higher wages and other monetary benefits.”
Five specific acts of violence were charged to have been committed in furtherance of the conspiracy — firing high-powered rifles at three Company transformers, draining the oil from a Company transformer, and blowing up a transformer substation owned by the Company. In short, the indictment charged that the appellees had conspired to use and did in fact use violence to obtain for the striking employees higher wages and other employment benefits from the Company.
The District Court granted the appellees’ motion to dismiss the indictment for failure to state an offense under the Hobbs Act. 335 F. Supp. 641. The court noted that the appellees were union members on strike against their employer, Gulf States, and that both the strike and its objective of higher wages were legal. The court expressed the view that if “the wages sought by violent acts are wages to be paid for unneeded or unwanted services, or for no services at all,” then that violence would constitute extortion within the meaning of the Hobbs Act. Id., at 645. But in this case, by contrast, the court noted that the indictment alleged the use of force to obtain legitimate union objectives: “The union had a right to disrupt the business of the employer by lawfully striking for higher wages. Acts of violence occurring during a lawful strike and resulting in damage to persons or property are undoubtedly punishable under State law. To punish persons for such acts of violence was not the purpose of the Hobbs Act.” Id., at 646. The court found “no case where a court has gone so far as to hold the type of activity involved here to be a violation of the Hobbs Act.” Id., at 645.
We noted probable jurisdiction of the Government’s appeal, 406 U. S. 916, to determine whether the Hobbs Act proscribes violence committed during a lawful strike for the purpose of inducing an employer’s agreement to legitimate collective-bargaining demands.
I
The Government contends that the statutory language unambiguously and without qualification proscribes interference with commerce by “extortion,” and that in terms of the statute, “extortion” is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear... Wages are the “property” of the employer, the argument continues, and strike violence to obtain such “property” thus falls within the literal proscription of the Act. But the language of the statute is hardly as clear as the Government would make it out to be. Its interpretation of the Act slights the wording of the statute that proscribes obtaining property only by the “wrongful” use of actual or threatened force, violence, or fear. The term “wrongful,” which on the face of the statute modifies the use of each of the enumerated means of obtaining property — actual or threatened force, violence, or fear — would be superfluous if it only served to describe the means used. For it would be redundant to speak of “wrongful violence” or “wrongful force” since, as the Government acknowledges, any violence or force to obtain property is "wrongful.” Rather, “wrongful” has meaning in the Act only if it limits the statute’s coverage to those instances where the obtaining of the property would itself be “wrongful” because the alleged extortionist has no lawful claim to that property.
Construed in this fashion, the Hobbs Act has properly been held to reach instances where union officials threatened force or violence against an employer in order to obtain personal payoffs, and where unions used the proscribed means to exact “wage” payments from employers in return for “imposed, unwanted, superfluous and fictitious services” of workers. For in those situations, the employer’s property has been misappropriated. But the literal language of the statute will not bear the Government’s semantic argument that the Hobbs Act reaches the use of violence to achieve legitimate union objectives, such as higher wages in return for genuine services which the employer seeks. In that type of case, there has been no “wrongful” taking of the employer’s property; he has paid for the services he bargained for, and the workers receive the wages to which they are entitled in compensation for their services.
II
The legislative framework of the Hobbs Act dispels any ambiguity in the wording of the statute and makes it clear that the Act does not apply to the use of force to achieve legitimate labor ends. The predecessor of the Hobbs Act, § 2 of the Anti-Racketeering Act of 1934, 48 Stat. 979, proscribed, in connection with interstate commerce, the exaction of valuable consideration by force, violence, or coercion, "not including, however, the payment of wages by a bona-fide employer to a bona-fide employee. In United States v. Local 807, 315 U. S. 521, the Court held that this exception covered the members of a New York City truck drivers union who, by violence or threats, exacted payments for themselves from out-of-town truckers in return for the unwanted and superfluous service of driving out-of-town trucks to and from the city. The New York City teamsters would lie in wait for the out-of-town trucks, and then demand payment from the owners and drivers in return for allowing the trucks to proceed into the city. The teamsters sometimes drove the arriving trucks into the city, but in other instances, the out-of-town truckers paid the fees but rejected the teamsters' services and drove the trucks themselves. In several cases there was evidence that, having exacted their fees, the city drivers disappeared without offering to perform any services at all. Id., at 526. See also id., at 539 (Stone, C. J., dissenting). The Court held that the activities of the city teamsters were included within the wage exception to the Anti-Racketeering Act although what work they performed was unneeded and unwanted, and although in some cases their work was rejected.
Congressional disapproval of this decision was swift. Several bills were introduced with the narrow purpose of correcting the result in the Local 807 case. H. R. 32, which became the Hobbs Act, 60 Stat. 420, eliminated the wage exception that had been the basis for the Local 807 decision. But, as frequently emphasized on the floor of the House, the limited effect of the bill was to shut off the possibility opened up by the Local 807 case, that union members could use their protected status to exact payments from employers for imposed, unwanted, and superfluous services. As Congressman Hancock explained:
“This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce. That is all it does.
“[T]his bill is made necessary by the amazing decision of the Supreme Court in the case of the United States against Teamsters’ Union 807, 3 years ago. That decision practically nullified the anti-racketeering bill of 1934.... In effect the Supreme Court held that... members of the Teamsters’ Union... were exempt from the provisions of that law when attempting by the use of force or the threat of violence to obtain wages for a job whether they rendered any service or not.” 91 Cong. Rec. 11900.
Congressman Hancock proceeded to read approvingly from an editorial which characterized the teamsters’ action in the Local 807 case as “compelling the truckers to pay day’s wages to local union drivers whose services were neither wanted nor needed.” Ibid. Congressman Fellows stressed the fact that the facts of the Local 807 case showed that “these stick-up men disappeared as soon as the money was paid without rendering or offering to render any service.” Id., at 11907. And Congressman Rivers characterized the facts of the Local 807 case as “nothing short of hijacking, intimidation, extortion, and out-and-out highway robbery.” Id., at 11917.
But by eliminating the wage exception to the Anti-Racketeering Act, the Hobbs Act did not sweep within its reach violence during a strike to achieve legitimate collective-bargaining objectives. It was repeatedly emphasized in the debates that the bill did not “interfere in any way with any legitimate labor objective or activity”; “there is not a thing in it to interfere in the slightest degree with any legitimate activity on the part of labor people or labor unions....” And Congressman Jennings, in responding to a question concerning the Act’s coverage, made it clear that the Act “does not have a thing in the world to do with strikes.” Id., at 11912.
Indeed, in introducing his original bill, Congressman Hobbs explicitly refuted the suggestion that strike violence to achieve a union’s legitimate objectives was encompassed by the Act:
“Mr. MARCANTONIO. All right. In connection with a strike, if an incident occurs which involves—
“Mr. HOBBS. The gentleman need go no further. This bill does not cover strikes or any question relating to strikes.
“Mr. MARCANTONIO. Will the gentleman put a provision in the bill stating so?
“Mr. HOBBS. We do not have to, because a strike is perfectly lawful and has been so described by the Supreme Court and by the statutes we have passed. This bill takes off from the springboard that the act must be unlawful to come within the purview of this bill.
“Mr. MARCANTONIO. That does not answer my point. My point is that an incident such as a simple assault which takes place in a strike could happen. Aha I correct?
“Mr. HOBBS. Certainly.
“Mr. MARCANTONIO. That then could become an extortion under the gentleman’s bill, and that striker as well as his union officials could be charged with violation of sections in this bill.
“Mr. HOBBS. I disagree with that and deny it in toto.” 89 Cong. Rec. 3213.
The Government would derive a different lesson from the legislative history. It points to statements made during the floor debates that the Act was meant to have “broad coverage” and, unlike its predecessor, to encompass the “employer-employee” relationship. But that proves no more than that the achievement of illegitimate objectives by employees or their representatives, such as the exaction of personal payoffs, or the pursuit of “wages” for unwanted or fictitious services, would not be exempted from the Act solely because the extortionist was an employee or union official and the victim an employer. The Government would also find support for its expansive interpretation of the statute in the rejection of two amendments, one proposed by Congressman Celler, the other by Congressman LaFollette, which would have inserted in the Act an exception for cases where violence was used to obtain the payment of wages by a bona-fide employer to a bona-fide employee. See 91 Cong. Rec. 11913, 11917, and 11919, 11922. But both amendments were rejected solely because they would have operated to continue the effect of the Local 807 case. Their rejection thus proves nothing more than that Congress was intent on undoing the restrictive impact of that case.
III
In the nearly three decades that have passed since the enactment of the Hobbs Act, no reported case has upheld the theory that the Act proscribes the use of force to achieve legitimate collective-bargaining demands.
The only previous case in this Court relevant to the issue, United States v. Green, 350 U. S. 415, held no more than that the Hobbs Act had accomplished its objective of overruling the Local 807 case. The alleged extortions in that case, as in Local 807, consisted of attempts to obtain so-called wages for “imposed, unwanted, superfluous and fictitious services of laborers....” Id., at 417. The indictment charged that the employer's consent was obtained “by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear... Ibid. The Government thus did not rely, as it does in the present case, solely on the use of force in an employer-employee relationship; it alleged a wrongful purpose — to obtain money from the employer that the union officials had no legitimate right to demand. We concluded that the Hobbs Act could reach extortion in an employer-employee relationship and that personal profit to the extortionist was not required, but our holding was carefully limited to the charges in that case: “We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act.” Id., at 421.
A prior decision in the Third Circuit, United States v. Kemble, 198 F. 2d 889, on which the Government relied in Oreen, also concerned the exaction, by threats and violence, of wages for superfluous services. In affirming a conviction under the Hobbs Act of a union business agent for using actual and threatened violence against an out-of-town driver in an attempt to force him to hire a local union member, the Court of Appeals carefully limited its holding:
“We need not consider the normal demand for wages as compensation for services desired by or valuable to the employer. It is enough for this case, and all we decide, that payment of money for imposed, unwanted and superfluous services... is within the language and intendment of the statute.” Id., at 892.
Most recently, in United States v. Caldes, 457 F. 2d 74, the Court of Appeals for the Ninth Circuit was squarely presented with the question at issue in this case. Two union officials were convicted of Hobbs Act violations in that they damaged property of a company with which they were negotiating for a collective-bargaining agreement, in an attempt to pressure the company into agreeing to the union contract. Concluding that the Act was not intended to reach militant activity in the pursuit of legitimate unions ends, the court reversed the convictions and ordered the indictment dismissed.
Indeed, not until the indictments were returned in 1970 in this and several other cases has the Government even sought to prosecute under the Hobbs Act actual or threatened violence employed to secure a union contract “calling for higher wages and other monetary benefits.” Yet, throughout this period, the Nation has witnessed countless economic strikes, often unfortunately punctuated by violence. It is unlikely that if Congress had indeed wrought such a major expansion of federal criminal jurisdiction in enacting the Hobbs Act, its action would have so long passed unobserved. See United States v. Laub, 385 U. S. 475, 485.
IY
The Government’s broad concept of extortion — the “wrongful” use of force to obtain even the legitimate union demands of higher wages — is not easily restricted. It would cover all overtly coercive conduct in the course of an economic strike, obstructing, delaying, or affecting commerce. The worker who threw a punch on a picket line, or the striker who deflated the tires on his employer’s truck would be subject to a Hobbs Act prosecution and the possibility of 20 years’ imprisonment and a $10,000 fine.
Even if the language and history of the Act were less clear than we have found them to be, the Act could not properly be expanded as the Government suggests— for two related reasons. First, this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. United States v. Wiltberger, 5 Wheat. 76, 95; United States v. Halseth, 342 U. S. 277, 280; Bell v. United States, 349 U. S. 81, 83; Arroyo v. United States, 359 U. S. 419, 424; Rewis v. United States, 401 U. S. 808, 812. Secondly, it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the orderly conduct of strikes. Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work such an extraordinary change in federal labor law or such an unprecedented incursion into the criminal jurisdiction of the States. See San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 247-248; United Constr. Workers v. Laburnum Constr. Corp., 347 U. S. 656, 665; Garner v. Teamsters Local 776, 346 U. S. 485, 488; UAW Local 232 v. Wisconsin Employment Relations Bd., 336 U. S. 245, 253.
As we said last Term:
“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States.... [W]e will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” United States v. Bass, 404 U. S. 336, 349 (footnotes omitted).
The District Court was correct in dismissing the indictment. Its judgment is affirmed.
It is so ordered.
This appeal was taken under 18 U. S. C. § 3731 (1964 ed.). The 1971 amendment to the Criminal Appeals Act, providing that all appeals from dismissals of indictments or informations must be taken to the Courts of Appeals, does not apply to cases instituted before January 2, 1971. Omnibus Crime Control Act of 1970, Pub. Law No. 91-644, § 14 (a), 84 Stat. 1890, codified, 18 U. S. C. § 3731. See United States v. Jorn, 400 U. S. 470, 474 n. 1, 477-478, n. 6. The present indictment was filed on October 15, 1970.
Congressman Hobbs indicated that “wrongful” was to modify the entire section. 91 Cong. Rec. 11908.
The Government suggests a convoluted construction of “wrongful.” It concedes that when the means used are not “wrongful,” such as where fear of economic loss from a strike is employed, then the objective must be- illegal. If, on the other hand, “wrongful” force and violence are used, even for a legal objective, the Government contends that the statute is satisfied. But that interpretation simply accepts the redundancy of the term “wrongful” whenever it applies to “force” and “violence” in the statute.
See, e. g., United States v. Iozzi, 420 F. 2d-512; United States v. Kramer, 355 F. 2d 891, cert. granted_and case remanded for resentencing, 384 U. S. 100; Bianchi v. United States, 219 F. 2d 182.
See, e. g., United States v. Green, 350 U. S. 415, 417; United States v. Kemble, 198 F. 2d 889.
Section 2 of the Act provided:
"Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce—
“(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona-fide employer to a bona-fide employee; or
“(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right; or
“(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a)
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_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
EARNEY v. WARDREP.
(Circuit Court of Appeals, Fourth Circuit.
January 11, 1927.)
No. 2540.
1. Fraud <®=58(U— Evidence held not to establish employer falsely represented he had license, authorizing employee to solicit laborers to work in other state (Cr. Code S. C. 1922, §§ 308, 309).
Evidence held insufficient to establish that employer had falsely represented to employee that he had South Carolina emigrant agent’s license, and entitle employee to recovery in tort after bis arrest in South Carolina under Cr. Code S. C. 1922, §§ 308, 309, for failure to have emigrant agent’s license while attempting to secure laborers to work on North Carolina job.
2. Indemnity <®=>13(I) — Employee held not entitled to recover, on theory of implied indemnity contract, against employer for arrest while attempting without emigrant agent’s license to secure laborers in South Carolina (Cr. Code S. C. 1922, §§ 308, 309).
Employee held not entitled to recover against employer because of arrest under Cr. Code S. C. 1922, §§ 308, 309, for attempting to secure laborers to work in North Carolina without having emigrant agent’s license, on theory of implied contract by employer to save him harmless from anything that might in consequence happen to him.
In Error to the District Court of the United States for the Western District of North Carolina, at Charlotte; Edwin T. Webb, Judge.
Action by T. A. Earney against A. J. Wardrep. Judgment for defendant, and plaintiff brings error.
Affirmed.
H. B. Adams, of Waxhaw, N. C. (John A. McRae, of Charlotte, N. C., on the brief), for plaintiff in error.
John S. Cansler, of Charlotte, N. C. (E. T. Cansler, of Charlotte, N. C., on the brief )v for defendant in error.
Before WADDILL and ROSE, Circuit Judges, and WATKINS, District Judge.
ROSE, Circuit Judge.
The parties here occupy the same positions as they did below, and Earney, the plaintiff in error, will be referred to as the plaintiff, and his adversary, Wardrep, as the defendant.
In the spring of 1923, the defendant was constructing various state highways in North Carolina. The plaintiff was in his employ as a superintendent or supervisor of labor on one of these, and while so engaged went into South Carolina to get laborers to work on the job. The South Carolina authorities arrested him on the charge of carrying on the business of an emigrant agent without having obtained the state and county licenses required by sections 308 and 309 (chapter 3, §§ 186 and 187) of the Criminal Code (1922) of the state. He was subsequently indicted, tried, convicted, and sentenced to hard labor on the roads for a term of two years, unless he paid a fine of $2,000. He was financially unable to make such payment, and before he was pardoned by the Governor he actually served some months of the sentence.
He alleges two causes of action, one in tort and the other in contract. The first was based upon the charge that the defendant had falsely represented to him that he had a South Carolina emigrant agent’s license under which the plaintiff could lawfully solicit laborers within the state, and the second rested upon the allegation that the defendant had used his position as a man of wealth and superior education and as plaintiff’s employer to insist that plaintiff should go to South Carolina to solicit hands, and had agreed to save the plaintiff harmless from anything that might in consequence happen to him. It is not claimed that either the false statement or the contract, or any part of either of them, were in writing. The plaintiff is the only witness to support his version of what was said by word of mouth. In his testimony, he does not claim the defendant told him he had a license. The furthest he goes is to say that, from what the defendant said, he (the plaintiff) supposed that the defendant had a license; but his own statement of what the defendant in fact said could not in our judgment justify the plaintiff in reaching the conclusion he says he did.. There is, therefore, no sufficient evidence to justify a recovery for the alleged tort.
The learned, able, and industrious counsel for the plaintiff has not found a case) in which a recovery upon such a contract as is alleged has ever been permitted, and we know of none. There is no evidence in the instant case of any special circumstances, if any there could be, which would justify the legal enforcement of an agreement so contrary to public policy. The learned judge below did not err in directing a verdict for the defendant.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_attyfee
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees 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".
UNITED STATES of America, Appellant, v. Joseph X. STREBLER, Appellee.
No. 17088.
United States Court of Appeals Eighth Circuit.
Feb. 15, 1963.
Stephen B. Wolfberg, Atty., Tax Division, Dept. of Justice, Washington, D. C., made argument for appellant and Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., Lee A. Jackson, George F. Lynch, and Stephen B. Wolfberg, Attys., Dept. of Justice, Washington, D. C., together with D. Jeff Lance, U. S. Atty., St. Louis, Mo., were on the brief.
Joseph X. Strebler, appellee was not represented by counsel and did not file brief.
Before VOGEL, BLACKMUM and RIDGE, Circuit Judges.
RIDGE, Circuit Judge.
Appellee, as president of Strebler and Landvatter, Inc., executed on behalf of that corporation and filed with the Collector of Internal Revenue at St. Louis, Missouri, an “Employer’s Quarterly Federal Tax Return” (U.S. Treasury Form 941) showing a tax liability on the part of the corporation of $14,593.40, for Income and Social Security Taxes withheld from its employees’ wages for the quarter ending December 31, 1950. Concededly, the corporation at that time had sufficient funds in its bank account with which to pay the entire amount of the taxes due the Government as shown by that return, but not sufficient money in the bank to pay all its other current obligations. Therefore, appellee sent a check to the District Collector of Internal Revenue for only $2,593.40, along with the above quarterly return. Subsequently other payments made in respect to the above return reduced the amount due the Government thereon to $7,288.-46.
On February 23, 1954, the District Director made a personal assessment of tax against appellee in the above amount pursuant to the provisions of § 2707(a) and (d) of the Internal Revenue Code of 1939. Appellee failing to pay such assessment, the instant action was commenced to enforce collection thereof. Appellee demanded a jury trial which resulted in a verdict in his favor. It is from the judgment entered on such verdict that the Government prosecutes the instant appeal, claiming error on the part of the District Court for denying its motion for a directed verdict and motion for judgment in its favor notwithstanding the verdict.
It is the Government’s primary contention that in the light of appellee’s own testimony and other uncontradicted evidence adduced at the trial of this case, establishing that appellee was the responsible person who had the duty to pay over the F.I.C.A. and Income Taxes withheld by Strebler and Landvatter, Inc. from its employees’ wages, (2707(a) and (d) I.R.C.1939) and that his failure to do so was “willful”, the District Court erred in entering judgment on the verdict of the jury as returned. A secondary point raised’ relates to claim of error in the giving of instructions by the District Court which the Government asserts compels granting it a new trial if the contention as to its n. o. v. motion is not sustained. Ruling on the latter matter is pretermitted in light of the disposition hereinafter made of this appeal.
Appellee in the case at bar has not favored us with any brief or record in addition to that filed by the Government. He personally appeared at oral argument and simply stated: * * * “I rely on the jury’s verdict!” Hence we have been called upon to search the printed record on appeal for some evidence which appellee might claim to sustain his verdict. After carefully doing so, we are of the opinion that no substantial evidence can be found in the record before us to sustain the verdict.
At the trial of the case at bar the Government introduced evidence by way of a “Certificate of Assessment” which revealed appellee’s liability for the amount of taxes claimed. The law is that such assessment is presumptively correct; and “the burden is on the taxpayer to overcome this presumption” by countervailing proof. Paschal v. Blieden, 127 F.2d 398, 401 (8 Cir., 1942) and cases therein cited. Accord, United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131; Niles Bement Pond Co. v. United States, 281 U.S. 357, 50 S.Ct. 251, 74 L.Ed. 901 (1930); Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293.
Appellee did not adduce any evidence contesting the amount of the assessment as made, nor the Government’s assertion that failure of the party responsible to pay over the amount of taxes withheld was not “willful”. His sole contention at the trial was that he was not the officer or employee of the corporation who was under a duty to pay over the withheld Income and F.I.C.A. Taxes in question. Appellee, solely by oral testimony, sought to prove that, at the time the Company failed to pay over the taxes, one John Kirk (who was the president of a bank that was one of the company’s principal creditors), along with the bookkeeper, Frank X. Muehlbauer, in the employ of Strebler and Landvatter, Inc., were the ones who made the financial decisions as to which bills due and owing by that company were to be paid and when. It was on that singular oral assertion by appellee that control of that company’s financial affairs was in others, that he sought to avoid the tax obligations here in question. This notwithstanding the by-laws of Strebler and Landvatter, Inc. established it was appellee’s duties as “president (and) chief executive of the corporation (who was to) have general supervision over the general policy, affairs and finances of the corporation” and all the other competent evidence in the record established that he personally exercised such authority and control of that company’s financial affairs.
Particularly, it was established without contradiction that appellee, as President of that corporation, and his wife, as Secretary thereof, were persons authorized to jointly sign checks on the company’s bank account. Further, it was uncontradicted that when the “Form 941” return, supra, was prepared by the company’s bookkeeper appellee took it from the bookkeeper and said to him: “I’ll handle this, personally.” Concededly, appellee signed that “Employer’s Quarterly Federal Tax Return” and mailed or caused it to be mailed, along with a check to the District Director of Internal Revenue for only a part of the tax due. He signed all tax returns made by the company. He personally negotiated financial loans made to Strebler and Landvatter, Inc. The only inference from the record here is that he was wholly delegated the authority to act as a fiscal manager of that company’s affairs and he did so act.
Appellee’s oral statements that he was not the person with authority “to pay, collect, (and) truthfully account for and pay over the tax” in question is so equivocal, implausible, and insubstantial, in the light of the entire record here, we do not consider it to amount to a scintilla of evidence. We think it is sufficient to say, without verbatim recital, that what, appellee attempted to develop thereby was not in contradiction of other record evidence and uncontradicted testimony of the vice president and bookkeeper of the corporation, to the effect that he (appellee) was the person responsible for payment over to the Government of Income and F.I.C.A. Taxes withheld by Strebler and Landvatter, Inc. His testimony, fairly considered, merely developed extenuating circumstances because of the precarious financial condition of the company, as to why the amount of the tax as shown by the return he had executed as its president, was not remitted in full. However, his testimony in that respect, reasonably considered, reveals that other debts of the company were preferred and paid by checks signed by him when he knew that the company’s obligation to pay the amount of Income and F.I.C.A. Taxes withheld from its employees’ wages had not been paid.
Under Section 3661, I.R.C.1939 such withheld “taxes constituted a “fund in trust for the United States.” Cf. Hercules Service Parts Corp. v. United States, 202 F.2d 938 (6 Cir., 1953). The ■only reasonable inference to be made from this record is that as the responsible officer of the corporation he decided not to have the corporation pay over such trust fund; and, that “was a voluntary, conscious and intentional act” on his part “to prefer other creditors of the corporation over the United States.” Bloom v. United States, 272 F.2d 215 (9 Cir., 1959), cert. den. 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146.
Applicable law to be considered in determining appellee’s liability for the assessment of the taxes here in question is with keen judicial acumen, enlightenment and understanding stated by Judge Jertberg, speaking for the Ninth Circuit, in the ease of Bloom v. United States, supra. The similarity of facts and appellee’s contention in the case at bar with those stated in the Bloom case and the rulings therein made, have such a sameness, we can perceive no useful purpose being served for us to reiterate applicable law as declared by the Ninth Circuit in that opinion. Certainly if this opinion can be shortened by adherence to sound precedents we should not attempt to paraphrase the same. Therefore, we note our likemindedness of the law as declared by the Ninth Circuit in the Bloom case, supra, in relation to an assessment made under Section 2707(a) and (d) of the Internal Revenue Code of 1939, and assert controlling law of appellee’s liability to the Government in the case at bar to be as therein declared. In accord: see Frazier v. United States, 304 F.2d 528 (5 Cir., 1962) Stanton v. Machiz, supra. Cf. Wilson v. United States, 250 F.2d 312 (9 Cir., 1958).
Appellee in the case at bar “not only failed to overcome the prima facie case made by the Government’s evidence but, in fact, presented evidence which had the effect of supporting the Government’s claim.” Fiori v. Rothensies, Collector etc., 99 F.2d 922 (3 Cir., 1938). Though appellee was entitled to have the District Court “view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable” to him, (Shaw v. Edward Hines Lumber Co., 249 F.2d 434, 439) he “was not entitled to the benefit of unreasonable inferences” as made by the jury from the evidence in the case at bar. Chicago and North Western Railway Co. v. Strand, 300 F.2d 521 (8 Cir., 1962).
The judgment appealed from is reversed and this cause is remanded to the District Court, with direction to enter judgment in favor of the Government in accordance herewith.
. Questions of law raised by such motions are the same. Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7 Cir., 1957). This Court has stated that a motion for directed verdict or judgment notwithstanding the verdict should be granted if there is no substantial, i. e. not more than a mere scintilla of evidence to sustain the verdict. Roth v. Swanson, 145 F.2d 262 (8 Cir., 1944); Bradford-Kennedy Co. v. Fred G. Clark Co., 43 F.2d 675 (8 Cir., 1930).
. “Willfully” as found in 2707(a) I.R.C. 1939 and referred to in tbis opinion, connotes only “voluntary and intentional action” as contrasted with “accidental” (Stanton v. Machiz, 183 F.Supp. 719 (D.C.Md.1960)) or done “without reasonable cause.” Frazier v. United States, 304 F.2d 528 (5 Cir. 1962).
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
Fred GILLIGAN; Van Hardesty, Plaintiffs-Appellants, v. CITY OF EMPORIA, KANSAS, Defendant-Appellee. League of Kansas Municipalities, Amicus Curiae.
No. 92-3217.
United States Court of Appeals, Tenth Circuit.
Feb. 19, 1993.
Daniel J. Markowitz and Michele I. Carroll of McDowell, Rice & Smith, Kansas City, MO, for plaintiffs-appellants.
Stanley E. Craven of Spencer Fane Britt & Browne, Kansas City, MO and Dale W. Bell of Helbert, Bell & Smith, Chartered, Emporia, KS, for defendant-appellee.
James M. Kaup of Gilmore & Bell, Topeka, KS, for amicus curiae League of Kansas Municipalities.
Before ANDERSON and EBEL, Circuit Judges, and BRIMMER, District Judge.
Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by designation.
EBEL, Circuit Judge.
Plaintiffs Gilligan and Hardesty brought a declaratory judgment action in the district court, seeking a ruling that mandatory “on-call” time which they spent in their employment with the City of Emporia, Kansas (the City), constituted compensable work hours under the Fair Labor Standards Act (FLSA) and that they were therefore entitled to overtime compensation pursuant to 29 U.S.C. § 207 (section 7 of the FLSA). The parties filed cross motions for summary judgment, and the district court granted the City’s motion, finding that plaintiffs were not entitled to overtime compensation for mandatory on-call hours. Plaintiffs appeal the district court’s grant of the City’s motion and the denial of their own motion.
Plaintiffs Gilligan and Hardesty are employed by the City in the water and sewer departments, respectively. In addition to their regular work hours and as a condition of their employment, plaintiffs are both required to be available to work on-call for certain time periods. Gilligan is claiming entitlement to overtime compensation for his on-call time from February 14, 1988, through February 5, 1989. During that period, Gilligan’s city job required that he perform on-call duty, with risk of discipline and legal action for failure to comply. The City supplied him with a pocket-size belt pager, and he was required to be accessible through the pager at all times while on call. Further on-call conditions imposed on Gilligan were that he was required to respond to a call within one hour and consumption of alcohol was prohibited. The requirement of accessibility through the pager dictated that Gilligan stay within the geographical limits of the pager, or leave a telephone number where he could be reached. Gilligan testified that he believed he was restricted to staying within the Emporia city limits. Aside from these literal requirements and prohibitions, Gilligan was prohibited from participating in certain activities which would keep him from hearing his beeper, and he avoided paid-entrance activities from which he could be called away, as well as certain other activities from which the risk of being called away made him uncomfortable or fearful. Gilligan also believed that he was required to use a city vehicle to respond to calls, but could not use the vehicle for personal reasons, which further inhibited his on-call time. He was allowed to trade on-call time with other employees, with prior supervisor approval.
Hardesty, like Gilligan, was given a small pager, so that he was not required to be by a telephone at all times. The conditions placed upon Hardesty were as follows: (1) he must respond to a call within thirty minutes; (2) he could not consume alcoholic beverages; (3) he was subject to discipline for failure to respond to a call; and (4) he was required to stay within the limits of his pager, or leave a telephone number where he could be reached but, like Gilligan, Hardesty believed he was restricted to the city limits. Aside from these express conditions, Hardesty was prohibited from pursuing activities which would prevent him from hearing his pager. He also had reservations similar to Gilligan’s about participating in certain activities from which he could be called away.
We review the district court’s grant or denial of summary judgment de novo. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, — U.S. —, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). We apply the same legal standard as the district court, and we view the evidence in the light most favorable to the party opposing the motion. If there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, summary judgment is appropriate. Id.; Fed.R.Civ.P. 56(c).
This court has followed the Supreme Court’s lead in stating that
the test for whether an employee’s time constitutes working time is whether the ‘time is spent predominantly for the employer’s benefit or for the employee’s.’ Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). That test requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances. Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944).
Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir.1989). In addition, regulations promulgated by the Department of Labor lend insight into the determination of what constitutes compensable time. The regulations provide that on-call time is compensable if the employee is required to remain on the employer’s premises, 29 C.F.R. § 785.17, and if on-call time spent off the premises is so restricted that the employee cannot use the time effectively for personal pursuits, 29 C.F.R. § 553.221(d). “ ‘[Resolution of the matter involve[s] determining the degree to which the employee could engage in personal activity while subject to being called.’ ” Renfro v. City of Emporia, 948 F.2d 1529, 1537 (10th Cir.1991) (quoting Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 655 (10th Cir.1988)), cert. dismissed, — U.S. —, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). “Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.” Skidmore, 323 U.S. at 137, 65 S.Ct. at 163.
Plaintiffs argue that this case is controlled by our decision in Renfro. We disagree. In Renfro, we held that the district court did not err in determining that the plaintiff firefighters were entitled to compensation under the FLSA while on call. Renfro, 948 F.2d at 1538. The firefighters, although not required to remain on the premises while on call, were required to report within twenty minutes of being called back and were called back an average of three to five times a day. Id. at 1537. The frequency of the call backs in that case was a pivotal factor in our determination that the firefighters’ on-call time was compensable. Id. at 1537-38. Likewise, we noted in Renfro that the frequency of call backs was the factor which the Renfro district court cited as distinguishing that case from other cases which had previously held that on-call time was not compensable. Id. at 1532-33. In contrast, plaintiffs in this case were called back to duty on average less than one time per day. Obviously, these plaintiffs have significantly less interference with personal pursuits than did the firefighters in Renfro, simply by virtue of the lower frequency at which they were called back. Further, Gilligan was given one hour to respond to a call, and Hardesty was required to respond within thirty minutes. The longer response time given these plaintiffs means that their personal time is less restricted while on call, yet another distinction from Renfro.
This court has held in three prior cases that time spent on-call is not compensable as overtime. See Armitage v. City of Emporia, 982 F.2d 430 at 432 (10th Cir.1992); Boehm, 868 F.2d at 1185; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 656 (10th Cir.1988). In each of those cases, as in the case before us, restrictions on the employee’s on-call time were not so burdensome as to render it time predominantly spent for the benefit of the employer.
In Armitage, police detectives “were allowed to do as they pleased while on call, as long as they remained sober, could be reached by beeper and were able to report to duty within twenty minutes of responding to the page.” Armitage, 982 F.2d at 432. In addition, the detectives were called in on average less than two times a week. Id. Given those facts, we held that the on-call time did not prohibit the detectives from personal pursuits and that, “to require compensation under these facts would require that all on call employees be paid for standby time,” which would be a major change in the FLSA law. Id. We declined to make such a requirement in that case, and we decline to do so in this factually similar case.
In Boehm, the plaintiffs were free to leave the company premises and to use their on-call time as they pleased, so long as they could be reached and report for work one-third of the time they were called. Boehm, 868 F.2d at 1185. We held in that case that “although plaintiffs spent some time at home that they otherwise would not have spent because of the company’s on-call policy,” the time was not spent predominantly for the employer’s benefit. Id. Similarly, the employees in Norton were not required to remain on the employer’s premises, but were allowed to pursue personal activities, with the restriction that they be accessible by phone or pager. Norton, 839 F.2d at 655-66. We acknowledged in Norton that even though on-call time required restrictions on the employees’ personal time, the restrictions were not so great as to constitute working time. Id. at 656.
The case before us is factually similar to Armitage, Boehm, and Norton, and we believe that those cases control our decision in this case. Even though plaintiffs’ activities may be somewhat restricted while they are on call, the restrictions are not so prohibitive that it can be said that their on-call time is spent predominantly for the employer’s benefit. In addition, plaintiffs are free to pursue personal activities with little interference while waiting to be called. Consequently, we hold that, under the facts of this case, plaintiffs’ personal pursuits are not restricted to such a degree as to require that plaintiffs’ on-call time be compensated as overtime under the FLSA.
As an alternative holding, the district court concluded that Gilligan’s claim for overtime compensation was barred by the statute of limitations. “Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the [employee] must prove that the employer’s conduct was willful....” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 1682, 100 L.Ed.2d 115 (1988). To constitute willful conduct, the employer must either know or show reckless disregard for whether its conduct was prohibited by the statute. Id. at 133, 108 S.Ct. at 1681. Gilligan has not met his burden of showing that the City’s conduct in refusing overtime compensation for on-call time was willful. In fact, we have reviewed the record and he did not present any evidence whatsoever to the district court of the City’s willfulness. Therefore, Gilligan’s claims for overtime compensation are governed by the two-year limitations period; the district court was correct in its determination that his claim is barred.
The judgment of the United States District Court for the District of Kansas is, therefore, AFFIRMED.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
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_caseorigin
|
057
|
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.
RUSH PRUDENTIAL HMO, INC. v. MORAN et al.
No. 00-1021.
Argued January 16, 2002
Decided June 20, 2002
Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scaua and Kennedy, JJ., joined, post, p. 388.
John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were Clifford D. Stromberg, Craig A. Hoover, Jonathan S. Franklin, Catherine E. Stetson, James T Ferrini, Michael R. Grimm, Sr., and Melinda S. Kollross.
Daniel R Albers argued the cause for respondents. With him on the brief for respondent Moran were Mark E. Rust and Stanley C. Fickle. James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, and John Philip Schmidt and Mary Ellen Margaret Welsh, Assistant Attorneys General, filed a brief for respondent State of Illinois.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, James A. Feldman, Howard M. Radzely, Allen H. Feld-man, Nathaniel I. Spiller, and Elizabeth Hopkins
Miguel A Estrada and Andrew S. Tulumello filed a brief for the American Association of Health Plans, Inc., et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Howard G. Baldwin, Jr., First Assistant Attorney General, Jeffrey S. Boyd, Deputy Attorney General, Julie Parsley, Solicitor General, Christopher Livingston, Assistant Attorney General, and David C. Mattax, and by the Attorneys General for their respective jurisdictions as follows: Janet Napolitano of Arizona, Bill Lockyer of California, Gregory D’Auria of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Steve Carter of Indiana, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, Betty D. Montgomery of Ohio, W. A Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, Mark L. Shurt-leff of Utah, William H. Sorrell of Vermont, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, Hoke MacMillan of Wyoming, and Anabelle Rodriguez of Puerto Rico; for AARP et al. by Mary Ellen Signorille, Michael R. Schuster, Paula Brantner, Ronald Dean, and Judith L. Lichtman; for the American Medical Association et al. by Jack R. Bierig, Richard G. Taranto, Jon N. Ekdahl, Leonard A. Nelson, and Saul J. Morse; for the National Association of Insurance Commissioners by Jennifer R. Cook, Mary Elizabeth Senkewicz, and Marc I. Machiz; and for Texas Watch et al. by George Parker Young.
Briefs of amici curiae were filed for the California Consumer Health Care Council et al. by Sharon J. Arkin; and for United Policyholders by Arnold R. Levinson.
Justice Souter
delivered the opinion of the Court.
Section 4-10 of Illinois’s Health Maintenance Organization Act, 215 Ill. Comp. Stat., ch. 125, §4-10 (2000), provides recipients of health coverage by such organizations with a right to independent medical review of certain denials of benefits. The issue in this ease is whether the statute, as applied to health benefits provided by a health maintenance organization under contract with an employee welfare benefit plan, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. We hold it is not.
I
Petitioner, Rush Prudential HMO, Inc., is a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefit plans covered by ERISA. Respondent Debra Moran is a beneficiary under one such plan, sponsored by her husband’s employer. Rush’s “Certificate of Group Coverage,” issued to employees who participate in employer-sponsored plans, promises that Rush will provide them with “medically necessary” services. The terms of the certificate give Rush the “broadest possible discretion” to determine whether a medical service claimed by a beneficiary is covered under the certificate. The certificate specifies that a service is covered as “medically necessary” if Rush finds:
“(a) [The service] is furnished or authorized by a Participating Doctor for the diagnosis or the treatment of a Sickness or Injury or for the maintenance of a person’s good health.
“(b) The prevailing opinion within the appropriate specialty of the United States medical profession is that [the service] is safe and effective for its intended use, and that its omission would adversely affect the person’s medical condition.
“(c) It is furnished by a provider with appropriate training, experience, staff and facilities to furnish that particular service or supply.” Record, PI. Exh. A, p. 21.
As the certificate explains, Rush contracts with physicians “to arrange for or provide services and supplies for medical care and treatment” of covered persons. Each covered person selects a primary care physician from those under contract to Rush, while Rush will pay for medical services by an unaffiliated physician only if the services have been “authorized” both by the primary care physician and Rush’s medical director. See id., at 11,16.
In 1996, when Moran began to have pain and numbness in her right shoulder, Dr. Arthur LaMarre, her primary care physician, unsuccessfully administered “conservative” treatments such as physiotherapy. In October 1997, Dr. LaMarre recommended that Rush approve surgery by an unaffiliated specialist, Dr. Julia Terzis, who had developed an unconventional treatment for Moran’s condition. Although Dr. La-Marre said that Moran would be “best served” by that procedure, Rush denied the request and, after Moran’s internal appeals, affirmed the denial on the ground that the procedure was not “medically necessary.” 230 F. 3d 959, 963 (CA7 2000). Rush instead proposed that Moran undergo standard surgery, performed by a physician affiliated with Rush.
In January 1998, Moran made a written demand for an independent medical review of her claim, as guaranteed by §4-10 of Illinois’s HMO Act, 215 Ill. Comp. Stat., ch. 125, § 4-10 et seq. (2000), which provides:
“Each Health Maintenance Organization shall provide a mechanism for the timely review by a physician holding the same class of license as the primary care physician, who is unaffiliated with the Health Maintenance Organization, jointly selected by the patient..., primary care physician and the Health Maintenance Organization in the event of a dispute between the primary care physician and the Health Maintenance Organization regarding the medical necessity of a covered service proposed by a primary care physician. In the event that the reviewing physician determines the covered service to be medically necessary, the Health Maintenance Organization shall provide the covered service.”
The Act defines a “Health Maintenance Organization” as
“any organization formed under the laws of this or another state to provide or arrange for one or more health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers.” Ch. 125, § 1-2.
When Rush failed to provide the independent review, Moran sued in an Illinois state court to compel compliance with the state Act. Rush removed the suit to Federal District Court, arguing that the cause of action was “completely preempted” under ERISA. 230 F. 3d, at 964.
While the suit was pending, Moran had surgery by Dr. Terzis at her own expense and submitted a $94,841.27 reimbursement claim to Rush. Rush treated the claim as a renewed request for benefits and began a new inquiry to determine coverage. The three doctors consulted by Rush said the surgery had been medically unnecessary.
Meanwhile, the federal court remanded the case back to state court on Moran’s motion, concluding that because Moran’s request for independent review under § 4-10 would not require interpretation of the terms of an ERISA plan, the claim was not “completely preempted” so as to permit removal under 28 U. S. C. § 1441. 230 F. 3d, at 964. The state court enforced the state statute and ordered Rush to submit to review by an independent physician. The doctor selected was a reconstructive surgeon at Johns Hopkins Medical Center, Dr. A. Lee Dellon. Dr. Dellon decided that Dr. Terzis’s treatment had been medically necessary, based on the definition of medical necessity in Rush’s Certificate of Group Coverage, as well as his own medical judgment. Rush’s medical director, however, refused to concede that the surgery had been medically necessary, and denied Moran’s claim in January 1999.
Moran amended her complaint in state court to seek reimbursement for the surgery as “medically necessary” under Illinois’s HMO Act, and Rush again removed to federal court, arguing that Moran’s amended complaint stated a claim for ERISA benefits and was thus completely preempted by ERISA’s civil enforcement provisions, 29 U. S. C. § 1132(a), as construed by this Court in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987). The District Court treated Moran’s claim as a suit under ERISA, and denied the claim on the ground that ERISA preempted Illinois’s independent review statute.
The Court of Appeals for the Seventh Circuit reversed. 230 F. 3d 959 (2000). Although it found Moran’s state-law reimbursement claim completely preempted by ERISA so as to place the case in federal court, the Seventh Circuit did not agree that the substantive provisions of Illinois’s HMO Act were so preempted. The court noted that although ERISA broadly preempts any state laws that “relate to” employee benefit plans, 29 U. S. C. § 1144(a), state laws that “regulat[e] insurance” are saved from preemption, § 1144(b)(2)(A). The court held that the Illinois HMO Act was such a law, the independent review requirement being little different from a state-mandated contractual term of the sort this Court had held to survive ERISA preemption. See 280 F. 3d, at 972 (citing UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 375-376 (1999)). The Seventh Circuit rejected the contention that Illinois’s independent review requirement constituted a forbidden “alternative remedy” under this Court’s holding in Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987), and emphasized that § 4-10 does not authorize any particular form of relief in state courts; rather, with respect to any ERISA health plan, the judgment of the independent reviewer is only enforceable in an action brought under ERISA’s civil enforcement scheme, 29 U. S. C. § 1132(a). 230 F. 3d, at 971.
Because the decision of the Court of Appeals conflicted with the Fifth Circuit’s treatment of a similar provision of Texas law in Corporate Health Ins., Inc. v. Texas Dept. of Ins., 215 F. 3d 526 (2000), we granted certiorari, 533 U. S. 948 (2001). We now affirm.
II
To “safeguard]... the establishment, operation, and administration” of employee benefit plans, ERISA sets “minimum standards... assuring the equitable character of such plans and their financial soundness,” 29 U. S. C. § 1001(a), and contains an express preemption provision that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” § 1144(a). A saving clause then reclaims a substantial amount of ground with its provision that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” § 1144(b)(2)(A). The “unhelpful” drafting of these antiphonal clauses, New York State Confer ence of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995), occupies a substantial share of this Court’s time, see, e. g., Egelhoff v. Egelhoff, 532 U. S. 141 (2001); UNUM Life Ins. Co. of America v. Ward, supra; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). In trying to extrapolate congressional intent in a case like this, when congressional language seems simultaneously to preempt everything and hardly anything, we “have no choice” but to temper the assumption that “‘the ordinary meaning... accurately expresses the legislative purpose,’” id., at 740 (quoting Park ’N Fly v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985)), with the qualification “ ‘that the historic police powers of the States were not [meant] to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Travelers, supra, at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).
It is beyond serious dispute that under existing precedent § 4-10 of the Illinois HMO Act “relates to” employee benefit plans within the meaning of § 1144(a). The state law bears “indirectly but substantially on all insured benefit plans,” Metropolitan Life, 471 U. S., at 739, by requiring them to submit to an extra layer of review for certain benefit denials if they purchase medical coverage from any of the common types of health care organizations covered by the state law’s definition of HMO. As a law that “relates to” ERISA plans under § 1144(a), §4-10 is saved from preemption only if it also “regulates insurance” under § 1144(b)(2)(A). Rush insists that the Act is not such a law.
A
In Metropolitan Life, we said that in deciding whether a law “regulates insurance” under ERISA’s saving clause, we start with a “common-sense view of the matter,” 471 U. S., at 740, under which “a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry.” Pilot Life Ins. Co. v. Dedeaux, supra, at 50. We then test the results of the commonsense enquiry by employing the three factors used to point to insurance laws spared from federal preemption under the McCarran-Ferguson Act, 15 U. S. C. § 1011 et seq, Although this is not the place to plot the exact perimeter of the saving clause, it is generally fair to think of the combined “commonsense” and McCarran-Ferguson factors as parsing the “who” and the “what”: when insurers are regulated with respect to their insurance practices, the state law survives ERISA. Cf Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 211 (1979) (explaining that the “business of insurance” is not coextensive with the “business of insurers”).
1
The commonsense enquiry focuses on “primary elements of an insurance contract^ which] are the spreading and underwriting of a policyholder’s risk.” Ibid. The Illinois statute addresses these elements by defining “health maintenance organization” by reference to the risk that it bears. See 215 Ill. Comp. Stat., ch. 125, § 1-2(9) (2000) (an HMO “provide[s] or arrange[s] for... health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers”).
Rush contends that seeing an HMO as an insurer distorts the nature of an HMO, which is, after all, a health care provider, too. This, Rush argues, should determine its characterization, with the consequence that regulation of an HMO is not insurance regulation within the meaning of ERISA.
The answer to Rush is, of course, that an HMO is both: it provides health care, and it does so as an insurer. Nothing in the saving clause requires an either-or choice between health care and insurance in deciding a preemption question, and as long as providing insurance fairly accounts for the application of state law, the saving clause may apply. There is no serious question about that here, for it would ignore the whole purpose of the HMO-style of organization to conceive of HMOs (even in the traditional sense, see n. 1, supra) without their insurance element.
“The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed.” Pegram v. Herdrich, 530 U. S. 211, 218 (2000). “The HMO thus assumes the financial risk of providing the benefits promised: if a participant never gets sick, the HMO keeps the money regardless, and if a participant becomes expensively ill, the HMO is responsible for the treatment....” Id., at 218-219. The HMO design goes beyond the simple truism that all contracts are, in some sense, insurance against future fluctuations in price, R. Posner, Economic Analysis of Law 104 (4th ed. 1992), because HMOs actually underwrite and spread risk among their participants, see, e. g., R. Shouldice, Introduction to Managed Care 450-462 (1991), a feature distinctive to insurance, see, e. g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65, 73 (1959) (underwriting of risk is an “earmark of insurance as it has commonly been conceived of in popular understanding and usage”); Royal Drug, supra, at 214-215, n. 12 (“[U]nless there is some element of spreading risk more widely, there is no underwriting of risk”).
So Congress has understood from the start, when the phrase “Health Maintenance Organization” was established and defined in the HMO Act of 1973. The Act was intended to encourage the development of HMOs as a new form of health care delivery system, see S. Rep. No. 93-129, pp. 7-9 (1973), and when Congress set the standards that the new health delivery organizations would have to meet to get certain federal benefits, the terms included requirements that the organizations bear and manage risk. See, e. g., Health Maintenance Organization Act of 1973, § 1301(c), 87 Stat. 916, as amended, 42 U. S. C. § 300e(c); S. Rep. No. 93-129, at 14 (explaining that HMOs necessarily bear some of the risk of providing service, and requiring that a qualifying HMO “as-sum[e] direct financial responsibility, without benefit of reinsurance, for care... in excess of the first five thousand dollars per enrollee per year”). The Senate Committee Report explained that federally qualified HMOs would be required to provide “a basic package of benefits, consistent with existing health insurance patterns,” id., at 10, and the very text of the Act assumed that state insurance laws would apply to HMOs; it provided that to the extent state insurance capitalization and reserve requirements were too stringent to permit the formation of HMOs, “qualified” HMOs would be exempt from such limiting regulation. See § 1311, 42 U. S. C. §300e-10. This congressional understanding that it was promoting a novel form of insurance was made explicit in the Senate Report’s reference to the practices of “health insurers to charge premium rates based upon the actual claims experience of a particular group of subscribers,” thus “raising costs and diminishing the availability of health insurance for those suffering from costly illnesses,” S. Rep. No. 93-129, at 29-30. The federal Act responded to this insurance practice by requiring qualifying HMOs to adopt uniform capitation rates, see § 1301(b), 42 U. S. C. § 300e(b), and it was because of that mandate “pos[ing] substantial competitive problems to newly emerging HMOs,” S. Rep. No. 93-129, at 30, that Congress authorized funding subsidies, see §1304, 42 U. S. C. § 300e-4. The Senate explanation left no doubt that it viewed an HMO as an insurer; the subsidy was justified because “the same stringent requirements do not apply to other indemnity or service benefits insurance plans.” 5. Rep. No. 93-129, at 30. In other words, one year before it passed ERISA, Congress itself defined HMOs in part by reference to risk, set minimum standards for managing the risk, showed awareness that States regulated HMOs as insurers, and compared HMOs to “indemnity or service benefits insurance plans.”
This conception has not changed in the intervening years. Since passage of the federal Act, States have been adopting their own HMO enabling Acts, and today, at least 40 of them, including Illinois, regulate HMOs primarily through the States’ insurance departments, see Aspen Health Law and Compliance Center, Managed Care Law Manual 31-32 (Supp. 6, Nov. 1997), although they may be treated differently from traditional insurers, owing to their additional role as health care providers, see, e. g., Alaska Ins. Code § 21.86.010 (2000) (health department reviews HMO before insurance commissioner grants a certificate of authority); Ohio Rev. Code Ann. § 1742.21 (West 1994) (health department may inspect HMO). Finally, this view shared by Congress and the States has passed into common understanding. HMOs (broadly defined) have “grown explosively in the past decade and [are] now the dominant form of health plan coverage for privately insured individuals.” Gold & Hurley, The Role of Managed Care “Products” in Managed Care “Plans,” in Contemporary Managed Care 47 (M. Gold ed. 1998). While the original form of the HMO was a single corporation employing its own physicians, the 1980’s saw a variety of other types of structures develop even as traditional insurers altered their own plans by adopting HMO-like cost-control measures. See Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 83 (Spring 1993). The dominant feature is the combination of insurer and provider, see Gold & Hurley, supra, at 47, and “an observer may be hard pressed to uncover the differences among products that bill themselves as HMOs, [preferred provider organizations], or managed care overlays to health insurance,” Managed Care Law Manual, supra, at 1. Thus, virtually all commentators on the American health care system describe HMOs as a combination of insurer and provider, and observe that in recent years, traditional “indemnity” insurance has fallen out of favor. See, e. g., Weiner & de Lissovoy, supra, at 77 (“A common characteristic of the new managed care plans was the degree to which the roles of insurer and provider became integrated”); Gold, Understanding the Roots: Health Maintenance Organizations in Historical Context, in Contemporary Managed Care, supra, at 7,8,13; Managed Care Law Manual, supra, at 1; R. Rosenblatt, S. Law, & S. Rosenbaum, Law and the American Health Care System 552 (1997); Shouldice, Introduction to Managed Care, at 13, 20. Rush cannot checkmate common sense by trying to submerge HMOs’ insurance features beneath an exclusive characterization of HMOs as providers of health care.
2
On a second tack, Rush and its amici dispute that § 4-10 is aimed specifically at the insurance industry. They say the law sweeps too broadly with definitions
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Answer:
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songer_dissent
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Howard B. PASHMAN, Plaintiff-Appellant, v. CHEMTEX, INC., Defendant-Appellee.
No. 1265, Docket 87-7240.
United States Court of Appeals, Second Circuit.
Argued June 18, 1987.
Decided July 17, 1987.
Philip Esterman, New York City (Gideon J. Karlick, Esterman & Esterman, New York City, of counsel), for plaintiff-appellant.
Wayne A. Cross, New York City (Karen J. Pordum, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for defendant-appellee.
Before OAKES, MESKILL, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
This appeal from a grant of summary judgment against plaintiff Howard Pash-man requires us to assess the meaning of “pretax profits”, as used in Pashman’s employment agreement with defendant Chem-tex, Inc., 664 F.Supp. 701. This agreement called for Pashman to receive a “participation of ten [10] percent of the pretax profits on all sales made by” him. Because the meaning of this contract is clear, and as applied to the sale at issue entitled Pash-man to no more, and perhaps less, than he has already received, we agree with the district court that Pashman raises no “genuine issue of material fact”, Fed.R.Civ.P. 56, and therefore affirm.
BACKGROUND
Much of the factual background of this case is undisputed. In 1977 Pashman went to work for Chemtex as a salesman of paint plants. His compensation was established by a clause in his employment contract that provided:
Your compensation for these services will be a participation of ten [10] percent of the pretax profits on all sales made by you. A draw against this participation in the amount of $3,500 per month will be paid to you monthly. Participation will be paid, net of draws, on the basis of 50% payable on contract effectuation and 50% payable on the acceptance of the plant by the customer.
Under this agreement Pashman participated in the sale of only one plant, to Egyptian businessman Adel Khalil. The plant was to be constructed in Egypt.
By the terms of the sale, Chemtex agreed to sell its “equipment, formulae, and technical services” to Khalil for $7.6 million. Khalil, Chemtex, and another party (Issa Nakleh) formed an Egyptian corporation, the Egyptian-American Paint Company, to facilitate the transaction and eventually purchase the plant from Khalil. Chemtex holds 36.67% of the equity in the company, Khalil holds 60%, and Nakleh the remaining 3.33%.
In April 1981, three years after negotiating the Egyptian sale, Pashman quit his job at Chemtex. Based on his draw-against-commission, he had received a total of $162,752 from Chemtex.
Later in 1981 the terms of the sales agreement between Chemtex and Khalil were altered. The sales price increased from $7.6 million to $10.1 million, and Chemtex formed an Austrian subsidiary, as a condition of obtaining Austrian financing, to export many of the materials and equipment to be used in the project.
In 1985, Pashman filed suit against Chemtex alleging that he should receive 10% of the $10.1 million sale price received by Chemtex, less the $162,750 he had already drawn. While his prayer for relief asked for damages of $5 million, it appears that his actual claimed damages are $847,-250.
Chemtex moved for summary judgment, submitting documents showing it had actually lost money on the transaction, approximately $722,000. Since the deal generated no profits for Chemtex, it argued that Pashman is entitled to no commission and thus that Pashman was in fact $162,750 ahead.
In response, Pashman argued that the term “profits” in his contract actually meant “gross revenues”, and that Chem-tex’s accounting — which deducted costs from total revenues — was therefore inaccurate, creating an issue of fact as to actual profits.
Judge Walker concluded that the term “pretax profits” was clear on its face, saying that “as a general rule, a court should not interpret the word 'profits’ as synono-mous with ‘revenues,’ but instead read the term ‘profits’ as referring to ‘revenues minus costs.’ * * * Plaintiff has provided no evidence to show that a different meaning was intended when the parties used the term ‘pretax profits’ in plaintiffs employment contract.” Pashman v. Chemtex, Inc., 664 F.Supp. 701, 704 (S.D.N.Y.1987). Pashman now appeals.
DISCUSSION
It is plain that the district court was correct in stating the general rule that profits are not equal to revenues. Indeed, we would have thought that no citation was necessary for the proposition. If citation is needed, the cases mentioned by the district court, Catalano v. J.C. MacElroy Co., 13 A.D.2d 914, 215 N.Y.S.2d 873 (1st Dep’t 1961), and Martin v. City of New York, 264 A.D. 234, 35 N.Y.S.2d 182 (1st Dep’t 1942), provide sufficient support. Perhaps the first rule of accounting is that the black ink of profit is not entered into the ledger until expenses are deducted from gross revenues.
Chemtex’s gross revenues on the Khalil sale are agreed by the parties to be $10.1 million. Thus, the only dispute centers on how much Chemtex was entitled to deduct as expenses in calculating pretax profits.
We begin by noting what is not at issue on this appeal. Since Pashman did not below challenge the propriety of each individual cost deducted by Chemtex, he cannot seek to create an issue of fact on appeal by claiming that this or that expense was not proved by Chemtex. See Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (per curiam); 6 Moore’s Federal Practice 11 56.27, at 56-1557 (2d ed. 1985) (“An appellant may not, as a general rule, overturn a summary judgment by raising in the appellate court an issue of fact that was not plainly disclosed to the trial court.”). Pash-man’s vague challenges below about the “audit trail” submitted by Chemtex in justification of its claimed expenses did not suffice to raise a genuine issue of fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968-69 (2d Cir.1983).
Pashman must therefore stand or fall on his claim that each and every one of the “costs of sale” claimed by Chemtex is invalid simply by reason of Chemtex’s purchase of an equity share in the joint venture with Khalil. This step, according to Pashman, served to make Chemtex its own “customer”—in effect, the purchaser as well as the seller of the plant—and magically transformed the costs into “capital investments”, leaving the entirety of the gross revenues, $10.1 million, as “profits”. This is the issue of fact Pashman articulates in his brief on appeal as precluding summary judgment.
We disagree. This means of financing the paint plant, far from making Chemtex the purchaser of the plant, instead was merely a means of bringing about the sale. It is undisputed that purchasing the equity share in the project was a necessary expense for Chemtex to close the deal and obtain financing for it. It is further undisputed that Pashman was well aware of this necessity when he negotiated the deal for Chemtex. Under these circumstances, it borders on the frivolous for Pashman to claim that the costs Chemtex incurred on this sale were really the company’s “capital expenses”.
Indeed, under the circumstances of this transaction, the $1.9 million Chemtex spent toward purchasing its share in the paint company was itself a cost of the sale. While this is true only to the extent that the cost ($1.9 million) exceeds the value of what Chemtex received for it (the equity share in the project), Pashman does not dispute the statement of John M. Ryzewic, a Vice-President of Chemtex, in his affidavit that “[bjecause of the Project’s massive delay and cost overruns, the volatile nature of Egypt and Egypt’s foreign exchange problems, Chemtex currently treats its equity participation * * * as a 100 percent selling expense.” In other words, the value of Chemtex’s equity share is zero.
In relying solely on the form of and label attached to the transaction, Pashman fails to raise any issue of fact. The mere fact of a purchase of equity will not blind us to the true nature of the underlying transaction; Chemtex sold a paint plant to Khalil, and incurred certain expenses in doing so-including having to purchase equity in the paint company. Pashman has not produced any evidence that the equity expenditure's usefulness extended beyond facilitating the Egyptian plant sale. Moreover, Pashman has not intelligibly argued that the purchase of equity in this case altered the character of other project expenses to make them "capital expenditures".
Pashman has thus not shown that Chem-tex incorrectly calculated its net loss on the transaction. As of the date of the motion for summary judgment, Chemtex had lost some $722,000 on the deal, meaning that Pashman is entitled to no commission. Indeed, since he has already drawn $162,750 against his commission, he would not be entitled to further compensation until net profits pass $1.6 million. Thus, even if the $1.9 million in equity is not deducted from Chemtex’s revenues, there was still no issue of fact raised, since it would bring Chemtex into the black on the transaction only to the extent of $1.2 million. In fact, since Pashman is entitled to only half his commission until the project is actually completed, he would be ineligible for any further compensation (beyond the $160,000 he has already received) until profits exceed $3.2 million (when the 5% to which he is thus far entitled would be more than $160,000).
In short, on any conceivable construction of the facts, Pashman is not entitled to any further compensation for the Egyptian sale. In order to succeed he would have to be able to show that costs are not costs, that a plant that is not now and likely never will be completed is complete, and that a necessary expense of completing a sale is in reality a “capital expenditure”. We decline to subject defendant and the judicial system to the burden of such a futile quest.
Affirmed. Chemtex’s request for sanctions is denied.
Question: What is the number of judges who dissented from the majority?
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.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, Appellant, v. Sarah Estelle JACKSON, formerly Sarah Estelle Farris, Appellee.
No. 16275.
United States Court of Appeals Fifth Circuit.
April 26, 1957.
Rehearing Denied June 14, 1957.
Wm. M. Howell, Charles Cook Howell, Jacksonville, Fla., Howell & Kirby, Jacksonvill Fla., of counsel> for appellant,
Jack F. Wayman, Jacksonville, Fla., for appellee.
Before TUTTLE, JONES and! BROWN, Circuit Judges.
JONES, Circuit Judge.
The appellant, Woodmen of the World Life Insurance Society, is a fraternal benefit society. It issues life insurance contracts which it calls certificates rather than policies, for premiums which it calls payments. Roland M. Farris was issued a certificate of insurance in the amount of $3,000 by the Society in 1945. On August 4, 1954, Virgil P. Miller, District Manager of the Society, called at the Farris home and talked about an educa- ,. , . ,¿Y tional insurance certificate lor the young son of Farris and his wife. This conversation being concluded, Miller discussed with Farris the need of the latter for additional insurance. An application was signed and a Preferred Risk Whole y-< i • r* i / L, • "u Life Certificate (which is substantially the same as an ordinary life policy, issued by a life insurance company) for .$2,000, with a twenty-year term benefit rider in the amount of $3,000 attached, was later issued and delivered to Farris. Farris died on December 23, 1954, of heart failure. Farris had a rheumatic heart disease dating back at least as far as November 1, 1948. The Society de-dined to make payment of the amount of the Certificate and tendered the amount of the payments which Farris had made. The tender was refused. His widow, Sarah Estelle Farris brought suit on the - Certificate and recovered judgment for $5,000 on the Certificate, $1,000 attorneys’ fees, interest and costs. The Society has appealed. The plaintiff married while the suit was pending and she is before us as the appellee, Sarah Estelle Jackson.
, .. . . , The testimony was m sharp conflict , , , , , ,, as to what was said and done when the , , application for insurance was taken. Miller, the District Manager of the Society, testified that at the time of his meeting with Mr. and Mrs. Farris he had with him the form that was used in applying for insurance when no medical examination was had. Miller, so he testi-tied, asked Farris the questions as they appeared on the form, and the answers of Farris were written down by Miller. The form shows the question, “Have you, within the past ten years, had any mental or bodily disease or infirmity, or have you within that period of time, consulted, bcen attended or examined by a physifaf? If state wbicb> wben, giving *uil Particulars and name of physician, ^rris as noted by Miller, was N°- The form contained the question Are y°u now m sood health to the oest of y°ur k™^edf and beliffj If,not’ ^ve cause _ Mifier recorded Farris an- ” as bemS .Jes The form con-tamed a request that the applicant Give „ , , name and address of your personal phy- “ ■ Fa(rJls JSP™Se’ *^5“ by JÜ1Jas None ■ Jbe application containfd tbe ^presentation that I have ffd each of fo/egoing questions and the answers thereto, and represent that _ . . ^ „ fch °Jsald Jfu11’ complete and true whether written by my own hand or The a^wers to the questions quoted wefe untraf; JlUer sald Jat F“™ sJJed “ atlon J blank °n Yhlcb Miller, after returning to his office, typed m tbe answers as given to lum by Far- ™ and sJntQthe application to the home office of the Society in 0maha‘
The testimony of the widow of Farris, ^be beneficiary named in the certificate, was mucb different from that given by Miller- Her stOTy was tbat Miller save Farris the card of the doctor who was the examining physician for the Society. Farris stated that he had a rheumatic heart condition for which he had been treated some years before but he then felt fme. Miller stated he would put it through without a medical examination.
In addition to the recital that the applicant had read the questions and an- ,. ,. , . . ,, „ , swers, the application contained the fol- . . lowing provision:
_ ”1 have read each of the forego3n£ Questions and the answers there-3'°> and represent tbat each of said answers is full, complete and true, whether written by my own hand or no3:’
“All statements purporting to be made by the applicant shall be deemed representations and not warranties.
“I further agree that no statement or information given by or to any person soliciting or taking this application, or by or to any other person, nor any knowledge possessed by any such person, shall be binding on this Society or in any manner affect its liability unless such statement or information be presented in writing to the Medical Director of said Society at the Home Office prior to the issu- . ance of said benefit certificate, and agree that there shall be no liability on the part of the Society for the payment of benefits unless the applicant shall have made at least one monthly payment to the Society for the benefit applied for, and unless this application shall have been approved by the Medical Director of the Society.
^ The certificate contained, on the outer-fold, this notice:
important
“No Camp or officer thereof nor any employee or representative of this Society has authority to waive any of the conditions of this benefit certificate or of the Constitution, Laws and By-Laws of the Society.”
The certificate was issued “in consideration of the application therefor, includ,ing the statement of insurability.” A photostat copy of the application was attached to and made a part of the certificate. In Section 127 of the Society’s Constitution and Laws it is provided:
“Sec. 127. (a) No employee, state manager, field man or agent of the Society or the Sovereign Camp, Head Camp or of any Camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this Constitution or these Laws, nor shall any custom or course of dealing on the.part of any Financial Secretary or of any Camp or any number of Camps— with or without the knowledge of any officer of the Society — have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and sub-jeet to the Constitution and Laws, then in force or thereafter enacted, nor shall the knowledge or act of any employee of this Society constitute a waiver of the provisions of these laws by the Society or an es-toppel of this Society,
«(b) The Articles of Incorpora-tíon> the Constitution, Laws and ByLaws of the Society> the application and medieal examinatioil) or decIaration of insurability, if accepted in lieu of medical examination, signed by tbe applicant> and all amend_ ments to each thereof) the benefit certificate, and any riders attached thereto or endorsements made thereon by the President or Secretary of the Society shall constitute the contract between the Society and the member.”
The widow beneficiary of Farris brought suit in the Florida court and the Society removed to the Federal district court because of diversity. The plaintiff> in ber complaint alleged the issuance of the certificate, the death of the insured and the denial of liability by the Society. The Society answered asserting that the certificate was not in effect because of false statements and representations of the insured in his application. To this the plaintiff filed a reply asserting that the Society had waived and was estopped to assert the defense set forth in its answer because, it was alleged, full disclosures were made by the insured to Miller, the Society’s authorized agent, and no false answers were given nor were any misrepresentations made, that premiums were accepted with knowledge of the insured’s heart condition. At this juncture the Society moved, under Rule 15 Fed.Rules Civ. Proc., 28 U.S.C.A., to file an additional defense, inconsistent with its original defense as is permitted by Rule 8 Fed. Rules Civ.Proe. Leave of court being given, the additional defense was filed and by it the Society asserted that Far-ris told Miller of the rheumatic heart condition and Miller processed the application without medical examination, all of which was fraud, collusion and concealment on the part of the insured barring recovery. When all of the evidence had been presented the court declined to submit the Society's additional defense to the jury.
The verdict of the jury having re~ solved the fact issues against the Society, it urges that reversal is required on three grounds; first, that the knowledge of the Society's agent Miller of the heart condition and medical history of the in~ sured Farris is not attributable to the Society; second, that Miller and Farris perpetrated a fraud on the Society; and third, that attorneys' fees are not recoverable in Florida against a fraternal benefit society.
If the appellant were an insurance company we would have no doubt but that an affirmance would be required by the pronouncements of the Supreme Court of Florida. It has said:
"The law in this state is that when the agent of an insurance company fills in an application for insurance, his act in doing so is the act of the company. If the applicant fully states the facts to the agent at the time and the agent writes the answers incorrectly or contrary to the facts stated by the applicant, the company is estopped from making a defense in an action on the policy by reason of the false answer." Stix v. Continental Assur. Co., 147 Fla. 783, 3 So.2d 703, 704.
In the Stix case the court followed Massachusetts Bonding & Insurance Co. v. Williams, 123 Fla. 560, 167 So. 12, and distinguished Mutual Life Insurance Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202. The rule was again announced in this language:
"In this jurisdiction it is well settled that if the insured gives truthful answers to questions contained in the application for life insurance, and the company's agent, either through fraud or mistake, inserts answers in the application which do not accord with the information given, the insurer cannot insist on breach of warranty, but is estopped from making such defense." Colum-bian National Life Ins. Co. v. Lani-gan, 154 Fla. 760, 19 So.2d 67, 70.
In a later case, Gulf Life insurance Co~ v. Ferguson, Fla., 59 So.2d 371, procedural questions controlled the decision.
The appellant contends that as it is a fraternal benefit society the rule announced by the Stix case and those following it does not apply. By statute it is provided in Florida
"Except as provided in this chapter, [Fia.Stat.Ann. ch. 637], such societies shall be governed by this chapter, and shall be exempt from all provisions of the insurance laws of this state, not only in governmental relations with the state, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein." Fla.Stat.Ann. § 637.11.
The Society's Constitution and Laws, quoted supra, deny to its employees, state managers, field men and agents any power to waive any of the conditions upon which beneficiary certificates are issued. So also it is provided that the Articles of Incorporation, Constitution, Laws and By-Laws, the application and medical examination, or declaration of insurability, if accepted in lieu of medical examination, and the certificate shall constitute the contract. The statute authorizes such provisions. The statute declares:
"The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all the beneficiaries of members.” Fla.Stat.Ann. § 637.30.
The statute is valid. Grand Lodge Knights of Pythias, etc. v. Moore, 120 Fla. 761, 163 So. 108; Grand Lodge, Knights of Pythias of North America v. McKee, 5 Cir., 1938, 95 F.2d 474.
But when we reach the conclu.sion that Miller, as the Society’s agent, had no right to waive any provision of the Society’s Constitution and Laws, we have not answered the question which is posed by the record. Farris signed a blank form. He gave, or at least the verdict of the jury requires us to assume that he gave Miller the correct answers. It was not shown that he knew or had reason to believe that false answers were to be written in over his signature. The knowledge of Miller, the agent, of the true facts and of the falsity of the answers, is imputed to his principal, the Society. Columbian National Life Ins. Co. v. Lanigan, supra. The Medical Director of the Society testified that all applications were delivered to and exam-med by him, and if he found the applicant to be an acceptable insurance risk he returned the application to the Secretary of the Society for the issuance of a certificate. It is the Society which, having the imputed knowledge of the true facts and of the falsity of the application, waives the requirements and assumes the obligations of the insurance contract. It is the Society which is es-topped to assert a defense by reason of the false answers. Stix v. Continental Assurance Co., supra. The district court properly excluded the fraud issue from consideration of the jury.
The jury’s verdict and the court’s judgment included an attorneys’ fee of $1,000. The appellant takes the position that no attorneys’ fees are allowable against a fraternal benefit society, and so contending it points again to the statute which exempts such societies from all provisions of the insurance laws except as provided in Chapter 637, and that no law thereafter enacted shall apply to them unless they be expressly named therein. The general statutory law of Florida dealing with insurance contains a provision that:
“Upon the rendition of a judgment or decree by any of the courts of this state against any insurer in favor of the beneficiary under any policy or contract of insurance ex-futed h? such “surer, there shall . °r decreed against such insurer, and in favor of the beneficiaiy named in said policy or contract ® insurance, a reasonable ^ sum as ^ees or compensation for his attorne^s. or solicitors prosecuting the SU1^ m which the recovery is had.
“The amount to be recovered for fees and compensation for attorneys and solicitors against such insurer shall be ascertained and fixed by the court in chancery cases or a jury in common law actions, from testimony adduced for that purpose, and shall be included in the judgment or decree rendered in such cases.” Fla. Stat.Ann. § 625.08.
Chapter 637 had itg origin in a compre_ hensive act pagsed in 191B Lawg of Florida, Actg 1915, ch. 6970. At that time attorneys> feeg might be awarded againgt «any Hfe or fire ingurance com_ pany». Lawg of Florida¡ Actg of lg93 Cb. 4173. In 1917 thig wag amended so ag to permit recovery of attorneys’ fees againgt »any pers company; eorpora. tíon> co-partnership, association, fraternal benefit societieg or others » Laws of Fiorida> Acts of 1917 ch. 7295. In tbe statutory revision of 1941 the quoted wordg inaerted in 1917 were deleted and for them wag substituted “any insurer”, Laws of Florida, Acts of 1941, Ch. 20719. “Insurer” is defined as “any person, firm, partnership, association, corporation or other organization or group who issue, or enter into, contracts or policies of insuranee, indemnity or surety with another who is called the insured.” Fla.Stat. Ann. § 625.01(6). This definition, adopted by the 1941 compilation, does not ex-pressly designate fraternal benefit societies and, it being subsequent to the 1915 enactment, they would be excluded from it. The 1915 statutes, as amended in the interim, were incorporated in the 1941 compilation. In such a case we look behind the revision to ascertain which act of the legislature is expressive of its intent. See Lykes Bros. v. Bigby, 155 Fla. 580, 21 So.2d 37. We are of the opinion that the statutory provision authorizing recovery of attorneys’ fees does not apply to actions against fraternal benefit societies. In the absence of statutory authority or a contract provision attorneys fees cannot be recovered, 46 C.J.S. Insurance § 1405b, p. 712.
As to that part of the judgment for the amount of the certificate with interest thereon and costs, it is affirmed; as to that part providing for attorneys’ fees it is reversed. One-sixth of the costs of the appeal shall be taxed to the appellee and the remainder to the appellant.
Affirmed in part and reversed in part,
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_3_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, Charles M. CARBERRY, Esq. and Frederick B. Lacey, Esq., Appellees, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO; The Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty The Horse; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro, also known as Tom Mix; Christopher Furnari, Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as Junior, also known as The Snake; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messina; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey O’Brien, also known as Joe Doves, also known as Joey Aiuppa; John Phillip Cerone, also known as Jackie the Lackie, also known as Jackie Cerone; Joseph Lombardo, also known as Joey the Clown; Angelo LaPietra, also known as The Nutcracker; Frank Balistrieri, also known as Mr. B; Carl Angelo Deluna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Jackie Presser, General President; Weldon Mathis, General SecretaryTreasurer; Joseph Trerotola, also known as Joey T., First Vice President; Robert Holmes, Sr., Second Vice President; William J. McCarthy, Third Vice President; Joseph W. Morgan, Fourth Vice President; Edward M. Lawson, Fifth Vice President; Arnold Weinmeister, Sixth Vice President; John H. Cleveland, Seventh Vice President; Maurice R. Schurr, Eighth Vice President; Donald Peters, Ninth Vice President; Walter J. Shea, Tenth Vice President; Harold Friedman, Eleventh Vice President; Jack D. Cox, Twelfth Vice President; Don L. West, Thirteenth Vice President; Michael J. Riley, Fourteenth Vice President; Theodore Cozza, Fifteenth Vice President; Daniel Ligurotis, Sixteenth Vice President; and Salvatore Provenzano, also known as Sammy Pro, Former Vice President, Defendants, Robert C. Sansone, Appellant.
No. 262, Docket 92-6140.
United States Court of Appeals, Second Circuit.
Argued Oct. 2, 1992.
Decided Dec. 22, 1992.
Cary Hammond, St. Louis, MO (Diekem-per, Hammond, Shinners, Turcotte and Lar-rew, P.C., St. Louis, MO, of counsel), for appellant.
Steven C. Bennett, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Gabriel W. Gorenstein, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee.
Charles M. Carberry, New York City, for appellee.
John F. Nangle Jr., Nangle, Cooper, Nie-man & Bitting, P.C., St. Louis, MO, Franklin K. Moss, Spivak, Lipton, Watanabe, Spi-vak & Moss, New York City, submitted an amici curiae brief for Various International, Intermediate, and Local Labor Organizations.
David G. Millar, Michael Bobroff, St. Louis, MO, Franklin K. Moss, Spivak, Lipton, Watanabe, Spivak & Moss, New York City, submitted an amici curiae brief for Associated General Contractors of St. Louis and Site Improvement Ass’n.
Jeffrey E. Hartnett, Barkley, Goffstein, Ballato & Lanse, Mark W. Weisman, Suel-thaus & Kaplan, P.C., Robert B. Vining, Sr., Vining & Meyer, P.C., St. Louis, MO, Franklin K. Moss, Spivak, Lipton, Watan-abe, Spivak & Moss, New York City, submitted an amicus curiae brief for the Bar Ass’n of Metropolitan St. Louis.
Before: MÉSKILL, Chief Judge, OAKES and McLAUGHLIN, Circuit Judges.
MeLAUGHLIN, Circuit Judge:
Robert C. Sansone (“Sansone”) is the former President of International Brotherhood of Teamsters (“IBT”) Local 682, headquartered in St. Louis, Missouri. Besides serving as President of Local 682, Sansone was also the President of Joint Council 13, President of the Missouri-Kansas Conference of Teamsters, and an International Representative. He asks us to review an order of the United States District Court for the Southern District of New York (David N. Edelstein, Judge), upholding disciplinary sanctions imposed on him. See United States v. International Bhd. of Teamsters, 792 F.Supp. 1346 (S.D.N.Y.1992) (“Sansone I”). For the reasons set forth below, we affirm the order of the district court.
BACKGROUND
The volume of our decisions arising from the Teamsters Litigation has already been chronicled. See United States v. International Bhd. of Teamsters (Parise), 970 F.2d 1132, 1134 (2d Cir.1992) (“The case law within our circuit swells with decisions emanating from the Teamsters Litigation.”). “Our earlier decisions exhaustively discuss the genesis of the Consent Decree settling the government’s charges against the IBT and its officials.” Id.; see United States v. International Bhd. of Teamsters, 931 F.2d 177, 180-81 (2d Cir.1991); United States v. International Bhd. of Teamsters (Friedman & Hughes), 905 F.2d 610, 612-13 (2d Cir.1990). We recount, therefore, only those provisions of the Consent Decree necessary to understand today’s dispute.
The Consent Decree provides for the appointment of an Investigations Officer and an Independent Administrator. The Investigations Officer, an appellee here, investigates and brings disciplinary charges against allegedly corrupt IBT members. The Independent Administrator then conducts hearings on the charges, and determines whether sanctions are warranted. The Consent Decree provides that the decisions of the Independent Administrator are reviewed by the district court.
On September 27, 1991, the Investigations Officer served a charge on Sansone accusing him of bringing reproach upon the IBT, in violation of the IBT Constitution, by “willfully disregarding his] fiduciary duty to investigate and to act with respect to allegations and evidence that Anthony Parrino, [the former] Vice President of Local 682, was a member of La Cosa Nostra [“LCN”] and associated with members of La Cosa Nostra.” The burden of the charge was that Sansone’s failure to investigate and act constituted a breach of his fiduciary duty to the IBT because Parrino had already been identified as a member of organized crime by the media and other sources available to Sansone.
A hearing on the charge against Sansone was conducted by the Independent Administrator in St. Louis on November 20 and 21, 1991. At that hearing, evidence was introduced regarding Anthony Parrino’s LCN membership, Sansone’s knowledge of Parrino’s criminal associations, and San-sone’s failure to respond adequately to those allegations.
A. PARRINO’S CONNECTIONS TO ORGANIZED CRIME
1. Media Coverage
The Investigations Officer introduced a collection of newspaper articles linking Par-rino to organized crime. This evidence showed that as early as 1980, reports began to appear in St. Louis newspapers linking Parrino with the St. Louis crime family of boss Anthony Giordano, who died in late 1980.
On December 28, 1980, a St. Louis Post Dispatch (the “Dispatch ”) article reported that Parrino had met with St. Louis mafia leaders ten days before Giordano’s death to discuss the selection of a successor. The article stated that Parrino “often is seen in the company of top hoodlums.”
An April 26, 1981 article in the same newspaper reported that Parrino was being groomed for leadership by John J. Vitale, reputedly a powerful member of the Gior-dano family. The article explicitly identified Parrino as a Local 682 official, and reported that “Parrino is seen... frequently in Vitale’s company and that Parri-no does many of Vitale’s jobs for him.”
On June 7, 1982, the Dispatch, referring to its earlier coverage, printed that: “[i]t was then reported that Anthony Parrino, an officer of Teamsters’ Local 682, was in line for the role of boss. But this apparently also has not come about.” On June 27, 1982, the paper again reported that Parrino “did not want” an LCN leadership position. On November 5, 1982, a front-page article in the Dispatch identified Par-rino as one of the “made guys” targeted by the FBI in an investigation of the St. Louis crime family and “a high-ranking member of the St. Louis organized crime family of the late Anthony Giordano.”
The media coverage waned until February 27, 1986, when a Dispatch article on the gambling prosecution of Matthew Tru-piano, who had assumed leadership in the Giordano family, identified Parrino as a “Vice President of Teamster Local 682 and a longtime associate of organized crime figures.” Then, an April 3, 1986, front-page article in the Dispatch on the Trupi-ano prosecution, trumpeted a three-hour discussion of “organized crime in St. Louis” among Parrino, Trupiano, and Vin-cenzo “Jimmy” Giammanco, that the government had taped surreptitiously. The article described Parrino as an official of Local 682, and also noted the court-filing of a pre-sentencing memorandum describing the taped conversation. The next day, April 4, 1986, another article appeared in the Dispatch that mentioned Parrino by name in discussing the same memorandum. On July 11, 1986, an article in the St. Louis Globe Democrat quoted from another surreptitiously tape-recorded conversation played at the Trupiano trial; the conversation identified Parrino as the “consigliere,” or advisor, of the Giordano crime family.
On February 19, 1988, the Dispatch published an article alleging that three St. Louis-area labor unions, including Local 682, had contracts with an employer that paid less than union scale wages to union members. The article further reported that all three of the unions were, to varying degrees, controlled by organized crime.
Finally galvanized, Sansone wrote to the Dispatch reporter responsible for the February 19 story, denying the charges vehemently. He demanded to know what facts the article was based on, and stated that he was investigating the situation and would remedy any failure to pay members union-scale wages. The Dispatch subsequently printed another article describing Sansone as “incensed” by the allegation that Local 682 was controlled by organized crime. In large part, the article consisted of verbatim excerpts from Sansone’s letter.
2. Other Evidence
The Investigations Officer also introduced the sworn deposition testimony of Sansone himself, taken on March 20, 1991, in which Sansone testified that in 1989 he had received copies of statements from former IBT President Jackie Presser’s FBI informant file. These statements included allegations that Parrino was “connected” to the St. Louis family, and that Sansone answered up to Parrino. In his deposition testimony, Sansone also stated that while he did discuss the Parrino matter at union executive board meetings, he never discussed it with Local 682’s general membership. The Investigations Officer called former Local 682 member James A. Lysell to rebut that assertion. Lysell testified that, contrary to Sansone’s testimony, the members had indeed asked Sansone about Parri-no’s crime ties at a general membership meeting in 1981 or 1982 and that Sansone told the membership that he had no control over Parrino’s private life.
B. SANSONE’S RESPONSE TO THE ALLEGATIONS
At the hearing, Sansone sought to demonstrate that he had responded appropriately to the allegations against Parrino. Sansone testified. And he called four witnesses: (1) Clyde Craig, Local 682’s outside counsel; (2) Gerry Miller, an attorney retained by Sansone in 1989; (3) Benjamin Bond, Local 682’s Secretary-Treasurer at the time of the hearing; and (4) Daniel Flaherty, a former Secret Service agent.
Craig testified that he advised Sansone in 1981 or 1982, and again in 1986, that the newspaper reports linking. Parrino to organized crime were unreliable. Sansone testified that he responded to the reports by asking Parrino in 1981 or 1982, and again in 1986, whether he was involved with the unsavory characters mentioned in the arti-cíes; and that Parrino responded by denying anything more than a social relationship with the reputed mobsters. Sansone further testified that on neither occasion did he pursue the matter any further with Parrino and cautioned him to be careful about the people with whom he associated.
Sansone and Craig testified that, twice in 1986, Sansone met with Local 682’s executive board to discuss the allegations against Parrino. Sansone responded to the Lysell testimony by directly contradicting his own deposition testimony, and now admitting that the issue had been discussed at membership meetings. He disputed Ly-sell’s testimony only by contending that he, Sansone, had voluntarily raised the Parrino matter. Sansone admitted receiving the Presser allegations in 1989, but denied that he “answered up” to Parrino, and stated that Craig had advised him that nothing could be done about the allegations. San-sone also testified that he thought the reference to Parrino in the Presser material was “ridiculous.”
Sansone also offered evidence that in November 1989, after the entry of the Consent Decree and on Craig’s advice, he retained Miller, an attorney experienced in IBT matters, to analyze the issue and furnish an opinion. Sansone contends that Miller was retained to give Sansone a “definite answer” concerning his responsibilities regarding the Parrino allegations and to give him “definite direction about what I should do about Tony Parrino."
The Investigations Officer, on the other hand, counters that Miller was retained “to determine the odds that Sansone would come to the attention of court officers and be charged for continuing to harbor Parri-no on the Local’s executive board.” As support for his argument that Sansone did not want Miller to investigate the allegations against Parrino, the Investigations Officer noted that Miller was given only two of the numerous newspaper articles that had been written about Parrino. Because those articles were from 1981 and 1982, they contained no reference to the taped conversations and the pre-sentencing memorandum that appeared in the 1986 articles.
The Independent Administrator concluded that: “[i]t is not clear what exactly Sansone expected Miller to analyze,” but found that the opinion letter Miller ultimately issued on January 7, 1990, “focus[ed] on the issue of Sansone’s liability for ‘knowingly associating’ with Parrino, given Parrino’s ties to organized crime.” The opinion letter was ambivalent on this issue, stating that: “[W]e are in no position to provide a legal opinion that Local 682 officials can safely continue on-the-job associations with the local union officer in question.”
On January 16, 1990, nine days after Miller had issued his opinion letter to San-sone, the two men met with Parrino to discuss whether Parrino should resign. Parrino insisted that he had not done anything wrong, and did not believe that he should have to resign. Sansone then met privately with Parrino. Parrino argued that he had been loyal to Sansone and that he would not force Sansone to resign if their positions were reversed. Sansone testified that he ultimately decided to take no action against Parrino because he believed that the Miller legal opinion was too inconclusive, that the newspaper articles lacked credibility, and because firing Parrino would be unfair.
Finally, Sansone called Daniel E. Flaherty, a private investigator and former Secret Service agent. Flaherty outlined what he would have done to investigate Parrino if Sansone had retained him to do so. The testimony he gave was inconclusive, in part endorsing Sansone’s conduct, but conceding the availability of surveillance and polygraph testing, which were not used, and also acknowledging that it would have been a simple matter to procure the court memorandum that was mentioned in the April 3, 1986 Dispatch article, a memorandum that Sansone did not even attempt to retrieve.
C. THE INVESTIGATIONS OFFICER’S CHARGE AGAINST PARRINO
On March 13, 1991, Parrino was charged by the Investigations Officer with being a member of LCN while he was an officer of Local 682, and with knowingly associating with members of LCN, including Matthew Trupiano, Anthony Giordano, Vincenzo Gi-ammanco, and John Vitale. The next day, Craig informed Sansone of the charge against Parrino, advising him to “take action.” Craig, Sansone, and Parrino met on March 15. Parrino immediately resigned.
D. THE INDEPENDENT ADMINISTRATOR’S DECISION
On March 30, 1992, the Independent Administrator issued a 21-page opinion concluding that there was “just cause to show that Sansone breached his fiduciary duties to IBT members and brought reproach upon the IBT by failing to investigate and act on reports of Parrino’s involvement with the St. Louis crime family.” The Independent Administrator listed a number of investigatory steps that Sansone failed to take, stating that “[t]he point of all these suggestions is not that any one or more of them is an essential element of the proper discharge of Sansone’s duty to investigate, but rather that reasonable means of investigation were available.”
Sansone had argued that his alleged failure to investigate fully the allegations against Parrino was the result of his reliance on the advice of counsel, and that such reliance should serve as a complete defense to the charge. The Independent Administrator rejected this defense, finding that Sansone:
did not solicit, nor did he receive any advice relevant to the issue of his duty to investigate and act in response to the allegations of Parrino’s organized crime ties. Moreover, no expertise, legal or otherwise, is required to understand that a member of organized crime would not belong on the executive board of a labor union.
The Independent Administrator concluded that “[b]y his failure to act, Sansone has proven that he is not fit to serve in any officer or representative positions in the IBT or any of its” affiliates. Accordingly, he removed Sansone from all of his IBT-affiliated officer positions. He also permanently barred Sansone from: (1) ever holding any IBT officership in the future; (2) any employment with Local 682, Joint Council 13, the Missouri-Kansas Conference of Teamsters, or the International; and (3) any employment with any IBT-affiliated entity without prior approval of the Independent Administrator.
Sansone then sought review of the Independent Administrator’s decision in the district court. On May 15, 1992, the district court issued an order affirming the Independent Administrator’s decision in all respects. Sansone now appeals.
DISCUSSION
Sansone argues that the district court erred in affirming: (1) the Independent Administrator’s decision that Sansone willfully breached his fiduciary duty to the union; (2) the Independent Administrator’s rejection of Sansone’s advice-of-counsel defense; and (3) the penalty imposed by the Independent Administrator.
We have previously held that “[t]he district court must give ‘great deference’ to the decisions of the Independent Administrator.” Parise, 970 F.2d at 1137. (quoting Friedman & Hughes, 905 F.2d at 616-17). Consistent with that mandate, the district court reviewed the Independent Administrator’s decision to determine if it was arbitrary or capricious. Sansone I, 792 F.Supp. at 1352.
As we recently noted in Parise, “[o]ur standard of review is not so clearly defined.... [T]he Consent Decree offers no explicit guidance.” Parise, 970 F.2d at 1137 (citing United States v. International Bhd. of Teamsters (Cimino), 964 F.2d 1308 (2d Cir.1992)). In Cimino, we eschewed any attempt to extract a precise standard of appellate review from the Consent Decree, and noted that we may affirm a district court decision that is supportable under “any reasonable standard of review.” Cimino, 964 F.2d at 1311 (citing Friedman & Hughes, 905 F.2d at 616-17). Similarly, in Parise, we upheld a district court decision that “fell within the realm of reason.” 970 F.2d at 1137. Because the decision of the district court under review here lies safely within that realm, we once again leave the question of the precise standard of appellate review for another day.
Sansone’s Fiduciary Duty to Investigate
Sansone’s first argument on appeal is that the evidence did not support the Independent Administrator’s decision and that, to the contrary, it showed that he conducted an adequate investigation into the Parri-no matter. We disagree.
Every IBT “officer is a fiduciary with respect to the Union members,” and has “a duty to disclose and remedy wrongdoing by the IBT.” United States v. International Bhd. of Teamsters, 708 F.Supp. 1388, 1401 (S.D.N.Y.1989). IBT officials who have breached their fiduciary duties and violated the IBT Constitution by failing to investigate and to act upon allegations of corruption in their midst have been sanctioned by the Independent Administrator. See United States v. International Bhd. of Teamsters (Yager), 761 F.Supp. 315, 318 (S.D.N.Y.1991); United States v. International Bhd. of Teamsters (Calagna), No. 88 Civ. 4486, 1991 WL 243292 (S.D.N.Y. Nov. 8, 1991).
Sansone does not dispute that he was aware of the allegations in the media and elsewhere of Parrino’s connection to organized crime; nor does he dispute that he had a duty to investigate and act upon the allegations against Parrino. Rather, he contends that there was no “willful” and “deliberate” breach of that duty, as alleged in the charge against him, because he did take certain steps, however minimal, that could be characterized as “investigation.”
Sansone’s argument rings hollow, if only because it deprecates the “duty to act” in the context of this case. The charge against Sansone alleged that he breached his fiduciary duty and constitutional oath to the IBT by failing to investigate and act upon very specific, numerous, and continuous allegations that Anthony Parrino was significantly involved in organized crime. Prominent articles in St. Louis’s leading newspapers made specific statements about Parrino’s association with reputed LCN members, and also described explicitly the precise role that Parrino was believed to play in the organization. Indeed, Sansone readily acknowledged in his testimony at the hearing that Parrino had admitted friendships with alleged underworld operatives. Sansone was also privy to a report from no less a source than the former President of the entire Union, Jackie Presser, who opined that Parrino was associated with the LCN and that Parrino wielded great authority over Sansone.
In light of this overwhelming evidence linking Parrino to the seedy underworld elements that had leeched off the blood of the rank-and-file members of the IBT through decades of manipulation — a bloodletting that was only stanched by the entry of the Consent Decree and the safeguards it imposed — we think it is evident that the “investigation” Sansone conducted was utterly inadequate.
The Independent Administrator found that the sum total of Sansone’s response to almost a decade of allegations against Par-rino was to: (1) ask Parrino twice if the rumors were true, once after the 1981-82 wave of newspaper reports, and again after the 1986 reports; (2) discuss the matter with Local 682 lawyer Clyde Craig, who characterized the media coverage of Parri-no as unreliable; (3) solicit, after the issuance of the Consent Decree, Miller’s advice regarding Sansone’s potential personal liability arising out of his relationship with Parrino; (4) meet with Parrino in 1990 to discuss the allegations; and (5) discuss the Parrino matter within the union.
These actions, even collectively, do not represent a serious attempt to investigate or inquire into the allegations. Sansone’s discussions with Craig, by Sansone’s own account, centered on what disciplinary actions could be taken against Parrino in light of the newspaper allegations; at no time did they discuss the more obvious question of whether those allegations were true, leaving the issue of sanctions to await the outcome of a thorough investigation.
Similarly, Sansone’s retention of Miller to issue an opinion letter analyzing San-sone’s exposure based on his relationship with Parrino cannot be seriously characterized as an attempt to investigate Parrino when it is remembered that Sansone’s agents did not even furnish Miller with all the evidence they knew existed, and Miller’s research focussed almost exclusively on the extent of the government’s information regarding Parrino. That Miller was not hired to investigate Parrino’s organized crime ties was underscored by the very first paragraph of Miller’s letter to San-sone, in which Miller described his assignment as follows:
You have asked us to investigate and provide a legal opinion concerning the legal ramifications under the consent decree in USA v. IBT of on-the-job contacts with a fellow local union officer and employee that the court-appointed officers may allege to have or have had La Cosa Nostra ties.
Sansone does not seriously contend that his discussions with the Local’s executive board or membership constituted an investigation, but points to it as evidence that Parrino was not shown any favoritism, and that Sansone was fully forthcoming with his membership. Whatever the merits of that contention, it is not persuasive evidence that Sansone adequately discharged his obligation to act in response to the allegations against Parrino, particularly where Sansone’s testimony regarding his discussions with the membership was inconsistent.
The only actions that Sansone took that were remotely “investigatory” were the two occasions when he benignly questioned Parrino about the media allegations of Par-rino’s underworld activities (and immediately accepted his denials) and the 1990 meeting when Parrino again denied any wrongdoing, and after which Sansone declined to fire Parrino. Given Parrino’s obvious motivation to deny the allegations, the perfunctory nature of the sessions, and the lack of any other investigative conduct on San-sone’s part, we conclude that the Independent Administrator’s decision that Sansone breached his fiduciary duty to the Union by failing to act in response to the allegations regarding Parrino was neither arbitrary nor capricious.
In reaching this conclusion, we reject Sansone’s assertion that the minimal actions he took were sufficient to discharge his duty to investigate.. The extent of the duty to investigate and act on allegations of corruption must be measured by the magnitude of the evidence and the importance of the allegations of corruption. By that scale Sansone’s “investigation” is seriously wanting.
The Advice-of-Counsel Defense
Sansone also argues that, even if his actions might have constituted a breach of his fiduciary duty under ordinary circumstances, they did not in this case because all his decisions relating to Parrino were made in reliance upon the advice of counsel. Specifically, he claims that because he asked Craig after the 1982 and 1986 waves of media coverage what could be done to Parrino and because he hired Miller to prepare an opinion letter on the legal ramifications of the Parrino-Sansone relationship, his failure to act cannot be labelled willful.
This argument is fundamentally flawed. To the extent that Sansone’s brief, informal, and relatively vague conversations with Craig can be characterized as good faith efforts to seek legal advice, it is clear that the only matter considered during those conversations was whether disciplinary actions could be taken against Parrino on the basis of newspaper reports alone. Sansone never solicited, nor did Craig ever volunteer, any information regarding San-sone’s obligation to dig deeper into the charges. Because Sansone neither sought nor received Craig’s advice regarding a possible investigation of Parrino, any conversations he did have with Craig cannot serve as a defense to a charge that he failed to investigate.
Sansone’s reliance on his retention of Miller is unavailing, on largely the same ground. Sansone never requested, nor did Miller conduct, an investigation into Parri-no’s putative underworld connections or activities. Because the advice solicited and received from Miller, like that from Craig, did not address the charge that was brought against Sansone, the Independent Administrator properly rejected the advice-of-counsel defense as factually unsupported.
The Penalty
Sansone’s final challenge is to the penalty imposed on him. He assails it as arbitrary and capricious, not based on just cause, and a violation of due process. Although this challenge is Sansone’s most persuasive, we are, in the final analysis, constrained to reject it.
Claiming that the Independent Administrator based the penalty, at least in part, on the fact that Sansone mounted a defense to the Investigations Officer’s charge; San-sone contends that his due process rights were violated and that the penalty was not based on just cause. Specifically, he points to the following language from the Independent Administrator’s decision:
In evaluating what penalty to impose, I am not unmindful that responsible public figures in the St. Louis area, as well a Local 682 members and retirees, think highly of Sansone. Balanced against this, however, is the fact made obvious by Sansone’s defense of these charges, that he still does not accept, even in principle, the idea that he was or is obligated to investigate and act against signs of mob influence in his union.
Sansone contends that this language betrays a hostility to Sansone’s right to present a defense that is at war with elementary notions of just cause and due process.
We reject this interpretation. The quoted language does not impugn Sansone’s right to present a defense, but merely states that the nature of the defense that Sansone chose to mount indicated an alarming, continuing, and conscious failure to recognize his duty to investigate. That is a proper consideration in imposing a penalty. Cf. United States v. Perez, 904 F.2d 142, 147 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 270, 112 L.Ed.2d 226 (1990) (lack of remorse is a proper consideration in sentencing).
Sansone also asserts that the Independent Administrator’s attack on his defense in imposing punishment violated the constitutional guaranty of due process.
We reject this argument for two reasons: (1) it is based on the same distorted construction of the Independent Administrator’s decision as his just cause argument; and (2) in any case, the acts of the Independent Administrator do not constitute “state action.” United States v. International Bhd. of Teamsters (Senese), 941 F.2d 1292, 1295-96 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1161, 117 L.Ed.2d 408 (1992).
Sansone also believes that the penalty imposed was arbitrary and capricious because the Independent Administrator failed to adequately consider Sansone’s character in imposing punishment. He also contends that his sins, if any, merit a proportionately lighter penalty than that imposed in other IBT disciplinary proceedings. We have reviewed the record carefully, and, while we agree that the penalty is severe, we cannot conclude that it is arbitrary or capricious. To the extent that Sansone claims that the Independent Administrator failed to consider his character, this suggestion is rebutted by the text of the decision which permitted Sansone to retain his IBT membership in recognition “of the many favorable character submissions made on Sansone’s behalf.”
Sansone sees a lack of proportionality between the penalty imposed upon him and those meted out in other IBT disciplinary proceedings where apparently more extreme conduct resulted in less severe penalties. We would be less than candid if we did not admit that we find the apparent discrepancy troubling. The concern is aggravated because the district court failed to explicitly consider this issue in its review of the Independent Administrator’s decision.
We conclude, nevertheless, that the apparent discrepancy between the penalty imposed here and those imposed in other cases does not inexorably compel the conclusion that the Independent Administrator acted arbitrarily or capriciously. While Sansone’s penalty is admittedly drastic, and while it is true that there has been no suggestion that Sansone himself has ties to LCN, his refusal to recognize his duty to investigate union officials who are connected to organized crime indicated to the Independent Administrator that Sansone would again fail to investigate if a similar situation ever arose in the future, and Sansone were in a position of authority within the Union. As the district court concluded: “Sansone’s repeated failure to investigate the Parrino allegations demonstrates that he is unfit to occupy a position of trust within the IBT.” Sansone I, 792 F.Supp. at 1357.
We are not unmindful that this case involves the IBT and its crimson record of corruption. In an effort to maintain the institutional integrity of the Union and to dissipate a climate where union officials acquiesce in the criminal exploits of their colleagues, the Independent Administrator concluded that Sansone should be permanently barred from holding a position of authority in the union. We might not have reached the same conclusion. But we cannot say, on the record before us, that the conclusion was arbitrary or capricious.
CONCLUSION
Based on the foregoing, the order of the district court affirming the Independent Administrator’s decision is, in all respects, affirmed.
. To corroborate his testimony, Sansone called Bond, who testified that the issue of Parrino’s crime ties was routinely discussed at membership meetings "basically every time the articles surfaced or came out.” According to Bond, Sansone "would bring it to the membership first, and then they would ask questions from the floor.”
. The charges against Parrino were formally resolved by agreement on June 11, 1991. In the agreement, Parrino neither admitted nor denied guilt, but did agree that, in addition to resigning, he would not accept employment in any IBT entities ever again.
. Specifically the Independent Administrator indicated that:
Sansone could have sought assistance from the authorities; could have obtained the publicly filed Trupiano sentencing memorandum, or even the tape recording to which it refers; could have arranged a polygraph test or an in-depth interview of Parrino by a trained professional; could have hired a private investigator; or could have asked his advisors to investigate and develop the facts of the case for his review.
. As the Miller opinion letter indicated:
The crux of the matter is that our investigation clearly suggests that the Government, and therefore now the Investigations Officer, has a file on the Local 682 officer which contains, at a minimum, the materials we have attached to this memorandum. The legal question then becomes what degree of exposure, if any, exists to Local 682 and its other officers by reason of these facts.
. At the hearing, Sansone testified that following the 1982 articles he “asked Clyde, I said, 'Clyde, is there anything I can do?’ And Clyde advised me, he says, 'Bobby,' he says, 'I’ve read the articles,’ and he says, ‘there’s no concrete proof,’ he says, ‘No, not on a newspaper article,' and I didn’t do anything." Sansone also testified that after the 1986 articles, Craig “said again there was no concrete evidence other than the newspaper articles, and so no action was taken at that time.”
. The Consent Decree provides for the use of the just cause standard customarily applied in labor arbitration. Arbit
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SHIGERU FUJII v. UNITED STATES.
No. 2973.
Circuit Court of Appeals, Tenth Circuit.
March 12, 1945.
Writ of Certiorari Denied May 28, 1945.
See 65 S.Ct. 1406.
Samuel D. Menin, of Denver, Colo. (Clyde M. Watts, of Cheyenne, Wyo., on the brief), for appellant.
■Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo. (John C. Pickett, Asst. U. S. Atty., of Cheyenne, Wyo., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAII, Circuit Judges.
HUXMAN, Circuit Judge.
Shigeru Fujii, the appellant herein, was indicted, tried, and convicted tinder 50 U.S. C.A. Appendix § 311, for wilfully refusing and failing to report for induction into the armed forces of the United States pursuant to an order of his local draft board. He is one of 63 persons convicted under similar circumstances. By stipulation of counsel, it is agreed that the other cases shall be controlled by the decision in this case.
Appellant is an American citizen. He was born in the United States of Japanese ancestry. He registered with his local draft board in California. Thereafter, in 1942, he was removed to and confined in a relocation center at Heart Mountain Park, Wyoming. At first he was classified in IV-C. Prior to the order to report, he was reclassified into 1-A. He was still confined in the relocation center when he was ordered to report for induction.
Appellant was loyal to the United States at all times. There can be no question about this. The agent for the Federal Bureau of Investigation who investigated him after he failed to report testified that his attitude was that of being loyal to the United States; that he indicated no desire to live in Japan, and that he desired to fight for this country if he were restored to his rights as a citizen.
Appellant’s entire appeal is predicated on the argument that his removal from his home and his confinement behind barbed wire in the relocation center without being charged' with any crime deprived him of his liberty and property without due process of law, and that therefore he ought not to be required to render military service until his rights were restored.
Under the admitted facts as to his loyalty, he was restrained of his liberty by confinement in the relocation center. ile could have secured his complete release from restraint by writ of habeas corpus at any time and could thus have been restored to freedom. This would have given him the vindication which he seeks. It would have cleared his name for all time. But this he did not do. Instead, he chose to disobey a lawful order because he claimed his rights had been invaded. Two wrongs never make a right. One may not refuse to heed a lawful call of his government merely because in another way it may have injured him. Appellant was a citizen of the United States. Tie owed the same military service to his country that any other citizen did. Neither the fact that he was of Japanese ancestry nor the fact that his constitutional rights may have been invaded by sending him to a relocation center cancel this debt.
Furthermore, the courts are not open to him to challenge his right to exemption from military service under the admitted facts. , It is now well settled that one must exhaust his administrative remedies and must obey the order to report before he may use the courts to challenge his classification. This was definitely settled by the Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Appellant concedes this, but argues that the decision in the Falbo case is wrong. In effect, he asks us to overrule the Supreme Court. No reason, to say nothing of. a cogent one, is given for this extraordinary request. Appellant also urges that this case is controlled by the decision in United States v. Kuwabara, D.C., 56 F.Supp. 716. We do not pass upon the soundness of that decision. It is sufficient to say that it is distinguishable upon the facts.
The Selective Service Act makes it a penal offense to refuse to report for induction. It was appellant’s duty to report for induction and thereafter assert any claimed rights for exemption from military service by writ of habeas corpus. This he failed to do. Instead, he chose to ignore the order. As a result, he became subject to the penal provisions of the statute.
Under the stipulation of the parties, this -decision is made applicable to the other -.sixty-two cases covered therein.
Affirmed.
Ex parte Mitsuye Endo, 1944, 323 U. S. 283, 65 S.Ct. 208.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES, Appellee, v. Salvatore LOMBARDINO, William Farinella, and Joseph Gerace, Appellants.
No. 7342.
Circuit Court of Appeals, Third Circuit.
May 23, 1940.
Anthony A. Calandra, of Newark, N. J., for appellants.
William F. Smith, Acting U. S. Atty., and Thorn Lord, Asst. U. S. Atty., both of Trenton, N. J., for appellee.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
PER CURIAM.
The judgments of the district court are affirmed, the mandate to issue forthwith.
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_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
THE COASTWISE. THE FORT ARMSTRONG. COASTWISE TRANSP. CORPORATION v. CHARLES NELSON CO. et al.
No. 162.
Circuit Court of Appeals, Second Circuit.
Jan. 8, 1934.
Kirlin, Campbell, Hickox, Keating & Mc-Grann, of New York City (Robert S. Ers-kine and Henry P. Elliott, both of New York City, of counsel), for appellants.
Duncan & Mount, of New York City (H. W. Dieek, Jr., and Charles R. Millett, both of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
The collision occurred in the Elizabeth river near Norfolk, Va., on the night of August 9, 1929. The Fort Armstrong left the Army Base piers and proceeded through a channel leading to the main channel into which she turned to go down the river. To make her turn to starboard and get straightened out in the 600-foot dredged channel necessitated backing, and while she was engaged in this maneuver the Coastwise, which was bound down the river from Lambert’s Point, came up with her and the port bow of the Coastwise eame into contact with the stem of the Fort Armstrong. No damage was suffered by the latter, but the bow of the Coast-wise was injured. The District Court held both vessels at fault, the Coastwise for not having held back sufficiently to keep out of the way, the Fort Armstrong for having continued her backing movement when it should have been plain to her navigators that there was a risk of collision.
The fault of the Coastwise is plain. She saw the Fort Armstrong when more than a mile away, knew that she would have to “back and fill” to get straightened out in the channel, and intended to follow her down the liver. Nevertheless the Coastwise kept on at full speed for ten minutes, then a.t half speed for two minutes, then stopped her engines for one minute, had them half astern for one minute, and finally put them full astern only one minute before the collision. These engine movements are taken from her log, and discredit the story of more careful navigation to which her witnesses testified. If the Fort Armstrong be considered as on a steady course, despite having to back to make her turn, then under the rules applicable to an overtaking situation, the Coastwise was bound to keep out of the way. But it is unnecessary to decide whether the Fort Armstrong was on a steady eourse; if the situation be viewed as one of special circumstances, the Coastwise fares no better. She knew that the Fort Armstrong would have to back to make her turn. Just how far she might have to back was a matter of conjecture. The Coastwise should have kept far enoug-h away to allow her necessary freedom of action. She failed to do so, assuming apparently that the other vessel would get straightened out more quickly than she did. Indeed, when the Coastwise first put her engines full speed astern she was already within hailing distance, and her master shouted to the Fort Arm-strong to go ahead. Moreover, she did not have a full head of steam, which made it the more necessary for her to avoid getting into close quarters. Her fault is glaring,
Fault on the part of the Fort Armstrong can be predicated only upon a finding that she backed after she should have known that to do so would endanger the Coastwise. In turning to a consideration of this question it is appropriate to note that the testimony of all the witnesses was taken by deposition so that the trial judge was in no better position than are we to draw conclusions as to negligence. The Kalfari, 277 F. 391, 399 (C. C. A. 2); The Africa Maru, 54 F.(2d) 265, 266 (C. C. A. 2). It is difficult, especially at night, for a navigator to estimate the speed of another vessel coming up astern. Those in charge of the navigation of the Fort, Armstrong could reasonably expect the approaching vessel to accommodate herself to a backing movement the necessity for which had long been obvious. They did not know, and cannot be charged with notice, that the Coast-wise was not carrying a full head of steam and hence was unable to cheek her way as quickly as she might otherwise have done. Even if she was only four or five hundred feet astern when the Fort Armstrong sounded her second backing signal, we are not satisfied that danger was apparent to her navigators. If she had any sternway at all at the moment of collision it was slight, and her pilot and captain say that her engines had been working ahead for about a minute. This is a ease to which is applicable the principle that when the fault of one vessel is gross and the fault of the other doubtful, the former should bear the whole loss. The City of New York, 147 U. S. 72, 85, 13 S. Ct. 211, 37 L. Ed. 84; The Ludvig Holberg, 157 U. S. 60, 71, 15 S. Ct. 477, 39 L. Ed. 620; The M. J. Rudolph, 292 F. 740, 743 (C. C. A. 2).
Accordingly, the decree is reversed and the libel dismissed, with costs.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_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.
J. L. KAMSLER, Plaintiff-Appellant, v. CHICAGO AMERICAN PUBLISHING COMPANY, Inc., DefendantAppellee.
No. 15097.
United States Court of Appeals Seventh Circuit.
Oct. 11, 1965.
Rehearing Denied Nov. 1, 1965. (En Banc).
J. L. Eamsler, pro se.
Don H. Reuben, Lawrence Gunnels, Craig W. Christensen, Chicago, 111., for appellee.
Before ENOCH, EILEY and MAJOR, Circuit Judges.
ENOCH, Circuit Judge.
Plaintiff-appellant, J. L. Eamsler, has taken this .appeal from grant of the motion to dismiss his complaint filed by the defendant-appellee, Chicago American Publishing Company, Inc., in the United States District Court.
The complaint was dismissed for failure to allege facts showing presentation of a question arising under the Constitution or laws of the United States, or a claim otherwise within the jurisdiction of the United States District Court. There is no diversity of citizenship here.
In this Court, although not in the District Court, the plaintiff contended that jurisdiction arose under Title 28, U. S. Code, § 1343, giving the federal courts jurisdiction over civil rights cases. In oral argument, plaintiff, appearing pro se, asserted that his complaint alleged facts which, although not so labeled in the complaint, would show violations of the Civil Rights Statutes, Title 42, U. S. Code, §§ 1983, 1985. We have carefully examined those allegations and we cannot agree.
Plaintiff contends in his first count that the defendant conspired to violate plaintiff's Constitutional rights to the end that he be denied a fair trial on criminal charges in the Criminal Court of Cook County; that the defendant is guilty of libel, and that the conspiracy was formed in retaliation for plaintiff’s suit against defendant for libel. In his second count, plaintiff lists a number of alleged errors in one of his criminal trials, which he states were the result of the conspiracy. He includes a third count for libel. Plaintiff seeks damages of $20 million on each of the three counts, with an additional $20 million punitive damages on the second count and $20 million exemplary damages on the third count.
The complaint contains a number of vague conclusory statements. It does not name any of the other parties to the alleged conspiracy who are charged with having made threats to the Trial Judge in the criminal case to induce him to deny plaintiff a fair trial.
Plaintiff previously brought a similar suit in the U. S. District Court, which was also dismissed for lack of federal jurisdiction: No. 64 C 560, Kamsler v. Chicago American Publishing Co., Ine. Plaintiff’s appeal to this Court, No. 14831, was dismissed by order of this Court on January 18, 1965, for failure to comply with the rules of this Court.
Plaintiff does not deny defendant’s assertion that the same news articles on which plaintiff bases his present charge of libel were the subject of an action in the Circuit Court of Cook County, Illinois, No. 65 L 9807, Kamsler v. Chicago American Publishing Company, Inc., which was dismissed on June 17, 1965, when the Cook County Circuit Court found those news articles non-actionable. In the course of oral argument, plaintiff indicated that both his criminal convictions are pending on appeal in the Illinois Appellate Court where he is represented by competent counsel. Any errors in his trials presumably will be brought to the attention of that tribunal and dealt with there.
The order of the District Court must be affirmed.
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_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. 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".
HEMPT BROS., INC., Appellant, v. UNITED STATES of America.
No. 73-1296.
United States Court of Appeals, Third Circuit.
Argued Nov. 2, 1973.
Decided Jan. 14, 1974.
Sheldon M. Bonovitz, John F. Fan-smith, Jr., Duane, Morris & Heckscher, Philadelphia, Pa., for appellant.
Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Ernest J. Brown, Attys., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
Before ALDISERT and WEIS, Circuit Judges, and LATCHUM, District Judge.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
In this appeal by a corporate taxpayer from a grant of summary judgment in favor of the government in a claim for refund, we are called upon to decide the proper treatment of accounts receivable and of inventory transferred from a cash basis partnership to a corporation organized to continue the business under 26 U.S.C. § 351(a). This appeal illustrates the conflict between the statutory purpose of Section 351, postponement of recognition of gain or loss, and the assignment of income and tax benefit doctrines.
The facts were wholly stipulated; therefore, they may be summarized as set forth by the government in its brief:
The taxpayer is a Pennsylvania corporation with its principal place of business in Camp Hill, Pennsylvania. It files its federal income tax returns for a fiscal year beginning March 1.
From 1942 until February 28, 1957, a partnership comprised of Loy T. Hempt, J. F. Hempt, Max C. Hempt, and the George L. Hempt Estate was engaged in the business of quarrying and selling stone, sand, gravel, and slag; manufacturing and selling ready-mix concrete and bituminous material; constructing roads, highways, and streets, primarily for the Pennsylvania Department of Highways and various political subdivisions of Pennsylvania, and constructing driveways, parking lots, street and water lines, and related accessories.
The partnership maintained its books and records, and filed its partnership income tax returns, on the basis of a calendar year and on the cash method of accounting, so that no income was reported until actually received in cash. Accordingly, in computing its income for federal income tax purposes, the partnership did not take uncollected receivables into income, and inventories were not used in the calculation of its taxable income, although both accounts receivable reflecting sales already made and physical inventories existed to a substantial extent at the end of each of the partnership’s taxable years. Rather than using the inventory method of accounting, the partnership deducted the costs of its physical inventories of sand, gravel, and stone as incurred.
On March 1, 1957, the partnership business and most of its assets were transferred to the taxpayer solely in exchange for taxpayer’s capital stock, the 12,000 shares of which were issued to the four members of the partnership. These shares constituted 100% of the issued and outstanding shares of the taxpayer. This transfer was made pursuant to Section 351(a) of the Internal Revenue Code of 1954;. Thereafter, the taxpayer conducted the business formerly conducted by the partnership.
Among the assets transferred by the partnership to the taxpayer for taxpayer’s shares of stock were accounts receivable in the amount of $662,824.40 arising from performance of construction projects, sales of stone, sand, gravel, etc., and rental of equipment prior to March 1, 1957. Also among the assets transferred were physical inventories of sand, gravel, and stone, with respect to which the partnership had deducted costs of $351,266.05 and the value of which was no less than $351,266.05.
Commencing with its initial fiscal year [which] ended February 28, 1958, taxpayer maintained its books and filed its corporation income tax returns on the cash method of accounting and, accordingly, did not take uncollected receivables into income and did not use inventories in the calculation of its taxable income. In its taxable years ending in 1958, 1959, and 1960, taxpayer collected the respective amounts of $533,247.87, $125,326.71 and $4,249.72 of the accounts receivable in the aggregate amount of $662,824.40 (sic) that transferred to it, and included those amounts in income in computing its income for its federal income tax returns for those years, respectively.
As a result of an examination extending over a period of years, it was determined by the Commissioner of Internal Revenue, and agreed to by the taxpayer, that the use of the cash receipts and disbursements method of accounting with regard to purchases and sales, without taking into account merchandise on hand at the beginning and end of the taxable year, did not clearly reflect taxpayer’s income. Accordingly, taxpayer’s income was adjusted as set forth in an examination report of August 24, 1964 to accrue unreported sales [accounts receivable] made during the taxable years in question and to take into account inventories in computing its cost of goods sold. In computing taxpayer’s cost of goods sold under the inventory method, for the fiscal year ended February 28, 1958, the Commissioner of Internal Revenue, in conjunction with his accrual method treatment, fixed the beginning inventory of stone, sand, and gravel, which had been transferred to the taxpayer by the partnership, at zero, and the ending inventory at $258,201.35. The result was an increase in taxpayer’s taxable income for the fiscal year ended February 28, 1958, in the amount of $258,201.35.
The Commissioner of Internal Revenue assessed deficiencies in taxpayer’s federal income taxes for its fiscal years ending February 28, 1958, and 1959. The taxpayer paid the amounts in 1964, and in 1965 filed claims for refund of $621,218.09 plus assessed interest. The claims were disallowed in full on September 24, 1968, and the district court action was timely instituted on December 5, 1968.
The district court held: (1) taxpayer was properly taxable upon collections made with respect to accounts receivable which were transferred to it in conjunction with the Section 351 incorporation, and (2) the court lacked jurisdiction to entertain taxpayer’s contention that the tax-benefit theory of recovery entitled it to an opening inventory of not' less than $351,266.05, since that theory of recovery was not presented in taxpayer’s claim for refund. Hempt Bros., Inc. v. United States, 354 F.Supp. 1172 (M.D. Pa.1973).
I.
Taxpayer argues here, as it did in the district court, that because the term “property” as used in Section 351 does not embrace accounts receivable, the Commissioner lacked statutory authority to apply principles associated with Section 351. The district court properly rejected the legal interpretation urged by the taxpayer.
The definition of Section 351 “property” has been extensively treated by the Court of Claims in E. I. Du Pont de Nemours and Co. v. United States, 471 F.2d 1211, 1218-1219 (Ct.C1.1973), describing the transfer of a non-exclusive license to make, use and sell area herbicides under French patents:
Unless there is some special reason intrinsic to [Section 351]. the general word “property” has a broad reach in tax law.. For section 351, in particular, courts have advocated a generous definition of “property,” and it has been suggested in one capital gains case that nonexclusive licenses can be viewed as property though not as capital assets..
We see no adequate reason for refusing to follow these leads.
We fail to perceive any special reason why a restrictive meaning should be applied to accounts receivables so as to exclude them from the general meaning of “property.” Receivables possess the usual capabilities and attributes associated with jurisprudential concepts of property law. They may be identified, valued, and transferred. Moreover, their role in an ongoing business must be viewed in the context of Section 351 application. The presence of accounts receivable is a normal, rather than an exceptional accoutrement of the type of business included by Congress in the transfer to a corporate form. They are “commonly thought of in the commercial world as a positive business asset.” Du Pont v. United States, supra, at 1218. As aptly put by the district court: “There is a compelling reason to construe ‘property’ to include [accounts receivable]: a new corporation needs working capital, and accounts receivable can be an important source of liquidity.” Hempt Bros., Inc. v. United States, supra, at 1176. In any event, this court had no difficulty in characterizing a sale of receivables as “property” within the purview of the “no gain or loss” provision of Section 337 as a “qualified sale of property within a 12-month period.” Citizens Acceptance Corp. v. United States, 462 F.2d 751, 756 (3d Cir. 1972).
The taxpayer next makes a strenuous argument that “[t]he government is seeking to tax the wrong person.” It contends that, the assignment of income doctrine as developed by the Supreme Court applies to a Section 351 transfer of accounts receivable so that the transferor, not the transferee-corporation, bears the corresponding tax liability. It argues that the assignment of income doctrine dictates that where the right to receive income is transferred to another person in a transaction not giving rise to tax at the time of transfer, the transferor is taxed on the income when it is collected by the transferee; that the only requirement for its application is a transfer of a right to receive ordinary income; and that since the transferred accounts receivable are a present right to future income, the sole requirement for the application of the doctrine is squarely met. In essence, this is a contention that the nonrecognition provision of Section 351 is in conflict with the assignment of income doctrine and that Section 351 should be subordinated thereto. Taxpayer relies on the seminal case of Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 16, 74 L.Ed. 600 (1930), and its progeny for support of its proposition that the application of the doctrine is mandated whenever one transfers a right to receive ordinary income.
On its part, the government concedes that a taxpayer may sell for value a claim to income otherwise his own and he will be taxable upon the proceeds of the sale. Such was the case in Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958), in which the taxpayer-corporation assigned its oil payment right to its president in consideration for his cancellation of a $600,000 loan. Viewing the oil payment right as a right to receive future income, the Court applied the reasoning of the assignment of income doctrine, normally applicable to a gratuitous assignment, and held that the consideration received by the taxpayer rcorporation was taxable as ordinary income since it essentially was a substitute for that which would otherwise be received at a future time as ordinary income.
Turning to the facts of this case, we note that here there was the transfer of accounts receivable from the partnership to the corporation pursuant to Section 351. -We view these accounts receivable as a present right to receive future income. In consideration of the transfer of this right, the members of the partnership received stock — a valid consideration. The consideration, therefore, was essentially a substitute for that which would otherwise be received at a future time as ordinary income to the cash basis partnership. Consequently, the holding in Lake would normally apply, and income would ordinarily be realized, and thereby taxable, by the cash basis partnership-transferor at the time of receipt of the stock.
But the terms and purpose of Section 351 have to be reckoned with. By its explicit terms Section 351 expresses the Congressional intent that transfers of property for stock or securities will not result in recognition. It therefore becomes apparent that this case vividly illustrates how Section 351 sometimes comes into conflict with another provision of the Internal Revenue Code or a judicial doctrine, and requires a determination of which of two conflicting doctrines will control.
As we must, when we try to reconcile conflicting doctrines in the revenue law, we endeavor to ascertain a controlling Congressional mandate. Section 351 has been described as a deliberate attempt by Congress to facilitate the incorporation of ongoing businesses and to eliminate any technical constructions which are economically unsound.
Appellant-taxpayer seems to recognize this and argues that application of the Lake rationale when accounts receivable are transferred would not create any undue hardship to an incorporating taxpayer. “All a taxpayer [transferor] need do is withhold the earned income items and collect them, transferring the net proceeds to the Corporation. Indeed the transferor should retain both accounts receivable and accounts payable to avoid income recognition at the time of transfer and to have sufficient funds with which to pay accounts payable. Where the taxpayer [transfer- or] is on the cash method of accounting [as here], the deduction of the accounts payable would be applied against the income generated by the accounts receivable.” (Appellant’s Brief at 32.)
While we cannot fault the general principle “that income be taxed to him who earns it,” to adopt taxpayer’s argument would be to hamper the incorporation of ongoing businesses; additionally it would impose technical constructions which are economically and practically unsound. None of the cases cited by taxpayer, including Lake itself, persuades us otherwise. In Lake the Court was required to decide whether the proceeds from the assignment of the oil payment right were taxable as ordinary income or as long term capital gains. Observing that the provision for long term capital gains treatment “has always been narrowly construed so as to protect the revenue against artful devices,” 356 U.S. at 265, 78 S.Ct. at 694, the Court predicated its holding upon an emphatic distinction between a conversion of a capital investment — “income-producing property” — and.an assignment of income per se. “The substance of what was assigned was the right to receive future income. The substance of what was received was the present value of income which the recipient would otherwise obtain in the future.” Ibid., at 266, 78 S.Ct. at 695. A Section 351 issue was not presented in Lake. Therefore the case does not control in weighing the conflict between the general rule of assignment of income and the Congressional purpose of nonrecognition upon the. incorporation of an ongoing business.
We are persuaded that, on balance, the teachings of Lake must give way in this case to the broad Congressional interest in facilitating the incorporation of ongoing businesses. As desirable as it is to afford symmetry in revenue law, we do not intend to promulgate a hard and fast rule. We believe that the problems posed by the clash of conflicting internal revenue doctrines are more properly determined by the circumstances of each case. Here we are influenced by the fact that the subject of the assignment was accounts receivable for partnership’s goods and services sold in the regular course of business, that the change of business form from partnership to corporation had a basic business purpose and was not designed for the purpose of deliberate tax avoidance, and by the conviction that the totality of- circumstances here presented fit the mold of the Congressional intent to give nonrecognition to a transfer of a total business from a non-corporate to a corporate form.
But this too must be said. Even though Section 351(a) immunizes the transferor from immediate tax consequences, Section 358 retains for the transferors a potential income tax liability to be realized and recognized upon a subsequent sale or exchange of the stock certificates received. As to the transferee-corporation, the tax basis of the receivables will be governed by Section 362.
II.
The taxpayer contends that the court erred in ruling that its inventory argument was not reasonably encompassed within its claim for refund, and that had the court considered this contention for the fiscal year commencing March 1, 1957, the taxpayer-corporation would have been entitled to a beginning inventory of $351,266.05 instead of zero by application of the tax benefit rule.
The government restates thé reason for the district court’s refusal to consider taxpayer’s argument but by its brief advises: “We believe it unnecessary for this Court to explore the often obscure distinction between the facts to support a claim and the theory of a claim” and that “[w]ithout joining in the debate over facts versus theory, examination of the substance of taxpayer’s claim for inventory adjustment makes it clear that the facts asserted in its claim for refund do not support it and the agreed facts negative it.” (Appellee’s brief at 19.) Regardless of the procedural question, we are persuaded that appellant’s tax benefit argument does not apply to this factual complex, and “[w]e pass at once to a consideration of. [the merits].” B. F. Goodrich Co. v. United States, 321 U.S. 126, 64 S.Ct. 471, 88 L.Ed. 602 (1944).
The tax benefit rule can be simply stated: If a taxpayer makes an expenditure or suffers a loss for which it takes a deduction giving rise to a reduction in its income tax and later recovers the funds or property that it has spent or lost, it must take the amount recovered as income. Connery v. United States, 460 F.2d 1130, 1132 (3d Cir. 1972); Alice Phelan Sullivan Corp. v. United States, 381 F.2d 399, 401-402 (Ct.C1.1967).
Applying this rule to the facts of this case taxpayer contends that partnership’s receipt of stock in exchange for inventory previously expensed but presently valued at $351,266.05 constituted a “recovery” which stepped up the basis of the inventory from zero to $351,266.05 and that this stepped-up basis became the basis to the partnership and the corporation under Sections 358 and 362.
Relying on Nash v. United States, 398 U.S. 1, 90 S.Ct. 1550, 26 L.Ed.2d 1 (1970), and the various courts of appeals decisions in Commissioner v. An-ders, 414 F.2d 1283 (10th Cir. 1969); Spitalny v. United States, 430 F.2d 195 (9th Cir. 1970); Connery v. United States, supra, and Citizens’ Acceptance Corp. v. United States, supra, taxpayer proceeds to equate “value” of the inventory with tax “basis” as conceptualized in Sections 358 and 362. This keystone in the taxpayer’s arch of reasoning proves to be most fragile upon close inspection.
Although Justice Douglas in Nash addressed a transfer of receivables under Section 351(a), the Court did not have before it the critical question posed here —whether a partnership’s “basis,” and ultimately the corporation’s “basis,” in a previously expensed inventory is equal to the “value” of the inventory when transferred.
“In Nash the Court held that when eight partnerships transferred their assets to eight newly formed corporations in exchange for shares in the corporations — transfers that produced no gain or loss under § 351 of the Internal Revenue Code — there was no ‘recovery’ of the bad debt reserves under the tax benefit rule ‘[s]ince the reserve for purposes of this case was deemed to be reasonable and the value of the stock received upon the transfer was equal to the net value of the receivables....’ 398 U.S., at 4, 90 S.Ct., at 1552 (emphasis in original).” Citizens’ Acceptance Corp. v. United States, supra, 462 F.2d at 754. While it is true that Justice Douglas stated that “[a] 11 that petitioners received from the corporations were securities equal in value to the net worth of the accounts transferred, that is the face value less the amount in reserve for bad debts”, 398 U.S. at 4, 90 S.Ct. at 1551, the sole issue before the Court was whether such receipt constituted a “recovery” within the meaning of the tax benefit rule. It was not necessary for the Nash Court ever to reach the question of the tax “basis” in the hands of either the transferor or transferee. Thus, the taxpayer would have us read into Nash a holding which did not appear therein, which was not posed by the facts, and which does not inexorably nor logically follow therefrom.
Nor may the taxpayer find solace in the decisions of the various courts of appeals upon which it relies. At issue in Anders and Spitalny were inventories which had been completely expensed and therefore had a zero basis. After the inventories were sold, the liquidated corporations attempted to assert a no-gain immunity from tax liability by virtue of the operation of § 337. In each case the court held the sale proceeds would not be considered as non-recognizable gain.
We find nothing in the teachings of the Ninth and Tenth Circuits supporting taxpayer’s contention that in a Section 351(a) transfer the accounting basis for property must equal the actual or market value thereof. At the time taxpayer’s inventory was totally expensed on the cash basis books of the partnership that property had mercantile value in the sense as described by Justice Douglas in Nash but for accounting purposes and as a tax basis it still had a zero value. The mere fact that an asset has been transferred under Section 351(a) from a partnership ownership to a corporate ownership does not in itself alter its tax basis.
We now turn to our decisions in Connery and Citizens. The Connery issue was whether tax benefit principles applied following recovery of previously expensed prepaid advertising. We agreed with the Commissioner in the application of the tax benefit rule because the taxpayer realized income equivalent to the value of the previously expensed advertising costs. We said that the taxpayer incurred a tax liability based on the difference between a zero basis and the amount previously expensed.
The difficulty presented in both Section 337 and Section 351 cases is that the statute expressly provides for no-gain and no-loss tax consequences by virtue of the actual liquidation or transfer. Nothing in the statutory schema permits an immunization of normal tax consequences arising out of those separate activities which may accompany a liquidation under Section 337 or a transfer under Section 351 but which are not inherently a necessary aspect of the liquidating or transferring process. The tax imposed in Connery was not the result of the liquidation process per se; it was imposed because of the recovery of an item previously expensed. The happenstance that the recovery took place as an additional feature of the liquidating process does not immunize that recovery from normal tax consequences. The prepaid advertising expenses had a zero basis before the liquidation process began; it had the same basis during the liquidation process.
The Citizens issue was the extent to which the taxpayer had recovered its previously deducted bad debt reserve. Our holding in Citizens was simply a reiteration of the holding in Nash, that the receivables had to be valued on the basis of face value less bad debt reserve. Citizens did not involve an adjustment of the tax basis.
In the case before us, whatever may have been the actual value of the inventory at the time of the transfer, the “basis of. the property exchanged,” Section 358(a) (1), remained the same as it appeared in the partnership’s books —zero. As to the distributees, the “basis of the... [stock] permitted to be received under. i. [Section 351] shall be the same as that of the property exchanged” — zero. Section 358(a)(1).
As to the corporation, according to Section 362(a) “the basis shall be the same as it would be in the hands of the transferor [partnership].... ” This must be zero as well. Accordingly, the taxpayer cannot prevail in his contention that he is entitled to a basis for the inventory in the amount of $351,266.05.
III.
Appellant raised at oral argument a question which, on first blush, is extremely attractive and appealing. It questions the fundamental fairness of the Commissioner’s action in requiring a corporation to change from a cash to an accrual basis without permitting adjustments to the predecessor partnership. We note, however, that appellant does not dispute the Commissioner’s determination that its use of the cash receipts and disbursements method of accounting with respect to purchases and sales, without taking into account merchandise on hand at the beginning and end of the year did not clearly reflect income. (Appendix at 18a).
The argument is premised on the history of IRS audits of the previous partnership books, and -the failure of the Commissioner to direct that the partnership change from a cash to an accrual basis. To this is added the reality that the identical partnership business was continued by the corporation with present stock ownership reflecting past partnership interests. The argument continues: requiring the corporate taxpayer to make a sudden change in accounting methods, generating huge new tax liabilities, is basically unfair to the taxpayer; that at the very least, there should now be permitted a reopening of the partnership books to allow for adjustments under 26 U.S.C. § 481 so that a new basis for an opening inventory may be permitted and a distribution of increased tax liabilities shared by the previous partnership.
Where a method of accounting differs from that under which the taxpayer’s income for a preceding calendar year was computed, Section 481(a) provides for adjustments in previous years which are determined to be necessary solely by reason of the change, in order to prevent an amount from being duplicated or omitted. Notwithstanding the adjustment provisions of Section 481(a), a corporation formed for a business purpose is a separate entity and a separate taxpayer from the stockholders who are responsible for its creation. Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). And because of the separate taxable corporate entity, it has been held that where the change in the accounting practices is ordered for the first year of the corporation’s existence, the corporation had no preceding taxable year, and, therefore, Section 481 is inapplicable. Ezo Products Co., supra, at 394. “Equally clearly, section 481 may be applied only to the petitioner [corporation] and not to make adjustments with respect to its predecessor [partnership].” Dearborn Gage Co., 48 T.C. 190, 198 (1967) citing E. Morris Cox, 43 T.C. 448 (1965); Ezo Products Co., supra.
Judge Tannewald’s observations in Dearborn seem pertinent to our facts: “We recognize that, if petitioner [corporation] had never been formed, and the predecessor partnership had continued in büsiness, and the issue before us involved a comparable change in the latter’s method of accounting for overhead costs, respondent... would, under the applicable decisions, have been required, in making the necessary computations, to. [make adjustments] both in the opening inventory and closing inventory for the... [previous years permitted by Section 481]. Thus, petitioner- — a taxpayer separate and distinct from its predecessor — appears to fare worse than its predecessor would have. We also recognize... the tax benefit of the deductions. taken by petitioner’s predecessor may not have been as great as the tax burden which our rationale now requires petitioner to bear, e.g., because the partners may have been in lower tax brackets or the partnership may have operated at a loss in some of the prior years. Moreover, if the ownership of petitioner’s stock had changed prior to the taxable years herein involved, the economic effect of the tax benefit would not inure to, nor would the tax burden fall upon, the same persons. But these are nothing more than some of the myriad of different consequences which may result from a change to the corporate form of doing business or from the acquisition of stock of a corporation rather than corporate assets.” 48 T.C. at 199-200 (footnote omitted).
Applied to this case, these principles preclude a judicial command that the Commissioner make adjustments in the predecessor business entity to supplement the direction that the new corporate taxpayer convert to an accrual basis.
We have carefully considered each of appellant’s contentions and have concluded that the judgment of the district court will be affirmed.
. Sec. 351. Transfer to Corporation Controlled by Transferor.
(a) General Rule. — No gain or loss shall be recognized if property is transferred to a corporation (including, in the case of transfers made on or before June 30, 1967, an investment company) by one or more persons solely in exchange for stock or securities in such corporation and immediately after the exchange such person or persons are in control (as defined in section 368(c)) of the corporation. For purposes of this section, stock or securities issued for services shall not be considered as issued in return for property,
. The Commissioner of Internal Revenue assessed deficiencies in the amounts of $364,154.20 plus interest of $125,740.42 and $75,995.46 plus interest of $24,343.53 for fiscal years ending in 1958 and 1959 respectively. Taxpayer filed claims for refund of $456,218.76 plus assessed interest for fiscal 1958, $113,163.03 plus assessed interest for fiscal 1959 and $51,836.30 for fiscal 1960.
. Du Pont v. United States, supra, at 1214, citing P. A. Birren & Son, Inc. v. Commissioner, 116 F.2d 718 (7th Cir. 1940), observed that nonrecognition under Section 351 has been granted for accounts receivable. In the recent case of Thatcher v. Commissioner, 61 T.C. 28 (42 U.S.L.W. 2228, October 30, 1973), the Tax Court reaffirmed its decision in Raich v. Commissioner, 46 T. C. 604 (1966), holding that accounts receivable transferred by a cash basis taxpayer to a corporation under Section 351 had a zero basis. By placing a tax basis in that which was transferred, the Tax Court by implication assumed that accounts receivable are “property” within the meaning of Section 351.
. We put aside the pragmatic consideration that the transferee-corporate taxpayer raises the argument that the partnership should be taxed at a time when the statute of limitations has presumably run against the transferor partners, who ostensibly are the stockholders of the new corporation.
. United States v. Basye, 410 U.S. 441, 93 S.Ct. 1080, 35 L.Ed.2d 412 (1973) ; Commissioner v. First Security Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972) ; Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659 (1949) ; Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948) ; Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81 (1940) ; Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940).
. Weiss, Problems in the Tax-Free Incorporation of a Business, 41 Ind.L.J. 666, 676 (1966). See, e. g., Henry McK. Haserot, 41 T.C. 562 (1964), rev’d and rein’d 355 F.2d 200 (6th Cir. 1965).
. “One of the purposes of this section [Section 202(c) (3) of the Revenue Act of 1921] was to permit changes in form [of business] involving no change in substance to be made without undue restriction from the tax laws.” Note, Section 351 of the Internal Revenue Code and “Mid-Stream” Incorpora-tions, 38 U.Cin.L.Rev. 96 (1969). See, S. Rep.No.275, 67th Cong. 1st Sess. 11 (1921). This in ten ti in is also reflected in the report of the House of Representatives accompanying § 351 of the Internal Revenue Code of 1954. H.R.Rep.No.1337, 83rd Cong. 2d Sess. 34 (1954).
The House Ways and Means Committee recommended that nonrecognition treatment be granted for incorporation, reorganization and certain other types of exchanges to “permit business to go forward with the readjustments required by existing conditions” and to prevent “taxpayers from taking colorable losses in wash sales and other fictitious exchanges.” See H.R.Rep.350, 67th Cong., 1st Sess. 10 (1921). The Senate Finance Committee added that such treatment would eliminate “many technical constructions which are economically unsound.” See S.Rep.275, 67th Cong., 1st Sess. 12 (1921).
Weiss, supra, 41 Ind.L.J. 666 n. 4 (1966).
. A second issue in Fleming, a companion case to Lake, raised tlie question whether an oil payment for real estate was a “like kind” exchange under § 112(b) (1) of the Internal Revenue Code of 1939. The Court held that the exchange was not “like kind” since its effect is a transfer of future income from oil leases in exchange for real estate. There is no “like kind” requirement under Section 351. Bee note 1, ante.
. The Commissioner has apparently taken the position that irrespective of the general principle that income is based upon he who earns it, other considerations should normally control Section 351 transfers. “However, the Service’s ruling policy apparently is subject to the proviso that the taxpayer enter into a closing agreement assuring that the corporation will report the income reflected in the receivables upon their collection or other disposition. It would also appear that favorable rulings will not be issued where the timing of the transfer will be such as to result in a distortion of income. For example, such a ruling presumably could not be obtained if a seasonable business were to be incorporated during the portion of the year occurring after sizeable operating expenses had been incurred but before the income attributable thereto was collected.” Weiss, supra, 41 Ind.L.J. at 681 (footnote omitted).
. Sec. 358. Basis to Distributees.
(a) General Rule. — In the case of an exchange to which section 351, 354, 355, 356, 361, or 371(b) applies—
(1) Nonrecognition property. — The basis of the property permitted to be received under such section without the recognition of gain or loss shall be the same as that of the property exchanged—
(A) deceased by—
(i) the fair market value of any other property (except money) received by the taxpayer,
(ii) the amount of any money received by the taxpayer, and
(iii) the amount of loss to the taxpayer which was recognized on such exchange, and
(B) increased by—
(1) the amount which was treated as a dividend, and
(ii) the amount of gain to the taxpayer which was recognized on such exchange (not including any portion of such gain which was treated as a dividend).
(2) Other property. — The basis of any other property (except money) received by the taxpayer shall be its fair market value.
. Sec. 362. Basis to Corporations
(a) Property acquired, l>y issuance of stock or as paid-in surplus. — If property was acquired on or after June 22, 1954, by a corporation —
(1) in connection with a transaction to which section 351 (relating to transfer of property to corporation controlled by transferor) applies, or
(2) as paid-in surplus or as a contribution to capital, then the basis shall be the same as it would be in the hands of the transferor, increased in the amount of gain recognized to the transferor on such transfer.
. § 337. Gain or loss on sales or exchanges in connection with certain liquidations (a) General Rule. — If—•
(1) a corporation adopts a plan of complete liquidation on or after June 22, 1954, and
(2) -within the 12-month period beginning on the date of the adoption of such plan, all of the assets of the corporation, are distributed in complete liquidation, less assets retained to meet claims, then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period.
26 U.S.C. § 337(a).
. Where
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America v. PINTO, Biagio a/k/a Bob Pinto, Appellant.
No. 80-2420.
United States Court of Appeals, Third Circuit.
June 10, 1981.
See also, D.C., 486 F.Supp. 578.
Jacob Kossman (argued), Philadelphia, Pa., for appellant.
Peter F. Vaira, Jr., U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Stanley Weinberg, Asst. U. S. Atty. (argued), Philadelphia, Pa., for appellee.
SUR PETITION FOR REHEARING
Before SEITZ, Chief Judge, and ALDI-SERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
The petition for rehearing, 3 Cir., 646 F.2d 833, filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Circuit Judge ADAMS votes for rehearing. He believes that the result reached by the opinion represents a crabbed and unrealistic interpretation of § 18 U.S.C. § 2113(b), and is also at variance with the interpretation set forth by the Second, Fourth, Fifth and Eighth Circuits. The panel here specifically determined that the defendant did, in fact, take the excess money with the intent to steal or purloin it, but then proceeded to conclude that a “fraud type” stealing or purloining is not encompassed by § 2113(b). Nothing in the legislative history of the statute demonstrates that Congress sought to exclude “fraud type” stealing.
The petition for rehearing suggests that in 1979 the Federal Reserve System alone handled approximately 35,000,000 interbank transactions. 66th Annual Report, Board of Governors of the Federal Reserve System, 300, 323 Table 9. Undoubtedly, the overwhelming majority of these transactions were processed without error. But, as the present case illustrates, errors sometimes occur. The interpretation reached by the panel would exclude from coverage of § 2113(b) an individual’s knowing exploitation of errors arising in connection with interbank transfers, to the detriment of the banking system and the public generally.
Circuit Judge GARTH also votes for rehearing and joins Circuit Judge ADAMS’ statement.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_certreason
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
RAILWAY EXPRESS AGENCY, INC. et al. v. NEW YORK.
No. 51.
Argued December 6, 1948.
Decided January 31, 1949.
Ralph M. Carson argued the cause for appellants. With him on the brief were William R. Meagher and James V. Lione.
Stanley Buchsbaum argued the cause for appellee. With him on the brief were John P. McGrath and Seymour B. Quel.
Mr. Justice Douglas
delivered the opinion of the Court.
Section 124 of the Traffic Regulations of the City of New York promulgated by the Police Commissioner provides:
“No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery-vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used merely or mainly for advertising.”
Appellant is engaged in a nation-wide express business. It operates about 1,900 trucks in New York City and sells the space on the exterior sides of these trucks for advertising. That advertising is for the most part unconnected with its own business.* It was convicted in the magistrate’s court and fined. The judgment of conviction was sustained in the Court of Special Sessions. 188 Misc. 342, 67 N. Y. S. 2d 732. The Court of Appeals affirmed without opinion by a divided vote. 297 N. Y. 703, 77 N. E. 2d 13. The case is here on appeal. Judicial Code § 237 (a), 28 U. S. C. § 344 (a), as amended, now 28 U. S. C. § 1257.
The Court in Fifth Ave. Coach Co. v. New York, 221 U. S. 467, sustained the predecessor ordinance to the present regulation over the objection that it violated the due process and equal protection clauses of the Fourteenth Amendment. It is true that that was a municipal ordinance resting on the broad base of the police power, while the present regulation stands or falls merely as a traffic regulation. But we do not believe that distinction warrants a different result in the two cases.
The Court of Special Sessions concluded that advertising on vehicles using the streets of New York City constitutes a distraction to vehicle drivers and to pedestrians alike and therefore affects the safety of the public in the use of the streets. We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom. See Olsen v. Nebraska, 313 U. S. 236. We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false.
The question of equal protection of the laws is pressed more strenuously on us. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. It is argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation. It is said, for example, that one of appellant’s trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and vehicle drivers than if the commercial house carried the same advertisement on its own truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is therefore contended that the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried on trucks but on whose trucks they are carried.
That, however, is a superficial way of analyzing the problem, even if we assume that it is premised on the correct construction of the regulation. The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants.
We cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. Patsone v. Pennsylvania, 232 U. S. 138, 144; Marcus Brown Co. v. Feldman, 256 U. S. 170, 198-199; Metropolitan Co. v. Brownell, 294 U. S. 580, 585-586. And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. Central Lumber Co. v. South Dakota, 226 U. S. 157, 160.
It is finally contended that the regulation is a burden on interstate commerce in violation of Art. I, § 8 of the Constitution. Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where trafile control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. The case in that posture is controlled by S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177, 187 et seq. And see Maurer v. Hamilton, 309 U. S. 598.
Affirmed.
Mr. Justice Rutledge
acquiesces in the Court’s opinion and judgment, dubitante on the question of equal protection of the laws.
This regulation was promulgated by the Police Commissioner pursuant to the power granted the police department under § 435 of the New York City Charter which provides as follows: “The police department and force shall have the power and it shall be their duty to . . . regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; . . . The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary . . . .”
The advertisements for which appellant was convicted consisted of posters from three by seven feet to four by ten feet portraying Camel Cigarettes, Ringling Brothers and Barnum & Bailey Circus, and radio station WOR. Drivers of appellant’s trucks carrying advertisements of Prince Albert Smoking Tobacco and the United States Navy were also convicted.
The element of safety was held to be one of the standards by which the regulations of the Police Commissioner were to be judged. We accept that construction of the authority of the Police Commissioner under § 435 of the Charter, note 1, supra. See Price v. Illinois, 238 U. S. 446, 451; Hartford Accident Co. v. Nelson Co., 291 U. S. 352, 358; Central Hanover Bank Co. v. Kelly, 319 U. S. 94, 97.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
PEOPLE OF the STATE OF ILLINOIS, Illinois Commerce Commission, Pulaski County, Alexander County, Perks Grain Company, C. L. Casper, and John W. McGinness, Petitioners, Cairo Chamber of Commerce, the Southern Illinois Transportation Association, and the City of Cairo, Intervenors, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Missouri Pacific Railroad Company, Intervenor-Respondent.
Nos. 78-1710, 80-1908.
United States Court of Appeals, Seventh Circuit.
Argued June 1, 1981.
Decided Oct. 5, 1981.
Certiorari Denied March 8,1982.
See 102 S.Ct. 1631.
Gordon P. MacDougall, Washington, D. C., Edward Charles Spatz, Anitea Foam Corp., Bremen, Ind., for petitioner.
Sidney L. Strickland, Jr., I.C.C., Washington, D. C., James H. Durkin, Mo. Pacific Railroad Co., Chicago, 111., for respondents.
Before SPRECHER and CUDAHY, Circuit Judges, and EAST, Senior District Judge.
The Honorable William J. East, Senior District Judge for the District of Oregon, is sitting by designation.
CUDAHY, Circuit Judge.
Petitioners seek review of an I.C.C. Decision permitting the Missouri Pacific Railroad (“MoPac”) to abandon 25.7 miles of railroad in southern Illinois. The Administrative Law Judge (“AU”) initially denied the abandonment application. A panel of the I.C.C. disagreed and issued a Report and Order approving the abandonment. On appeal by way of a petition to review the I.C.C.’s order, this court permitted a voluntary remand to the full I.C.C. for further consideration. The subsequent Decision of the full Commission, which also approved the abandonment, is now before this court for review of: 1) Whether the I.C.C. erred as a matter of law about the effect on the abandonment of certain prior conditions imposed by the I.C.C. incident to a prior MoPac merger, 2) Whether the 1. C.C. findings of fact are supported by substantial evidence, and 3) Whether this court has jurisdiction to review an I.C.C. decision to withhold certain documents under the Freedom of Information Act. For the reasons stated below, we deny the petition challenging the I.C.C.’s decision of April 21, 1980.
I. Facts
In 1967, a hotly contested battle for stock ownership of the Chicago & Eastern Railroad (“Eastern”) was resolved when the Supreme Court upheld the I.C.C.’s award of conditional purchase authority to MoPac rather than to the competing Illinois Central Gulf Railroad (“IC”) in the “Control case”. Shortly thereafter, Eastern acquired trackage rights over a MoPac line, permitting through traffic to be routed around the 25.7 miles of track at issue in this case. In 1972, Eastern filed to abandon this track but the hearing was enjoined until the I.C.C. could include an environmental impact study in its deliberations. Due to the staleness of the record, a de novo hearing was scheduled for June 3, 1976. Eastern petitioned for reconsideration, arguing that the record was adequate to dispose of the issues. The I.C.C. granted the petition, cancelled the de novo hearing, and, on April 21, 1976, released the ALJ’s Initial Decision denying the abandonment.
The Initial Decision suggested that the decline in rail traffic on the line was at least partially attributable to Eastern’s shortage of railroad equipment. Further, rerouting traffic over the MoPac line was found to have contributed to the financial losses on the line. Finally, the ALJ held that the I.C.C.-imposed conditions in the Control case conflicted with the proposed abandonment.
Eastern filed exceptions to the adverse decision, and the I.C.C. reopened the proceeding under a modified procedure whereby written evidence is submitted to update the record. Shortly thereafter, Eastern was merged into MoPac, and the relevant conditions imposed in the Control case were continued. After the I.C.C. reopened the abandonment proceeding, MoPac was substituted for Eastern as the petitioner. On March 24, 1978, an I.C.C. panel released its Report and Order.
The Report and Order approved the 25.7 mile abandonment. The I.C.C. panel found that the railroad was sustaining losses in providing service over the line and that traffic was declining. Further, the panel found that appellant Tammsco, Inc., the largest shipper along the line, could find alternate rail service. Finally, the I.C.C. stated:
We turn now to the two factors the Administrative Law Judge found decisive. Neither supports a denial of the abandonment application. First, there is no basis for the assumption that, if additional equipment were available, the line would generate substantially more traffic. Secondly, our approval of the MoPacC&EI merger, without specific routing conditions, served to eliminate the two restrictions which the Administrative Law Judge felt had been violated.
354 I.C.C. at 796. The Report and Order of March 24, 1978, concluded that the adverse effect on shippers did not outweigh the carrier’s burden, and therefore, that the abandonment of the 25.7 mile line should be granted. After petitions for administrative review were denied, an appeal to this court was terminated by a voluntary remand to the I.C.C. to correct material error and receive further evidence.
A divided Commission again approved the abandonment in the April 21,1980, Decision of the full I.C.C. The carrier’s losses were recalculated under a new accounting procedure. The potential for future increases in traffic from petitioner-appellant Tammsco, Inc. was also considered and found to be too speculative “to support the conclusion that there is a reasonable likelihood of future traffic increases eliminating the existing operating deficit being incurred by the line.” ■ Finally, with regard to the merger conditions, the I.C.C. explained:
We have considered the parties’ arguments regarding the effect of the traffic conditions imposed in the Merger case and conclude that those conditions have no relevance to the issues in this proceeding. The traffic conditions imposed in the Merger case (known as standard DT&I conditions) are designed to protect the interests of connecting railroads. These conditions require that gateways and junctions with connecting lines be kept open and that neutrality of handling inbound and outbound traffic be observed. These conditions do not apply to a railroad’s routing of traffic over its own lines through its internal gateways. Use of an alternate route for bridge [or through] traffic is a matter of managerial discretion. Missouri Pac. R. Co. Abandonment, 324 I.C.C. 357, 366 (1965). Further, continued operation of a line should not be required merely because of bridge traffic that can be handled as expeditiously over another route. Gainesville Midland R. Co. Abandonment, 267 I.C.C. 256, 262 (1947).
At the time the traffic conditions were originally imposed in the Control case, the involved C&EI line connected with MoPac and connected with ICG at Tamms. In 1975, ICG discontinued the interchange at Tamms. After approval of the MoPac-CE&I merger in the Merger case, the MoPae-CE&I gateways became MoPac internal gateways. Therefore, although the Merger case continued to impose the standard DT&I conditions, these conditions are not relevant to operations over the abandonment segment because alternate MoPac routes are available which can handle bridge traffic with equal or greater efficiency and economy. MoPac’s decision in late 1976, to start routing bridge traffic over other MoPac routes was a proper exercise of managerial discretion and did not violate the traffic conditions.
I.C.C. Decision at 9-10.
Since the I.C.C. Decision, a petition to reopen the abandonment was denied in 1980. A petition for review by this court was filed and the matter argued on June 1, 1981. After briefing, but prior to the argument, petitioners filed a motion to have the I.C.C. reopen the proceedings in light of further developments. The I.C.C. refused to reopen the abandonment proceedings on July 24, 1981.
II. Conditions
Petitioners contend that conditions created in the Control case, and continued in the Merger case, prohibit abandonment “as a matter of law.” Of particular concern are the two conditions on which the ALJ relied in his Initial Decision. The first such condition was that Eastern and MoPac must maintain and keep open all routes via existing junctions and gateways. The second condition required Eastern and MoPac to observe neutrality in handling inbound, outbound and overhead traffic. Essentially, petitioners’ argue that a railroad is foreclosed from abandoning a line when it is required to “keep open all routes.” Presumably, petitioners would have the I.C.C. institute proceedings to remove the conditions before undertaking any abandonment proceedings.
Respondents note that the ALJ’s Initial Decision to this effect was overturned by the full I.C.C. The full I.C.C. concluded in its 1980 Decision that the conditions attached to the merger as contended by petitioners but that they did not have the effect of prohibiting the abandonment. Respondents have adopted the position of the full I.C.C. Decision.
The instant case appears to be the first by a federal court to consider the relationship of an I.C.C.-imposed merger condition to a subsequent abandonment. We conclude that petitioners have misconstrued the purpose of the conditions, and, in so doing, have failed to show that this abandonment is controlled by these conditions.
The specific conditions created by the I. C.C. in the instant case do not per se limit or constrain an abandonment. In the instant case and in others, the I.C.C. has construed the scope of the DT&I conditions in such a way as not to automatically preclude a subsequent abandonment. For example, in Chicago and N.W. Ry. —Purchase—Minneapolis & St. L. Ry., 312 I.C.C. 285, 295 (1960), the I.C.C. declined to add a requested condition prohibiting subsequent abandonments, noting: “. .. the merits of any future proposal of such nature [an abandonment] must be reserved for consideration in a proceeding for which such authority is sought.”
The I.C.C.’s position that subsequent abandonment proceedings must be considered on their own merits without regard to prior merger conditions has considerable support in the relevant statutory provisions. The I.C.C. may impose “just and reasonable” conditions before approving a merger between two railroads, when the conditions are necessary to protect the public interest. The statute provides that the commission shall consider at least:
(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.
49 U.S.C. § 5(2)(c) (1976) [recodified at 49 U.S.C. § 11344(b) (1978)]. The DT&I conditions are designed to restrain the kind of anti-competitive commercial conduct that might arise from an acquisition or merger. Kansas City Southern Ry. v. United States, 288 F.Supp. 742, 747-48 (W.D.Mo.1968). In the instant case, the I.C.C.’s intent is evident. The Control case itself states that the conditions “will provide just and reasonable limitations upon the ability of Missouri Pacific and Eastern to favor selected routes and gateways or to vary the degree of cooperation with the [intervenor railroads] in regard to schedules, interchanges of freight, or other arrangements.” Control, 327 I.C.C. at 309. Both here and in general, the I.C.C.’s intention is to restrain anti-competitive conduct.
A decision to allow an abandonment, in contrast, requires an assessment of whether the “public convenience and necessity” permits the abandonment. See Colorado v. United States, 271 U.S. 153, 164, 46 S.Ct. 452, 454, 70 L.Ed. 878 (1962). Various criteria are involved in the abandonment decision including, inter alia, the potential impact on shippers and the surrounding community and the costs of continued operations to the railroad. We believe that anti-competitive factors should be considered in approving abandonments. But, although an anti-competitive effect of the type barred by the DT&I conditions may be one factor relevant to the overall abandonment decision, it does not follow that such an effect would necessarily have a sufficient negative impact on public convenience and necessity to require the rejection of an abandonment. The existence of a condition that a railroad must “keep open all routes” does not per se prohibit an abandonment.
Nor have the petitioners shown how the abandonment of the 25.7 mile line segment would, under the facts of the instant ease, adversely affect the competitive posture of any other carrier. The public notice given for this proposed abandonment has not prompted any other railroad to assert that the abandonment would have anti-competitive consequences in violation of one of the merger conditions. Further there has not been a sufficient showing of anti-competitive injury to the shippers on the 25.7 mile line related to any indirect benefits provided to them by the anti-competitive conditions. Petitioners have adduced no evidence to show that there is an actual conflict between the purpose sought to be achieved by the conditions and the consequences of the abandonment.
We therefore think that the I.C.C. correctly ruled that the DT&I conditions do not prohibit, as a matter of law, the abandonment of the 25.7 mile segment of MoPac track in question. Further, on the facts before us, we believe that the proposed abandonment will not have an anti-competitive effect violative of the conditions.
III. I.C.C. Report
1. Scope of Review
Petitioners also contend that the I.C.C.’s conclusions are based on findings not supported by substantial evidence. While both parties have principally framed their arguments in terms of the absence or presence of substantial evidence to support the I.C. C.’s findings, this court has recently questioned whether the substantial evidence standard applies to the review of an I.C.C. abandonment decision. See Illinois v. United States, 666 F.2d 1066 at 1072-1073 (7th Cir. 1981). See also International Minerals & Chemical Corp. v. I.C.C., 656 F.2d 251 at 258 n.5 (7th Cir. 1981). These two decisions recognize that the substantial evidence subsection of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(E) (1976), apparently applies when hearings are provided by statute and that the statutes governing railroad abandonments do not require public hearings. See 49 U.S.C. § 1a(3) (1976) [49 U.S.C. § 10904(c)(1) (1978)]. The standard of review ultimately employed in Illinois v. United States was whether the factual findings of the I.C.C. were arbitrary, capricious or an abuse of discretion, a standard also drawn from the APA. This latter standard appears to apply to agency decisions made without a hearing (frequently informal rulemakings). See 5 U.S.C. § 706(2)(A) (1976).
We defer to the use by a panel of this court of the “arbitrary, capricious or abuse of discretion” standard in Illinois v. United States, but the distinction between that standard and the substantial evidence test is without practical significance in the case before us. Petitioners challenge the I.C.C. decision on the basis of whether certain findings are unsupported by substantial evidence and are therefore arbitrary. Because any evaluation of the “arbitrariness” of a factual finding necessitates a review of the sufficiency of the evidence, we concur with what we believe to be the thrust of Illinois v. United States, intimating that the question is much more semantic than substantial.
Finally, as to the degree of precision required under the “arbitrary” standard, the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), that a reviewing court must:
consider whether the decision was based on relevant factors and whether there has been a clear error of judgment .... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Id. at 416, 91 S.Ct. at 823. Because an abandonment application is adjudicative and not legislative in nature, Illinois at 1073, the agency must clearly address the specific legal and factual issues raised. Harborlite Corp. v. I.C.C., 613 F.2d 1088, 1092 (D.C.Cir.1979). The I.C.C. must also clearly explain why its decision differed from the decision of the original factfinder, the ALJ. 5 U.S.C. § 557(c) See NLRB v. P.P.G. Industries, Inc., 579 F.2d 1057, 1058 (7th Cir. 1978). Because the ALJ’s conclusion was based in part on findings as to the financial burden on the railroad and the impact on shippers, the I.C.C. must explain why it is rejecting the ALJ’s conclusions, while accepting his financial findings. Illinois at 1075.
2. I.C.C. Findings
As previously noted, the I.C.C. is required to determine whether the present or future public convenience or necessity supports the abandonment requested. 49 U.S.C. § 1a(4)(a) (1976) [49 U.S.C. § 10903(a) (1978)]. The I.C.C. must balance the present and prospective need for the line against any burden on interstate commerce. Colorado v. United States, 271 U.S. 153, 168, 46 S.Ct. 452, 455, 70 L.Ed. 878 (1926). The burden of proof is on the applicant railroad. 49 U.S.C. § 1a(3) (1976) [49 U.S.C. § 10904(b) (1978)].
Petitioners ask this court to review the I.C.C. findings that the 25.7 mile line has been operating and will continue to operate at a loss. The first challenge to these findings is that traffic on the line has not declined, but has been increasing.
Traffic has steadily declined in recent years, from 454 cars/year in 1970, to 373 in 1972, and 299 in 1977. There is no evidence of expected future traffic increases.
354 I.C.C. at 794. Petitioners point to other traffic figures in the record that suggest an 11-car discrepancy in the 1970 I.C.C. figures. In addition, it appears that, when reciting traffic calculations, the I.C.C. erroneously attributed the 1976 traffic to 1977. But regardless of any minor statistical errors, the line lost about one-quarter of its traffic between 1970 and 1976. Even if petitioners’ statistics correctly show that a slight upswing occurred during 1975-1978, the record indicates that from 1970 to 1978 the line traffic declined 22%. Because the errors do not cast substantial doubt on the I.C.C.’s characterization of the traffic on the line as declining, these I.C.C. mistakes represent harmless error. See Consolidated Gas Supply Corp. v. Federal Energy Regulatory Commission, 606 F.2d 323, 328 (D.C.Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 255 (1980); Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 465 (D.C.Cir.1967).
Next, petitioners challenge the I.C.C. finding that future increases in traffic are speculative. Of course, this argument would affect the result only insofar as future increases in traffic would erase the operating deficit. The disputed I.C.C. finding is as follows:
Tammsco has submitted evidence showing that its volume of traffic has been increasing in recent years and that it expects these increases to continue if adequate rail service is available. This evidence of future increases in traffic volume is speculative, however, and it is not based on specific negotiations with Tammsco customers. Although Tammsco’s traffic may have increased in recent years, the total volume of traffic over the line has been decreasing, as noted in the Division’s decision. Further, Tammsco makes no estimate of the revenue that might be derived by MoPac from its anticipated additional traffic. Therefore, we do not believe the record supports a conclusion that there is a reasonable likelihood of future traffic increases eliminating the existing operating deficit being incurred by the line.
I.C.C. Decision at 9. The sort of evidence submitted to rebut this finding is as follows: “[I]t is expected that our growth rate will continue...” and “negotiations are under progress that could put our 1978 rail shipments in excess of 20,000 tons.” These comments are inconclusive. Hence, the I.C.C.’s finding that the evidence concerning Tammsco traffic increases was speculative and inadequate to eliminate the line’s operating deficit is supported by the record.
Third, petitioners challenge the accounting method used by the I.C.C. to determine the unprofitability of the line. The I.C.C. finding in question states: “the evidence shows that the line incurred an avoidable loss of $14,147 in 1977.” I.C.C. Decision at 152.
In its Report and Order of March 24, 1978, the I.C.C. had calculated a different avoidable loss figure for 1977. One of the reasons, for requesting a remand from this court was to correct the avoidable loss figures used in the 1978 Report and Order.
When the record was reopened, however, MoPac submitted new avoidable loss calculations based upon a new method of computing off-branch costs for 1977. MoPac’s new figures reflect increased mileage for traffic originating in the south and terminating on this line. This increase has been caused by MoPac’s decision to route through traffic around this line. Traffic from the south must go north of its final destination and then south on this line, now essentially a spur line.
Petitioners contend that MoPac’s new figures overstate off-branch costs by $20,-000. Petitioners’ argument is based upon a projection from the off-branch cost/revenue ratio existing prior to 1977. The projected figures ignore the reality that traffic routing patterns changed in 1977. Through traffic no longer moves over this line. Indeed, such movement would be time-consuming because of speed restrictions on the line.
The I.C.C. explained its adoption of MoPac’s cost recalculation as a reliance on actual costs. Because the procedure accounts for the material change in traffic routing, the I.C.C. correctly chose to employ an accounting procedure more firmly anchored in reality. The I.C.C. sufficiently explained the reasons for its accounting procedures, and its findings of fact are supported by the record.
Finally, petitioners dispute the 1. C.C. factual finding that the IC can provide adequate alternative service for Tammsco, the largest shipper on the line. The IC maintains service to Tamms, Illinois, and MoPac has offered to give Tammsco a segment of siding that connects with the IC. The I.C.C. found that the IC service did not differ materially from the existing MoPac service although both were infrequent and suffered from a shortage of boxcars. Petitioners first argue that the IC was not providing service until after the record in this proceeding was closed; second, they contend that the IC may soon abandon the line which provides service to Tammsco.
These1 arguments are not persuasive. The IC commenced service prior to the MoPac abandonment and is serving the line at the present time. Although service did not commence until after the record closed, petitioners do not suggest, nor does it occur to us, what could prohibit the I.C.C. from taking official notice of the later commencement of the service. The fact that the IC may subsequently abandon the line should not be considered in the instant case. The IC is alleged only to have indicated on its system map that an abandonment application may be filed within three years. If the IC management ultimately decides to file an application, the I.C.C. is statutorily required to consider the interest of shippers such as Tammsco as part of the determination of whether the public convenience and necessity would permit the IC abandonment. Absent a clear showing why different treatment is required, each abandonment proceeding must be decided on its own merits. Illinois v. I.C.C., 615 F.2d 743, 749 (7th Cir. 1980). Further, if we were to consider every prospective (and presently hypothetical) abandonment as relevant to the one before us, we might never bring any case to a close. See I.C.C. v. City of Jersey City, 322 U.S. 503, 514-15, 64 S.Ct. 1129, 1134-35, 88 L.Ed. 1420 (1944). The findings and conclusions of the I.C.C. regarding the alternative service by the IC are supported by substantial evidence and are not arbitrary.
IV. Documents
Petitioners-appellants ask this court to secure certain documents, or to remand this proceeding to require the I.C.C. to provide “the explanatory documents necessary to its decision.” Petitioners’ Brief at 2S. Petitioners’ request for the documents was denied by the- I.C.C. Information/Privacy Officer, and, on appeal, by the Chairman of the I.C.C. The request was made pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1976), and not pursuant to discovery. Although the request included the notation “Re: Docket No. AB-11,” the procedure was unmistakably that of the FOIA. Because petitioners have employed a separate proceeding to obtain these documents, the issue is not for our review. Appeal from an agency denial of a FOIA request should be raised in the district court for de novo review. 5 U.S.C. § 552(a)(4)(B) (1976).
V. Conclusion
We have carefully considered all other issues raised by this appeal and find them tó be without merit. Accordingly, we deny the petition challenging the I.C.C.’s order of April 21, 1980 granting abandonment with respect to the 25.7 miles of track.
. Petitioners are the People of the State of Illinois, Illinois Commerce Commission, Pulaski County, Alexander County, Tammsco, Inc., Perks Grain Company, C. L. Casper (a private citizen), and John W. McGinness (for the United Transportation Union). The City of Cairo, Cairo Chamber of Commerce and Southern Illinois Transportation Association are intervening petitioners. Respondents are the Interstate Commerce Commission and the United States of America. Missouri Pacific Railroad is an intervening respondent.
. I.C.C. Docket No. AB-11, Chicago and Eastern Illinois Railroad Company Abandonment, (Initial Decision, October 26, 1973) (unpublished).
. I.C.C. Docket No. AB-11, Chicago and Eastern Illinois Railroad Company Abandonment, (Report and Order, March 24, 1978) 354 I.C.C. 789 (1978).
. I.C.C. Docket No. AB-11, Chicago and Eastern Illinois Railroad Company Abandonment, (Decision, April 21, 1980) (unpublished).
. Illinois Central R.R. v. United States, 385 U.S. 457, 87 S.Ct. 612, 17 L.Ed.2d 509 (1966). The conditions imposed by the I.C.C. are known as DT&I conditions — so called because their origin is traced to Detroit, Toledo and Ironton R.R., 275 I.C.C. 455 (1950). Particularly at issue are the following:
1. Under control of Missouri Pacific, Eastern shall maintain and keep open all routes and channels of trade via existing junctions and gateways, unless and until otherwise authorized by the Commission.
2. The present neutrality of handling traffic inbound and outbound and in overhead service by Eastern shall be continued so as to permit equal opportunity for service to and from all lines reaching the rails of Eastern without discrimination in the arrangements of schedules or otherwise.
Missouri Pac. R.R. —Control—Chicago & E.I. R.R., 327 I.C.C. 279 (1965), petition for review denied, Illinois Central R.R. v. United States, 263 F.Supp. 421 (N.D.Ill.1966) (three-judge court), aff’d, 385 U.S. 457, 87 S.Ct. 612, 17 L.Ed.2d 509 (1967). These conditions have been uniformly imposed on railroad control and merger cases until recently. See Missouri-Kansas-Texas R.R. v. United States, 632 F.2d 392, 404 (5th Cir. 1980).
. The environmental evaluation was required under section 102(2)(c) of the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq. See Harlem Valley Transportation Ass’n v. Stafford, 360 F.Supp. 1057 (S.D.N.Y.1973), aff’d, 500 F.2d 328 (2d Cir. 1974).
. Interestingly, the court-ordered environmental impact statement was completed by the I.C.C. in 1976, but ALJ Thomas Callanan, who wrote the Initial Decision, died in 1974.
. MoPac —Merger—T&P and C&EI, 348 I.C.C. 414 (1976) (“Merger case”).
. Id-, at 415-16.
. I.C.C. Decision at 9.
. Relying on the language of the Initial Decision, petitioners concur in the ALJ’s assessment that “[fjrom the record established here, one cannot help but to [sic] conclude that these two mandatory restrictions would have to be ignored if the applications [for abandonment] were granted.” Initial Decision at 6-7.
. In the Report and Order, the I.C.C. panel had held in 1978 that the conditions created in the Control case were extinguished by the Merger case. The subsequent interpretation of the conditions by the full I.C.C. reflects, in part, the “material error” that caused the I.C.C. to seek a remand from this court of the initial petition for review.
. Presumably the IC, which litigated the Control case to the Supreme Court, would have the greatest interest in the integrity of the conditions imposed, in part, for its protection. Because the IC declined an opportunity to participate in this proceeding, we question how the 25.7 mile abandonment would have any impact on the protection afforded to the IC by the conditions.
. Essentially, we think the I.C.C.’s construction of its own merger conditions is entitled to great weight in a subsequent abandonment proceeding because the I.C.C. imposed the merger conditions in the first instance. Because the I.C.C.’s construction of the conditions does not prohibit the abandonment in question, we do not need to consider whether, in general, a condition can be created which would limit MoPac’s right to proceed under the abandonment statutes.
. Petitioners have raised several other arguments that are ultimately premised on the assumption that the DT&I conditions preclude this abandonment. For example, it is alleged that a pre-abandonment trackage rights agreement improperly voided the conditions and that abandonment of this “main line” of the predecessor Eastern system is barred by control conditions designed to preserve Eastern’s main lines. But these alleged violations of the conditions are insufficient to block this abandonment.
Petitioners have also argued that MoPac and Eastern should not have been able to reroute through traffic off of this line to other MoPac lines under the DT&I conditions. Petitioners claim that the rerouting has improperly skewed all of the financial data relevant to the costs and revenues attributable to the line. The conditions do not pertain to a railroad’s neutral managerial decisions as to which internal route will be employed for through traffic. Missouri Pacific R.R. Abandonment, 324 I.C.C. 357, 366 (1965).
. Petitioners further urge this court “to remand and have the agency’s views in light of its ongoing inquiry in Rulemaking Concerning Traffic Protective Conditions in Railroad Consolidation Proceedings Ex Parte 282 (Sub. No. 5), 45 F.R. 46461-6464 (July 10, 1980).” Petitioners’ Brief at 27-28. Petitioners do not indicate, nor do we understand, how this rulemaking proceeding is relevant to the interpretation of the DT&I conditions in a line abandonment proceeding such as the one before us. Nonetheless, we have reviewed the document produced by that rulemaking, General Policy Statement for Mergers or Control of at least two Class 1 Railroads, 46 Fed.Reg. 9113-14 (January 28, 1981), and note that the Commission views its broad authority to impose conditions as “useful in ameliorating the anti-competitive effects of a consolidation.” Id. at 9114. This view is consistent with our holding in the instant case.
. Petitioners have not argued, Pet.Reply Brief at 3, that the I.C.C. Decision was arbitrary even in the face of correct factual findings, for example, because there was no rational connection between the findings and the ultimate decision of the I.C.C. Compare Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Norton v. Macy, 417 F.2d 1161 (D.C.Cir.1969); Mindel v. Civil Service Comm’n., 312 F.Supp. 485 (N.D.Cal.1970).
. Verified statement of John Norton, March 19, 1979.
. Verified statement of John Norton, September 6, 1977.
. The rerouting has been upheld earlier in this opinion. See note 15 supra.
. “The earnings capacity of overhead traffic which may be economically handled over other lines of the carrier is of little relevance in abandonment proceedings. See Seaboard Coast Line R. Co. —Abandonment, 360 I.C.C. 123, 127 (1974).” I.C.C. Decision at 7.
. Intervening petitioners Cairo Chamber of Commerce, the Southern Illinois Transportation Association and the City of Cairo also argue that the I.C.C.’s accounting standards in abandonment proceedings are inadequate: “Assuming the [1977] loss to be $14,147 instead of a profit, then when this loss is compared to ... [MoPac’s total] profit in 1977 . .. the percent of loss is 0.01228 percent.” Supplemental Brief for Petitioner-Intervenor at 10. If accepted, this dubious reasoning would prohibit large, profitable railroads from ever abandoning small lines that generate losses. The I.C.C. financial guidelines are adequate in this regard. See Southern Ry. v. North Carolina, 376 U.S. 93, 104-05, 84 S.Ct. 564, 570-71, 11 L.Ed.2d 541 (1964).
. We have reviewed petitioners’ additional memorandum of August 3, 1981, and documents filed to supplement the record on May 26, 1981, on this matter but reject their conclusions for the reasons stated in the text.
. These documents include a draft decision, written views of General Counsel, a memo rejecting the decision, a revised decision, further written views of General Counsel, and a memo rejecting the revised edition.
. Petitioners’ Brief at 27A.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_deathpen
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the death penalty was improperly imposed? Consider only the validity of the sentence, rather than whether or not the conviction was proper." 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".
INTERNATIONAL PRODUCTS CORPORATION, Plaintiff-Appellee, v. Charles A. KOONS, and Jane Roe, Richard Roe and Charles A. Koons, individually and as co-partners doing business under the firm name and style of Charles A. Koons & Company, Defendants-Appellants.
No. 159, Docket 28430.
United States Court of Appeals Second Circuit.
Argued Oct. 4, 1963.
Decided Oct. 28, 1963.
See also, D.C., 33 F.R.D. 21.
Gustave B. Garfield, Francis X. Stephens, Jr., New York City, for defendants-appellants.
Robert B. Block, Pomerantz, Levy, Haudek & Block, New York City, for plaintiff-appellee.
Arthur S. Olick, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, for the United States.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
. This conclusion that the order was not an “injunction” in the sense used in the federal statutes and rules also answers appellants’ contentions as to alleged violations of F.R.Civ.Proc. 65.
FRIENDLY, Circuit Judge.
This is an appeal, allegedly pursuant to 28 U.S.C. § 1292(a) (1), from an order of Judge Metzner in an action brought in the District Court for the Southern District of New York, on the basis of diverse citizenship, by International Products Corporation against Koons, its former president, and others. Koons has counter-claimed and also has instituted a suit for libel against International and its directors. The order concerns a deposition of Jose Seldes, now president of International, taken at defendants’ instance, in which questions were asked as to payments by officers of International to officials of a South American government, and related matters; for convenience we quote the ordering portions in the margin.
The proceedings leading to the order began with an order to show cause signed by Judge Croake on May 24, 1963, itself providing for similar relief pending disposition of the motion which was to be heard on June 6; the order to show cause directed that service be made not only upon defendants and their counsel but,, also upon the Legal Adviser to the Department of State and the Deputy Attorney General. The moving affidavit had claimed that the described material, if publicized in South America, not merely “could be extremely embarrassing and •cause great inconvenience and hardship to International and Jose Seldes” but “would be contrary to the best interests of the foreign policy of the United States,” and that the affiant had “been advised that the Department of State has been informed of this situation and has requested that it and the Department of Justice be notified of this application in order that the Court might ascertain the position of the United States Government with respect thereto.” On June 5, the Assistant Secretary of State for Inter-American Affairs sent the Attorney General a letter which, after referring to the action and the order to show cause, requested the Attorney General to support International’s attempt to preclude disclosure. The next day the United States Attorney for the Southern District of New York filed a Suggestion of Interest of the United States at the direction of the Attorney General pursuant to 5 U.S.C. § 316. A copy of the Assistant Secretary’s letter was attached, and the United States Attorney submitted “to the Court that an order limiting disclosure, as described in this Court’s order to show cause, dated May 24, 1963, would further the foreign policy objective of the United States.” Appellants contend that the Suggestion of Interest was unauthorized by 5 U.S.C. § 316 and that the order deprived them of rights to freedom of speech and to proper preparation of their case which are guaranteed by the First and Fifth Amendments.
We must deal first with appealability. Appellants claim the order was an injunction pendente lite appeal-able under 28 U.S.C. § 1292(a) (1). Appellee responds that the order was simply a pre-trial order under F.R.Civ.Proc. 30 (b), which authorizes the court to seal a deposition and to “make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression”; it calls attention to some of the decisions cited below that the mere presence of words of restraint or direction in an order that is only a step in an action does not make § 1292(a) (1) applicable. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955) ; Fleischer v. Phillips, 264 F.2d 515, 516 (2 Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Armstrong-Norwalk Rubber Corp. v. Local 283, United Rubber Workers, 269 F.2d 618, 621 (2 Cir. 1959); Greenstein v. National Skirt & Sportswear Ass’n, 274 F.2d 430 (2 Cir. 1960); Grant v. United States, 282 F.2d 165, 169 (2 Cir. 1960); Taylor v. Board of Educ., 288 F.2d 600, 604 (2 Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 84-86 (2 Cir. 1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962). These decisions make it plain, for example, that an order sealing a deposition would not be rendered appealable by the addition of a direction to those who attended its taking to refrain from disclosing what they had heard. See 6 Moore, Federal Practice (1953), pp. 46 and 147, and cases there cited. But that does not altogether settle the issue here, since the order enjoined defendants from utilizing not only the deposition but also documents or writings which they had themselves produced or submitted. The single order entered by the district judge might therefore be viewed as in effect two orders: one under F.R.Civ.Proc. 30 (b), which is not appealable, and another going beyond the authority of the Rule, which is. Support for doing this might] be sought in the principle that when a, distinction has to be drawn between a' temporary restraining order, which is, not appealable, and a preliminary injunction, which is, “the label put on the order by the trial court is not decisive,” 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1440, at 509. See Sims v. Greene, 160 F.2d 512 (3 Cir. 1947); Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417-418 (5 Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); Pennsylvania Motor Truck Ass’n v. Port of Philadelphia Marine Terminal Ass’n, 276 F.2d 931 (3 Cir. 1960); Parker v. Columbia Broadcasting System, 320 F.2d 937 (2 Cir. 1963).
We think it better, in line with our prior decisions, to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint (including stays of proceedings “at law,” as in Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)) and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the. substantive issues in the action, while awaiting trial. As explained in Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S. at 181, 75 S.Ct. at 252 and Grant v. United States, supra, 282 F.2d at 169, such a construction provides a better fit with the language of the statute, “where, upon a hearing in equity in a district court,” as this first appeared in § 7 of the Evarts Act, c. 517, 26 Stat. 828 (1891) and later in the Judicial Code of 1911, § 129, 36 Stat. 1134; with the conclusion that the omission of the words “in equity” in the Act of February 13, 1925, 43 Stat. 937, “was not intended to remove that limitation,” Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 457, fn. 3, 55 S.Ct. 475, 477, 79 L.Ed. 989 (1935); and with the policy considerations which led Congress to create this exception to the federal final judgment rule. Furthermore, to read § 1292(a) (1) so broadly as to include an order, purportedly under F.R.Civ. Proc. 30(b), which grants injunctive relief beyond what the Rule authorizes, would also bring within the- sweep of the statute orders denying requests for such relief, although there would be no such need for appellate intervention as is -created by appellants’ claim that the instant order violates their constitutional rights, and thus to extend our jurisdiction under § 1292(a) (1) would seem quite inconsistent with the federal policy of finality. A decision like Sims v. Greene, supra, that what had been label-led a temporary restraining order was appealable as a temporary injunction, does not run counter to what we deem the correct construction of the statute, since the order related to the very equitable relief sought by the complaint. Neither would we regard the instant order as falling “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the .action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as we recently did in National Equipment Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784 (2 Cir., 1963).
It does not follow, however, "that an order purportedly made under F.R.Civ.Proc. 30(b) which exceeds the power there given to a district court is altogether beyond appellate scrutiny. The normal remedy for action taken in excess of jurisdiction is mandamus. See Rabekoff v. Lazere & Co., 325 F.2d 865, 867 fn. 1 (2 Cir. 1963). In contrast with at least one other circuit, this court has generally declined to consider an appeal from a nonappealable order as a petition for mandamus. See the authorities cited in United States v. O’Connor, 291 F.2d 520, 523-524 (2 Cir. 1961), in which we did so consider an unauthorized appeal in a case where the judge had died. As indicated in the O’Connor opinion, the only justification for what has been thought to be a rather formalistic attitude on our part, see 6 Moore, Federal Practice (1953 ed.), p. 93, is a desire to afford an opportunity for response by the judge, in addition to that made by the party favored by his order. Since this opportunity is rarely availed of, a suitable accommodation can be reached by treating such an appeal, in an appropriate case, as a motion for leave to file a petition for mandamus. An expression of this Court’s views on such a motion will generally obviate any need for a petition or a writ, while still leaving it open to the judge to await a formal petition in the rare case where he wishes to be heard,
The portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. 30(b), and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes. Whether or not the Rule itself authorizes so much of the order as also seals all affidavits submitted by defendants on various motions, we have no question as to the court’s jurisdiction to do this under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices,” Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 31 L.Ed. 374 (1888); Parker v. Columbia Broadcasting System, supra, 320 F.2d at 938, or as to the propriety of the exercise of discretion here. Even though the affidavits were defendants’ own productions, their quasi-official appearance might give them more weight with the uninformed than they were entitled to receive, and newspapers might feel freer to publish them, under the privilege to report judicial proceedings, than extra-judicial statements.
What causes concern here is that the order went further and curtailed disclosure of information and writings which defendants and their counsel possessed before they sought to take Seldes’ deposition. We fail to see how the use of such documents or information in arguing motions can justify an order preventing defendants and their counsel from exercising their First Amendment rights to disclose such documents and information free of governmental restraint. Indeed, so far as concerns any claim based on the private interests of International or of Seldes, that question was settled against appellee by our decision in the Parker case, supra, 320 F.2d at 939, a few weeks after the order here under attack was entered. The issue that re^ mains is whether any different conclusion' is called for in this ease because of the Suggestion of Interest of the United States.
Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice “to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the-courts of any State * * Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M’Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L.Ed. 287 (1812), as he has frequently done thereafter. Yet “the interests of the United States” in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them — the same interests asserted here.
Whatever the case may be as to suggestions of sovereign immunity, see American Law Institute, Restatement of Foreign Relations Law (Proposed Official Draft), § 75 (1962), it is plain that the suggestion here did not bind the court and certainly did not relieve it of the necessity of considering whether the action proposed to be taken would violate the First Amendment. We know of no authority that a court may restrain a private citizen in peace time from giving vent to his views, or publicizing his own information, as to the conduct of officials of foreign governments — any more than it may exert prior restraint on his publication of views concerning officials of our own. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1934). The facts here are far, indeed, from the “exceptional cases” of valid prior restraints recognized in Near — “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” 283 U.S. at 716, 83 S.Ct. 631, 75 L.Ed. 1357; we need not attempt to determine just where the line runs. The conduct of our country’s international relations might indeed be somewhat easier if citizens could be prevented from publicly reflecting on officials of foreign governments even when their information had been privately obtained. But the price of any such facilitation is higher than we have chosen to pay; we rely instead on the responsibility of the press and on the ability of the foreign service to explain to other governments that our Constitution does not permit such suppression of private thought.
We therefore suggest that the District Court modify its order so as to make it plain that no restrictions are imposed on the freedom of the persons named therein to make whatever use they wish of writings (other than papers filed in court) or information which have come into their possession otherwise than through the court’s processes; if this is not done, as we are confident that it will be, appellants may apply for a writ. Since the briefs and appendices of the parties contain some matter the publicizing of which was properly restricted the Clerk is directed to obtain and impound all copies of the same. Appellants may recover their costs as on appeal.
. “Ordered, that the defendants, their attorney, Francis X. Stephens, Jr., Esq., their counsel, Gustave B. Garfield, Esq., and the Bar Association Reporting Service, and any of their representatives or employees, be enjoined from publishing or disclosing to any third party any of the testimony, documents or writing contained or referred to in any of the depositions in the action or documents or writings produced or submitted to this Court, concerning payments to officials of any South American Government, but not restricting the defendants in the use of the discovered information, documents or writing, for trial preparation, includ-
ing depositions of witnesses and pre-trial discovery in connection therewith, or for the trial proper of this action or any other lawsuit in the City, State, or Federal courts in the United States, the use in other lawsuits, however, being subject to the aforesaid restrictions pertaining to disclosure to parties unrelated to the lawsuit in which such information, documents or writings is used; and it is further
“Ordered, that after the deposition of Jose Seldes, held on January 14, 1963, May 23, 1963, and any continuance thereof, and the exhibits marked in connection therewith, is sealed, said deposition shall only be opened by order of this Court; and it is further
“Ordered, that the affidavit of Gustave B. Garfield, Esq., dated April 3, 1963, and the exhibit thereto, submitted in testimony, and now on file in this Court, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes; and it is further
“Ordered, that all papers on this motion, including the Order to Show Cause, signed by the Honorable Thomas F. Oroake, United States District Judge, and dated May 24, 1963, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes.”
Garfield’s affidavit of April 3, 1963, referred to in the penultimate paragraph, was made in support of a motion to compel Seldes to answer certain questions.
. The letter said in relevant part:
“The Department of State understands that certain payments, allegedly improper, may have been made by parties or deponents in this litigation to officials of a friendly South American Government. Disclosures and publication to the public at large of the facts alleged in the course of the pretrial proceedings could, in the opinion of the Department of State, lead the Government of the aforesaid friendly country to react in a manner inimical to private American business interests in that country and contrary to the foreign policy objective of the United States.
“Accordingly, this Department requests that you support the attempt to preclude disclosure of the information described above, and that you bring to the attention of the Court the undesirability of premature public disclosure of these allegations.
“This request is subject, of course, to the recognized right of interested parties to apply in the future for orders releasing such information as the interests of justice may require.”
. This would seem to us to have been the appropriate course in Parker v. Columbia Broadcasting System, supra. The Parker case came before the court without formal briefs. The only question considered as to . appealability was whether the order under appeal was a temporary restraining order or a preliminary injunction — not whether it was the kind of command that constituted an “injunction” within § 1292 (a) (1).
. For other types of suggestions of interest on behalf of the Department of State, see Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); Ivancevic v. Artukovic, 211 F.2d 565, 566, fn. 4 (9 Cir.), cert, denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954); Pierre v. Eastern Air Lines, Inc., 152 F.Supp. 486 (D. N. J.1957); Note, Federal Intervention in Private Actions Involving tbe Public Interest, 65 Harv.L.Rev. 319 (1951); Bilder, The Office of the Legal Adviser, 56 Am.J.Int’l Law 633, 676-78 (1962).
. Although we sustain the power of the Attorney General to submit the State Department’s letter, the case raises a question, already mooted as to suggestions of sovereign immunity, see Cardozo, Sovereign Immunity: The Plaintiff Deserves a Day in Court, 67 Harv.L.Rev. 608, 617-18 (1954), whether the Department of State ought not adopt procedures — which could be quite informal — to assure a hearing of the other side before it moves into a case like this. Although a hearing is not required by statute, neither § 4 nor § 5 of the Administrative Procedure Act being applicable, the weight propeily given by the courts to representations from the Department of State would appear to make it desirable that, before deciding to interpose its views in a private litigation, the Department normally should hear why it ought not as well as why it ought. It seems not unlikely that if appellants had been given an opportunity to present their views, the Department might have concluded that, in the light of considerations which it has regarded as generally militating against its intervention in private litigation, well described in Bilder, supra, 56 Am.J.Int’l Law at 67S, the interests of the United States were not in such jeopardy as to warrant the action taken here, or, at least, that the Government should not indorse the full relief sought. However, the order to show cause should have alerted appellants to the likelihood of action by the Department of State, and there is nothing to indicate a request on their part for a conference with the Legal Adviser. See American Law Institute Restatement of Foreign Relations Law, Proposed Official Draft, Reporters’ Notes on § 74.
Question: Did the court conclude that the death penalty was improperly imposed? Consider only the validity of the sentence, rather than whether or not the conviction was proper.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_app_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 an appellant.
IDAHO POWER CO v. FEDERAL POWER COMMISSION.
No. 10530.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 11, 1950.
Decided May 10, 1951.
A. C. Inman, of the Bar of the Supreme Court of Idaho, Boise, Idaho, pro hac vice, by special leave of Court, and Harry Poth, Jr., Washington, D. C., for petitioner.
Willard W. Gatchell, Asst. General Counsel, Federal Power Commission, Washington, D. G, with whom Bradford Ross, General Counsel, Federal Power Commission, and John C. Mason, Attorney, Federal Power Commission, Washington, D. G, were on the brief, for respondent.
Before WILBUR K. MILLER and PRETTYMAN, Circuit Judges, and KIM-BROUGH STONE, Circuit Judge, retired (sitting by designation).
PRETTYMAN, Circuit Judge.
This is a petition to review an order of the Federal Power Commission, granting a license for the construction, operation and maintenance of a power project on federal lands. Petitioner (hereinafter called the “Company”) is a private corporation, a public utility, and was the applicant for the license. Its prayer to this court is that the order of the Commission be modified by striking therefrom certain conditions imposed by the Commission upon the license.
In 1947 the Company applied for a license for the construction, operation and maintenance of a hydroelectric project, including a dam and a power plant, located on the Snake River in south-central Idaho, occupying in part lands of the United States. This application was pursuant to Section 4(e) of the Federal Power Act. In 1948 the Commission authorized issuance of the license but reserved “the right to determine at a later date what transmission facilities should be included in the license as part of the project.” In 1949 the Company applied for an amendment of its license to include as a part of the project two proposed high-voltage (138,000 volts) primary transmission lines. One such line was to run approximately 73 miles from the power plant to a point near the City of Boise. The other was to run approximately 116 miles from the plant to a point near the City of American Falls. Both lines crossed lands of the United States, and both joined the Company’s interconnected primary transmission system. The Company applied for and was granted prelicense permission to proceed with the construction of the two lines, pending consideration of the application for amendment. In October, 1949, the Commission entered an order, which superseded its original order, authorizing the license. Among other things, this new order authorized the construction of the two 138-kilo-volt lines as part of the project but imposed upon such construction and operation certain special conditions.
These special conditions are reproduced in full text in footnote 2 below, but they may be summarized as follows:
The Company shall not convert the lines to permit operation at a higher voltage without prior approval of the Commission, but, upon request of the Secretary of the Interior and after one year’s notice from the Commission, the Company shall convert the lines for operation at 230 kilo-volts. The Company shall permit the United States to interconnect any of its (i. e., the United States’) transmission facilities with these two lines, provided there is capacity available in the lines in excess of the needs of the Company. Upon completion of such interconnections the United States shall have the right to transfer energy over the lines in such amounts as will not unreasonably interfere with the Company’s use of the lines. After any such interconnection the Company shall, except in emergencies, maintain in a closed position all connections between the Company’s lines and the interconnecting facilities of the United States. If, after the Company commences transmission of energy over its lines for the United States, the Company notifies the Commission that it needs the whole or any substantial part of the capacity of the lines then being utilized by the United States, the Company may modify or revoke the agreement to remain interconnected by giving the Commission 30 months’ notice. Any agreement between the Company and the United States in connection with the transmission lines shall be effective only upon approval by the Commission. In the event the Company and the United States are unable to agree with respect to any matter arising in connection with the transmission lines, the question thereby raised shall be submitted to the Commission for determination.
In sum, the Commission required, as conditions to the license, that the licensee agree to increase the capacity of its lines at Government request and thereafter to transmit Government power, the lines to remain interconnected unless and until thirty months’ notice is given. The question presented by this petition for review is whether the Commission has authority to impose those conditions upon a license for the construction and operation of a power project upon federal lands under the terms of the Federal Power Act.
It is necessary that we first delimit the question. There is no doubt as to the power of Congress to impose such conditions as are proper in its judgment to be imposed upon the use of pubjic lands. The Constitution specifically provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; * * * ”
No question of contract is involved. No question is raised as to the character of the transmission lines as primary and thus as part of the power project within the meaning of the statute. No question is raised as to the financial terms incorporated in the proposed conditions; the terms of the license as proposed by the Commission include detailed provisions as to compensation to the Company by the United States for the expense of converting the lines and for transmitting energy of or for the United States.
As thus delimited the question before us is: Has Congress conferred upon the Commission authority to impose upon a license for a power project on public lands requirements that the licensee increase the proposed capacity of its primary transmission lines, interconnect those lines with power project of the United' States, and transmit over its lines for the United States power generated by or belonging to the United States? We are of opinion that the Commission does not have the statutory authority which it here claims.
The question whether the United States, should require a private company, licensed to construct a private power plant on public lands or to cross public lands with its-transmission lines, to interconnect its facilities with public power projects, was a major one in the consideration of the policies and terms of power development upon, public property. It was a highly controversial issue. During the course of the-consideration of the bill which eventually became the Federal Power Act, the subject was broached at least three times, and upon each' occasion the witness testifying on behalf of the bill as the representative of the Power Commission assured the Congress that the proposed bill did not make it possible for the Government to utilize the transmission lines of private companies or to require the transmission of power generated ’by a Government plant over the lines of private operating companies. Three excerpts from this testimony are reproduced in footnote 4 below. Finally Congress inserted in the statute, as Section 201(f), a provision that no provision in that Part of the statute shall be deemed to include the United States or any of its agencies. That Part is the Part which deals with, among other things, the interconnection and coordination of facilities. The specific ex-elusion of the facilities of the United States from the possibility of interconnection and coordination under the terms of that Part of the statute seems clearly to be a declaration of congressional intent upon the subject. So much seems plain enough.
At this point the argument turns to specific terms in the statute. The Federal Power Act is in Parts. Part I deals with licenses and Part II deals with the interconnection of facilities. The exclusion of the United States, which we have just discussed, is in Part II, and its language is: “No provision in this Part shall apply to, or be deemed to include, the United States * * The Commission says that under this language the exclusion applies only to provisions of Part II and has no application to licenses, which are treated in Part I.
We examine Part I. It prescribes the conditions upon which licenses should be issued. It does not mention interconnection with Government facilities or transmission of Government energy as permissible conditions. But the Commission points to the catchall clause at the end of the specified conditions. That general clause, read in conjunction with the introductory clause of the Section, is: “All licenses issued under this Part shall be on the following conditions: * * *.
“(g) Such other conditions not inconsistent with the provisions of this Act as the commission may require.”
The language prohibits conditions inconsistent with other provisions “of this Act” — not of Part I alone but of the Act. The exclusion of the United States from interconnecting arrangements, while in Part II, is nevertheless in the Act. And so this general clause in Part I, upon which the Commission relies, forbids conditions upon licenses inconsistent with other provisions throughout the Act. Specifically, it forbids, among other things, a condition inconsistent with the exclusion of the United States from interconnection arrangements.
The Commission next says that its general power to prescribe conditions must be interpreted in the light of the opening clauses of the Section (Section 10, which is in Part I) which relates to those conditions. The first subparagraph in that Section reads, in pertinent part: “All licenses issued under this Part shall be on the following conditions:
“(a) That the project adopted * * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, * * *.” The Commission says that the interconnection of the Company’s transmission lines with Government generating and transmission facilities is best adapted to a comprehensive plan for developing a waterway for beneficial public uses and for the improvement and utilization of water-power development in the area. The Section last quoted (Section 10) ■obviously applies primarily to the type, location, size and purpose of the project. We think that its terms cannot be construed to require the interconnection of private facilities with public facilities and the compulsory transmission of public power by a private company, in view of the fact that Congress specifically forbade such interconnections in the Part of the statute which deals with that subject.
The problem which is presented to us in this case is essentially a legislative problem. Congress has ample power, as we have said, to prescribe the conditions upon which the water-power potentialities of public lands shall be developed. Its only declaration upon the interconnection of Government and private facilities is the one to which we have referred and which precludes that interconnection. If the Commission believes it to be in the public interest to prescribe such a condition upon power project licenses, it should present its views to the Congress.
The order of the Commission will be modified by the elimination therefrom of paragraph (F), and the case will be remanded to the Commission for the entry of an order in accordance with this opinion.
Remanded for modification of order.
. 41 Stat. 1065 (1920), as amended, 49 Stat. 840 (1935), 16 U.S.C.A. § 797(e).
. “(F) The construction and operation of the transmission lines from the Bliss plant to substations near American Falls and Boise shall be subject to the following special conditions:
“(1) The licensee shall not convert said lines to permit operation at a higher voltage without prior approval of the Commission. Upon the request of the Secretary of the Interior under appropriate authority, the licensee shall, after notice of at least one year from the Commission and within the time fixed by the Commission, convert said lines for operation at a voltage of 230 kv at the expense of the United States.
“(2) After the initial construction of the lines or upon conversion of the lines to a higher voltage as herein provided, the licensee shall permit the United States, and the United States shall have the right, to interconnect any of its transmission facilities with said lines in a manner conforming to approved standards of practice for the interconnection of transmission circuits provided there is capacity available in said line or lines in excess of the needs of the licensee. The expense of such interconnection, including the expense of additional switching, relaying, and other protective devices, shall be borne by the United States, provided, however, that no such interconnection may be made without the prior approval of the Commission.
“(3) Upon completion of any such interconnections, the United States shall have the right to transfer energy over said lines as initially or ultimately constructed in such amounts as will not unreasonably interfere with the licensee's use of said lines provided that the licensee shall be obligated to allow the transmission over the said lines by the United States of electric energy only to consuming facilities of the United States and to public bodies and cooperatives entitled to statutory preference in connection with the distribution and sale of electric energy by the United States.
“(4) After any such interconnection of the facilities of the United States with said lines the licensee shall, except in emergencies, maintain in a closed position all connections under the licensee’s control between the licensee’s lines and the interconnecting facilities provided by the United States.
“(5) Any interconnected power systems of the United States and the licensee shall be operated in parallel and in such manner as to render good and adequate service. Any inadvertent flow of energy from the lines of the United States into said lines or from said lines into the lines of the United States which may occur while the lines of both the li-eensee and the United States are electrically interconnected shall mutually be compensated for by later return in kind. Any scheduled transfer of energy over said lines for the account of the United States shall be settled for, or any investment in said lines made by the United States shall be liquidated, on reasonable terms under agreements which shall be negotiated between the licensee and the United States, said agreements to be subject to approval by the Commission.
“(6) Until such agreements are completed, settlement for any such scheduled transfers of power shall be made on the following basis: If power and energy from the lines of the United States is transmitted over these lines, the monthly payment for such transmission shall be the amount of dollars representing that part of the monthly cost to the licensee of the section of the line or lines over which the power and energy is transmitted which the maximum transmission by the United States in ldlowatts during the month bears to the kilowatt capacity of such section of line or lines. The monthly cost to the licensee referred to herein shall be computed in conformity with the uniform system of accounts prescribed by the Commission.
“(7) In the event the licensee, its successors or assigns, during any period in which the United States is transmitting power over these lines, shall require reciprocal accommodations for the transfer of power from these project lines over any lines of the United States connected to said lines of 'the licensee, such reciprocal accommodations shall be accorded to the licensee under like terms and conditions as herein provided for the transfer of power from the lines of the United States over said lines of the licensee.
“(8) If, at any time subsequent to the date upon which the licensee commences the transmission of energy over said lines for the United States, the licensee notifies the Commission that the licensee needs for the transmission of electric energy in connection with its operations the whole or any substantial part of the capacity of the said lines, or part thereof, then being utilized by the United States, and the licensee makes satisfactory provision for reimbursement to the United States of the original cost to the United States of the facilities desired by the licensee, less accrued depreciation on the investment of the United States, the licensee may modify or revoke the then existing agreement to remain interconnected and to transmit energy for the United States by giving to the Commission 80 months’ notice, of the licensee’s intention to utilize additional capacity or the entire capacity of the lines, or part thereof, as the case may be, provided, however, that the United States may continue to utilize any capacity in the said lines to the extent that said capacity, if any, was provided by the United States at its expense without reimbursement by the licensee.
“(9) If at any time in the future the said lines of the licensee are proposed for alteration or are altered, the Commission reserves the right, after 80 days’ notice and opportunity for hearing, to make a determination as to whether the lines after such alteration, either proposed or actual, will be subject to licensing by the Federal Power Commission under the then existing laws and regulations, and in the event that the Commission finds that the said alteration in the lines, either proposed or actual, so changes the functions .served by said lines and the source of energy transmitted over said lines as to make them, or any part of them, not subject to the licensing authority of the Commission under the then existing laws and regulations, the licensee hereby agrees to secure authority for the continued operation and maintenance of the lines, or such part of the lines, from the appropriate agency of the United States then having jurisdiction over’ the lands of the United States occupied by the lines, or part thereof, and upon securing said authority the licensee hereby agrees to surrender the license insofar as it authorizes operation and maintenance of the lines, or such parts thereof, which are found to be no longer subject to Commission jurisdiction. In the event that the licensee should fail to surrender the license insofar as it is applicable to the lines, or parts thereof, which may then be found by the Commission not to be subject to its jurisdiction, the Commission reserves the right to take appropriate action to have the license terminated with respect to said lines, or parts thereof, as provided in the then existing laws and regulations.
“(10) Any agreement between the licensee and the United States in connection with said transmission lines or related facilities shall be effective only upon approval by the Commission. In the event the licensee and any agent of the United States are unable to agree with respect to any matter arising in connection with said transmission lines or related facilities, the question thereby raised shall be submitted to the Commission for determination.”
. Art. IV, § 3, cl. 2.
. Searings before Souse of Representar tines Committee on Interstate and Foreign Commerce on S. R. 5J$3, 74th Cong., 1st Sess. (1935):
“Mr. Wolverton. Under the provisions of this bill, would it be possible for the Government in any of its electric operations to utilize the transmission lines of private companies?
“Mr. DeVane. No, sir; and I want to make that very definite; and if there is any doubt about it, so far as I am concerned, such amendment might be made as to make it dear. * * *
“ * * * If * * * it is the desire of Congress not to * * * give the municipal or governmental projects the right to use the transmission linos of private industry — and we have not succeeded in making that dear in this bill —an amendment should be proposed that will do it better. It will receive our hearty endorsement.
“Mr. Wolverton. Let me suggest a possible situation. Your answer will darify my mind considerably as to the effect of this bill in the particular instance. Assume that a municipality built a plant for the generation and distribution of electric energy; assume that a distant community is serviced by a company that comes under the regulation of this bill in that it procures its electric energy from outside of the State. Could the dty which has constructed a plant, but has no transmission lines, utilize the system of transmission lines constructed by the private company?
“Air. DeVane. No, sir.
“Mr. Wolverton. Then, you do not think that the power given in this bill to the Federal Power Commission would enable it to direct that those transmission lines be so used?
“Mr. DeVane. Mr. Wolverton, my answer to that is this: That if there is any doubt about it and this committee can remove that doubt by additional words in this bill, let us put them in.” (Pp. 514-515.)'
“Mr. Mapes. Is it the purpose to compel the privately owned transmission companies to carry the energy of municipal projects as well as private projects?
“Mr. DeVane. No, sir; I thought I had made that very clear. If I did not, I want to make it very clear now. It is not intended to give the Commission power to require the private lines to take on any power generated by municipal plants or by any Government plant.” (P. 546.)
“Mr. DeVane. * * * The only thing that we have discussed is the desirability of making it perfectly clear in this law that it is not the intention of this law to reach out and get control of that power nor is it the intention of this law to authorize this Commission to require the transmission of that power on the lines of these private operating companies.” (P.559.)
. 49 Stat. 848 (1935), 16 U.S.C.A. § 824(f).
. Sec. 201 (f), 49 Stat. 848 (1935), 16 U.S.C.A. § 824(f).
. Sec. 10(g), 41 Stat. 1070 (1920), as amended, 49 Stat. 844 (1935), 16 U.S.C.A. § 803(g).
Question: What is the state of the first listed state or local government agency that is an appellant?
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_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
MOVING PHONES PARTNERSHIP L.P., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Thomas Domencich and Committee for a Fair Lottery, Romulus Engineering, Inc., James E. Martin, Jr., CSH Cellular, Gilcom Cellular, L.P., PC Cellular, Inc., RSA Cellular Company, AAT R S A Company, L.P., Excellence II, Elleron Cellular Corporation, Sunde Cellular Communications, Inc., Intervenors.
Nos. 91-1611, 91-1613 through 91-1617, 91-1621, 91-1626, 91-1627, 91-1628, 91-1629 and 91-1636.
United States Court of Appeals, District of Columbia Circuit.
Argued April 8, 1993.
Decided July 30, 1993.
Rehearing and Suggestions for Rehearing En Banc Denied Oct. 5, 1993.
A. Thomas Carroccio, for appellants. With him on the joint brief were J. Laurent Scharff, Gertrude J. White, Michael F. Mor-rone, Mark F. Evens, Michael R. Bennet, Richard O. Wolf, Edward R. Kump, Denise Moline, and Lloyd D. Young. Glen Franklin Koontz also entered an appearance for appellants in Nos. 91-1611, 91-1613, 91-1614, 91-1615, and 91-1616.
Sue Ann Kanter, Counsel, F.C.C., for ap-pellee. On the brief were Renee Licht, Gen. Counsel; Daniel M. Armstrong, Associate Gen. Counsel; and Roberta L. Cook, Counsel, F.C.C. John E. Ingle and Robert L. Pettit, Counsel, F.C.C., also entered appearances for appellee.
Mark D. Schneider argued the cause for intervenors Thomas Domencich and Committee for a Fair Lottery; James E. Martin, Jr.; CSH Cellular; Gilcom Cellular, L.P.; PC Cellular, Inc.; RSA Cellular Co., Michael B. Azeez; Excellence II; Elleron Cellular Corp.; Percival Vaz; Larsen Cellular Associates; AAT RSA Company, L.P'.; Marco Communications Corp.; and Sunde Cellular Communications, Inc. With him on the joint brief were Carter G. Phillips, Carl W. Northrop, Stephen Kaffee, Kenneth E. Hard-man, Benito Gaguine, Arthur V. Belendiuk, Thomas Gutierrez, Eliot J. Greenwald, David J. Kaufman, Thomas L. Siebert, and Paul C. Besozzi. George L. Lyon, Jr. entered an appearance for intervenor Gilcom Cellular, L.P. Michael D. Sullivan entered an appearance for intervenor Romulus Engineering, Inc. Richard S. Myers entered an appearance for intervenor Optima Cellular Partnership. Stephen E. Coran entered an appearance for intervenor Excellence II.
Before MIKVA, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
Appellants, all partnerships, applied to the Federal Communications Commission (“Commission” or “FCC”) for authorization to construct and operate cellular systems. The FCC dismissed the applications on the ground that each proposed to include one or more alien general partners, violating alien ownership restrictions in the Communications Act (“Act”), 47 U.S.C. § 310(b) (1991 Supp.), and the FCC’s rules. Because the Commission reasonably interpreted the Act as prohibiting the grant of a radio license to a partnership with aliens among its general partners, and because the dismissal of appellants’ applications was reasonable and consistent with the FCC’s strict rules for proeess-ing cellular- applications, we affirm the Commission’s decision.
I.
A. Regulatory Framework
In 1981, the Commission adopted rules to govern commercial implementation of cellular telephone service, 47 C.F.R. § 22 subpart K (1993). In doing so, the FCC divided the spectrum into two frequency blocks, for “wireline carriers” (telephone companies) and “nonwireline carriers” (applicants other than telephone companies), to allow two cellular carriers to be licensed in each market area. Confronting a growing demand for cellular service, the FCC solicited applications for nonwireline cellular systems in each designated márket and adopted expedited application filing and processing rules designed to minimize the administrative burden on its staff and to permit orderly processing of thousands of cellular applications. See, .e.g., Cellular Communication Systems, 86 F.C.C.2d 469, 498-601 (1981), modified, 89 F.C.C.2d 58 (1982), further modified, 90 F.C.C.2d 571 (1982), petition for review dismissed, United States v. FCC, No. 82-1526 (D.C.Cir.1984).
After experiencing significant delays in its expedited comparative hearing process, the Commission decided that selection among competing applications could be conducted most efficiently through lottery in all markets beyond the largest thirty. Under the current procedures, the FCC includes in the lottery all applications that facially comply with processing requirements' and contain a certification that the application is complete and contains all information required by the application form and the FCC’s cellular rules. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) 407, 410 & n. 16. The FCC applies a “letter-perfect” standard to the pre-lottery requirements. Applications not complying with the initial requirements are dismissed and lose any further opportunity to be considered in the lottery. Id.
The Commission’s staff reviews only the application selected by lottery to ensure that it is acceptable for filing-that is, that it complies with FCC rules, regulations, and other requirements. 47 C.F.R. § 22.20(a)(2). If the application does not meet the standards for acceptability, it is dismissed without further consideration. If, however, it is acceptable, it is placed on public notice as the tentative selectee, offering unsuccessful applicants the opportunity to challenge the application. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) at 410.
To speed the selection process, Commission rules prohibit the filing of amendments to cellular applications until after a qualified tentative selectee has been announced for a particular market. Only tentative selectees may file amendments, and only minor amendments are permitted. Cellular Lottery Order, 98 F.C.C.2d at 220; 47 C.F.R. § 22.918(b): Applicants filing defective applications therefore have no opportunity to file amendments either-before or after the lottery to bring applications into compliance with acceptability criteria should they prevail in the lottery. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) at 410 n. 17; see also, e.g., REM Communication, 3 F.C.C.R. 3705 (1988).
In the consolidated appeals before us, appellants, seventeen disappointed cellular applicants, challenge the FCC’s decisions dismissing their applications upon discovery that each proposed to operate its licensed radio common carrier facility with one or more general partners who were aliens. The Commission held that the applications violated section 310(b)(3) of the Communications Act, prohibiting the grant of radio licenses to aliens and to corporations having a certain level of alien ownership or having aliens as officers or directors. 47 U.S.C. § 310(b)(3) (1988), ■ incorporated in section 22.4 of the FCC’s rules. 47 C.F.R. § 22.4(b)(3) (1993).
B. Proceedings Below
In the earliest of these proceedings, Continental Cellular, appellant in case No. 91-1621, applied for a cellular radio facility on the nonwireline frequency to service the Alaska 2 (Bethal) Rural Services Area (“RSA”), on July 15, 1988. Like all the appellants, Continental certified that it had complied with the requirements of section 310(b) of the Communications Act and section 22.4(b) of the Commission’s rules. Its application was selected in the lottery. See PN Rep. No. CL-88-168 (F.C.C. released Sept. 27, 1988). The Commission’s Mobile Services Division Staff examined. Continental’s application and rejected it as unacceptable for filing -because Continental had proposed to operate as a general partnership with at least three alien general partners in violation of section 310(b)(3) of the Act and section 22.4(b)(3) of the FCC rules. The Commission denied reconsideration of the dismissal, holding that the staff had properly concluded that the inclusion of aliens as general partners violated the prohibitions of section 310(b)(3). The FCC also rejected Continental’s argument that alien general partners could exempt themselves from the statutory restrictions by accepting a partnership agreement purporting to insulate them from the management of partnership affairs, and concluded that even if such an exemption were permissible, Continental’s partnership agreement was insufficient to establish such insulation. Continental Cellular I, 5 F.C.C.R. at 691-92.
With its petition for reconsideration, Continental submitted an amendment seeking to change its general partnership to a limited partnership with the alien partners becoming limited partners. The Commission held that Continental’s application could not be amended to comply with alien ownership rules, as it had properly been found defective and unacceptable for filing. 5 F.C.C.R. at 693 n. 9, (citing 47 C.F.R. § 22.918(b) and REM Communication, 3 F.C.C.R. 3705). Continental appealed the FCC’s order to this court, which remanded the case to the Commission for further consideration of the record at FCC’s request.
In the interim, each of the other appellants was named the tentative selectee for a market in which it had won the lottery. Each, however, had filed as a general partnership, including between one and four alien partners. Following the lotteries, each sought to file a curative amendment to change its general partnership to a limited partnership or to remove the alien general partners. As it had with regard to the Continental application, the staff dismissed the other applications as ineligible for filing, because they had proposed ownership structures that did not comply with the requirements of section 310(b)(3) and section 22.4(b)(3) of the FCC’s rules.
Continental and the other appellants petitioned for reconsideration. The Commission consolidated their cases with Continental’s. Continental Cellular II, 6 F.C.C.R. 6834, 6835 (1991). The FCC refused to reconsider the’ dismissals, holding that appellants’ applications properly were dismissed as unacceptable for filing. It ruled that the inclusion, of aliens as general partners as originally proposed violated section 310(b)(3), whether or not alien general partners purported to insulate themselves from management of partnership affairs, and that even were such a statutory exemption permissible, none of the applicants had made a showing of such insulation. Likewise, the Commission rejected contentions of some appellants that dismissal of the applications denied them their Fifth Amendment right to equal protection regardless of alienage. Finally, the FCC declined to accept amendments curing the violation of section 310(b)(3), holding that under clear Commission rules and precedent, curative amendments may not be submitted for a defective cellular application. 6 F.C.C.R. at 6836, (citing Progressive Cellular III B-2, 5 F.C.C.R. 2772 (1990)); REM Communication, 3 F.C.C.R. 3705 (1988).
II.
Section 310(b) prohibits the grant of radio licenses, including licenses in the common carrier service, to aliens and to corporations evidencing specific levels of alien ownership or control. Section 310(b)(3) forbids the grant of a radio license to any corporation in which an officer- or director is an alien, or of which more than twenty percent of the stock is owned or voted by aliens. The Commission adopted the statutory language verbatim in its rules governing mobile radio services, including the cellular service. 47 C.F.R. § 22.4. These alien ownership restrictions reflect a long-standing determination to “safeguard the United States from foreign influence” in broadcasting. Kansas City Broadcasting Co., 5 Rad.Reg. (P & F) 1057, 1093 (1952). This policy against allowing aliens to have any controlling influence in a licensee was established long before the applications at issue were filed. No less well established is the tenet of partnership law that a general partner has control of partnership affairs as- against the outside world. Section 9(1), Uniform Partnership Act; Picone v. Comm’l Paste Co., 215 Miss. 114, 60 So.2d 590 (1952). Although the language of section 310(b) and the corresponding rule refers to corporations only, the statutory restrictions have been extended to noncorpo-rate entities and associations. In Wilner and Scheiner, 103 F.C.C.2d 511 (1985), recon. in part, 1 F.C.C.R. 12 (1986) (“Wilner & Scheiner Reconsideration Order ”), the FCC applied the alien ownership restrictions of section 310(b) to limited partnerships and other types of partnership and corporate interests. In that decision, the FCC held that for purposes of section 310(b), the position occupied by general partners in a partnership is directly comparable to that of officers and directors in a corporation, see 103 F.C.C.2d at 520 n. 3; therefore, alien general partners are in a position to exercise foreign influence in broadcast media, in contravention of the national security policy underlying the statute.
Although broadcast radio stations were the dominant medium when the national security policy underlying section 310(b) was developed, the rationale is equally applicable to common carrier radio stations, as they, also, are part of the nation’s eommuni-cations network. Despite their concession that “the national security purpose of Section 310(b) can be a legitimate reason for discrimination against aliens,” Pet.Br. at 37, appellants assert a constitutional claim that this court should extend a strict standard of review to distinctions based on alienage. We disagree.
Supreme Court precedent instructs that classifications based on alienage in federal statutes are permissible so long as the challenged statute is not a “wholly irrational” means of effectuating a legitimate government purpose. Mathews v. Diaz, 426 U.S. 67, 83, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976). In Mathews, the Court unanimously upheld denial of Medicare benefits to certain aliens. Similarly, in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), the Court held that a state statute limiting membership in the state police force to U.S. citizens did not violate the Equal Protection Clause of the Fourteenth Amendment. In upholding the legislation, the Court made clear that it had “never suggested that [legislation imposing restraints on aliens] is inherently invalid, nor have we held that all limitations on aliens are suspect.” Id. at 294, 98 S.Ct. at 1069. Instead, the Court explained, the application of strict scrutiny to the exclusion of aliens as a class has been limited to “exclusions [which] struck at the noncitizens’ ability to exist in the community” by denying them essential welfare assistance, educational benefits, or the right to engage in public employment or the practice of licensed professions. Id. at 295, 98 S.Ct. at 1070. The opportunity to own a broadcast or common carrier radio station is hardly a prerequisite to existence in a community. Therefore, we apply a rational basis, review rather than a strict scrutiny test.
The national security policy satisfies the requirement that there be a “showing of some rational relationship between the interest sought to be protected and the limiting classification.” Id. at 296, 98 S.Ct. at 1070. We thus deny appellants’ constitutional claim.
Appellants next turn to statutory claims. In analyzing their arguments, we use the framework of inquiry laid out in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43,104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter.... [I]f [however] the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Appellants first argue that the Commission’s practices deviate from the plain meaning of section 310(b). They assert that because the statute specifically bars aliens from “holding” licenses, the statute permits aliens to apply for them. Thus, they argue, in dismissing their applications, the FCC improperly interpreted and relied on section 310(b) of the Communications Act. Appellants’ attempted plain meaning argument rests on a non sequitur. The statute’s prohibition on aliens holding licenses cannot, sensibly be construed to plainly, or even likely, grant permission for aliens to file license applications. It would avail appellants little to have the right to file a licensing applicar tion when they could not, because of their composition, hold a license were it awarded to them.
Nor can appellants credibly claim to have been unfairly surprised by the FCC interpreting the presence of alien general partners in their organization as violations of section 310(b)(3); Wilner and Scheiner extended the Communications Act’s prohibition of the grant of broadcast licenses to corporations with aliens serving as officers or directors to partnerships with aliens serving as general partners.
In light of the foregoing, it is clear that a ban on alien ownership exists; what is lacking is a clear direction from Congress as to the point at which the FCC will effectuate the ban. Under the second step of Chevron, that decision belongs to the agency provided only that its' interpretation is a reasonable 'one, consistent with the statute. Here, it is clear that the Commission’s regulatory scheme is entirely consistent with the congressional mandate embodied in section 310(b), as tested by the Chevron analysis.
The FCC intended the cellular lottery process as a quick, simple method'for selecting prospective licensees. See Cellular Lottery Order, 98 F.C.C.2d at 179-82, 219-22; Cellular Lottery Further Reconsideration, 59 Rad.Reg.2d (P & F) at 409. Under these cellular application processing rules and procedures, the Commission properly concluded that an application that does not comply with all the rules and requirements, including both procedural and substantive requirements relating to the filing and content of the application, must be dismissed.
The procedures set out by the Commission indicate that compliance was an important element in the FCC’s decision to announce a successful applicant as the tentative selectee. See 47 C.F.R. § 22.20(a); Cellular Lottery Order, 98 F.C.C.2d at 195. In amending section 22.918(b) to “strictly limit[ ] the filing of amendments to applications ... under lottery selection procedures,” id. at 220, the Commission barred amendments throughout the application process, and limited subsequent amendments to those intended to correct minor errors or omissions in otherwise qualified applications. Prior Commission decisions support this interpretation. See, e.g., REM Communication, 3 F.C.C.R. 3705; Progressive Cellular III B-2, 5 F.C.C.R. 2772, 2773 (1990). Indeed, appellants present no evidence suggesting that the Commission ever has allowed applicants to file amendments to establish their basic qualifications to become licensees.
Nor can appellants prevail by arguing that the FCC offered insufficient notice that applications violating section 310(b) of the Act and section 22.4 of the FCC rules were unsuitable for filing and would be dismissed. Taken together, the rule governing acceptability, 47 C.F.R. § 22.20(a)(2), and the rule governing acceptance of amendments to applications, 47 C.F.R. § 22.918(b), alerted prospective applicants that they had to possess the qualifications to be a licensee on the day of filing, that one such qualification was compliance with section 310(b), and that no curative amendments would be accepted for noncomplying applications. This notice was all that was necessary.
Thus, there is no support for appellants’ contention that the Commission erred in not exempting from section 310(b)(3) partnerships in which alien general partners contractually relinquish control and management. Aside from the deviation from the “letter-perfect” rule that such an exception would entail, appellants have failed to show that the FCC was unreasonable in concluding that it had no power to accord an exemption to individuals holding positions otherwise subject to section 310(b) simply because they agree not to exercise the power of their positions. Continental Cellular I, 5 F.C.C.R. at 692; Continental Cellular II, 6 F.C.C.R. at 6836; Wilner and Scheiner Reconsideration Order, 1 F.C.C.R. at 14-15. Appellants cannot successfully defend their contention that they effectively cured the violation simply by ensuring that the alien partners could not control the partnership. Even as a practical matter, though the proffered partnership agreements vested day-to-day control in a single managing partner, they neither excluded alien general partners from involvement in the management or operation of the partnership, nor precluded an alien from holding the position of managing partner. In these circumstances, the FCC could reasonably conclude that the proposed agreements were insufficient to remove the alien general partners from the restriction of section 310(b)(3), even assuming such an exemption were available. Continental Cellular II, 6 F.C.C.R. at 6836.
When Congress has intended to give the Commission discretion to depart from a specified level of control in section 310(b), it has spoken explicitly. See 47 U.S.C. § 310(b)(4). The absence of such plain language here only supports the FCC’s interpretation.
CONCLUSION
The FCC’s rules and regulations for selection of cellular licensees made clear that all applications had to qualify for selection before any amendments would be allowed. Because each appellant before us listed an alien as a general partner in the first instance, in violation of the Commission’s rules implementing section 310(b) of the Communications Act, their applications did not qualify for selection on the date of filing and therefore could not be awarded. The Commission was well within its authority to dismiss the applications, and wfe therefore affirm its order.
It is so ordered.
. Cellular Lottery Order, 98 F.C.C.2d 175, 179 (1984), recon., 101 F.C.C.2d 577 (1985), further recon., 59 Rad.Reg.2d (P & F) 407 (1985) (Lottery Further Reconsideration Order), aff'd in relevant part, Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C.Cir.1987).
. Unlike the other appellants, Quadrangle Communications did hot convert to a limited partnership because its only alien general partner died after its original application had been filed. Instead, Quadrangle amended its application to reflect the fact of the partner’s death, and requested a waiver of section 22.922 of the Commission’s rules, 47 C.F.R. § 22.922, to permit an involuntary transfer of the deceased partner’s interest to the non-alien executrix of the partner's estate. Though the FCC subsequently remanded Quadrangle's application, because Quadrangle, like the other appellants, failed to conform with the Commission’s "letter-perfect" cellular application processing rules and procedures, we vacate the remand and deny Quadrangle’s appeal.
. We note that Foley involves state, rather than federal, regulation of aliens. Even so, for the purposes of this case, that fact represents a distinction without a difference. The denial of Medicare benefits which survived the rational basis test in Mathews could well withstand the Foley analysis, which applied strict scrutiny to "exclusions [which] struck at the noncitizens’ ability to exist in the community,” 435 U.S. at 295, 98 S.Ct. at 1070, based on the Court’s conclusion that such exclusions were "inconsistent with the congressional determination to admit the alien to permanent residence.” Id. In fact, the facets of community life from which aliens may not be excluded, including eligibility for public employment, educational benefits, or "welfare assistance essential to life itself,” are those that, if withheld, would directly cause economic dependence or physical harm. In contrast, receipt of Medicare benefits, while desirable, might legitimately be considered a perquisite of citizenship, insofar as a government’s decision not to extend' such benefits to aliens does not necessarily involve withholding of essential welfare assistance, as would, for example, the denial of food stamps or emergency services at a hospital.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_genapel2
|
I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In the Matter of Grand Jury Witness Charles Joseph BATTAGLIA. Charles Joseph BATTAGLIA, Witness, Appellant, v. UNITED STATES of America, Appellee.
No. 81-5339.
United States Court of Appeals, Ninth Circuit.
Submitted May 18, 1981.
Decided August 20, 1981.
Rehearing Denied Oct. 5,1981.
Hirsh & Bayles, Tuscon, Ariz., for appellant.
Paul Corradini, Phoenix, Ariz., for appellee.
Before GOODWIN, ANDERSON and FERGUSON, Circuit Judges.
GOODWIN, Circuit Judge.
Charles Joseph Battaglia appeals a judgment of civil contempt. He was adjudged a recalcitrant witness for failing to answer certain questions before the grand jury, despite his claim that he was unable to remember the events in question.
In October 1978 Battaglia was indicted for mail fraud, conspiracy, and several drug-related offenses. In January 1979 he entered into a plea bargain pursuant to which he pleaded guilty to one count, the other counts were dismissed, and he agreed to testify as to the “involvement of Joseph Rae in the events underpinning the indictment.”
The government first sought Battaglia’s testimony in July 1979 when he was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri. His testimony was postponed at the request of the prison officials because Battaglia was suffering from heart disease. During the summer and fall of 1979 the prison authorities continued to recommend that Battaglia not be required to testify.
After his release on parole, Battaglia was served with a subpoena to appear in May 1980 before the grand jury. He moved to quash the subpoena on the ground that the strain of testifying would endanger his life. Battaglia was examined by a government physician who agreed that there was a significant health risk. Consequently, although the district court refused to quash the subpoena, it ordered that Battaglia’s physician be permitted to stand outside the grand jury room door and that the proceeding be halted at Battaglia’s request.
Upon appearing before the grand jury on October 21, 1980, Battaglia stated that his memory was impaired by the drugs he had been taking for his heart condition, but he would try to answer the questions to the best of his ability. After a few minutes, Battaglia’s physician informed the United States Attorney that it was unsafe for Battaglia to continue, and the proceeding was halted.
On December 4, 1980, Battaglia was ordered to submit written answers to questions propounded by the government in lieu of a personal appearance before the grand jury. The government propounded a set of 55 questions relating to Rae’s involvement in a criminal scheme. In his written responses, Battaglia gave answers that failed to satisfy the government attorneys and they applied for an order to show cause why Battaglia should not be declared a recalcitrant witness under 28 U.S.C. § 1826.
At the hearing before the district court on the order to show cause, Battaglia argued that he had not been given notice of the answers which the government deemed insufficient. The court agreed and ordered the government to specify the answers with which it was not satisfied. Battaglia’s supplemental answers stated in slightly greater detail his inability to remember. Battaglia also pointed out that an FBI report of an interview with him concerning the scheme was inconsistent with the transcript of surreptitiously recorded conversations of his also concerning the scheme. Because of the inconsistency, he stated it was difficult for him to remember what had actually transpired.
At a second hearing on the order to show cause the government argued that Battaglia had the burden of proving that his answers were truthful. The court apparently adopted the government’s view of the burden of proof. In an attempt to comply with the court’s Understanding of the burden of proof, Battaglia presented testimony by a clinical psychologist and a clinical pharmacologist.
The psychologist, who had given Battaglia a battery of tests that morning, concluded that there was evidence of short-term memory impairment. He also found that Battaglia’s overall mental capabilities had “substantially” slipped from his native ability. The psychologist did not find gross indications of remote memory loss, but testified that Battaglia did not do well on one portion of an examination which would indicate remote memory loss. The psychologist testified that he did not believe that Battaglia was malingering because an untrained person would not know which answers to which questions would produce a desired result.
The pharmacologist testified on the possible effects of the drugs Battaglia was taking, Inderal and Demerol. He testified that there is some indication that Inderal causes short-term memory loss. He also testified that the drug causes depression, a symptom of which is memory impairment. He specifically testified that there is a possibility, although not a probability, that Inderal will cause long-term memory loss.
The pharmacologist testified that Demerol is a narcotic that depresses the central nervous system. A depressant adversely affects the memory function of a person under its influence. Moreover, the witness said animal experiments had shown that Inderal and Demerol, when taken together, will have a greater effect than one would expect from the simple addition of their individual effects.
Subsequently, the court found Battaglia to be a recalcitrant witness pursuant to 28 U.S.C. § 1826 and ordered him confined until such time as he answered the questions in a nonevasive manner. The court concluded that Battaglia’s claim of loss of memory was made in bad faith. It based its conclusion on the following facts: (1) Battaglia’s personal physician did not testify as to memory loss; (2) Battaglia presented no evidence from family or friends that he was suffering from memory loss; (3) the expert testimony related only to short-term memory loss and the possibility, not probability, of long-term memory loss; (4) Battaglia did not stress the alleged memory problems until he was ordered to answer the written questions; (5) Battaglia had no problem answering nonincriminating questions; and (6) Battaglia’s demeanor on the stand was evasive.
I. Applicability of the Statute
“Whenever a witness in any proceeding before ... [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify . . . the court . . . may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony . . . .” 28 U.S.C. § 1826.
Battaglia contends that a witness’ false assertion that he does not remember does not constitute a refusal to testify within the meaning of the statute, but is an act of perjury. As perjury, Battaglia argues, it can be punished as contempt only upon a showing, not made here, that the perjury obstructed the performance of the court’s duties. See Ex Parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Collins v. United States, 269 F.2d 745, 750 (9th Cir. 1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960).
A witness who testified that he does not remember an event can be convicted of perjury if it can be proven beyond a reasonable doubt that he does, in fact, remember the event. United States v. Ponticelli, 622 F.2d 985 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Battaglia assumes that this ends the inquiry. It does not. Wrongful conduct can be proscribed by more than one statute. Hence the real question is whether a false assertion of a lapse of memory constitutes a refusal to testify, in addition to setting the stage for a possible perjury prosecution.
The government cites no case that expressly holds that either general evasiveness or a false assertion of memory loss constitutes a refusal to testify within the meaning of 28 U.S.C. § 1826. In Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980), the Seventh Circuit affirmed a district court order finding appellant to be a recalcitrant witness upon a finding that the asserted memory loss was false. The issue in that case, however, appears to be whether the district court’s finding of falsity was clearly erroneous, not whether the behavior was proscribed by 28 U.S.C. § 1826. Id. at 357. Nevertheless, we are satisfied that a false assertion of memory loss does constitute a refusal to testify.
Although 28 U.S.C. § 1826 is a relatively new statute, it was intended to codify the common law of civil contempt. Gelbard v. United States, 408 U.S. 41, 42 n. 1, 92 S.Ct. 2357, 2358, n.1, 33 L.Ed.2d 179 (1972); United States v. Alter, 482 F.2d 1016, 1022 (9th Cir. 1973). There are many cases predating the enactment of § 1826 that treat a false assertion of inability to answer as a refusal to answer. See, e. g., Richardson v. United States, 273 F.2d 144, 147 (8th Cir. 1959) (“Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all.”) Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 24 (S.D.N.Y.1966) (“A court ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test.” (quoting from United States v. Appell, 211 F. 495 (S.D.N.Y.1913)).)
Three important policy considerations argue for this construction of the statute. First, if an evasive answer were not equated with a refusal to answer, even the most transparently false assertion of “I don’t remember” would be sufficient to avoid the recalcitrant witness statute. Second, even when a perjury prosecution would be appropriate, the government may be more interested in producing truthful testimony by use of § 1826 than in obtaining a criminal conviction for perjury. Third, the public, through our justice system, has a right to every person’s evidence in our search for the truth. See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). A concocted evasive or false “I don’t remember” answer would provide an easy avenue for the reluctant witness to escape this high obligation with impunity.
II. Sufficiency of the Evidence
Battaglia also contends that the evidence was insufficient to support the finding that he falsely asserted that he did not remember. We do not reach this question because the allocation of the burden of proof to Battaglia instead of to the government requires a remand.
In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). The standard appears to be higher than the preponderance of the evidence standard, applicable to most civil cases, but lower than the beyond a reasonable doubt standard, applicable to criminal contempt proceedings. Id.
A civil contempt proceeding on a witness’ asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie showing of contempt; i. e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. See, e. g., United States v. Hankins, 565 F.2d 1344, 1351 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979).
Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. See United States v. O’Henry’s Film Works, Inc., 598 F.2d 313, 318 (2nd Cir. 1979). If the witness fails to meet this “burden of producing evidence,” the government’s prima facie case is sufficient to meet its burden of proof for a finding of contempt. See, N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 617-18 (9th Cir. 1973). The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question.
Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. See, United States v. Hansen Niederhauser Co., Inc., 522 F.2d 1037, 1040 (10th Cir. 1975); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 266-67 (W.D.Mo.1971); see generally, Mullaney v. Wilbur, 421 U.S. 684, 703 n.31, 95 S.Ct. 1881, 1892, n.31, 44 L.Ed.2d 508 (1975).
In N.L.R.B. v. Trans Ocean Export Packing, Inc., supra, at 616, we said:
“[Although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, . . . the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply.... The contrary burden is upon the respondent. To satisfy this burden the respondent must show ‘categorically and in detail’ why he is unable to comply. . . . Since the Board did not have the burden of proof as to respondents’ ability to comply, it was under no obligation to allege such ability in its petitions to this court.”
Trans Ocean can be distinguished, however, because the respondent in Trans Ocean presented no proof of his inability to comply with the order. Consequently, the Trans Ocean court may have been referring to the burden of production rather than the burden of persuasion. By contrast, Battaglia has explained why he cannot comply. The quoted passage from Trans Ocean was in response to respondent’s erroneous contention that the government bore the burden of pleading and proving in its prima facie case that respondent possessed the ability to comply with the order. Battaglia makes no such contention here.
Other courts have held that in a contempt proceeding, where the defendant introduces evidence of inability to comply, the government has the burden of proving ability to comply. See, e. g., United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 267 (W.D.Mo. 1971) . See also United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979) (dictum). These cases are consonant with the analogous principle of criminal law that although the government does not have the burden of disproving the existence of every conceivable affirmative defense, it does have the burden of disproving the existence of affirmative defenses actually raised. See, e. g., United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The government may satisfy its burden of proof by establishing by clear and convincing evidence that the witness’ claimed inability to remember is not credible. Apparently, the government introduced no affirmative evidence that Battaglia recently had told anyone about the scheme, or that his medications do not, in fact, affect long-term memory. Cf. United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) (by analogy, the government has the burden of persuasion with regard to an insanity defense and must introduce affirmative evidence attacking the defendant’s case).
The district court based its judgment almost exclusively on the gaps in Battaglia’s proof; i. e., on the failure of family, friends, or Battaglia’s personal physician to testify, on the expert witnesses’ failure extensively to testify with regard to long-term memory loss, and on Battaglia’s evasive demeanor. These are all legitimate considerations for a trier of fact, but the location of the burden of proof emphasizes their importance. We do not, however, disparage the trial judge’s power to decide all issues of credibility.
By placing the burden of persuasion on Battaglia, the district court made the gaps in Battaglia’s proof more damaging than the gaps in the government’s proof. This was error.
The cause is remanded for further proceedings in the district court with the burden of proving contempt remaining at all 'times upon the government.
Vacated and remanded.
. The manner by which a witness may meet his burden of production will depend upon the reason given for his inability to comply. For example, a witness who claims that he cannot recall a particular fact or event may explain his inability to comply “categorically and in detail” by testifying on the record that he does not remember. The witness has then offered as clear and detailed an explanation as possible for his inability to comply without exceeding the limits of faulty memory.
Question: 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_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.
AIKENS v. CALIFORNIA
No. 68-5027.
Argued January 17, 1972
Decided June 7, 1972
Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were Jerome B. Falk, Jr., Paul N. Halvonik, Michael Meltsner, Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Jack Himmelstein, and Elizabeth B. Dubois.
Ronald M. George, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Evelle J. Younger, Attorney General, and William E. James, Assistant Attorney General.
Briefs of amici curiae were filed by John E. Havelock, Attorney General, for the State of Alaska; by Willard J. Lassers and Elmer Gertz for the National Council of the Churches of Christ in the United States et al.; by Leo Pfeffer for the Synagogue Council of America and its Constituents et al.; by Paul Raymond Stone for the West Virginia Council of Churches et al.; by Donald M. Wessling for the Committee of Psychiatrists for Evaluation of the Death Penalty; by Gerald H. Gottlieb, Melvin L. Wulf, and Sanford Jay Rosen for the American Civil Liberties Union; by Chauncey Eskridge, Mario G. Obledo, Leroy D. Clark, Nathaniel R. Jones, and Vernon Jordan for the National Association for the Advancement of Colored People et al.; by Marshall J. Hartman for the National Legal Aid and Defender Association; by Michael V. DiSalle for Edmund G. Brown et al.; by Hilbert P. Zarky for James V. Bennett et al.; and by Luke McKissack, pro se.
Per Curiam.
Petitioner in this case, which has been orally argued and is now sub judice, has filed a Suggestion of Mootness and Motion for Remand based on the intervening decision of the California Supreme Court in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880 (1972). That decision declared capital punishment in California unconstitutional under Art. 1, § 6, of the state constitution. The decision rested on an adequate state ground and the State’s petition for writ of certiorari was denied. 406 U. S. 958. The California Supreme Court declared in the Anderson case that its decision was fully retroactive and stated that any prisoner currently under sentence of death could petition a superior court to modify its judgment. Petitioner thus no longer faces a realistic threat of execution, and the issue on which certiorari was granted — the constitutionality of the death penalty under the Federal Constitution — is now moot in his case. Accordingly the writ of certiorari is dismissed.
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:
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sc_certreason
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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.
ESPINOSA v. FLORIDA
No. 91-7390.
Decided June 29, 1992
Per Curiam.
Under Florida law, after a defendant is found guilty of a capital felony, a separate sentencing proceeding is conducted to determine whether the sentence should be life imprisonment or death. Fla. Stat. § 921.141(1) (1991). At the close of a hearing at which the prosecution and the defense may present evidence and argument in favor of and against the death penalty, ibid., the trial judge charges the jurors to consider “[w]hether sufficient aggravating circumstances exist,” “[wjhether sufficient mitigating circumstances exist which outweigh the aggravating circumstances,” and “[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death.” §921.141(2). The verdict does not include specific findings of aggravating and mitigating circumstances, but states only the jury’s sentencing recommendation. “Notwithstanding the recommendation of a majority of the jury,” the trial court itself must then “weig[h] the aggravating and mitigating circumstances” to determine finally whether the sentence will be life or death. § 921.141(3). If the trial court fixes punishment at death, the court must issue a written statement of the circumstances found and weighed. Ibid.
A Florida jury found petitioner Henry Jose Espinosa guilty of first-degree murder. At the close of the evidence in the penalty hearing, the trial court instructed the jury on aggravating factors. One of the instructions informed the jury that it was entitled to find as an aggravating factor that the murder of which it had found Espinosa guilty was “especially wicked, evil, atrocious or cruel.” See § 921.141(h). The jury recommended that the trial court impose death, and the court, finding four aggravating and two mitigating factors, did so. On appeal to the Supreme Court of Florida, petitioner argued that the “wicked, evil, atrocious or cruel” instruction was vague and therefore left the jury with insufficient guidance when to find the existence of the aggravating factor. The court rejected this argument and affirmed, saying: “We reject Espinosa’s complaint with respect to the text of the jury instruction on the heinous, atrocious, or cruel aggravating factor upon the rationale of Smalley v. State, 546 So. 2d 720 (Fla. 1989).” 589 So. 2d 887, 894 (1991).
Our cases establish that, in a State where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment. See Sochor v. Florida, 504 U. S. 527, 532 (1992); Stringer v. Black, 503 U. S. 222, 232 (1992); Parker v. Dugger, 498 U. S. 308, 319-321 (1991); Clemons v. Mississippi, 494 U. S. 738, 752 (1990). Our cases further establish that an aggravating circumstance is invalid in this sense if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. See Stringer, supra, at 235. We have held instructions more specific and elaborate than the one given in the instant case unconstitutionally vague. See Shell v. Mississippi, 498 U. S. 1 (1990); Maynard v. Cartwright, 486 U. S. 356 (1988); Godfrey v. Georgia, 446 U. S. 420 (1980).
The State here does not argue that the “especially wicked, evil, atrocious or cruel” instruction given in this case was any less vague than the instructions we found lacking in Shell, Cartwright, or Godfrey. Instead, echoing the State Supreme Court’s reasoning in Smalley v. State, 546 So. 2d, at 722, the State argues that there was no need to instruct the jury with the specificity our cases have required where the jury was the final sentencing authority, because, in the Florida scheme, the jury is not “the sentencer” for Eighth Amendment purposes. This is true, the State argues, because the trial court is not bound by the jury’s sentencing recommendation; rather, the court must independently determine which aggravating and mitigating circumstances exist, and, after weighing the circumstances, enter a sentence “[njotwithstanding the recommendation of a majority of the jury,” Fla. Stat. § 921.141(3).
Our examination of Florida case law indicates, however, that a Florida trial court is required to pay deference to a jury’s sentencing recommendation, in that the trial court must give “great weight” to the jury’s recommendation, whether that recommendation be life, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), or death, see Smith v. State, 515 So. 2d 182, 185 (Fla. 1987), cert. denied, 485 U. S. 971 (1988); Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988), cert. denied, 489 U. S. 1071 (1989). Thus, Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court’s process of weighing aggravating and mitigating circumstances.
It is true that, in this ease, the trial court did not directly weigh any invalid aggravating circumstances. But, we must presume that the jury did so, see Mills v. Maryland, 486 U. S. 367, 376-377 (1988), just as we must further presume that the trial court followed Florida law, cf. Walton v. Arizona, 497 U. S. 639, 653 (1990), and'gave “great weight” to the resultant recommendation. By giving “great weight” to the jury recommendation, the trial court indirectly weighed the invalid aggravating factor that we must presume the jury found. This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, cf. Baldwin v. Alabama, 472 U. S. 372, 382 (1985), and the result, therefore, was error.
We have often recognized that there are many constitutionally permissible ways in which States may choose to allocate capital sentencing authority. See id., at 389; Spaziano v. Florida, 468 U. S. 447, 464 (1984). Today’s decision in no way signals a retreat from that position. We merely hold that, if a weighing State decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Florida is reversed. We remand for proceedings not inconsistent with this opinion.
So ordered.
The ChieF Justice and Justice White dissent and would grant certiorari and set the ease down for oral argument.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
BOOKS, INC., Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6552.
United States Court of Appeals First Circuit.
April 12, 1966.
Leonard A. Kamaras, Providence, R. I., with whom John H. DiStefano, Providence, R. I., was on the brief for appellant.
Frederick W. Faerber, Jr., Asst. U. S. Atty., with whom Raymond J. Pettine, U. S. Atty., was on the brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE, Circuit Judge, and WYZAN-SKI, District Judge.
WYZANSKI, District Judge.
Books, Inc., a distributor of paperback books, appeals from a $1500 fine imposed following a jury verdict that, in violation of 18 U.S.C. § 1465 and § 2(b), it had knowingly caused to be transported in interstate commerce for the purpose of sale or distribution Lust Job, an obscene book. The principal issue presented on appeal is whether the District Judge should have ruled as a matter of law that the book was not obscene in the statutory or constitutional sense. Other issues are raised as to rulings during the taking of testimony and as to denials of requests for instructions.
Ephraim, a Massachusetts retail bookseller, entered into an automatic plan with defendant Books, Inc., a Rhode Island distributor, under which the latter, on its own initiative, chose books and caused them to be transported in interstate commerce for Ephraim to sell. Defendant selected, and caused the interstate transportation of, at least two copies of Lust Job, a paperback novel.
Following indictment under 18 U.S.C. § 1465, defendant moved for a bill of particulars. In response, the United States Attorney stated “it is the Government’s contention that obscene material permeates the dominant theme of the material of said book [Lust Job], which theme extends from page 5 to page 188 inclusive.” Those pages set forth, in the form of a novel, a tale exclusively devoted to the sexual adventures of its principal characters. Adulteries, seductions, and orgies are the only events of importance. The contacts described include not only sexual intercourse, but sodomy and other perversions. There is not any serious effort to portray the reality of cultural or social conditions of even the most neurotic or sordid portion of the population. Description of the locale is minimal. The style is flaccid, repetitive, and unreflective of the author’s individuality.
On the front cover of the book is an unclothed woman, her back toward the reader. She is seated on the floor, her back and buttocks showing, her head tilted backwards and her arms clasping below the knees the trousers of a clothed man. The title Lust Job is printed so that it crosses the woman’s back. Above the woman’s head and across the man’s trousers are the words “He climbed to the top on a ladder of sin.” On the rear cover appears the following description of the book:
“Selfish Passions * * * drove Steve Rapallo, a handsome, eager young executive as he clawed his way up the lust ladder to success. Success in money and bed, the only two things that seemed to matter. And to hell with the way he got them. Take Carol —which he did — the wanton wife of his boss, whose only desire was to get between the sheets and stay there. And Rapallo was just the chamber stud she needed. It was a ball, and it was Miami Beach and it was the annual convention. A time for fun. A time for sin. A time for shame and lust and everything that added up to wild bedroom orgies where nobody cared what anybody did as long as they did it and never stopped!
* * * Gutter Love!”
Defendant offered as literary experts two assistant professors of English literature at Rhode Island College. Mr. Sternberg testified that Lust Job was “poor literature” but the dominant theme was “the advocating of moral responsibility and the leading of a moral life.” Mr. Anghinetti stated that he did not believe the book had literary merit, but its “redeeming quality” was “its element of condemnation of sexual behavior.”
The other evidence does not need to be recited before turning to the principal question raised on this appeal, that is whether, responding to defendant’s motion at the conclusion of the Government’s case-in-chief, or its motion at the end of all the testimony, the District Judge should have entered a judgment of acquittal on the ground that Lust Job was not, as a matter of law, an obscene book under 18 U.S.G. § 1465 or under the First Amendment to the United States Constitution.
Guided by the controlling opinions of the justices in the majority in the three cases decided March 21, 1966 in the Supreme Court of the United States, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 969, 16 L.Ed.2d 31; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56, and A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (the Fanny Hill case), as well as earlier cases such as Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, and Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, this Court is bound to conclude that a jury could find Lust Job obscene within the meaning of 18 U.S.C. § 1465, and that such application of the statute is not repugnant to the First Amendment. Under the most recent Supreme Court decisions, there was adequate evidence in the text of the novel, without any reference to the covers, to warrant a factual determination that the dominant theme of the book taken as a whole appeals to a prurient interest in sex, that the book is patently offensive because it affronts contemporary community standards relating to the description of sexual matters, and that the material is utterly without redeeming social value.
Moreover, we recognize that in close cases, where it is doubtful if a text is obscene, a majority of the Supreme Court of the United States deems it appropriate to look at the circumstances under which the text was commercially offered. Ginzburg v. United States, Mishkin v. State of New York, A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts. Where publications have been created or exploited entirely on the basis of their appeal to prurient interests, a conclusion is permissible that the merchandise transported, sold, or otherwise dealt in, is obscene in the statutory sense and is not constitutionally protected matter. Ginzburg v. United States, 86 S.Ct. p. 974. Under the foregoing rule, it would be appropriate either for the District Court or this Court to take into account the front and back covers of Lust Job and from them to reach a conclusion that there were pandering and an exploitation of interests in titillation, and that, therefore, the text of Lust Job itself is obscene.
Nothing is to be gained by a detailed comparison of Lust Job and the publications before the Supreme Court in the Ginzburg or Mishkin cases. Quite plainly Lust Job could be found to equal or exceed some of those publications in prurient appeal and patent offensiveness. Likewise, it could be found to be without redeeming social value.
Nor can defendant successfully bring itself within the scope of the decision in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Commonwealth of Massachusetts involving Fanny Hill. Unlike that book, Lust Job, in the opinion of defendant’s own experts, has no modicum of literary value. To be sure, defendant’s literary experts asserted that the book had a purgative moral value. But for two reasons this testimony had no probative force: first, it was not within the alleged expert qualifications of the witnesses ; and second, an otherwise obscene book cannot be held to have from the constitutional viewpoint a redeeming social value because the erotic passages and the description of deviant sexual practices instead of stimulating a prurient response from an average reader would disgust and sicken him and act as a moral catharsis. Mishkin v. State of New York, 86 S.Ct. p. 963. Moreover, in the case at bar there is evidence, which was absent in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Commonwealth of Massachusetts, “that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values.” See A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Commonwealth of Massachusetts, 86 S.Ct. p. 990.
Defendant raises a number of points with respect to the trial, all of which we have examined, but of which it seems to us only two require comment in this opinion.
Defendant, mindful of the obscenity test enunciated in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, that is, “whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest”, requested an instruction that “The average person, as construed and applied, must be the adult within the community, being the nation at large and anyone less than an adult must be absolutely excluded from your consideration.” The District Judge, instead, gave a charge, of which the pertinent part is quoted in the footnote placing emphasis on the “effect of the book * * * not upon any particular class, but upon all those it was likely to reach; in other words, its impact upon the average person in our national community.”
In appraising this charge, we bear in mind that it was delivered orally, and that we are concerned not with academic perfection but with the way the language would be understood by a jury. Laymen would regard, as indeed we do, the instruction as directing attention to the effect of the book upon a typical mature adult reader in the audience which defendant’s method of distribution of Lust Job sought to reach. Focus on such a typical reader whom defendant sought “to catch” comports with the decision with respect to The Housewife’s Handbook in Ginzburg v. United States, see particularly 86 S.Ct. p. 973.
It is plain that Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524,1 L.Ed.2d 412, has no application to the case at bar. The charge in the instant case does not permit the jury to use as the test of pruriency, or of community standards, or of other aspects of obscenity the effect of the book upon children as a class. Nor does the charge emphasize, as did the trial judge in the findings reviewed in Ginzburg v. United States, 86 S.Ct. p. 970, f. 3, the effect of the book upon “children of all ages, psychotics, feeble-minded and other susceptible elements.” On the contrary, here the jury was directed to consider as the measuring rod the total market at which defendant aimed, and to consider specifically the average mature person in that market, neither the very immature nor the very sophisticated. Such a measuring rod is appropriate.
The other point deserving of our comment is the refusal of the trial judge to permit defendant to introduce in evidence a large number of publications currently available in Rhode Island so that from them the jury could better form its opinion of community standards. It is, of course, true that what is sold in the market reflects to some extent community standards. But it is not true that every item sold is necessarily not obscene. Hence, not every book sold in the market is admissible to test the obscenity of Lust Job. Nor is a judge required to admit as a touchstone for the jury even those books which are admittedly not obscene. The admission of a number of different publications alleged to be.comparable to the publication in issue might make the trial unmanageably complex and lengthy. The trial judge must be allowed wide discretion as to whether to permit the introduction of such allegedly comparable publications, and as to whether to allow the witnesses to be examined in detail on publications other than the one directly at issue. Here the trial judge did not abuse his discretion.
Affirmed.
. 18 U.S.C. § 1465 “Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, laseivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,-000 or imprisoned not more than five years or both. * * * ”
18 U.S.C. § 2(b) “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” As amended Oct. 31, 1951, c. 655, § 17b, 65 Stat. 717.
. “The first test to be applied by you in determining whether said book, ‘Lust Job,’ is obscene is whether the dominant or most obvious theme or purpose of said book, when viewed as a whole and not part by part, is an appeal to the prurient interest of the average person of our national community. It is not whether it would arouse lustful thoughts in those comprising a particular segment of our community, such as the young, the immature, or highly prudish, or, on the other hand, would leave another segment, such as the scientific or highly educated, or the so-called wor[l]dly-wise and sophisticated, indifferent and unmoved. The test is the effect of the book considered as a whole not upon any particular class, but upon all those it was likely to reach; in other words, its impact upon the average person in our national community in 1962.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
DOUGLASS et al. v. UNITED STATES APPLIANCE CORPORATION.
No. 12141.
United States Court of Appeals Ninth Circuit.
Sept. 23, 1949.
Mellin & Hanscom, Oscar A. Mellin, Leroy Hanscom and Jack E. Hursh, San Francisco, Cal., for appellants.
Flehr & Swain, Paul D. Flehr, John F. Swain, San Francisco, Cal., for appellee.
Before GARDNER, Chief Judge (sitting by special designation), HEALY and ORR, Circuit Judges.
HEALY, Circuit Judge.
This appeal presents the question whether the estoppel running against an assignor of a patent to assert its invalidity extends to third persons who acquire by purchase other and later patents of the assignor found to infringe the assigned patent. We think in the present state of the law the question must be answered in the negative.
Ralph M. Keele made application for patent for a hair waving device and simultaneously for a valuable consideration assigned the application to appellee. On December 18, 1934, letters patent No. 1,984,585 issued to appellee on the application. Subsequently Keele devised another method and apparatus for hair waving, known as Koolerwave, and shortly afterwards entered into an agreement with Tomlinson I. Moseley for the promotion of this method, assigning a one-half interest therein to Moseley in consideration of the latter’s agreeing to finance the development and patenting thereof. After a period of experimentation and development Keele applied for patents covering the device, and patents Nos. 2,187,473 and 2,187,474 were issued. In October, 1936, Keele and Mosely formed the Keelmo Company, and the two patents last above referred to (then in the form of applications) were assigned to it. In February, 1937 an exclusive license for the manufacture and distribution of these patented appliances was granted by the Keelmo Company to Rilling-Arnao Company, and the latter placed the Koolerwave apparatus extensively on the market.
In 1939 appellee brought suit against Keel Moseley, and the Keelmo Company, and also Beauty Shop Supply Co. (Rilling Arnao’s western distributor), for infringement of letters patent No. 1,984,585. The trial of that case resulted in a dismissal on a finding that there was no infringement. On appeal (United States Appliance Corp. v. Beauty Shop Supply Co., et al., 121 F.2d 149) this court held the patent invalid for want of invention and affirmed the dismissal as to defendant Beauty Shop Supply Co. It decided, however, that Keele, Moseley, and the Keelmo Company were estopped from contesting the validity of the patent, held that their patented Koolerwave device infringed it, and ordered an accounting. In the proceeding for accounting an order was entered by the district court in May, 1944, awarding appellee one-half the royalties received by Keelmo under the two later Keele patents.
Meanwhile, in July, 1941, Keele had sold his stock in the Keelmo Company to one Soule. On May 21, 1943, the Keelmo Company sold and assigned to appellant Earl S. Douglass, for the sum of $4,000, the above mentioned patents Nos. 2,187,473 and 2,187,474, together with the Rilling-Arnao license. This circumstance becoming known to appellee, it moved in the accounting suit that it be awarded one-half the sum paid by Douglass, claiming that this amount was owing as its interest in the accountable profits of the Keelmo Company. The court granted the motion, amended its accounting order, and awarded appellee one-half the sales price of the two patents. On January 1, 1945 Douglass, in consideration of the payment to him of $4,000, sold and assigned the two patents he had acquired from the Keelmo Company, together with the Rilling-Arnao license and royalties thereunder, to appellants Oscar A. Mellin and Walter Slack as joint tenants with right of survivorship. The amount paid by the latter to Douglass was furnished by Moseley with the understanding that Mellin and Slack would declare an irrevocable trust of the property and rights in favor of appellants Robin Moseley and T. Jefferson Moseley, minor children of Tomlinson I. Moseley. They accordingly executed such declaration.
In 1947 appellee brought the present suit against the several appellants here for infringement of the patent No. 1,984,-585. The complaint alleged that Douglass’ purchase of the Keelmo patents, his ■continuing of the Rilling-Arnao license, and his subsequent sale of the patents and license to Mellin and Slack, plus the latters’ acquisition and their continuance of the license, constitute acts of infringement. The answer denied infringement and asserted the invalidity of the patent sued on. Judgment was entered holding all appellants infringers of the patent and declaring all estopped to deny its validity.
Preliminarily, it is important to recall the precise limits of this court’s holding in the former suit involving the patent. The licensee Rilling-Arnao was not a party, and the opinion did not discuss the question whether a licensee of an assignor labors under the same disability as the assignor himself. The court did observe that the contract between Rilling-Arnao and Beauty Shop Supply Co., which was held not es-topped, failed to disclose an agency relationship; but this observation was merely in reply to the argument that such a relationship in fact existed and served, as a matter of law, to bring Beauty Shop Supply under the ban of the estoppel. The court did pot rule on the question whether the argument would be valid if its -premise had been correct. Moáeley was held es-topped on the ground that he had cooperated with Keele in developing the infringing Koolerwave device; and a like conclusion was reached as regards the Keelmo Company since the latter was the alter ego of the two individuals, having been formed by them for the purpose of advancing their interests in the device and being owned or controlled by the two in equal shares.
It is undisputed that in the present suit the court was right in holding appellant Tomlinson I. Moseley estopped to deny validity. Appellee argues that Moseley is the real party in interest here. It contends that Mellin and Slack and the Moseley children stand in the shoes of Tomlinson I. Moseley, since the latter gave Mellin and Slack the money with which the property was acquired from Douglass. No authority is cited for this proposition, and we are not prepared to accept it. Under the .controlling local law it would seem that the corpus of the trust declared by Mellin and Slack should be regarded as an outright gift to the children. In Oyama v. State of California, 332 U.S. 633, 641, 68 S.Ct. 269, 273, 92 L.Ed. 249, the Supreme Court, on a survey of the California authorities, observed that “for most minors California has the customary rule that where a parent pays for a conveyance to his child there is a presumption that a gift is intended; there is no presumption of a resulting trust, no presumption that the minor takes the land for the benefit of his parent. When a gift is thus presumed and the deed is recorded in the child’s name, the recording suffices for delivery, and, absent evidence that the gift is disadvantageous, acceptance is also presumed. Thus the burden of proving that there was in fact no completed" bona fide gift falls to him who would attack its validity.” Numerous local decisions are cited in support of the text.
Whether the appellants other than Tomlinson I. Moseley are estopped depends, then, on the strength of the general contention that the estoppel held effective against the assignor and his immediate associate extends to vendees such as Douglass and his successors in interest—all of whom, it must be remembered, acquired their interests long after Keele, the prime offender, had completely withdrawn from the 'enterprise. In effect the argument ■seems to be that the infringing device itself becomes an untouchable as regards all who acquire it with knowledge. Appellee cites no authority for so broad an application of the estoppel principle in the patent field. The estoppel to deny validity has generally been thought of as a disability personal to the assignor and to joint venturers and sharers of his profits. Compare American Machinery Co. v. Everedy Mach. Co., D.C., 35 F.2d 526; Babcock & Wilcox Co. v. Toledo Boiler Works Co., 6 Cir., 170 F. 81; Trussed Concrete Steel Co. v. Corrugated Bar Co., D.C., 214 F. 393; and Macey Co. v. Globe-Wernicke Co., 7 Cir., 180 F. 401. As said in American Machinery Co. v. Everedy Mach. Co., supra, 35 F.2d page 528, “The estoppel doctrine extends to parties and privies. The word ‘privity’ implies co-operation, but it also includes the thought of sharing and of participation in profits.” In applying the principle it has been the thought of the courts, not that a sweeping monopoly be perpetuated in a patent found invalid for want of invention, but rather that one who sells a patent and receives a consideration for it may not, to the detriment of the purchaser, be heard to say that the latter in reality bought a worthless thing. In Babcock & Wilcox Co., supra, 170 F. page 84, Judge Lurton, then on the Sixth Circuit, put the idea in this language: “The ground upon which the assignor of a patent is estopped, when sued for infringement, to deny the validity of the patent he has sold, is that, having received a valuable consideration, he may not derogate from his grant by denying that it had any value.”
If the courts had not heretofore practiced restraint in their application of the estoppel principle in patent cases it’would surely be their business to do so now in light of Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47. There the Court brought into the foreground the public interest in the free exploitation and distribution of appliances not truly the subject of a patent monopoly, relegating judicial concern as respects private good faith to an undefined and shadowy, but certainly a secondary, place. It is true that the alleged infringing device in that case was that of an expired patent, and the Court endeavored carefully to limit its holding to the immediate situation before it; but there can be no doubt that estoppel to question the novelty of a patented device must now be considered a doctrine of very limited validity.
There is another reason why appellee is not entitled to prevail. As already seen it demanded and received half the amount paid by Douglass on his acquisition from the Keelmo Company of the Keelmo patents and the Rilling-Arnao license. By its acceptance of the benefits of the transaction it must be held to have ratified the sale, and we think it may not now be heard to say that the rights and property acquired by Douglass were such as he and his successors were debarred from putting to any advantageous use. Compare Stebler v. Riverside Heights Orange Growers’ Ass’n, 9 Cir., 214 F. 550. Appellee, upon learning of the sale, was in position to sue Douglass for infringement and could have elected that remedy; but having elected to ratify the sale it is in no better position than was the Keelmo Company to derogate the benefits flowing to the vendee.
The judgment is reversed as to all appellants except Tomlinson I. Moseley.
. The judgment in the accounting action was affirmed by this court, 9 Cir., 155 F.2d 25.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_petitioner
|
142
|
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.
TABB v. CALIFORNIA.
No. 83,
Misc.
Decided October 14, 1963.
Petitioner pro se.
Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of California for further consideration in light of Douglas v. California, 372 U. S. 353.
Mr. Justice Harlan, for the reasons stated in Daegele v. Kansas, ante, p. 1, would have withheld disposition of this petition for certiorari until the disposition, after argument, of that case.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Ardis O. SMART, Appellant, v. Robert A. HEINZE, Warden, Folsom Prison, Represa, California, Appellee.
No. 19735.
United States Court of Appeals Ninth Circuit.
May 19, 1965.
Rehearing Denied June 21,1965.
Ardis Oliver Smart, in pro. per. Thomas C. Lynch, Atty. Gen., of Cal., Doris H. Maier, Asst. Atty. Gen., of Cal., Edsel W. Haws, Deputy Atty. Gen., of Cal., Sacramento, Cal., for appellee.
Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges.
HAMLIN, Circuit Judge.
Appellant is a prisoner incarcerated in Folsom Prison. On July 20, 1964, appellant filed a complaint in the United States District Court for the Northern District of California, Northern Division, pursuant to the Civil Rights Act, 28 U.S.C. § 1343 and 42 U.S.C. § 1983, seeking damages and other equitable relief against the warden of Folsom Prison, appellee herein. In his complaint it is alleged that appellant prepared a petition for habeas corpus to be submitted to the United States District Court for the Northern District of California, Northern Division; that the resident notary public at the prison refused to notarize the petition upon the ground that it was not prepared on forms as required by Rule ND5 of the Rules of Practice of that court; that thereafter appellant attempted to mail the petition without notarization; and that the petition was not mailed, but was returned to him by prison officials on the ground that it did not comply with the requirements of Rule ND5 in that it was not prepared in the questionnaire form required by the Rule. At the time of filing of the complaint in the district court, appellant also moved for permission to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. On July 20, 1964, the District Court for the Northern District of California, Northern Division, entered its memorandum decision and order denying appellant’s motion to proceed with the action in for-ma pauperis. The court, by order dated July 29, 1964, denied appellant’s motion for a rehearing. This court on December 7, 1964, authorized appellant to prosecute this appeal in forma pauperis, and has jurisdiction to hear this appeal under 28 U.S.C. § 1291.
To proceed in forma pauperis is a privilege not a rig0ht. Clough v. Hunter, 191 F.2d 516, (10th Cir. 1951). It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis. Tate v. People, et al., 187 F.2d 98 (9th Cir. 1951); Huffman v. Smith, 172 F.2d 129 (9th Cir., 1949); Meek v. City of Sacramento, 132 F.Supp. 546 (N.D.Cal.1955).
The granting or refusing of permission to proceed in forma pauperis is a matter committed to the sound discretion of the district court. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963). The latitude of discretion accorded the ruling of the district court in such matters is especially broad in civil actions by prisoners against their wardens and other officials connected with the institution in which they are incarcerated.
The substance of appellant’s complaint is that the warden of Folsom Prison will not permit application for writs of habeas corpus to be notarized or mailed unless they are completed on forms provided under Rule ND5 of the District Court for the Northern District of California. Rule ND5 was adopted by that court on April 20, 1964, and provides that petitions for a writ of habeas corpus by persons in state custody shall be on forms supplied by the court. This rule, as are all such local rules of the various district courts, was promulgated pursuant to 28 U.S.C. § 2071 and Rule 83 of the Federal Rules of Civil Procedure. The authority to promulgate a rule such as Rule ND5 and its validity is beyond dispute.
The petition for a writ of habeas corpus which petitioner presented for notarization and mailing was not on the forms prescribed by the rules of the district court. Instead of using the forms therefor as provided by the rule, appellant filed a suit for damages against the warden.
The court below, in its memorandum decision and order stated:
“Rule ND5 was imposed by this Court, not the defendant, and the assailed conduct on the part of defendant was solely for the purposes of complying with and implementing this Court’s resolution. Accordingly, no valid claim has been stated against the defendant.”
We agree. We see no impropriety in the action of the prison officials in this case in following the rules of the court. Appellant’s complaint was patently frivolous. We hold that the district court did not abuse its broad discretion in denying appellant’s motion to proceed in forma pawperis.
Judgment affirmed.
. Rule ND5 of the United States District Court for the Northern District of California, Northern Division.
“1. Petitions for a writ of habeas corpus and motions filed in the Northern Division of this Court pursuant to 28 U.S.C. § 2255 (attacking a sentence imposed by this Court), by persons in custody, shall be typewritten (unless it is affirmatively made to appear that typing facilities are not available), signed and verified. Such petitions and motions shall be on forms supplied by the Court, copies of which are hereto appended. The instructions on said forms shall be strictly followed.
“2. Petitions and motions shall be addressed to the Clerk of the U. S. District Court for the Northern District, Northern Division, 650"Capitol Avenue, Sacramento, California. Petitioners shall send to the Clerk an original and one copy of the completed petition or motion form. No petition or motion shall be addressed to an individual judge, petitions shall be directed to the Clerk of the Court for assignment pursuant to the rules of this Court, provided that motions under 28 U.S.C. § 2255 shall, if possible, be assigned to the sentencing judge.”
. Weller v. Dickson, supra. See the concurring opinion by Duniway, Circuit Judge, therein, where it is stated—
“ * * * [W] hen £he action is a civil suit by a state prisoner against his jailers, whether under the Civil Rights Act or not. the district court should have, and has, a broad discretion, and can deny leave to proceed in forma pauperis even though the complaint does state a claim for relief, if the court is of the opinion that the plaintiff’s chances of ultimate success are slight.”
. Appellant has filed in this court a motion “to declare Rule ND5 unconstitutional and repugnant to Federal Court Rules,” which motion has been denied.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_fedlaw
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Betty MARTIN v. OFFICE OF SPECIAL COUNSEL, MERIT SYSTEMS PROTECTION BOARD, Appellant.
No. 86-5385.
United States Court of Appeals, District of Columbia Circuit.
Argued March 2, 1987.
Decided June 5, 1987.
Alfred Mollin, Attorney, Dept, of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Atty., Dept, of Justice, were on the brief, for appellant.
Peter B. Broida for appellee.
Before MIKVA, STARR, and WILLIAMS, Circuit Judges.
Opinion for the court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
In this Freedom of Information Act (FOIA) and Privacy Act case, the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) appeals a district court order requiring the release of witness affidavits and an OSC attorney’s witness interview notes. These documents came into being as part of an OSC investigation into appellee’s allegation that she had been the victim of “prohibited personnel practices” in the course of her work as a civilian employee of the Air Force. OSC argues that Exemptions (b)(5) and (b)(7) of FOIA, 5 U.S.C. § 552(b)(5), (7) (1982), and Exemption (d)(5) of the Privacy Act, 5 U.S.C. § 552a(d)(5) (1982), protect the documents from mandatory disclosure. We find that FOIA’s Exemption (b)(5), which protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,” and Privacy Act Exemption (d)(5), which embodies a similar protection for documents prepared in anticipation of a “civil action or proceeding,” clearly cover these attorney work-product materials, the factual character of these materials notwithstanding. Consequently, we reverse the district court’s order.
I. BACKGROUND
The Office of Special Counsel of the Merit Systems Protection Board acts as a civil service “watchdog” office, designed to investigate and prosecute prohibited personnel practices in the federal government. See 5 U.S.C. § 1206(a)(1) (1982). If an OSC investigation reveals that an employee’s allegations of such a prohibited practice are well founded, OSC may file a complaint with MSPB asking for disciplinary action against the individual responsible. MSPB may impose any of a number of different penalties, subject to judicial review by the United States Courts of Appeals. 5 U.S.C. § 1207(b), (c) (1982). In this case, the district court ordered MSPB to release documents in an OSC investigative file compiled in response to appellee Martin’s allegations that she was the victim of prohibited personnel practices.
Ms. Martin worked for some twenty-two years as a civilian procurement clerk for the Air Force at McDonnell Douglas Aircraft Corporation’s St. Louis, Missouri facility. Ms. Martin claims she was harassed verbally by her superiors after she wrote letters to the Secretary of the Air Force, the General Accounting Office, and others that alleged improper use of McDonnell Douglas personnel in certain Air Force activities. She complained of the harassment to OSC in March 1979. On the basis of the complaint, OSC initiated an investigation into these alleged “prohibited personnel practices,” 5 U.S.C. § 2302(b)(8) (1982), as required by law. Id. § 1206(a)(1).
Some months later, while the OSC investigation into the harassment allegations was pending, the Air Force discharged Ms. Martin because of an unexplained and unjustified absence from work. On its face, at least, the discharge bore no relationship to Ms. Martin’s earlier allegations. Ms. Martin claimed she was too ill to work during her six-week absence, but she was unable or unwilling to offer any medical evidence to support her claim. Ms. Martin filed an appeal of her discharge with MSPB, which rejected it as untimely. Only after MSPB lost appeals in the Court of Claims and the Federal Circuit did it agree to hear Ms. Martin’s discharge appeal.
By the time MSPB finally took up Ms. Martin’s discharge appeal, OSC had completed its investigation into Ms. Martin’s earlier harassment allegations. During the investigation, an OSC attorney had interviewed fifteen of Ms. Martin’s co-workers regarding the matter. The attorney took notes on the co-workers’ comments, and subsequently asked eleven of them to prepare affidavits on particular factual aspects of the case. The investigating attorney ultimately determined that no prohibited practices had taken place, and OSC declined to file an official complaint with MSPB on Ms. Martin’s behalf.
In the proceedings before MSPB appealing her discharge, Ms. Martin turned to the OSC investigation of her harassment allegations for evidence to support her wrongful discharge claim. Using ordinary civil discovery procedure, she asked for all “factual matters” contained in the OSC investigative file. MSPB ordered OSC to release the vast majority of the documents in that file. A small number of documents, including the attorney notes and witness statements, were withheld as “classic examples of attorney work-product.” MSPB Opinion and Order at 5, Joint Appendix (JA) 35.
Later, but while MSPB’s review of her discharge was still pending, Ms. Martin filed a FOIA/Privacy Act request for all materials compiled by OSC in connection with her allegations. Presumably she aimed to obtain the documents denied her in her discovery motion. Twenty-seven documents remained undisclosed at this time: the final report on the investigation by the OSC attorney in charge, eleven memoranda circulated among OSC staff members regarding the case, eleven signed witness statements, and four documents constituting the investigating attorney’s notes on witness interviews. MSPB denied the request, and the denial was upheld on administrative appeal. Ms. Martin filed suit in the district court to compel disclosure. See 5 U.S.C. § 552(a)(4)(B) (1982).
The district court recognized that the attorney’s investigative report and the eleven staff memoranda on the case constituted attorney work product, exempt from disclosure under Privacy Act Exemption (d)(5) and FOIA Exemption (b)(5), but ordered the remaining fifteen documents disclosed. The court reasoned that these documents were “purely factual” and thus not protected by Exemptions (d)(5) and (b)(5). Memorandum Order, February 7, 1986, at 5, JA 83. The court reasoned that the eleven witness statements were not attorney work-product because they were “the product of the witness, not of the lawyer.” Id. Similarly, the attorney’s interview notes merely recorded “in shorthand version the comments of the witnesses,” not the impressions of the attorney. Id.
The district court justified this determination in part by reading Exemptions (d)(5) and (b)(5) to incorporate civil discovery privileges only to a ceiling level set by the “deliberative process” discovery privilege available to government agencies. That discovery privilege generally does not protect “purely factual” material. See EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). Asked by OSC to reconsider this aspect of its decision, the district court noted the “logical appeal” of the government’s objections, but refused to change its decision. Memorandum and Order, April 9, 1986, at 3, JA 86. OSC now appeals that portion of the ruling that orders disclosure of witness affidavits and attorney interview notes.
II. Discussion
Appellee argues that both the Privacy Act and FOIA mandate disclosure of the documents at issue here. The two acts explicitly state that access to records under each is available without regard to exemptions under the other. See 6 U.S.C. §§ 552a(q)(1), (q)(2) (1982); Fagot v. FDIC, 684 F.Supp. 1168, 1173 (D.P.R.1984) (holding that a petitioner “is entitled to the cumulative result of what both [FOIA and the Privacy Act] provide”). In order to withhold these documents from Ms. Martin’s twin Privacy Act/FOIA request, then, OSC must demonstrate that the documents fall within some exemption under each Act. If a FOIA exemption covers the documents, but a Privacy Act exemption does not, the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must be released under FOIA. Because we find that both FOIA Exemption (b)(5) and Privacy Act Exemption (d)(5) properly protect these documents from disclosure, we hold that OSC need not release them under either Act.
A. FOIA Exemption (b)(5)
FOIA Exemption (b)(5) protects from disclosure those “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5) (1982). Though the Supreme Court has noted that this language “clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency,” Mink, 410 U.S. at 86, 93 S.Ct. at 835, the exact relationship between ordinary civil discovery and Exemption (b)(5), particularly the application of discovery privileges under the exemption, has bedeviled the courts since the Act’s inception. Id. The Supreme Court, seeing the need for a broadly sweeping rule on the matter, has insisted that the needs of a particular plaintiff are not relevant to the exemption’s applicability, and has held repeatedly that only documents “normally” or “routinely” disclosable in civil discovery fall outside the protection of the exemption. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 & n. 16, 95 S.Ct. 1504, 1515 & n. 16, 44 L.Ed.2d 29 (1975); FTC v. Grolier Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983); United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984). To resolve the present case we must grapple directly with the confusion plaguing the courts’ efforts to apply the law of civil discovery privilege in Exemption (b)(5) analysis.
Appellant argues that the attorney notes and witness statements Ms. Martin seeks are classic attorney work product, privileged under the Supreme Court’s opinion in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As these documents would not be released “normally” or “routinely” in civil discovery, OSC insists, they fall squarely within the Court’s interpretation of the exemption. See Sears, Roebuck, 421 U.S. at 154-55, 95 S.Ct. at 1518 (recognizing that Exemption (b)(5) incorporates the work-product privilege).
The district court interpreted Exemption (b)(5) more narrowly. The court found that, whatever the scope of the attorney work-product privilege in civil discovery, under Exemption (b)(5) that privilege extends only as far as does the general “deliberative process” executive privilege enjoyed by agencies. The court reasoned that Congress enacted Exemption (b)(5) only to protect the “free and frank discussion” of policy shielded by the deliberative process privilege, rather than to incorporate civil discovery privileges wholesale. Consequently, because factual material is not privileged under the deliberative process privilege, “purely factual” work product, even if otherwise privileged, does not come within Exemption (b)(5). In reaching this conclusion, the court relied primarily on the legislative history of FOIA and on two circuit court cases that adopt the same view. See Memorandum and Order, April 9, 1986, at 4, JA 87, citing S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965); Robbins Tire & Rubber Co. v. NLRB, 563 F.2d 724, 735 (5th Cir.1977), rev'd on other grounds, 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir.1977).
The words of a statute presumptively establish its meaning, and the intent of Congress behind it. State of Montana v. Clark, 749 F.2d 740, 747 (D.C.Cir.1984). Here, those words point clearly, unequivocally, to the incorporation of all civil discovery rules into FOIA Exemption (b)(5). Nothing on the face of the provision indicates it incorporates the deliberative process privilege in a vacuum. We find neither the legislative history of the Act nor the reasoning in Robbins Tire and Deering Milliken sufficiently powerful to require the conclusion that Congress meant Exemption (b)(5) to extend to the limits of the "deliberative process" executive privilege, but no farther.
Of course, the courts must take care to construe the FOIA exemptions as "narrowly as consistent with efficient Government operation." Weber Aircraft, 465 U.S. at 802, 104 S.Ct. at 1494; Grolier, 462 U.S. at 23, 103 S.Ct. at 2212; Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976); Mink, 410 U.S. at 79, 93 S.Ct. at 832. Nevertheless, if Congress had intended this exemption solely to encourage "frank discussion" within an agency, it could easily have drafted language to make that intention clear. Congress did not do so.
The only pieces of evidence offered by Ms. Martin to support a contrary interpretation, a few sentences in the Act's legislative history, in no way conflict with the plain ineaning of the statute's language. The passages she claims demonstrate a "deliberative process" cap on the exemption merely speak to the need for "frank discussion" in policymaking, and to the concern that without Exemption (b)(5) government might be forced to "operate in a fishbowl." S.Rep. No. 813 at 9. The legislative history does not suggest that this concern for "frank discussion" was exclusive, or that Congress intended Exemption (b)(5) to be a mere surrogate for the deliberative process privilege. As the Supreme Court succinctly stated in Weber Aircraft, "{T]he legislative history of Exemption 5 does not contain the kind of compelling evidence that would be necessary to persuade us to look beyond the plain statutory language." Id.
Despite its simplicity, however, this analysis is not uncontroversial. The Supreme Court has not specifically adopted any position on the question, and, as noted above, two circuits have taken a contrary approach. See Robbins Tire, 563 F.2d at 734-35; Deering Milliken, 548 F.2d at 1137-38. Both courts found that Exemption (b)(5) does not shield "purely factual" work-product material from disclosure under FOIA, and based this conclusion in substantial part on the Supreme Court's decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). We think they misread Mink, particularly in light of the Supreme Court's recent interpretations of that opinion.
Mink `s discussion of Exemption (b)(5) is entirely an exposition of the deliberative process privilege. The parties did not raise an exemption claim based on the work-product privilege. Mink, 410 U.S. at 90-91, 93 S.Ct. at 837. The Court's distinction between "facts" and "deliberations," emphasized by both the district court in this case and the Robbins Tire and Deering Milliken courts, clearly applies only to the executive privilege, not to all discovery privileges under Exemption (b)(5). To emphasize the limited character of its analysis, the Mink Court carefully noted that the exemption does not allow "the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy or opinion." 410 U.S. at 91, 93 S.Ct. at 837 (emphasis added). Materials that fall within the Hickman v. Taylor work-product privilege are not “otherwise available on discovery.” Mink simply does not apply the fact/deliberative process distinction to every Exemption (b)(5) case.
The Mink opinion, in fact, specifically recognizes and discusses legislative history that makes our conclusion virtually inescapable. Pointing to an earlier version of Exemption (b)(5) that would have permitted “[a]ll factual material in Government records ... to be made available to the public,” Mink, 410 U.S. at 91, 93 S.Ct. at 837, quoting S.Rep. No. 1219, 88th Cong., 2d Sess. 7 (1964) (emphasis in original), the Court noted that this extreme approach had been “severely criticized” because “it would permit compelled disclosure of an otherwise private document.” 410 U.S. at 91, 93 S.Ct. at 837. This “severely criticized” (and ultimately rejected) approach is precisely that presently advanced by Ms. Martin. Though the Court in Mink took pains to remind the lower courts that the defeat of the earlier, more limited exemption did not mean that all factual material is exempt, id., that defeat is strong evidence that Congress did not intend to impose an across-the-board fact/deliberative process distinction in Exemption (b)(5) cases.
The Supreme Court’s Weber Aircraft opinion, decided after Robbins Tire and Deering Milliken, puts any lingering doubt on the question to rest. In that case, the Court explicitly rejected the notion that “purely factual material can never qualify for protection under Exemption 5.” 465 U.S. at 800 n. 17, 104 S.Ct. at 1493 n. 17. Mink, the Court explained, “merely states that otherwise nonprivileged factual material cannot be withheld under Exemption 5 merely because it appears in the same document as privileged material, and that Congress intended to adopt relevant case law on privilege.” Id. (emphasis added). In light of this straightforward enunciation of the limits of the fact/deliberative process distinction in Exemption (b)(5), we think it entirely possible that the Fourth and Fifth Circuits would decide Robbins Tire and Deering Milliken differently if confronted with those cases today.
One other critical consideration compels us to adopt this interpretation of Exemption (b)(5). By applying the fact/deliberative process distinction to a work-product privilege case, the district court’s decision effectively allows FOIA to be used as a supplement to civil discovery. Not only does this use of FOIA undercut the exemption’s apparent function (the exemption on its face seems designed to avoid precisely this possibility), it also runs afoul of the decisions of the Supreme Court, which have “consistently rejected such a reading of FOIA.” Weber Aircraft, 465 U.S. at 801, 104 S.Ct. at 1493. Ms. Martin was unable to obtain these documents using ordinary civil discovery methods, and FOIA should not be read to alter that result.
Ms. Martin also asserts that this court, in Mervin v. FTC, 591 F.2d 821 (D.C.Cir.1978), adopted the fact/deliberative process distinction for Exemption (b)(5) work-product privilege cases. We can find no such holding in Mervin. In that case the court refused to segregate allegedly “purely factual” material from work-product documents. 591 F.2d at 826. The court actually emphasized that the deliberative process privilege, not the work-product privilege, is the source of the fact/deliberative process distinction, and specifically noted that factual elements can “seldom” be segregated from attorney work product. Id. at 827. Any implicit statement that factual materials might be segregable from work product in some cases is at most a dictum, and an unarticulated dictum at that. Mervin is in no way precedent for appellee’s proposition; even if we were inclined to follow the reasoning of its implicit dictum, we would be hard pressed to say just what the scope of that sotto voce statement might be.
Ms. Martin argues as well that Exemption (b)(5) does not apply to these documents because they are not “inter-agency or intra-agency memorandums.” She alleges, without evidence, that some of the witnesses whose statements are at issue here were not government employees at the time the statements were made. As OSC specifically assures us that all the witnesses were employees of the Air Force at the time of their statements, we reject Ms. Martin's argument.
Naturally, if the privilege asserted by OSC in this case had been the "deliberative process" executive privilege itself, the district court would have been correct to evaluate the "factual" character of these documents as one factor in its Exemption (b)(5) analysis. But it is the work-product privilege that drives this case, not the deliberative process privilege. The work-product privilege simply does not distinguish between factual and deliberative material. Neither does Exemption (b)(5), in itself, contain any such limitation on its incorporation of civil discovery privilege in general, or the work-product privilege specifically. In sum, we find that if the work-product privilege protects the documents at issue here, Exemption (b)(5) protects them as well, regardless of their status as "factual" or "deliberative."
Consequently, we must determine whether these documents fall within the work-product privilege. We find that they do. A clearer case for application of Hickman v. Taylor is difficult to imagine. In Hickman the Supreme Court held that witness statements prepared at the request of an attorney are privileged work product and not subject to discovery unless the discovering party can show the statements are "essential" to her case. 329 U.S. at 511, 67 S.Ct. at 393. The Court also held that attorney notes taken during witness interviews are, for all practical purposes, always privileged. Id. at 512-13, 67 S.Ct. at 394. Hickman, therefore, covers precisely the types of documents disputed in the case before us. MSPB denied Ms. Martin's civil discovery request because, as MSPB put it, the documents constitute "classic examples of work product." MSPB Initial Decision at 5, JA 35. We agree with that characterization: Without doubt, these documents would not "normally" and "routinely" be released in civil discovery. We hold, therefore, that they are shielded from disclosure under FOIA by Exemption (b)(5). See Sears, Roebuck, 421 U.S. at 149 & n. 16, 95 S.Ct. at 1515 & n. 16; Grolier, 462 U.S. at 24, 103 S.Ct. at 2212.
Because we resolve the FOIA dispute on the basis of Exemption (b)(5), we have no occasion to consider OSC's argument that Exemption (b)(7) of the Act also protects these documents from disclosure.
B. Privacy Act Exemption (d)(5)
Privacy Act Exemption (d)(5) provides: Nothing in this section shall allow an individual access to information compiled in reasonable anticipation of a civil action or proceeding.
5 U.S.C. § 552a(d)(5) (1982). At the outset, we note that this language does not admit of any distinction between "facts" and "deliberative processes." Unlike FOIA Exemption (b)(5), Exemption (d)(5) in no way incorporates civil discovery law, and therefore in no way incorporates the executive "deliberative process" privilege. Indeed, the exemption speaks of "information," a term that embraces facts as easily as it does deliberative processes. The character of the attorney notes and witness statements as "fact" or "deliberative process" is irrelevant to proper analysis under this provision. To the extent that the district court held to the contrary, it was in error.
Ms. Martin's principal argument, however, rests on a different ground. She insists that Exemption (d)(5) does not properly cover documents compiled, as here, in anticipation of administrative, rather than judicial, proceedings. Extending the exemption to such hearings, she asserts, would eviscerate the Privacy Act by insulating a vast array of agency documentation from the Act's disclosure requirements.
This objection, although not without an element of truth, founders on the actual language of the exemption. The phrase "civil action or proceeding" plainly encompasses nonjudicial hearings of some kind; to argue otherwise is to make the words "or proceeding" meaningless. Ms. Martin gives us no other reasonable explanation of Congress' intent in enacting this phrase. The core issue, then, is not whether documents prepared for administrative hearings can ever come within Exemption (d)(5), but rather, what sort of administrative proceedings Congress had in mind for such protection.
Ms. Martin justifiably raises the alarm against exempting documents reasonably prepared in anticipation of any type of administrative proceeding. If Exemption (d)(5) shielded documents prepared for administrative hearings of any sort, the Privacy Act might indeed become a dead letter. Hearings are the bread and butter of many executive agencies, and documents prepared for those hearings comprise an enormous portion of the information Congress intended to make available to concerned individuals under the Privacy Act. See R. Bouchard & J. Franklin, Guidebook to the Freedom op Information and Privacy Acts 39-43 (1980).
But OSC does not argue, and this case does not require, that we interpret Exemption (d)(5) so expansively. We merely must decide whether Congress intended the exemption to shelter documents prepared in anticipation of quasi-judicial hearings of the sort conducted by MSPB. For several reasons, we find that Congress did so intend.
First, the language of the exemption is strong evidence of that intent. By using the phrase “civil action or proceeding,” Congress unquestionably intended to protect documents prepared for actions in the district courts. Documents prepared for some types of administrative proceedings also come within this language, although the phrase does not make clear just which. Of all types of administrative hearings, quasi-judicial hearings are most like the formal civil actions Congress clearly and specifically intended to protect. MSPB’s hearings are adversarial, include discovery proceedings, 5 C.F.R. § 1201.72(b) (1986), and are subject to the rules of evidence. 5 U.S.C. § 1205(b)(1) (1982). The functions of this sort of quasi-judicial tribunal track those of the civil courts. See S.Rep. 969, 95th Cong., 2d Sess. 24 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723; 5 U.S.C. §§ 1205(a)(1), 1205(b)(1) (1982). Moreover, courts of appeals review decisions of the MSPB directly, just as they review district court decisions. S.Rep. 969 at 52, U.S.Code Cong. & Admin.News 1978, p. 2723; 5 U.S.C. § 1207(c) (1982). It is difficult to see any functional reason to distinguish between documents prepared in anticipation of a district court action and those prepared in anticipation of proceedings before MSPB. Whatever Congress may have intended for other types of administrative proceedings, it must have intended quasi-judicial hearings to fall within the term “civil proceedings.”
Second, appellee’s concern notwithstanding, exempting documents prepared in anticipation of quasi-judicial proceedings will not gut the Privacy Act. Quasi-judicial hearings are relatively rare, and the vast majority of agency records will not be associated with them. Moreover, quasi-judicial hearings — adversarial proceedings, subject to the rules of evidence and with opportunity for discovery — are an easily discernible breed. We need not fear overmuch an ever-widening set of hearings embraced by the term and protected by Exemption (d)(5).
Finally, the Office of Management and Budget has consistently interpreted Exemption (d)(5) to include documents prepared for quasi-judicial proceedings. See Privacy Act Guidelines, 40 Fed.Reg. 28948, 28960 (July 9, 1975) (“The term civil proceeding was intended to cover ... quasi-judicial and preliminary judicial steps_”). Although the existence of this interpretation alone would not settle the issue before us, it is worthy of our attention and solicitude. In light of our overall reasoning on the scope of the exemption, OMB’s interpretation makes our conclusion that much more certain.
For these reasons, we find that Privacy Act Exemption (d)(5) protects documents prepared in anticipation of quasi-judicial administrative hearings. The attorney notes and witness statements at issue here clearly came into being in anticipation of such a hearing, and are therefore shielded from disclosure by the exemption. Ms. Martin’s demand for the documents under the Privacy Act fails.
III. Conclusion
The attorney notes and witness statements disputed in this case are quintessential examples of attorney work product, and therefore fall within the protection of FOIA Exemption (b)(5) regardless of their “factual” or “deliberative” character. Moreover, because those documents were prepared in anticipation of a quasi-judicial hearing by MSPB, they come within the scope of Privacy Act Exemption (d)(5). As the documents are therefore properly exempt from disclosure under both acts, they need not be released to appellee.
Reversed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Melvin TANZER, Appellant, v. UNITED STATES of America, Appellee.
No. 16425.
United States Court of Appeals Ninth Circuit.
April 13, 1960.
Rehearing Denied May 31, 1960.
Silver, Silver & Ettinger, Rose S. Silver, Tucson, Ariz., for appellant.
■ Jack D. II. Hays, U. S. A-tty., Mary Anne Reimann, Asst. U. S. Atty., Tucson, Ariz., for appellee.
. Before ORR, JERTBERG and MERRILL, Circuit Judges.
MERRILL, Circuit Judge.
For violation of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. § 174, the minimum sentence for a first offender is five years and that for a second offender is ten years. Since 1956, neither probation nor parole is available. 26 U.S.C. § 7237(d).
In 1952, Tanzer pleaded guilty to a violation of § 174. The imposition of sentence was suspended. He was placed on probation and successfully fulfilled the probation terms. In 1957, Tanzer, after trial, was found guilty of a second violation of the section. The question raised by this appeal is whether, considering the manner of disposition of the first violation,' Tanzer is to be regarded as a second offender. The trial court so regarded him and sentenced him accordingly.
Tanzer sought to avoid this consequence in two ways: (1) He moved in the 1952 case for an order setting aside the judgment of conviction upon the ground that the probation terms had been satisfactorily fulfilled. (2) He moved in the 1957 case to set aside the order of conviction as a second offender upon the ground that, since imposition of sentence had been suspended in the earlier ease, there had been no final judgment of conviction in that case. Both motions were denied. Appeals were taken from both orders of denial and have been consolidated for our consideration.
We look first to the appeal from the order in the 1952 case. The question presented is whether, upon successful completion of probation, the defendant is entitled to an order setting aside the conviction.
Appellant relies upon that provision of 18 U.S.C. § 3651, to the effect that “defendant’s liability for any fine or other punishment imposed as to which probation is granted,, shall be fully discharged by the fulfillment of the terms and conditions of probation.” He contends that this should be read to provide an automatic setting aside and expunging of the conviction.
Satisfaction of judgment is quite different in its significance from forgiveness of the offense. Satisfaction may be had by serving of sentence or, under the quoted language, by fulfillment of the terms of probation. Society, in many respects, however, has seen fit to render significant the fact of conviction of a felony and to attach the attributes of status to a convicted felon. The Federal Youth Corrections Act does provide for automatic setting aside of the conviction upon unconditional discharge of the offender before expiration of his maxi-mom sentence. 18 U.S.C. § 5021. In the absence of express provision to such effect, we cannot read automatic forgiveness from a provision for satisfaction. There is no record of congressional intent to achieve such a result. Further, a consideration of the policies underlying such statutes as this would indicate the discharge from surveillance and termination of jurisdiction by ending the proceeding are not inconsistent with the use of the conviction in a prosecution for a subsequent offense. See Model Penal Code, § 301.5, comment (Tentative Draft No. 2, 1954) and Footnote 6.
Nor do we feel that the courts have discretionary power to set aside the conviction in cases such as this. While some states have given their courts such powder, no such authority has been conferred upon the federal courts by Congress as to adult offenders. The power in effect to pardon the offense notwithstanding the fact of guilt is not such a power as is inherent in the judicial process. If it is to be exercised by the courts, it should be expressly conferred by legislative act.
The order denying the motion to set aside conviction in the 1952 case is affirmed.
We turn to the appeal from the order denying the motion to set aside conviction as a second offender in the 1957 case. The question involved is whether the action taken by the court in the 1952 ease can be said to amount to a “conviction.” Appellant contends that, since imposition of sentence was suspended and probation granted, the action taken cannot be said to have that degree of finality which is necessary to a judgment of conviction.
It is the fact of conviction with which we are concerned. The provision for second offenders (26 U.S.C. § 7237(c) states that an offender shall he considered a second or subsequent offender “if he previously has been convicted” of the specified offense. Appellant contends that “conviction” contemplates and must include sentence. This proposition has been rejected in United States v. Rivera, 2 Cir., 1955, 224 F.2d 88, 89, where it was stated:
“Under the wording of 21 U.S.C. § 174 the crucial facts which make this defendant a multiple offender are his three valid convictions. The sentences imposed for these convictions are of no significance, so that even if the defendant’s first sentence had been corrected so as to be wholly suspended, the ten-year sentence provided by the statute would still have been mandatory. The language of the statute is too plain to admit of doubt * * *.”
Appellant draws a distinction between a suspension of the imposition of sentence and a suspension of the execution of sentence. In the latter case, he concedes that judgment has been rendered. In the former case, however, he contends that judgment has been reserved.
This distinction has been rejected by the Supreme Court in Korematsu v. United States, 1943, 319 U.S. 432, at page 435, 63 S.Ct. 1124, at page 1126, 87 L.Ed. 1497, which found the difference to be “one of trifling degree”. The court heid conviction to be a final judgment, notwithstanding suspension of imposition of sentence. The court stated (319 U.S. at pages 434-435, 63 S.Ct. at page 1125):
“The ‘sentence is judgment’ phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. * * * Here litigation ‘on the merits’ of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public.”
Appellant would distinguish this case upon the ground that the question there was as to the finality of the judgment for purposes of appeal. He points out that the decision of the court there favored the appellant.
The fact remains, however, that the distinction between imposition and execution of sentence is a somewhat technical foundation upon which to base one’s freedom from the taint of the offense. If there be merit in the proposition that a successful probationer should not be regarded as a prior offender under the statute, the merit certainly extends to both forms of suspension.
Appellant emphasizes the harshness of the provisions of § 7237 relating to second offenders who are not traffickers. There can be no doubt of this; nor can there be doubt that harshness was intended. Congress apparently was in no lenient mood when the section was enacted. We may note that, had the section existed in its present form at the time of appellant’s first conviction, probation would not have been available to him.
Appellant refers to the legislative history of the 1956 amendment of § 7237 and draws our attention to the emphasis laid upon trafficking in drugs as distinguished from personal use. Sub-paragraph (b) of the section, in one respect, has dealt expressly with those who traffic with persons under the age of eighteen years. In the balance of the section, no such distinction has been made, and the failure to distinguish, under the circumstances, must be held to have been intentional. With respect to legislative intent, it was stated in United States v. Buia, 2 Cir., 1956, 236 F.2d 548, 550:
“The purpose of Congress in enacting multiple offender penalties in the narcotics laws was to punish violators more severely, to deter the criminal who engages in illicit drug traffic and to take habitual violators out of circulation.”
The order denying the motion to set aside the conviction as second offender in the 1957 case is affirmed.
. In concealing, receiving and facilitating the transportation and concealment of 50 grains of opium.
. For importing 29% grains of heroin.
. See Notes: Habitual Criminal Statutes ; The Requirement of Prior Convictions, 51 Harv.L.Rev. 345 (1937); Court Treatment of General Recidivist ’ Statutes, 48 Columbia L.Rev. 238 (1948).
. In this regard, appellant has relied upon United States v. Maisel, D.C.S.D.Tex. 1928, 26 F.2d 275, to the effect that successful fulfillment of probation eradicates the record of conviction. For the reasons stated in onr opinion, we must respectfully disagree with that holding.
. As to probation and suspension of sentence, see Burns v. United States, 1932, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266; United States v. Murray, 1928, 275 U.S. 347, 357-358, 48 S.Ct. 146, 72 L.Ed. 309; 2 Attorney General’s Survey of Release Procedures, pages 1-38 (1939). As to recidivist statutes, see Gonzales v. United States, 1 Cir., 1955, 224 F.2d 431 and authorities there cited.
. E. g., California Penal Code, § 1203.4; Nevada Rev.Stat. § 176.340. It may be noted that, while these statutes provide for the expunging of convictions upon successful completion of probation, they do expressly make such expunged convictions available in subsequent prosecutions.
. See Model Penal Code, § 301.6 (Tentative Draft No. 2, 1954).
A majority of state jurisdictions which have passed upon the problem hold that the form of sentence does not affect the finality of the judgment. Winn v. Commonwealth, Ky.1957, 303 S.W.2d 275; State v. McCall, 1953, 27 N.J.Super. 157, ■99 A.2d 153, 161; People v. Funk, 1948, 321 Mich. 617, 33 N.W.2d 95, 5 A.L.R.2d 1077; People v. Rave, 1936, 364 111. 72, 3 N.E.2d 972; cf. State v. O’Dell, 1950, 71 Idaho 64, 225 P.2d 1020; although Ex parte Farr, 1948, 87 Okl.Cr. 411, 198 P.2d 748, and State v. Olson, 1925, 200 Iowa 660, 204 N.W. 278, holding finality, •dealt specifically with suspension of the •execution of the sentence. It is significant to note thjt no jurisdiction holds that a different result obtains when suspension of the imposition is involved.
Of the two jurisdictions holding that ■sentence does affect the finality, New York has found no distinction between imposition and execution. People v. :Shaw, 1956, 1 N.Y.2d 30, 150 N.Y.S.2d TCI, 133 N.E.2d 681; People ex rel. Lozzi v. Fay, 1958, 6 A.D.2d 18, 175 N.Y.S. 2d 236, affirmed 1959, 5 N.Y.2d 890, 182 N.Y.S.2d 835, 150 N.E.2d 462; and Texas gives no indication of observing any difference. Cromeans v. State, 1954, 160 Tex.Cr.R. 135, 268 S.W.2d 133; Brittian v. State, 1919, 85 Tex.Cr.R. 491, 214 S. W. 351.
Appellant has relied upon Gonzalez v. United States, 1 Cir., 1955, 224 F.2d 431; Schooley v. United States, 8 Cir., 1925, 4 F.2d 767; and Singer v. United States, 3 Cir., 1922, 278 F. 415. These eases are distinguishable in that they involve situations where there had been no pronouncement of judgment by the court on a plea or verdict of guilty.
. Furthermore, § 7 of the House Report, II.R. 2388, 84th Cong., 2d Sess. (1956) (U.S.Code Cong. & Adm.News 1956, p. 3279) makes it abundantly clear that, as to subsequent offenders under § 174, no distinction is made between traffickers and personal users; as to probation, suspension of sentence or parole under § 174, no distinction is made between traffickers and personal users or between first and second offenders. That report states:
“Under the present law probation and suspended sentence are available for first offenders and parole is available to all offenders. The proposed amendment contained in your committee’s bill would provide that probation, suspension of sentence, and parole would not be available to any offender.”
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_const2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Lois HEMMERLE, Appellant, v. RIGGS DAIRY EXPRESS, INC., Appellee.
No. 15390.
United States Court of Appeals Third Circuit.
Argued Dec. 14, 1965.
Decided Jan. 19, 1966.
S. Gerald Litvin, Philadelphia, Pa., Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant.
Joseph G. Manta, Philadelphia, Pa., James M. Marsh, Philadelphia, Pa., LaBrum & Doak, Philadelphia, Pa., of counsel, for appellee.
Before McLAUGHLIN, HASTIE and SMITH, Circuit Judges.
PER CURIAM.
We find no abuse of discretion in the trial court’s decision with reference to appellant’s pretrial memorandum. Appellant also argues that part of the second of three different hospital records should have been allowed into evidence. That proposed evidence was cumulative as the trial court found. In any event in the light of plaintiff’s damage proofs which were in evidence and the $12,000. verdict in favor of the plaintiff, the harm, if any, to plaintiff was de minimis; certainly the court’s action was not reversible error.
The judgment of the district court will be affirmed.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_respond1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
UNITED STATES ex rel. BOGISH v. TEES.
No. 11209.
United States Court of Appeals, Third Circuit.
Submitted Feb. 18, 1954.
Decided March 9, 1954.
Alex Bogish, pro se.
W. Wilson White, U. S. Atty., D. Donald Jamieson, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
MARIS, Circuit Judge.
This is an appeal by the relator from the denial by the United States District Court for the Eastern District of Pennsylvania of his petition for a writ of ha-beas corpus. The relator had been convicted in the same district court on an indictment charging him with violating the federal narcotic laws and had been sentenced to 60 days imprisonment on each of the three counts of the indictment, to be served concurrently. On appeal his conviction was affirmed by this court. United States v. Bogish, 3 Cir., 1953, 204 F.2d 507.
It appears that the relator had previously been convicted of a crime in a Pennsylvania state court. At the time of his conviction in the United States District Court he was on parole from the state penitentiary. Following his discharge from his federal imprisonment he was recommitted to the state penitentiary as a parole violator by the Pennsylvania Board of Parole and he is now serving the remainder of his original state sentence. The relator now seeks release from the state penitentiary by habeas corpus on the ground that his conviction in the United States District Court was in violation of his constitutional rights and that accordingly the revocation of his parole by the Pennsylvania Board of Parole because of that conviction was invalid. He does not attack the validity of his state conviction or sentence.
It is clear that the relator’s petition for the issuance of a writ of habeas corpus was properly denied. The relator seeks to be released from state custody but has failed to show that he has exhausted his state remedies or that such remedies are unavailable or ineffective, which under section 2254 of Title 28, United States Code, is a condition precedent to the issuance of the writ by a federal court in such a situation. For while it has been held that habeas corpus is not available in Pennsylvania to review the actions of the Board of Parole, it does appear that arbitrary or unlawful action on the part of the Board is reviewable by the Pennsylvania courts in a mandamus proceeding. Moreover the Pennsylvania parole law confers upon the Board a wide discretion as to the recommittal or continuance on parole of a parolee regardless of whether he has been convicted during his parole of another crime or has been guilty of a “technical” parole violation only. It is, therefore, not inconceivable that the Board might reparole the relator or revoke his recommittal if he made a convincing showing that his federal conviction was invalid by reason of a constitutional infirmity and that the interests of society would best be served by his restoration to parole. This may be possible even though the Board could not be compelled to make a declaratory ruling that the conviction was invalid. On the other hand it may be that the action of the Board in recommitting the relator was not based solely on his federal conviction. It might have been based also on conduct on his part which would have made his recommittal appropriate regardless of his federal conviction. This we cannot know since the relator has made no application for relief either to the Pennsylvania Board of Parole or to the courts of that state. His application to the district court for habeas corpus is, therefore, barred by section 2254.
Furthermore we see no basis for supposing that in any event the relator could secure the relief he desires through a writ of habeas corpus directed to his state custodian. For in such a ha-beas corpus proceeding he would have to establish that his detention under his state sentence is unlawful since it is under that sentence that he is held in custody having been recommitted to serve it out by the Board of Parole. But the state sentence is not challenged and the action of the Board in recommitting the relator on the basis of his federal conviction, assuming that was the sole basis for its action, could hardly be stamped as invalid unless it could be said that the Board was wrong in giving such faith and credit to the final and unimpeached judgment of the federal district court in the relator’s case. It would be extravagant to think that any court would so hold.
Parole in Pennsylvania has been held to be purely a matter of grace and not of right. “It does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution.” Commonwealth ex rel. Banks v. Cain, 1942, 345 Pa. 581, 585, 28 A.2d 897, 899, 143 A.L.R. 1473. In view of the nature of parole and the broad discretion which, as we have seen, is vested in the Pennsylvania Board of Parole in its administration we think it probable that the most to which the relator would be entitled would be reconsideration by the Board of his recommittal as a parole violator if and when he is able to establish that his federal narcotic law conviction is void.
The dilemma with which the relator is faced is thus apparent. He must establish the invalidity of his federal conviction before he can ask the Pennsylvania Board of Parole to revoke its action in recommitting him because of that conviction. And he cannot establish the invalidity of that conviction in a habeas corpus suit directed against his state custodian. Nor can he do so in a statutory proceeding under section 2255 of title 28, United States Code. For the remedy given by that section is available only to a prisoner who is actually in custody under the sentence which he seeks to set aside. Here the relator has served in full the sentence imposed by the district court and is now, as we have seen, a prisoner in the custody of a state penitentiary warden under the sentence of a state court.
There is, however, a procedure by which one in the position of the relator can obtain a determination of the constitutional validity of a criminal judgment against him which has been fully executed but the effects of which persist to his detriment. This may be accomplished by a motion in the nature of a writ of error coram nobis. United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247. In the Morgan case the Supreme Court suggested that in behalf of unfortunate prisoners without friends or funds a court should act in doing justice, if the record makes plain a right to relief, without regard to legalistic requirements of pleading, citing Darr v. Burford, 1950, 339 U.S. 200, 203-204, 70 S.Ct. 587, 94 L.Ed. 761.
We conclude that the interests of justice require us to approach the present case in this way. While it is true that the United States is not technically the respondent in this case as it should be on a motion in the nature of a writ of coram nobis it has nonetheless appeared in the person of the United States Attorney who has filed a brief in support of the validity of the judgment of the district court which is under attack by the relator. We, therefore, think it proper to consider the relator’s petition, which as we have seen is not sufficient for the issuance of a writ of habeas corpus, as though it were a motion in the nature of a writ of error coram nobis seeking to set aside the relator’s conviction in the district court. So considered it still appears that the district court did not err in denying relief to the relator. For there is nothing averred in his petition which would amount to a violation of his constitutional rights.
The relator complains that he was denied a preliminary hearing before a United States Commissioner. But when he was indicted in the district court he was a prisoner in a Pennsylvania state jail. He had not previously been arrested on the federal charge. It is settled that an accused may be indicted without prior arrest or commitment by a commissioner. If this is done there is no right to or occasion for a preliminary hearing before a commissioner. The relator’s contention that he was denied a hearing before a commissioner is, therefore, wholly without merit. The relator’s other contentions amount solely to an attack upon the competency of the evidence upon which he was convicted. These contentions were fully considered on the relator’s appeal from his conviction and were decided against him by this court. They involve no questions so fundamental that they may be raised on a motion in the nature of a writ of coram nobis.
The order of the district court will be affirmed.
. Commonwealth ex rel. Biglow v. Ashe, 1944, 348 Pa. 409, 35 A.2d 340; Commonwealth ex rel. Hornberger v. Burke, 1952, 53 Lanc.Law Rev.,Pa., 141.
. Commonwealth ex rel. Atkins v. Pennsylvania Board of Parole, 1952, 63 Dauphin County Rep.,Pa., 239.
. 61 P.S.,Pa., §§ 331.21, 331.21a.
. See Ex parte Hull, 1941, 312 U.S. 546, 550, 61 S.Ct. 640, 85 L.Ed. 1034; and compare People v. McCullough, 1949, 300 N.Y. 107, 89 N.E.2d 335.
. Lopez v. United States, 9 Cir., 1950, 186 F.2d 707; United States v. Bradford, 2 Cir., 1952, 194 F.2d 197, certiorari denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371; United States v. Lavelle, 2 Cir., 1952, 194 F.2d 202; Farnsworth v. United States, 1952, 91 U.S.App.D.C. 121, 198 F.2d 600, certiorari denied 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706; United States v. Kerschman, 7 Cir., 1953, 201 F.2d 682.
. U. S. ex rel. Kassin v. Mulligan, 1935, 295 U.S. 396, 400, 55 S.Ct 781, 79 L. Ed. 1501; Garrison v. Johnston, 9 Cir., 1939, 104 F.2d 128, 130; O’Grady v. Hiatt, D.C.M.D.Pa.1943, 52 F.Supp. 213, affirmed 3 Cir., 1944, 142 F.2d 558; United States v. Liebrich, D.C.M.D.Pa. 1932, 55 F.2d 341; United States v. Gray, D.C.1949, 87 F.Supp. 436.
. Barber v. United States, 4 Cir., 1944, 142 F.2d 805, 807.
. United States v. Mayer, 1914, 235 U. S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129; United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
songer_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
METROPOLITAN DEVICE CORPORATION v. CLEVELAND ELECTRIC ILLUMINATING CO.
Circuit Court of Appeals, Sixth Circuit.
December 6, 1929.
No. 5132.
D. Anthony Usina, of New York City (Richey & Watts, of Cleveland, Ohio, and Benjamin T. Rauber, of New York City, on the brief), for appellant.
John B. Hull, of Cleveland, Ohio (Chas. E. Brock and Hull, Brock & West, all of Cleveland, Ohio, on the brief), for appellee.
Before DENISON, MOORMAN, and HICKS, Circuit Judges.
HICKS, Circuit Judge.
Suit for infringement of claims Nos. 3 and 4 of Torchio Patent No. 1,172,322, granted February 22, 1916, for a protective device for eleetrie cable joints. The defenses were: (1) Lack of invention; (2) anticipation; and (3) noninfringement. The bill was dismissed for lack of invention. The court disregarded a disclaimer filed four days before the trial. We think it should have been permitted. That portion of the disclaimer disapproved is as follows: “ * * * And except as to insulating liquid which is fluid at ordinary working temperatures of such cables and in quantify sufficient to supply at all times the demands by the cable in use, and by the joint.”
The criticism of the District Judge was that the limitation sought affected the quality and quantity of the insulating liquid, and from his viewpoint the specifications said nothing concerning either. We cannot yield thereto. We think the disclaimer may without violence readily stand upon the following descriptive matter in the specification, to wit: “I fill the sleeve and the reservoir with any suitable insulating oil or other liquid which is fluid at low temperature and preferably of a character which will combine with the material used in the body of the cable for permeating or imbedding the insulating wrappings. This liquid I preferably force into the sleeve 8 under pressure sufficient to drive it in the interstices of the cable ends and into the joint wrappings and fillings. When the introduction of the liquid is complete I permit it to All the reservoir 10 which is finally closed. The oil in the reservoir then serves to supply any deficiency in the sleeve caused by absorption and breathing of the cable or the disturbance of the conductors carrying sudden overload currents, so that the joint insulation is not only thoroughly permeated at the outset but continues submerged in a bath of insulating oil.” Again: “It is to be observed that the insulating fluid not only permeates the wrappings and fillings at the joint but also percolates into the insulation of the cable ends exposed in order to make the joint. This is of practical importance, because it often happens that during the making of the joint, the exposure of said ends permits of the permeating liquid used in the original manufacture of the cable to ‘bleed’ or run out and a consequent failure of insulation at these points ensues. This I have found to be the cause of breakdowns which were apparently unaccountable. The new fluid put into the joint sleeve supplies this loss and effectually prevents difficulty.”
The specifications fairly set forth the quality of the insulating compound. It is: “Fluid at low temperature.” Any liquid, fluid at low temperature, is necessarily “fluid at ordinary working temperatures,” and the disclaimer therefore sets up no new claim as to quality. The same is true as to the quantity of the liquid and the purpose of its use, to wit: “Quantity sufficient to supply at all times the demands made by the cable in use and by the joint.” The specifications fairly call for a quantity sufficient to fill the sleeve and the supplying reservoir so that the joint insulation shall not only be continuously submerged in the oil, but that the amount drawn from the sleeve by the absorption and breathing of the cable shall be correspondingly restored to the sleeve from the reservoir.
The record carries no suggestion of any intent to broaden the claims beyond the specification (tit. 35, § 65, U. S. C. [35 US CA § 65]), or any idea of obtaining the benefit of a reissue. We think the effect of the disclaimer is to clear up an awkwardly worded, and therefore a somewhat ambiguous, description in the specification. See Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 436, 22 S. Ct. 698, 46 L. Ed. 968; Simplex Ry. Appliance Co. v. Pressed Steel Car Co. (C. C. A.) 189 F. 70, 72. We also think that the disclaimer was not unreasonably delayed. As stated in Sessions v. Romadka, 145 U. S. 29, 12 S. Ct. 799, 801, 36 L. Ed. 609: “The power to disclaim is a beneficial one, and ought not to be denied except where it is resorted to for a fraudulent and deceptive purpose.” In Excelsior Furnace Co. v. Williamson Heater Co., 269 F. 614, 619 (C. C. A. 6), the disclaimer was! allowed after decision on appeal. See, also, N. O. Nelson Mfg. Co. v. F. E. Meyers & Bro. Co., 29 F.(2d) 968, 969 (C. C. A. 6). The view we take is that the matter of disclaimer was within the discretion of the patentee to be reasonably exercised — “a matter of policy” — [Permutit Co. v. Wadham, 13 F.(2d) 454, 457 (C. C. A. 6)], and we think there was sufficient doubt as to whether claims 3 and 4, as originally written, were anticipated to justify the seeming delay. Walker on Patents (2d Ed.) § 255.
As to invention: The necessity therefor was great. In high voltage cables, i. e., cables carrying in excess of 15,000 volts, the dielectric loss from faulty insulation, with the resultant destruction of the wrappings of the cable and the breaking down of the joints, was serious. Torehio discovered that this loss was due in part to the “bleeding” of the insulating compound from the exposed cable ends during installation. He also discovered that the cable “breathed” or “sueked,” that is, that while in use the heat expanded it and that it correspondingly contracted while cooling; that this bleeding and expansion of the cable forced the insulating compound from the interstices of the pervious insulating wrappings and fillings, permitting dielectric loss and' structural damage. The problem was to restore this lost insulation:. The teaching had been that the insulating compound in the joint should not be soft enough to flow. The thought was that the compound should not be permitted to escape and leave the joint unprotected. Torehio substituted a liquid insulating compound for the compound with a low melting point theretofore in use in the cable sleeve. Torehio’s liquid compound would and did, especially under pressure, flow ¡along the cable length between the conductors and the leaden sheath and refill the empty cells of the pervious insulation. This was new and useful and was a commercial success. It was not a mere refinement of the former method; it was a reversal of it. We think it was somewhat beyond the skill of an expert and amounted to patentable invention. Gear Grinding Mach. Co. v. Studebaker Corp., 270 F. 934, 935 (C. C. A. 6).
Nor was plaintiff’s invention anticipated by the prior art. The cable, the insulating compound, the sleeve with its soldered joint, and possibly the cable joint construction, were all old, but they were not old in combination. In the new combination they produced a new result and therefore were not anticipated. Webster Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Detroit Carrier & Mfg. Co. v. Dodge Bros., 33 F. (2d) 743, 747 (C. C. A. 6); Michigan Carton Co. v. Sutherland Co., 29 F.(2d) 179, 183 (C. C. A. 6); Ferro Concrete Constr. Co. v. Concrete Steel Co., 206 F. 666, 669 (C. C. A. 6); Kellogg Switchboard & Supply Co. v. Dean Elec. Co., 182 F. 991, 998 (C. C. A. 6).
We have examined the prior art references, but review here only those discussed in defendant’s brief:
First. The Brooks-Hunt group — United States patents to Brooks, No. 165,535 and No. 23 0,986, respectively, and the British patent to Hunt, No. 4828, communicated from Brooks. These at least approach a nonanalogous art. They do not deal with the modem high voltage cable. They are concerned only with low voltage telegraph wires separately insulated and drawn through iron pipes. They were abandoned as useless long before the advent of the unitary cable with the leaden sheath.
Second. British patent No. 31,932 to Abel. This does not involve such a cable as does Torehio. It deals with a cable composed of a central conductor and concentric conductors insulated from each other and with the manner of joining the conductors at the cable ends and when so joined then with joining similar cable ends. The insulating fluid in the sleeve does not contact with the joints. They are protected by impervious caoutchouc.
Third. British patent to Ferranti, No. 16,237. This discloses a conductor composed of concentric metal tubes. It in no sense deals with joint construction.
Fourth. British patent to Watson, No. 29,756. The District'Judge had substantial basis for doubting whether Watson was prior to Torehio. But, independent thereof, it is clear that the Watson patent does not anticipate even if earlier. It discloses a cable in which the conductors are helically wound in paper wrapped twine, thus forming continuous ducts or channels for the insulating liquid throughout the cable length. It does not disclose joint construction or joint insulation or teach the method of uniting the joint box or sleeve with the cable.
Infringement. The question of infringement is not difficult. • The striking similarity of the devices as illustrated by the drawings and description of defendant’s joint as defined in plaintiff’s exhibit 7 is conclusive upon the matter of construction. The defense that the viscosity of the insulating compound used, in defendant’s joint prevents it from oozing or flowing into and through the cable is not persuasive, in view of defendant’s admission that this compound, normally of the consistency of vaseline or jelly, did, under stress, escape from the reservoirs to the extent of collapsing them, and that for a time it was necessary to periodically refill the joints. Defendant advances no explanation of what had become of the lost compound. There is none, except that the working temperature of the cable heated it and the combined action of the pressure from the reservoir and the "breathing” or “sucking” of the cable during contraction drew it into the cable length. The word “fluid” is not necessarily to be defined with the extreme meaning permitted by the dictionary. Such words are to be given a reasonable interpretation in view of the association. Clipper Belt Lacer Co. v. E-W Co., 237 F. 602, 605 (C. C. A. 6); Farrington v. Haywood (C. C. A.) 35 F.(2d) 628, decided November 13, 1929.
Finally, upon the above views, we conclude that the Torchio patent, No. 1,172,322, was valid and infringed, and the decree is therefore reversed, with directions to enter a new decree in accordance with this opinion.
“3. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, and an insulating fluid adapted to permeate said pervious body contained in the space between said body and said sleeve.”
“4. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, a receptacle communicating with the interior of said sleeve, and an insulating fluid adapted to permeate said pervious body contained in said receptacle and the space between said body and said sleeve.”
“No. 1,172,32¡2. — Philip Torehio, New Xork, N. X. Protective Device for Electric-Cable Joints. Patent dated February 22, 1916. Disclaimer filed February 11, 1927, by the assignee, Thomas E. Murray.
“Hereby makes disclaimer of the improvement described except for electric cables, which comprise a line conductor, insulating wrappings permeated with insulating compound and a sheath of flexible inelastic metal constituting a unitary product of manufacture and commerce which is portable and capable of being drawn through conduits; and except as to an insulating liquid Which is fluid at ordinary working temperatures of such cables and in quantity sufficient to supply at all times the demands made by the cable in use, and by the joint.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_majvotes
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3
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
FARMERS UNION CENTRAL EXCHANGE et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION and the United States of America, Williams Pipe Line Co., Explorer Pipeline Co., Intervenors.
No. 76-2138.
United States Court of Appeals, District of Columbia Circuit.
Argued April 5, 1978.
Decided June 27, 1978.
Rehearing Denied July 25, 1978.
Certiorari Denied Nov. 27, 1978.
See 99 S.Ct. 596.
John M. Cleary, Washington, D. C., with whom Frederic L. Wood, Washington, D. C., was on the brief, for petitioners.
Ron M. Landsman, Atty., Dept. of Justice, Washington, D. C., with whom John J. Powers, III, Atty., Dept. of Justice, Washington, D. C., was on the brief, for respondent, the United States.
Christine N. Kohl, Atty., I. C. C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel and Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., were on the brief, for I. C. C.
J. Paul Douglas, Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., was on the pleadings, for respondent, Federal Energy Regulatory Commission.
Robert G. Bleakney, Jr., Boston, Mass., with whom David M. Schwartz and Robert L. Calhoun, Washington, D. C., were on the brief, for intervenor, Williams Pipe Line Co.
Donald W. Markham, Washington, D. C., with whom Jonathan B. Hill, Washington, D. C., was on the brief, for intervenor, Explorer Pipeline Co.
Hanford O’Hara, Atty., I. C. C., Washington, D. C., entered an appearance for I. C. C.
Robert B. Nicholson and Andrea Limmer, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States.
Before McGOWAN, LEVENTHAL and WILKEY, Circuit Judges.
Substituted as respondent agency in place of the Interstate Commerce Commission by virtue of Public Law 95-91, § 402(b), 91 Stat. 584 (August 4, 1977) and Executive Order No. 12009, 42 Fed.Reg. 46267 (September 15, 1977).
Opinion for the Court filed by McGOW-AN, Circuit Judge.
McGOWAN, Circuit Judge:
Petitioners, a group of oil shippers, challenge an order of the Interstate Commerce Commission (ICC) sustaining (1) increased rates filed by intervenor Williams Pipe Line Co. (Williams) and (2) joint rates initiated by Williams and intervenor Explorer Pipeline Co. (Explorer), as against claims that the former are unreasonably excessive, see 49 U.S.C. § l(5)(a), and the latter are discriminatory, see id. § 2, and illegally preferential, see id. § 3(1).
This review proceeding is unique in that, while pending before us awaiting briefing and oral argument, jurisdiction over the rates in question was transferred by Congress from the ICC to the Federal Energy Regulatory Commission (FERC), and the latter has been substituted for the ICC as the respondent agency. FERC has advised this court that it takes no position with respect to the merits of the order under attack, and urges us rather to forego adjudication on the merits in favor of a remand of the case to it so that it can formulate, independently to the ICC, the regulatory principles it finds to be suitable for application in this new area of responsibility committed to it. The United States, a statutory respondent, purporting to see deficiencies in the ICC’s decision, supports FERC’s remand request.
The court, now having had the benefit of full briefing and oral argument of the merits by all parties except FERC, has concluded, to the extent and for the reasons hereinafter appearing, to remand the case to FERC for determination by it, under its new authority, of the compatibility of the subject rates with 49 U.S.C. § l(5)(a), and, in light of its findings thereon, for examination of the preference issue under id. § 3(1). As to the existence of discrimination, however, petitioners’ failure properly to raise the issue before the ICC mandates our affirmance of that agency’s decision insofar as it is based on id. § 2.
I
Williams, an independent common carrier, is a relatively new entrant in the oil pipeline transmission industry, having begun doing business in 1966 with the purchase of Great Lakes Pipe Line Co. (Great Lakes). It acquired the physical assets of Great Lakes from eight petroleum producer-owners for $287.6 million — the highest among the competitive bids received. The pipeline system thus acquired serves a large portion of the Midwest, with connections in such producing and refining cities as Tulsa, Fargo, Lincoln, and Topeka, and in such consuming cities as East St. Louis, Chicago, and Minneapolis. By interconnecting with intervenor Explorer Pipeline Co. (Explorer) at Tulsa, Williams also may connect refineries located along the Gulf Coast of Texas and Louisiana with consumers in the Midwest.
Petitioners are a group of oil producers and refiners located primarily in the Great Plains area who historically have used the Great Lakes-Williams pipeline system to transport their petroleum products to the Midwest. In late 1971 and early 1972, Williams informed them that it was raising its rates by approximately 15 percent (or 3 cents a barrel) across the board. At the same time as it generally increased its rates, Williams, together with Explorer, initiated joint rates for through service from the Gulf Coast to the Midwest. These joint rates are uniformly 9.5 cents a barrel lower than the combination of Williams’ and Explorer’s local rates.
Shortly after the appropriate tariffs were filed with the ICC, petitioners made them the subject of complaints under the provisions of the Interstate Commerce Act which, inter alia, regulates oil pipeline rates, 49 U.S.C. § l(l)(b). Petitioners’ protests led the ICC to initiate investigations into the lawfulness of both sets of rates, although the disputed rates have remained in effect without suspension since their inception, pending the outcome of these proceedings. Although many claims were originally raised by the parties, the course of administrative consideration has left three major issues of import on appeal.
First, petitioners argue that Williams’ rate increases for the transportation of oil in the area formerly served by Great Lakes are unreasonable under id. § l(5)(a), because they are derived from an inflated valuation rate base and allow an excessive rate of return on that rate base (10%); and further because certain operating expenses and tax allowances used by Williams in computing its rates were unreasonable. Second, petitioners claim that by charging them local rates to transport their oil from the Great Plains to the Midwest while charging the Gulf Coast shippers less (per mile) — under the joint Williams-Explorer rates — to transport their oil to the same destinations, intervenors are giving the Gulf Coast shippers an unjust preference. Id. § 3(1). Finally, petitioners argue that by unevenly dividing the joint rate revenues with Explorer, Williams is giving the eight Gulf Coast shippers that jointly own Explorer a discriminatory rebate. Id. § 2. Petitioners asked the ICC to order Williams to lower — and Williams and Explorer to readjust — the rates in question, and to pay reparations plus interest, costs, and attorneys’ fees.
Petitioners do not contest the propriety of the procedures used by the ICC in adjudicating their complaints. The administrative law judge announced his decision favorable to Williams on June 6, 1974, after holding several days of formal hearings in 1972 and 1973 and after considering copious written submissions. Petroleum Products, Williams Bros. Pipe Line Co. (unpublished initial decision) [hereinafter referred to as Initial Decision and cited to Joint Appendix (JA)]. Exceptions were filed by the petitioners on both sets of issues, thereby entitling them to consideration by a three-commissioner division of the ICC. On the basis of the record as well as the exceptions and replies filed by the parties, the division, one commissioner dissenting, accepted the findings of the administrative law judge. Petroleum Products, Williams Bros. Pipe Line Co., 355 I.C.C. 102, 126 (1975) [hereinafter referred to as Williams I],
Petitioners next asked the entire Commission to reconsider the case, arguing that it involved “matters of general transportation importance” — the standard that must be met to secure reconsideration by the full Commission. Although asserting that the issues did not rise to the requisite level of importance, the full Commission felt that reconsideration of the record, as supplemented by written submissions by the parties, was merited “because of the relative dearth of precedent concerning petroleum pipeline rates, and in view of the substantial sums of money at issue....” Petroleum Products, Williams Bros. Pipe Line Co., 355 I.C.C. 479, 481 (1976) [hereinafter referred to as Williams II]. In an opinion filed December 3, 1976, the full Commission, one commissioner dissenting and two not participating, affirmed the findings of the administrative law judge and the division, id., and petitioners sought direct review by this court.
II
A.
In 1906, the Interstate Commerce Act of Feb. 4, 1887, c. 104, 24 Stat. 379, was amended by the Hepburn Act to include companies engaged in the “transportation of oil. by pipe line” among the common carriers subject to regulation thereunder. Act of June 29, 1906, c. 3591, § 1, 34 Stat. 584. Yet, while pipeline companies joined railroads, and were later joined by motor carriers, as regulatory subjects of the Interstate Commerce Act, those companies never faced the degree of regulation to which the vehicular common carriers were subject. Thus, while under the same duty as railroads and/or motor carriers to furnish or allow continuous transportation, 49 U.S.C. §§ 1(1), 1(4), 7, to establish, file, and publish reasonable, nondiscriminatory rates subject to ICC approval, id. §§ 1(5), 3(1), 4(1), 6, 15(1), to avoid certain pooling relationships, id. § 5(1), to file certain financial reports, and to use certain accounting procedures subject to ICC specifications, id. §§ 20(1), (2), (4), (5), pipeline companies have none of the special obligations imposed upon the vehicular regulatees under the Act concerning acquisitions, mergers, corporate affiliates, uniform cost and revenue accounting, issuance of securities, and corporate or financial reorganizations. Id. §§ 5(2)-(13), 20(3), 20a, 20b, 20c. For this reason, we may infer a congressional intent to allow a freer play of competitive forces among oil pipeline companies than in other common carrier industries and, as such, we should be especially loath uncritically to import public utilities notions into this area without taking note of the degree of regulation and of the nature of the regulated business. See J. Bonbright, Principles of Public Utility Rates 4-5 (1961).
Consequently, beyond the general outlines of the Interstate Commerce Act, and the specific provisions therein dealing with ratemaking, see notes 2, 6 & 7 supra, we have little to rely on in constructing a theory of oil pipeline ratemaking. Although the Act, as amended by the Valuation Act, 37 Stat. 701 (1913), does provide the ICC with the wherewithal to gather the information necessary to determine the “valuation” of railroads and oil pipeline companies, 49 U.S.C. § 19a, see note 3 supra, we see nothing in the Valuation Act that requires the agency to translate its valuation authority into a mandatory approach to ratemaking or that makes a valuation approach inevitably reasonable.
. ICC precedent provides little additional guidance as to appropriate ratemaking methodology for the oil pipeline industry. In the four published opinions in which it has heretofore discussed oil pipeline rate-making, the ICC adopted the valuation rate base without discussion, or even explicit recognition, of alternative bases. Reduced Pipe Line Rates and Gathering Charges, 243 I.C.C. 115 (1940) [hereinafter Reduced Rates I], reopened, 272 I.C.C. 375 (1948) [hereinafter Reduced Rates II]; Petroleum Rail Shippers’ Ass’n v. Alton & So. R. R., 243 I.C.C. 589 (1941); Minnelusa Oil Corp. v. Continental Pipe Line Co., 258 I.C.C. 41 (1944). Nonetheless, the ICC’s use in the 1940’s of the “fair value” method is not hard to explain — and in that explanation lies an important reason to reexamine the continued viability of the decisions announced during that era.
The ICC’s primary experience with rate-making prior to the 1940’s involved railroads, as to which a landmark Supreme Court case had appeared to mandate the fair value method of ratemaking. Smyth v. Ames, 169 U.S. 466, 546-47,18 S.Ct. 418, 42 L.Ed. 819 (1898); see note 8 supra. See also St. Louis & O’Fallon Ry. Co. v. United States, 279 U.S. 461, 49 S.Ct. 384, 73 L.Ed. 798 (1929). Subsequently, the Supreme Court’s endorsement on this method was extended to other areas. E. g., Southwestern Bell Tel. Co. v. Missouri Pub. Serv. Comm’n, 262 U.S. 276, 43 S.Ct. 544, 67 L.Ed. 981 (1923). Although under the impetus of Justice Brandéis’ concurring opinion in the last-cited case, id. at 289-312, 43 S.Ct. 544, the Supreme Court during the 1930’s began to countenance experimentation with other ratemaking approaches, e. g., Railroad Comm’n of California v. Pacific Gas Co., 302 U.S. 388, 399, 58 S.Ct. 334, 82 L.Ed. 319 (1938), by this time the ICC had established a firm practice of using the valuation method. E. g., Petroleum Rail Shippers, supra. Thus, the ICC practice, reflected in the four pipeline rate cases cited earlier, of using a valuation rate base had become ensconced in that agency’s decision by 1944, when the Supreme Court decisively reversed its field and became openly critical of talismanic reliance on “fair value.” FPC v. Hope Natural Gas Co., 320 U.S. 591, 601, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Moreover, between the time that Hope’s implications became clear and the ICC’s consideration of this case, that agency did not have occasion to discuss the principles of oil pipeline ratemaking. As such, we are left to draw our conclusions about this case based on a series of ICC opinions that arose in a ratemaking environment that has since been dramatically altered by the Supreme Court.
In addition to the significant changes in the relevant legal environment since the ICC’s 1940’s decisions, important economic transformations have occurred. First, that agency’s only actual comparison in the 1940’s of the “valuation” of pipeline assets and the actual investment therein “as carried on [the pipeline companies’] books” (i. e., apparently, original cost) shows that in a majority of cases “the valuations] found by the Commission were materially lower than the carriers’ investment....” Reduced Rates I, supra, 243 I.C.C.. at 138 (emphasis added). This 1940’s situation is in marked contrast to that experienced in today’s inflationary economy wherein valuation typically exceeds investment by a substantial amount.
Second, based on rather detailed analyses of economic conditions facing the industry in the 1940’s, the Commission’s 1940’s decisions determined that oil pipeline rates should allow carriers to recover operating expenses plus no more than either an 8 percent return on value for transmission of crude oil or crude oil plus refined petroleum products, Reduced Rates II, supra, 272 I. C.C. at 376, 384 (rates upheld actually producing 7.6 percent rate of return); Min-nelusa, supra, 258 I.C.C. at 54; Reduced Rates I, supra, 243 I.C.C. at 142, or a 10 percent return on value for transmission of gasoline. Petroleum Rail Shippers, supra, 243 I.C.C. at 663. The ICC pointed out that by 1940’s standards these rates of returns were
somewhat larger... than. would be reasonable to expect would be applied in industries of a more stable character, where the volume of traffic is more accurately predictable.
Minnelusa, supra, 258 I.C.C. at 54, accord, Petroleum Rail Shippers, supra, 243 I.C.C. at 661-62; Reduced Rates I, supra, 243 I.C.C. at 142.
In the Commission’s estimation, these “somewhat larger” rates of return were justified on the one hand by the need to attract capital to the oil pipeline industry despite the higher-than-normal risks faced by carriers of petroleum products, and especially of gasoline, and on the other hand, by the need to keep rates low enough to forestall the dangers of oligopolistic control of the oil pipeline industry by the big producers. Other factors considered by the ICC were the possibility of price fixing and a history of “enormous” profits, the cost effects of greatly increased taxation during the 1930’s, the increased demand for oil products, the improved technology of pipeline transmission precipitated by World War II, and the prediction that economic forces would cause rates to drop regardless of ICC action. Notably, aside from brief discussions of increased labor costs, the ICC’s decisions make clear that operating costs other than taxes were relatively free from inflationary (or deflationary) influences from 1937 to 1947.
To the extent that economic conditions facing the oil pipeline industry have changed since 1948 — and, in light of the modern onslaught of inflation, petroleum shortages, and reliance on imports, as well as the maturing of the industry itself, we may readily assume they have — the conclusions of the ICC in its earlier cases as to appropriate rates of return are equally as much artifacts of a bygone era as is its reliance then on a valuation rate base.
Finally, the ICC’s 1940’s cases recede even further into the background when it is realized that the ICC has been replaced by FERC as the government agency charged with watching over oil pipeline rates. The transfer of authority to FERC occurred during the pendency of this petition pursuant to the Department of Energy Organization Act (the DOE Act), Pub.L.No.95 — 91, § 402(b), 91 Stat. 584 (1977), effectuated, Executive Order No. 12009, 42 Fed.Reg. 46267 (Sept. 15, 1977), implemented, 42 Fed. Reg. 55534 (Oct. 17, 1977). Although, the DOE Act provides that litigation commenced before the transfer shall continue, with “appeals taken, and judgments rendered... as if this Act had not been enacted,” as regards the substantive administrative law applicable in this case, the transfer further unsettles the foundations on which we must adjudicate this petition. Thus, it removes the stabilizing influence of the courts’ usual desire to afford an administrative agency some latitude over time to develop its own approach to the regulatory tasks delegated to it by Congress. See Permian Basin Area Rate Cases, 390 U.S. 747, 790, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). Here, the transfer of authority has deprived us of even the possibility of endorsing ICC’s attempt to develop such an approach, and, in fact, has created the likelihood that anything we say will inhibit FERC from freely developing its approach in the future. That FERC has refused to adopt the IGC’s position in this case, and — joined by the Antitrust Division of the Department of Justice — has asked that the case be remanded to it, illustrates this problem.
This background should explain our reluctance to embark on the first federal judicial foray into the area of oil pipeline ratemak-ing. In this endeavor, beyond the statute’s admonition that rates be “just and reasonable,” we must rely almost entirely on the ICC’s opinions in this case. Moreover, as the next section demonstrates, those opinions are characterized by analytical difficulties that undermine their usefulness in resolving the overall reasonableness of the assailed rates.
B.
The parties have joined issue over the ICC’s treatment of five criteria they deem crucial to the reasonableness of Williams’ rate increases: rate base, rate of return, depreciation costs, tax treatment, and certain items of operating expenses. See notes 2-5 supra and accompanying text. In reaching our conclusion that the ICC’s decisions present problems that impel us to remand the reasonableness issue to its successor, FERC, we find it necessary to dwell on only the first three of these criteria.
Despite petitioners’ insistence on original cost less depreciation of all of Williams’ assets used in transmitting oil (i. e., $101.1 million), and Williams’ somewhat tentative advocacy of purchase price ($287.6 million) as the appropriate rate base, the ICC used a “valuation” base. Williams I, supra, 351 I.C.C. at 108. This is calculated to be $167.6 million, id., based primarily on two factors listed in the Valuation Act, 49 U.S.C. § 19a — original cost, and the cost of reproduction new. All three decisions based their analyses of the rates on the percent return they allowed on valuation, so that the importance to all three of the valuation rate base cannot be gainsaid.
Most prominent among the three opinions’ explanations of the use of the “fair value” method was that as the “traditional,” “customar[y],” and “well-established practice” of the ICC in oil pipeline cases, valuation ratemaking has “withstood the test of time.” Initial Decision, supra, JA at 1608; see id. at 1605; Williams I, supra, 351 I.C.C. 105, 107, 113, 114; Williams II, supra, 355 I.C.C. at 485. In support of this “tradition,” however, the opinions (when they cite any support at all) list only (1) the 1940’s oil pipeline cases discussed above, (2) the Commission’s history of computing valuations under the Valuation Act, and (3) the fact that the Commission’s mandatory accounting procedures for pipelines, see Uniform System of Accounts for Pipeline Companies, 337 I.C.C. 518, 523 (1970), are geared to the use of a valuation rate base. See Initial Decision, supra, JA at 1605, 1608; Williams I, supra, 351 I.C.C. at 107, 113.
As our previous discussion indicates, however, these three indicia of a tradition of fair value ratemaking are weak and outmoded. Both the oil pipeline precedents and the history of valuation computations under the Valuation Act are in large measure products of a bygone era of ratemaking ushered in by the Supreme Court in Smyth v. Ames in 1898 and ushered out by that same body in Hope Natural Gas in 1944. See notes 8-10 supra and accompanying text. To the extent that the ICC’s accounting rules derive their valuation focus from the 1940’s precedents and the Valuation Act, see Uniform System of Accounts, supra, 337 I.C.C. at 523, they, too, are subject to this same criticism.
Moreover, each of the three indicia suffers from infirmities of its own. First, even if we assume under Hope that valuation ratemaking might be capable of producing a viable “end result,” there is no assurance in the Commission’s 1940’s precedents — born as they were of peculiar post-depression, World War II, and post-War economic conditions — that such a result will occur in the 1970’s. Second, the Commission itself has seen fit to abandon its so-called tradition of valuation computation and ratemaking based thereon in the railroad area, which is equally subject to the Valuation Act. See note 9 supra. Finally, the ICC decision setting forth pipeline accounting rules states explicitly that it is
concerned... with accounting rules which are not necessarily dispositive of the manner in which expenditures will be treated in a proceeding to determine the reasonable level of particular rates.
Uniform System of Accounts, supra, 337 I.C.C. at 523. This last-quoted caveat should hardly have to be express. After all, it is rates, not bookkeeping, that the statute requires to be reasonable, and there is no assurance of record, at least, that reasonable accounting measures translate automatically into reasonable rates.
In sum, we are not persuaded by the Commission’s conclusion that “consistency and fairness” dictate resurrection of the “fair value” method last used thirty years ago. Williams II, supra, 355 I.C.C. at 484. To the extent that the method was wrongly grounded in the law at that time, it is no better off now. To the extent that it may have been rightly grounded in the economics of that day, the ICC has provided us with no reason to believe that three decades have not changed the situation. And, to the extent that Williams, having nothing else to depend on but the earlier cases, justifiably relied on them in adopting its rates, see id., the solution is not to perpetrate that reliance but to end it prospectively, without allowing reparations based on its occurrence in the past.
Aside from the above arguments, the three ICC opinions mentioned but one other justification for the “fair value” method: the need for a ratemaking theory responsive to inflation. We have no quarrel with the ICC’s aspirations on this score. The Supreme Court has indicated that rates must be high enough to allow the regulatee to attract capital, and investors will be unlikely to invest if their earnings will not keep abreast of, and have some chance of exceeding, the rate of inflation. See FPC v. Hope Natural Gas Co., supra, 320 U.S. at 603, 64 S.Ct. 281. Nonetheless, the ICC’s failure to assess the actual effects of inflation on Williams’ ability to attract capital, and its apparent “double counting” of concerns about inflation, see pp.---of 189 U.S.App.D.C., pp. 420-421 of 584 F.2d, infra, cast a shadow over its conclusion that a valuation rate base properly reflects inflation.
We find the ICC’s discussion of rate of return equally problematical. Here the total emphasis is on the 1940’s precedents: because 8-10 percent was a viable return for carriers of petroleum products from 1940 to 1948, it is said, so must it be today. Even more so than the choice of a reasonable rate base methodology, a “reasonable rate of return” determination must be the product of the economic moment. As noted earlier, the ICC’s choice in the 1940’s of the 8 and 10 percent figures turned on such “hazards” as the infancy of the gasoline industry, the likelihood of disruptive discoveries of new oil fields and the unidimen-sional nature of the product market served by pipeline carriers, as well as on such factors as unduly high profits in the past, high taxes, and a rapidly expanding economy relatively free of inflation. See notes 12-20 supra and accompanying text. Absent some accompanying assessment of how this complex of relevant factors has changed in thirty years, the ICC’s reliance on its antiquated precedents in determining a reasonable rate of return differs little from a rule that would require modern automobile accident damages to conform to those awarded by juries in 1940.
Finally, we come to the depreciation charges allowed Williams as a cost that it may recoup through its rates. Just prior to Williams’ purchase of Great Lakes, it secured a Commission opinion that the Commission’s accounting instructions for pipeline carrier property accounts, 49 C.F.R. § 1204-3-1 et seq., applied to the purchase. JA at 202, 205. Under those instructions, Williams recorded its full purchase price of $287.6 million in its property account. Although the ICC informed Williams that this opinion did “not prejudice the Commission’s continuing rights and responsibilities with regard to rate determinations that may come before it,” JA at 205, Williams used this same method of valuing its wasting assets when calculating depreciation expenses for ratemaking purposes. Allowing this revaluation, for ratemaking as well as accounting purposes, of the Great Lakes-Williams property not only greatly increased depreciation charges from that point forward, but it also withdrew any recognition that rate payers had already been charged almost $100 million for depreciation by Great Lakes.
In upholding this operating expense calculation, the Commission did little more than (1) note the calculation’s congruence with its reporting and accounting rules, especially as discussed in Uniform System of Accounts, supra, and (2) point out the inability of petitioner’s recommended original cost approach to keep pace with inflated property values. Williams II, supra, 355 I.C.C. at 489. Once again, we cannot countenance the ICC’s current unexplained insistence on irrevocably hitching its ratemaking theory to its accounting rules. This linkage is especially troublesome because, when it wrote those rules, the Commission expressly denied them any such controlling impact on rates. See p. - of 189 U.S.App.D.C., p. 418 of 584 F.2d supra. It supported that express denial of linkage with a reminder that the ICC traditionally did not tie rates to “investment as shown on the carriers’ books, but rather [to]. valuations [computed] pursuant to the [Valuation Act].” Uniform System of Accounts, supra, 337 I.C.C. at 523. Hence, we are left with the additional unexplained anomaly of a valuation rate base coexisting with a purchase price depreciation base— hardly an “accepted... practice [].”
The final irrationality is that the depreciation basis used, unlike original cost, valuation, and other possible approaches, allows depreciation charges, and thus the rates, to change dramatically from one day to the next — so long as a purchase of the assets intercedes — even though the cost of the carriers’ public service has not actually changed. It is true that occasional acquisitions of carriers at prices deemed currently reasonable might serve as a mechanism for accurately reflecting inflation’s impact on the value of such enterprises. We have our doubts, however, about either the desirability of encouraging acquisitions solely for this purpose, or of depending on their unpredictable occurrence to serve this function. In any case, the ICC in this case purports to have recognized inflation in figuring rate base (and perhaps even rate of return, see Williams II, supra, 355 I.C.C. at 487), so that a further inflation adjustment by way of increased depreciation charges would seem precipitous and itself unduly inflationary. See p. - of 189 U.S.App.D.C., p. 419 of 584 F.2d, supra.
The foregoing discussion illustrates our unease with the ICC’s findings regarding rate base, rate of return, and depreciation costs. Those three criteria, in turn, are important enough that doubts as to them must infect our view of the Commission’s ultimate finding of reasonableness. Nonetheless, were this a normal case, the limited scope of review under which we operate in these proceedings might require us to look beyond ICC’s rationale to the record itself, before we would be prepared to disapprove the Commission’s ultimate holding. See, e. g., Permian Basin, supra, 390 U.S. at 766-67, 88 S.Ct. 1344 (rate must be upheld if total effect is reasonable); FPC v. Hope Natural Gas Co., supra, 320 U.S. at 603, 64 S.Ct. 281 (rate must be upheld, even if subject to theoretical “infirmities,” if “end result” is reasonable); The Second National Natural Gas Rate Cases, No. 76-2000, et al., slip op. at 18 (D.C.Cir. June 16, 1977) (“basic. requirement [is] that there be support in the public record for what is done.”).
But this is not a normal ratemaking case — in large measure because we are at something of a loss to know what to look for should we resort to the public record. The lack of viable precedents in this area and thus of some semblance of established ratemaking theory undercuts any confidence we have that we can make a “reasonableness” determination in the absence of some significant assistance from the agency formerly charged with making that determination in the first instance. Moreover, the record appears to be incomplete in certain significant respects. See note 27 supra. What clinches our decision to remand on the reasonableness issue, however, is the fact that the agency now charged with that responsibility, FERC, has requested a remand so that it may begin its regulatory duties in this area with a clean slate. While “infirmities” in an agency’s methodology may not prevent us from affirming its otherwise supportable “reasonable rate” determination, see FPC v. Hope Natural Gas Co., supra, 320 U.S. at 603, 64 S.Ct. 281, such “legal blemishes” may justify us in honoring that agency’s (or its successor’s) request that we remand its decision for reconsideration. Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 463 F.2d 268, 290 (1971); see note 22 supra.
Under the circumstances presented herein, it seems logical both to avail ourselves of some additional expertise before we plunge into this new and difficult area, and to allow the relevant administrative agency to attempt for itself to build a viable modern precedent for use in future cases that not only reaches the right result, but does so by way of ratemaking criteria free of the problems that appear to exist in the ICC’s approach. See note 24 supra. Cf. Permian Basin, supra, 390 U.S. at 790, 88 S.Ct. at 1372 (“breadth and complexity of the [agency’s ratemaking] responsibilities demand that it be given every reasonable opportunity to formulate methods of regulation appropriate for the solution of its intensely practical difficulties.”)
We realize that this disposition is at the expense of important finality concerns, embodied herein by intervenor Williams Pipeline Co. which has already faced six years of litigation and continues to face the possibility of reparations back to 1972 should its increased rates ultimately be found unreasonable. In subordinating those concerns to the public interest in an orderly ratemaking environment for oil pipeline transmissions, we rely on assurances from counsel for FERC that the agency will move this case through its ratemaking procedures with dispatch. Moreover, because Williams is hereby being exposed to the possibility of future operations under an unreasonable rate, not because of its own actions freely taken in the past, but because of FERC’s quasi-legislative action taken — with our sanction— with an eye to the future activities of all oil pipeline carriers, we are comforted by the apparent applicability of the rule that reparations are generally not available when the subject rates were in force as a result of quasi-legislative actions of a regulatory agency.
For all of the foregoing reasons, we remand the case to FERC for determination of the reasonableness of Williams’ rates pursuant to 49 U.S.C. § l(5)(a). As a result of the necessity of remanding this issue, we are also constrained not to decide the preference/prejudice issue under 49 U.S.C. § 3(1). See note 6 supra and accompanying text. This latter issue involves, inter alia, questions of (1) whether a disparity exists between Williams’ local rates and the through rates it has jointly initiated with Explorer, (2) if so, whether petitioners are competitively damaged thereby, and (3) if so, whether cost differentials or other “transportation conditions,” justify the disparity. See State of New York v. United States, 568 F.2d 887 (2d Cir. 1977); Chicago & E. Ill. R. R. v. United States, 384 F.Supp. 298, 300-01 (N.D.Ill.1974) (three-judge court), aff’d mem., 421 U.S. 956, 95 S.Ct. 194
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_opinstat
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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 whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
The NARDA MICROWAVE CORPORATION, Plaintiff-Appellant-Cross-Appellee, v. GENERAL MICROWAVE CORPORATION, Defendant-Appellee-Cross-Appellant.
Nos. 663, 709, Dockets 81-7222, 81-7262.
United States Court of Appeals, Second Circuit.
Argued Jan. 13, 1982.
Decided April 12, 1982.
Rehearing Denied May 14,1982.
Frank W. Ford, Jr., New York City (Robert Neuner, James J. Maune, Brumbaugh, Graves, Donohue & Raymond, New York City, Eisenman, Allsopp & Strack, Wood-bury, N. Y., of counsel), for plaintiff-appellant-cross-appellee, The Narda Microwave Corp. .
Paul H. Blaustein, New York City (Benita J. Rohm, Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, Morton C. Jacobs, Millman & Jacobs, Philadelphia, Pa., of counsel), for defendant-appellee-cross-appellant, General Microwave Corp.
Before OAKES, NEWMAN and WINTER, Circuit Judges.
OAKES, Circuit Judge:
This hotly contested — perhaps overly contested — litigation involves patents and devices in the field of microwave radiation detection. This field became of general importance to consumers only after the microwave oven became available in the late 1960s. Even before then, however, the detection of microwave radiation was important to the military and to the safety of its personnel; indeed one of the patents in issue arose out of an Air Force contract.
Three of the four patents in issue are held by The Narda Microwave Corporation (Narda), which commenced this action for their infringement against General Microwave Corporation (General) in the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Narda’s Patent No. 3,641,439 (the ’439 patent) for a “Near-Field Radiation Monitor” (that is, a microwave-oven monitor) was held valid but not infringed by General’s devices. The court found that Narda’s second patent, No. 3,794,914 (the ’914 patent), for a radiation detector employing thermocouples with resistive elements, was invalid because anticipated by the invention embodied in General’s Patent No. 3,931,573 (the ’573 patent), even though the filing and issue dates of the ’573 patent were later than those of the ’914 patent. General’s ’573 patent was in turn held valid and infringed by Narda’s monitoring devices. Both the Narda ’914 and the General ’573, as used in the companies’ respective monitoring devices, measure microwave radiation over a broad spectrum of microwave activity. The court held the final patent involved in this appeal, Narda’s Design Patent No. 211,588 (the design patent), which pertained to the design of Narda’s probe, invalid under 35 U.S.C. § 102(b), though novel, because it had been on sale for more than one year prior to the patent’s filing date.
We affirm regarding the validity but noninfringement of Narda’s ’439 patent and the invalidity of Narda’s ’914 patent. With respect to the district court’s finding that General’s ’573 patent was infringed, we reverse on the basis of the doctrine of “file wrapper estoppel.” We affirm the district court’s finding of the invalidity of the Narda design patent, though on a different ground: lack of novelty.
BACKGROUND
The frequency of radio (i.e., electromagnetic) waves is measured in cycles per second, the preferred term for which is Hertz (Hz). The term “microwave radiation” is generally used to refer to radio waves of certain high frequencies. A megacycle or megahertz (MHz) is a unit of frequency equal to one million cycles per second. A gigacycle or gigahertz (GHz) is equal to one thousand megacycles.
Microwaves are given off not only by cooking ovens but also by industrial devices for drying materials, by radar and other communications devices used by the military, and by various other broadcasting devices. The radio frequency (rf) of microwaves varies enormously so that there is a broad band of microwave activity. The district court found as a fact that “[e]xposure to excessive amounts of microwave radiation can cause severe damage to a human, including burning of the eyes and body.”
Before 1968 some devices were available to monitor microwave radiation at points in the “far field” (that is, distant from the source of radiation). But those devices could not accurately measure microwave radiation in the “near field.” The National Bureau of Standards (NBS) had worked unsuccessfully in the area of near-field radiation detection for five years prior to 1968, at which time the advent of microwave ovens greatly increased the need for a near-field radiation monitoring device. Manufacturers required a microwave-oven monitor in order to protect their potential consumers against excessive radiation and to protect themselves against potential products-liability actions. In October 1968 Congress enacted a law to establish standards governing the emission of hazardous radiation from electronic equipment.
The growing need in the field also led the National Center for Radiological Health to convene a meeting of persons skilled in the art. At that meeting on July 31, 1968, Edward Aslan, an employee of Narda and the inventor of Narda’s patents, described a far-field probing device that Narda had acquired from the Sperry Corp. As indicated by the minutes of the meeting, which were in evidence below, a skilled employee of NBS also spoke. He advised his audience of the compelling need for a probe that would be “lightly” or loosely coupled to the field, would not perturb the near field, and could be “metered” or measured through conventional signal-generating means, such as thin-film thermocouples, which would convert radio frequency waves to heat.
I. Narda’s ’439 Patent
Following the July 31 meeting Aslan set to work to solve the problem posed by the NBS. In approximately one month he developed the prototype of the Narda Model 8100 portable microwave radiation detector, to which the ’439 patent is specifically directed. The radiation detector consisted of a probe to absorb rf waves, connected to a meter. The central feature of the Model 8100 probe was its sensor assembly, which is described in the district court’s finding set forth in the margin.
Claim One of the ’439 patent, the broader of its first two claims, was as follows:
A radiation detector comprising antenna means operative in response to an electric field to produce an electric current, including thermally and electrically conductive films forming a dipole; and a thin film thermocouple connected as a load to said antenna means, the hot junction of said thermocouple being formed by overlapping end portions of thin resistive strips of dissimilar metal films having a thickness that is small relative to the skin depth of the wave energy of said electric field, and the cold junctions of said thermocouple being formed by overlapping the other end portions of said thin resistive strips with said thermally and electrically conductive films; said thermocouple and said antenna means being substantially disposed within a plane.
The Model 8100 radiation detector made under the ’439 patent was new in the art. It had a high range of accuracy and a high sensitivity to weak electromagnetic fields. Its sensor was attuned to the 2,450 MHz frequency at which most microwave ovens operated, but could be converted to operation at the 915 MHz frequency of the General Electric microwave oven by the attachment of antenna extender strips to the base of the conical tip.
The Narda 8100 won an industrial research award as one of the one hundred outstanding new products introduced in 1969 and met with immediate commercial success. As the district court found, the device “was an important step forward in the measurement of microwave radiation, and was the first instrument that was satisfactory for accurately measuring rf. energy emitted from microwave ovens.” The court held that the ’439 patent, for which Narda applied on August 8, 1969, and which was issued on February 8, 1972, was valid as to both Claim One and the narrower Claim Two.
II. Narda’s ’914 Patent
On November 19, 1971, before the ’439 patent was issued, Narda filed a continuation-in-part of the original Aslan application. The continuation-in-part application, which issued as Patent ’914 on February 26, 1974, disclosed ’439 and further embodiments of it. In one of those embodiments, the sensor assembly was formed entirely of a single thermocouple made up of resistive films and without a separate antenna. That the films were resistive distinguished them from the conductive films to which the ’439 claim referred, although the resistive films in the ’914 claim were also partly conductive. In another embodiment, overlapping resistive films formed into thermocouples that simultaneously performed the receptor function and the transducer or signal-measuring function. The trial court found that the ’439 patent contemplated separate elements for the dipole antenna and the thermocouple while the ’914 patent consisted of a thermocouple or a series of thermocouples that performed not only the signal-measuring function of the ’439 thermocouple but also the receptor function of the ’439 dipole antenna. Thus the patents were distinct and the ’914 was not entitled to the earlier filing date of the ’439.
III. General’s RAHAM Models 1 and 3
In late 1974 General introduced its RA-HAM Model 1 detector, which used the Model 81 probe based on General’s ’573 patent, discussed infra. The RAHAM Model 1 was similar in appearance to the Narda 8100 in that it used a foam spacer tip and a cable extending from the base of the probe to a meter. However, its sensor assembly included upper and lower dielectric substrates sandwiched between thermally conductive ceramic discs, on which were formed thin-film resistive strips of connected thermocouples arranged in zigzag arrays having perpendicular orientation. The overlapping resistive strips of dissimilar materials formed each thermocouple, with alternating points of contact forming hot junctions and cold junctions. Projections on the thermally conductive ceramic discs conducted heat away from the cold junctions. The thermocouples of the RAHAM Model 1 directly absorbed radiation without perturbing the field, and converted it to heat which in turn generated the current to be conducted through the resistive leads to the meter or measuring device. As in the Narda ’914 patent, the RAHAM Model 1— and the similar Model 3 introduced in 1976 —had no separate dipole antenna connected to a thermocouple as a load but rather used serially connected thermocouples to perform both the receptor and the signal-generating functions. The district court found that the RAHAM radiation detectors did not infringe the Narda ’439 patent, which described a conventional lossless dipole antenna using a thermocouple as a load.
IV. General’s ’573 Patent
The General ’573 patent, like the RA-HAM detectors and Narda’s ’914 patent, operated on a broad band by using a thermocouple array that performed both antenna and signal-generating functions. General applied for the ’573 patent after Narda applied for the ’914, and referred to the ’914 as prior art. The ’573 was actually conceived in May 1970, however, when General drew tentative plans and spent approximately $10,000 in development costs to prepare a submission to the Air Force.
On May 21, 1971, the Rome Air Development Center (RADC) awarded General a contract to produce a monitor with a frequency range of 20 KHz to 12.4 GHz. Narda had previously become aware of the proposed contract and expressed to the Air Force its view that such a monitor could not be built. Air Force personnel did not disclose the configuration or construction of the monitor that General proposed to develop, but General’s technical proposal disclosed the concept of a broad-band radiation hazards monitor employing linked thermocouples to form resistive strips, essentially as described later in the ’573 patent. The contract granted patent rights to the government and required General to notify the Air Force of any inventions conceived or reduced to practice under the contract and of the filing of any patent applications thereon.
In mid-1972 radiation monitors constructed by General were sent to the RADC and then to the NBS for final acceptance tests, which revealed that the monitors failed to meet the contract requirements below 600 MHz. General’s efforts continued over the next eighteen months. During that time General did not disclose its application for the ’573 patent in any of the research and development reports it filed with the government. On the contrary, General represented in a letter that “there were no inventions resulting from work on the referenced contract which reasonably appear to be patentable.” When questioned by the government, however, General finally disclosed its patent application and the government issued a royalty-free confirmatory license.
The Patent Office examiner responsible for prosecution of the ’573 patent rejected Claims 1 to 4 and 14 to 42, citing the Aslan ’914 patent. General then filed an amendment on October 2, 1974, in which it argued that the claims in its application were distinguishable over the Aslan patent. On May 5, 1975, General canceled the rejected Claim 1 and provoked an interference with the Aslan ’914 patent by filing a continuation-patent application that asserted four claims copied from the ’914. Interference was declared on May 18, 1976. Moving to dissolve the interference, Narda argued that two articles by Aslan describing the Narda Model 8100, and the filing for Narda’s ’439 patent, made the counts in interference unpatentable to General’s inventor Hopfer under 35 U.S.C. §§ 102 and 103. The Board of Patent Interference granted Narda’s motions and dissolved the interference without determining which party had the prior invention.
The district court found that Narda’s ’914 patent was invalid as anticipated by Hop-fer’s prior invention that became the basis for the valid ’573 patent. The court also found that Narda’s Models 8300 and 8600, which were substantially as described in the ’914 patent, infringed General’s ’573.
V. Narda’s Design Patent
The design of Narda’s probe, which the district court found to be “novel, distinctive and ornamental,” included a conical tip and a cylindrical handle having three sections of different diameters and different lengths. One section served as a handle. The central section had the longest length and the smallest diameter. A copy of the design is printed below:
General’s defense to infringement of the design patent was that Narda’s Model 8100 probe, which incorporated the design, was on sale prior to March 23, 1969, one year before the patent’s filing date.
Narda began efforts to sell the Model 8100 probe before the end of 1968. When the initial orders were taken the design, and more particularly the conical tip, had not yet been completed. Narda and its inventor Aslan later decided to incorporate a conical spacer tip on the 8100 probes which were to be delivered, and on or about December 30 Aslan signed a manufacturing drawing including the conical tip. On or about January 2, 1969, the conical tip was released for production and on March 22, 1969, the first two production probes were transferred into Narda’s inventory. Deliveries to customers were made after April 1, 1969. The court concluded that the probe detectors incorporating the design covered by the design patent were on sale before March 23, 1969, and therefore held the design patent invalid under 35 U.S.C. § 102(b).
DISCUSSION
I. Narda’s ’439 Patent
Narda’s principal argument on appeal is that the district court erred as a matter of law in failing to accord its ’439 patent a sufficiently broad range of equivalents. Narda maintains that the ’439 patent discloses a broad and technologically important invention and is therefore entitled to a liberal construction, and that General’s RAHAM Models 1 and 3 are fully equivalent to the invention claimed by the ’439 patent. The argument must fail, however, in light of the district court’s findings, which are not “clearly erroneous.”
The district court found that the ’439 patent utilized a dipole antenna formed of conductive films to which was connected a thermocouple formed of resistive films. The thermocouple array used in the RA-HAM detectors and under the ’573 patent, however, has no dipole antenna. The validity of the ’439 patent did not depend on its use of an integrated antenna-thermocouple. In fact, Narda took a contrary position before the Patent Office. Its Claims 1 and 2 recited a dipole antenna means and a separate thin-film thermocouple as a load. Its Claims 11 and 13 likewise referred to antenna means. In arguing that his patent claims were not anticipated by Moles Patent No. 2,365,207, Aslan emphasized in an amendment that his invention combined a “distinct” antenna and a separate thin-film thermocouple. Another amendment similarly emphasized that the thermocouple and the antenna were separate elements. Narda now argues that the doctrine of equivalents should be applied to expand the scope of its ’439 claims, but as Learned Hand, then a district judge, observed in Quinn v. J. H. Faw, Inc., 235 F. 166, 169 (S.D.N.Y.1916),
[tjhis case is the common one in which the applicant assents to conditions imposed in the Patent Office, and then, having got his patent, tries to expand it to cover exactly what he agreed it should not. Such a game of hide and seek the courts have always refused to allow. He had his remedy by appeal, and only by appeal, if the examiner was wrong.
See also Keith v. Charles E. Hires Co., Inc., 116 F.2d 46, 48 (2d Cir. 1940). This holds equally true with respect to Narda’s Claim 13, which it argues was canceled “without prejudice.” See Musher Foundation, Inc. v. Alba Trading Co., 150 F.2d 885, 888 (2d Cir. 1945). See also Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d 846, 852 (2d Cir. 1976).
II. Narda’s '914 Patent
Narda also asserts that its ’914 patent is entitled as a matter of law to the benefit of the August 8, 1969, filing date of the ’439 patent. It argues that the first element of the combination claimed by the ’914 patent, namely “thin film orthogonal [right angled] thermocouple means forming dipoles,” is supported by the specification of the ’439 patent. We disagree. The ’914 patent described a broad-band radiation monitor, while the ’439 patent related only to narrow-band radiation detection. Like the General ’573 patent, the ’914 patent utilized resistive or “ohmic” interaction with the incoming radiation. The resistive strips had a sufficiently high resistance to provide the broad-band absorbing property with a low degree of reflectivity. The detector described in the ’439 patent, however, incorporated highly conductive antennas with negligible resistance, which created frequency sensitivity, narrow-band operation, and reflection in the field. The use of high resistance in the ’914 patent distinguished it significantly from Narda’s ’439. The Narda expert at trial and Narda’s counsel on appeal consider the word “resistive” to mean essentially the same as “conductive,” but this imprecision might well make Claim 1 of Narda’s ’439 so indefinite as to be invalid. We find that the distinction between conductive films and resistive films is significant, even though resistive films have some conductive qualities, and we conclude that the invention sought to be patented in the ’914 was not disclosed in the ’439. The new matter claimed in the continuation-in-part application therefore was not entitled to the patent filing date, 35 U.S.C. § 120, and the effective date of the ’914 patent was its filing date, November 19, 1971.
III. General’s 573 Patent
The district court properly held the ’914 patent invalid. The ’914 was anticipated by the Hopfer invention, of which Narda became aware before it applied for the ’914 patent. Indeed, Newsday had already carried a photograph of the thermocouple array that General had built and an electronics newsletter had announced General’s “array of thin-film . . . thermocouples.” A General employee had discussed the General thermocouple array with Narda’s chief engineer, who told Narda’s new-products committee what he had learned as early as mid-September 1971. Through these means Narda learned of General’s concept of a thermocouple array that did not use a conducting surface. Narda thereafter directed its own research away from the use of conductive antennae. Inasmuch as the ’914 is not entitled to the filing date of the ’439 patent, but must stand on its own; no device had been built under the ’914 patent before it was filed; and the ’914 was anticipated by the Hopfer invention as disclosed by Newsday, the electronics newsletter, and the General employee, the ’914 patent must fall.
IV. File-Wrapper Estoppel
This does not mean, however, that Narda’s Model 8300 and 8600 radiation detectors, which were produced under the invalid ’914 patent, infringed General’s ’573 patent. General’s patent is subject to the doctrine of file-wrapper estoppel.
It is a well-settled principle of patent interpretation that the extent of an invention is determined by the patent claims, together with the “file wrapper” history in the Patent Office. Under the doctrine of file-wrapper estoppel, a claim that has been narrowed for the purpose of obtaining the patent cannot be expanded to include that which was eliminated. See Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 701, 15 L.Ed.2d 545 (1966). See generally 4 Deller, Walker on Patents § 234 (2d ed. 1965). A patentee who has limited a claim to circumvent a prior-art rejection by the examiner is foreclosed from later claiming an .interpretation or using the doctrine of equivalents effectively to reinstate the elements that were previously eliminated. See Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 136, 62 S.Ct. 513, 518, 86 L.Ed. 736 (1942); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220-21, 61 S.Ct. 235, 239, 85 L.Ed. 132 (1940); Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d at 851-52. The doctrine thus prevents a patentee from taking a position in the courts that contradicts the position he took in the Patent Office.
A review of the file-wrapper history of General’s ’573 patent reveals the following: General first applied for the patent in April 1972. On March 19, 1973, all sixteen of its claims were rejected. General amended its application and added five new claims on July 13, 1973. On October 15, 1973, the Patent Office allowed General’s Claims 12 and 13, rejected Claims 1-4, 14-17, 19, and 21, and stated that Claims 5-11, 18, and 20 would be allowed if rewritten in independent form. In February and March of 1974 General again amended its application, sought reconsideration of the rejected claims, and added claims to its application. On April 18,1974, the Patent Office allowed General’s Claims 5-13 but rejected Claims 1-4 and 14-42, now citing “Aslan (914)” as prior art anticipating the claim under 35 U.S.C. § 102 or from which the claim was obvious under 35 U.S.C. § 103, over which ’573 was unpatentable. On September 30,1974, General canceled Claim 2, added two claims, and amended a number of other claims. In requesting reconsideration of the Patent Office’s rejection of its claims, General repeatedly sought to distinguish its claim from “Aslan (’914).” On December 13, 1974, the Patent Office allowed Claims 5-13 but rejected the other claims “as unpatentable over Aslan (914).” In May and June 1975 General canceled Claim 1 and sought reconsideration of its remaining claims with some amendment. On June 23, 1975, the Patent Office allowed General’s remaining claims.
It is clear from the foregoing that General, whether or not it acknowledged Narda’s Patent ’914 to be “prior art,” narrowed its claims in order to obtain the issuance of a patent by distinguishing its claims from the ’914. In a September 10, 1974 request for an extension of time to respond to the Patent Office’s action of April 18, 1974, General did indicate that it “is now engaged in preparing a response to the Patent Office Action, but finds that a complete response will require the preparation of an Affidavit Under Rule 131 [37 C.F.R. § 1.131] to swear back of the prior art.” Then on May 5, 1975, General advised the Patent Office that it was copying certain ’914 claims under 37 C.F.R. § 1.205 for the purpose of provoking an interference to determine priority between the ’573 and the ’914. While General thus preserved its claim that the ’914 was not prior art, General also represented to the Patent Office that the ’573 was different from the ’914.
Although there are only slight differences between Narda’s Model 8300 and General’s ’573 patent, under the doctrine of file-wrapper estoppel General may not claim that its ’573 patent was infringed by Narda’s Model 8300 and the derivative 8600. General narrowed and amended its claims in order to distinguish them from the ’914. Therefore, General is now estopped from claiming an interpretation of ’573 that extends to radiation detectors described in Narda’s ’914.
V. Narda’s Design Patent
Finally, with respect to the Narda design patent, we disagree with the district court that the design was novel or unique. We think it was obvious. 35 U.S.C. § 103. The handgrip looks like any handgrip. The tip over the sensor shaped like a cone, with a base diameter to accommodate the antenna strips and an altitude equal to the desired space, does not reflect any exceptional talent. Arrows, weathervanes, microphones and other items in common use have the same general shape. See generally Lancaster Colony Corp. v. Aldon Accessories, Ltd., 506 F.2d 1197 (2d Cir. 1974); G. B. Lewis Co. v. Gould Products, Inc., 436 F.2d 1176, 1178 (2d Cir. 1971).
VI. Conclusion
The other numerous arguments made by both parties need not be addressed. The many motions filed by the parties seeking to strike or dismiss issues, briefs, appeals, etc. are denied as moot. Motions for leave to file briefs, answering papers, memoranda, etc. are granted.
Judgment in accordance with opinion; costs to neither party.
. “The Radiation Control for Health and Safety Act of 1968,” 42 U.S.C. §§ 263b-263n.
. The central feature of the Model 8100 is the sensor assembly which was constructed through thin film technology involving the deposition on a dielectric substrate of various metals by an evaporation process so as to create extremely thin films of those metals. The films were formed essentially into two parts: a dipole antenna consisting of copper, connected by silver to a thermocouple made of overlapping strips of bismuth and antimony. The thermocouple was placed in the same plane as the dipole antenna and terminated the antenna ‘as a load’. The entire sensor element was approximately A of an inch in length. An identical sensor element was positioned immediately above the original one, but perpendicular to it, in essentially the same plane, an arrangement that eliminated any problem of polarized electrical fields. The remainder of the invention followed relatively conventional lines, adopting a probe format with the sensor assembly at one end of the probe, connected to a meter by semi-conductive lead wires designed to draw off direct current generated by the antenna-thermocouple device.
(Emphasis added.) The tip of the probe, permitting operation of the sensor within two inches of the device being measured, was composed of styrofoam, which has the same electrical properties as free space.
. An antenna is a conductive structure transmitting or receiving radio waves to or from space. Since AM radio waves have vertical polarization, automotive antennae are usually vertical; television radio waves are horizontal so that TV antennae have horizontal Wires. A dipole is a simple antenna.
. In the ’914 patent — and in Narda’s 8300 radiation monitor — the rows are spaced close to one another, whereas in the ’573 patent and General’s Model 81 probe the spacing between the rows is greater than the width of the individual rows. Furthermore, in Narda’s monitors the free ends of the thermocouples that overlap to form cold junctions have film areas that are larger and therefore dissipate greater heat than the areas of the ends that overlap to form hot junctions. In the '573 patent and the Model 81 probe, thermally conductive ceramic discs engage the cold junctions of the thermocouples and conduct heat away from the free ends to maintain them at a lower temperature than the hot junctions in response to induced currents.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
HUMPHREY et al. v. MOORE et al.
No. 17.
Argued October 16, 1963.
—Decided January 6, 1964.
David Previant and Mozart O. Batner argued the cause for petitioners. With them on the briefs were H. Solomon Horen, William S. Zeman, Herbert S. Thatcher and Ralph H. Logan.
John Y. Brown and Newell N. Fowler argued the cause and filed briefs for respondents.
Together with No. 18, General Drivers, Warehousemen & Helpers, Local Union No. 89, v. Moore et al., also on certiorari to the same Court.
Mr. Justice White
delivered the opinion of the Court.
The issue here is whether the Kentucky Court of Appeals properly enjoined implementation of the decision of a joint employer-employee committee purporting to settle certain grievances in accordance with the terms of a collective bargaining contract. The decision of the committee determined the relative seniority rights of the employees of two companies, Dealers Transport Company of Memphis, Tennessee, and E & L Transport Company of Detroit, Michigan. We are of the opinion that the Kentucky court erred and we reverse its judgment.
Part of the business of each of these companies was the transportation of new automobiles from the assembly plant of the Ford Motor Company in Louisville, Kentucky. In the face of declining business resulting from several factors, the two companies were informed by Ford that there was room for only one of them in the Louisville operation. After considering the matter for some time, the two companies made these arrangements: E & L would sell to Dealers its “secondary” authority out of Louisville, the purchase price to be a nominal sum roughly equal to the cost of effecting the transfer of authority; E & L would also sell to Dealers its authority to serve certain points in Mississippi and Louisiana; and Dealers would sell to E & L its initial authority out of Lorain, Ohio, along with certain equipment and terminal facilities. The purpose of these arrangements was to concentrate the transportation activities of E & L in the more northerly area and those of Dealers in the southern zone. The transfers were subject to the approval of regulatory agencies.
The employees of both Dealers and E & L were represented by the same union, General Drivers, Warehouse-men and Helpers, Local Union No. 89. Its president, Paul Priddy, as the result of inquiry from E & L by his assistant, understood that the transaction between the companies involved no trades, sales, or exchanges of properties but only a withdrawal by E & L at the direction of the Ford Motor Company. He consequently advised the E & L employees that their situation was precarious. When layoffs at E & L began three E & L employees filed grievances claiming that the seniority lists of Dealers and E & L should be “sandwiched” and the E & L employees be taken on at Dealers with the seniority they had enjoyed at E & L. The grievances were placed before the local joint committee, Priddy or his assistant meanwhile advising Dealers employees that they had “nothing to worry about” since E & L employees had no contract right to transfer under these circumstances.
The collective bargaining contract involved covered a multi-employer, multi-local union unit negotiated ,on behalf of the employers by Automobile Transporters Labor Division and on behalf of the unions by National Truck-away and Driveaway Conference. Almost identical contracts were executed by each company in the unit and by the appropriate local union. According to Art. 4, § 1 of the contract “seniority rights for employees shall prevail” and “any controversy over the employees’ standing on such lists shall be submitted to the joint grievance procedure. . . .” Section 5 of the same article, of central significance here, was as follows:
“In the event that the Employer absorbs the business of another private, contract or common carrier, or is a party to a merger of lines, the seniority of the employees absorbed or affected thereby shall be determined by mutual agreement between the Employer and the Unions involved. Any controversy with respect to such matter shall be submitted to the joint grievance procedure.”
Article 7 called for grievances to be first taken up between the employer and the local union and, if not settled, to be submitted to the local joint committee where the union and the employer were to have equal votes. Failing settlement by majority vote of the members of the local committee, the matter could be taken to the Automobile Transporters Joint Conference Committee upon which the employers and the unions in the overall bargaining unit had an equal number of representatives. Decisions of the Joint Conference Committee were to be “final and conclusive and binding upon the employer and the union, and the employees involved.” However, if the Joint Conference Committee was unable to reach a decision the matter was to be submitted to arbitration as provided in the contract.
Article 7 also provided that:
(d) “It is agreed that all matters pertaining to the interpretation of any provision of this Agreement, whether requested by the Employer or the Union, must be submitted to the full Committee of the Automobile Transporters Joint Conference Committee, which Committee, after listening to testimony on both sides, shall make a decision.”
Other provisions of the contract stated that it was “the intention of the parties to resolve all questions of interpretation by mutual agreement” and that the employer agreed “to be bound by all of the terms and provisions of this Agreement, and also agrees to be bound by the interpretations and enforcement of the Agreement.”
The grievances of the E & L employees were submitted directly to the local joint committee and endorsed “Deadlocked to Detroit for interpretation” over the signatures of the local union president and the Dealers representative on the committee. Later, however, the local union, having been more fully advised as to the nature of the transaction between the two companies, decided to recommend to the Joint Conference Committee that the seniority lists of the two companies be dovetailed and the E & L employees be employed at Dealers with seniority rights based upon those which they had enjoyed at E & L. The three shop stewards who represented the Dealers employees before the Joint Conference Committee meeting in Detroit were so advised by the union immediately prior to the opening of the hearing. After hearing from the company, the union and the stewards representing Dealers employees, the Joint Conference Committee thereupon determined that “in accordance with Article 4 and particularly sub-sections 4 and 5” of the agreement the employees of E & L and of Dealers should “be sandwiched in on master seniority boards using the presently constituted seniority lists and the dates contained therein . . . .”
Since E & L was an older company and most of its employees had more seniority than the Dealers employees, the decision entailed the layoff of a large number of Dealers employees to provide openings for the E & L drivers.
Respondent Moore, on behalf of himself and other Dealers employees, then brought this class action in a Kentucky state court praying for an injunction against the union and the company to prevent the decision of the Joint Conference Committee from being carried out. Damages were asked in an alternative count and certain E & L employees were added as defendants by amendment to the complaint. The complaint alleged that Dealers employees had relied upon the union to represent them, that the president of Local 89, Paul Priddy, assured Dealers employees that they had nothing to worry about and that precedent in the industry provided that when a new business is taken over, its employees do not displace the original employees of the acquiring company; it further alleged that Priddy had deliberately “deadlocked” the local joint committee and that the Dealers employees learned for the first time before the Joint Conference Committee in Detroit, that Priddy favored dovetailing the seniority lists. Priddy’s actions, the complaint went on, “in deceiving these plaintiffs as to his position left them without representation before the Joint Conference Committee.” The decision, according to the complaint, was “contrived, planned and brought about by Paul Priddy” who “has deceived and failed completely to represent said employees” and whose “false and deceitful action” and “connivance . . . with the employees of E & L” threatened the jobs of Dealers employees. The International union is said to have “conspired with and assisted the defendant, Local No. 89, and its president, Paul Priddy, in bringing about this result . . . .” The decision of the Joint Conference Committee was charged to be arbitrary and capricious, contrary to the existing practice in the industry and violative of the collective bargaining contract.
After hearing, the trial court denied a temporary and permanent injunction. The Court of Appeals of the Commonwealth of Kentucky reversed and granted a permanent injunction, two judges dissenting. 356 S. W. 2d 241. In the view of that court, Art. 4, § 5 could have no application to the circumstances of this case since it came into play only if the absorbing company agreed to hire the employees of the absorbed company. The clause was said to deal with seniority, not with initial employment. Therefore, it was said, the decision of the Joint Conference Committee was not binding because the question of employing E & L drivers was not “arbitrable” at all under this section. The Court of Appeals, however, went on to hold that even if it were otherwise, the decision could not stand since the situation involved antagonistic interests of two sets of employees represented by the same union advocate. The result was inadequate representation of the Dealers employees in a context where Dealers itself was essentially neutral. Against such a backdrop, the erroneous decision of the board became “arbitrary and violative of natural justice.” Kentucky cases were cited and relied upon. We granted both the petition filed by the E & L employees in No. 17 and the petition in No. 18, filed by the local union. 371 U. S. 966, 967.
I.
Since issues concerning the jurisdiction of the courts and the governing law are involved, it is well at the outset to elaborate upon the statement of the Kentucky court that this is an action to enforce a collective bargaining contract, an accurate observation as far as we are concerned.
First, Moore challenges the power of the parties and of the Joint Conference Committee to dovetail seniority lists of the two companies because there was no absorption here within the meaning of § 5 of Art. 4 and because, as the court below held, that section granted no authority to deal with jobs as well as seniority. His position is that neither the parties nor the committee has any power beyond that delegated to them by the precise terms of § 5. Since in his view the Joint Committee exceeded its power in making the decision it did, the settlement is said to be a nullity and his impending discharge a breach of contract.
Second, Moore claims the decision of the Committee was obtained by dishonest union conduct in breach of its duty of fair representation and that a decision so obtained cannot be relied upon as a valid excuse for his discharge under the contract. The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation. Syres v. Oil Workers Union, 350 U. S. 892, reversing 223 F. 2d 739; Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210; Steele v. Louisville & N. R. Co., 323 U. S. 192. “By its selection as bargaining representative, it has become the agent of all the employees, charged with the responsibility of representing their interests fairly and impartially.” Wallace Corp. v. Labor Board, 323 U. S. 248, 255. The exclusive agent’s obligation “to represent all members of an appropriate unit requires [it] to make an honest effort to serve the interests of all of those members, without hostility to any . . .’’and its powers are “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, 345 U. S. 330, 337-338.
In the complaint which Moore filed here, the union is said to have deceived the Dealers employees concerning their job and seniority rights, deceitfully connived with the E & L drivers and with the International union to deprive Moore and others of their employment rights and prevented the latter from having a fair hearing before the Joint Committee by espousing the cause of the rival group of drivers after having indicated that the interests of the men at Dealers would be protected by the union. These allegations are sufficient to charge a breach of duty by the union in the process of settling the grievances at issue under the collective bargaining agreement.
Both the local and international unions are charged with dishonesty, and one-half of the votes on the Joint Committee were cast by representatives of unions affiliated with the international. No fraud is charged against the employer; but except for the improper action of the union, which is said to have dominated and brought about the decision, it is alleged that Dealers would have agreed to retain its own employees. The fair inference from the complaint is that the employer considered the dispute a matter for the union to decide. Moreover, the award had not been implemented at the time of the filing of the complaint, which put Dealers on notice that the union was charged with dishonesty and a breach of duty in procuring the decision of the Joint Committee. In these circumstances, the allegations of the complaint, if proved, would effectively undermine the decision of the Joint Committee as a valid basis for Moore’s discharge.
For these reasons this action is one arising under § 301 of the Labor Management Relations Act and is a case controlled by federal law, Textile Workers Union v. Lincoln Mills, 353 U. S. 448, even though brought in the state court. Local 174, Teamsters v. Lucas Flour Co., 369 U. S. 95; Smith v. Evening News Assn., 371 U. S. 195. Although there are differing views on whether a violation of the duty of fair representation is an unfair labor practice under the Labor Management Relations Act, it is not necessary for us to resolve that difference here. Even if it is, or arguably may be, an unfair labor practice, the complaint here alleged that Moore’s discharge would violate the contract and was therefore within the cognizance of federal and state courts, Smith v. Evening News Assn., supra, subject, of course, to the applicable federal law.
We now come to the merits of this case.
II.
If we assume with Moore and the courts below that the Joint Conference Committee’s power was circumscribed by § 5 and that its interpretation of the section is open to court review, Moore’s cause is not measurably advanced. For in our opinion the section reasonably meant what the Joint Committee said or assumed it meant. There was an absorption here within the meaning' of the section and that section did deal with jobs as well as with seniority.
Prior to this transaction both E & L and Dealers were transporting new cars out of Louisville for the Ford Motor Company. Afterwards, only one company enjoyed this business, and clearly this was no unilateral withdrawal by E & L. There was an agreement between the companies, preceded by long negotiation. E & L’s authority to engage in the transportation of new cars out of Louisville was sold to Dealers. The business which E & L had done in that city was henceforth to be done by Dealers. While there was no sale of tangible assets at that location, the Joint Conference Committee reasonably concluded that there was an absorption by Dealers of the E & L business within the meaning of § 5 of the contract.
It was also permissible to conclude that § 5 dealt with employment as well as seniority. Mergers, sales of assets and absorptions are commonplace events. It is not unusual for collective bargaining agreements to deal with them, especially in the transportation industry where the same unions may represent the employees of both parties to the transaction. Following any of such events, the business of the one company will probably include the former business of the other; and the recurring question is whether it is the employees of the absorbed company or those of the acquiring company who are to have first call upon the available work at the latter concern. Jobs, as well as seniority, are at stake; and it was to solve just such problems that § 5 was designed. Its interpretation should be commensurate with its purposes.
Seniority has become of overriding importance, and one of its major functions is to determine who gets or who keeps an available job. Here § 5 provided for resolving the seniority of not only those employees who are “absorbed,” but all who were “affected” by the absorption. Certainly the transaction “affected” the E & L employees; and the seniority of these drivers, which the parties or the Joint Conference Committee could determine, was clearly seniority at Dealers, the company which had absorbed the E & L business. The parties very probably, therefore, intended the seniority granted an E & L employee at Dealers to carry the job with it, just as seniority usually would. If it did not and if Dealers unilaterally could determine whether to hire any E & L employee, it might decide to hire none, excluding E & L employees from any of the work which they had formerly done. Or if it did hire E & L employees to fill any additional jobs resulting from the absorption of the E & L business, it might select E & L employees for jobs without regard to length of service at E & L or it might insist on an agreement from the union to grant only such seniority as might suit the company. Section 5 would be effectively emasculated.
The power of the Joint Conference Committee over seniority gave it power over jobs. It was entitled under § 5 to integrate the seniority lists upon some rational basis, and its decision to integrate lists upon the basis of length of service at either company was neither unique nor arbitrary. On the contrary, it is a familiar and frequently equitable solution to the inevitably conflicting interests, which arise in the wake of a merger or an absorption such as occurred here. The Joint Conference Committee’s decision to dovetail seniority lists was a decision which § 5 empowered the committee to make.
Neither do we find adequate support in this record for the complaint’s attack upon the integrity of the union and of the procedures which led to the decision. Although the union at first advised the Dealers drivers that they had nothing to worry about but later supported the E & L employees before the Joint Conference Committee, there is no substantial evidence of fraud, deceitful action or dishonest conduct. Priddy’s early assurances to Dealers employees were not well founded, it is true; but Priddy was acting upon information then available to him, information received from the company which led him to think there was no trade or exchange involved, no “absorption” which might bring § 5 into play. Other sections of the contract, he thought, would protect the jobs of Moore and his fellow drivers. Consistent with this view, he also advised E & L employees that the situation appeared unfavorable for them. However, when he learned of the pending acquisition by Dealers of E & L operating authority in Louisville and of the involvement of other locations in the transaction, he considered the matter to be one for the Joint Committee. Ultimately he took the view that an absorption was involved, that § 5 did apply and that dovetailing seniority lists was the most equitable solution for all concerned. We find in this evidence insufficient proof of dishonesty or intentional misleading on the part of the union. And we do not understand the court below to have found otherwise.
The Kentucky court, however, made much of the antagonistic interests of the E & L and Dealers drivers, both groups being represented by the same union, whose president supported one group and opposed the other at the hearing before the Joint Conference Committee. But we are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another. In Ford Motor Co. v. Huffman, 345 U. S. 330, the Court found no breach of duty by the union in agreeing to an amendment of an existing collective bargaining contract, granting enhanced seniority to a particular group of employees and resulting in layoffs which otherwise would not have occurred. “Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed' a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id., at 338. Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes. Nor should it be neutralized when the issue is chiefly between two sets of employees. Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance processes.
As far as this record shows, the union took its position honestly, in good faith and without hostility or arbitrary discrimination. After Dealers absorbed the Louisville business of E & L, there were fewer jobs at Dealers than there were Dealers and E & L drivers. One group or the other was going to suffer. If any E & L drivers were to be hired at Dealers either they or the Dealers drivers would not have the seniority which they had previously enjoyed. Inevitably the absorption would hurt someone. By choosing to integrate seniority lists based upon length of service at either company, the union acted upon wholly relevant considerations, not upon capricious or arbitrary factors. The evidence shows no breach by the union of its duty of fair representation.
There is a remaining contention. Even though the union acted in good faith and was entitled to take the position it did, were the Dealers employees, if the union was going to oppose them, deprived of a fair hearing by having inadequate representation at the hearing? Dealers employees had notice of the hearing; they were obviously aware that they were locked in a struggle for jobs and seniority with the E & L drivers, and three stewards representing them went to the hearing at union expense and were given every opportunity to state their position. Thus the issue is in reality a narrow one. There was no substantial dispute about the facts concerning the nature of the transaction between the two companies. It was for the Joint Conference Committee initially to decide whether there was an “absorption” within the meaning of § 5 and, if so, whether seniority lists were to be integrated and the older employees of E & L given jobs at Dealers. The Dealers employees made no request to continue the hearing until they could secure further representation and have not yet suggested what they could have added to the hearing by way of facts or theory if they had been differently represented. The trial court found it “idle speculation to assume that the result would have been different had the matter been differently presented.” We agree.
Moore has not, therefore, proved his case. Neither the parties nor the Joint Committee exceeded their power under the contract and there was no fraud or breach of duty by the exclusive bargaining agent. The decision of the committee, reached after proceedings adequate under the agreement, is final and binding upon the parties, just as the contract says it is. Drivers Union v. Riss & Co., 372 U. S. 517.
The decision below is reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Douglas.
I agree for the reasons stated by my Brother Goldberg that this litigation was properly brought in the state court but on the merits I believe that no cause of action has been made out for the reasons stated by the Court.
The International union was also named as a party but service was quashed and the action dismissed as against it.
The denial of a temporary injunction by the trial court was set aside and temporary injunction ordered by the Court of Appeals. Thereafter the trial court dismissed the complaint, but the Court of Appeals reversed and made the temporary injunction permanent.
In its brief filed here Dealers does not support the decision of the Joint Committee. It suggests, rather, that the matter be finally settled by arbitration under the terms of the contract.
Section 301 (a) of the L. M. R. A. is as follows:
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 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.” 29 U. S. C. §185 (a).
Compare, for example, Labor Board v. Local 294, International Bro. of Teamsters, 317 F. 2d 746 (C. A. 2d Cir.), with Miranda Fuel Co., 140 N. L. R. B. 181 (1962); enforcement denied, Labor Board v. Miranda Fuel Co., 326 F. 2d 172 (C. A. 2d Cir.). See also Cox, The Duty of Fair Representation, 2 Yillanova L. Rev. 151, 172-175.
The union contended in the state courts that the jurisdiction of the state courts had been preempted by the federal statutes. The Kentucky Court of Appeals ruled otherwise and the union appears to have abandoned the view here, since it says, relying upon Ford Motor Co. v. Huffman, 345 U. S. 330, that individual employees “may undoubtedly maintain suits against their representative when the latter hostilely discriminates against them.”
We note that in Syres v. Oil Workers International Union. 350 U. S. 892, individual employees sued the exclusive agent and the company to enjoin and declare void a collective bargaining agreement alleged to violate the duty of fair representation. Dismissal in the trial court was affirmed in the Court of Appeals. This Court reversed and ordered further proceedings in the trial court in the face of contentions made both in this Court and the lower courts that the employees should have brought their proceedings before the National Labor Relations Board. Cf. Cosmark v. Struthers Wells Corp., 54 L. R. R. M. 2333 (Pa. Oct. 17, 1963).
The E & L employees, petitioners in No. 17, urge that even if the federal courts may entertain suits such as this, the state courts may not. Since in our view the complaint here charged a breach of contract, we find no merit in this position. It is clear that suits for violation of contracts between an employer and a labor organization may be brought in either state or federal courts. Dowd Box Co. v. Courtney, 368 U. S. 502.
We need not consider the problem posed if § 5 had been omitted from the contract or if the parties had acted to amend the provision. The fact is that they purported to proceed under the section. They deadlocked at the local level and it was pursuant to § 5 that the matter was taken to the Joint Conference Committee which, under Art. 7, was to make a decision “after listening to testimony on both sides.” The committee expressly recited that its decision was in accordance with § 5 of the contract. Even in the absence of § 5, however, it would be necessary to deal with the alleged breach of the union’s duty of fair representation.
We also put aside the union’s contention that Art. 7, § (d)— providing that all matters of interpretation of the agreement be submitted to the Joint Conference Committee — makes it inescapably clear that the committee had the power to decide that the transfer of operating authority was an absorption within the scope of § 5. But it is by no means clear that this provision in Art. 7 was intended to apply to interpretations of § 5, for the latter section by its own terms appears to limit the authority of the committee to disputes over seniority in the event of an absorption. Reconciliation of these two provisions, going to the power of the committee under the contract, itself presented an issue ultimately for the court, not the committee, to decide. Our view of the scope and applicability of § 5, infra, renders an accommodation of these two sections unnecessary.
See cases cited in footnote 10, infra.
See for example, Kent v. Civil Aeronautics Board, 204 F. 2d 263 (C. A. 2d Cir. 1953); Keller v. Teamsters Local 249, 43 CCH Labor Cases ¶ 17,119 (D. C. W. D. Pa. 1961); Pratt v. Wilson Trucking Co., 214 Ga. 385, 104 S. E. 2d 915 (1958); Walker v. Pennsylvania-Reading Seashore Lines, 142 N. J. Eq. 588, 61 A. 2d 453 (1948); In re Western Union Telegraph Co. and American Communications Association (Decisions of War Labor Board 1944) 14 L. R. R. M. 1623. Cf. Colbert v. Brotherhood of Railroad Trainmen, 206 F. 2d 9 (C. A. 9th Cir. 1953); Labor Board v. Wheland Co., 271 F. 2d 122 (C. A. 6th Cir. 1959); Hardcastle v. Western Greyhound Lines, 303 F. 2d 182 (C. A. 9th Cir. 1962); Fagan v. Pennsylvania R. Co., 173 F. Supp. 465 (D. C. M. D. Pa. 1959). "Integration of seniority lists should ordinarily be accomplished on the basis of each employee’s length of service with his original employer Kahn, Seniority Problems in Business Mergers, 8 Industrial and Labor Relations Review 361, 378.
The Dealers employees rely upon a rider to the Dealers contract protecting the seniority of the employees at a terminal when another terminal of that company is closed down. The court below did not believe the rider dispositive, and we agree.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
KYCOGA LAND CO., Inc., v. KENTUCKY RIVER COAL CORPORATION. KENTUCKY RIVER COAL CORPORATION v. KYCOGA LAND CO., Inc.
Nos. 8142, 8143.
Circuit Court of Appeals, Sixth Circuit.
April 3, 1940.
Buford C. Tynes, of Huntington, W. Va., and Joseph S. Graydon, of Cincinnati, Ohio (Joseph S. Graydon, Buford C. Tynes, and Ira M. Nickell, all of Ashland, Ky., and Maxwell & Ramsey, of Cincinnati, Ohio, on the brief), for Kycoga Land Co.
P. T. Wheeler, of Hazard, Ky., and Simeon S. Willis, of Ashland, Ky., for Kentucky River Coal Corporation.
Before SIMONS, ALLEN, and ARANT, Circuit Judges.
SIMONS, Circuit Judge.
The controversy culminating in these appeals was brought to the attention of the court below by the bill of the appellant to have its title quieted to the minerals lying under a tract of approximately 100 acres, in Knott County, Kentucky. The lands having been incorporated by metes and bounds description in a lease from the appellee to the Knott Coal Corporation engaged in mining coal over a large area covered by the lease, and the operations having been extended to some 7% acres of the land claimed by the appellant, it prayed, in its bill, for an accounting in respect to coal removed, damages to the land resulting from such removal, together with statutory penalties and punitive damages recoverable under Kentucky law, for a willful or wanton trespass. The Knott Coal Corporation was originally a party defendant, but under circumstances to be disclosed, has disappeared from the case.
The original bill was filed in 1930 and the first question to reach decision was that of title. The lands involved were known as the Wm. Kelley tract, and in a painstaking and exhaustive opinion the late Judge Cochran traced its title from the original patents, gave effect to periods of adverse possession, reconciled erroneous references in the several deeds in the chain of title, carefully traced the metes and bounds descriptions therein, and arrived at the conclusion that the appellant had clear title unaffected by conveyances and circumstances through which the appellee asserted ownership to the minerals thereunder. A decree followed on August 31, 1932, quieting title in the appellant and adjudicating its right to recover whatever damages might be ascertained to have been suffered by the defendants by reason of the trespass, and referring their ascertainment to a special master directed to take evidence thereon and report his findings to the court. The decree, however, provided that the findings of the master should not be final or be given presumptive effect, and that all matters referred should be open for determination by the court as if no findings had been made.
From this decree the appellee seasonably filed a petition for appeal with the District Court, which was allowed but not then perfected. Timely orders continued the matter to April 20, 1934. No further extension of time to perfect appeal was granted prior to that date, but on May 4, 1934, a purported extension was secured to July 18, and continuances were thereafter obtained to November 28, 1936, following the entry of a second decree upon the master’s report.
The master, in compliance with the order of reference, received evidence upon and considered the question of damages, reported the amount of coal removed from appellant’s lands by the appellee’s lessee, announced his conclusion that the trespass had been wanton and willful and that if the strict rule of damages applicable to such trespass was to be applied, the basis for assessment was the price per ton received by Knott Coal Corporation at the tipple, which, derived from evidence given by Knott of its average price, was $1.56 per ton. While the master recommended a decree upon another basis deemed by him to be equitable in view of the fact that the appellee did not itself remove the coal and that its lessee was but an innocent trespasser, both parties agree that the master’s recommendation in this respect is untenable. The court did not adopt it or consider it of sufficient merit to warrant discussion.
Upon exceptions of both litigants to the master’s report, the question of damages was submitted to the court in 1936. Judge Cochran having died, the record was reviewed by his successor, Judge Ford who, on August 27, announced an opinion in which he rejected the roaster’s conclusion that the trespass was willful, found it to be inadvertent, the amount of coal removed to have been 113,680 tons, the measure of damages for removal to be the usual royalty agreed upon in leases of coal land in the locality which was 10 cents per ton. He, found, in addition, that 26,473 tons of coal had been hauled from adjacent lands through the plaintiff’s tract, and that the customary charge for such transportation was 2 cents per ton, and concluded that interest should be computed upon each award from the date of Judge Cochran’s decree quieting title, on August 31, 1932. A final decree followed on November 18, 1936, conforming to the opinion. From it the plaintiff appeals. The earlier decree quieting title is challenged by the defendant’s cross-appeal.
The first question to confront us is the timeliness of the cross-appeal. The decree of August 31, 1932, adjudicating title, was final. Effort to keep appeal therefrom, alive until damages should have been determined, failed by reason of the defendant permitting its extension to April 20, 1934, to lapse without renewal during the extended period. The finality of the decree is demonstrated by the fact that it adjudged ownership in the plaintiff, with nothing further required by way of process since the appellee was not in possession at the time, nor exercising title or ownership, and its lessee had abandoned operations. Gulf Refining Co. v. United States, 269 U.S. 125, 136, 46 S.Ct. 52, 70 L.Ed. 195; Maas v. Lonstorf, 6 Cir., 166 F. 41; Gardner v. Grand Beach Co., 6 Cir., 29 F.2d 481. Our decision in Nashville Syrup Co. v. Coca Cola Co., 6 Cir., 215 F. 527, Ann.Cas.1915B, 358, does not militate against this conclusion. The appeal in that case was substantially from an earlier decree as re-entered. In the present case there is nothing in Judge Ford’s decree which renews or completes adjudication of title previously made by Judge Cochran. The earlier decree was complete and required nothing from the later one to give it finality. The analogy to patent suits is not apt since appeals therein are governed by special statute. If we are wrong in this the cross-appellant still must fail since we are not persuaded of error in the conclusion so carefully reached by Judge Cochran. The cross-appeal must be dismissed.
The question finally to be determined is whether the District Court, in-giving judgment to the plaintiff for the trespass upon its lands, applied the correct rule of damages under the law of Kentucky. This becomes of moment when it is considered that the decree awarded the appellant approximately $12,000, whereas, if its views are to be accepted, an award to it on the basis of market value of coal removed, together with statutory penalties, punitive damages and interest, will approximate $250,000. Carroll’s Kentucky Statutes, section 1244a-1, declares it to be a misdemeanor “if any person shall wilfully or knowingly mine or remove coal from the lands or premises of another of the value of twenty dollars ($20.00) or more without color of title in himself to the coal so mined and removed,” and in addition to a fine to be-imposed, provides that the person guilty of such misdemeanor shall be “liable in damages to the owner, double the market value of such coal so wrongfully mined and removed,” the term “person” being defined to include corporations. It is upon this statute that the plaintiff mainly relies.
It becomes necessary, therefore, to consider whether upon the whole record the trespass committed by the defendant was willful, in that it was knowingly and deliberately committed, or under circumstances that showed a wanton or reckless disregard of the rights of the plaintiff, or, as expressed by the District Judge, that it was prompted by a furtive or sinister purpose to fraudulently appropriate the plaintiff’s property. If it were a mere unintentional wrong resulting from inadvertence or mistake, or if intentional nevertheless innocent because in the exercise of an honestly conceived legal right, then the onerous penalties of the statute do not fall upon the defendant and recoverable damages are such as will adequately and fairly compensate appellant for its loss under familiar rules for measuring such loss as they are applied in Kentucky.
As already noted, the master considered the trespass willful. The court disagreed. We are urged to accept the conclusions of the master notwithstanding their rejection, on the ground that the master had superior opportunities for ascertaining the true facts and the presumption in favor of their correctness. The order of reference, however, reserved full power of review and specifically denied any presumption to be attached to the master’s findings. In such situation they were not to any extent binding upon the independent judgment of the court, nor do they bind us. Atherton v. Anderson, 6 Cir., 99 F.2d 883, 890. This is not to say that inferences may not be indulged in favor of the master’s findings in the usual case where .there is conflict of direct evidence, and the master has seen and heard the witnesses and the court has not. Compare Atherton v. Anderson, 6 Cir., 86 F.2d 518, 522. But the master’s findings are here based wholly upon inference, the reasonableness of which may be as fairly determined by the court as by him, and in this situation any presumption in favor of his conclusions can be of but slight importance. This is particularly true when analysis of his reasoning discloses that he drew no distinction between mere negligence and willful or wanton disregard of others’ rights. That such distinction is recognized in law, we have had occasion to note in respect tp tortious conduct generally. Turner v. Buchanan, 6 Cir., 94 F.2d 723.
It may well be that the appellee did not exercise due care to ascertain the limits of its property beyond which it should not have permitted the operations of its lessee to go, but this of itself is not necessarily inconsistent with an unintentional or inadvertent trespass. Guffey v. Smith, 237 U.S. 101, 119, 35 S.Ct. 526, 59 L.Ed. 856; Liberty Bell Coal Mining Co. v. Smuggler-Union Mining Co., 8 Cir., 203 F. 795; Durant Mining Co. v. Percy Consolidated Mining Co., 8 Cir., 93 F. 166. It is true that under the rule in Kentucky, a trespass that is not explained is presumed to be willful, and the duty to show inadvertence, bona fide belief of right is upon the trespasser. Elkhorn-Hazard Co. v. Kentucky River Coal Corp., 6 Cir., 20 F.2d 67; Kentucky Harlan Coal Co. v. Harlan Gas Coal Co., 245 Ky. 234, 53 S.W.2d 538. Whether this is of the class of presumptions that are not evidentiary in their nature and so disappear as soon as a reasonable explanation is presented to rebut the facts upon which the presumption is founded, Equitable Life Assurance Co. of the U. S. v. Sieg, 6 Cir., 74 F.2d 606, or whether of that class which requires those against whom it is asserted to do more than merely go forward with the evidence, we have no occasion to decide since under either interpretation we consider the issue as to the willfulness of the trespass at large upon the proofs.
Whatever may have been the subsequent relations between appellant and appellee, and between the appellee and its lessee, and whatever the inferences now sought to be drawn from the long series of negotiations, communications and maps, any determination of the quality of the trespass as willful and prompted by a deliberate purpose of the appellee that its lessee should appropriate the appellant’s coal to its profit of 10 cents a ton royalty, must stem from the lease to the Knott Coal Corporation, and the circumstances under which It was executed. That lease was entered into in 1921 as a result of negotiations begun in 1919. It permitted Knott exclusively to mine coal from an area of mountain land containing over 2,000 acres. The territory embraced in the lease was based upon a map prepared by the engineers of the appellee, showing an outside boundary of the entire area involved in the transaction, which could be described only by metes and bounds. It was recognized that in the uncertain condition of land rights in that mountainous section of the state there might he infirmities in the lessor’s title, and so it was provided in the lease that the rights and privileges granted should be construed as limited to the lands which the lessor owned, or in which it had lawful rights, and that in the event that its title should be defeated, the agreed royalty was to he proportionately cancelled or, if paid, returned.
Whether Dudley, the president of the appellee corporation, knew precisely where the plaintiff’s 100 acres were located, is not clear. He testified he did not know. That it was somewhere within the outer boundary of the leased premises he probably did know. Whether he relied upon having title to this land or, in view of negotiations that had been initiated for its purchase from the plaintiff, he felt confident that he could acquire it long before the Knott operations would reach it, is also not clear. It may be, as contended by the appellant, that Dudley should have known that his company had no title to the Kelley tract. Eight years later, in a letter to Knott Coal Corporation, on June 4, 1929, he said that his company never claimed title to the tract, but expected and hoped to acquire it and so add it to the Knott lease. But such knowledge, actual or constructive, is far from sustaining an inference that it was included in the Knott lease with the deliberate purpose that Knott should appropriate coal not belonging to the lessor. There were other tracts included in the lease to which the Kentucky Coal Company did not have title. They were expected to be acquired and afterwards were so that no controversy so far as we are advised appears to have resulted.
It may he assumed from the record that Dudley’s negotiations with the plaintiff in 1929 for the purchase of the Kelley tract, were reopened with the knowledge that Knott’s operations had already approached or had actually invaded plaintiff’s property. The appellant seeks to draw that inference from the fact that offers of purchase began with $25 an acre and were rapidly increased to $125 an acre, that Dudley’s subordinates were pressing Tynes, of the appellant company, to call a meeting of his stockholders, and that there was apparent effort to conceal the importance to the appellee of this particular tract among the various groups of small tracts that were the subject of the negotiations. Undoubtedly Dudley sought to buy this acreage at the best price possible. Even so, no inference can be drawn therefrom that the inclusion of the tract in the outer boundary of the area leased to Knott in 1921, evidenced an intention that Knott should appropriate plaintiff’s coal to the profit of the appellee.
As found by the District Judge, the correspondence between Dudley and Tynes relative to negotiations for the sale of various tracts owned by plaintiff, including the tract in question, demonstrates that both parties understood that the lease to Knott embraced the land here involved. There was no protest because of the inclusion of that land in the lease and the court reasonably found that circumstance to negative an inference of fraudulent motive from such an inclusion. Guilty of negligence Dudley may have been in speculating upon his ability to purchase the property from the plaintiff ; guilty of negligence he may have been in failing to follow Knott’s operations in the region of the plaintiff’s land closely enough so as to prevent Knott’s entry thereon before.he had concluded the purchase of the property, but as already indicated, something more than mere negligence is required to fasten upon the appellee the penalty of a statute which, by its express terms, is to be imposed not upon negligent trespassers but upon those guilty of willful or wanton trespass.
Much is made in argument and brief of the fact that when- the second decree was "entered Mr. Dudley’s private map with certain annotations thereon was not before the court. It -was subsequently produced and incorporated in the record on appeal. It seems clear that the District Judge understood, the purpose for which it was produced. It seems equally clear that its introduction led to no misgivings on the part of the court as. to the soundness of the result reached by the decree.
While insisting upon the extreme measure of damages and the extreme penalty provided by law for a willful trespass, the appellant nevertheless challenges the rule of damages applied upon the assumption that the trespass was innocent or inadvertent. The rule in Kentucky is that the measure of damages for an inadvertent and excusable mining of coal from the lands of another is the value of the coal in place. The appellant contends that there was no finding of that value and that it is not adequately measured by the 10 cent royalty rule applied. We think the decisions of the Kentucky Cpurt of Appeals are clearly to the effect that the rule applied below is a sound one, and that the 10 cent royalty adequately compensates the plaintiff for the loss of its coal. Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037; Kentucky-Harlan Coal Co. v. Harlan Gas Coal Co., 245 Ky. 234, 53 S.W.2d 538. Were we in any doubt about it adequately measuring the damages* based upon an assumption that the trespass was not willful, it would be resolved by the valuation which the plaintiff itself put upon its coal left upon the premises, in the lease which it subsequently made with the Knott Coal Corporation, by which it settled its suit against Knott and so discontinued against Knott prior to the consideration of the master’s report by the court below.
For reasons already stated in respect to the decision respecting the plaintiff’s claim for enrichment by way of exemplary damages, we find no error in the rejection by the court below of the plaintiff’s claim to statutory penalties under the encroachment statute, Carroll’s Kentucky Statutes, Section 2739-51. The matter of interest upon the award adjudicated in the decree, being so largely within the discretion of the District Judge, will not be disturbed. Having found no error in the decree failing to adjudicate the trespass as willful, we do not consider the contention that a lease of coal lands in Kentucky is a sale of chattels and so imposes no liability upon the vendor for trespass by his vendee.
The cross-appeal is dismissed and the decree below is affirmed.
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_genapel1
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FUNK v. HAWTHORNE et al.
No. 8390.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 22, 1943.
Decided Nov. 5, 1943.
David A. Saltzburg, of Philadelphia, Pa. (Morris W. Kolander, of Philadelphia, Pa., on the brief), for appellant.
Robert M. Bernstein, of Philadelphia, Pa.' (Milford J. Meyer, of Philadelphia, Pa., on the brief), for appellee.
Before JONES, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
GOODRICH, Circuit Judge.
Michael F. Funk employed as a foreman by the contracting firm of Buckley & Co., Inc., met his death on May 6, 1942, when he was struck by a truck owned by the defendant, Robert Hawthorne, and driven by one Bennett Wilson. The accident occurred in the city of Philadelphia. Plaintiff is the decedent’s widow and adminis-tratrix of his estate. She sues to recover ■damages for the death under the provisions of the appropriate Pennsylvania statutes.
As the case comes to this Court, on appeal, only one question is presented. Was Bennett Wilson, who was driving the truck .at the time the decedent was struck and killed by it, a servant of the defendant Hawthorne? If so, the judgment must stand. If not, and if at the time of the accident Wilson had become the servant of Buckley & Co., Inc., the action in tort will not lie, and the only recovery is for compensation under the Workmen’s Compensation Act, 77 P.S. § 1 et seq., against Buckley. The jury, both by general verdict and special findings, found that Wilson was the servant of Hawthorne and not of Buckley at the time of the accident, and found in favor of the plaintiff, against Hawthorne and in favor of Buckley. The defendant contends that this verdict is not supported by the evidence and that, in spite of the verdict, the undisputed facts show that Wilson had become and was acting as the servant of Buckley at the time of the accident.
Most of the facts are not subject to dispute. It appears that Buckley was engaged in a piece of road building in Philadelphia. He had some trucks of his own on the job; he hired other trucks, with drivers, from Hawthorne. They were paid for by Buckley at a given rate per hour for truck and driver. The work, for which the truck was hired, consisted in driving the truck to be loaded under a power shovel, then driving it from the borrow pit to the appropriate place on the road which was being built and dumping the contents. If direction as to the appropriate place, of loading or dumping, was necessary, one of Buckley’s men on the job would indicate where it was. At the close of each day’s work Buckley would notify Hawthorne how many trucks would be needed the next day and for how many hours their services would probably be required. Hawthorne chose the drivers. Hawthorne had no part in the construction contract itself; his undertaking was.limited to furnishing trucks and drivers for Buckley. This was a regular part of Hawthorne’s business.
The relationship of master and servant is no doubt a legal concept, but its existence turns on the establishment of facts which vary from case to case. The same is true when the question is whether a servant who starts as the employee of one master has become the servant of a second master with regard to a given transaction. The defendant in this case urges that the test is who controlled the servant as to details of his conduct at the time of the transaction in question. To establish that Buckley, not Hawthorne, controlled Wilson, the driver at the time of the accident, Hawthorne offered testimony of Andrew Hawthorne, son and supervising employee of defendant, who claimed, with what the jury might have found to be overeagerness, that, by express agreement with Buckley, when the trucks left the Hawthorne garage they were thereafter under the sole control of Buckley. On the other hand, Buckley, himself, denied any such arrangement or that he had any right to control the drivers of the hired trucks “in any way, shape or form.” The jury having found in favor of Buckley and against Hawthorne, we must accept the former’s version as true.
However, in looking to see whether there is justification for the jury’s reaching the conclusion that the driver, Wilson, was Hawthorne’s servant and not that of Buckley at the time of the accident, we may look at the other evidence which the jury had aside from what either party claimed the contract for hire of the trucks gave. Among the alleged facts brought out in the testimony which the jury had before it; and which we must assume it accepted are the following: Hawthorne was in the business of- renting trucks together with drivers. This was his arrangement with Buckley. Hawthorne hired the drivers and had the power to discharge them or substitute them at any time on any job. If one was unsatisfactory to Buckley, he could complain to Hawthorne, but could not discharge him, only order him off the job for the day. The drivers furnished by Hawthorne were paid by him and their social security taxes were deducted by him. The trucks were owned, garaged, fueled and repaired by Hawthorne. The job of operating the trucks, valued between $3000 and $4000, demanded skill and experience. The drivers handled the trucks so as to protect Hawthorne’s proprietary interest in them.
All of these factors are said to bear upon the question and to indicate a continuance of the general employment, that is continuation of the employment by Hawthorne rather than the conclusion that the general servant has become the servant of another. 1 Restatement, Agency (1933) § 227, comments b and c.
The case is in the Federal Court because of diversity of citizenship of the parties. The operative facts all occurred in Pennsylvania and the problem, so far as it is controlled by case law, is one to be settled in accordance with Pennsylvania decisions. Several of these have been cited to us by each side. The facts vary of course from case to case. However, the legal test applied in each is the same: who had the right of control not only with regard to the work done but also with regard to the manner of performing it? Venezia v. Philadelphia Electric Co., 1935, 317 Pa. 557, 177 A. 25; Robson v. Martin, 1928, 291 Pa. 426, 140 A. 339, and Healey v. Carey, Baxter & Kennedy, Inc., 1941, 144 Pa.Super. 500, 19 A.2d 852, are but a few of the many Pennsylvania decisions stating this proposition in varying phraseology. The individual factors which determine the ultimate conclusions are numerous. They are stated in 1 Restatement, Agency (1933) § 227, comment c, and § 220, and the Pennsylvania decisions are substantially in accord. See Restatement, Agency; Pa.Annot.(1936) §§ 227 and 220 and Healey v. Carey, Baxter & Kennedy, Inc., supra, 144 Pa.Super. at page 504, 19 A.2d at page 854. That the general employer may at any time substitute another employee and that he rents the machine and employee together, particularly where that is his business, are factors indicating a continuation of general employment. Pointing to a similar conclusion, although not necessarily decisive, would be the fact that the general employer paid the wages, deducted taxes therefrom, supplied the gas and oil, kept the trucks in repair and that the-instrumentality was a valuable one requiring the services of a skilled operator.
Hawthorne has stressed the point that Buckley’s foreman would direct the drivers where to load and unload. However, that Buckley exercised such limited control is not incompatible with a finding that the general employment continued. In an arrangement, such as existed in this case, “the contractee must of necessity have the right to indicate when and where the contractor’s work shall be done, without assuming the responsibility of making the contractor or his employees, servants of the contractee.” Healey v. Carey, Baxter & Kennedy, Inc., supra, 144 Pa.Super. at page 505, 19 A.2d at page 855; Robson v. Martin, supra.
Of the numerous cases cited to us by each side, closest to facts of this case is Healey v. Carey, Baxter & Kennedy, Inc., supra. Many of the indicia of a continuation of the general employment are common to both cases. Each alone might well be insufficient to prove in whom the right to control was vested. Taken together they support a verdict that the general employment continued. The conclusion is that the evidence fully supports the verdict of the jury to the effect that Wilson was Hawthorne’s servant at the time of the accident and that the legal conclusion of Hawthorne’s liability for this case is supported by the case law of Pennsylvania.
Affirmed.
There was no evidence that a driver had been complained of or ordered to stop work.
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_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMISSIONER OF INTERNAL REVENUE v. SCHMOLL FILS ASSOCIATED, Inc.
No. 214.
Circuit Court of Appeals, Second Circuit.
March 18, 1940.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Berryman Green, Sp. Assts. to Atty.- Gen., for petitioner Commissioner of Internal Revenue.
George A. Spiegelberg, for respondent Schmoll Fils Associated, Inc.
Before SWAN, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The Commissioner of Internal Revenue assessed income tax deficiencies against the taxpayer Schmoll Fils Associated, Inc. in the amount of $2,212.35 for the year 1932, of which $1,790.25 was in controversy before the Board of Tax Appeals; $1,079.30 for the year 1933, of which $988.56 was in controversy, and $834.07 for the year 1934, of which the entire amount was in controversy. The Board of Tax Appeals determined income tax deficiencies against the taxpayer of $422.10 and $90.75 for the years 1932 and 1933 respectively and an income tax overpayment of $723.72 for the year 1934. This determination was made by allowing the taxpayer to deduct payments upon its non-maturing debentures upon the ground that such payments were “interest paid or accrued within the taxable year on indebtedness” within the meaning of Sections 23(b) of the Revenue Acts of 1932 and 1934, 26 U.S.C.A. Int.Rev.Acts. Four members of the Board dissented from the ruling of the majority.
The question before this court is whether, in computing the income taxes of Schmoll Fils Associated, Inc., the payments made by it on its non-maturing debentures were allowable deductions as interest, or were dividends and, therefore, not deductible. Payments of $13,020 were made to debenture holders in the year 1932, of $12,449.50 in the year 1933, and -of $11,329.50 in the year 1934. In our opinion, the payments were in substance dividends rather than interest and consequently should not have been allowed by the Board as deductions in computing taxable net income.
The persons owning the debentures formerly held cumulative 7% preferred stock. Under a plan of refinancing, the company purchased the preferred stock and out of the proceeds the preferred stockholders agreed to purchase 7% debentures at par to the extent of their holdings. Under this plan the preferred stock would be surrendered and extinguished and the former preferred stockholders would receive 1% debentures having no maturity date. The interest upon the debentures would be payable exclusively from the profits of the company, on the 15th days of January and July of each year, until the principal should be paid or the debentures should be called for redemption, and was to be cumulative. The common stock of the company was not to be entitled to any dividends until a two years surplus had been accumulated sufficient to pay the debenture interest. The debentures were to be redeemable at 105 upon notice and at the option of the taxpayer. The principal was not to become due except at the option of the company, unless in case of bankruptcy, dissolution or any other liquidation, whether voluntary or involuntary, in any of which events the principal and interest accrued and unpaid were to become immediately due, “it being understood, however, that the indebtedness represented by these debentures shall continue to be subordinated to any and all amounts owing to any bank or banker and that the holders shall not be entitled to receive any dividends or other payments thereof until the full amount of principal and interest owing to the company’s banks or bankers shall have been fully paid.”
In making income tax returns for the years 1932, 1933 and 1934 the taxpayer deducted each year the interest accrued on the debentures. The right to do this is claimed under Section 23(b) of the Revenue Act of 1932 and 1934 which allowed as deductions in computing net income: “All interest paid or accrued within the taxable year on indebtedness * *
Not only is there no provision of law allowing deduction of dividends in computing net income, but Article 141, Treasury Regulations 77 of 1932, a similar article of Treasury Regulations 74 of 1928 and Article 23(b)-l of Treasury Regulations 86 of 1934 preclude such deductions. The Articles read as follows: “Interest * '* * socalled interest on preferred stock which is in reality a dividend thereon, cannot be deducted in computing net income * *
It is true that the securities here were styled debentures and thus on their face indicated that they represented an indebtedness. But the name is not conclusive of the nature of the securities. Jewel Tea Co. v. United States, 2 Cir., 90 F.2d 451, 452, 112 A.L.R. 182. While the debenture holders have no vote at meetings of the company, preferred stockholders sometimes have no such right. The debentures closely resemble cumulative preferred stock in having no maturity date, in being payable exclusively from profits in respect to “socalled interest” (Treasury Regulations Article 141, supra) and in being subordinate to bank creditors in the payment of principal, even where there is a liquidation of the company. In short the debenture-holders do not possess the ordinary right of creditors to obtain unconditional payment of their claims at some time. The position of the debenture holders is that of investors rather than creditors. Almost the only difference between the debenture holders and holders -of cumulative preferred stock is that the former may require payment of their interest out of any net earning of the company, whereas preferred stockholders are able to compel payment of a dividend only in case the directors arbitrarily refuse to declare it.
The authorities afford us no very certain guide in solving the difficult problem before us, but vary with the particular facts of each case. The fact that payment of interest may only be required out of profits and that payment of principal may not be required, except in the remote and contingent event of a liquidation of the company, has been held to remove obligations from the class of debts. Jewel Tea Co. v. United States, 2 Cir., 90 F.2d 451, 112 A.L.R. 182.
In Commissioner v. O. P. P. Holding Corp., 2 Cir., 76 F.2d 11, we held securities to be bonds, and not stock, where payment of interest might be suspended, though not beyond the time for redemption of the principal which was to be paid at a fixed date, though in many respects they had the attributes of stock. In Kentucky River Coal Corporation v. Lucas, D.C., 51 F.2d 586, affirmed 6 Cir., 63 F.2d 1007, certain securities described as “debenture stock” were held to be essentially stock rather than bonds and the socalled 6% dividends thereon were held to be not deductible as interest for income tax purposes. This was held in spite of a covenant contained in the certificates to redeem them at the expiration of ten years. Cf. Fidelity Savings & Loan Ass’n v. Burnet, 62 App.D.C. 131, 65 F.2d 477.
The taxpayer calls our attention to Commissioner v. National Grange Mut. L. Co., 1 Cir., 80 F.2d 316, where the First Circuit allowed deduction of interest paid to the holders of socalled “guaranty units” and the facts in many respects resembled those here. But the absence of a maturity date in the “guaranty units” was due to the necessary requirements of the mutual insurance business in which the taxpayer was engaged. Moreover, the opinion did not refer to our earlier opinion in Commissioner v. O. P. P. Holding Corp., 2 Cir., 76 F.2d 11, in which we laid stress upon a maturity date in a corporate obligation as -proof that the document before the court evidenced an indebtedness due to creditors’ rather than a stockholders’ interest.
If is not necessary to hold that the absence of a maturity date if taken alone would prevent a document from representing an “indebtedness” as that word is used in Section 23(b) of the Revenue Acts of 1932 and 1934 or would invariably preclude the return from investments evidenced by the. debentures from being treated as “interest”. But here the absence of a maturity date, the obligation to pay income from net earnings and the subordination of the debentures to the rights of bank creditors render the payments more like dividends than interest and the securities like preferred stock rather than bonds.
If, as we hold, the debentures were in effect stock, the payments to the holders were not proper deductions as interest under Section 23(b) or proper deductions 'as “ordinary and necessary expenses” of business under Section 23(a). The payments were not a charge upon the business but only of the nature of dividends. In re Fechheimer Fishel Co., 2 Cir., 212 F. 357.
Orders reversed and proceedings remanded with directions to the Board to recompute the tax in accordance with the' views set forth in this opinion.
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_respond1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Claude H. TURNER and Citizens and Southern Bank, Trustee, Appellees.
No. 18271.
United States Court of Appeals Fifth Circuit.
Dec. 27, 1960.
Jacob I. Karro, Atty., Dept, of Labor, Bessie Margolin, Asst. Sol., Dept, of Labor, Washington, D. C., Harold C. Nystrom, Acting Sol. of Labor, United States Department of Labor, Washington, D. C., Beverley R. Worrell, Regional Attorney, Birmingham, Ala., for appellant.
Stanley Meyerson, Atlanta, Ga., Johnson, Hatcher, Meyerson & Irvin, Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.
RIVES, Circuit Judge.
This appeal is from a decision in two consolidated actions brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, [29 U.S. C.A. § 216(c)], to recover unpaid minimum wages and overtime compensation alleged to be owed by appellees to their employees.
The issue on appeal is whether the appellees could legally exclude from the work day, for purposes of wage computation, two 15-minute periods — one each morning and one each afternoon, during which operations in the plant were suspended. The court below granted summary judgment for appellees, principally on the ground that “during said rest periods [the employees] did in fact rest and also engaged in activities of their own without restriction by the employer, and further that during such periods they did not render any services or perform any work for the defendants.”
It has long been settled that an employee’s work time under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. is not limited solely to the time he is actively engaged in the performance of work. The test to be applied is whether the “idle time” is “predominantly for the employer’s benefit or for the employee’s * * *.” The court below found there was no genuine issue of fact, and that the 15-minute breaks were predominantly for the benefit of the employees.
The facts, taken in the light most favorable to appellant, are as follows: Appellees manufacture small outboard motor boats. The work done by the employees involved here was monotonous, repetitious, tedious and tiring. The plant was not air-conditioned and, being of corrugated metal, became very hot in summer. The air in the upholstery department was not good and contained considerable dust. Paint fumes in the paint spraying room were very strong and the exhaust fans inadequate. Smoking was prohibited anywhere in the plant. The company tried to confine employee trips to the restroom or drinking fountain to rest periods.
After the breaks, the men testified that they returned to work with renewed energy and made fewer mistakes. In addition, there was expert evidence that a rest period of 15 minutes restored workers to 90% of their pre-fatigue level. The expert also indicated that generally the introduction of rest periods leads to an appreciable increase in total output and tends to decrease absenteeism, turnover of personnel, and the taking of unauthorized random rests. In the absence of such rest periods, worker efficiency declines at an accelerated rate.
During the breaks, the employees left the plant and congregated on an adjoining field and dead end street. Here, they conversed, played checkers and poker, shot craps, purchased refreshments from a mobile wagon, listened to a preacher, and “scuffled.” One employee shot rats in the field adjoining the plant. The great majority of employees lived more than 50 miles from the plant and thus could not go home during the 15-minute breaks.
At the end of the break, a horn sounded and the employees were required to be at their posts when it ceased blowing.
The work breaks were initiated by the employer and were mandatory on the employees. The employees would have preferred “doing away with the breaks altogether” and getting off one-half hour earlier.
In addition to this picture of the facts, the Secretary comes armed with a well-established administrative interpretation of the Fair Labor Standards Act which provides that employees must be compensated for work breaks of less than 20 minutes duration. This interpretation is entitled to great, though not conclusive, weight.
In view of the facts as stated above, and after giving due consideration to the long-standing administrative ruling, we are of the opinion that the court below erred in 'ruling,' as a matter of law, that the evidence established that the employees were the predominant beneficiaries of the work breaks.
We could stop here, but for the Secretary’s insistence not only that this case be reversed, but that the court below be directed to enter summary judgment in his favor. Appellees protest because the Secretary filed no motion for summary judgment in the court below.
It is not necessary for us to align ourselves with the majority or with the minority of the courts which have passed on the question of whether such a counter or cross-motion is necessary. For, when the facts are viewed in the light most favorable to the appellees, the Secretary was not entitled to summary judgment. There was some evidence that the idea of free periods originated with the employees themselves who asked for a free period during the' morning and afternoon ; that the free periods lasted longer than 15 minutes in most cases; that the employees welcomed a break in the morning when they were hungry and could get something to eat; that the work was not “monotonous or exacting”; that working conditions in the plant were “very pleasant”; and that over-all production suffered as a result of the cessation of plant activities during the 15-minute breaks. On this state of facts, and again giving due weight to the administrative interpretation of the Act, we cannot say that no genuine issue was presented as to whether the 15-minute breaks were predominantly for the benefit of the employer. The entry of summary judgment for either party would have been erroneous, and the cause must be remanded to the district court for further proceedings.
To guide the court below in reaching a proper determination of the issue before it, we note that the fact that the employees made no claim to be paid for the extra time until the administrative authorities arrived on the scene is not a binding waiver. Nor is any understanding between employer and employees that the rest periods were to be non compensable a legal contract. For the obligation of the employer to meet the minimum working conditions prescribed in the Act is statutory and a matter of general public policy, and cannot be waived or contracted away by individual employers and employees.
Reversed and remanded.
. Armour & Company v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.
. Armour & Company v. Wantock, 1944, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118.
. See authorities collected in 6 Moore, Federal Practice, 2d ed., Par. 56.15 [1],
. Interpretive Bulletin No. 13, originally-issued in 1939, and revised in 1940; see evolution of this interpretation summarized in Mitchell v. Greinetz, 10 Cir., 1956, 235 F.2d 621, 624-625, 61 A.L.R.2d 956.
. See Skidmore v. Swift & Co., 1944, 323, U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124
. See 6 Moore, Federal Practice, 2d ed., Par. 56.12, at p. 2088 (1953).
. Cf., Brooklyn Sav. Bank v. O’Neil, 1945, 324 U.S. 697, 707, 65 S.Ct. 895, 89 L.Ed. 1296; Wood v. Meier, 5 Cir., 1955, 218 F.2d 419, 420.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_constit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
James A. CISCO, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Acting Through the ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
No. 84-1799.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 16, 1985.
Decided March 28, 1985.
Publication Ordered May 30, 1985.
Before WOOD and FLAUM, Circuit Judges, and GRANT, Senior District Judge.
Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, sitting by designation.
Order
Plaintiffs-Appellants [hereinafter Cisco] appeal the dismissal of their suit filed under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V 1981) [hereinafter FTCA]. The district court found that the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), barred Cisco’s claim and accordingly dismissed Cisco’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). We AFFIRM.
The United States Supreme Court has recently addressed the discretionary function exception contained in § 2680(a), and that Court has found the following factors useful when applying § 2680(a) to the acts of Government employees:
First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case____ Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability.
Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. Time and again the legislative history refers to the acts of regulatory agencies as examples of those covered by the exception, and it is significant that the early tort claims bills considered by Congress specifically exempted two major regulatory agencies by name. See supra, at-. This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took “steps to protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963).
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), — U.S. -, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984) (footnote omitted).
Cisco contends that the United States, acting through the Environmental Protection Agency [hereinafter EPA], was negligent in failing to warn the members of several Jefferson County, Missouri households that dirt contaminated by 2, 3, 7, 8 tetrachlorodibenzo-para-dioxin had been used as residential landfill, negligent in failing to require that the contaminated dirt be removed, and negligent in failing to protect the households from exposure to the toxin. Whether the EPA acted negligently or even abused its discretion has no effect on the applicability of the discretionary function exception. General Public Utilities Corporation v. United States, 745 F.2d 239, 245 (3d Cir.1984). This Court must only consider whether the exception applies.
The Resource Conservation and Recovery Act of 1976, § 1003, 42 U.S.C. § 6902 (1976) has the objective of promoting the protection of health and the environment by, among other things, prohibiting open dumping of hazardous wastes, regulating the disposal of those wastes, and promulgating guidelines for the disposal of hazardous wastes. Under § 3008 of the Act, the Administrator of the EPA may issue compliance orders or may begin civil actions against violators of the Act. 42 U.S.C. § 6928(a)(1) (1976 & Supp. IV 1980). Under the proper circumstances, the Administrator may order the owner of a hazardous waste site or facility to monitor, test, analyze and report the extent and nature of a suspected hazard. Id. § 6934(a). The Administrator may also conduct the monitoring, testing, and analyzing himself or authorize a state or local authority to do so. Id. § 6934(d)(1). Executive Order No. 12316, 46 Fed.Reg. 42237 (1981) gives the Administrator the authority to act under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat. 2767 to act, consistent with the national contingency plan, 40 C.F.R. § 300 (1984), to remove hazardous wastes or to take any response to protect public health or the environment. See 42 U.S.C. § 9604(a)(1) (1976 & Supp. IV 1980). Nothing in these acts, statutes and regulations requires the EPA to warn property owners that residential landfalls have been contaminated by highly toxic wastes or to remove those wastes. Congress has left to the EPA to decide the manner in which, and the extent to which, it will protect individuals and their property from exposure to hazardous wastes.
When an agency makes decisions regarding the supervision of private individuals,
it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government’s regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding.... Judicial intervention in such decisionmaking through private tort suits would require the courts to “second-guess” the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policymaking that the discretionary function exception was designed to prevent.
Varig Airlines, 104 S.Ct. at 2768.
In deciding not to warn Cisco about the contaminated landfill and in deciding not to remove the contaminated dirt from the landfill, the EPA made political, social and economic judgments pursuant to its grant of authority. Cisco may not challenge those judgments under the FTCA because they fall within the discretionary function exception of 28 U.S.C. § 2680(a).
Because of our disposition of this appeal, this Court need not discuss the “Good Samaritan” theory advanced by Cisco or the applicability of the misrepresentation exception to the FTCA.
The district court’s order of dismissal is AFFIRMED.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_numresp
|
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 respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. TACOMA GRAVEL AND SUPPLY CO., Inc., et al., Appellees.
No. 20218.
United States Court of Appeals Ninth Circuit.
Jan. 25, 1967.
Rehearing Denied April 3, 1967.
John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Florence Wag-man Roisman, Atty., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Dale L. Carlisle, Asst. U. S. Atty., Tacoma, Wash., for appellant.
James E. O’Hern, Warren J. Dahiem, of Blair, Thomas, Nicks, O’Hern & Hokan-son, Tacoma, Wash., for appellees.
Before BARNES, KOELSCH and BROWNING, Circuit Judges.
KOELSCH, Circuit Judge.
In 1953 the Reconstruction Finance Corporation, predecessor to the Small Business Administration, an agency of plaintiff United States of America, obtained a deficiency judgment against respondents in a superior court of the State of Washington. Ten years later, the United States brought this action in a federal district court to renew the Washington judgment. On cross-motions the district court rendered summary judgment for respondents. This appeal followed.
Jurisdiction below was based on 28 U.S.C. § 1345. This court has jurisdiction under 28 U.S.C. § 1291.
. The district court rested decision on the ground that the United States, having voluntarily put itself into the state forum in order to have the benefit of a state judgment, was on no better footing than any other litigant availing itself of the state judicial processes. Accordingly, the United States was denied relief because under R.C.W. 4.56.210 a Washington state judgment is not renewable more than six years after it has been entered.
R.C.W. 4.56.210 provides:
“After the expiration of six years from the date of the entry of any judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor, and no suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien or duration of such judgment, claim or demand, shall be extended or continued in force for any greater or longer period than six years from the date of the entry of the original judgment, except as in R.C.W. 4.56.225 provided.”
Appellant argues that this is a statute of limitations and “[i]t is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.” United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940); United States v. Nashville, C. & St. L. Ry. Co., 118 U.S. 120,125, 6 S.Ct. 1006, 30 L.Ed. 81 (1886).
However, in interpreting this statute the decisions of the Washington State Supreme Court are controlling. In re Levinson, 5 F.2d 75 (D.C.Wash.1925). That court has consistently held that this is a statute not of limitations but of extinguishment; after six years a Washington judgment has no further force or effect — it ceases to exist. Bettman v. Cowley, 19 Wash. 207, 53 P. 53, 40 L.R. A. 815 (1898); Palmer v. Laberee, 23 Wash. 409, 63 P. 216 (1900); Ball v. Bussell, 119 Wash. 206, 205 P. 423 (1922); Roche v. McDonald, 136 Wash. 322, 239 P. 1015, 44 A.L.R. 444 (1925), rev’d on other grounds, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365 (1928); St. Ger-main v. St. Germain, 22 Wash.2d 744, 157 P.2d 981 (1945).
“This statute * * * is not a mere statute of limitation * * Roche v. McDonald, supra, 136 Wash, at 326, 239 P. at 1016. “It goes directly to the obligation [of the judgment] itself, and destroys it.” Palmer v. Labe-ree, supra, at 415, 63 P. at 218. Consequently, the “judgment becomes inoperative for any purpose after the expiration” of six years. Hinckley v. Seattle, 37 Wash. 269, 270, 79 P. 779 (1905).
We are convinced that this statute operates against the United States equally with private creditors. In Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239 (1913), the Court had under consideration a state statute •fixing a five year limit on the time within which execution must issue on a judgment. The rationale implicit in the •Court’s opinion is: execution is a state granted right; a state can control by condition what it grants; the time element is a valid condition inherent in the right of execution; the right terminates upon expiration of the time so limited; this consequence attaches even though the judgment is in favor of the United States.
The Court was careful to note that “[t]he time limited for issuing executions is, strictly speaking, not a statute of limitations.” 283 U.S. at 519, 51 S.Ct. at 532. Rather the lapse of more than five years from the date of entry of the judgment served to extinguish the government’s right to execution altogether.
So here the United States, having elected to pursue this claim in a court of the State of Washington, could obtain no more than what that state provides in the way of a judgment. R.C.W. 4.56.210 is as much a part of a Washington judgment as if fully incorporated therein. In re Levinson, 5 F.2d 75 (1925). Thus, since ten years have elapsed, appellant’s judgment is not merely dormant, it is dead. Appellant has no judgment left to renew.
We note in passing that this case is readily distinguishable from United States v. Summerlin, 310 U.S. 414, 60 S. Ct. 1019, 84 L.Ed. 1283 (1940), where the Supreme Court ruled that no state can invalidate a claim of the United States. Here we are concerned only with a judgment of the State of Washington. We do not decide whether R.C.W. 4.56.210 also operates to cut off the claim underlying that judgment.
Affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appel1_3_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES ex rel. DANIKAS v. DAY, Commissioner of Immigration, and three other cases.
Circuit Court of Appeals, Second Circuit.
July 20, 1927.
Nos. 240, 384, 385, 387.
1. Aliens <3=54(5) — Warrant for deportation of alien seaman unlawfully remaining in country must issue within three years, rather than five, under statute (Immigration Act 1917, §§ 19, 34 [Comp. St. §§ 4289'AÜ. 4289'/4s]).
Under Immigration Act 1917, § 34 (Comp. St. § 4289%s), providing that any alien seaman landing contrary to provisions of such act shall be deemed to be unlawfully in the United States, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody * * * for examination, and if not admitted shall be deported,” warrant for deportation of seaman unlawfully entering must issue within three years, notwithstanding section 19 (section 428914X1), establishing a five-year limitation as to other aliens.
2. Aliens <3=54(5) — Under statute, date when alien is taken Into custody, rather than date of issuance of warrant of arrest, determines whether proceedings were commenced within three-year period of limitation (Immigration Act 1917, § 34 [Comp. St. § 4289'/4s]).
Under Immigration Act 1917, § 34 (Comp. St. § 428914s), providing that alien seaman landing contrary to provisions of such act shall be deemed unlawfully in the United State*, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody” for examination, and if not admitted shall be deported, the date on which the alien is taken into custody, and not that on which the warrant of arrest is issued, determines whether proceedings are commenced within three-year period.
3. Appeal and error <3=345(1) — 'Time for appeal does not run until motion for rehearing is disposed of.
Time within which an appeal must be taken does not begin to run until motion for rehearing has been disposed of.
4. Habeas corpus <@=II3(3) — Appeal from order denying roargument in habeas corpus proceeding held improperly taken, and dismissible.
In habeas corpus proceeding on relation of alien held for deportation, appeal by government from order denying motion for reargument held improperly taken, and dismissible.
5. Appeal and error <S=77(I) — Order denying reargument in habeas corpus proceeding is not final and appealable. jn habeas corpus proceeding, order denying reargument is not final and appealable.
Appeals from, the District Court of the United States for the Southern District of New York.
Writs of habeas corpus were granted on the relation of Yasillios Danikas, of Yineenzo Di Giacomo, of George Depastas, and of Mauro Lorusso against Benjamin M. Day, Commissioner. Orders were granted in each ease, sustaining the writ and discharging the relator, and respondent appeals.
Appeal in Danikas Case dismissed, and the orders in the other cases affirmed.
Danikas.
The relator, an alien, is a native and subject of Greece. On January 2, 1922, he arrived at the port of New York as a member of the crew of the steamship Constantinople and deserted his ship. He was not examined by the immigration authorities for permanent admission to the United States at the time of his arrival, nor was he charged to the quota allotted to Greece for the fiscal year ending June 30, 1922. After his desertion he remained in this country, and on October 30, 1924, voluntarily appeared at Ellis Island for inspection at the suggestion of his attorney, and requested that his entry be legalized. On the facts ascertained as to the manner and time of his entry, a warrant of arrest was issued November 13, 1924, but ho was not arrested under the warrant until January 22, 1926. He was charged in the warrant with being liable to deportation under the Immigration Act of May 26, 1924 (Comp. St. §§ 4289%-4289%nn), in that he was not in possession of an unexpired immigration visa, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, because he was likely to become a public charge at the time of his entry, and had entered at a time or place other than as designated by immigration officials.
On January 22, 1926, the alien was brought before a Board of Special Inquiry for examination, pursuant to section 34 of the Act of February 5, 1917 (Comp. St. § 42891,4s). The board failed to sustain the charge that he was in the United States in violation of the act of 1924, hut a warrant of deportation was issued on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native for the fiscal year ended June 30, 1922, and because he entered by water at a place other than as designated by immigration officials and was a person likely to become a public charge at ' the time of his entry.
A writ of habeas corpus was then sued out, whieh was sustained by order of March 31, 1926. The judge who made this order thereafter issued ap order to show cause why the order of March 31st should not be vacated, and the alien should not be allowed to amend his return. This motion was denied by order of June 11, 1926, and the Commissioner of Immigration filed a petition of appeal from the order of June 11.
Di Giacomo.
This relator is a native and subject of Italy. On October 14,1922, he arrived at the port of New York on the steamship Guglielmo Pierce as a member of the crew, and deserted his vessel and remained in the United States. On October 13, 1925, after an investigation that disclosed he was illegally in the country, a warrant of arrest issued on October 14, 1925, on the ground that he was in the country in excess of quota, and had entered at a time and place other than as designated by the immigration officials. As he had gone to Philadelphia he was not taken into custody under the warrant until January 6,1926, after his return. The alien stated that when his ship arrived he went to visit some relatives in Long-Island, became sick, and stayed there about two weeks. On his return he found his ship had gone, looked for another ship, and then looked for work. A warrant of deportation was then issued, after a hearing before a Board of Special Inquiry, because he entered the United States without being admitted and charged to the quota of the country of whieh he was a native for the fiscal year ending June 30, 1923, and because he entered by water at a time or place other than as designated by immigration officials.
A writ of habeas corpus was thereafter sued out, whieh was sustained, and from the order sustaining the writ this appeal has been taken.
Depastas.
This relator is a native and subject of Greece. On January 30, 1922, he arrived at the port of New York on the steamship King Alexander as a member of the crew. Upon arrival he deserted the ship and entered this country, obtained employment, and has remained here ever since. On June 10, 1924, a warrant of arrest was issued, but he was not arrested until November, 1926. He was given a hearing before an immigrant inspector, and ordered deported by warrant dated November 29, 1926, on the ground that the quota for the year ended June 30, 1922, allotted to the country of whieh he was a native, was exhausted.
A writ Of habeas corpus was thereafter sued out which was sustained, from the order sustaining whieh this appeal has been taken.
Lorusso.
This relator arrived in this country on the steamship Presidente Wilson as a member of the crew, on March 14,1923. He was reported as a deserter on March 18, 1923, but the warrant for his arrest did not issue until November 11, 1926, and was apparently not served until December 7, 1926, when he was brought to Ellis Island and given a hearing before an inspector of immigration. He was ordered deported, by warrant dated January 6, 1927, on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native, for the fiscal year ended June 30, 1923.
A writ of habeas corpus was thereafter sued out, whieh was sustained, from the order sustaining which this appeal has been taken.
Charles H. Tuttle, U. S. Atty., of New York City (Edward Eeldman, Asst. U. S. Atty., of New York City, of counsel), for appellant.
Charles J. Gerlieh, Jr., of New York City, for appellees Danikas and Depastas.
Harry H. Hoffnagle, of New York City (MeCready Sykes, of New York City, of counsel), for appellee Di Giacomo.
- Isaac Shorr, of New York City (Carol Weiss King, of New York City, of counsel), for appellee Lorusso.
James C. Thomas, of New York City, amicus curias.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge
(after stating the facts as above). The main question discussed in each-of the foregoing eases is whether the warrant of deportation issued too late. Section 34 of the Immigration Act of 1917 provides:
“That any alien seamen who shall land in a port of the United States contrary to the provisions of this act shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into eustody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section twenty of this act.”
This section, naturally read, would seem to require the Secretary of Labor to arrest a seaman within three years after unlawfully landing in the country, if he sought to deport him; but the government, in spite of the quite unqualified language, contends that the section only determines the admissibility of a seaman, as sections 12-17 (Comp. St. §§ 4289%g-4289%,ii) do of other classes, and that seamen, as well as all other persons, are subject to deportation under section 19 (Comp. St. § 42891/4jj), which contains a live-year statute of limitation for excludable persons, except in the ease of irregular entry, where the time is three years. Certainly this contention is not sound as to causes such as insufficiency of quota, which is an irregularity connected with entry, even if the provisions of section 19 may bo thought to apply to deportation of seamen for offenses subsequent to their arrival.
One of the provisions of section 19 is that “ * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than'one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon warrant of the Secretary of Labor, be taken into eustody and deported. * * * ”
The government in its brief says that:
“Section 34 is simply an exception to this provision of section 19. An alien seaman arrested within three years after an unlawful entry may not be deported on that ground. * * • In that respect, and in that respect only, we submit, is the status of an alien seaman in this country different from that of an ordinary alien.”
We can, however, see nothing in section 34 which limits its purpose to giving a hearing to seamen as to their admissibility. Indeed, it is not true, as claimed, that persons, other than seamen, are in all cases denied belated hearings on their qualifications for admission. On April 20, 1926, the Bureau of Immigration promulgated upon the subject of “nunc pro tune examinations” a first amendment to General Order No. 37. That amendment provided for such hearings to determine the status of aliens, when entries were before July, 1921, and between July 1, 1921, and July 1, 1924, where the alien might have been admitted for permanfent residence as exempt from quota.
It must be remembered that it had been held by the Supreme Court in Taylor v. United States, 207 U. S. 120, 23 S. Ct. 53, 52 L. Ed. 130, that deserting seamen did not come within the immigration laws. The provisions of the act of 1917, including section 34 under discussion, wore enacted to bring them within the law, and that was the only act prior to that of 1924 that' dealt with them in terms. Section 34 provides that seamen who land “contrary to the provisions of this act,” not merely those who land without inspection, can be deported within three years, if they cannot establish their qualifications for admission to the satisfaction of a Board of Special Inquiry. Indeed, section 19 provides for only a three-year limitation in respect to entry of any person without inspection, so that section 34 was not needed to cover mere irregular entry by seamen, if they were deportable under section 19.
The view that section 34 alone regulates the deportation of seamen was taken by Judge Learned Hand in United States ex rel. Filippini v. Day, 18 F.(2d) 781, decided in the District Court December 3, 1926. There is strong ground for this, as nothing else dealt with them in terms, and prior to the act of 1917, by reason of the decision in Taylor v. United States, supra, they wore not deport-able. The Circuit Court of Appeals of the Ninth Circuit, in Nagel v. Hansen, 17 F.(2d) 557, seems to have reached the same result. We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all eases relating to improper entry sueh as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person “who at the time of entry was a member of one or more of the classes excluded by law.” It is his change of status by remaining which makes his presence here unlawful.
Two other questions are said to have been decided erroneously by the court below. The first is that, even if the three-year statute1 of limitation be taken to apply to any of these eases, the proceedings in the Danikas, the Di Giacomo, and the Depastas Cases were all commenced within the three-year period. The date which the government insists is the eritical one is that when the warrant of arrest is issued, and not when the alien is taken into custody.
The other point is raised by the relator Danikas, who contends that the appeal in his case was not timely, and that the order sustaining the writ is not brought up for review.
The proceedings were in each case taken too late. As was said in United States ex rel. Filippini v. Day, supra, “it is now the arrest which counts,” and not the date of issue of the warrant or the time of the actual deportation. In United States ex rel. David v. Tod (C. C. A.) 289 F. 60, and United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, the proceedings were under sections 19 and 20 of the Immigration Act (Comp. St. §§ 4289%jj, 4289%k), and did not relate to seamen. In each case the arrest was within the statutory limit of five years from the date of entry. It was held that section 20, providing, as it did, “if deportation proceedings are instituted at any time within five years after the date of entry,” was satisfied where the warrant was issued and served within the five years.
Section 34 is much plainer, for it says nothing about the institution of proceedings, but provides that “any alien seaman who shall land in a port of the.United States contrary to the provisions of this act, * * * and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody, * * * shall be deported.” This, by the plainest language, makes the taking “into custody” within three years from landing the critical factor.
In the Danikas Case the appeal was seasonable, because the time did not begin to run until the motion for a rehearing was disposed of (Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pacific R. R. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99), but there was no appeal from the order sustaining the writ, inasmuch as the petition on appeal referred only to the order denying the motion for a reargument. It is fortunate that we find no error in the disposition of the writ, for the appeal as taken does not cover the order sustaining it, and the order denying the motion for a reargument, from which alone the appeal has been taken, is not appealable, because it is not a final order.
The appeal in the Danikas* Case must accordingly be dismissed. The orders sustaining the writs on behalf of Di Giacomo, Depastas, and Lorusso are affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration 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.
William N. GROSCH, Appellant, v. Curtis W. TARR, The National Director of Selective Service, et al., Appellees.
No. 71-1862.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 7, 1972.
Decided Jan. 18, 1972.
Thomas F. Loflin, III, Durham, N. C. (Loflin, Anderson & Loflin, Durham, N. C., on brief), for appellant.
N. Carlton Tilley, Jr., Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellees.
Before BRYAN and RUSSELL, Circuit Judges, and YOUNG, District Judge.
PER CURIAM:
The appellant sought declaratory and injunctive relief to require a reopening of his classification after notice of induction by his Selective Service Board. Relief was denied by the District Court on the basis of Section 10(b) of the Selective Service Act of 1967, which prohibits judicial review of the classification of a registrant after the issuance of an order of induction. We affirm. The Courts have, it is true, established certain minor exceptions to the prohibition on judicial review as prescribed by Section 10(b) but the registrant did not bring himself within such exceptions.
Affirmed.
. See, Oestereich v. Selective Service System Local Board No. 11 (1968) 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Local Board (1970) 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653, and Grosfeld v. Morris (4th Cir. 1971) 448 F.2d 1004.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. 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".
W. E. HEDGER TRANSP. CORPORATION et al. v. IRA S. BUSHEY & SONS, Inc.
No. 252.
Circuit Court of Appeals, Second Circuit.
April 30, 1946.
Rehearing Denied May 23,1946.
Horace M. Gray, of New York City, for appellants.
Christopher E. Heckman and Foley & Martin, all of New York City, for ap-pellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiffs appeal from a. judgment, dismissing their complaint for lack of jurisdiction over the subject matter appearing upon its face. The Hedger Company is a New York corporation, and so is the Bushey Company; the plaintiff, Hedger, is a citizen of New Jersey, and owns all the shares of the Hedger Company. The complaint alleged that in July, 1932, Hedger and the Bushey Company agreed upon the joint operation of barges and tugs in New York Harbor; and that in December, 1938, the Bushey Company asserted that the Hedger Company owed it about $400,000, as a result of the venture up to that time. The Bushey Company thereupon transferred the barges and tugs to the Hedger Company for $200,000,, taking in payment a mortgage for $600,000, made up of the debt and the purchase price. In July, 1942, the Hedger Company executed a second mortgage for about $100,000; and on February 10, 1945, the Bushey Company brought a suit in the admiralty in the Eastern District of New York to foreclose these mortgages for a deficiency of about $74,-000; in which a decree of foreclosure was entered on March 8, 1945, upon consent of the Hedger Company. The gravamen of the complaint, which was filed on April 4, 1945, is that the plaintiffs were forced to consent to the foreclosure because the Bushey Company threatened to seize the vessels and ruin their business, since such a seizure would have resulted in the vessels’ remaining idle while the suit was being tried. The complaint alleged that in fact nothing was due upon the mortgages, as an accounting would show; but, since the account would have taken a long time to state, the plaintiffs' could not afford to wait, and were forced to pay the demand under duréss. This constituted a ground for vacating the decree and demanding an accounting. The complaint also alleged incidental damages of $30,000 arising from the seizure, and a return of two payments of $4,900 each, paid by the Hedger Company upon the mortgages under a mutual mistake of fact. The judge dismissed the complaint on the ground that the only relief open to the plaintiffs was by a “libel of review” in the foreclosure suit; and that for that reason the district court had no jurisdiction in an ancillary action in the nature of a suit in equity.
We have jurisdiction over the appeal, because the judgment finally disposed of the action, although it left it open to the plaintiffs to bring a “libel of review,” or any other proceeding in the foreclosure suit which they might think best. This the plaintiffs refuse to do, because they believe that they cannot secure the necessary relief in the foreclosure suit, even if the decree were vacated. Hence they insist that an ancillary suit lies in equity without the necessary diversity of citizenship. We think that all the relief which the district court had jurisdiction to grant in any form will be open in the foreclosure suit, if the decree is vacated; and that the complaint should have been treated as a petition in that suit to that end, and should not have been dismissed for what was at worst only a defect of form. We do not understand why anything more was necessary than such a petition: that is, why it was necessary, or indeed proper, to resort to a “libel of review.” Rule 5 of the Rules of the District Court for the Eastern District of New York extends each term for ninety days from the entry of the judgment, so that on April 4, 1945, when the complaint was filed, the plaintiffs might have moved directly in the foreclosure suit itself. A “libel of review,” like its analogue a “bill of review” in equity, will lie only when other relief is not open to the party aggrieved. However, since this, as we have said, is only matter of form, it should be disregarded, unless there are matters of substance, which demand an ancillary suit. The plaintiffs insist that there were two such matters: first, a court of admiralty has no power to grant all the relief to which they will be entitled; and second, the grant of a petition to vacate the decree rests in the discretion of the district court. We shall consider these objections in that order.
Before the decree of foreclosure can be vacated, the question must be answered whether the Hedger Company owed the Bushey Company the amount which it actually paid. We assume that this will require an accounting, and the first question is whether it may be had in the foreclosure suit. It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent, and so on. The Steamboat Orleans, 11 Pet. 175, 182, 9 L.Ed. 677; Minturn v. Maynard, 17 How. 477, 15 L.Ed. 235; Vandewater v. Mills, 19 How. 85, 92, 15 L.Ed. 554; Grant v. Poillon, 20 How. 162, 15 L.Ed. 871; Ward v. Thompson, 22 How. 330, 16 L.Ed. 249; The Larch, Fed. Cas.No.8,085; The Zillah May, D.C., 221 Fed. 1016; The Red Wing, D.C., 10 F.2d 389. (It may be doubted whether Metropolitan S. S. Co. v. Pacific-Alaska Nav. Co., D.C., 260 Fed. 973, is in accord with these decisions.) Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court. Thus, when an accounting was necessary to determine a fisherman’s “lay,” or share of the catch, Lowell, J., entertained the suit, although the statute passed for that purpose — R. S. § 4391, 46 U.S.C.A. § 531 — did not apply. The Carrier Dove, D.C., 93 F. 978. In The I. S. E. No. 2, 15 F.2d 749, the Ninth Circuit took jurisdiction in a similar case without noticing the statute. On the other hand in 1830 in The Fair Play, Fed.Cas.No.4,615, Betts, J., refused to entertain the libel of a seaman for wages which involved an accounting, and Mr. Justice Thompson affirmed the decree; but the libel was in rem and the actual decision was merely that a seaman’s lien for wages is only for an “adjusted balance.” It is only fair to add, however, that Judge Betts thought even a libel in personam “exceedingly doubtful.” In The John E. Mulford, D.C., 18 F. 455, one part owner filed a libel for the sale of the vessel and partition of the proceeds, as an incident to which Judge Brown entertained an accounting against the parties who had operated the vessel before the sale. He put his decision upon the ground that, although a suit for an accounting alone would not have lain between the parties, when an accounting became necessary to the winding up of a suit over which the admiralty had independent jurisdiction, the court would state the account. For this he relied in part upon the opinion of Judge Ware in The Larch, Fed.Cas.No.8,086. Although Mr. Justice Curtis reversed that decree in The Larch, supra, Fed.Cas.No.8,085, it was because he did not think that admiralty had jurisdiction over the principal controversy. Judge Cross followed Judge Brown in The Emma B., D.C., 140 F. 771; and Judge Cushman recognized the doctrine in The Zillah May, supra, D.C., 221 F. 1016. Clearly a court of admiralty at times must state accounts as an incident to the disposition of suits within its cognizance: general average is one instance, and salvage is another. In the case at bar the foreclosure suit was brought under § 951 of Title 46, U.S.C.A., and it would be impossible to enforce the statute, if the suit must be halted every time a question of accounting arose as to the amount due upon the mortgage.
We have no doubt therefore of the power of the admiralty to state the account between the mortgagor and the mortgagee at bar, had the issue arisen in the foreclosure suit itself; and also no doubt of its power to state it upon the issue whether the decree should now be vacated. The same is true as to the restitution of any balance which, after stating the account, the court may find to have been an overpayment by the Hedger Company to the Bushey Company, extorted by duress, or abuse of process; no ancillary action is • necessary for that purpose. The same is not, however, true as to any damages which may have been caused by abuse of process, as alleged in the 67th Article of the complaint. The recovery of these would be a separate cause of action; they would result from a tort, over which the admiralty would have no jurisdiction. Restatement of Torts, § 682. Such a tort is as little “ancillary” to the foreclosure suit, when asserted by a bill in equity, as in the foreclosure suit itself. Since the district court has no independent jurisdiction over that controversy, the plaintiffs must be relegated to the state court for relief; for this cause of action is not within Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, assuming that that doctrine applies to a suit in admiralty, which we do not decide. The same is true of the payments, alleged in the 68th and 69th Articles of the complaint to have been made under a mutual mistake of fact. They will of course figure in the account of what is due under the mortgage, but as ground for an affirmative recovery they are as separate causes of action as the claim for damages caused by the putative abuse of process. In respect to these claims the complaint must be dismissed for lack of jurisdiction.
There remains the plaintiffs’ second ground: that the relief possible in an ancillary suit in equity will not be discretionary, like that under a petition to vacate the decree in the foreclosure suit itself. That is indeed a strange argument. The discretionary nature of the jurisdiction to vacate a decree once entered, is designed to prevent too ready unravelling of judgments; it is to avoid putting a premium upon continued litigation, and to promote considerateness in judicial decision. The fact that the same relief is demanded by a separate action can make not the slightest difference in that hesitation which the court should feel at vacating a judgment. Precisely the same considerations are relevant; and they have precisely the same weight. Indeed, more answer to the argument seems hardly necessary than to remember that, in order to lie at all, such a bill in equity must be “ancillary” to the foreclosure suit.
What we have said disposes of the appeal, so far as concerns the Hedger Company, but not as to Hedger individually. Since he is a citizen of New Jersey, the district court would have had substantive jurisdiction of the action as to him, had he sued alone; but since he joined the Hedger Company, rated as a citizen of New York, he deprived the court of jurisdiction based upon diverse citizenship. Strawbridge v. Curtis, 3 Cranch 267, 2 L.Ed. 435. Clearly he could not join in a petition to vacate the decree in the foreclosure suit. The judgment of dismissal for lack of jurisdiction over the subject matter will therefore be affirmed as to him. It will, however, be reversed in favor of the Hedger Company and the cause will be remanded with instructions to treat the complaint as a petition in the foreclosure suit to reopen the decree upon the grounds therein alleged, on whose sufficiency, however, we are not to be understood to pass. Our decision is no more than that the admiralty court had jurisdiction in the foreclosure suit to give all the relief that the district court had power to give in any capacity, and that it was possible and proper to treat the complaint as a petition in that suit for all such relief, though for no other relief.
At the risk of repetition and in the interest of clarity we will recapitulate what we decide.
(1) The judgment will be affirmed as against Hedger, individually.
(2) The judgment will be reversed as to the Hedger Company.
(3) The complaint will be treated as a petition in the foreclosure suit to vacate the decree of foreclosure upon the grounds which it alleges.
(4) The admiralty court has jurisdiction to state the account between the parties, and to fix the amount due upon the mortgage, if any; also to direct restitution of any sum which the mortgagee may be found to have collected from the mortgagor in excess of that amount.
(5) The complaint will be dismissed for lack of jurisdiction as to any relief which could be granted under the allegations of the 67th, 68th, and 69th Articles.
(6) No costs will be awarded on this appeal.
Judgment reversed; and cause remanded for further proceedings consistent with the foregoing.
Question: This question concerns the first listed appellant. 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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songer_genapel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
James E. GROPPI, Petitioner-Appellee, v. Jack LESLIE, Sheriff of Dane County, Respondent-Appellant.
No. 18538.
United States Court of Appeals, Seventh Circuit.
Oct. 28, 1970.
Robert W. Warren, Atty. Gen., David J. Hanson, Sverre O. Tinglum, Asst. Attys. Gen., Madison, Wis., for appellant.
William M. Coffey, Michael J. Zimmer, Milwaukee, Wis., Percy L. Julian, Jr., Madison, Wis., for appellee; Steven H. Steinglass, Patricia D. McMahon, Freedom Through Equality, Inc., Milwaukee, Wis., of counsel.
Before HASTINGS, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.
PELL, Circuit Judge.
On October 1, 1969, the Assembly, one of two houses of the Wisconsin state legislature, adopted the following resolution;
“Citing James E. Groppi for contempt of the Assembly and directing his commitment to the Dane county jail.
“In that James E. Groppi led a gathering of people on September 29, 1969, which by its presence on the floor of the Assembly during a meeting of the 1969 regular session of the Wisconsin Legislature in violation of Assembly Rule 10 prevented the Assembly from conducting public business and performing its constitutional duty; now, therefore, be it
“Resolved by the Assembly, That the Assembly finds that the above-cited action by James E. Groppi constituted ‘disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings’ and is an offense punishable as a contempt under Section 13.26(1) (b) of the Wisconsin Statutes and Article IV, Section 8 of the Wisconsin Constitution and therefore:
“(1) Finds James E. Groppi guilty of contempt of the Assembly; and
“(2) In accordance with Sections 13.26 and 13.27 of the Wisconsin Statutes, orders the imprisonment of James E. Groppi for a period of 6 months, or for the duration of the 1969 regular session, whichever is briefer, in the Dane county jail and directs the sheriff of Dane county to seize said person and deliver him to the jailer of the Dane county jail; and, be it further
“Resolved, That the Assembly directs that a copy of this resolution be transmitted to the Dane county district attorney for further action by him under Section 13.27(2) of the Wisconsin Statutes; and, be it further
“Resolved, That the attorney general is respectfully requested to represent the Assembly in any litigation arising herefrom.”
Subsequent to the adoption of the Assembly resolution, a copy was served upon Groppi and he was imprisoned in the Dane County Jail upon the authority of said resolution. Prior to being served with a copy of the resolution Groppi was given no specification of the charge against him, had no notice of any kind, nor was any hearing of any kind held. An application for a writ of habeas corpus was dismissed by the Circuit Court for Dane County and thereafter the Wisconsin Supreme Court also denied an application for a writ of habeas corpus and denied a motion for rehearing. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969).
On the same day that the Dane County Circuit Court denied Groppi’s petition, a petition for a writ of habeas corpus was filed in the United States District Court for the Western District of Wisconsin. Groppi was admitted to bail by the district court on the day the Wisconsin Supreme Court denied his petition but after he had served ten days of the sentence imposed by the Wisconsin Assembly. On April 8, 1970 the district court held that the legislature could not summarily impose jail sentence for contempt of the legislature without providing the accused with some minimal opportunity to appear and to respond to the charge. The court accordingly granted the writ of habeas corpus, dismissed the respondent Leslie’s motion to dismiss, vacated the order releasing Groppi on bail and ordered that he be released from any further custody or restraint pursuant to the resolution of the Assembly. Groppi v. Leslie, 311 F.Supp. 772 (W.D.Wis.1970).
Simultaneously a three-judge district court held constitutional that portion of the Wisconsin Statutes providing for further prosecution after the adjournment of the legislature, being § 13.27(2), Wis.Stat. Groppi v. Froehlich, 311 F.Supp. 765 (W.D.Wis.1970).
An exposition of the development of our law on the power of not only courts but legislatures to punish for contempt is to be found in both the decision of the Wisconsin Supreme Court and of the single-judge district court and no worthwhile purpose will be served by burdening this opinion with a repetition thereof. Suffice it to say that the law as it presently exists is that the legislature as well as the court has the power to punish for contempt and further that where all of the essential elements of the misconduct are under the eye of the court and are actually observed by the court, the judge has the power to impose punishment summarily. The sole issue now before us on this appeal is as stated in the brief filed on behalf of Groppi: “Should the summary power of contempt to imprison a person without a notice or hearing be extended to a legislature.”
The district court concluded “that such punishment may not be imposed by a legislature without at least providing the accused with some minimal opportunity to appear and to respond to a charge.” (311 F.Supp. at p. 777). We disagree.
Groppi contends that there is no historical precedent for the exercise of summary contempt power by the legislature. Insofar as reported court decisions are concerned the contention appears to be correct. Conversely, we have found no reported decisions holding that the legislature does not have summary contempt power. The fact of this apparent lack of authority either way suggests that instances of leading a gathering of people on to the floor of legislative halls and preventing the legislature from conducting public business are extremely rare if not virtually non-existent to this time in the United States.
Groppi further contends that our legislatures have apparently not needed summary contempt powers as they have functioned to date without that power. This assertion rather begs the question as it is not possible to tell whether they have functioned without the power if the need has not heretofore arisen for the use of the power. Whether the legislature does have the power is the issue before us. Whether legislatures in the future will have the need for summary contempt power may well be a sequela of the ultimate decision in the case before us.
We cannot be unmindful of recent relatively unprecedented illegal disruptions of the proceedings in courts in our country and this appeal, presenting, as it appears to do, a case of first impression, assumes in our judgment critically significant proportions as to the ability of deliberative legislative bodies to carry on their governmental functions.
While it might be difficult to equate with any degree of equanimity orderly governmental procedures with the effect of the conduct of Groppi as stated in the opinion of the Wisconsin Supreme Court, and while the taking of the law into one’s own hands, no matter how worthy the cause might be, is arguably an insecure basis from which to complain of swift and summary punishment, nevertheless, putting aside these considerations we determine the question here involved as a legal issue in a constitutional context. For the purposes of this appeal we are considering only the bare allegations of the Assembly resolution that Groppi led a gathering of people on the floor of the Assembly during a session thereof and prevented the Assembly from conducting a public business. It is on this factual basis we hold that the legislature may properly punish summarily for contempt.
It must also be borne in mind that we have here involved not mere words of incitation but rather deeds and acts of actual physical force.
The court below was of the opinion that the minimal requirements of procedural due process could be provided by the legislature with little delay, presumably referring to a legislative hearing. However, the invasion here involved is not of a committee or subcommitte of the legislature but of the legislative hall itself. Again, we cannot be unmindful of the protracted nature of court proceedings which involve a cause célebre: The courts, notwithstanding occasional difficulties, are essentially designed to devote the necessary time. The legislature is not. Counsel for Groppi conceded during the argument on this appeal that conceivably a full legislative hearing could cause the work of the body to grind to a halt for several weeks. We find such a contemplation intolerable on the American scene.
We agree with that part of the decision of the district court (311 F.Supp. at 780) which disagreed with the declination of the Supreme Court of Wisconsin to draw an analogy between courts and legislatures with respect to the power to punish direct contempt. If the only purpose of the summary contempt power was to remove from the legislative halls persons obstructing legislative activity, this no doubt could be ordinarily expeditiously accomplished by summoning the necessary police. The district court recognized that legislatures do impose sanctions for the purpose of punishing for a past deed, as well as for the purpose of preventing further interference with the legislative function. This is, in our opinion, as it should be. While we recognize that there is some disagreement as to the extent to which punishment is a crime deterrent, we are yet to be convinced that freedom from immediate and summary punishment would be any deterrent to proscribed activities.
In the opinion from which this appeal is taken, the district court adverted (at p. 777) to the possibility of a destruction of the parallel of the legislative situation to the court’s summary powers because of the question whether “all of the essential elements of the misconduct” occurred “under the eye of” the members who voted affirmatively October 1 and were “actually observed by those members.” In view of the fact that regularly constituted legislative sessions are frequently marked by substantially less than a full attendance on the “floor” by all members of the body, it may be arguable whether the strict standards enunciated in In re Oliver, 333 U.S. 257, 274-275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948), need be scrupulously observed or whether it may not be adequate that proceedings were disrupted for those who were in the chamber at the time, that no further proceedings could be had during the continuance of the invasion and that the resolution of punishment be adopted by at least a majority of the body as a whole irrespective of whether each individual member there personally observed the misconduct. We do not need to determine this issue. The question of fact of whether the petitioner’s acts on September 29 were observed by a specific member who voted afffirm-atively two days later was not timely presented to the state courts of Wisconsin and it would therefore appear that there had not been an exhaustion of remedies available in the courts of this state. 28 U.S.C. § 2254. Further, there is no allegation which would serve to create an issue of fact included in the petition filed in the district court. The issue appears to have been created by the district court’s opinion. We do not on this appeal deem it necessary to indulge in a presumption of non-regularity of the Assembly proceedings. United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Barry v. United States ex rel. Cunningham, 279 U.S, 597, 619, 49 S.Ct. 452, 73 L.Ed. 867 (1929).
The district court in its opinion, while expressing some skepticism (311 F.Supp. at p. 778) as to the viability, or at least desirability, of the doctrine of summary contempt power insofar as the courts are concerned, nevertheless, accepting the court situation as established law, found a basis for differentiating the factual situation presented on the one hand in the courtroom and on the other hand in the legislative chambers. Thus the court felt that the physical contours of most legislatve chambers, the comings and goings of the members and the diffusion of attention of the members among other factors would render it improbable that all the members present would share a uniform perception and evaluation of the incident as would the single judge. The court’s conclusion was that the room for error inherent in the response of a large group was so great as to require that it observe some minimal procedures before it invoked its contempt power. However, the matter is not before us on the factual basis of perceptivity of witnesses. It is before us on the basis that James E. Groppi led a gathering of people onto the floor of the Assembly and prevented the Assembly from conducting its business. The Wisconsin Supreme Court made it clear in its decision that factual matters such as erroneous per-ceptivity would be subject to review in the courts of that state. (171 N.W.2d 192 at p. 198). The court pointed out that Groppi had not sought a hearing in the Wisconsin Supreme Court or any court on the merits of the contempt issue, and that he had not offered any defense nor denied that his acts amounted to a contempt, although the court had allowed him to amend his complaint to present any matter he wished.
As a matter of fact, there is a complete absence in the record before us in the proceedings in the federal district court and in this court on appeal of any denial by Groppi of the contemptuous acts with which he was charged. The sole contention of Groppi is simply that he should not have been summarily punished for the charged contemptuous acts.
To the extent that Groppi appears to be urging a jury trial pursuant to Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), we do not find Bloom applicable here as the punishment provided for in the resolution could not in any event have exceeded six months. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), Duncan v. Louisiana, 391 U.S. 145, 162 n. 35, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
Insofar as Groppi contends that the procedure whereby he was imprisoned constitutes a bill of attainder or a bill of pains and penalties, we agree with the district court on the invalidity of this contention and adopt and approve that portion of the district court’s opinion.
The district court in its opinion also expresses the thought that unlike many courts of record, frequently, if not typically, no verbatim written record of legislative proceedings exists. Acts of violent disruption, such as those which have occurred recently in the state courts of California, would seem scarcely to lend themselves to a reporter’s transcript any better than would the acts charged against Groppi in the resolution of the Wisconsin Assembly. In any event, a question of what happened factually and whether it is to be determined from a court reporter’s transcript or from the mouths of eye witnesses is one which is not determinative of the issue before us. The proof of what happened in the legislative halls will be the same whether the legislature has to have a hearing prior to punishment or whether the hearing is in a court for a review of a claim of lack of factual basis for the punishment.
We share the laudable concern of the district court for the full protection of procedural rights guaranteed to the individual by the due process clause of the Fourteenth Amendment. In essence, however, we have in the case before us a situation in which we must balance claimed constitutional procedural rights of the individual citizen against the welfare of the citizenry as a whole. We find the scales weighted in favor of the citizenry. In so doing we do not feel we are adopting an alarmist view in recognizing validity in the respondent’s position that protracted and frequent legislative trials, if necessary, could easily and realistically become a favorite tool in the politics of confrontation and obstruction, and .representative government (whatever its present faults) would go down to defeat.
We reach with some reluctance toy decision which appears even remotely to achieve an eroding effect on basic civil liberties as guaranteed by our constitution; but believing, as we do, that illegal and physically forcible interference with properly functioning governmental institutions would pose the real risk of being eventually accompanied by the abolition, rather than the erosion, of the individual constitutional liberties, we are unable to reach any other result in the case before us.
For the reasons hereinbefore indicated, the judgment of the district court is reversed, the petition for habeas corpus is hereby denied and respondent-appel lant’s motion to dismiss is hereby grant ed.
Reversed.
. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969) ; and Groppi v. Leslie, 311 F.Supp. 772 (W.D.Wis. 1970).
. “On September 29, 1969, during a regular meeting of the Assembly just prior to the commencement of a special session called by the governor, James E. Groppi led a crowd of noisy protesters into the state capítol building and proceeded to ‘take over’ the Assembly chamber to protest his disagreement with cuts in the state budget for certain welfare programs. The Assembly was unable to proceed with its legislative duties. We take judicial notice that Groppi publicly stated in the Assembly to bis cheering supporters, in effect, that they had captured the capítol and intended to stay until they got what they wanted, and that Groppi vowed from the speaker’s stand in the Assembly to remain there until the legislature restored funds for welfare recipients. The occupation of the Assembly by Groppi and the protesters lasted from approximately midday to well toward midnight.” State ex rel. Groppi v. Leslie, 44 Wis.2d 282, * * *, 171 N.W.2d 192, 194 (1969).
. 44 Wis.2d at 296, 171 N.W.2d at 198.
. “[F]or a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to he heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but * * * the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct.”
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_respond1_1_4
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Edward A. TAYLOR and Dorothy E. Taylor et al., Plaintiffs-Appellees, v. B. HELLER AND COMPANY, Defendant-Appellant.
No. 16571.
United States Court of Appeals Sixth Circuit.
Aug. 17, 1966.
A. M. Sebastian, Columbus, Ohio (Sebastian, Fais & Durst, Columbus, Ohio, on the brief), for appellant.
Barton W. Blair, Jr., Mount Vernon, Ohio, and Gordon K. Bolon, Columbus, Ohio (Applegate, Bolon, Boyd & Alban, Columbus, Ohio, Blair & Turner, Mt. Vernon, Ohio, on the brief), for appellees.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.
WEICK, Chief Judge.
Edward A. Taylor and his mother, Dorothy E. Taylor, the plaintiffs in this case, owned and operated the unincorporated A. C. Taylor Packing Company as a family proprietorship after the death of its founder in 1957. They inherited the business from its founder, who was their father and husband respectively. The Packing Company was engaged in a general meat packing business, preparing and selling various meat products, including bologna, wieners and luncheon meats, in Mt. Vernon, Ohio. Defendant, B. Heller and Company, an Illinois corporation located in Chicago, is in the business of supplying seasoning and spices to the meat packing industry in general.
Plaintiffs commenced to use defendant’s seasoning in their processing of wieners in January, 1958, and experienced no difficulty between the months of January and June, 1958. It was during the summer of 1958 when problems occurred.
On or about June 17, 1958 the plaintiffs purchased a sealed 300-pound drum of defendant’s “Premier German Style Frank & Wiener Seasoning No. 1026”, and began using the seasoning in preparing and packing its wieners on or about July 23, 1958. Shortly thereafter plaintiffs began to experience severe problems of spoilage with their wieners. Within twenty-four to forty-eight hours after manufacture, the wieners sent to retailers or restaurants turned sour or rancid and became unfit for sale. Plaintiffs conducted a series of tests to determine the cause of this spoilage, but were unable to isolate the source of the trouble until October 27, 1958, when it was found by the Ohio Department of Agriculture that the drum of spices purchased from B. Heller and Company was contaminated by an excessive amount of bacteria. The drum was embargoed and later destroyed.
No wieners produced after the removal of the Heller spices, spoiled. In addition, bologna produced with a different process at the Taylor plant during the period of wiener spoilage, did not spoil, although bologna is composed of the same ingredients as wieners, with the single exception of the special wiener seasoning.
After the incident of the extensive product spoilage, plaintiffs allege a severe drop in sales of all of their meats due to loss of public confidence in their reputation for wholesomeness. After sustaining operating losses in 1958 and 1959, A. C. Taylor Packing Company went into receivership on December 31, 1959, and its assets were subsequently sold by the receiver for about $25,000. Plaintiffs sued Heller for damages in the Common Pleas Court of Knox County, Ohio, for the spoilage of wieners during the summer of 1958, and for loss of profits of its business which it claimed was destroyed as a result of such meat spoilage. Nineteen thousand four hundred pounds of wieners spoiled, of which two hundred pounds spoiled because of bad flanks. The case was removed to the District Court because of diversity of citizenship, and was tried before the Court without a jury. The Court adopted findings of fact and conclusions of law and awarded plaintiffs a judgment for $48,786, of which $8,786 was for the spoiled wieners, and $40,000 was for the business destroyed by defendant’s negligence. From this judgment defendant now appeals.
At the trial the evidence was conflicting as to the type of contamination found in the drum of seasoning and its probable effect on the wieners. There was considerable controversy on the crucial issue of causation, defendant claiming that the manufacturing methods and unsanitary conditions at plaintiffs’ packing plant were to blame for the spoilage rather than the defective seasoning.
The trial court found the defendant guilty of negligence per se in the sale of adulterated food products in violation of Ohio Revised Code Sections 3715.59 and 3715.52, and further found as a matter of fact that the destruction of the business of A. C. Taylor Packing Company was the direct result of the production of spoiled wieners. While there were seriously disputed issues of fact with respect to the exact causes of the spoilage and of the business failure, we are of the opinion that plaintiffs’ evidence, if believed, was sufficient to support findings in their favor on the question of defendant’s liability.
We are of the opinion, however, that plaintiffs should have offered some proof as to the wholesomeness of the meat which they used in producing the spoiled wieners.
It is our further judgment that the evidence offered by defendant with respect to the production of wieners at Caven & Son’s packing plant at Conover, Ohio, using defendant’s seasoning, was relevant and competent on the issue whether proper control of the temperature of the meat would have prevented spoilage. It was error to exclude such evidence.
We will now consider the questions relating to the award of damages. In both plaintiffs’ petition and amended petition, recovery was sought only for loss of profits. The District Court made no findings of fact with respect to profits or loss of profits. He did find, however, that the reasonable market value of the Packing Company prior to July, 1958 was $65,000, and after October, 1958 it was only $25,000. He found that the value of the spoiled wieners was $8,786.
The physical assets of the Packing Company consisted of land, buildings, plant, and equipment. In addition it had accounts receivable and good will. While the sale of spoiled wieners by the Packing Company to the public would undoubtedly result in loss of business and profits, it was not established just how this would damage the physical assets of the Packing Company.
The law of Ohio, which governs in this diversity action, recognizes the action for damages for destruction of a business as measured by the difference between the value of the business before and after the injury or destruction. Bishop v. East Ohio Gas Co., 41 Ohio Law Abst. 353 (Cuyahoga County Ct. App. 1943), rev’d on other grounds, 143 Ohio St. 541, 56 N.E.2d 164 (1944). See also Zimmerman v. Isaly Dairy Co., 165 Ohio St. 354, 135 N.E.2d 338 (1956). The Bishop case states the applicable rule for damages as one based on past profits, .while the Zimmerman case allows damages for reasonably certain future profits which are not speculative. However, in the present case, as in Bishop and Zimmerman, the real relevance of the past profits of the destroyed business is for computation of the value of the business as a going concern, through the capitalization of past earnings at an appropriate rate.
The only evidence offered by plaintiffs as to the value of the A. C. Taylor Packing Company before and after the use of the contaminated seasoning in the wieners, was the testimony of Dr. John T. Bonner, Jr., an expert witness, on valuation. Dr. Bonner was Executive Dean of Student Relations at Ohio State University. No questions were raised as to Dr. Bonner’s general qualifications as an appraiser and business consultant, but there are serious questions as to the competency of his testimony in this case and of the exhibits upon which his testimony was based.
According to Dr. Bonner’s appraisal, the value of the Packing Company before damage to its reputation was $65,000, and afterward, as of January, 1960, its value had declined to $25,000, a difference of $40,000. His appraisal was based on three factors: (1) Amount of insurance carried by the Packing Company at the time; (2) An appraisal of the company made by the Industrial Appraisal Co. in 1956, and (3) Annual profit and loss statements of the Packing Company from 1950 through 1959. Dr. Bonner did not view either the plant or equipment, nor did he examine any of the Packing Company’s books or records, except the profit and loss statements and the 1956 appraisal.
While several other factors were cited by Dr. Bonner, it is clear that he used them only to determine whether or not the drop in business suffered by plaintiffs could have been attributable to national or local business conditions in general in the meat packing industry, rather than to the negligence of the defendant. Certainly statistics as to the number of animals slaughtered nationally, or the dollar value of meat products consumed by the typical family, can have no probative value as to the value of one particular firm doing a specific business in one locale. Thus the only conceivably relevant evidence cited by Dr. Bonner as the basis of his evaluation was the profit and loss statements, the outside appraisal of 1956, and the insurance coverage.
The purported use of the insurance coverage as a basis for evaluation, needs little discussion. The testimony of an expert witness must be predicated upon facts offered in evidence at the trial and assumed true for his purposes in a hypothetical question. However, there is no evidence of insurance in the record here and no attempt was made to include this factor in a question posed to Dr. Bonner at the trial. For this reason alone, any part of his opinion based on the insurance factor would be inadmissible,
Further, the insurance coverage of the business, even if correctly proved at the trial, would have a minimal probative value in determining the worth of the going concern or “income stream” destroyed by defendant’s negligence. The amount of insurance carried by the owner is usually indicative of replacement values for the fixed assets and inventory of the concern, rather than the value of the business as a going concern capable of earning profits annually.
Dr. Bonner also relied on an appraisal of the A. C. Taylor Packing Company prepared by The Industrial Appraisal Company of Pittsburgh, Pennsylvania, dated October 1,1956. This appraisal set a “sound insurable value” of $99,418 on the Taylor properties on that date. The District Court in its findings overruled defendant’s objection to admitting this document (Plaintiffs’ Ex. 13). Plaintiffs claim that the appraisal was properly admitted under the Federal Business Records Act, 28 U.S.C. § 1732.
Regardless of whether or not this appraisal falls within the definitions of the statute, see Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958), its admissibility depends in part upon a proper foundation before its introduction. Bisno v. United States, 299 F.2d 711 (9th Cir. 1961), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962), rehearing denied, 371 U.S. 855, 83 S.Ct. 51, 9 L.Ed.2d 94 (1962); Martini Hairdressers, Inc. v. Potomac Beauty Supply Co., 203 A.2d 200 (D.C.App.1964).
Since the exception to the hearsay rule granted by this statute is predicated upon the supposed reliability of records made in the ordinary routine of business, it is essential that they be shown to have been the product of such routine. In this ease, no attempt was made to show this crucial fact.
Even if this defect were not fatal to the introduction of the appraisal, Dr. Bonner’s use of the appraisal clearly contravenes the rule that expert opinion may not be based upon the opinion of others, either in evidence or not in evidence. Zelenka v. Industrial Comm’n, 165 Ohio St. 587, 138 N.E.2d 667 (1956); Manufacturers’ Acc. Indem. Co. v. Dorgan, 58 F. 945, 22 L.R.A. 620 (6th Cir. 1893). This exclusionary rule must extend to the use of the appraisal because the appraisal is the opinion of some unidentified third parties as to the insurable value of the real estate and equipment of the A. C. Taylor Packing Company. The appraisal form itself describes the document as an opinion. Thus, Dr. Bonner’s opinion of the value of the going concern was based, not upon facts proved at the trial, but upon the opinion of others who were not even qualified as experts, nor present at the trial. This is error under Ohio law and under Rule 43(a) of Federal Rules, which rule authorizes, although it does not always compel, the use of state law on this point. Zelenka v. Industrial Comm’n, supra; Horn v. Commonwealth Life Ins. Co., 118 Ohio App. 375, 194 N.E.2d 892 (1963).
Finally, it is important to note that the appraisal, even if admissible, could have had little value as a basis for Dr. Bonner’s opinion since it was strictly limited to a “cost of reproduction new” analysis of the real estate and assets of the A. C. Taylor Packing Co. and so bore little, if any, rational relationship to the income stream which the business created.
Dr. Bonner himself stated that “this is not the valuation of the business” (Rec. 262). The appraisal was aimed solely at ascertaining the amount of insurance to be placed on the buildings and equipment and did not relate to the valuation of a going concern.
As the Bishop case, supra, states, the proper method of valuing a business to determine injury is the capitalization of the business’ earnings over a reasonable period.
The sole remaining evidence cited by Dr. Bonner as a basis for his opinion was the series of profit and loss statements over a ten-year period showing the annual net income or loss of the Packing Company, from 1950 through 1959. These statements would have served as a correct basis for evaluation if they had been properly made and used in accord with the rules set out in Bishop; that is, if provision had been made for reasonable compensation for services rendered by the proprietors of the business before calculating the earnings, and if the results for each year had been weighed so as to accord the most weight to the most recent years.
Neither of these rules was followed, although the plaintiffs cite Bishop as authority for their valuation methods. Unless compensation for management is deducted as expense, the income statements do not accurately reflect the inherent value of the business itself as a going concern and cannot be considered relevant evidence.
In addition, the relevance of the income statements is vitally affected by their age; that is, the farther they depart from the present time, the more likely they are to reflect conditions which no longer obtain. The Bishop rule balanced the need for a full sampling of annual reports against the danger of irrelevance due to age, by requiring that the most recent reports be given extra weight in calculating an average earnings base for capitalization purposes.
In this case that danger is even stronger since the death of the company’s founder in 1957 introduced a drastic change in management of the business, a key factor in any small family proprietorship. Thus it was important that the earnings-base reflect the operation of the business which was actually destroyed, that is, the one operated by the plaintiffs, not the one operated by their predecessor, father and husband. On this point it is interesting to note that the business began to lose money in 1957, after the elder Taylor’s death and before the spoilage incident. Dr. Bonner gave no indication of having taken these important factors into account in his valuation of the business.
Thus, although the profit and loss statements could well have served as the basis of a relevant valuation of the business if correctly used under the Bishop rule, they were not so used by Dr. Bonner and his testimony must be deemed incompetent.
In addition to Dr. Bonner’s confusion of the asset valuation theory with the capitalization of earnings method in his testimony, it appears that he also was mathematically inaccurate by a substantial margin in his calculations of the median and average net annual profits of the Packing Company. At page 247 of the record he stated that the median profit for the period 1950-1959 was “nearly $11,000 per year.” The correct figure, if all ten years, including loss years, are used, is approximately $5,000. If only the profit years, 1950-1956, are considered, the median is still only approximately $7,000. In 1953 a net profit of $14,662.48 was reported. However this was the only year among all ten in which the actual reported net profit was in excess of Dr. Bonner’s supposed median; all other years were below the $11,000-figure which Dr. Bonner cited.
Further, at page 260 of the record Dr. Bonner estimated that the average net annual profit was $7,800. The correct figure, if all ten years including loss years are included, is $1,395.80. If only the gain years are included the figure is still only $7,376.51. Of course the proper period is the full ten-year cycle, not just the gain years when the Packing Company was under different management.
Furthermore, Dr. Bonner’s evaluation of the business as of January, 1960, in the amount of $25,000, coincided with the approximate amount for which the receiver sold the assets. Dr. Bonner testified that he based his appraisal on consideration of the receivership, on an analysis of the profit and loss statements, and on his experience as an appraiser. In our opinion, since Dr. Bonner was appraising the value of the assets after the plant had ceased operations, he should have based his appraisal on the market value of the assets and not on what they sold for at forced sale by the receiver.
For these reasons the judgment of the District Court is reversed and the cause remanded with instructions to grant a new trial.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_weightev
|
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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CHICANO POLICE OFFICER’S ASSOCIATION et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department, et al., Defendants-Appellees.
No. 74-1169.
United States Court of Appeals, Tenth Circuit.
Argued Oct. 24, 1974.
Decided Nov. 20, 1975.
Rehearing and Rehearing En Banc Denied Jan. 14,1976.
Ray M. Vargas, Albuquerque, N. M. (Richard C. Bosson, Albuquerque, N. M., Vilma S. Martinez, Sanford Jay Rosen and Drucilla S. Ramey, San Francisco, Cal., and Joseph R. Grodin, San Francisco, Cal., of counsel, University of California Hastings College of Law, on the brief), for plaintiffs-appellants.
William S. Dixon, Albuquerque, N. M. (Frank L. Horan, City Atty., and Rodey, Dickason, Sloan, Akin & Robb, P. S., and Duane C. Gilkey, Albuquerque, N. M., on the brief), for defendants-appellees.
Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
HOLLOWAY, Circuit Judge.
This civil rights suit challenges both the hiring and promotion procedures of the Albuquerque, New Mexico, Police Department (the Department) as racially discriminatory against Spanish-speaking and surnamed Americans. The plaintiffs are twelve Chicano employees of the Department and the Chicano Police Officer’s Association (the Association). The defendant Stover is the Chief of Police of the Department and the other defendants are the City Commissioners and City Manager of Albuquerque.
The complaint essentially alleged that the defendants had deprived plaintiffs, under color of State law, of rights, privileges and immunities secured by the constitution and laws of the United States in violation of 42 U.S.C.A. §§ 1981, 1983 and 1985 (R. I, 9). The complaint averred that defendants employed hiring and promotion procedures including tests and other job criteria which are not substantially related to job performance and have the effect of excluding a disproportionate number of Chícanos from employment and promotions in the Department, thus violating rights secured by the equal protection clause; by 42 U.S.C.A. §§ 1981, 1983 and 1985, and other statutes. Jurisdiction was claimed under 28 U.S.C.A. § 1343(3) and (4), and declaratory and injunctive relief were sought.
. After presentation of the plaintiffs’ evidence, and that of two defense witnesses heard out of turn, defendants moved to dismiss under Rule 41(b), F.R. Civ.P., on the ground that plaintiffs had shown no right to relief. The trial court made written findings and conclusions adverse to the plaintiffs and dismissed.
On appeal plaintiffs argue principally that the trial court erred in that:
1. The court erred in holding that plaintiffs lack standing to challenge the hiring or entry level procedures of defendants; and
2. It was error to find and conclude that plaintiffs had made no prima facie case of the unlawfulness of the promotion procedures used by defendants.
We turn to the findings and conclusions of the trial court which are of critical importance.
I
The Trial Court’s Findings and Conclusions
The trial court made these findings: The Chicano Police Officer’s Organization is an unincorporated association composed chiefly of Spanish-speaking or Spanish surnamed police officers in the Albuquerque Police Department. Its membership is not limited to Spanish-speaking or Spanish surnamed officers and not all such officers are members of the Association. The Association seeks to achieve equal opportunity for Spanish-speaking or surnamed Americans in recruitment and promotions within the Department, and to discourage discrimination.
The court found that no member of the Association and no plaintiff has been denied employment with the Department.
The court found further that police officers must be high school graduates or have obtained a general equivalency degree. The Department’s General Order 71-23, issued December 17, 1971, requires that all officers to be promoted after January 1, 1972, must have completed at least six semester hours of college accredited study. Those to be promoted during 1974 were required to have completed twelve semester hours, and an additional six hours credit per year is required until a bachelor’s degree is attained.
Promotional examinations were held on June 2, 1973. Four individual plaintiffs were ineligible to take the examination because they lacked the six hours of college credit. The court found, however, that there was ample notice and opportunity for completion of the six hour requirement prior to its application precluding officers from taking the examination. There had been an incentive pay of $1 per month for each hour of college credit, and from April, 1973, to June, 1973, 208 officers of the Department received incentive pay. Fifty-three of approximately seventy Spanish-speaking or surnamed officers received incentive pay under the program. 155 of approximately 305 Anglo officers received incentive pay. It was found that this demonstrates that 75% of the Spanish-speaking/surnamed officers attended college during the period and that the educational requirement did not erect a barrier for a minority group and that the requirement did not have a discriminatory effect on Chícanos as a group.
The results of the June 2, 1973, examination were summarized by the court as follows:
A. Sergeant’s Examination:
1) Total Examinees 90
Passing Examinees 17
Percentage Passing 19%
2) Spanish-surnamed
Examinees 26
Passing Examinees 3
Percentage Passing 11.5%
B. Lieutenant’s Examination:
1) Total Examinees 44
Passing Examinees 7
Percentage Passing 16%
2) Spanish-surnamed
Examinees 7
Passing Examinees 1
Percentage Passing 14%
3) Non-minority
Examinees 36
Passing Examinees 5
Percentage Passing 14%
No Spanish-surnamed Americans took the June 2, 1973, examination for captain. The examinations were achievement tests and their subject matter was taken from tests on police administration, management, psychology, leadership and planning. Members of the Chícanos Police Officer’s Association formed a study group. Some were assigned responsibility for outlining portions of the assigned texts. Several officers read some but not all of the texts and relied on outlines for the material they did not read. The June 2, 1973, examination had not been used before and is not to be used in the future.
The court concluded that no plaintiff has standing to contest the hiring policies of the Department. The injury alleged by the Association and one individual plaintiff is that development of the power to negotiate for the betterment of the position of Chícanos is stifled by policies perpetuating under-representation of the Spanish minority on the police force. It was concluded, however, that the relief sought would not directly benefit the Association, and that the Association and its members have only an indirect stake in the outcome and are not entitled to assert the rights of those directly affected and not present in the suit.
The court concluded that the plaintiffs have failed to establish prima facie that the college educational requirement adversely affects minority groups. It concluded that the plaintiffs failed to show that the promotional examinations caused a statistically significant discrimi-. natory impact on Spanish-speaking/surnamed officers. The overall pass ratio for each examination was small. 19 percent passed the sergeant’s examination; 16 percent passed the lieutenant’s examination. The ratio of Spanish-surnamed passing to non-minority passing was one to one on the lieutenant’s examination and slightly less than two to one on the sergeant’s examination.
The 11 percent pass rate for Spanish-speaking/surnamed examinees for sergeant is arrived at from a small sample, since only 26 Spanish-speaking/surnamed were eligible to take the examination. Three of the 26 passed. The trial court held that the 11 percent figure is not stable or highly reliable. A variance of two Spanish individuals passing or failing would yield ratios between five to one and one to one.
The court concluded that any significance the two to one ratio might have is undermined by the testimony. There was no showing that any other examinees were able to pass with equal or less preparation. Thus, the court concluded that it cannot be said that the disparity in pass rate is statistically significant.
The court concluded further that the plaintiffs have shown no right to relief. It was observed, however, that had they made a prima facie showing of a discriminatory impact of the tests, the defendants probably could not have carried their burden of persuasion; that defendants need to improve recruitment and promotion policies to alleviate under-representation of the Spanish minority at all levels of the Department; that the heavy reliance placed on the achievement type test seems inequitable and misplaced; and that the test does not go far enough in showing performance, leadership and supervisory ability.
The court said further that the value and reliability of the present promotional scheme was dubious, but that the evidence has not shown the significant adverse impact on minorities which is necessary to support an injunction or imposition’of a court-ordered remedial plan. And the court stated that immediate steps should be taken to solve these problems and eliminate “. . . what could become a breeding ground for future litigation.”
On these findings and conclusions the court dismissed with prejudice.
II
Standing to Challenge The Entry Level Hiring Procedures
First, plaintiffs argue that the trial court erred in holding that no plaintiff has standing to challenge the hiring policies of the Department. As stated, the court reasoned that the injury alleged by the Association and one officer is that the development of power to negotiate for the betterment of the position of Chícanos is stifled by policies perpetuating under-representation of Chícanos. However, the court concluded that the Association and its members have only an indirect stake in the outcome and are not entitled to assert the right of those directly affected and not otherwise present in the suit — persons unsuccessfully seeking employment or discouraged from doing so.
We must, of course, observe the requirements for standing which have a constitutional starting point in Article III. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343; Data Processing Service v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184. The plaintiffs must show that the challenged action has caused them injury in fact, economic or otherwise, and that the interest they seek to protect is arguably within the zone of interests to be protected or regulated by the statute and the constitutional guarantee in question. Id. at 152-53, 90 S.Ct. 827; United States v. SCRAP, 412 U.S. 669, 686-90, 93 S.Ct. 2405, 37 L.Ed.2d 254. They must have a personal stake in the outcome. Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. 2197. This requirement is to insure that concrete adverseness which sharpens presentation of issues on which the courts depend for illumination of difficult constitutional questions. O’Shea v. Littleton, 414 U.S. 488, 493-94, 94 S.Ct. 669, 38 L.Ed.2d 674; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663.
Nevertheless, the standing requirement is not to be applied to defeat constitutional claims. An “identifiable trifle” is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation. United States v. SCRAP, 412 U.S. 669, 689, n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254.
In our case we have both individual plaintiff Chicano officers and the Association. This is not, however, a class action maintained for others. The plaintiffs allege that by denying to them and other Chicano citizens the benefits of being hired and promoted — which denial is on the basis of invalid tests and criteria having no substantial relationship to job performance — the effect is to exclude a disproportionate number of Chicano citizens in violation of the equal protection clause and various statutes. The affidavit of Mr. Chavez supports the general claims made, stating that in working with the Department for fair treatment of Chícanos and other minorities, the Association must have the support of as many Chícanos as possible; that only if it represents a substantial number of policemen can they negotiate effectively with the Department from a position of strength; that discrimination against Chícanos in recruitment and hiring dilutes the strength of the Association and directly affects its effectiveness; and that Chavez is personally affected in his attempts to change the system by the effect of what he believes to be discrimination against Chícanos in the entrance procedures of the Department.
We are satisfied that both the Association and the individual plaintiffs made a sufficient showing of standing. This was demonstrated, we feel, by undisputed proof and reasonable and obvious inferences. The Association had 44 signed members at the time of trial (Nov. 26, 1973), and about 50 members in all (Tr. 82). Of these only one or two were Anglos. Id. In the period from April to June, 1973, the court’s findings state that there were approximately 70 Spanish-speaking/surnamed officers and approximately 312 Anglos officers on the force (see Finding 23). Thus, from the proof it is clear that a substantial portion of Chícanos obtaining employment on the force joined the Association. The Association therefore has a direct stake, independent of its members’ rights under the Civil Rights Act, in challenging barriers against employment of those from whom it might well enhance its membership and resources to attain its goals. Warth v. Seldin, supra, 422 U.S. 511, 95 S.Ct. 2197; Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319, 1322 (2d Cir.).
We are also satisfied that the proof made a sufficient showing of standing of the individual plaintiffs to challenge the hiring procedures. There is recognition of secondary effects on others as a valid basis for standing in several instances. In Marable v. Alabama Mental Health Board, 297 F.Supp. 291, 297-98 (M.D. Ala.), the court upheld the standing of individual mental patients for themselves and for a class to challenge the discriminatory hiring practices affecting staff personnel of the institution where they were located. The court reasoned that the secondary effects of discrimination on the plaintiffs as patients entitled them to challenge the hiring procedures relating to the staff personnel. Ibid. In like manner the standing of students to challenge the discriminatory policies of teacher assignments has been sustained on the rationale that the removal of a discriminatory educational system and the achievement of a non-raeially operated system afforded standing rights to individual plaintiffs. Lee v. Macon County Board of Education, 267 F.Supp. 458, 472-73, 478 (M.D.Ala.), aff’d sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422.
Moreover, this court recently affirmed a similar order for transfer of school officials, recognizing implicitly the standing of individual students to assert the invalidity of discriminatory personnel policies affecting others because the policies had a secondary effect on the students. See Dowell v. Board of Education of the Oklahoma City Public Schools, Unpublished Order (10th Cir., January 31, 1975), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975). The fact that harm from discriminatory hiring policies is imposed directly on the rejected or discouraged applicant does not deprive the present Chicano officers of standing to challenge the hiring practices that are asserted to produce an under-representation of Chicanos on the force. The indirectness of the injury to the employees does not necessarily deprive them of standing to vindicate their rights. See Warth v. Seldin, supra, 422 U.S. 504-05, 95 S.Ct. 2197, and to seek removal of the taint of racial discrimination from the work force.
In sum, we are satisfied that both the Association and the individuals made a sufficient showing of standing to challenge the allegedly discriminatory hiring policies and, of course, there is no indication of a lack of concrete adverseness between the position the plaintiffs take and that of defendants. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663. It follows that we must hold that the court was in error in its findings and conclusions denying standing to plaintiffs to challenge the entry level hiring procedures.
Ill
The Trial Court’s Ruling that no Prima Facie Case was made by Plaintiffs
Plaintiffs’ second argument on appeal is that the trial court erred in holding that plaintiffs had not made out a prima facie case against the promotion level procedures and in dismissing their claim for relief from such allegedly unlawful procedures. More specifically plaintiffs say the court erred (1) by excluding evidence relating to prior examinations; (2) by concluding plaintiffs had not established a prima facie case on the evidence presented; (3) by ignoring, as a consequence of its rulings as to standing, the relationship between promotions and discriminatory hiring practices; and (4) by dismissing their showing as not statistically significant because any significance of the slightly less than two to one ratio on the sergeant’s test was undermined by the testimony. (Brief of Plaintiffs-Appellants at 27, 34).
First, we feel the exclusion of the pri- or examinations poses a serious question. Plaintiffs offered proof of the results of examinations from 1966 to 1971 (Plaintiffs’ Exhibits 7-12). Objections were made on the ground of relevancy to these exhibits, defendants arguing that an intervening and different examination was now being given and that the results of the old examinations were irrelevant (See Tr. 49, 53, and the various objections at 49-60). Other objections are said to have been urged and are now argued on appeal to support the exclusion of the exhibits (Answer Brief of Defendants-Appellees at 12 — 15). We read the record to have raised only relevancy and must assume this was the basis for the trial court’s exclusion of the proof.
We agree with the view that the measure of a claim under the Civil Rights Act is in essence that applied in a suit under Title YII of the Civil Rights Act of 1964. Chance v. Board of Examiners, 458 F.2d 1167, 1175-76 (2d Cir.); see Sabol v. Snyder, 524 F.2d 1009, 1012 (10th Cir. 1975). Relief may be had from artificial, arbitrary and unnecessary barriers to employment when they operate invidiously to discriminate on the basis of racial or other impermissible classifications. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158. While the employer’s intent may be examined, Griggs supra at 432, 91 S.Ct. 849, the plaintiff needs only to show that the challenged procedures have a discriminatory result, Griggs, supra at 432, 91 S.Ct. 849. This showing would make out a prima facie case, requiring the employer to demonstrate that his employment criteria or tests were validly job-related. Spurlock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.); Chance v. Board of Examiners, supra, 458 F.2d at 1176.
Obviously, the scope of proof must be broad to establish such a prima facie case. It is open to the plaintiff to develop proof of the general overall trends in hiring and promotion policies. See Rich v. Martin-Marietta Corp., 522 F.2d 333, at 343, 345 (10th Cir. 1975), and this may necessitate “a backward glance. . ” EEOC v. University of New Mexico, Albuquerque, 504 F.2d 1296,1304 (10th Cir.). In our type of case we must agree with the view in Chance v. Board of Examiners, 458 F.2d 1167, 1171 (2d Cir.), where examinations given during several past years to large numbers of applicants were considered.
Defendants argue that the prior tests were different from those given on June 2, 1973. However, if such an objection were sustained an employer could always say that he regularly changes examinations and thus insulate unlawful practices from scrutiny. We cannot agree with defendants’ theory and instead feel that prior procedures, at least for the years here offered, were relevant.
The question of relevance and of remoteness of exhibits in time is, of course, generally within the discretion of the trial court. Here, however, we are satisfied that the proof offered was clearly within a reasonable time frame and should not have been rejected as irrelevant. In this connection we note that such proof need not show a racially disproportionate impact with mathematical nicety; its purpose is initially to premise a finding whether a prima facie case is made; such a finding does not decide the case and instead only places the burden on the defendant to justify the testing criteria in question. Vulcan Society of the New York City Fire Department v. Civil Service Commission of the City of New York, 490 F.2d 387, 393 (2d Cir.).
In the circumstances before us we feel rejection of the exhibits of these plaintiffs as irrelevant was error.
Second, plaintiffs argue the trial court erred in dismissing the 2 to 1 ratio as statistically insignificant because of the smallness of the sample and undermining of its significance by the testimony (Brief of Plaintiffs-Áppellants at 34). They are pointing to the Court’s conclusion that they failed to show that the promotional examinations caused a statistically significant discriminatory impact on Spanish-speaking/surnamed officers, and that “there was no showing that any other examinees were able to pass with equal or less preparations.” (R. 290).
We must disagree with the ultimate findings and conclusions of the trial court. The smallness of the sample should not be grounds here for rejecting the proof. If it were, the tendency would be to deny employees in small plants the type of protection the civil rights statutes afford. Moreover, here the inability to evaluate the test effects on a larger scale resulted in large part from the exclusion of the results of the several prior examinations. And, in any event, we feel the group tested was not too small to be evaluated as significant. See Brito v. Zia Co., 478 F.2d 1200, 1205 (10th Cir.).
Moreover, we note that although the court found that no prima facie case was made, it was observed that:
Defendants need to improve recruitment and promotion policies in order to alleviate the underrepresentation of the Spanish minority at all levels of the department (R. 291).-
In view of the facts concerning the small Chicano representation, as well as the errors which we are persuaded occurred, we are convinced we should set aside the findings and conclusions and remand for a new hearing and reconsideration.
There remains the trial court’s reference to the lack of a showing that “any other examinees were able to pass with equal or less preparation.” (R. 290), an apparent allusion to the testimony that outlines prepared by others, and not the text books, were studied by the Chicano officers.
We have noted no authority supporting the imposition of such a burden on the plaintiff. If the proof surrounding a test showed a lack of a good faith effort by minorities to pass, we do not say this factor should be ignored. But in this case we feel the burden imposed was unjustified in connection with a showing for a prima facie case. Our conclusion here is re-enforced when we recall the trial court’s unfavorable observations concerning the type of tests used:
The heavy reliance placed on the achievement type test seems inequitable and misplaced. It does not go far enough in showing performance, leadership and supervisory ability. (R. 291).
It seems illogical to say the type of test was improper and at the same time to hold the prima facie showing of plaintiffs was defective because they did not prove that any other examinees were able to pass such tests with equal or less preparation.
Other arguments are made by the parties but we need not discuss them. What we have said shows our reasons for concluding that errors in the standing determination on the entry level issue as well as in the treatment of the promotional level proof require a retrial. Accordingly, the findings, conclusions and judgment are vacated and the case is remanded for further proceedings.
On Petition for Rehearing
This matter comes on for consideration of the petition filed by defendants for rehearing together with a suggestion that there be a rehearing en banc.
Upon consideration whereof, we conclude that the rehearing should be denied and it is ordered denied. No judge having requested a poll on the suggestion for rehearing en banc, that suggestion is denied. Rule 35(b), Federal Rules of Appellate Procedure. Our reasons follow:
First, defendants argue that the opinion is at odds with Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343, saying that neither the Association nor the individual plaintiffs have shown injury to themselves sufficiently to meet the requirements of Warth, and that they may not assert the rights of third parties.
The opinion details the showing of standing we feel sufficient under Warth. We need only emphasize that there is an adequate showing, we feel, of a personal stake by the Association and individuals to challenge the hiring policies. Warth, supra at 499, 95 S.Ct. 2197. The Association, as indicated by the evidence, see note 1 of the opinion, seeks to encourage racial harmony and to discourage racism and discrimination. The underrepresentation of Chicanos on the police force, see notes 4 and 10 of the opinion, would have an obvious effect in restricting membership and resources available to the organization for furthering these purposes (Plaintiffs’ Exhibit 1; affidavit of Frank Chavez, R. Vol. I, 202, stipulated into evidence subject to objections, id. at 194). The. individuals make a similar showing of injury to themselves due to the effect of discrimination on the workforce. The proof was that restriction of Chieano employment by discriminatory entrance procedures weakened both the Association and individual efforts to change promotion policies (Affidavit of Frank Chavez, R. Vol. I, 202).
We are convinced that for standing purposes injury to the Association and individuals is sufficiently shown in connection with composition of the workforce, and the fact that specific harm occurs to third parties not hired does not deprive these plaintiffs of standing to vindicate their own rights. Warth, supra at 504-05, 95 S.Ct. 2197.
Second, defendants turn to the opinion’s treatment of the trial court’s ruling that a prkna case was not made to challenge the promotion level procedures. In part they challenge our holding that it was error for the trial court to exclude as irrelevant the proof concerning the prior examinations from 1966 to 1971 (Plaintiffs’ Exhibits 7-12).
Defendants say that reversal is not warranted because in addition to the relevancy objections, they made renewed objections raising the grounds of errors in tabulation, erroneous conclusions and authentication, citing record objections in Vol. VI, at 116 and 119. It is clear, however, that these other objections were directed to other exhibits, that is Exhibits 3 and 4, and not to the examinations in question (R. VI, 108,116,119).
Defendants argue also that even if the trial court erroneously excluded the exhibits as irrelevant, there were other tenable grounds for exclusion — lack of authentication, compilation errors, et cetera, so that the ruling should not be reversed, citing Hamling v. United States, 418 U.S. 87, 108 n. 10, 94 S.Ct. 2887, 41 L.Ed.2d 590, inter alia.
Without considering whether such rule would apply here, this record convinces us that rejection of all the proof of prior examinations cannot be sustained here. The trial court admitted, without objection, plaintiffs’ summary of the 1973 examinations, Exhibit 14, containing tabulations made apparently in the same way and by the same witness, Mr. Chavez (R. V, 63; VI, 144), whose tabulations for the other exhibits covering the prior examinations are challenged as inaccurate, et cetera. Exhibit 14 was apparently accepted and relied on by the trial court whose findings cite Chavez’ figures (R. I, 288). Thus it would be unfair here to say that the other grounds of objection to Exhibits 7-12 concerning the prior examinations — such as unreliability and the like — existed and 'were “tenable.”
The prior examinations were not mentioned in the findings or conclusions of the trial court and there was no express ruling on the relevancy objections made. The 1973 examination was discussed in detail. We are satisfied that the exhibits concerning the earlier examinations were excluded from consideration by the trial court as irrelevant, and that this is the only tenable ground to consider in the posture of this appeal. And regardless of whether the exhibits were excluded as irrelevant, or considered unreliable and wholly discounted, we are convinced we cannot sustain the failure to give any consideration to them.
. Throughout this opinion we will use the term “Chicano” to designate the racial minority of Spanish-speaking and Spanish surnamed Americans whom the suit concerns.
. Plaintiffs’ exhibit 1, a brochure of the Association, states that the Association’s aims include, inter alia:
STATEMENT OF PURPOSE
The Chicano Police Officers Association also known as the Concerned Police Officers Association is dedicated to the following principles and purposes:
* * * * * #
2. To achieve equal opportunity in recruitment, promotion, assignment, evaluation, and other areas within all Police Departments.
* * * * * #
6. To actively support the recruitment of personnel for police work in such a manner as to insure proportionate representation within the profession of all cultural and ethnic groups of the population of our community.
7. To encourage racial and ethnic harmony within the profession, as well as between the profession and the community and to discourage racism and discrimination.
* * * * * *
10. To expand our knowledge of the various cultures and heritages of other people and to educate other members of the police profession on our own culture.
. This makes inapposite the class action cases relied on by plaintiffs which support the “across the board” theory permitting one plaintiff to challenge all discriminatory practices of an employer. We do not reach this theory in our disposition.
. There is a substantial factual basis for the claim that discrimination exists at the entry level. The evidence of under-representation throughout the police force appears in Part III, infra. Additional evidence reflects a racial dis-proportionality in the results of entrance examinations administered by the defendants between 1971 and 1973. Based upon a large sampling of examinees, it appears that the pass rate among Spanish-sumamed Americans was approximately 43.2% for the years 1971 through 1973, while the non-Spanish-surnamed Americans passed at a 78.9% rate; a pass rate ratio of 1.83:1. (Exhibit 2; R. 328).
. Although not explicitly set out in the findings, the two to one pass rate ratio derived by the court is apparently the correct statistical comparison of the pass rate of non-minority examinees to the pass rate of the minority examinees. See Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333 at 1335, n.3 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); see also cases cited therein.
. There was no express ruling on the objection. However the trial court’s detailed findings treat only the latest promotional examinations given on June 2, 1973, and it is apparent that the court did not weigh the earlier examinations in its considerations.
On the further trial for which we are remanding, the trial court may, of course, consider authenticity or other objections timely made and the defendants may develop the weaknesses which they say exist as to the exhibits covering past years.
. We note that a compilation of prior test results was relied upon in Bridgeport Guardians, supra, 482 F.2d at 1335 (five years of entrance exams; twelve years of promotional exams were admitted, although for some reason the court did not compile the statistics on the promotional exams), see 354 F.Supp. 778 at 795; in Chance v. Board of Examiners, 330 F.Supp. 203 at 209 (S.D.N.Y.1971) aff’d, 458 F.2d 1167 (2d Cir. 1972) (“50 supervisory examinations given over the past few years.”); in Commonwealth of Pa. v. O’Neill, 348 F.Supp. 1084 at 1101 (E.D.Pa.1972) aff'd, 473 F.2d 1029 (3d Cir. 1973) (three written promotion exams given between 1968 and 1970); and in Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1973) modified sub nom. Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) (the court considered exam results from 1971, 1963, 1960, 1957 and 1956, 5 exams), see 359 F.Supp. at 1198-99.
. The trial court found that the examinations given on June 2, 1973, had not been given before and are not to be given in the future (R. 289).
. We assume that an employer would regularly change at least the specific questions on examinations to avoid them becoming simply a memory exercise to recall answers to available prior tests.
. There was some testimony that the Chicano group assigned reading of books to certain persons and relied on review of outlines prepared by them (R. 94 — 95, 158-59).
. The record in the present case reflects a statistical discrepancy between the Chicano population of Bernalillo County, and the Chicano representation in the Albuquerque Police Department. The Chicano population of Bernalillo County is approximately 39.2% (Exhibits 26, 27; R. 471, 472). The statistical breakdown of the Albuquerque Police Department as of August, 1973, based on testimony of plaintiffs’ witness is approximately as follows:
No. %
Chicano 86 21.4
Non-Chicano 316 78.6
Total 402 100.0
(Tr. 643). .
. Although the Chicano population of the county is approximately 39.2%, only 21.4% of the police force is Chicano. The malapportionment becomes more significant when the police force is broken down by rank. None of the police captains are Chicano; only 4.5% of the police lieutenants are Chicano; (i. e. one out of twenty-two); 18.3% of the police sergeants are Chicano; and 31% of the patrolmen are Chicano (Exh. 13, R. 398, Tr. 641). It is apparent that the representation of Chicano within the police department as a whole diminishes at the higher rank; that the bulk of the Chicanos are employed at the lower levels. At every level of the Department, however, the Chicano population of Bernalillo County is under-represented.
. Defendants also contend that we should presume that the exhibits were actually considered and discounted as unreliable. (See Petition for Rehearing, 13).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_othadmis
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
SCANDINAVIAN AIRLINES SYSTEM, Plaintiff-Appellant, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellee.
No. 76-1765.
United States Court of Appeals, Ninth Circuit.
July 24, 1979.
George N. Tompkins, Jr., Condon & For-syth, New York City (argued), Adams Du-que & Hazeltine, Los Angeles, Cal., for plaintiff-appellant.
Jacques Soiret, Los Angeles, Cal. (argued), Kirtland & Packard, Los Angeles, Cal., for defendant-appellee.
Keith Gerrard, John D. Dillow, Richard C. Coyle of Perkins, Coie, Stone, Olsen & Williams, amici curiae, for The Boeing Co., Lockheed Aircraft Corp., McDonnell Douglas Corp.
Before ANDERSON and HUG, Circuit Judges, and SOLOMON , Senior District Judge.
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.
HUG, Circuit Judge:
The central issue of this action is whether strict liability under California law is applicable when a large airline sues a manufacturer of an aircraft engine for a defect in the product that caused property damage to the engine itself and to the aircraft on which it was installed.
Scandinavian Airlines System brought this diversity action to recover for property damage resulting from the failure of two separate jet aircraft engines on two different occasions. The failure of these jet engines on each occasion caused damage to the engines' themselves and to the two DC-9 aircraft on which they were installed. Both engines were manufactured by United Aircraft Corporation. One engine, No. 181, was purchased by SAS directly from United. The other engine, No. 168, was installed on a DC-9 which was purchased from McDonnell Douglas Corporation by SAS. This action was brought against both McDonnell Douglas and United. A summary judgment was entered for McDonnell Douglas on the claims against it which was initially appealed by SAS, but subsequently dismissed on motion of SAS.
The complaint stated claims against United on theories of negligence, breach of express and implied warranties and on strict liability. On United’s motion for summary judgment on all claims, the trial court granted a partial summary judgment on the claims for relief based upon warranty and strict liability, but denied the motion as to the claim for relief based upon negligence. SAS has appealed this partial summary judgment pursuant to 28 U.S.C. § 1292(b), permission having been granted by this court. SAS does not contest the judgment on the warranty theory, but confines the argument on appeal to the judgment on the strict liability theory.
FACTS
SAS is a large, international air carrier which owns and operates a fleet of sophisticated jet aircraft. A part of that fleet consists of McDonnell Douglas DC-9 jets. The jet engines used to power SAS’s DC-9’s are manufactured by United. Extensive negotiations were conducted between SAS and McDonnell Douglas with respect to the purchase of the DC-9’s. The specifications that were negotiated included those relating to the thrust output of the United engines.
One engine, the thrust output of which was increased as a result of the negotiations between SAS and McDonnell Douglas, was a United JT8D-11, serial number 676168 (No. 168), that was sold to McDonnell Douglas for installation on a DC-9 which was subsequently sold to SAS. The engine was later removed by SAS from the aircraft on which it was originally installed, ultimately being reinstalled on another SAS DC-9. On September 8, 1971, that DC-9 was in the process of takeoff at Rheim/Main Airport near Frankfurt, Germany, when, during its initial takeoff roll, engine No. 168 experienced a failure of a first-stage fan blade, resulting in damage to the engine itself and to the aircraft fuselage. There were no injuries to any persons.
SAS purchased another JT8D-11 engine, serial number 676181 (No. 181), with the same specifications, directly from United, and routinely installed it on another DC-9. On June 30, 1972, at Arlanda Airport near Arlanda, Sweden, that engine also suffered a first-stage fan blade failure during a takeoff run, resulting in damage to the engine itself and to the aircraft fuselage. Again, there were no personal injuries.
The contracts between United and SAS and United and McDonnell Douglas each provided for certain limited warranties and each contained an exculpatory clause as follows:
The foregoing warranties are exclusive and are given and accepted in lieu of any and all other warranties, express or implied, including without limitation the implied warranty of merchantibility. The remedies of buyer for any breach of warranty shall be limited to those provided herein to the exclusion of any and all other remedies including, without limitation, incidental or consequential damages. No agreement varying or extending the foregoing warranties, remedies or this limitation will be binding upon UAI [Seller] unless in writing, signed by a duly authorized officer of UAI [Seller].
The trial judge found that the exculpatory clause precluded United’s liability based on the breach of an express or implied warranty, but did not preclude the claim based upon negligence. The summary judgment in favor of United, which precluded the strict liability claim for relief, was not based, however, upon any of the exculpatory provisions of the contracts. Rather, the trial judge found that the policy reasons for invoking the strict liability doctrine did not apply in this case.
DISCUSSION
Initially, we note that this case was brought as a diversity action; and, as such, the trial judge was required to look to state law for the appropriate rule of decision. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The applicable substantive law is that of California. Since there is no definitive adjudication by the California Supreme Court on a factually similar case, we seek to reach the resolution of the issue which that court would probably reach under the same facts. C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852, 856 (9th Cir. 1977). When the California Supreme Court has not spoken, California Courts of Appeal decisions are data for determining how the highest California court would rule. West v. A. T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). The analysis by the district judge of the law of the state in which he sits is entitled to great weight and his determination will be accepted on review, unless shown to be clearly wrong. C. R. Fedrick, Inc., 552 F.2d at 856.
Since we are reviewing a Rule 56 summary judgment, we are mindful that the granting of “[s]ummary judgment . is proper only where there is no genuine issue of any material fact or where reviewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law”. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543 (9th Cir. 1975). There is no question of fact involved in this summary judgment. We are concerned strictly with a question of law.
In holding that SAS could not proceed against United on the theory of strict liability, the trial judge stated:
We also hold that United Aircraft is not liable to SAS on a theory of strict liability in tort, not because of the exculpatory clause, but because of the lack of public policy for such a position. As mentioned above, public policy is designed to protect the small consumer and to allocate the risk of loss to the person most able to bear it, in that case, the manufacturer. Here, where there are two large companies contracting, it is only a question of who between two equals should be made to bear the risk of loss. We see no reason why the manufacturer should be made to bear the risk of loss without fault as between it and a large corporate buyer. It should be noted, again, that there has been no injury here.
In determining whether the California Supreme Court would reach the same result, it is necessary “to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted . .” by affirming the trial judge’s decision. Daly v. General Motors Corp., 20 Cal.3d 725, 736, 144 Cal.Rptr. 380, 386, 575 P.2d 1162, 1168 (1978). A reading of California Supreme Court decisions indicates that a number of policies, of varying importance, underlie the doctrine. The first California case to adopt strict tort liability was Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). There the court stated:
The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.
Id. 59 Cal.2d 63-64, 27 Cal.Rptr. at 701, 377 P.2d at 901.
The risk distribution principle was again relied upon in Seely v. White Motors Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), where the court stated that the rationale behind the doctrine
rests ... on the proposition that “[the] cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business”. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462, 150 P.2d 436 (concurring opinion).
Id. 63 Cal.2d at 18-19, 45 Cal.Rptr. at 23, 403 P.2d at 151.
In Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722 (1970), the court concluded that the risk distribution principle was the fundamental policy behind the doctrine, stating:
Essentially, the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.
Id. 2 Cal.3d at 251, 85 Cal.Rptr. at 181-182, 466 P.2d at 725-726.
The trial judge’s decision does not conflict with the risk distribution rationale in California products liability law. SAS and United are financial equals. Further, both are business entities who sell a product or perform a service which is ultimately paid for by SAS’s customers. As a result, “[w]hether the loss is thrust initially upon the manufacturer (United) or consumer (SAS), it is ultimately passed on as a cost of doing business included in the price of the products of one or the other and thus spread over a broad commercial stream”. Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 748, 127 Cal.Rptr. 838, 845 (1976). Unlike the consumers in Greenman, Seely and Price, SAS can allocate its risk of loss equally as well as United. Therefore, the societal interest in loss shifting present in those cases is absent here.
Although of less significance than the risk spreading rationale, several other policies have been identified as underlying the doctrine of strict products liability in California. The consumer’s difficulty in inspecting for defects has impliedly been stated as a reason for its application. Halliday v. Greene, 244 Cal.App.2d 482, 53 Cal.Rptr. 267 (1966). Another policy concerns the difficulty a consumer faces in trying to prove negligence. Cronin v. JBE Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, 1162 (1972). In Daly, 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, the court stated:
We imposed strict liability against the manufacturers and in favor of the user or consumer in order to relieve injured consumers “from problems of proof inherent in pursuing negligence . . and warranty . remedies, . . .” (citations omitted)
Id. 20 Cal.3d at 736, 144 Cal.Rptr. at 386, 575 P.2d at 1168.
Finally, “[t]he rule of products liability is further rationalized as an inducement to manufacturers to design and produce a safe product . . . , and as a means to avoid the artificial conditions to recovery in warranty created by the rules of privity”. Kaiser Steel Corp., 55 Cal.App.3d at 747, 127 Cal.Rptr. at 844.
Here, SAS had the expertise and personnel to inspect the engines for defects. SAS does not have the lack of technical knowledge and expertise which would burden members of the general public in proving negligence in designing or manufacturing the engines. SAS does not face problems of privity as an artificial barrier which the doctrine of strict liability seeks to avoid. Finally, the fact that United will still be liable to airline passengers for any injuries they receive as the result of defective United products will serve as a significant deterrent from manufacturing unsafe products.
The trial judge’s decision finds strong support in Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 127 Cal.Rptr. 838. There the California Court of Appeal stated:
. •. . [T]he doctrine of products liability does not apply as between parties who: (1) deal in a commercial setting; (2) from positions of relatively equal economic strength; (3) bargain the specifications of the product; and (4) negotiate concerning the risk of loss from defects in it. Southwest Forest Indus. v. Westinghouse Elec. Corp. (9th Cir. 1970), 422 F.2d 1013, cert. denied 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138.
Id. at 748, 127 Cal.Rptr. at 845.
Interpreting these four requirements as the court did in Kaiser leads us to the conclusion that SAS does not have a claim in strict tort liability against United. SAS, United and McDonnell Douglas dealt in a commercial setting from positions of relatively equal economic strength. The specifications of the engines were negotiated by the parties. Finally, McDonnell Douglas, United and SAS all negotiated the risk of loss for defects in the engines.
We find, therefore, that the trial judge was correct in his interpretation of California law and that the doctrine of strict liability is not available to SAS in this case.
Affirmed.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES ex rel. BECK v. NEELLY.
No. 10715.
United States Court of Appeals Seventh Circuit.
Feb. 20, 1953.
Rehearing Denied March 17, 1953.
Albert W. Dilling and Kirkpatrick W. Billing, Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anna R. Lavin, Assts. U. S. Atty., Chicago, Ill. (John M. McWhorter, Acting District Counsel Immigration & Naturalization Service, of Chicago, Ill., of counsel), for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
Petitioner, relator in a habeas corpus proceeding in the District Court, appeals from an order dismissing her petition.
The essential facts are undisputed. Petitioner, a citizen of Canada, entered the United States legally September 19, 1926, when some sixteen years of age. Three years later, she was brought before the United States immigration authorities in a deportation hearing, at which she was represented by counsel, and found deportable on the charge that she was an inmate of a house of prostitution. A warrant issued and petitioner left the country voluntarily on April 26, 1929. She reentered the same day without any legal permission so tó do.
A little over a year later, June 20, 1930, she was again brought before the immigration officials who found that she was de-portable because, at the time of her reentry following her first deportation, she had no immigration visa, was then likely to become a public charge, was a prostitute, had returned to the United States after having been deported, had reentered by means of false and misleading statements, without inspection, and was then a member of a class excluded by law. In pursuance of a warrant then issuing she was again deported on August 28, 1931.
About a month later, in September, 1931, she again entered the United States without a visa. Having been arrested on a warrant issued December 24, 1931, charging, among other things, that she had entered by means of false and misleading statements, at a hearing on February 23, 1932, she was found to be in the country illegally and again ordered deported April 5, 1932.
On September 23, 1931 petitioner had married a Cuban. Consequently, the Canadian government ruled that she was no longer a Canadian citizen, and refused to accept her as a deportee. The warrant of deportation could not be executed, as Canada persisted in its refusal to accept her until August 16, 1945.
In 1946 petitioner moved to reopen the proceeding on the ground that her admission of prostitution at the first hearing on March 12, 1929 had been secured by duress and coercion and that she had not then been represented by counsel. The motion to reopen was granted and the rehearing held on July 7, 15,.25, 31 and November 14, 1947, at all of which times she was represented by counsel of her own selection, except that on the last day, November 14, 1947 she waived counsel. At the conclusion of tlie hearing, the inspector found that she was an alien who had been arrested and deported in pursuance of law; that the Secretary of Labor had not granted her permission to reapply for admission; that she had reentered the United States, after having been deported as a prostitute, and that at the time of her entry she was not in possession of an immigration visa. She appealed to the Board of Immigration Appeals, which, on November 9, 1949, approved the finding and directed that she be deported to Canada.
The District Court, after hearing, entered an order denying petitioner’s motions to quash the warrant, found the issues in favor of respondent, dismissed the writ and remanded petitioner to the custody of respondent. Assuming arguendo, but not deciding that petitioner may collaterally attack the record of previous deportation proceedings we pass to the essential questions presented by petitioner, viz.: whether (1) there was a denial of fair hearing before the immigration authorities, (2) the latter’s findings were supported by adequate evidence, and (3). any erroneous rule of law was applied. A subordinate question presented is whether the hearing on which the warrant of deportation of December 9, 1949 is governed by the Administrative Procedure Act.
The then applicable Act, 8 U.S.C.A. § 155(a), provided that any alien who, after being deported as a prostitute, shall return to and enter the United States, shall, upon the warrant of the Attorney General, be taken into custody and deported; section 213(a), that no immigrant shall be admitted to the United States unless she has an unexpired immigration visa or comes within certain oilier exempt classes not pertinent in this case, and section 214, that any alien found in the United States not entitled to entry shall be taken into custody and deported. Section 155(a) also provided that in every case where a person is ordered deported from the United States, the decision of the Attorney General shall be final.
Under the statute the courts may not interfere with the administrative determination unless, upon the record, the proceedings were manifestly unfair or substantial evidence to support the finding is lacking, or error of law has been committed, or the evidence reflects manifest abuse of discretion. U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, 634. In other words, the findings of administrative officials in charge in such cases will be set aside by the court only upon proof of at least one of these situations. Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579, 581; Yep Suey Ning v. Berkshire, 9 Cir., 73 F.2d 745; Louie Lung Gooey v. Nagle, 9 Cir., 49 F.2d 1016, 1017; Taranto v. Haff, 10 Cir., 88 F.2d 85; U. S. ex rel. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; U. S. ex rel. Rennie v. Brooks, D.C., 284 F. 908.
With this rule in mind, we examine the evidence submitted upon the fairness of the hearings, including the original one of 1929. At that time petitioner was first questioned by the immigration inspector, in the absence of counsel. She stated that she had recently been arrested in Detroit, in a house of prostitution; that, while living there, she had had illicit relations with four or five different men; that she had had similar relations with men in Canada before coming to the United States, beginning when she was 14 years of age. Thereupon a warrant issued charging that she was in the country in violation of the law. A hearing was held on March 12, 1929, at which time she was represented by counsel of her own choice. A transcript of the statements she had previously made before the inspector was read to hér and she was asked if the statements were true. In the presence of her counsel, and without objection upon her part or that of her counsel, she replied that they were true and correct. Thereupon the transcript was received in evidence. Her testimony in the present proceeding is that the basis for issuance of the warrant consisted of false charges and that her testimony was given under duress. Inasmuch as it is undisputed that in her counsel’s presence at the original hearing she admitted the truth of the statements without objection by her or by her counsel, the trial court was amply justified in finding that the hearing was fair; that no erroneous application of the law was involved and that the administrative finding was justified and warranted the order of deportation.
True it is that at the time of the first interview with the inspector she was without counsel; but subsequently, at the hearing, she was represented by counsel and in his presence and, as we have seen, without objection, admitted the truth of what she had previously said, fully supporting the findings made. This is within^he case of Low Wah Suey v. Backus, 225 U.S. 460 at page 470, 32 S.Ct. 734, 736, 56 L.Ed. 1165, where the court said: “This objection, in substance, is that, under examination before the inspection officer, at first she had no counsel. Such an examination is within the authority of the statute, and it is not denied that at subsequent stages of the proceedings and before the hearing was closed or the orders were made she had the assistance and advice of counsel.’’ To the same effect are U. S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155-156, 44 S.Ct. 54, 68 L.Ed. 221, and Ung Bak Foon v. Prentis, 7 Cir., 227 F. 406, 409; United States ex rel. Di Battista v. Hughes, 3 Cir., 299 F. 99, 101 and 102.
Petitioner insists that the review was conducted in violation of the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. It should be observed, however, that that Act specifically exempts proceedings originating before it became effective, September 11, 1946. She insists further that the hearing before Inspector Friedman in 1947, when the Act was effective, was in violation of the Act. Section 12 of the Act provides that “no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement.” In Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 515, 96 L.Ed. 586, where the proceedings were instituted before September 11, 1946, the court said: “Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.” This language is decisive of.the issue before us, for here, as there, the proceedings had been instituted before September 11, 1946. Furthermore, if we should assume arguendo that there is merit to petitioner’s contention in this respect, she raised the objections too late. Thus, in United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36, 73 S.Ct. 67, 68, the court said: “We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative ag.ency be made while it has opportunity for correction in order to raise issues reviewable by the courts. * * * Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that 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.”
Upon a full review of all the evidence we find that there was adequate substantial evidence to support the findings in each of the deportation proceedings; that there was no misapplication of the law; that the hearings were fair and that petitioner has no just cause for complaint.
The judgment is affirmed.
. United States ex rel. Steffner v. Carmichael, 5 Cir., 183 F.2d 19; Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579; United States ex rel. Koehler v. Corsi, 2 Cir., 60 F.2d 123.
. Similar provisions appear in the present Act, 8 U.S.C.A. § 1101 et sequi. See sections 1182, 1251 and 1252.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_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 "unclear". Your task is to determine what subcategory of business best describes this litigant.
S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 72-1678.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1973.
Decided May 1, 1973.
Harry L. Brovvne, Kansas City, Mo., for petitioner.
M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent.
Before GIBSON, BRIGHT and ROSS, Circuit Judges.
GIBSON, Circuit Judge.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107.
The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract.
The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned.
Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971.
During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union.
Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it.
On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink.
Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink.
The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as:
“ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted).
Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order.
Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike.
In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause.
Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act.
Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced.
Enforcement denied.
. Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act.
“It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965).
See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
BIG RIVERS ELECTRIC CORPORATION et al., Petitioners, Commonwealth of Kentucky and Peabody Coal Company, Intervenors, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondent. TENNESSEE VALLEY AUTHORITY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train, Administrator, Respondents, Natural Resources Defense Counsel, Inc., Intervenor, Ed W. Hancock, Attorney General of the Commonwealth of Kentucky, Intervenor.
Nos. 74-2015, 74-2020.
United States Court of Appeals, Sixth Circuit.
Sept. 4, 1975.
Leslie Henry, Wilson W. Snyder, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, for petitioners in 74 — 2015.
Alan G. Kirk, II, Gen. Counsel, E. P. A., Thomas A. Pursley, III, Richard J. Denney, Jr., Charles W. Shipley, Pollution Control Section, U. S. Dept, of Justice, Washington, D. C., Ed W. Hancock, Atty. Gen., David D. Beals, Asst. Atty. Gen., Frankfort, Ky., Armistead W. Gilliam, Jr., Smith & Schnacke, Dayton, Ohio, Alfred V. J. Prather, J. William Doolittle, Prather, Levenberg, Seeger, Doolittle, Farmer & Ewing, Richard E. Ayres, Washington, D. C., for respondents and intervenors in both cases.
Thomas A. Pedersen, Robert H. Marquis, Gen. Counsel TV A, Beauchamp E. Brogan, Lynn G. Morehous, Knoxville, Tenn., for petitioner in 74 — 2020.
Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.
LIVELY, Circuit Judge.
The underlying question in this case is whether the Administrator of the Environmental Protection Agency (EPA) properly disapproved a state regulation promulgated under the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857a-j (Supp.1975), which would have authorized coal-burning plants (“sources” in the Act) to employ “alternate control strategies” for the control of air pollution by sulfur oxide gases without showing that constant emission controls of such pollutants are unavailable. Constant emission controls are achieved primarily by the installation of “scrubbers.” The alternate control method employed by the petitioners consists principally of the use of intermittent emission limitations systems. The separate petitions for review filed by the Tennessee Valley Authority (TVA) and several electrical utilities companies operating in Kentucky (the Utilities) were consolidated for hearing. At issue is the action of the Administrator in disapproving a portion of the Kentucky “Implementation Plan for the Attainment and Maintenance of the National and State Ambient Air Quality Standards” (Kentucky Plan). The portion which was disapproved provided as follows:
Where it is demonstrated to the satisfaction of the [Kentucky Air Pollution Control] Commission that an air contaminant source can apply an alternate control strategy which will provide for achievement and maintenance of applicable ambient air quality standards, the Commission may, under such terms and conditions as it deems appropriate, authorize such a control strategy after a public hearing. Ky. Air Pollution Control Reg. No. AP — 1, § l(l)(b).
Original EPA approval of the entire Kentucky Plan was vacated by this court for failure to adhere to the requirements of the Administrative Procedure Act. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973). Subsequently the Kentucky Plan, with the exception of Section l(l)(b), supra, was approved on August 9, 1974. The Acting Administrator of EPA stated with reference to Section l(l)(b), his opinion “that this provision of the Kentucky plan — if not specifically disapproved — could be construed to permit intermittent control measures under circumstances where constant emission controls were available.” To eliminate the possibility of such an interpretation the section was specifically disapproved for failure to meet the requirements of controlling federal regulations.
The Utilities and TVA maintain that EPA’s disapproval of the quoted provision of the Kentucky Plan will prevent them from meeting the established air quality standards by use of “intermittent emission limitation” systems which are much less costly than scrubbers. The petitioners argue that the purpose of the Clean Air Act is to establish national standards of air quality within a scheme of dual responsibility which leaves to the States the task of formulating actual emission standards. They maintain that Congress has made air pollution control a partnership venture in which EPA sets standards and each State determines the methods best suited for reaching those standards within its geographical boundaries. Thus they argue that the Administrator has exceeded his statutory authority in disapproving a portion of the Kentucky Plan dealing only with a permissible method of controlling air quality while finding that the Plan otherwise met the national standards. In the alternative they contend that even if the Administrator possessed such power, his action in disapproving the Kentucky provision for an alternate strategy was arbitrary and constituted an abuse of discretion.
Jurisdiction
Though the question has not been raised by any of the parties there is an issue with respect to the court’s jurisdiction to consider these petitions. Judicial review of actions of the Administrator is provided for in Section 307 of the Act, 42 U.S.C. § 1857h — 5(b)(1) as follows:
A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c — 5 of this title may be filed only in the United States Couryof Appeals for the appropriate circuit.
There is no statutory provision for review of an action disapproving a plan or a portion thereof because disapproval is not a final administrative action. Utah International, Inc. v. EPA, 478 F.2d 126 (10th Cir. 1973). However, all parties including the Administrator have treated his action as a final approval of the Kentucky Plan with the disapproved portion eliminated, and we treat the proceedings as a petition for review of the approval of the Plan.
The Mootness Issue
The Commonwealth of Kentucky, by its Attorney General, has been permitted to intervene in these proceedings, and has made a motion to dismiss them as moot. EPA has also filed a motion to dismiss on the same ground. The Kentucky General Assembly in 1974 required administrative agencies of the Commonwealth, including the Department for Natural Resources and Environmental Protection (the Department), to file all their regulations by July 1, 1975. On March 1, 1975, the Department caused its proposed regulations to be printed in the Administrative Register, the official compilation of such regulations. On July 2, 1975, final review of the regulations took place and the new regulations became effective as of June 6, 1975. The current air pollution control regulations do not contain the language of Section l(l)(b) of the former regulation or any equivalent provision which would permit approval by the Department of alternate control strategies. Thus it is argued that there is no case or controversy to be decided since the questioned regulation is no longer in force.
The jurisdiction of federal courts is limited by Article III of the Constitution to consideration of actual cases and controversies. Thus federal courts do not render advisory opinions or continue to consider an action if the controversy which underlies the action ceases to exist prior to its termination. See United States v. Hamburg-American Co., 239 U.S. 466, 475-76, 36 S.Ct. 212, 60 L.Ed. 387 (1916); California v. San Pablo & Tulare R.R., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893). For more recent Supreme Court pronouncements on the general doctrine of mootness, see Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).
The mootness doctrine has limited application in at least two related types of cases. One type is specifically concerned with administrative orders. This limitation was first enunciated in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), which involved preferential freight rates. The terminal company instituted an action to challenge an order of the ICC which prohibited the granting of such preferences. The order expired before the case reached the Supreme Court, and the ICC argued that the case had become moot. The Court held otherwise, stating — “The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review . . . . .” Id. at 515, 31 S.Ct. at 283. This is a proper case for application of the Southern Pacific Terminal doctrine since it concerns an order which is clearly capable of repetition, but which would evade review if the principle of mootness were strictly applied.
The other class of cases which requires relaxation of the mootness principle consists of those in which persons other than the parties to the action have a tangible interest or are likely to be directly affected by the outcome of the litigation. Cases which involve public interest, or rights of the public generally, are not necessarily rendered moot by an act which puts an end to the particular controversies which precipitated them. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). The fact that one party to whom an administrative order is directed elects to comply with it should not deprive others who claim to be adversely affected by the order from contesting it. Cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The public interest in determination of the question in this case is obvious. There is a subsisting controversy between the petitioners and EPA over the authority of the Administrator of that agency. The action of the Kentucky Department in no way answered the questions which this case raises concerning the Administrator’s authority.
The motions to dismiss for mootness are denied.
The Merits
The history of the Clean Air Act Amendments of 1970 (the Act) and its scheme for achieving and maintaining air quality through joint state-federal action are clearly described in Buckeye Power, Inc. v. EPA, supra, 481 F.2d at 165-66, and Natural Resources Defense Council, Inc. v. EPA, 489 F.2d 390, 394-96 (5th Cir. 1974), rev’d on other issues sub nom., Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). The dual (state-federal) approach of the Act is basic to its structure, and this case requires a delineation of certain areas of authority reserved to each governmental partner. The contention of petitioners that the scheme of the Act limits the role of EPA to that of setting primary and secondary ambient air quality standards and leaves to the States the selection of the means of attaining and maintaining these standards is an oversimplification.
Involved in this case is Section 110(a)(2) of the Act, 42 U.S.C. § 1857c-5(a)(2), by which the Administrator is required to approve or disapprove each plan or portion thereof within four months after the date required for submission by the States, approving the plan “if he determines that it was adopted after reasonable notice and hearing” and that
(B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls; .
The respondents and the intervenor, Natural Resources Defense Council, Inc. (NRDC), argue that the Administrator is not required to approve a plan which does not include emission limitations, and that an alternate control strategy which is based upon intermittent emission control measures does not meet this requirement. Such practices are said to merely disperse the pollutants emitted from sources without reducing the amounts. Thus, these parties construe the language of Section 110(a)(2)(B) to mean that a plan must require each source of pollution to apply continuous limitations to the amount of sulfur dioxide which it emits. (Though the limitations requirement applies to several contaminants, the present case is concerned with sulfur dioxide.) The alternate control strategy advocated by petitioners would permit a source to restrict its emissions by switching to low sulfur fuel or reducing operations at the source only during those periods when atmospheric conditions and existing pollution levels dictate a need for a specific source emission reduction. Implementation of the alternative strategy would depend on the aggregate of pollution in a given area rather than the emission from any particular source.
The Fifth Circuit dealt with the same basic issue in NRDC v. EPA, supra, which involved a provision of the Georgia Plan that permitted amounts of particulates and sulfur dioxide emissions to depend on the heights of smokestacks at the sources. The court held that this “tall stack” approach was in conflict with Section 110(a)(2)(B) of the Act since it resulted in the enhancement of dispersion of pollutants rather than limitation of their emission. Adopting the “broad approach” interpretation of Section 110(a)(2)(B), the court concluded that the Act established a policy of “nondegradation” of the atmosphere and that “[t]he only techniques fully capable of guaranteeing nondegradation are emission limitation techniques.” 489 F.2d at 409.
The petitioners argue that the alternate control strategy which they would employ if the disapproved portion of the Kentucky Plan were reinstated would in fact be “emission limitations.” It is their position that the intermittent control system provides a “flexible” emission limitation which restricts the amounts of pollutants emitted when atmospheric conditions require it. Thus, they contend that a system which restricts emissions of pollutants in any degree, if included in a plan, would qualify that plan for approval if the other conditions of Section 110 were met. Furthermore, the petitioners point out that Section 110(a)(2)(B), in addition to requiring that a plan include emission limitations, also requires the inclusion of “such other measures as may be necessary to insure attainment and maintenance” of air quality standards. It is contended that “such other measures” refers to alternate control strategies.
The respondent and intervenor NRDC rely on the Fifth Circuit’s answer to these arguments. That court held that the Act mandates the use of techniques for emission reduction, and that the use of other measures is permitted only when “necessary” in the sense that it is shown that emission reduction techniques are “unavailable or infeasible.” 489 F.2d at 410. A plan which would permit unlimited emission of pollutants into existing clean air and require limitation only when emissions would cause air quality at the location of the particular polluting source to fall below prescribed standards would conflict with the congressional policy of nondegradation under the Fifth Circuit’s interpretation of the Act.
On appeal to the Supreme Court, consideration of the Georgia Plan was limited to the question of whether variances were to be treated as “revisions” of the plan under Section 110(a)(3) or “postponements” under Section 110(f). Train v. NRDC, supra, 421 U.S. at 88-90, 95 S.Ct. 1470. The “tall stack” ruling was not appealed. Nevertheless, the Court traced the history of national clean air legislation and concluded that “the heart of the 1970 Amendments” is the requirement of Section 110(a)(2)(A) that each state plan provide for attainment, within three years of its approval, “of the national primary ambient air quality standards in the particular State.” Id. at 66, 95 S.Ct. at 1476. After noting the requirement of Section 110(a)(2)(B) that a plan include “emission limitations, schedules, and timetables for compliance with such limitations,” the opinion further noted that under the statute “it [a State plan] must also contain such other measures as may be necessary to insure both timely attainment and subsequent maintenance of national ambient air standards.” Id. at 67, 95 S.Ct. at 1476 (emphasis added). It is clear from this language that other measures may not be substituted for emission limitations, but may only be provided in addition thereto.
Thus the question in this case is whether the emission limitations requirement of Section 110(a)(2)(B) was satisfied by the Kentucky Plan in view of its provision permitting an air contaminant source to apply an alternate control strategy. If the requirement was satisfied, the Administrator was required to approve the Plan as submitted. In Train v. NRDC, the Supreme Court provided a definition of “emission limitations” as follows:
As we have already noted, primary ambient air standards deal with the quality of outdoor air, and are fixed on a nationwide basis at levels which the Agency determines will protect the public health. It is attainment and maintenance of these national standards which § 110(a)(2)(A) requires that state plans provide. In complying with this requirement a State’s plan must include “emission limitations,” which are regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. Id. at 78, 95 S.Ct. at 1481.
The key word in this definition is “composition.” The pertinent definition of “composition” in Webster’s Third New International Dictionary appears to be “the nature of a chemical compound or mixture as regards the kind and amounts of its constituents . . . .” Under this definition a rule or regulation pertaining to sulfur dioxide or any other contaminant, would qualify as an emission limitation only if it regulates the amount of that kind of material which may be included in the emission from a given source.
The petitioners contend that the use of the word “composition” by the Supreme Court was unfortunate, but that the opinion in Train v. NRDC otherwise fully supports their position. They rely particularly on the following language:
The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. Under § 110(a)(2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section’s other general requirements. The Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. § 110(c). Thus, so long as the ultimate effect of a State’s choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. 421 U.S. at 79, 95 S.Ct. at 1481.
We cannot assume that the word “composition” was imprecisely used. The language quoted above follows the Court’s definition of emission limitations and must be read in the light of it.
No plan satisfies the requirement of Section 110(a)(2)(B) which might be construed to permit a source of pollutant emissions to continue operating beyond the time limit established in Section 110(a)(2)(A) without the application of one or more systems which control the “kind and amounts” of its air contaminant emissions. The Administrator determined that the provision of the Kentucky Plan which he disapproved was susceptible of a construction which would permit state approval of measures not within the definition of “emission limitations” without a showing that measures which satisfy that definition were unavailable. We find that the Administrator acted within the scope of his authority, that his decision was not arbitrary and did not constitute an abuse of discretion.
The first purpose of the 1955 Clean Air Act was stated to be “to protect and enhance the quality of the Nation’s air resources . . . .” 42 U.S.C. § 1857(b)(1). As the Supreme Court pointed out in Train v. NRDC the states responded slowly to expressions of congressional concern about air pollution between 1955 and 1970, and “Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970 . . . .” 421 U.S. at 64, 95 S.Ct. at 1474. The national policy is to reduce air pollution. Under the dual scheme, the freedom of the States to choose the manner of achieving this goal was made subject to the absolute requirement that every state plan include emission limitations as an ingredient. Nothing in the legislative history of the Act suggests that the Administrator has misinterpreted the congressional will in his construction of Section 110(a)(2)(B). As the Supreme Court noted in Train v. NRDC, interpretations of this complex statute by the agency charged with administering it are entitled to great deference. Udall v. Tallman, 380 U.S. 1, 16— 18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); McLaren v. Fleischer, 256 U.S. 477, 480— 81, 41 S.Ct. 577, 65 L.Ed. 1052 (1921). This court finds no reason to substitute its judgment for that of EPA in construing the Act.
The petitions for review are denied.
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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