task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
songer_usc2
|
21
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 47. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee, v. Sam GARAFOLO, Defendant-Appellant.
No. 15813.
United States Court of Appeals Seventh Circuit.
Oct. 11, 1967.
Rehearing Denied Nov. 1, 1967.
Opinion Vacated Jan. 29, 1968.
See 88 S.Ct. 841.
Schnackenberg, Circuit Judge, dissented.
Jerome Rotenberg, Chicago, 111., for appellant.
Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, 111., for appellee, Gerald M. Werksman, Michael B. Nash, Asst. U. S. Attys., of counsel.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and ENOCH, Circuit Judges.
HASTINGS, Chief Judge.
Sam Garafolo appeals from a judgment of conviction and sentence of ten years, following a trial by jury, for violations of the federal narcotics laws.
He was found guilty on five counts of the possession of narcotics in violation of § 174, Title 21 U.S.C.A., and on five counts for the sale of narcotics in violation of § 4705(a), Title 26 U.S.C.A. He was found not guilty of conspiracy as charged in Count XI of the indictment. The other three defendants were found not guilty by the jury as to all counts in which they were named.
No question is raised on this appeal as to the sufficiency of the evidence to support the convictions.
Appellant charges five procedural or trial errors as the basis for a reversal of the convictions below.
The indictment charges that on five dates in late 1963 and early 1964 appellant possessed and sold heroin to one Ted Haney. A brief summary of the evidence follows.
Haney was a principal Government witness at the trial. He testified he was arrested for selling narcotics on October 31, 1963, and was taken to the office of the Narcotics Bureau in Chicago. While at the office he made a telephone call to appellant at the Web Tavern in Chicago, where appellant was employed, while Narcotics Agents Vernon Meyer and Clarence Cook listened on an extension telephone, in view of Haney. Appellant answered the phone and Haney arranged to meet him at the Web Tavern that evening on a business transaction. Haney was accompanied by Agent Cook to the meeting with appellant. After appellant served Haney at the bar, Haney told appellant he had $700 for “stuff.” Appellant then gave Haney a brown manila envelope, in exchange for the money, and Haney left the tavern with Agent Cook. The contents of the envelope were tested and found to be heroin.
Haney testified that on each of four subsequent dates he made a telephone call from his home to appellant at the Web Tavern, while Agent Cook listened on an extension phone, in view of Haney. On each occasion he arranged to meet appellant at the tavern. He then went to the tavern in the company of Agent Cook, entered the tavern, gave appellant funds furnished by the Narcotics Bureau, and received a package, which he turned over to narcotics agents after leaving the tavern. The contents of the packages were tested and found to be heroin.
Narcotics Agent Meyer testified he monitored the call Haney made to appellant from the office of the Narcotics Bureau on October 31, 1963. Meyer corroborated Haney’s testimony concerning his conversation with appellant. He also testified to his observations from outside the Web Tavern on the occasions of the five sales of heroin covered by the indictment.
Agent Cook testified he monitored four telephone calls made by Haney from Haney’s home to appellant at the Web Tavern. He used an extension telephone, in view of Haney. He corroborated Haney’s account of those conversations, and testified concerning the transactions between Haney and appellant in the Web Tavern on October 31, 1963.
Other narcotics agents testified to their observations inside and outside the Web Tavern on the occasions of the five sales of heroin. According to their testimony, Haney entered the tavern on the dates of the last four sales charged in the indictment and gave appellant money in exchange for an envelope or package. Their descriptions of the envelope or package matched the descriptions given by Haney.
Appellant’s chief contention is that the trial court erred in refusing to give a tendered instruction that the jury could consider witness Haney’s prior conviction of a felony in determining his credibility. The trial court instructed the jury that evidence of a defendant’s prior felony conviction could be considered only insofar as it might affect his credibility, and also instructed the jury that they should take into consideration the prior inconsistent statements of a witness in determining the credibility of the witness. Appellant argues that the giving of these specific instructions and the omission of a specific instruction on the effect of a prior felony conviction on a witness’ credibility might have given rise to an implication that the jury should disregard witness Haney’s felony conviction in determining his credibility.
Appellant has not shown prejudice resulting from the trial court’s refusal to give the requested instruction. Early in its direct examination of Haney, the Government brought out his 1933 murder conviction. The fact of Haney’s conviction was before the jury during his testimony. Although the trial court did not specifically call the conviction to the jury’s attention, it gave the following broad, general instruction on the determination of credibility:
“It is your province to determine the credibility of the witnesses and the weight to be given to their testimony. In weighing the testimony of each witness, you should consider his relationship to the government or to the defendant, the witness’ interest, if any, in the outcome of the case, his manner of testifying, his candor, his fairness and intelligence and the extent to which he has been corroborated or contradicted, if at all, by other credible evidence, and if you believe that a witness willfully has sworn falsely to a material fact, you may disregard his testimony in part or in whole except insofar as it may have been corroborated by other credible evidence.”
******
“You should consider all of the facts and circumstances in determining what credence to give to the testimony of each witness.”
This instruction negated any implication that might have arisen from the omission of the requested specific instruction. The fact that Haney was a convicted murderer was one likely to have a strong impact on the minds of jurors, not one likely to be overlooked if not specifically called to their attention by an instruction. The effect of evidence of a witness’ prior conviction is distinguishable from that of a defendant’s prior conviction. If the latter is admitted an instruction is required to limit the jury’s consideration of the evidence to the issue of the defendant’s credibility as a witness, and to prevent consideration of the prior conviction in determining his guilt. A witness’ prior conviction has a natural tendency to reflect on his veracity, and that tendency does not require the reinforcement of a specific instruction.
This court held in Ruvel v. United States, 7 Cir., 12 F.2d 264 (1926), that the giving of an instruction on a witness’ prior conviction rests in the sound discretion of the trial court:
“We do not understand that any [duty to give an instruction on impeachment by prior conviction] rests on the court. In his sound discretion he should charge the jury on the subject of the credibility of witnesses. This was done in charging them that they are the sole judges of the credibility of witnesses, whose interest or bias should be taken into consideration, and that the jury should apply all tests which their common sense tells them should be applied in determining the weight of evidence. The court is not required to call attention to specific facts which may discredit witnesses, with possible exception, perhaps, of the cautionary charge as to accomplices, which is and ought usually to be given, and which was here fully given with respect to Mills.” Id. at 265.
See also, United States v. Inciso, 7 Cir., 292 F.2d 374, 381 (1961), cert. den., 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135 (1961); United States v. Sorcey, 7 Cir., 151 F.2d 899, 901 (1945), cert. den., 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021 (1946); Wainer v. United States, 7 Cir., 82 F.2d 305, 308 (1936). The instructions given in this case satisfy the Ruvel criteria. They inform the jury that theirs is the province to determine credibility, and that they should consider all of the facts and circumstances in determining credibility.
The District of Columbia Circuit recently considered an appeal involving this issue. The appellant had been convicted of violating various narcotics statutes. He argued on appeal that the trial court committed reversible error by refusing to give an instruction that the testimony of a police informer with prior narcotics convictions should be considered cautiously. In a per curiam opinion, the court affirmed:
“First we note that the jury was fully advised of the informant’s criminal record and drug addiction, and the jury was instructed that it was the sole judge of the credibility and weight to be given to each witnesses’ testimony. Here the police informant’s testimony was corroborated by other eyewitness testimony, and in these circumstances the refusal of the court to give a requested cautionary instruction is not reversible error. The trial judge is not an automaton mechanically required in all cases to give cautionary instructions such as those requested even though, as we have said, generally the trial court would be ‘well advised’ to do so and would have been on sounder ground had it given the cautionary instruction here. Some discretion rests in the judge, however, .and we cannot view his action in this case as an abuse of discretion warranting reversal.” Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233, 234 (1964), reh. den. en banc, 343 F.2d 235 (1964), cert. den., 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276 (1965).
All of Haney’s testimony relating to the telephone conversations with appellant and the purchases of heroin at the Web Tavern was corroborated by at least one narcotics agent who testified. Agents Meyer or Cook monitored each of the telephone conversations described by Haney and testified to their content. At the time of each purchase of heroin described by Haney, narcotics agents were conducting surveillance both inside and outside the Web Tavern. These agents testimonially confirmed Haney’s account •of the purchases.
Assuming, arguendo, that failure to give the requested instruction was error, it was harmless error. In a criminal case the test is “what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong in the minds of other men, not on own’s own, in the total setting.” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946).
In the total setting of this case it is unlikely that the court’s refusal to give the requested instruction had a substantial •effect on the jury and affected the outcome of the case. As noted, Haney’s prior conviction was before the jury, his •testimony was corroborated, and the jury was instructed to consider “all of the facts and circumstances,” as well as his role as a Government informant.
Moreover, the evidence of appellant’s guilt is overwhelming and its sufficiency is not herein challenged. Disregarding Haney’s testimony, there is evidence that on five occasions appellant arranged meetings with Haney and sold heroin to Haney.
Appellant contends the trial court erred in admitting the agents’ testimony concerning Haney’s telephone conversations with appellant, which they overheard by means of an extension telephone. Appellant argues that evidence of the conversations was inadmissible because obtained in violation of § 605, Title 47 U.S.C.A. Section 605 provides in part that:
“[N]o person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * *
Evidence obtained in violation of § 605 is not admissible in a federal court. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937).
Appellant’s argument falls short. A careful reading of the relevant record clearly demonstrates that no objection was made during the trial to the admissibility of the conversations on the grounds of a violation of § 605. This section of the statute was never mentioned.
Although appellant objected to questions asked of Agents Cook and Meyer in other respects, the § 605 question is raised here for the first time on appeal.
Further, it is apparent from the record that the trial court was probably unaware of § 605. When the court asked whether there was a requirement of permission to intercept a telephone conversation, counsel for all defendants remained silent.
An error not raised in the trial court may not be raised for the first time on appeal. United States v. DiFronzo, 7 Cir., 345 F.2d 383 (1965), cert. den., 382. U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 74 (1965), reh. den., 384 U.S. 982, 86 S.Ct. 1856, 16 L.Ed.2d 693 (1966); Holmes v. United States, 7 Cir., 323 F.2d 430 (1963), cert. den., 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 652 (1964); United States v. Sferas, 7 Cir., 210 F.2d 69 (1954).
Defendants’ general objections and specific objections on other grounds to the admission of the agents’ testimony concerning the telephone conversations did not preserve the § 605 issue on appeal. See On Lee v. United States, 343 U.S. 747, 749-750, n. 3, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), reh. den., 344 U.S. 848, 73 S.Ct. 5, 96 L.Ed. 1270 (1952); United States v. Bender, 7 Cir, 218 F.2d 869 (1955), cert. den, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955); United States v. Furlong, 7 Cir, 194 F.2d 1 (1952), cert. den, 343 U.S. 950, 72 S.Ct. 1042, 96 L.Ed. 1352 (1952). The exception to this general rule of nonreviewability is the “plain error” doctrine provided in Rule 52(b) of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A. Here, the record reveals no plain error in the ruling of the trial court now challenged.
Appellant argues that even if no proper objection were made, the Government was required to establish the consent of one of the parties to the conversations before examining the witnesses about the contents of the conversations. On the contrary, the burden is on the party opposing the admission of the evidence to establish that the communication was intercepted in violation of § 605. Nardone v. United States, 308 U.S. 338, 339, 60 S.Ct. 266, 84 L.Ed. 307 (1939); United States v. Campbell, 7 Cir, 337 F.2d 396 (1964), cert. den, 379 U.S. 983, 85 S.Ct. 694, 13 L.Ed.2d 573 (1965). If one of the parties consents to the monitoring of the communication, there is no “interception” and evidence of the contents of the communication is admissible. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), reh. den, 355 U.S. 925, 78 S.Ct. 363, 2 L.Ed.2d 355 (1958), but the consent must be voluntary, Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L. Ed. 298 (1939). In Weiss, evidence of the intercepted communication was excluded because the requisite consent was obtained by means of a promise of leniency to certain defendants who had been parties to the communication. In Weiss, there was no knowledge of or consent to the interception, and the consent to divulgence was obtained by means of promised leniency. Here, every fair inference to be drawn establishes that Haney consented to the monitoring of his calls to appellant. There is nothing in the record to indicate that threats or promises were used to obtain his cooperation and consent.
Appellant further contends the trial court erred in preventing him from cross-examining the witness Haney concerning his residence. Appellant relies on Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In Alford, the defendant was not permitted to cross-examine a Government witness about his residence. The Supreme Court reversed defendant’s conviction on the ground that the defendant should have been permitted to probe the witness’ background as a possible aid to impeachment:
“Cross-examination of a witness is a matter of right * * *. Its permissible purposes, among others, are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood * * *; that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment * * *; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased * * Id. at 691-692, 51 S.Ct. at 219 (citations omitted.)
In the instant case, Haney was not permitted to testify concerning' Ms address at the time of trial, but was permitted to testify that his address at the time of the first heroin purchase from appellant was 7104 Union Street, Chicago, Illinois. Agent Cook testified that after the third, fourth, and fifth purchases from appellant, he drove Haney to 71st and Union Streets; from this it could reasonably be inferred that Haney’s residence continued at the Union Street address. Other aspects of Haney’s background, including his prior murder conviction, his prior arrest for carring a gun without a permit, his employment record, and his arrest for sale of narcotics shortly before he began cooperating with narcotics agents, were brought out on direct and cross-examination. Defense counsel were permitted to inquire whether Haney received compensation from the Government, whether he had used an alias, and whether he had been promised leniency in return for his cooperation. In light of the wide latitude allowed on cross-examination, the trial court’s refusal to permit cross-examination concerning Haney’s residence at the time of trial was not prejudicial error. Haney was sufficiently identified with his community to enable appellant to investigate his reputation for truth and veracity in that community. His personal character was deeply probed by defense counsel.
Appellant contends that the trial court erred in permitting Narcotics Agent Meyer, who was the Government’s third witness, to remain at Government counsel’s table, after excluding all other witnesses on defendants’ motion. When the Government asked for an exception to permit Agent Meyer to remain in the courtroom, a long colloquy ensued between the trial court and counsel, during which the court repeatedly indicated it would grant the exception in favor of Agent Meyer, but recommended to Government counsel that he not insist upon the exception, unless necessary. Appellant seizes upon the court’s remarks as evidence that it abused its discretion by failing to exercise it.
It is well-established that the exclusion of witnesses is within the sound discretion of the trial court, and failure to exclude witnesses does not constitute error unless there is a clear abuse of discretion. United States v. Eley, 7 Cir., 314 F.2d 127 (1963); United States v. Cephas, 7 Cir., 263 F.2d 518 (1959); Powell v. United States, 6 Cir., 208 F.2d 618 (1953), cert. den., 347 U.S. 961, 74 S.Ct. 710, 98 L.Ed. 1104 (1954), reh. den., 347 U.S. 979, 74 S.Ct. 789, 98 L.Ed. 1118 (1946). Contrary to appellant’s argument, the trial court exercised its discretion by determining to follow the rule excepting an investigative officer from the order excluding witnesses. There is no substance to this contention.
As a final ground for reversal the appellant argues the trial court erred in replacing a juror with an alternate juror without a hearing at which appellant was present. Rule 24(c) of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A., provides that “[alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Appellant argues that Rule 43, which provides that “the defendant shall be present * * * at every stage of the trial including the impaneling of the jury * * requires that the determination of a juror’s disqualification or inability to perform be made in an open hearing. The same issue was recently presented to the Second Circuit in United States v. Houlihan, 2 Cir., 332 F.2d 8 (1964); cert. den., 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964). The court found no error:
“Although every effort should be made to afford such an opportunity, we do not think that failure to do so in a case such as this presents grounds for reversal. Situations may sometimes arise when a respect for the rights of jurors will require the judge to take immediate action without consulting counsel — e.g., if a juror is taken so ill that he cannot come to court or has a family emergency requiring him to leave during the night or over a weekend. We hold that no error was committed by the trial judge in excusing the juror prior to the arrival of defendants and their counsel.” Id. at 13.
Here the record indicates that the replaced juror failed to report on March 16, 1966, when the trial resumed after an adjournment of one day. The trial court informed counsel that the juror had, not recovered from a virus and that it had replaced her with the alternate juror. Appellant made no objection and the trial continued. The juror’s illness was an emergency justifying the trial judge in acting summarily. Such summary action does not constitute error in the absence of a showing of prejudice. United States v. Ellenbogen, 2 Cir., 365 F.2d 982 (1966), cert. den., 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967); United States v. Houlihan, supra. Appellant has shown no prejudice. Counsel were well aware of the regular juror’s illness, as her illness required the court to recess twice and adjourn early on the afternoon of March 14. There is no merit to this contention.
Finding no prejudicial error, the judgment of conviction appealed from is affirmed.
Affirmed.
. The refused tendered instruction reads:
“You are instructed that Ted Haney is an informer for the Bureau of Narcotics. The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by his interest or his prejudice against the defendant.
“You are further instructed that the evidence shows that the informer, Ted Haney, has been convicted of a felony. The testimony of a witness may be discredited or impeached by showing that he has been convicted of a felony. As such, his testimony must be carefully examined and weighed with great care.”
. It should be noted that in the refused tendered instruction (fn. 1) the concluding emphasis is that such “testimony must be carefully examined and weighed with great care.” The trial court did exactly that in an instruction it gave on Haney’s role as a Government informant:
“If you find from the evidence that Ted Haney is an informant of the Federal Bureau of Narcotics, you may consider the principle that the testimony of an informer who provides evidence against the defendant or for immunity from punishment or personal advantage or vindication must be examined and weighed by you with greater care than the testimony of an ordinary witness. As such, his testimony must he carefully examined and weighed with great care." (Emphasis supplied.)
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 47. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Julio DINIERO, Plaintiff-Appellee, v. UNITED STATES LINES COMPANY, Defendant-Appellant.
No. 171, Docket 26463.
United States Court of Appeals Second Circuit.
Argued Jan. 17, 1961.
Decided March 28, 1961.
Edward J. Malament, New York City (Lee Pressman and Standard, Weisberg, Harolds & Mialament, New York City on the brief), for plaintiff-appellee.
Joseph M. Cunningham, New York City (Joseph P. Ritorto and Kirlin, Campbell & Keating, New York City on the brief), for defendant-appellant.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
MEDINA, Circuit Judge.
Between April 6, and September 30, 1954, Julio Diniero, a Junior Third Assistant Engineer aboard the S. S. Pioneer Land, owned by United States Lines Company, claimed to have suffered such repeated strains in his back in the performance of his duties as to cause a ruptured disc with resultant pain and suffering, culminating some years later in a fusion operation and the removal of the disc. According to Diniero’s testimony, there was a blow-down valve located below a floor plate and it was his duty to reduce leakage in the vessel’s fresh water reserves by the operation of this valve. There was a slot in the floor plate and normally the valve could be opened or closed as circumstances required by using a reach rod. For a variety of reasons we need not describe in detail, but which include the absence of a reach rod and defects in the valve, Diniero said the only way he could operate the valve was by removing the deck plate, crouching down and moving the wheel of the valve by the use of a wrench. He claimed the injuries to his back were the effect of repeatedly operating the valve under these difficult conditions. The shipowner controverted all of these charges, and claimed there was nothing wrong with the valve, nor any necessity to remove the floor plate or to use a wrench. The eight day trial was devoted to the hearing of many witnesses and the reading of some depositions relative to the controverted issue of liability, and there was also considerable medical proof on the general subject of whether Diniero’s trouble was due to a long continued condition caused by a degenerative disc disease and having no relation whatever to the operation of the blow-down valve, rather than to a ruptured disc.
At the close of the evidence the trial judge submitted the case to the jury in a wholly unexceptionable charge. In an endeavor to assist the jury in its deliberations, however, and pursuant to F.R.Civ.P., Rule 49(b), 28 U.S.C.A. he submitted eight questions to be signed and returned as the verdict of the jury. The last two were in the form of a general verdict for plaintiff or defendant, questions 2 to 6 inclusive were in the common form relating to unseaworthiness, negligence, contributory negligence and proximate cause. The trouble was caused by question number 1, as follows:
“Did the plaintiff injure himself aboard the Pioneer Land because in operating the blow-down valve he had to remove the floor plates, then crouch and exert physical effort with a wrench and not his hand to stop it from leaking?
“Answer yes or no.”
After some hours of deliberation and the receipt of a number of communications from the jury, the trial judge withdrew all the questions, told the jury to disregard them and bring in a general verdict in the usual form; and, after further deliberations the jury brought in a verdict in favor of the seaman for $46,150. The claim for maintenance and cure had been reserved for later determination by the court and, in an opinion (reported at 185 F.Supp. 818), in lieu of findings of fact and conclusions of law, the trial judge allowed Diniero $9,012. The shipowner appeals and the only question raised on the appeal is whether the trial judge committed error by the withdrawal of the questions originally submitted.
The position of the shipowner is that F.R.Civ.P., Rule 49(b) authorizes the submission of written interrogatories but does not authorize the withdrawal of such interrogatories, after they have once been submitted and the jury has commenced its deliberations thereon. The shipowner further argues that question number 1 related to “one -or more issues of fact the decision of which is necessary to a verdict," and that, even if there be some power in the trial judge to withdraw interrogatories under certain circumstances, it was a clear abuse of discretion to withdraw a proper and material interrogatory, relating to an issue that must necessarily be decided in plaintiff’s favor, if plaintiff was to recover any damages whatever. To permit such withdrawal, the shipowner claims, would defeat the very purpose of F.R.Civ.P., Rule 49(b), and smooth the way for a reluctant jury, unable to agree on the facts basic to recovery, to do “popular justice” through the medium of “an old-fashioned verdict.”
The question is important, and, so far as we are aware, has never been decided by any federal court, although there are many state court decisions on various phases of the general subject. We hold, under F.R.Civ.P., Rule 49(b), that from the expressed power to submit interrogatories there is to be implied power to withdraw these same interrogatories in proper cases. Just as the trial judge may in his discretion submit interrogatories, so in his discretion he may withdraw them; but his ruling withdrawing the interrogatories is reviewable by us for abuse of discretion. In this case we think question number 1 was ambiguous, it certainly was not understood by the jurors, and the attempted explanation, to which we shall presently return, not only failed to clear up the ambiguity, but to some extent increased it. Under these circumstances we hold it was not an abuse of discretion to withdraw all the questions and authorize the jury to render a general verdict.
The jury commenced their deliberations at 2:45 p. m. At 5:40 p. m. the trial judge received a note from the jury reading: “Your Honor, could we ask for your interpretation of the word ‘had’ in the second line, first question? Did the plaintiff injure himself?”
Appellant’s counsel assures us that the question and the explanation given by the trial judge is just as simple as “whether the plaintiff was injured as he claimed,” or, in other words,. whether he was injured in the manner described by him in his testimony. What the trial judge said, however, is as follows:
“What I was trying to find out by the first question was whether or not plaintiff injured himself on board this ship, assuming that he had to remove the plates, assuming that he had to crouch down, and assuming he exerted this pressure with the wrench instead of his hand ?
“So in answer to your specific question as to the interpretation of the word ‘had’ it means that I assumed that he had to remove the plates, and he had to do this, and he had to do that. I didn’t mean to take away from you the question as to whether he did in fact have to do that. In other words, the purpose of the question is to find out whether the plaintiff injured himself on board the ship in the manner that he described. The defendant claims that he did not. So the first question that I wanted answered was did he injure himself aboard the ship by doing what he said he did ?
“If you find that he didn’t remove the plates or he didn’t bend down, or he didn’t crouch, or he didn’t have to, or he didn’t do it, those questions will be answered as you go on further down by your answers to the other questions.
“But in my first question I assumed as a fact, accepted the plaintiff’s testimony, that he had to bend down, that he had to crouch, that he had to remove the plates.
“What I wanted to find out was, assuming all of that, did he injure himself on board the Pioneer Land.
“Now I hope that is clear. If it isn’t, you can write me another note.”
The jury retired again at 5:50 p. m. and returned with another note at 6:40 p. m. This note was not read to counsel until after the verdict was rendered, but no objection was made to the failure to read it. The trial judge merely said it related “to some disagreement.” The note is as follows: “Your Honor, we cannot agree on question one. It appears' there is no chance for agreement.” Thereupon the trial judge withdrew all the questions from the consideration of the jury and asked them to see if they could not agree on a general verdict.
Despite the trial judge’s withdrawal of the interrogatories, the jury still could not soon reach agreement. At 9:22 p. m. the jury informed the trial judge that “it finds it impossible to arrive at a unanimous agreement in this case.” The trial judge thereupon read a quotation from Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528, and returned the jury for further deliberations at 9:30 p. m. Objection was noted to the withdrawal of the questions, but not to the sending of the jury back for further deliberations at 9:30. At 10:30 p. m. the verdict was announced and the jury polled.
There was an inherent ambiguity in question one, and it is plain enough that the explanation failed to remove the ambiguity. Under these circumstances we think it was not an abuse of discretion to withdraw the questions and give the-jury an opportunity to agree upon a general verdict. As F.R.Civ.P., Rule 49 (b> authorizes the submission of interrogatories to assist the jury in arriving at a. verdict, it is reasonable and quite consistent with the broad powers of a federal trial judge to infer that in a proper-case the interrogatories may be withdrawn. It was a matter of judgment, whether to attempt some further elucidation of the question, or to declare a. mistrial, or to withdraw all the questions, and authorize a general verdict. We cannot say the decision made here under the-circumstances of this case was wrong,, particularly as the jury continued its deliberations from about 6:45 p. m. until' 10:30 p. m., after the withdrawal of the questions.
Counsel have called many state court, decisions to our attention. The weight, of authority in these eases strongly supports our ruling that in proper cases interrogatories may be withdrawn.
Moreover, most of these decisions agree that when proper and material interrogatories have been submitted to the jury it is error to receive a general verdict in the face of a disagreement among the jurors with respect to one of the questions. The reason for this is that the answers to material questions are a necessary basis for the general verdict, and, if there is disagreement with respect to one or more of such questions, the general verdict has no sound foundation to rest upon. Examples are cases where the jury disagrees with respect to interrogatories relating to the contributory negligence of plaintiff. Where the questions on which the jury disagrees are not material or necessary to the verdict the result is different.
Other cases present the problem in its simplest form. After the submission of material and proper interrogatories, there is a delay of a few hours and the trial judge of his own motion, or on the application of plaintiff’s counsel, calls in the jury, withdraws the questions, tells the jury to bring in a general verdict over the objection of defendant’s counsel, and shortly thereafter the jury returns a verdict for the plaintiff. This has been held to be an abuse of discretion and ground for reversal. Ermentraut v. Providence-Washington Ins. Co., 1897, 67 Minn. 451, 70 N.W. 572; McKelvey v. Chesapeake & O. Ry., supra. See also Sun Mut. Ins. Co. v. Dudley, 1898, 65 Ark. 240, 45 S.W. 539. The reason is that the action of the trial judge would probably be prejudicial to defendant. See Ermentraut v. Providence-Washington Ins. Co., supra, 70 N.W. at pages 572-573; McKelvey v. Chesapeake & O. Ry., supra, 14 S.E. at page 263. This is a good general rule, and we agree with it. But it has no application to the case before us now, as the interrogatory causing all the difficulty here was unclear and ambiguous. The withdrawal of all the questions was for the purpose of eliminating the confusion caused by the formulation of an improper question. And it is to be noted that a confusing and improperly worded interrogatory cannot fairly be considered a “material” question, or one the answer to which “is necessary to a verdict.” Under the circumstances it was, we think, good judgment to withdraw all the questions. Certainly we cannot say to do so was an abuse of discretion.
Affirmed.
f. Rule 49(b) provides:
“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are
harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the
court shall not direct the entry of judgment but may return the jury for further
consideration of its answers and verdict or may order a new trial.”
. See Longstean v. Owen McCaffrey’s Sons, 1920, 95 Conn. 486, 111 A. 788; Watkins v. Mountain Home Co-op. Irr. Co., 1921, 33 Idaho 623, 197 P. 247; Continental Life Ins. Co. v. Young, 1888, 113 Ind. 159, 15 N.E. 220; Fitts v. Badger Lumber & Coal Co., 1937, 146 Kan. 56, 68 P.2d 631; Florence Machine Co. v. Daggett, 1883, 135 Mass. 582; Wavle v. Michigan United Rys. 1912, 170 Mich. 81, 135 N.W. 914; Poor v. Madison River Power Co., 1910, 41 Mont. 236, 108 P. 645; Robinson v. Palatine Ins. Co., 1901, 11 N.M. 162, 66 P. 535; New York County Nat. Bank v. American Surety Co., N.Y.App.Div., 1st Dep’t, 1902, 69 App.Div. 153, 74 N.Y.S. 692, affirmed without opinion, 1903, 174 N.Y. 544, 67 N.E. 1086; Taylor v. Ketchum, 1868, 28 N.Y.Super. (5 Rob.) 507, 35 How.Pr. 289; La Fayette v. Bass, 1926, 122 Okl. 182, 252 P. 1101; Rohr v. Isaacs, 1880, 8 Or. 451; Robinson v. Silver Lake Ry. & Lumber Co., 1931, 163 Wash. 31, 299 P. 356; McKelvey v. Chesapeake & O. Ry., 1891, 35 W.Va. 500, 14 S.E. 261.
. Arkansas Midland Ry. v. Canman, 1890, 52 Ark. 517, 13 S.W. 280; Tourtelotte v. Brown, 1892, 1 Colo.App. 408, 29 P. 130; Longstean v. Owen McCaffrey’s Sons, supra; Tober v. Pere Marquette R. R., 1920, 210 Mich. 129, 177 N.W. 385; Eischen v. Chicago, M. & St. P. Ry., 1900, 81 Minn. 59, 83 N.W. 490; Doom v. Walker, 1884, 15 Neb. 339, 18 N.W. 138; Ebersole v. Northern Central Ry., N.Y.Gen’l Term, 3d Dep’t, 1880, 23 Hun 114; Palmetto Fertilizer Co. v. Columbia N. & L. Ry., 1914, 99 S.C. 187, 83 S.E. 36; Stylow v. Milwaukee Elec. Ry. & Transp. Co., 1942, 241 Wis. 211, 5 N.W. 2d 750; Biersach v. Wechselberg, 1931, 206 Wis. 113, 238 N.W. 905.
. O’Connell v. United Railroads, 1912, 19 Cal.App. 36, 124 P. 1022; Wakefield v. Wakefield Water Co., 1903, 182 Mass. 429, 65 N.E. 814; Murray v. New York Life Ins. Co., 1884, 96 N.Y. 614; Garfield v. Blair, N.Y.Gen’l Term, 4th Dep’t, 1890, 10 N.Y. 340; May v. Szwed, 1941, 68 Ohio App. 459, 39 N.E.2d 630; Smith v. Cushman Motor Delivery Co., 1936, 54 Ohio App. 99, 6 N.E.2d 594; Russell v. Oregon R. & Nav. Co., 1909, 54 Or. 128, 102 P. 619.
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_respond1_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
LONAS v. NATIONAL LINEN SERVICE CORPORATION.
No. 9414.
Circuit Court of Appeals, Sixth Circuit.
June 24, 1943.
W. O. Lowe, of Knoxville, Tenn., for appellant Lonas.
Cecil Sims, of Nashville, Tenn., and Stanley I. Posner, of Washington, D.C., for amici curiae and appellee.
Herbert J. Haas and Sol I. Golden, both of Atlanta, Ga., and Ben R. Winick and Joel H. Anderson, both of Knoxville, Tenn., for appellee National Linen Service Corporation.
Irving J. Levy and Bessie Margolin, both of Washington, D.C., Jeter S. Ray, of Nashville, Tenn., Morton Liftin, of Washington, D. C., and George L. Clarke, of Baltimore, Md., for Administrator, Wage & Hour Division, U. S. Department of Labor, amicus curiae.
Posner & Fox, of Washington, D.C., for Linen Supply Ass’n of America, amicus curiae.
Cecil Sims, of Nashville, Tenn., for American Institute of Laundering, amicus curiae.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
In a suit by an employee of the appellee to recover for herself and others similarly situated, unpaid minimum wages and overtime compensation as permitted by § 16(b) of the Fair Labor Standards Act, 29 U.S. C.A. § 201, the narrow question is presented whether their employer is a service establishment exempt from the requirements of the Act by § 13(a) (2). The court dismissed the complaint on the ground that the pleaded facts, accepted as true, show that the defendant is a service establishment, the greater part of whose servicing is in intrastate commerce, and §§ 6 and 7 of the Act therefore have no application to its employees. The plaintiff’s appeal was supported by a brief and argument for the Administrator of the Wage and Hour Division and the decision by briefs and arguments for national associations in the industry, as amici curiae.
The appellee corporation has its main office in Atlanta, Georgia, where it purchases and manufactures linen supplies (such as towels, nurses’ and other uniforms, bus seat covers, pillow cases, hospital linens) and toilet articles which it rents to customers through branches located in various states. Each branch maintains a plant where soiled linens, collected regularly by trucks from its customers, are washed, ironed, and wrapped for delivery. The appellant and others were employed at appellee’s Knoxville, Tennessee, plant where they ironed, wrapped, and otherwise worked on articles rented by customers, 20% of whom are located in Virginia and Kentucky and the balance in Tennessee. 60% of the customers are industrial or business concerns as distinguished from private families or individuals; 5% are interstate carriers.
Section 13(a) (2) exempts from the minimum wage and over-time compensation provisions of the Act contained in §§ 6 and 7, the following: “Any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.”
The Administrator, basing his argument upon Interpretative Bulletin No. 6 issued December, 1938 and revised June, 1941 by the Wage and Hour Division of the United States Department of Labor, contends that the exemptions in § 13(a) (2) are limited to establishments retail in character whether they sell goods or services. This view is based' upon what he conceives to be the implications to be drawn from the legislative history of the Act and th'e grammatical construction of the exemption section. Since the related terms are coupled in the same sentence and are used in the disjunctive with the terms “retail” and “service” both modifying the word “establishment,” they refer to employers who deal directly with private consumers as distinguished from commercial and industrial customers. In other words, the service establishment exemption extends only to those establishments having the characteristic of retail stores, and the defendant’s business is not a retail service establishment because 60% of its customers are industrial or business concerns.
We find no support for this interpretation in the language of the exemption section. Two enterprises are therein exempted, one a retail establishment and the other a service establishment, the exemption of each subject to the condition that in the case of the retail establishment the-greater part of its selling must be in intrastate commerce, and in the case of a service establishment, the greater part of its servicing must be in intrastate commerce. Had the Congress intended to limit the exemption of service establishments to those which perform services for private individuals as distinguished from business enterprises, it would have had little difficulty in clearly expressing such purpose.
Linen supply companies and laundries have long been regarded and classified as local service enterprises by Federal Departments and Agencies, as well as by trade associations and the public. The 1939 Census included linen supply services in its classification of service establishments without differentiation in respect to the character of customers. To read into the exemption clause phrasing that would limit it to services performed for private individuals in their homes, would merit the condemnation expressed in the principal case relied upon by the Administrator. A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. There, on page 522, of 316 U.S., page 1119 of 62 S.Ct, 86 L.Ed. 1638, it is said: “when the federal government takes over such local radiations in the vast network of our national economic enterprise and thereby radically readjust the balance of state and national authority, those charged with the duty. of legislating are reasonably explicit and do not entrust its attainment to that restrospective expansion of meaning which properly deserves the stigma of judicial legislation.”
The exemption section being without ambiguity, we find no occasion to resort to extrinsic aids to construction, though it may be said in passing that even though we were to consider the legislative history of the section as reviewed by each of the litigants, it would be far from clear that the Congress intended anything other than what it clearly expressed. Nor do we think that the court was premature in dismissing the action without receiving proofs in support of the complaint. The allegations originally were silent as to the interstate extent of the defendant’s servicing, and alleged that but 25% thereof was rendered to industrial and commercial customers as distinguished from private families or individuals. An amendment several months later charged that 20% of the appellee’s servicing was to customers in the state of Kentucky and the state of Virginia, and 60% to industrial and business concerns. It must be assumed that proofs would not expand the allegations of the amended complaint and further amendment was not requested even in the face of the motion to dismiss.
The decree is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Anthony PANCI, Appellant, v. UNITED STATES of America, Appellee.
No. 16892.
United States Court of Appeals Fifth Circuit.
June 3, 1958
Thomas M. Brahney, Jr., Edw. J. Boyle, Clem H. Sehrt, New Orleans, La., for appellant.
Rene A. Pastorek, Asst. U. S. Atty., Jack C. Benjamin, Asst. U. S. Atty., New Orleans, La., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.
HUTCHESON, Chief Judge.
This appeal is from a conviction and sentence imposed upon a verdict of guilty, on two counts charging substantive violations of the narcotic laws, and one count charging a conspiracy to violate them. By it appellant seeks to test whether a conviction, which, as he claims, because of the admission of highly prejudicial hearsay testimony and the denial of the motion to acquit for want of evidence to convict but keeps the promise of due process to the ear while it breaks it to the hope, may stand.
Urging upon us: that extrajudicial inadmissible hearsay statements were erroneously admitted over his objection; that without them the record is devoid of evidence tending to establish his guilt, and the conviction was one of guilt by association, resting entirely on inadmissible hearsay, and supported by no substantial admissible evidence; the defendant thus earnestly concludes his brief:
“This case and the evidence adduced at the trial thereof demonstrates very vividly the abuses which arise when the Government uses a conspiracy count and the evidentiary abuses which are permitted thereunder to seek a conviction. It is cases such as this that has prompted the Supreme Court of the United States to criticize its use and various commentators to deplore the abusive use of the conspiracy charge.
“It is conceivable that a conviction could be or rather should be had in a case such as this where not one witness could be cross-examined as to the statements testified to, as involving the defendant, for each and every one of those statements were hearsay? Is it American justice to sentence a man to the penitentiary, to deprive him of his liberty when not one witness testified that they knew the defendant, that they ever spoke to the defendant, that they ever heard anyone speak to the defendant, or that they saw or, personally of their own knowledge, knew the defendant to have committed a violation of the law? Counsel beHeves, as does every law abiding citizen, that the vicious narcotic traffic should be stamped out and that narcotie violators should be dealt with, harshly but counsel does not concede,, that the sacred and fundamental' principles of a fair and impartial trial, which is guaranteed to every citizen, should be violated even in a narcotic case. Counsel sincerely beHeves that if this case had been anything but a case involving narcotics that a judgment of acquittal would have been granted and, if not, the iury would have returned a verdict °t n°t guilty as to all counts.”
Here, presenting under six numbered specifications, three grounds of error: (1) the denial of his motion for bill of particulars; (2) the admission over objection of prejudicial hearsay testimony; and (3) the refusal to direct a verdict acquittal for want of evidence; appellant urges upon us that the judgment must be reversed with directions to ac-h™1-
Emphasizing that the government did not produce a single witness who could or would testify: that he had spoken to defendant or heard him speak to anyone; that he had purchased, or seen anyone purchase, heroin from him; that he saw him transfer heroin to anyone or have any heroin in his possession; that he saw the defendant in possession of marked and identified money used to purchase heroin or saw him sell or deliver heroin to anyone; appellant insists that it was error to deny his motion for acquittal, In further support of his claim, he points to the undisputed, indeed the admitted fact that the only testimony relied on at the trial as tending to implicate defendant in the crimes charged was the hearsay statements, admitted over defendant’s repeated objections, of the co-defendant Giardina who pleaded guilty and of Lena and Carol Giardina, who. were named but not indicted as co-conspirators, none of whom testified at the trial and therefore could not be cross-examined.
We agree with the appellant that, under the rule established and prevailing in this court, it was error to overrule his objections to the hearsay testimony of the Giardinas, and that it was error on this record not to direct a verdict in his favor. In Montford v. United States, 5 Cir., 200 F.2d 759, 760, this court thus correctly laid down the rule governing the trial of cases where, as here, it was sought to prove a defendant’s connection with a conspiracy or his complicity in a crime by the hearsay statements and declarations of persons named or charged as co-conspirators or accomplices, but not otherwise proven to be such:
“The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant’s connection with a conspiracy cannot be established by the extra-judicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant’s connection with it, before such statement becomes admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701; Minner v. United States, 10 Cir., 57 F.2d 506; May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994; United States v. Nardone, 2 Cir., 106 F.2d 41, reversed on other grounds 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.”
Under that rule we think it clear beyond question that the admission of the hearsay testimony fatally impregnated the case with prejudicial and reversible error. In addition, with this evidence ex-eluded and eliminated from the record, the case was completely circumstantial and there was no evidence pointing, with the degree of clarity required for conviction in such cases, to appellant’s guilt. U was error’ therefore, not to direct an acquittal and because of this error the Judgment must be reversed with directions to acquit.
The United States, in an attempt to demonstrate that the evidence was sufficient to convict appellant, undertakes, as it declares, “to set out without including therein any of the hearsay matters, a statement of the evidence in the case”, A reading of this statement, as its brief sets H out> wdb we think, demonstrate that it has not done, it cannot do, this. Leaving the hearsay testimony out of consideration destroys the case in fact. Taking it into consideration destroys it in law. To see that this is so, it is only necessary to look at the case as the gov-eminent sets it ^ out on page 13 of its brie There it is stated:
“It was established, and appellant made no issue that the goods reeeived by Gjertsen, Sansone and Picini was heroin and appellant had no authority to transfer the narcotics, The issue presented to the Court below and the jury was principally that °I appellant’s criminal connection with the transfer of heroin and the conspiracy for that purpose,
“It should be noted that in the summary of the evidence just presented all of the hearsay statements complained of by appellant have not been mentioned.”
Unfortunately for the government’s case, this is not, it cannot on this record be, so. It is true, as the government points out on page 10 of its brief: that there was testimony that an agent saw Giardina go into a place where he spoke to Panci; that he saw Panci and Giar-dina leave the store; that he saw them sit on stools next to each other at the Toddle House cafe; that while they were sitting there drinking coffee, the defendant withdrew his left hand from his pocket and passed a small brown paper bag behind his back to Giardina; and that they thereafter left the Toddle House and returned to the barbecue stand. It is true, too, that there was If ^°”y: *hat PÍdnÍ ga? Giardina $1,050 for the purchase of three ounces of heroin; and that sometime afterward Giardina went into his own house and to* one ounce of heroin from the total of three in a brown paper bag. The record does not support the government s contention that the brown paper bag from which the heroin was taken was identified by anyone as the^ one given Giardina by defendant. If it did, this would not be important. What is important here is that no one testified that the brown paper bag given Giardina by defendant had narcotics in it when it was given to him. In short, the testimony of the government agent that Giardina was seen with Panci and that Panci passed a paper bag to him was wholly insufficient to establish his guilt. While, therefore, the testimony of the government witness well served its purpose of smearing Panci because he was seen associating with Giardina, no evidence whatever was offered to support its claim . that Giardina or anyone else obtained , . „ „ heroin from Panci.
Giving the evidence its fullest force, it amounts to no more than that Panci was seen associating with characters of low repute, and, if this conviction is allowed to stand, the result would be to convict him on suspicion. There is a proverb that a man is known by the company he keeps, and another one, “Give a dog a bad name and kill him”, but these are not legal principles which will serve to convert inadmissible hearsay into admissible testimony or support a conviction on testimony merely that a defendant is seen in bad company. Kassin v. United States, 5 Cir., 87 F.2d 183. In that case and in other circumstantial evidence cases this court has without wavering declared that the test to be applied is whether the j'ury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt, and equally without wavering has applied it. Cf. Vick v. United States, 5 Cir., 216 F.2d 228, and Lloyd v. United States, 5 Cir., 226 F.2d 9, at page 13.
The government might have made Qut a case if> in the ordinary way g0 often SUCCessfully used in informer type cases, the agents had given the informer marked Qr otherwise identified money, had searched him carefully before he left on hig miggion to ingure that ^e kad no narcotics concealed on or about him> had kept him in gight at all times so ag £0 exclude his having obtained the narcotics elsewhere, and then made the arregt to find the identified money in the possession of the defendant and the narcoticg in that of the informer. Nothing of that kind wag done here. Instead the government brought and testified to its cage wjth no more real support in the evidence íor a finding of guilt than there wag |or ^.ke f^ndjng that a ghost had been geen |n the story of the man who said, «My friend gaw a ghogt eating off a plate at hig houge lagt night> and if you don>t believe it, here is the plate he says he saw the ghost eating from”.
„ .. For the failure of the court to grant , „ . ,, defendant s motion to direct a verdict, the . , . . judgment is reversed with directions to acquit him.
. The indictment brought against the appellant and one Giardina, who pleaded guilty and was not therefore tried, contained nine counts.
The first eight counts charged substantive violations of the narcotic laws in respect of three alleged quantities of heroin; the ninth was laid under the conspiracy section of the code.
Counts one, two, and five, respectively, charged the illegal obtaining, the illegal selling, and the illegal concealing on or about December 22, 1955, of 360 grains of heroin in violation of Secs. 4704(a) and 4705(a), Title 26 U.S.C.A. and Sec. 174, Title 21 U.S.C.A.
Counts three and four charged the illegal obtaining and the illegal selling on Dec. 24, 1955, of 31 grains of heroin.
Counts six, seven, and eight, charged illegal purchase, the illegal concealment and the illegal selling on Dec. 29, 1955, of 3 ounces 68 grains of heroin.
Count nine, the conspiracy count, charged that, beginning about Dec. 20, 1955, and continuing thereafter until the date of the indictment, Nov. 29, 1956, the defendant and Giardina with John San-sone, Lena Giardina and Carol Giardina, who were named but not indicted, conspired to unlawfuly acquire, conceal and transfer to the said John Sansone, an admitted addict and paid government informer, John Gjertsen and Michael Pi-cini, also a government agent, and to one Lena Giardina, in violation of Sec. 371, Title 18 U.S.C.A., the narcotics referred to in the substantive counts.
Twenty-seven overt acts which covered a period from Dec. 20, 1955 to April 30, 1956, were alleged to have been committed in furtherance of the alleged conspiracy.
Upon completion of the Government’s case in chief and at the end of the case, defendant moved for a judgment of acquittal. Both motions were denied.
The jury returned its verdict acquitting appellant on counts one through five and finding him guilty on charges 6 through 9, and the court denied defendant’s motion for a new trial, but granted his motion for judgment of acquittal as to count seven.
Sentenced to imprisonment for a period of three years on each of counts six and eight, to run concurrently, and five years on count nine, the execution of the sentence imposed on count nine suspended, and appellant placed on probation for ° period of five years to commence after the completion of the sentence on counts six and eight, he appealed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_appel1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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".
RUCKMAN AND HANSEN, INC., Plaintiff, v. CONTRACTING & MATERIAL CO., Inc., et al., Defendants, CONTRACTING & MATERIAL CO., Inc., Defendant and Third-Party Plaintiff-Appellee, v. The HOME INDEMNITY COMPANY, Third-Party Defendant-Appellant.
No. 14277.
United States Court of Appeals Seventh Circuit.
Feb. 26, 1964.
Rehearing Denied April 2, 1964.
William M. Evans, Indianapolis, Ind., for Contracting & Material Co., Bose, Buchanan, McKinney & Evans, Indianapolis, Ind., of counsel.
R. Stanley Lawton, F. Boyd Hovde, Indianapolis, Ind., for Home Indemnity Co., Ice, Miller, Donadío & Ryan, Indianapolis, Ind,, of counsel.
Before DUFFY, CASTLE and KILEY, Circuit Judges.
CASTLE, Circuit Judge.
Contracting and Material Company, Inc., appellee, was awarded judgment in the amount of $31,678.43 on its third-party complaint against The Home Indemnity Company, appellant, in an action commenced in the District Court by Ruckman and Hansen, Inc., against C & M. The liability of Home, asserted against it by C & M, is predicated upon Home’s contract of suretyship covering performance of a contract by National Asphalt Paving Company. Home appealed.
The record discloses that R &. H entered into a prime contract with the State of Indiana to construct two highway overpasses. R & H subcontracted the “common excavation” and “special borrow” items involved to C & M. The subcontract was assigned by C & M to NAPC. Home executed a surety bond with C & M as sole obligee conditioned upon performance of the subcontract by NAPC. NAPC failed to complete its contractual obligations and abandoned the project. J. Fox Construction Co. was employed by R & H to complete the work remaining to be done. R & H then brought suit against C & M alleging default in the performance of the subcontract. R & H’s complaint set forth several specific items of damages totalling $19,670.92; alleged the existence of certain pending litigation, any recovery in which would be a further obligation of C & M, and alleged the existence of other-unpaid bills and charges in connection with work under the subcontract. In turn, C & M filed its third-party com-' plaint against NAPC, its assignee, for breach of the subcontract, and against Home on its performance bond. The amount of the judgment entered against Home ($31,678.43) includes the several!' items making up the $19,670.92 set forth in R & H’s complaint against C & M (with minor adjustments not pertinent, to the issues in this appeal) less a credit of $5,060.92 representing an overpayment' in connection with progress payments made under the contract for work done by NAPC as reflected by progress estimates by engineers of the.State Highway Department. In addition, the judgment includes amounts paid by C & M in settlement of pending litigation and payment of other outstanding claims and unpaid bills referred to in R & H’s complaint, and $6,500.00 for attorney fees.
Prior to the disposition of the third-party action a judgment in the sum of $19,431.92 had been entered in favor of R & H against C & M by consent of these two parties. This consent judgment recited that it was not to be treated:
“ * * * either as being conclusive of or evidentiary of either the amount or the existence of any liability of [C & M] so far as the third party [Home is] concerned, it being the intent of this proviso to avoid the rule that a third party defendant is bound by a judgment on the original complaint.”
Subsequent to that judgment C & M amended its third-party complaint to set forth specifically the items included in such judgment, which it had paid, and the additional amounts, totalling $10,-307.43, paid in connection with the discharge of other claims and unpaid bills. The amended third-party complaint also alleged the existence of certain pending litigation against R & H and C & M for damages and charges resulting from work done by NAPC under the subcontract (one of which suits was later settled by C & M for $500.00).
The cause proceeded to trial without a jury and the District Court, after making and entering findings of fact and conclusions of law, entered the judgment from which this appeal is prosecuted.
Home does not dispute that C & M paid each of the items comprising the judgment against it. Home does dispute the right of C & M to recover from Home all or any part of such items.
The main contested issues on appeal are (1) whether the progress payments made on the estimates of the State engineers constituted an overpayment or prepayment which completely released the surety; and if not (2) whether the consent judgment merged all claims and damages R & H had against C & M so as to preclude C & M from recovering from Home the $10,807.43 it expended on the additional claims and unpaid bills; (3) whether the limitation period fixed in the surety bond bars recovery of these additional amounts; and (4) whether C & M is entitled to recover for attorneys’ fees. Subsidiary issues include whether the surety is liable for tort damages resulting from the negligence of its principal and for equipment rental not paid by the principal, and whether the District Court’s findings that the payment to Fox and the other items comprising the judgment entered in favor of R & H against C & M were occasioned by the default of NAPC are clearly erroneous.
. From our analysis of the findings of fact and conclusions of law of the District Court, which we find are supported by substantial evidence in the record and represent the application of correct legal criteria, we conclude that each of the issues precipitated by Home’s appeal must be resolved against the appellant. We proceed to state the reasons for our conclusion.
The record establishes that in remitting progress payments to NAPC, which payments C & M had received through R & H as due under the prime contract with the State based on the State’s periodic estimates of quantities of the excavation and borrow work completed, C & M passed on to NAPC sums in excess of the amounts determined later to have been actually due. Home urges that under Indiana law, either overpayment or prepayment of a surety’s principal by the obligee completely discharges the surety. It contends that the excesses in the remittance of progress payments absolves it completely from liability to C & M. In this connection Home relies upon Board of Commissioners of Morgan County v. Branham, 7 Cir., 57 F. 179; National Surety Company of New York v. State, 93 Ind.App. 435, 153 N.E. 421 and Detroit Fidelity & Surety Company v. Bushong, 96 Ind.App. 352, 175 N.E. 683. But in our view those eases are not apposite. Under the provisions of the contract here involved the progress payments were not final or binding and were expressly subject to correction and adjustment. The fact that the progress estimates turned out to be too high does not in our opinion, on the facts and circumstanees here involved, operate to release the surety. The estimates and payments were made in accordance with the express provisions of the contract documents — errors in the estimates were expressly subject to adjustment — and there was no departure from the terms of the contract, which by its bond the surety accepted. In the cases cited by Home payments were made in violation of contract provisions to the prejudice of the surety. Branham, where the principal falsely represented half the work was completed and the owner, relying on the false representation, neglected to make the estimate required and made the overpayment, involved “a gross departure from the terms of the contract” governing the making of the payment. In National Surety there was a prepayment of retainage contrary to the terms of the contract. Bushong involved a payment to the principal at a time when nothing was due under the contract. The rule applied in those cases has no application here.
The excess in the progress payments was adjusted, except for $5060.92, through the application of retainage, and the District Court’s finding characterizing the $5060.92 as an “overpayment” not recoverable from Home does not, on the facts here involved, either require or justify application of the rule which calls for the surety’s complete discharge. There was no departure from the terms of the contract. And the errors in the progress estimates and payments have in no manner operated to the prejudice of the surety.
The record discloses that the consent judgment entered in favor of R & H against C & M was entered pursuant to an agreement between these two parties which reveals that the judgment was not intended to discharge C & M’s liability on the remaining claims arising out of NAPC’s default in performance of the subcontract. The consent judgment therefore did not effect a merger of claims precluding further recovery by R & H from C & M. Cf. Louisville, N. A. & C. Ry. Co. v. Terrell, 12 Ind.App. 328, 333, 39 N.E. 295. Consequently, C & M’s payments of the remaining items were not “voluntary” payments of an obligee not recoverable from the surety.
C & M’s third-party complaint against Home was filed before the expiration of the one year “following the date on which Principal [NAPC] ceased work on said contract” limitation period contained in Home’s surety bond. The complaint of R & H against C & M was attached and C & M demanded judgment against Home “for all sums that may be adjudged against [C & M] in favor of [R & H].” Subsequent to the consent judgment entered against it, C & M filed an amended third-party complaint against Home setting forth the specific items for which payment had been made to R & H together with the additional specific claims and amounts, totalling $10,307.43, which C & M had paid, and alleging the existence of a pending suit against C & M with respect to another claim (later settled for $500.00)'. All of these items of damages “arose out of the conduct, transaction, or occurrence set forth * * * in the original pleading” and therefore relate back to the original third-party complaint under the express provisions of Rule 15(c) of the Federal Rules of Civil Procedure (28 U.S.C.A.). In addition, it appears that within 30 days of NAPC’s default and abandonment of work on the subcontract Home was notified thereof and that C & M looked to Home for payment of all damages C & M might suffer on account of the default. And, within five months of the date NAPC “ceased work on the contract” Home was notified as to the identity and the then asserted amounts of all claims which were included in the judgment against it with the exception of the claim which was settled for $500.00. We perceive no merit in Home’s contention that the limitation period of the bond precludes recovery by C & M for these payments which were in addition to those included in the consent judgment in favor of R & H. Nor are we persuaded by Home’s argument that Rule 14(a) of the Federal Rules of Civil Procedure precludes recovery of these additional payments by way of amendment of the third-party complaint because they represented no part of the adjudicated liability of C & M. The impleader device of Rule 14(a) was properly utilized. A single “group or aggregate of operative facts giving ground or occasion for judicial action” was here involved. See: 3 Moore’s Federal Practice, Sec. 14.07, p. 509 (2nd Ed. 1963 Recompilation).
NAPC as assignee of C & M became obligated to perform the covenants and conditions of the subcontract. C & M, and NAPC as its assignee, were obligated by the express provisions of the subcontract to:
“ * * * indemnify the Prime Contractor and the [State] against, and save them harmless from, any and all loss, damage, costs, expenses, and attorneys’ fees suffered or incurred on account of any breach of the aforesaid obligations and covenants, and any other provision or covenant of this contract. If it shall become necessary for the Prime Contractor by action to enforce the collection of any sum or sums of money due under this contract, the Subcontractor specifically agrees to pay to the Prime Contractor all necessary expenses, including reasonable attorneys’ fees that the Prime Contractor may incur in the institution or prosecution of any such action.”
Upon payment by C & M of NAPC’s obligations arising out of the subcontract C & M became subrogated to R & H’s right to costs and reasonable attorneys’ fees and entitled to assert such right against NAPC and Home. In Kamarta v. Hayes Freight Lines, Inc., 123 Ind. App. 222, 230-231, 108 N.E.2d 723, it is pointed out that the right of subrogation is founded upon principles of equity and justice and:
“ * * * includes every instance in which one party, not a mere volunteer, pays a debt for another, primarily liable, which in good eon-.science should have been paid by the latter. [Citations.]
“Where one pays a debt which could not properly be called his own, but which it was his interest to pay, or which he might have been compelled to pay for another, the law subrogates him to all the rights of the creditor. Spray v. Rodman [et al.] 1873, 43 Ind. 225.
“Here the appellee paid a debt due to a third person, for the payment of which another was primarily liable, under compulsion of saving itself from loss, and not as a mere volunteer.”
The attorney fees awarded C & M as a part of its damages were incurred by C & M on account of the breach of the subcontract by NAPC and became the obligation of Home, upon the failure of NA PC to indemnify and save harmless C & M from such costs, as required by the equitable principle of subrogation under the circumstances here involved.
The subcontract expressly provides that the subcontractor indemnifies against “any and all claims, suits, or liability for injuries to property, injuries to persons, including death, and from any other claims, suits, or liability on account of any act or omission of the Subcontractor or any of his officers, agents, employees or servants” and subcontractor is obligated to furnish “all materials, labor, tools, equipment and supplies”. Thus the $500.00 expended in settlement of the property damage tort claim and the rental charge for equipment were within the class of obligations embraced within the subcontract and covered by Home’s performance bond. In so far as the allowance of these items as damages, and the like allowance of the payment to Fox and the other items comprising the consent judgment, are based on factual considerations we are convinced from our examination of the record that the District Court’s factual findings are supported by substantial evidence and reasonable inferences to be drawn therefrom. There is no justification for disturbing any of those findings as clearly erroneous or without evidentiary support. We likewise find no error in the court’s legal conclusions with respect to these items. The evidentiary facts, measured by the express provisions of the contract documents and applicable law, demonstrate the soundness of the court’s conclusion that all of the items involved constitute proper elements of damages occasioned by the default of NAPC. We are of the view that it would serve no useful purpose to extend the scope of this opinion to embrace a detailed discussion of each item and the contentions advanced by appellant concerning the same. Suffice it to say that we have examined the record, including the provisions of the contract documents and specifications, considered the authorities relied upon by appellant and appraised each of the arguments it advances. We find nothing which would warrant a reversal of the judgment entered against the appellant or its modification in any respect.
The judgment order entered by the District Court is in three distinct parts: (1) that C & M recover from Home and Raymond J. Walter, or either of them, the sum of $31,678.43 and costs; (2) that C & M recover from Walter the additional sum of $5060.92; and (3) that Home as cross-claimant recover $40,-303.43 from its cross-defendant Walter subject to reduction by any amount Walter pays in satisfaction of part (1) of the judgment. Home’s appeal herein is limited by the language of its notice of appeal to “the judgment entered in this action on May 10, 1963, against said third party defendant [Home] in the amount of Thirty-one Thousand Six Hundred Seventy-eight Dollars and Forty-three Cents ($31,678.43), * * *”
We therefor do not reach or consider the contention advanced by Home that the District Court erred in not granting judgment in Home’s favor against Fred Beshara and Eugene Downs, named along with Walters as cross-defendants in Home’s third-party defendant cross-claim, but with respect to whom the court found it lacked jurisdiction of the person. Unlike the situation in Hawkeye-Security Insurance Company v. Schulte, 7 Cir., 302 F.2d 174, the notice of appeal here is not such that “[t]he intention to appeal from the judgment as a whole may be properly inferred from the notice, and appellee makes no claim of having been misled”. Here, by its terms, the notice of appeal limits the appeal to the part set out as may be done under Rule 73(b) of the Federal Rules of Civil Procedure. Moreover, neither Downs nor Beshara entered appearances in the District Court, the record here does not reflect that they were in any manner notified of this appeal, and they have not appeared or been represented herein. Under the circumstances their rights will not be adjudicated in absentia.
The judgment order of the District Court is affirmed.
Affirmed.
. Contracting and Material Company, Inc., will be referred to as “C & M”; The Home Indemnity Company as “Home”; Ruckman and Hansen, Inc., as “R & H”; National Asphalt Paving Company, a joint venture comprised of the partnership of Raymond J. Walter and Eugene Downs, and Ered Beshara, individually, as “ÑAPO”; and J. Pox Construction Co. as “Pox”.
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_appel1_1_4
|
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 "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 18566.
United States Court of Appeals Fifth Circuit.
Feb. 15, 1961.
Herf M. Weinert, Beaumont, Tex., Robert E. May, Washington, D. C., for appellant.
John C. Mason, Gen. Counsel, F. P. C., Howard E. Wahrenbrock, Sol., Washington, D. C., for appellee.
Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.
PER CURIAM.
The Federal Power Commission has filed its motion to dismiss the Petition for Review filed by Sun Oil Company. Its Petition for Review seeks to have this Court set aside two orders of the Federal Power Commission, one issued June 2, 1960 and the other issued July 15, 1960. The proceedings that were before the Commission and which were dealt with by the said orders were in docket Nos. G-13617, G-13619, G-16685, and G — 16686.
The motion to dismiss is based on the ground that the orders appealed from are not final orders of the Commission and thus are not subject to review. Briefly stated, the orders denied motions made by the petitioner that the Commission terminate the proceedings then pending in the docket numbers referred to. The state of the proceedings at the time was that several increases in rates had been filed by Sun and had been suspended under Section 4(e) of the Natural Gas Act, 15 U.S.C.A. § 717c(e), and Sun was collecting the higher rates under the undertaking to make refunds if the rates were not ultimately approved. Proof had already been taken under the Section 4(e) proceeding, but the investigation had not been completed. The basis of Sun’s motion to terminate was its contention that the Commission had terminated other proceedings in like situations, and Sun contended that “It was manifestly unfair and discriminatory for the Commission to terminate suspension proceedings involving other independent producers, even though general rate proceedings had been instituted and some were being heard, * * * ” and to refuse at the same time to terminate Sun’s proceedings under identical circumstances.
This effort to cause the Commission to terminate proceedings during the investigation period and the Commission’s refusal to do so, of course, deals with an interlocutory or non-final issue. Sun may still obtain all the benefits it seeks if the Commission’s proceedings are permitted to go to a normal conclusion. The Commission’s refusal to abort the proceedings is not a reviewable order under the clear authority of Magnolia. Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, and associated cases.
In order to conserve the time, expense and energies of both parties we deem it appropriate to dispose of this motion summarily, rather than to delay its consideration until the case would otherwise be reached in its normal place on the calendar.
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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
METROPOLITAN EDISON COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Borough of Middletown, Pennsylvania, Intervenor.
No. 76-1866.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 23, 1978.
Decided March 8, 1979.
James B. Liberman, Washington, D. C., with whom Albert R. Simonds, Jr., Washington, D. C., was on the brief, for petitioner.
M. Frazier King, Jr., Atty., Federal Energy Regulatory Commission, Washington, D. C. , with whom Drexel D. Journey, Gen. Counsel, Robert W. Perdue, Deputy Gen. Counsel, Allan Abbot Tuttle, Sol., Federal Energy Regulatory Commission, Washington, D. C., were on the brief, for respondent. Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., also entered an appearance for respondent.
Philip P. Ardery, Louisville, Ky., was on the brief for intervenor.
Before ROBINSON, ROBB and WIL-KEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Dissenting opinion filed by Circuit Judge WILKEY.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
We address on this review an electric utility’s claim of discrimination assertedly requiring upward revision of a wholesale rate otherwise shielded against unilateral alteration by the well-known Mobile-Sierra doctrine. Metropolitan Edison Company (Met-Ed) seeks reversal of an order of the Federal Power Commission repulsing its effort under Section 206(a) of the Federal Power Act to bypass a contract in terms obligating it to furnish power to the Borough of Middletown, Pennsylvania, at a fixed rate. We find the Commission’s disposition unimpeachable and accordingly affirm.
I
In 1906, York Haven Water & Power Company, Met-Ed’s corporate predecessor, contracted to supply Middletown’s electrical requirements in their entirety at a rate of one cent per kilowatt hour. The contract’s penultimate paragraph is of great significance in this litigation. It states:
Inasmuch as the Borough is practically abandoning its present electric light plant at great loss to itself and has been induced by the Company to use the electricity and electric power of the Company as a matter of economy and advantage to the Borough, it is agreed that this contract shall continue in full force indefinitely until terminated by the Borough upon six months’ notice in writing to the Company.
Met-Ed first voiced dissatisfaction with the Middletown agreement in 1971 — 65 years after its execution. By then, rising fuel costs were about to turn the once remunerative pricing provision into a losing proposition for Met-Ed, a consequence likely to worsen with the passage of time. In 1972, Met-Ed’s revenues from its Middle-town service were $368,990, some $9,000 less than corresponding operating expenses. Those revenues were as much as $294,189 less than Met-Ed would have derived had Middletown been charged the same rate as Kutztown, Pennsylvania, a Met-Ed wholesale customer akin to Middletown in type and quantity of service provided. However, though hardly a boon to Met-Ed’s growth, the shortfalls generated by the Middletown contract presently pose no threat to the company’s financial health and stability. In 1972, when Met-Ed lost $9,000 on Middletown, its overall revenues exceeded total operating costs by some $33 million, and in the next year total income outpaced costs by more than $36 million.
In 1974, Met-Ed petitioned the Commission for an investigation of the Middletown arrangement with a view toward an increase of the one-cent rate. The Commission instituted the requested proceeding, which progressed to a hearing before an administrative law judge. Met-Ed assailed the contract rate on the ground that it jeopardized the public interest by eroding Met-Ed’s ability to discharge its service obligations, by imposing a disproportionate financial burden on other customers and — in comparison with rates charged similarly situated customers — by discriminating. In an initial decision, the judge rejected MetEd’s assessment on all three counts and, concluding that the Middletown contract was insulated by the Mobile-Sierra doctrine against unilateral modification, dismissed Met-Ed’s petition.
Met-Ed filed exceptions to this ruling. The Commission, adopting the initial decision, affirmed, and subsequently refused to reconsider. This petition for review then ensued. Met-Ed, abandoning two of its earlier positions, presses for reversal solely on the theory that the one-cent contract rate is unduly discriminatory.
II
The relevant legal terrain is largely charted by the Supreme Court’s decision in FPC v. Sierra Pacific Power Co. The Court there held that a public electric utility subject to regulation under the Federal Power Act cannot unilaterally abrogate a contractually-fixed rate simply by filing a new rate under Section 205(d) and securing Commission approval thereof under Section 205(e). Rather, the Court explained, the Commission may change the agreed-upon rate only if it finds under Section 206(a) that it is "unjust, unreasonable, unduly discriminatory or preferential.” And since, as the Court declared, “the purpose of the power given the Commission by § 206(a) is the protection of the public interest, as distinguished from the private interests of the utilities,” that power is exercisable only when “the [contract] rate is so low as to adversely affect the public interest — as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory.”
The service agreement in suit makes clear beyond peradventure the parties’ bargain on duration of the one-cent rate established for power supplied to Middletown. It specifies unequivocally that “this contract shall continue in full force indefinitely until terminated by the Borough upon six months’ notice in writing to the Company.” This provision, we conclude, is intercepted by the Mobile-Sierra doctrine, and thus can be revised only in conformity with Sierra criteria. Indeed, Met-Ed does not argue to the contrary; instead, it grounds its attack on the Middletown compact exclusively on discrimination, the third Sierra-mentioned foe of the public interest. Initially, Met-Ed argues that the Commission adopted an unduly restricted view of its authority under Section 206(a) to modify a fixed-rate contract as discriminatory. Met-Ed then disputes the Commission’s treatment of the rate differential among Met-Ed’s customers occasioned by the Middletown agreement. Neither contention persuades us.
Ill
On the first matter, Met-Ed argues that each of Sierra’s three illustrations of adverse consequences warranting disregard of a contractually-fixed rate possesses independent force, but that the Commission considered the third — undue discrimination — to be merely repetitive of the second — excess burden on other customers. To be sure, the Commission did point to the lack of financial harm to anyone but Met-Ed in finding the Middletown contract rate not unduly discriminatory. That reference, however, is perfectly understandable and acceptable on this record, where nothing beyond disparate rates among MetEd’s customers has been shown. We recognize that to a degree Met-Ed is correct: A rate arrangement may be unduly discriminatory even though consumers not paying the contract rate would not gain a rate decrease were the contract altered by the Commission. In Town of Norwood v. FERC, we ruled that Sierra -type discrimination may emerge at the stage of contract formation, as when a utility negotiates a “sweetheart” contract with a favored customer; Sierra, we held, does not permit “a utility to use a fixed-rate contract as a device to render unassailable an otherwise prohibited undue preference.”
Yet, Met-Ed’s position remains incurably infirm because the possibility of discrimination of this sort was not ignored by the Commission. On the contrary, the Commission emphasized the substantial and unusual consideration for the one-cent contract rate given Middletown. As the Middletown contract overtly acknowledges, “the Borough . . . practically abandoned] its [then-] present electric light plant at great loss to itself and [was] induced by the Company to use the electricity and electric power of the Company as a matter of economy and advantage to the Borough. . . . ” A difference in rate treatment is not unduly discriminatory when the difference is amply justified, and we cannot label as error the Commission’s considered judgment that Middletown relinquished enough to immunize its special long-term one-cent rate from any suspicion of favoritism.
Moreover, the Commission found that Met-Ed had profited from the Middletown contract for many years. From 1937 through 1971, the Middletown rate was higher than the average rate paid by all of the rest of Met-Ed’s customers; not until 1972 did the average rate exceed Middle-town’s. It is true that for nine selected years between 1937 and 1973, the average rate to Kutztown — one of the two resale customers comparable to Middletown in type of service — was 1.29 cents, 0.29 cents higher than the rate to Middletown. On the other hand, Hershey Electric Company, the other such customer, had since 1969 been charged an average rate of 0.92 cents, .08 cents less than the Middletown contract rate. It is no great wonder, then, that the Commission accepted the administrative law judge’s finding “that the Borough of Middletown, if anyone, had been discriminated against by the rate for the last 65 years.” And, we again note, there is nothing in the record to indicate that either Kutztown or Hershey yielded anything comparable in value to Middletown’s power-plant surrender for the rates they were able to obtain.
These circumstances are hardly hallmarks of a sweetheart arrangement. Rather, as the Commission declared, the only discernible reason for current rate differentials between Middletown and any other Met-Ed customer similarly situated is the atypical concession that Middletown’s 1906 town council made to Met-Ed’s predecessor. In short, the Commission did not misconceive its authority under Sierra to revise fixed-rate agreements when unduly discriminatory, nor did it plainly misapprehend the real genesis of the rate differentials occasioned by Met-Ed’s arrangement with Middletown.
IV
Met-Ed’s second contention amounts to little more than a plea that we balance de novo the public interest in preserving the integrity of power-supply contracts against the perceived unfairness and undesirable incentives assertedly flowing from a contract rate lower than the rate some other consumer is charged. Met-Ed is simply taking a different view of evenhandedness and the public weal than did the Commission. In reaching its public-interest resolution in this case, the Commission succinctly identifled the considerations it thought to be of major significance:
There is no contention that Kutztown’s is not a just and reasonable rate; nor even that all other parties to rate RT are not paying just, reasonable, and non-excessive rates. Even if there is discrimination, there appears to be no damage to these third parties. They would receive no reduction were we to uphold Met-Ed’s position here. Even were damages to be found, the fact that Middletown’s customers would sustain a 50% rate increase raises substantial questions regarding whether the public interest would best be served by bailing Met-Ed out of its unwise bargain. The equities, once balanced, favor upholding the contract.
Other factors urged by Met-Ed as of moment in the public-interest calculus — notably, the asserted imprudence of encouraging consumption of energy by selling it cheaply — were considered and dismissed by the administrative law judge as either speculative or de minimis, and the Commission unreservedly concurred.
The Commission’s regulatory charter “contemplates abrogation of [fixed-rate] agreements only in circumstances of unequivocal public necessity.” In this light, we see no ground for disturbing the Commission’s assessment. As the Commission rightly noted, its function was “not only to appraise the facts and draw inferences from them but also to bring to bear upon the problem an expert judgment and determine from analysis of the total situation on which side of the controversy the public interest lies.” We find the Commission’s assessment of the public interest reasonable and well within the bounds of its authority and discretion.
We do not understand that the Commission, in declining Met-Ed’s invitation to upset the Middletown contract rate, has validated that rate for all time. The Commission expressly recognized that the bargain with Middletown conceivably could eventually saddle other Met-Ed customers with such burdens as to bring Sierra into play. There is no reason for supposing that the Commission did not realize that future conditions might implicate Sierra in some other manner. It bears repeating that “denying . . . companies the power unilaterally to change their contracts in no way impairs the regulatory powers of the Commission, for the contracts remain fully subject to the paramount power of the Commission to modify them when necessary in the public interest.” Our mission, of course, is to adjudge the Commission’s present determination on the record before us, and on that basis the orders under review must be
Affirmed.
. See United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956); FPC v. Sierra Pac. Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388 (1956). See also United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958). For further discussion of the Mobile-Sierra doctrine, see additional cases cited infra notes 27-28, 38.
. Metropolitan Edison Co., (Opinion No. 764) (F.P.C. June 1, 1976), rehearing denied, F.P.C. No. E-8832 (July 30, 1976) (unreported), Joint Appendix (J.App.) 72, 78.
. Pursuant to the Department of Energy Organization Act, Pub.L. No. 95-91, § 402(a), 91 Stat. 565 (1977), 42 U.S.C.A. § 7172(a) (West Supp. 1977), most of the functions of the Federal Power Commission have been transferred to the Federal Energy Regulatory Commission. Under §§ 705(c)-(e) of the Act, 42 U.S.C.A. §§ 7295(c)-(e) (West Supp. 1977), judicial proceedings commenced prior to its effective date are unaffected save for substitution of appropriate parties.
.Section 206(a), 16 U.S.C. § 824e(a) (1976), provides:
Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affected [sic ] such rate, charge, or classification is unjust, unreasonable, and unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.
. J.App. 49.
. J.App. 50.
. J.App. 50.
. Metropolitan Edison Co., F.P.C. No. E-8832, (initial decision Sept. 2, 1975) (unreported), at 4, J.App. 59.
. Id. The Commission’s staff placed the 1972 revenue shortfall at $218,304, while Met-Ed quoted the higher figure mentioned in text. Id.
. Id. at 5 n. 6, J.App. 60. Met-Ed’s total revenues for 1972 reached nearly $160 million. Id.
. Id. Total revenues in 1973 were approximately $172.5 million.
. Petition of Metropolitan Edison Company (March 6, 1974), J.App. 40.
. Pursuant to § 206(a) of the Act, 16 U.S.C. § 824e(a) (1976), quoted supra note 4. Metropolitan Edison Co., F.P.C. No. E-8832 (order establishing Section 206 proceeding June 6, 1974) (unreported), J.App. 52.
. See Metropolitan Edison Co. (initial decision), supra note 8, at 4-9, J.App. 59-64. MetEd also urged other so-called public interest considerations. It maintained that adherence to the contract means that Middletown will have to put up with more unsightly transmission lines in residential neighborhoods than if it had accepted Met-Ed’s offer to supply power at a second delivery point for the prevailing rather than the contract rate. Id. at 9-10, J.App. 64-65. Met-Ed also argued that the lower contract rate encourages consumption of scarce electricity. Id. at 10, J.App. 65. This listing is not exhaustive.
. Id. at 4-11, J.App. 59-66.
. Id. at 11, J.App. 66.
. Id. at 12, J.App. 67.
. Metropolitan Edison Co. (Opinion No. 764), supra note 2, J.App. 72.
. Metropolitan Edison Co. (order denying rehearing), supra note 2, J.App. 78.
. The three principal contentions originally advanced by Met-Ed, see text supra at note 14, were discussed at some length by the Commission. In rejecting Met-Ed’s protest that its financial ability to operate was threatened, the Commission reasoned:
The de minimis nature of [the 1974] deficit compared to Met-Ed’s total electric revenues is the critical element in considering the effect on the public interest of the instant rate. While the utility argues that it has been forced to make substantial cuts in its operations budget, these cuts cannot be rationally associated with the Middletown contract. It is clear, certainly, that the $500,000.00 deficit incurred on the Middletown contract adversely affects the financial health of the company, but there is nothing in the record or the briefs to indicate that this deficit will, in any material way, impair the company’s ability to continue service either to Middle-town or to the remainder of Met-Ed’s customers.
Metropolitan Edison Co. (Opinion No. 764), supra note 2, at 3, J.App. 74 (emphasis in original). In disposing of the argument that other customers of Met-Ed were imposed upon, the Commission said:
Moving to the second element of the Sierra test, the question is whether Middletown’s contract casts upon other consumers an excessive burden. The utility did not adduce substantial evidence indicating that the Middletown contract burdened Met-Ed’s other customers excessively. In fact, Met-Ed’s own witness, the Vice President of General Public Utilities Service Corporation (MetEd’s parent) conceded that the revenue deficiency of Middletown was not passed on to the other customers of Met-Ed in any way. Even if the deficiencies occasioned by the Middletown contract were borne by the other customers of Met-Ed, that fact standing alone would not be dispositive. The Sierra test requires an excessive burden on other customers. It is doubtful indeed that the revenue shortfall of the size involved here could ever cast such a burden upon the other customers of a utility the size of Met-Ed. This is not to say, however, that at a future date the losses sustained as a result of Met-Ed’s self-imposed, albeit improvident, bargain might not begin to cast some burdens on other customers, conceivably even to the point of coming within the Sierra guidelines. That point, however, simply has not been reached at this juncture.
Id. at 4, J.App. 75 (emphasis in original) (footnotes omitted). In this court, Met-Ed contests neither of these determinations, but only the Commission’s adverse ruling on the claim of undue rate discrimination.
. Supra note 1.
. 350 U.S. at 353, 76 S.Ct. at 371, 100 L.Ed. at 394.
. Id. at 353, 76 S.Ct. at 372, 100 L.Ed. at 394.
. Id. at 355, 76 S.Ct. at 372, 100 L.Ed. at 395.
. Id.
. See text supra at note 7.
. Compare, e. g., United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., supra note 1, 350 U.S. at 344, 76 S.Ct. at 381, 100 L.Ed. at 386; FPC v. Sierra Pac. Power Co., supra note 1, 350 U.S. at 353-355, 76 S.Ct. at 371-372, 100 L.Ed. at 394-395; Appalachian Power Co. v. FPC, 174 U.S. App.D.C. 100, 103 n. 13, 529 F.2d 342, 345 n. 13, cert. denied, 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76 (1976); Richmond Power & Light v. FPC, 156 U.S.App.D.C. 315, 322-323, 481 F.2d 490, 497 — 498, cert. denied, 414 U.S. 1068, 94 S.Ct. 578, 38 L.Ed.2d 473 (1973).
. E. g., Permian Basin Area Rate Cases (Continental Oil Co. v. FPC), 390 U.S. 747, 820-822, 88 S.Ct. 1344, 1387-1389, 20 L.Ed.2d 312, 366-367 (1968); FPC v. Sierra Pac. Power Co., supra note 1, 350 U.S. at 353, 76 S.Ct. at 371-372, 100 L.Ed. at 394; United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., supra note 1, 350 U.S. at 343, 76 S.Ct. at 380, 100 L.Ed. at 386. See also cases cited supra note 27.
. In our view, the thesis of the dissent is inconsistent with the central underpinnings of Mobile-Sierra: The terms of the contract determine the parties’ obligations; their agreement should be modified by the Commission trader § 206(a) only if imperatively demanded by the public interest; and no such mandate arises solely from the unprofitability of the contract to the utility. See Permian Basin Area Rate Cases (Continental Oil Co. v. FPC), supra note 28, 390 U.S. at 822, 88 S.Ct. at 1388-1389, 20 L.Ed.2d at 367; FPC v. Sierra Pac. Power Co., supra note 1, 350 U.S. at 355, 76 S.Ct. at 372, 100 L.Ed. at 395. See also United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., supra note 1.
Furthermore, the approach of the dissent embraces artificial distinctions unsupportable in terms of Mobile-Sierra policies. So long as the public interest does not suffer thereby, why should a utility improvident enough to enter into a long-term or purportedly perpetual fixed-rate contract be readily excused from its bargain while a utility promising to supply power at a fixed rate for some shorter term is required to keep its word? And where is the line between the two to be drawn? Without suggesting that the duration of a fixed-rate power-supply contract can never properly affect the Commission’s determination whether the public interest warrants revision of the agreement, we are unable to accept the categorical analysis proposed by our dissenting brother.
. As we have stated, Met-Ed has dropped two of the arguments it earlier had presented to the Commission. See note 20 supra.
. See note 20 supra and accompanying text.
. Brief for Petitioner at 14-17.
. Brief for Petitioner at 18-30.
. See text supra at note 25.
. Metropolitan Edison Co. (Opinion No. 764), supra note 2, at 5-6, J.App. 76-77. See text infra at note 53.
. 190 U.S.App.D.C. 409, 587 F.2d 1306 (1978).
. Id. at 190 U.S.App.D.C. at 415-417, 587 F.2d at 1312-1314.
. Id. at 190 U.S.App.D.C. 416, 587 F.2d at 1313. Met-Ed’s attempt to secure an increase in the Middletown rate was made in the context of a § 206(a) proceeding exclusively. None of Met-Ed’s customers has complained, pursuant to § 205(b), 16 U.S.C. § 824d(b) (1976), about the rates Met-Ed exacts from them. This distinguishes the situation in the instant case from that presented in Norwood and Boroughs of Chambersburg v. FERC, 188 U.S.App.D.C. 310, 580 F.2d 573 (1978). In Chambersburg we held that a difference in rates among a utility’s customers “due solely to the fact that [the lower-rate customers] were protected by the Mobile-Sierra doctrine” portends no violation of the antidiscrimination provision of § 205(b). 188 U.S.App.D.C. at 314, 580 F.2d at 577 (emphasis in original). Nor-wood recognized that when Mobile-Sierra and § 205(b) are indeed on a collision course, they can be reconciled in appropriate cases by revising the rates charged those customers who are not parties to fixed-rate contracts. Town of Norwood v. FERC, supra note 36, 190 U.S.App. D.C. at 415-418, 587 F.2d at 1312-1315.
Met-Ed gains nothing from reliance on cases interpreting § 205(b)’s ban on “undue discrimination,” e. g., St. Michael’s Utils. Comm’n v. FPC, 377 F.2d 912 (4th Cir. 1967). No consumer complains in this litigation and “it is possible to have discrimination that violates § 205(b) but does not dismantle the protection generally afforded to fixed-rate contracts under Mobile-Sierra." Town of Norwood, supra note 36, 190 U.S.App.D.C. at 417 n. 21, 587 F.2d 1314 n. 21. See Public Serv. Co. v. FERC, 575 F.2d 1204, 1212 (7th Cir. 1978) (rates found unduly discriminatory for purposes of § 205(b) held not unduly discriminatory for purposes of Mobile-Sierra and § 206(a)).
. See note 18 supra and accompanying text.
. The reference, of course, is to York Haven Water & Power Co., Met-Ed’s corporate predecessor. See text supra at note 5.
. See text supra at note 7.
. See, e. g., Boroughs of Chambersburg v. FERC, supra note 38, 188 U.S.App.D.C. at 314, 580 F.2d at 577; St. Michael’s Utils. Comm’n v. FPC, supra note 38, 377 F.2d at 915.
. Metropolitan Edison Co. (initial decision), supra note 8, at 7-9, J.App. 62-64. It will be recalled that the Commission adopted this initial decision of the administrative law judge without reservation. See text supra at note 18.
. 1937 is the earliest year for which records have been submitted. Id. at 8, J.App. 63; Exhibit No. 42, J.App. 38-39.
. Metropolitan Edison Co. (initial decision), supra note 8, J.App. 63. During this period, the average paid by Met-Ed’s other resale customers ranged from a low of 0.78 cents during 1956 through 1958 to a high of 0.93 in 1945. J.App. 38-39.
. The average rate for other customers was higher than the Middletown rate by 0.07 cents in 1972 and 0.08 cents in 1973. J.App. 39.
. Metropolitan Edison Co. (Opinion No. 764), supra note 2, at 5 n.6, J.App. 76.
. Id. at 5, J.App. 76.
. Id.
. Cf. Town of Norwood v. FERC, 190 U.S. App.D.C. 409, 587 F.2d 1306, supra note 36.
. Metropolitan Edison Co. (Opinion No. 764), supra note 3, at 5, J.App. 76.
. Rate RT is described by the Commission as “applicable to the company’s other 69 Kv wholesale customers.” Metropolitan Edison Co. (Opinion No. 764), supra note 2, at 1, J.App. 72.
. Id. at 6, J.App. 77 (footnote omitted).
. See note 14 supra.
. See note 18 supra and accompanying text.
. Permian Basin Area Rate Cases (Continental Oil Co. v. FPC), supra note 28, 390 U.S. at 822, 88 S.Ct. at 1389, 20 L.Ed.2d at 367.
. Metropolitan Edison Co. (order denying rehearing), supra note 2, at 7, J.App. 81.
. United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 77, 90 L.Ed. 38, 42 (1945), quoted in FPC v. Transcontinental Gas Corp., 365 U.S. 1, 7, 81 S.Ct. 435, 439, 5 L.Ed.2d 377, 383 (1960).
. Metropolitan Edison Co. (Opinion No. 764), supra note 2, at 4, J.App. 75.
. United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., supra note 1, 350 U.S. at 344, 76 S.Ct. at 381, 100 L.Ed. at 386. See also FPC v. Louisiana Power & Light Co., 406 U.S. 621, 646, 92 S.Ct. 1827, 1841, 32 L.Ed.2d 369, 388 (1972); Permian Basin Area Rate Cases (Continental Oil Co. v. FPC), supra note 28, 390 U.S. at 820-821, 88 S.Ct. at 1388, 20 L.Ed.2d at 366; FPC v. Sierra Pac. Power Co., supra note 1, 350 U.S. at 353-355, 76 S.Ct. at 371-372, 100 L.Ed. at 394-395.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Marcus Wayne CHENAULT, Petitioner-Appellant, v. Leroy N. STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.
No. 77-2501.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1978.
Randy Bacote, Atlanta, Ga., for petitioner-appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Allen Moye, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
Before WISDOM, TJOFLAT and VANCE, Circuit Judges.
WISDOM, Circuit Judge:
Marcus Wayne Chenault appeals a district court order denying certain portions of his habeas corpus petition. We remand to the district court with instructions to dismiss the petition without prejudice so that Chenault may exhaust state remedies.
I.
On Sunday morning, June 30, 1974, Che-nault attended services at Ebenezer Baptist Church in Atlanta,' Georgia. During the service, Chenault shot Mrs. Martin Luther King, Sr., Deacon Edward Boykin, and Mrs. Jimmie Mitchell. Mrs. King and Mr. Boy-kin died from their wounds. On July 9, 1974, a Fulton County grand jury indicted the petitioner on two counts of murder and one count each of aggravated assault, of carrying a pistol without a license, and of carrying a concealed weapon. On September 12, 1974, a jury found the petitioner guilty of all charges. The jury imposed sentences of death on both counts of murder and a sentence of ten-years imprisonment on the aggravated assault count, which was to run consecutively with the death sentences. In addition, the trial judge imposed a one-year concurrent sentence on the count of carrying a pistol without a license and the count of carrying a concealed weapon. Chenault appealed, asserting sixteen errors. The Supreme Court of Georgia affirmed both his conviction and sentence. Chenault v. State, 1975, 234 Ga. 216, 215 S.E.2d 223. Chenault then instituted this federal habeas corpus proceeding, in which he presented the same errors he had asserted on his direct appeal.
The district court denied relief on fourteen alleged errors, and this Court affirmed. Chenault v. Stynchcombe, 5 Cir. 1977, 546 F.2d 1191, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158. The district court stayed consideration of enumerations of error fifteen and sixteen, which attacked the constitutionality of the Georgia death penalty statute and the imposition of the death sentence, pending determination by the Supreme Court on the constitutionality of the death penalty. On May 26,1977, after the Supreme Court decisions in the 1976 death penalty cases, the district court denied relief on enumerations of error fifteen and sixteen.
The petitioner contends that the district court erred in denying relief on enumerations of error fifteen and sixteen. In addition, during oral argument before this Court the petitioner made two new allegations of error. These contentions will be considered in turn.
II.
The district court properly denied relief on enumerations of error fifteen and sixteen. Enumeration of error fifteen contended that the Georgia death penalty statutes violate the constitutional prohibition against cruel and unusual punishment. In Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Supreme Court upheld the constitutionality of these Georgia statutes. Enumeration of error sixteen asserted that the petitioner’s death sentence had been imposed in violation of Ga.Code Ann. § 27-2503, because the prosecutor introduced no evidence on aggravation of punishment at the sentencing stage of the trial, choosing instead to rely only upon evidence heard on the issue of guilt. Whether this statute requires the prosecutor to present additional evidence at the sentencing stage is a question of state law, which is not cognizable in a federal habeas proceeding. Enumeration of error sixteen suggests no colorable federal constitutional claim.
III.
During oral argument before this Court, the petitioner asserted that the trial judge’s instructions to the jury during the sentencing stage of the trial about mitigating circumstances and the option to recommend mercy were constitutionally inadequate. The petitioner did not raise this issue in his appeal to the Supreme Court of Georgia or in his habeas petition in the district court. Furthermore, he has never attempted to raise it by filing a state habeas corpus proceeding under Georgia law. If the state habeas proceeding is available to him, the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. Because it appears that the petitioner can avail himself of the state habeas procedure, this Court determines that the issue of the adequacy of sentencing instructions is not properly before us.
The Georgia courts appear willing to entertain habeas corpus proceedings challenging the imposition of the death penalty on federal constitutional grounds. See, e. g., Ross v. Hopper, 1977, 240 Ga. 369, 240 S.E.2d 850; Wilkes, Postconviction Habeas Corpus Relief in Georgia : A Decade After the Habeas Corpus Act, 12 Ga.L.Rev. 249, 258-59 (1978). Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part) is the habeas provision applicable to persons, like the petitioner, imprisoned by virtue of a sentence imposed by a Georgia court. The statute allows the imprisoned person to assert that he has suffered a “substantial denial” of rights conferred by the United States Constitution. Ga.Code Ann. § 50-127(1). Except when the composition of a grand or traverse jury is challenged, federal constitutional rights are not deemed to have been waived unless it is shown that the habeas petitioner “voluntarily, knowingly, and intelligently” participated in the “intentional relinquishment or abandonment of a known right or privilege”. Id. Under this standard, it appears that the petitioner’s failure to object to the sentencing instructions at trial did not operate as a waiver. Therefore, he may pursue the state habeas remedy if his objection implicates a “substantial denial” of a federal constitutional right.
In view of the two most recent Supreme Court death penalty decisions — Lockett v. Ohio, 1978,- U.S.--, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Bell v. Ohio, 1978, - U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 — we conclude that the petitioner’s objection does implicate a substantial denial of a federal constitutional right. In Lock-ett the plurality opinion of the Chief Justice, in which Justices Stewart, Powell, and Stevens joined, states that the Eighth and Fourteenth Amendments require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”. - U.S. at --, 98 S.Ct. at 2965. See Bell,-U.S. at--, 98 S.Ct. 2977 (applying Lockett). The plurality would apply this requirement in all cases except perhaps where a mandatory death sentence is needed to deter certain kinds of homicide. See Lockett, - U.S. at--& n.ll, 98 S.Ct. 2954. Justice Marshall, although still adhering to his view that capital punishment is always unconstitutional, appears to have suggested that the sentencer must be allowed to consider “the unique individuality of every criminal defendant”. Lockett, - U.S. at -, 98 S.Ct. at 2973 (Marshall, J., concurring in the judgment). Justice Brennan did not participate in either decision. He has, however, consistently maintained that the death penalty is always unconstitutional. See, e. g., Coker v. Georgia, 1977, 433 U.S. 584, 600, 97 S.Ct. 2861, 53 L.Ed.2d 982 (Brennan, J., concurring in the judgment).
It now seems, therefore, that a death sentence imposed by a sentencer barred from considering mitigating circumstances will be vacated by a six-member majority of the Supreme Court — the plurality in Lockett and Bell and Justices Brennan and Marshall. This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against ■ death. Thus, the petitioner’s contention that the sentencing instructions given by the trial judge were not adequate on this point does implicate a substantial denial of a federal constitutional right. Should he file a state habeas petition raising this contention, the state courts would be required, in light of Lockett and Bell, to determine whether the instructions given adequately comport with the United States Constitution.
IV.
Georgia law provides that, in a capital case, a prospective juror who is opposed to the imposition of the death penalty under any circumstances is automatically removed by the trial judge “for cause”. Ga.Code Ann. §§ 59-806(4), 59-807. See Eberheart v. State, 1974, 232 Ga. 247, 250-51, 206 S.E.2d 12, 15-16, vacated on other grounds, 1977, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, modified, 239 Ga. 407, 238 S.E.2d 1. During oral argument before this Court, the petitioner contended that this use of a so-called “death-qualified jury” violated the Georgia Constitution’s guarantee to a “trial by an impartial jury”. Ga.Code Ann. § 2-105 (Const.1945). That is clearly an issue of state law, which is not cognizable in a federal habeas corpus proceeding.
The petitioner can obtain no relief even if his contention were recast as an argument that the death-qualified jury provision violates his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution. First, this issue is not properly before this Court, because the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. He did not present the issue on his appeal to the Supreme Court of Georgia, and he has not raised it by filing a state habeas proceeding under Ga.Code Ann. § 50-127. Second, in the recent case of Spinkellink v. Wainwright, 5 Cir. 1978, 578 F.2d 582, a panel of this Court held that a death-qualified jury procedure does not violate the constitutional right to a jury trial. Thus, this Court would be required to reject the petitioner’s argument if we had jurisdiction over this issue.
V.
In summary, we affirm the decision of the district court that the petitioner’s enumerations of error fifteen and sixteen are without merit. We find that his challenges to the sentencing instructions and to the death-qualified jury are not properly before this Court because he has failed to exhaust state remedies. We remand the case to the district court with instructions to dismiss the petition without prejudice so that the petitioner may pursue state remedies for these contentions.
AFFIRMED and REMANDED.
. Georgia allows a person incarcerated under a sentence imposed by a State court to institute a habeas corpus proceeding. See Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part). The petitioner has never attempted to obtain the writ of habeas corpus for the Georgia courts. In the district court, the respondent argued that the federal habeas corpus petition must be dismissed because the petitioner had failed to exhaust state remedies, as required under 28 U.S.C. § 2254. The district court determined that the petitioner had met the exhaustion requirement because on appeal the Supreme Court of Georgia had ruled upon every enumeration of error contained in the federal petition. The respondent has not renewed this exhaustion argument in this Court.
. Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 1976, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 1976, 428 U.S. 262, 96 S.Ct.. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 1976, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana, 1976, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.
. In the petitioner’s direct appeal, the Supreme Court of Georgia held that the prosecutor was not required to present additional evidence at the sentencing stage of the trial. Chenault v. State, 234 Ga. at 224-25, 215 S.E.2d at 229.
. There are many cases that state that a state prisoner may not pursue federal habeas corpus unless he has raised his issues in a state habeas proceeding. Recent Fifth Circuit cases to this effect are: Mosley v. Smith, 5 Cir. 1973, 470 F.2d 1320, cert. denied, 1973, 412 U.S. 932, 93 S.Ct. 2757, 37 L.Ed.2d 160; Brookins v. Florida, 5 Cir. 1972, 461 F.2d 663; Pebworth v. Henderson, 5 Cir. 1970, 428 F.2d 789; Wheeler v. Beto, 5 Cir. 1969, 407 F.2d 816.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_counsel2
|
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.
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
Dr. Carlos Bustamonte RICON, alias Harold B. Richardson alias Jesse Lewis, Appellant, v. Warden, Sam P. GARRISON, Central Prison, Raleigh, N. C. and State of North Carolina, Appellees.
No. 74-1426.
United States Court of Appeals, Fourth Circuit.
Argued March 7, 1975.
Decided May 28, 1975.
Certiorari Denied Oct. 14, 1975.
See 96 S.Ct. 195.
Patricia W. Weinberg, Arlington, Va. (court-appointed) for appellant.
Richard N. League, Asst. Atty. Gen. (Rufus L. Edmisten, Atty. Gen. of North Carolina, on brief), for appellees.
Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
The petitioner, a North Carolina prisoner convicted of the crime of breaking and entering, sought habeas relief, claiming a violation of his right to a speedy trial under the Sixth Amendment. Exhaustion of state remedies was conceded. On the state record, the District Court denied relief and this appeal followed. We affirm.
The prosecution of the petitioner actually began in 1955. In February of that year, he was tried and convicted on three charges of forgery and on a charge of breaking and entering. He received a sentence of not less than 3 nor more than 4 years on the forgery convictions and of not less than 7 nor more than 10 years on the breaking and entering conviction, to be served consecutively. In August of that same year, he was convicted and sentenced to prison for two years on an escape charge and for 10 years on a charge of secret assault with a deadly weapon with intent to kill, the sentences to be served consecutively. Subsequently, he escaped from prison on two occasions and was out of custody (1) from November, 1955, to September, 1956, and (2) from October, 1957 to July, 1965. While a fugitive, he was arrested and convicted in 1963 in the State of Pennsylvania of illegally practicing medicine under the name of Harold B. Richardson. He received a sentence of 2 years on this offense. As a result of this imprisonment, he was identified as a fugitive from North Carolina and at the completion of his imprisonment in Pennsylvania, he was returned to North Carolina for the completion of his sentences in that State where he was known as Jesse B. Lewis. Immediately on his return to North Carolina, he began a series of pro se proceedings in both state and federal courts seeking release, claiming that he had “never visited” North Carolina until forcibly and illegally returned through extradition proceedings, had never committed “any crime” in that State and was accordingly imprisoned improperly and unconstitutionally in that State. He went further, asserting that he was a doctor, “a refugee from Haiti” involved “in service with the Central Intelligence Service.” It was established, however, by means of fingerprint records that the petitioner was “known by numerous other names and aliases” than Richardson and Lewis but that he was the same person, whether using the name Richardson or Lewis. He filed at least four proceedings in the District Court setting up this claim of misidentification and prosecuted three appeals to this Court from the denial of relief on that ground. These proceedings continued as late as May, 1970.
He completed service of his sentence under the forgery conviction in September, 1966 and began service of his sentence on the breaking and entering charge at that time. In February, 1967, he filed in state court another habeas proceeding, claiming again that he was Dr. Harold B. Richardson, not the defendant Lewis and asserting somewhat inconsistently that Lewis had not been represented by counsel at his convictions in 1955. A hearing was accorded the petitioner on that claim in the state court and it was determined again that the petitioner was the defendant Lewis. But, in the course of that habeas hearing, it developed that the petitioner had not been represented by counsel at his 1955 convictions and the state court invalidated all of the 1955 convictions, with leave to the State to retry. An order to this effect was entered in February, 1967. At the same time, the Court on its own motion ordered the petitioner committed to a state mental hospital for determination of his competency to stand trial. It was not until April 12, 1967, that the petitioner was determined to be competent to stand trial.
After the petitioner had been adjudged competent to stand trial, the State apparently chose to proceed first on the charge of secret assault and, at the instance of appointed counsel, trial on that charge was delayed until October, 1967, when he was tried and convicted. From this conviction, he appealed and was granted a new trial in November, 1968. Retried on this charge in May, 1969, he was again convicted and this conviction was affirmed in 1970. On April 1, 1970, counsel was appointed to represent the petitioner on the charge of breaking and entering. At the same time the petitioner was prosecuting pro se in the District Court another action in which he raised the issue of misidentification. Counsel, appointed to represent him on the breaking and entering charge, raised the issue of speedy trial as well as the competency of the petitioner to stand trial on June 1, 1970. As a result of this action, the court concluded first to order a mental examination of the petitioner. In October, 1970, the ease was called for trial, but, upon renewal of the plea of incompetency and after a hearing on the petitioner’s competency to stand trial, the petitioner was found incompetent and was ordered returned to the State Mental Hospital. He remained at the Hospital until August, 1972, when he was finally found competent to stand trial. To permit counsel for the petitioner to be present and submit motions, trial was delayed until November, 1972, when he was tried, convicted, and sentenced to not less than 3 nor more than 5 years’ imprisonment, with credit for prior confinement. It is that conviction which the petitioner assails in this habeas proceeding on “speedy trial” grounds.
Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 is the authoritative decision on the construction of the right to a speedy trial as guaranteed by the Sixth Amendment. It declared that the right is a “vague concept” in the area of constitutional rights, not susceptible of rigid or precise definition. The right, it declares, cannot be “quantified” and is not to be applied mechanically in terms of any fixed period of time, like a statute of limitations, for, as it has elsewhere been stated, “[T]he mere passage of time * * * [will] not, per se, establish an unconstitutional denial of a right to a speedy trial.” Its application, according to Barker, demands rather an ad hoc approach, representing “a functional analysis of the right in the particular context of the case.” The analysis thus required is, we are advised, to consist of a sensitive balancing of the conduct of both the prosecution and the defense in the setting of “the peculiar circumstances of the case.” And the Court identified the factors to be considered in this balancing test as “[Ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant,” though it cautioned that no one of the factors was to be regarded as “either a necessary or sufficient condition [in. itself] to the finding of a deprivation of the right of speedy trial” since “they are related factors and must be considered together with such other circumstances as may be relevant.”
In applying this “balancing test,” as mandated by Barker, the first issue is necessarily the extent of delay. The parties differ substantially in their calculations of the delay in this case. The petitioner insists the starting point for determining the length of the delay is the date of petitioner’s original indictment and trial in 1955. It is the position of the State, on the other hand, that, in calculating the delay, we should start with the date in 1967 when petitioner’s original conviction was invalidated and the petitioner was found competent to stand trial. We are persuaded that the latter view is the correct one. Until March 18, 1963, it was generally assumed in most states to be unnecessary to appoint counsel in any criminal case other than those involving a capital offense. Accordingly, when the defendant was originally tried in 1955 it was not considered incumbent on the court to appoint counsel for him. Prior to Gideon the State had no reason to assume that the failure to appoint counsel in a non-capital case would invalidate a conviction; and, after Gideon it is to demand too much of the state that it should have reviewed all convictions prior to Gideon to ascertain whether the defendant in every case, such as the petitioner, either was afforded or validly waived counsel. Until 1967 the State had not been put on notice that the petitioner was without counsel when convicted in 1955. Under the circumstances, the State should not be charged with the delay between 1955 and 1967. This is particularly so in this case, since during a substantial period of this delay, the petitioner was a fugitive, having escaped from custody.
The State, also, contends that the periods when the petitioner was either under observation to determine his competency to defend himself or was under treatment for mental disability should not be considered in calculating the length of delay. Both the State Court, in its decision on the petitioner’s post-conviction proceedings, and the District Court, in the habeas proceeding there, concurred in this view. We are in agreement. As one Court has put it, where the delay results from a concern by the trial court over the mental competency of the defendant to stand trial, “the courts have been exceedingly reluctant to find constitutional- infirmity even in very long delays.” Indeed, if the trial court did not exercise a zealous concern in safeguarding a possibly incompetent defendant in his rights, it would properly be subject to censure and could render by its want of concern the conviction, if secured, open to attack. Rather than being penalized for seeking assurance of the mental competency of the petitioner before ordering him to trial, the State should be commended.
Measured under the principles just stated, the delay in this case was approximately 36 months. That is unquestionably substantial delay. It is not, however, as great as the delay in Barker itself, where the delay was in excess of five years, or in many other cases where the courts have found no infringement of the right to a speedy trial. It is, though, a sufficiently “unusual” delay to act as a “triggering mechanism” to require inquiry into the other factors that enter into the balancing test mandated by Barker but it still “is only one of several factors to be weighed and balanced in determining whether the right to a speedy trial has been denied.”
The second factor, which Barker orders considered in this connection, is the reason for the delay. The record establishes that there was no attempt by the State to bring the petitioner to trial on the charge of breaking and entering between April 12, 1967 and April 1, 1970, when counsel was first appointed for the petitioner in this case. The petitioner makes no claim that the State had delayed trial in order to hamper the defense or to gain an advantage, and the record does not suggest that, in the language of the North Carolina Court, the delay was “the studied choice of the prosecution.” The record is, however, silent on the reason for this delay. It may have been that, because the petitioner was already serving another sentence, the State chose to give trial priority to defendants who had not been previously convicted and were net currently serving valid sentences. While such a reason has been declared not “irrational”, the mere fact that one is already under sentence as a result of another charge is not a complete justification for delay in his trial on other pending charges. In the absence of any explanation by the State for its sloth, the conclusion that simple neglect or perhaps an overcrowded docket was the reason for the delay in this case is plausible. Such a delay, though more “neutral” than intentional delays, is still viewed with disfavor but is not heavily weighed in the balancing test.
It is conceded that until June, 1970, the petitioner made no demand for trial. To some extent this failure can be excused because it was not until April 1, 1970 that counsel was appointed for the petitioner and such counsel promptly raised the claim on June 1, 1970. The State Court observed in this connection, however, that it was “obliged to take note of the many petitions filed in the court by defendant without benefit of counsel seeking relief as to other matters.” And the record in this Court and in the District Court shows that the petitioner was persistently invoking pro se the aid of the Court in challenging his convictions. Despite all this, we are not, though, inclined to hold against him his failure earlier to assert his claim. At best, it would be largely a “neutral” factor in the application of the balancing test, just as the State’s neglect in pressing the prosecution might be regarded as a “neutral” factor.
This brings us to the question of prejudice, which, while not an essential to the establishment of a violation of the right, is a prime issue and a “critical factor.” The burden of establishing prejudice rests on the petitioner. In this case, the petitioner asserts but two grounds for a finding of prejudice: 1. The death of a witness; and 2. The loss of the opportunity for a concurrent sentence. Neither ground seems to have any merit. The witness, whose death represented an alleged prejudice to the petitioner in the presentation of his defense, died in the 50’s, almost a decade before the petitioner asserted his claim that his prior conviction was invalid and before he was granted at his instance a retrial. Nor can it be argued that petitioner suffered any prejudice by the loss of an opportunity for a concurrent sentence. The petitioner was convicted at least seven times in connection with his 1955 offenses and at no time was he given a concurrent sentence; in every instance, the Court imposed consecutive sentences. We cannot hold that, in the face of this record, there was any possibility of a concurrent sentence for the petitioner. We agree with both the State Court and the District Court that, to use the language of the Court in United States v. Alo, supra, petitioner “failed not only in demonstrating actual prejudice in any respect, but also in establishing the credible possibility of prejudice.”
In balancing all the factors discussed, which Barker mandated for consideration, we find no error in the result reached by both the State Court and the District Court that there was no infringement of petitioner’s right to a speedy trial in this case. We must express, however, serious concern over the delay on the part of the State in seeking a retrial in this case. In situations where the State has been granted the right to retry following the allowance of habeas relief, it should be particularly solicitous of the defendant’s right to a speedy trial. We would not like to be understood as condoning any unusual delay in such cases. Were it not for our conclusion that there was no real prejudice, it is possible the result in this case would have been different.
Affirmed.
. This historical background is set forth in State v. Lewis (1973) 18 N.C.App. 681, 198 S.E.2d 57.
. This part of the history appears in State v. Lewis (1968) 274 N.C. 438, 164 S.E.2d 177, 178-9.
. 274 N.C. 438, 164 S.E.2d 177.
. 7 N.C.App. 178, 171 S.E.2d 793.
. United States v. Spoonhunter (10th Cir. 1973) 476 F.2d 1050, 1057. To the same effect: United States v. Cary (1972) 152 U.S.App.D.C. 321, 470 F.2d 469, 472.
. Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
. United States v. Canty (1972) 152 U.S.App.D.C. 103, 469 F.2d 114, 118 (quoting from Blunt v. United States (1968), 131 U.S.App.D.C. 306, 404 F.2d 1283, 1287.) To the same effect, see United States v. Lynch (D.C.Cir. 1974) 499 F.2d 1011, 1018, n. 6; United States v. Heinlein (1973) 160 U.S.App.D.C. 157, 490 F.2d 725, 729, n. 4; United States ex rel. Little v. Twomey (7th Cir. 1973) 477 F.2d 767, 770, cert. denied 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94.
. See United States v. Perez (5th Cir. 1974) 489 F.2d 51 (36 months), cert. denied 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664; United States v. Drummond (5th Cir. 1974) 488 F.2d 972 (39 months); United States v. Churchill (1st Cir. 1973) 483 F.2d 268 (26 months); United States v. Fasanaro (2d Cir. 1973) 471 F.2d 717 (4 years), vacated and remanded for further consideration in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Fasanaro v. United States, 408 U.S. 916, 92 S.Ct. 2505, 33 L.Ed.2d 329; United States v. Rosenstein (2d Cir. 1973) 474 F.2d 705 (34 months); United States v. Reynolds (6th Cir. 1973) 489 F.2d 4 (22 months), cert. denied 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766; United States v. Saglimbene (2d Cir. 1972) 471 F.2d 16 (6 years), cert. denied 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686; United States v. DeLeo (1st Cir. 1970) 422 F.2d 487 (29 months), cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648.
See, also, United States v. Alo (2d Cir. 1971) 439 F.2d 751, 756, where the defendant was secretly indicted, the Government failed to proceed because of desire to conceal improper surveillance, and defendant was finally re-indicted three years later. The Court dismissed the claim of violation of the right to a speedy trial primarily because there was no showing of “credible possibility of prejudice” (emphasis in opinion). Certiorari was denied in 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89, reh. denied 404 U.S. 961, 92 S.Ct. 307, 30 L.Ed.2d 282, with a dissent in 414 U.S. 919, 94 S.Ct. 215, 38 L.Ed.2d 155.
. See Barker, 407 U.S. at p. 530, 92 S.Ct. at p. 2192:
“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”
. United States v. Churchill, supra, 483 F.2d at 273.
. At the October 1967 Session of Superior Court of Nash County, the Presiding Judge found “That since the defendant returned from Cherry Hospital he has been in custody of the Sheriff of Nash County and that at each term of court for the trial of criminal cases since his return to Nash County, the State has been ready for the trial and disposition of this case, and that each and every time the case has been called, the defendant at his own request has had same continued until this date (October 1967).”
. State v. Lewis (1973) 18 N.C.App. 681, 198 S.E.2d 57, 62.
. In United States v. Canty, supra, 469 F.2d at p. 119, the Court described this choice of the prosecution as “not entirely irrational.” Cf. also, Gerberding v. United States (8th Cir. 1973) 471 F.2d 55, 61.
. Jordan v. Beto (5th Cir. 1973) 471 F.2d 779, 781.
. See United States v. Cabral (1st Cir. 1973) 475 F.2d 715, 718; United States v. Toy (1973), 157 U.S.App.D.C. 152, 482 F.2d 741, 743. In the latter case, the Court said:
“ * * * While the Government agrees that the delay was most unfortunate, it denies that the delay was intentional to gain an advantage, and assigns institutional reasons as the cause. A delay due to ‘negligence or overcrowded courts,’ 407 U.S. at 531, 92 S.Ct. 2182, is not necessarily fatal to a valid prosecution, though it is a factor to be considered.”
. See United States v. Dyson (5th Cir. 1972) 469 F.2d 735, 740:
“ * * * While it is true that Dyson never demanded trial it is not clear that he was aware of his right to do so since counsel was not appointed to represent him until March 30, 1972, just four days before trial.”
. 198 S.E.2d at 62.
. See Moore v. Arizona (1973) 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, but cf., United States v. Alo (1973) 414 U.S. 919, 94 S.Ct. 215, 38 L.Ed.2d 155.
. United States v. Geller (9th Cir. 1973) 481 F.2d 275, 276.
. United States v. Reynolds (6th Cir. 1973) 489 F.2d 4, 7, cert. denied 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766.
. Jones v. Wainwright (5th Cir. 1974) 490 F.2d 1222, 1225; United States v. Morse (1st Cir. 1974) 491 F.2d 149, 157; Godbold, Speedy Trial—Major Surgery for a National Ill, 24 Ala. L.Rev. 265, 283-4 (1972).
. Cf., Smith v. Hooey (1969) 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607.
. 439 F.2d at p. 756 (Italics in text).
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
BOST v. UNITED STATES.
No. 8768.
Circuit Court of Appeals, Ninth Circuit.
April 27, 1939.
James M. Hanley, of San Francisco, Cal., and Ray T. Coughlin, of Sacramento, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Robert L. McWilliams and Sydney P. Murman, Asst. U. S. Attys., all of San Francisco, Cal.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
GARRECHT, Circuit Judge.
Ben A. Bost, the appellant, in an indictment consisting of five counts, filed March 30, 1937, was charged with violation of the Act of June 18, 1934, tried, found guilty on all five counts, sentenced to five years imprisonment under each count, sentences to run concurrently, and fined the sum of $5,000 under the first count. He appeals from said judgment.
April 6, 1934, the appellant presented one bar of gold bullion at the United States Mint in San Francisco for sale to the United States Government, together with an affidavit on Form TG-19, required by the regulations promulgated by the Treasury Department under the Gold Reserve Act of 1934. This affidavit recited the 'affiant, Ben A. Bost, of Nevada City,.Calif., to he the owner of the Lucky Gravel Claim, located in “Cougher Canypn,” Eldorado County, Calif.; that the source of the gold was in said claim, “mostly small nuggets”; that the gold was recovered from “200 cubic yards” of gravel or ore, in the period from October 1, 1933, to March 31, 1934; that the date' upon which the gold was first melted into crude metallic gold suitable for refining was April 5, 1934. The affidavit went on to state:
“The gold referred to herein was recovered by this depositor by mining or panning and no part thereof has been held hy this depositor or to the best of my knowledge, information and belief, by any other person at any time in noncompliance with the Act of March 9, 1933, any executive order or orders of the Secretary of the Treasury issued thereunder, or in noncompliance with any regulations prescribed under such order or license issued pursuant thereto, or in noncompliance with the Gold Reserve Act of 1934, or any regulations or license issued thereunder. No part of such gold has ever entered into monetary or industrial use.
“I make this affidavit for the purpose of inducing the purchase by a United States Mint or assay Office of gold described herein under and in accordance with the provisions of the Gold Reserve Act of 1934 .and the regulations issued thereunder.”
The appellant offered gold at the United States Mint in San Francisco for sale to the United States on four other occasions and in each instance accompanied the gold with a similar affidavit. The indictment was drawn in five counts, each offer and accompanying affidavit being treated in a separate count.
Acting under instructions of his superior to make an investigation of persons suspected of handling and dealing in stolen high grade gold ore, R. C. Lynn, a special .agent of the Bureau of Internal Revenue, made a search of the records of the United States Mint at San Francisco for the names of licensed gold buyers or former licensed gold buyers in Nevada County, Calif. Among the names was that of Ben A. Bost, upon whom Lynn called in Nevada City, Calif., August 8, 1936. Bost told Lynn the gold sold by him to the Mint in 1935 was produced from the Lucky Gravel mining claim of which he owned the mineral rights and that the mine was located approximately 40 miles north of Georgetown, Calif., possibly in Eldorado County, Calif.
Lynn next saw Bost on August 24, 1936, at which time he told Bost that he had made a search to find the Lucky Gravel mining claim, without success, and offer•ed to furnish transportation if Bost would show him the mine. Bost informed Lynn that he would be unable to do so for the reason that he had seen the mine on but one occasion, five or six years before, and -did not recall the route he had taken.
On September 18, 1936, Lynn again called upon Bost, this time accompanied "by William Malloy, a deputy collector of Internal Revenue. Lynn told Bost on this occasion that he was unsuccessful in his .-search for the mine, had not been able to find anyone who had ever heard of it, and wanted to question Bost further. He then placed Bost under path, and Bost related a story describing how he became financially interested in the Lucky Gravel, how he journeyed there at night, spent a day there and returned next morning to his home.
Lynn further testified that he had made extensive searches and inquiries throughout the vicinity described by Bost but failed to find the Lucky Gravel Claim or Cougar Canyon, or the asserted lessees of Bost, namely Swissler, Larsen and Hensen, and that he failed to find anyone who had heard of any of them.
Other witnesses were produced by the Government, residents of the neighborhood, who testified that they had never heard of Lucky Gravel claim, Cougar Canyon, or of Swissler, Larsen or Hensen. One witness said that he had heard of a Cougar Canyon when he was a boy, 48 or 50 years before, and again, about 2 years before the trial, when he was asked whether he knew of such a place, but he had never been there and had no more than a vague idea of where such a canyon might be located.
In addition, the County Assessor of Eldorado County was called as a witness and testified that he was familiar with the assessment rolls of the county; that such -records were kept under his supervision; that there had not been any tax assessment on any claim known as the Lucky Gravel claim in Eldorado County nor had there been any tax assessment in said county against any individual named Hans Hensen, G. A. Swissler or Larry Larsen or Ben Bos't. The County Surveyor of Eldorado County testified that in all his 40 years of residence in Eldorado County he had never heard of Cougar Canyon or any claim known as Lucky Gravel, or of miners named Hans Hensen, G. A. Swissler or Larry Larsen. The County Surveyor of Placer County, which adjoins Eldorado County testified in like vein.
There was testimony from other witnesses for the Government also indicating that the canyon, mine and miners were wholly fictitious.
- The defendant produced four character witnesses, each of whom testified that the defendant bore a good reputation in his community.
The defendant had lived in Nevada City, Calif., ever since his birth and operated a general assay office there from 1907 to March, 1934. He testified that a man named Swissler, whom he had known in 1886 in the town of Deadwood, Trinity County, Calif., and whom he had not seen since, called at his office in 1928, told him that he (Swissler) was prospecting and wanted Bost to advance him $250 to proceed with his work; that Swissler said he thought he would strike pay gravel; that Bost advanced the $250 and occasionally thereafter Swissler came in with small amounts of gold; that Swissler had not named the mine and Bost called it the “Lucky Gravel”; that Swissler told Bost it was located in Cougar Canyon, in Eldorado County. Bost further gave téstimony that Swissler called upon him late in October, 1930, and wanted more money and when Bost said that he wanted to see the mine, Swissler offered to show him; that they went by automobile to Rattlesnake Bar bridge, about 7 miles below Auburn on the Middle Fork of the American River; that they started from there at 6 :30 p. m. on burros, traveling from 30 to 40 miles over a trail; that they arrived at the mine at 3:30 a. m. and stayed all that day; that there was a 900 foot tunnel and a small stream of water on the claim; that the tunnel ran 800 feet through lava formation before striking gravel; that he examined the • tunnel ' and panned some of the gravel; that he rested all that afternoon and night; that Swissler and he left there at 5:30 'a. m. for Auburn, starting toward Georgetown on an abandoned road, meeting a camper on the way who took Bost into Auburn, while Swissler presumably returned to the mine; that Bost arrived in Auburn at approximately 1:30 p. m. Bost said that he became half owner of the mine when he paid Swissler $250 on the occasion of the first visit of Swissler to his office in 1928, and full owner on the visit to the claim in 1930 upon payment of $245. According to Bost’s testimony, Hensen was at the mine when Bost arrived; Hensen brought gold to Bost six times; Bost last saw him in Nevada City, September, 1935, at which time Hensen is alleged to .have told him the gravel had all been worked out and that more money would be needed to prospect further. Bost -also testified that he was sure the claim had not been recorded because he had named the claim and because Swissler. said he (Swissler) owned the ground.
Cross examination of the defendant disclosed that the mine was old and had theretofore been abandoned — “worked in early days;” that Swissler had given his receipt to Bost for the $250 payment in 1928, but it had been destroyed; that at one time Swissler brought in a lot of gold of 40 ounces; that Bost had no recollection of the number of deposits or shipments of gold turned over to Bost by Swissler between 1928 and 1930, because he kept no “record of those things.” In January, 1932, according to Bost, Swissler, Hensen and Larsen appeared at his office and stated that they wanted a lease on the Lucky Gravel claim, and a typewritten page was offered in evidence purporting to be such lease signed by Bost, Swissler, Hensen and Larsen, and granting 10% of the profits of the mine to Bost.
The appellant contends: “I. The indictment wholly fails to state any Federal offense by appellant. II. The evidence is insufficient to warrant or sustain appellant’s conviction under all five counts. III. The District Court committed various prejudicial errors in the admission and rejection of evidence at the trial of the case.”
The appellant urges, under the first contention, raised through the medium of a demurrer to the indictment, (a) that the indictment fails to set out with definiteness just where the affidavit of Bost was false; (b) that it does not allege that the type of gold deposited by Bost required the affidavit in question; and (c) that the indictment uses the words “material matter” rather than the statutory words “material fact.” All five counts of the indictment are couched in the same terms, save that each relates to a separate offer by Bost to sell gold to the mint, and, therefore,- need not be discussed separately. Points (a) and (b) are wholly lacking in merit and are answered by a reading of the indictment. As to point (c), this court has heretofore discussed and passed upon the problem, stating the law as follows: “The first paragraph of the count attempts to charge in the language of the statute, but states only that appellant wilfully falsified ‘a material matter.’ The words ‘a material fact’ are omitted. Obviously, it is the falsification and concealment of facts leading to the sale, and not of the whole of the ‘matter’ of the purchase under the statute, in which the government is engaged, which constitutes the offense. This deficiency in the first paragraph would be cured were there alleged elsewhere in the count facts inducing the purchase which were falsified or concealed. We are unable to discover their presence.” Hills v. United States, 9 Cir., 97 F.2d 710, 712.
The indictment here specifically alleges the facts as required by the Hills case, supra, in the following language: “That he was the owner of a mining claim called the ‘Lucky Gravel’ claim, and that the source of said gold so tendered and deposited was ‘Lucky Gravel claim, mostly small nuggets’, and that said gold had been recovered from said claim, which claim it was stated in said affidavit was located in Cougar Canyon, Eldorado County, California, whereas in truth and in fact as said defendant then and there well knew, he was not the owner of any mining claim in said County and State, known as or called the Lucky Gravel claim, and said gold had not been recovered from said alleged claim, which facts said defendant at all times well knew.”
We conclude, therefore, the indictment was sufficient in form and substance.
The appellant next argues the insufficiency of the evidence, contending that where the facts are as consistent with innocence as with guilt, the conviction cannot be sustained. But the facts here, if believed by the jury, are not as consistent' with innocence as with guilt, even if we should assume that this test of the evidence may be made by us which we do not do. The appellant brought gold to the United States Mint and, to induce purchase by the mint, made an affidavit as prescribed by the regulations. The agents of the Government were not obliged to believe the averments and attempted verification met with failure. Testimony was introduced tending to show that the Government agents made diligent search for the mining claim, but were unable to locate either the claim or the canyon in which it was supposed to be found and Bost was of no assistance. These facts, if believed, prove that Bost’s affidavit was false and he failed to substantiate it; his story was so inherently improbable as to be utterly unworthy of belief. The case was made out under 18 U.S.C.A. § 80, if the jury chose to disbelieve the defendant.
The final phase of the case relates to asserted errors in the admission of evidence, the first question thereunder concerning the introduction in evidence, over objection of defendant, of a map of Eldorado National Forest, and certain topographical maps of the vicinity. The maps were offered, as was explained by Government counsel, “for the purpose of showing that on none of them, notwithstanding the detail with which they were prepared, did Cougar Canyon appear, though many other canyons and other topographic features were shown.” The map of Eldorado National Forest was marked: “U. S. Department of Agriculture Forest Service,” and was introduced during the testimony of H. C. Sedelmeyer, a civil engineer with the United States Forest Service, who identified it as an official map. Harry D. Mc-Glasham, an assistant geological engineer for the United States identified official maps of tjie United States Geological Survey, covering Eldorado County, which were received in evidence as Exhibit 3. Counsel for defendant objected to the introduction of both exhibits on the ground of hearsay.
It is apparent from these printed maps, brought up as exhibits, that they are, to all intents and purposes, official maps of the departments of the United States Government which prepared them. The appellant in United States v. Romaine, 9 Cir., 255 F. 253, 254, 255, introduced in evidence certain hydrographic maps made by the United States Coast and Geodetic Survey, which the trial court ’disregarded. This court said, “We think the maps should be given full credence, and should be taken as absolutely establishing the truth of all that they purport to show. * * * the court might properly take judicial notice, of the accuracy of the official plats of the United States Coast and Geodetic Survey.”
These maps, being originally prepared by trained and competent employees of the United States Government in pursuance of their official duties, and in general use, are clearly within the same exception to the hearsay rule as Judge Parker had in mind in Long v. United States, 4 Cir., 59 F.2d 602, 603; “ * * * ft falls clearly within the principles under which exceptions to the hearsay rule are admitted; i. e., necessity and circumstantial guaranty of trustworthiness. Wigmore on Evidence, vol. 2, § 1420 et seq. and vol. 3, §§ 1630-1636. As to trustworthiness, it is made by an official of the government in the regular course of duty, who presumably has no motive to state anything but the truth, and it is made to be acted upon, and is acted upon, in matters of importance by officials of the government in the discharge of their duties.” Compare 22 C.J. § 1114, pp. 910-913; 22 C.J. § 1430, pp. 1085, 1086; Chesapeake & Delaware Canal Co. v. United States, 3 Cir., 240 F. 903, 901.
Next brought to our consideration are the assignments of error relating to .the admission of testimony in certain instances, over objection of defense counsel. These assignments afford no basis upon which this court may find error in the conduct of the trial below, being vague and indefinite, failing to place the instances, and not disclosing the name of the witness whose testimony is asserted to be objectionable. Furthermore, our study of the record convinces us the assignments are without merit.
The judgment is affirmed.
Section 35 of the Criminal Code of the •United States, 48 Stat. 996, 18 U.S.C.A. § 80 (quoted): “Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * * knowing such claim to be false, fictitious, or fraudulent; or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or .device a material fact, or, make .or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or’ deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States '* * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
Gold Reserve Act of 1934, 48 Stat. 337, 340, 31 U.S.C.A. § 442: Sec. 3. “The Secretary of the Treasury shall, by regulations issued hereunder, with the approval of the President, prescribe the conditions under which gold may be acquired and held, transported, melted or treated, imported, exported, or earmarked: (a) for industrial,, professional, and artistic use; (b) by the Federal Reserve banks for the purpose of settling international balances; and, (c) for such other purposes as in his' judgment are not inconsistent with the purposes of this Act [section 441 of this section]. Gold in any form may be acquired, transported, melted or treated, imported, exported, or. earmarked or held in custody for foreign or domestic account (except on behalf of the United States) only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations. Such regulations may exempt from the provisions of this section, in whole or in part, gold situated in the Philippine Islands or other places beyond the limits of the continental United States.” ,
Provisional Regulations issued under the Gold Reserve Act of 1934 by the Secretary of the Treasury and approved by the President of the United States:
“Sec. 35. The mints, subject to the conditions specified in these regulations, and the general regulations governing the mints, are authorized to purchase:
“(a) Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof, and which shall not have entered into monetary or industrial use; * * *
“Sec. 38. Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof.—
“(1) The mints shall not’ purchase any gold under clause (a) of section 35 unless the deposit of such gold is accompanied by a properly executed affidavit as follows:
“An affidavit- on form TG-19 shall be filed with each delivery of gold by persons who have recovered such gold by mining or panning in the Unit.ed States or any place subject to the jurisdiction thereof: Provided, however, That such persons delivering gold in the form of nuggets or dust having an aggregate weight of not more than 5 ounces, which they have recovered from mining or panning in the United States or any place subject to the jurisdiction thereof, may accompany such delivery with full and complete information on form TG-19 without the requirement of an oath.”
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_counsel2
|
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.
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
R. Wayne JOHNSON, Petitioner-Appellant, v. O.L. McCOTTER, Director of Texas Department of Corrections, Respondent-Appellee.
No. 86-1219.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 31, 1986.
R. Wayne Johnson, pro se.
David B. Fannin, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
In 1978 Ronald Wayne Johnson was convicted of aggravated rape by a jury in Texas and was sentenced to serve ninety-nine years. On direct appeal, the Texas Court of Criminal Appeals affirmed his conviction.
In 1984 Johnson filed a pro se § 2254 petition alleging that (1) the evidence was insufficient to support his conviction; (2) the state court jury charge was fundamentally defective; (3) his court-appointed trial counsel was ineffective; and (4) his fourth amendment right to be free from unlawful search and seizure was violated. Johnson alleged his trial counsel was ineffective because he (1) failed to object to the allegedly defective jury charge; (2) failed to appeal the denial of his motion to suppress; (3) failed to argue on appeal that the evidence of his prior conviction was insufficient; and (4) failed to challenge the array of the jury. The district court denied Johnson’s petition.
In February 1985 Johnson filed the present pro se § 2254 petition alleging that his state court trial counsel was ineffective and that he was denied his constitutional right to represent himself at his state court trial. Specifically, Johnson claimed his counsel was ineffective because he (1) failed to conduct a proper pretrial investigation so as to present an insanity defense; (2) failed to file a motion for rehearing; (3) failed to present several witnesses; (4) failed to request a jury charge requiring the jury to disregard illegally obtained evidence; and (5) failed to request a jury charge that Johnson had a right to remain silent during the punishment phase of his trial. In his petition Johnson stated he did not present these grounds for his ineffective-assistance claim in his prior petition because he did not discover their legal significance until he performed legal research on September 1, 1984. Johnson also alleged he did not present his self-representation claim in his prior petition because he did not discover the legal basis for the claim until October 13, 1984, while in the Ector County Jail.
The state filed a motion to dismiss alleging that Johnson’s petition was an abuse of the writ. The state also filed an answer addressing the substantive merits of Johnson’s petition. Johnson filed responses in opposition to the state’s motion to dismiss and answer. After an evidentiary hearing was held on the substantive merits of Johnson’s petition, the district court dismissed Johnson’s petition. Johnson filed a timely notice of appeal.
I
Rule 9(b) of the Rules Governing § 2254 Cases, 28 U.S.C. foil. § 2254, provides:
Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
“The purpose of [Rule 9(b)] is to avoid piecemeal litigation, with petitioners advancing claims one at a time.” Hamilton v. McCotter, 772 F.2d 171, 176 (5th Cir. 1985) (quoting Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984)). A habeas petitioner abuses the writ by failing to raise his present claim in a previous habeas petition without legal excuse. Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir. 1985); Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).
Abuse of the writ may be raised by the state or the district court sua sponte. Daniels, 763 F.2d at 707. Where, as here, the state raises the issue of writ abuse, it must recite petitioner’s writ history, specify new claims alleging writ abuse, and allege that it is not aware of any new facts or changes in the law that justify a new petition. Urdy v. McCotter, 773 F.2d 652, 655 (5th Cir.1985); Jones, 722 F.2d at 164. The burden then shifts to the petitioner to prove by a preponderance of the evidence that he has not abused the writ. Urdy, 773 F.2d at 655-6; Daniels, 763 F.2d at 707.
Although the state met its burden, the district court neglected to give Johnson notice that the court was considering dismissal of his petition as an abuse of the writ. In Urdy, this court held that a “petitioner must be given specific notice that the court is considering dismissal and given at least 10 days in which to explain the failure to raise the new grounds in a prior petition.” 773 F.2d at 656. The court should notify the petitioner (1) that dismissal is being considered; (2) that his petition will be dismissed automatically if he fails to respond; and (3) that his response should present facts rather than opinions or conclusions. Id.
Johnson was not provided with a Rule 9(b) form nor was he provided with other notice that satisfied these requirements. Although the state’s motion to dismiss put Johnson on notice that it considered his petition as an abuse of the writ, Johnson was not forewarned that his petition would be summarily dismissed if he failed to respond or that he should present facts, not legal argument. This court has strictly construed the notice requirement. See Urdy, 773 F.2d at 656-67; see also Soileau v. Blackburn, 789 F.2d 1209, 1210 (5th Cir.1986) (Rule 9(a)). Nonetheless, the district court’s failure to provide Johnson with notice was harmless, for the following reasons.
Despite the absence of notice, Johnson filed a response in opposition to the state’s Rule 9(b) motion. According to Johnson, he did not know he had a constitutional right to represent himself until he was in the Ector County Jail in October 1984. Johnson did not explain why he did not raise the present grounds for his ineffective-assistance claim in his prior petition.
II
“A claim of ineffective assistance of counsel, once raised, litigated and rejected at an earlier habeas proceeding cannot be raised in a later proceeding merely by varying the factors allegedly demonstrating incompetency.” McDonald v. Estelle, 590 F.2d 153, 155 (5th Cir.1979); Cunningham v. Estelle, 536 F.2d 82 (5th Cir.1976). Having claimed his trial counsel was ineffective in a prior petition, Johnson’s present ineffectiveness-claim was barred by Rule 9(b) even though he alleged additional grounds of ineffective assistance. Although the district court erred by not giving Johnson notice, this error was harmless since there were no facts that Johnson could have alleged to prevent his ineffective-assistance claim from being dismissed under Rule 9(b). Nor did we create a conflict with McDonald in our recent decision in Passman v. Blackburn, 797 F.2d 1335 (5th Cir. 1986) where we explained that “the only issue before us regarding the abuse of the writ doctrine is the standard for determining a petitioner’s knowledge of legal claims.” Id. at 1344 n. 11. (Emphasis supplied.) Judge Randall’s careful opinion in Passman did not address Johnson’s variation on a theme contention. He admittedly knew of his claim. Passman does not allow the reassertion of claims for the sole reason that petitioner has now thought of another argument in support of the same claim.
Ill
The district court also summarily dismissed Johnson’s self-representation claim. Johnson contends that this dismissal is error, as his constitutional right to self-representation was violated.
For the purposes of this analysis, Johnson’s allegations are taken as true. On December 27, 1977, petitioner wrote a letter to the state court judge in which he stated:
I’m requesting information concerning an attorney. Is it written in the law that I can not represent myself? You see, I would choose to represent myself, providing I had the proper equipment. Under the circumstances I don’t believe the court would assist me in my secretarial work.
By no means am I a thoroughly schooled lawyer, but I am a man who can ask simple logical questions, in my own behalf. Needless to say, a well educated lawyer isn’t needed for such questioning. Please understand, I do not need a lawyer to talk for me, or to question my witness.
It is said I will have to bare [sic] with the decision of the court and a court appointed attorney. If at any time, my attorney appears not to be representing me properly, I will have him removed from my case immediately!
Because the trial court did not respond to this letter, Johnson says he assumed that he did not have a right to represent himself.
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a constitutional right to self-representation in a state criminal case. Nonetheless, this court has held that the demand to defend pro se must be stated clearly and unequivocally. Lyles v. Estelle, 658 F.2d 1015, 1019 (5th Cir.1981); Chapman v. United States, 553 F.2d 886, 892-93 (5th Cir.1977). Moreover, “[e]ven after the defendant has unequivocally asserted the right to defend pro se, he may waive that right.” Chapman, 553 F.2d at 893 n. 12. Johnson did not unequivocally inform the trial court that he wished to defend himself.
In his letter, Johnson states that he would defend himself if he had the proper equipment but that he did not believe the court would provide him with the needed assistance. This statement is ambiguous at best. A fair reading of this statement is that Johnson did not wish to represent himself since he would not be provided with the proper equipment. This interpretation is buttressed by Johnson’s statement at the end of his letter that he would seek to have his counsel withdrawn if he became dissatisfied with counsel’s representation. The record evinces that Johnson did not clearly and unequivocally assert his desire to fore-go legal representation. See Moreno v. Estelle, 717 F.2d 171, 174-75 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).
Alternatively, Johnson clearly waived his right to self-representation. Two days after his letter was received by the trial court, Johnson requested that counsel be appointed to represent him. His request was granted on January 6, 1978. A careful review of the state court record reveals that Johnson made no subsequent request to proceed pro se. Thus, the record shows that Johnson waived his right to self-representation. See Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982).
IV
Reversal is inappropriate if the ruling of the district court can be affirmed on alternative grounds. Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Although the district court erred by not giving notice of the Rule 9(b) dismissal, reversal would be inappropriate since Johnson’s petition lacked merit. See Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986).
AFFIRMED.
. Respondent concluded that Johnson has adequately exhausted his state remedies; the district court did not mention exhaustion in its memorandum opinion.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. The HENRY BECK COMPANY, Appellee.
No. 83-1016.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 31, 1983.
Decided March 7, 1984.
Justine S. Lisser, Washington, D.C. (David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Washington, D.C., on brief), for appellant.
Edward J. Gutman, Baltimore, Md. (Rochelle S. Eisenberg, Blum, Yumkas, Mailman & Gutman, P.A., Baltimore, Md., Larry Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, Tex., on brief), for appellee.
Before WINTER, Chief Judge, PHILLIPS and ERVIN, Circuit Judges.
ERVIN, Circuit Judge.
The Equal Employment Opportunity Commission (the Commission) brought this action in the United States District Court for the District of Maryland seeking specific performance and consequential damages from the Henry C. Beck Co. for allegedly breaching a pre-determination settlement agreement entered into between the Commission, Beck, and a former employee of Beck’s, Donna L. Black. Pursuant to F.R.Civ.P. 12(b)(1), Beck filed a motion to dismiss for lack of subject matter jurisdiction. The district court granted the motion on the ground that § 706(f)(1) of Title VII requires investigation, reasonable cause determination, and attempts at conciliation before a federal court may exercise jurisdiction over a suit .brought by the Commission under Title VII.
On appeal, the Commission argues that Title VII’s general jurisdictional provision, § 706(f)(3), allows for federal jurisdiction over actions to enforce pre-determination settlement agreements. Because we agree that § 706(f)(3) provides a basis for jurisdiction in this case, we reverse the district court and remand for further proceedings.
I.
On March 28, 1980, Donna L. Black filed a charge with the Commission claiming that the Henry Beck Company had discriminated against her on the basis of her race when it denied her a full-time secretarial position and discharged her from her part-time position. On May 9, 1980, before the Commission issued a reasonable cause determination, the parties and the Commission signed a settlement agreement. Paragraph 2c of the agreement, the subject of this action, provided in relevant part that for six months Beck would “reserve the next available vacancy for the position of Secretary at Henry C. Beck’s downtown location ...” for Black. In exchange for Beck’s agreement, Black agreed not to bring suit and the Commission promised it would not use Black’s “charge as the jurisdictional basis for a civil action under Section 706(f)(1) of Title VII.”
The Commission alleges in its complaint that Beck Co. breached paragraph 2c of the settlement agreement by failing to offer Black the first available position as secretary. The Commission’s prayer for relief requests the district court to issue injunctive orders requiring Beck Co. to comply with paragraph 2c by offering Black the next available secretarial position. Additionally, it requests the court to order back and front pay as damages for Beck’s failure to comply with the settlement agreement and to award the Commission costs.
II.
The statutory framework for processing unfair employment practice charges filed with the Commission is set forth in § 706(b) of Title VII. When a charge against an employer is filed, the Commission is to serve notice on the employer and make an investigation of the allegations. If, after investigation, the Commission determines that there is not reasonable cause to believe the allegations are true, it must dismiss the charge and notify all parties. If, on the other hand, the Commission determines there is reasonable cause, it must initially try to eliminate the alleged unlawful employment practice through conciliation and persuasion. Should the Commission fail to secure an acceptable conciliation agreement from the employer within thirty days after the charge is filed, it may bring suit in a United States District Court under § 706(f)(1) alleging an unlawful employment practice.
The settlement agreement in this case was reached pursuant to the Commission’s “Rapid Charge Processing System” adopted in 1977. This system, which is designed to encourage pre-investigation stipulations and settlements, was the Commission’s response to an increasing backlog of charges resulting from time consuming investigations. The new system has had considerable success in increasing the percentage of claims settled and in reducing the number of investigations needed.
The Commission’s regulations reflect the changes in post-filing procedures brought about by the Rapid Charge Processing System. Specifically, 29 C.F.R. § 1601.20 provides that “[p]rior to the issuance of a determination as to reasonable cause the Commission may encourage the parties to settle the charge on terms that are mutually agreeable____ The Commission shall limit its undertaking in such settlements to an agreement not to process that charge further____”
Despite the statutory emphasis on conciliation and the regulations authorizing predetermination settlements, Congress did not explicitly provide for federal enforcement of negotiated settlements involving the Commission as a party. Section 706(f)(3) does generally provide for federal jurisdiction over “actions brought under” Title VII, but the question remains whether a suit brought to enforce a pre-determination settlement agreement is one brought directly under Title VII. To answer this question, we will examine the role of Commission initiated settlements in the Title VII statutory scheme.
III.
Encouraging voluntary compliance with Title VII is among the Commission’s most essential functions. See EEOC v. Raymond Metal Products Co., 530 F.2d 590, 596 (4th Cir.1976); Patterson v. American Tobacco Co., 535 F.2d 257, 272 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). Indeed, when the Commission was created in 1964, it had power only to investigate complaints and negotiate voluntary compliance. Not until Congress amended the Act in 1972 did it give the Commission authority to seek federal court enforcement of Title VII. See EEOC v. Cleveland Mills Co., 502 F.2d 153, 155 (4th Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1328, 43 L.Ed.2d 425 (1975). In Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), the Supreme Court stated that:
Cooperation and voluntary compliance were selected as the preferred means for achieving this goal [of assuring equality of economic opportunity]. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.
The importance of settlements to Title VII’s statutory scheme is reflected in two recent Court of Appeals decisions holding that a suit brought by the Commission to enforce a post-determination conciliation agreement is one brought directly under Title VII with federal jurisdiction provided by § 706(f)(3). In EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir.1982), the Seventh Circuit noted that Congress did not explicitly provide for federal enforcement of conciliation agreements, but the court found that Title VII’s statutory emphasis on voluntary compliance “will be undermined by a holding that the federal courts lack jurisdiction over suits seeking enforcement of conciliation agreements.” 695 F.2d at 1043. The court concluded that the potentially conflicting standards the Commission could face if enforcement were left solely to state courts might “inadvertently undermine Congress’ commitment to conciliation.” 695 F.2d at 1044. It therefore held that:
... an EEOC action to enforce a conciliation agreement is an action brought directly under Title VII, and the federal district courts have jurisdiction over such actions.
Id.
The Fifth Circuit in EEOC v. Safeway Stores, 714 F.2d 567 (5th Cir.1983) did not share the Seventh Circuit’s concern with the adequacy of state enforcements, but it agreed that federal jurisdiction may be “predicated upon the primacy of conciliation to the Title VII statutory scheme.” 714 F.2d at 572. The court stated:
... it would be illogical to conclude that Congress intended exclusive state jurisdiction, that there be no federal jurisdiction to consider or enforce the voluntary agreements it designated as the primary means of accomplishing its goal of eliminating employment discrimination. We hold, therefore, that federal jurisdiction to enforce conciliation agreements exists directly under Title VII by means of 42 U.S.C. § 2000e-5(f)(3). We agree with the court below that the usefulness of conciliation agreements as vehicles for voluntary resolution of employment discrimination charges would be “significantly reduced” if the agreements were not enforceable in the forum which is most familiar with Title VII litigation.
714 F.2d at 573 (footnote omitted). See also EEOC v. Mississippi Baptist Hospital, 12 FEP Cases 411, 412 (S.D.Miss.1976) (“critical nature of conciliation agreements in the enforcement of Title VII” supports exercise of jurisdiction to enforce conciliation agreements under § 706(f)(3) and 28 U.S.C. §§ 1337 and 1343(4)).
IV.
Pre-determination settlement (PDS) agreements are no less effective in facilitating the Commission’s essential role as a mediator than conciliation agreements. By allowing more frequent settlements, the PDS saves resources that might otherwise be consumed in litigation and furthers the statutory goal of voluntary compliance. In addition, it enhances the aim of rapidly resolving disputes by encouraging early resolution before the Commission is required to expend time in investigations and reasonable cause determinations.
This latter feature is the sole factor distinguishing the PDS from conciliation agreements, and it is this distinction that has led one circuit to conclude that PDS agreements, as opposed to conciliation agreements, may not be enforced in federal court. In EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir.1982), rehearing denied June 9, 1982 (decided before Liberty Trucking or Safeway Stores), the Ninth Circuit held that although the Commission could resolve charges through a PDS, the regulation allowing such resolutions “does not permit court involvement predicated on breach of a settlement agreement, absent reasonable cause determination and good faith attempts at conciliation.” 669 F.2d at 608. The court distinguished conciliation agreements from the PDS by noting that the former followed investigation, determination of reasonable cause and attempts at conciliation. The court held that § 706(f)(3) was insufficient to sustain jurisdiction because to so hold would allow the Commission to use PDS agreements to “leapfrog” jurisdictional requirements when Title VII violations were charged.
Although the court in Pierce Packing framed its holding in broad terms, the facts of that case distinguish it from the situation now under consideration. In Pierce Packing, Pierce settled by agreeing to post job vacancies, let women bid on jobs, transfer seniority for women who switched jobs, and implement an affirmative action program. Two years later, the Commission conducted a compliance review finding continued sex discrimination. Specifically, the review revealed sex segregated departments and job classifications with resulting pay disparity and discriminatory layoff policy. 669 F.2d at 606. The Commission then filed a complaint alleging that Pierce intentionally engaged in unlawful employment practices in violation of Title VII. 669 F.2d at 607. Thus, in Pierce Packing the Commission did try to “leapfrog” the jurisdictional prerequisites of § 706(f)(1). Although on appeal in Pierce Packing, the Commission may have argued in the alternative for specific enforcement, see 669 F.2d at 608, the complaint which was dismissed did not so limit itself.
In contrast, the Commission in this case seeks enforcement of a specific agreement without any ruling on the underlying charge of intentional employment discrimination. The damages sought arise from the breach of the agreement rather than from a generalized employment discrimination charge, and unlike the Commission’s complaint in Pierce Packing, the complaint below does not seek to change Beck's general hiring or promotion practices. In a case such as the one before us, there is no reason to distinguish PDS agreements from conciliation agreements. Both promote the statutory goal of voluntary compliance and neither subverts other provisions of Title VII.
V.
We hold that where an employer allegedly breaches a pre-determination settlement agreement after voluntarily entering into it, and the Commission seeks enforcement of that agreement only, without attempting to litigate the underlying unfair employment practice charge, the suit is brought directly under Title VII, and the United States District Courts have jurisdiction under § 706(f)(3). This holding is consistent with our decisions allowing enforcement of settlement agreements under the National Labor Relations Act. See, e.g., Poole Foundry & Machine Co. v. NLRB, 192 F.2d 740 (4th Cir.1951). In George Banta Co. v. NLRB, 604 F.2d 830, 838 (4th Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), we stated that “[t]o permit a party to accept the benefits of a settlement agreement, and then withdraw from that agreement without complying with its corresponding obligations, would subvert the settlement process.” We now agree with a similar conclusion reached by the district court in EEOC v. Cleveland State University, 28 FEP Cases 441, 444 (N.D.Ohio 1982) which stated:
To prohibit the EEOC from summarily enforcing pre-determination settlements would allow an employer to engage in dilatory tactics which would frustrate the congressional intent of rapid resolution of disputes. If the EEOC had to pursue the usual process [of investigation and reasonable cause determination] before enforcing a pre-determination settlement, such agreements would be meaningless.
Exercising jurisdiction in this case does not allow the Commission to leapfrog the jurisdictional prerequisites to a § 706(f)(1) action alleging unfair employment practices, nor does it undermine those prerequisites. The requirements of investigation, determination of reasonable cause, and attempts at conciliation serve to protect employers from frivolous or premature unfair employment practice suits brought by the Commission. This function is not affected by our holding. Enforcement of the settlement agreement in this case will not involve litigation of the underlying unfair employment practice charge; it will be limited to issues of contract law. Federal jurisdiction is extended to this case not because it involves a violation of Title VII but because it is essential to preserving the EEOC’s function as an efficient conciliator, a function that is central to Title VII’s statutory scheme. Cf. Safeway’s Stores, 714 F.2d 567; Liberty Trucking, 695 F.2d 1038. Accordingly, we reverse the district court’s order dismissing the suit and remand for further proceedings.
REVERSED AND REMANDED.
. 42 U.S.C. § 2000e — 5(f)(1)
. 42 U.S.C. § 2000e-5(f)(3)
. 42 U.S.C. § 2000e-5(b).
. The backlog had grown from 2300 charges after the first year of the Commission’s operation, to 106,700 charges still pending at the end of Fiscal Year 1975. EEOC Tenth Annual Report FY 1975 at 33.
. In its first year, the new system resulted in an increase in settlements and conciliations from 14 percent of all claims under old procedures to 48 percent under the new system. Hearings Before the Subcommittee on Employment Opportunities, House Committee on Labor and Education, 95 Cong.2d Sess. Nov. 1978 (Testimony of Eleanor Holmes Norton) at 6. In fiscal year 1980, 46 percent of all Title VII charges were settled — 13,363 by negotiated pre-determination settlements (PDS) and 2,725 by other means. EEOC 15th Annual Report FY 1980, at 36.
. 29 C.F.R. § 1601.19-1601.22.
. Although we have held that investigation, determination of reasonable cause, and an effort at conciliation were jurisdictional prerequisites to a civil action brought by the Commission, EEOC v. American National Bank, 652 F.2d 1176, 1185 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982), we reached that decision in the context of an unfair employment practice charge lodged pursuant to § 706(f)(1). These prerequisites clearly do not apply to a § 706(f)(2) civil action for preliminary relief. Moreover, § 706(f)(3) mentions no prerequisite in broadly providing for federal district court jurisdiction over "actions brought under” Title VII.
. Many other federal courts have exercised jurisdiction over enforcement suits without discussion of the issue. See, e.g., EEOC v. Contour Chair Lounge Co., 596 F.2d 809 (8th Cir.1979) (jurisdiction to enforce conciliation agreement assumed under Title VII); Brito v. Zia Co., 478 F.2d 1200 (10th Cir.1973) (damages awarded for breach of conciliation agreement without discussion of jurisdiction); EEOC v. Labor Health Institute, 17 FEP Cases 250 (E.D.Mo.1978) (jurisdiction to enforce conciliation agreement assumed without discussion).
. EEOC v. Pierce Packing, see infra. The Ninth Circuit is the only circuit that has addressed the question of whether PDS agreements may be enforced in federal court.
. Because we hold the court below had jurisdiction under § 706(f)(3), we decline to address the question of whether 28 U.S.C. §§ 1331 and 1345 provide additional bases for jurisdiction.
. 29 U.S.C. § 151 et seq.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
KENTUCKY, dba BUREAU OF STATE POLICE v. GRAHAM et al.
No. 84-849.
Argued April 16, 1985
Decided June 28, 1985
Marshall, J., delivered the opinion for a unanimous Court.
George M. Geoghegan, Jr., Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the brief were David L. Armstrong, Attorney General, and Cathy Cravens Snell.
Jack M. Lowery, Jr., argued the cause for respondents. With him on the brief was Hollis L. Searcy.
Joyce Holmes Benjamin, H. Bartow Farr III, Paul M. Smith, and Joseph N. Onek filed a brief for the National League of Cities et al. as amici curiae urging reversal.
Justice Marshall
delivered the opinion of the Court.
The question presented is whether 42 U. S. C. §1988 allows attorney’s fees to be recovered from a governmental entity when a plaintiff sues governmental employees only in their personal capacities and prevails.
I
On November 7, 1979, a Kentucky state trooper was murdered. Suspicion quickly focused on Clyde Graham, whose stepmother’s car was found near the site of the slaying and whose driver’s license and billfold were discovered in nearby bushes. That evening, 30 to 40 city, county, and state police officers converged on the house of Graham’s father in Elizabethtown, Kentucky. Without a warrant, the police entered the home twice and eventually arrested all the occupants, who are the six respondents here. Graham was not among them. According to respondents, they were severely beaten, terrorized, illegally searched, and falsely arrested. Kenneth Brandenburgh, the Commissioner of the State Police and the highest ranking law enforcement officer in Kentucky, allegedly was directly involved in carrying out at least one of the raids. An investigation by the Kentucky Attorney General’s office later concluded that the police had used excessive force and that a “complete breakdown” in police discipline had created an “uncontrolled” situation. App. to Brief for Respondents 21-22.
Alleging a deprivation of a number of federal rights, respondents filed suit in Federal District Court. Their complaint sought only money damages and named as defendants various local and state law enforcement officers, the city of Elizabethtown, and Hardin County, Kentucky. Also made defendants were Commissioner Brandenburgh, “individually and as Commissioner of the Bureau of State Police,” and the Commonwealth of Kentucky. The Commonwealth was sued, not for damages on the merits, but only for attorney’s fees should the plaintiffs eventually prevail. Shortly after the complaint was filed, the District Court, relying on the Eleventh Amendment, dismissed the Commonwealth as a party. Based on its Attorney General’s report, the Commonwealth refused to defend any of the individual defendants, including Commissioner Brandenburgh, or to pay their litigation expenses.
On the second day of trial, the case was settled for $60,000. The settlement agreement, embodied in a court order dismissing the case, barred respondents from seeking attorney’s fees from any of the individual defendants but specifically preserved respondents’ right to seek fees and court costs from the Commonwealth. Respondents then moved, pursuant to 42 U. S. C. § 1988, that the Commonwealth pay their costs and attorney’s fees. At a hearing on this motion, the Commonwealth argued that the fee request had to be denied as a matter of law, both because the Commonwealth had been dismissed as a party and because the Eleventh Amendment, in any event, barred such an award. Rejecting these arguments, the District Court ordered the Commonwealth to pay $58,521 in fees and more than $6,000 in costs and expenses. In a short per curiam opinion relying solely on this Court’s decision in Hutto v. Finney, 437 U. S. 678 (1978), the Court of Appeals for the Sixth Circuit affirmed. Graham v. Wilson, 742 F. 2d 1455 (1984).
We granted certiorari to address the proposition, rejected by at least two Courts of Appeals, that fees can be recovered from a governmental entity when a plaintiff prevails in a suit against government employees in their personal capacities. 469 U. S. 1156 (1985). We now reverse.
H — I I
This case requires us to unravel once again the distinctions between personal- and official-capacity suits, see Brandon v. Holt, 469 U. S. 464 (1985), this time in the context of fee awards under 42 U. S. C. § 1988. The relevant portion of § 1988, enacted as the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, provides:
“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” (emphasis added).
If a plaintiff prevails in a suit covered by § 1988, fees should be awarded as costs “unless special circumstances would render such an award unjust.” S. Rep. No. 94-1011, p. 4 (1976); see Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U. S. 719, 737 (1980). Section 1988 does not in so many words define the parties who must bear these costs. Nonetheless, it is clear that the logical place to look for recovery of fees is to the losing party — the party legally responsible for relief on the merits. That is the party who must pay the costs of the litigation, see generally Fed. Rule Civ. Proc. 54(d), and it is clearly the party who should also bear fee liability under § 1988.
We recognized as much in Supreme Court of Virginia, supra. There a three-judge District Court had found the Virginia Supreme Court and its chief justice in his official capacity liable for promulgating, and refusing to amend, a State Bar Code that violated the First Amendment. The District Court also awarded fees against these defendants pursuant to § 1988. We held that absolute legislative immunity shielded these defendants for acts taken in their legislative capacity. We then vacated the fee award, stating that we found nothing “in the legislative history of the Act to suggest that Congress intended to permit an award of attorney’s fees to be premised on acts for which defendants would enjoy absolute legislative immunity.” 446 U. S., at 738. Thus, liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant. Cf. Pulliam v. Allen, 466 U. S. 522, 543-544 (1984) (state judge liable for injunctive and declaratory relief under § 1988 also liable for fees under § 1988).
A
Proper application of this principle in damages actions against public officials requires careful adherence to the distinction between personal- and official-capacity suits. Because this distinction apparently continues to confuse lawyers and confound lower courts, we attempt to define it more clearly through concrete examples of the practical and doctrinal differences between personal- and official-capacity actions.
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e. g., Scheuer v. Rhodes, 416 U. S. 232, 237-238 (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon, 469 U. S., at 471-472. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.
On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. See, e. g., Monroe v. Pape, 365 U. S. 167 (1961). More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a “ ‘moving force’ ” behind the deprivation, Polk County v. Dodson, 454 U. S. 312, 326 (1981) (quoting Monell, supra, at 694); thus, in an official-capacity suit the entity’s “policy or custom” must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U. S. 808, 817-818 (1985); id., at 827-828 (Brennan, J., concurring in judgment). When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law. See Imbler v. Pachtman, 424 U. S. 409 (1976) (absolute immunity); Pierson v. Ray, 386 U. S. 547 (1967) (same); Harlow v. Fitzgerald, 457 U. S. 800 (1982) (qualified immunity); Wood v. Strickland, 420 U. S. 308 (1975) (same). In an official-capacity action, these defenses are unavailable. Owen v. City of Independence, 445 U. S. 622 (1980); see also Brandon v. Holt, 469 U. S. 464 (1985). The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment. While not exhaustive, this list illustrates the basic distinction between personal- and official-capacity actions.
With this distinction in mind, it is clear that a suit against a government official in his or her personal capacity cannot lead to imposition of fee liability upon the governmental entity. A victory in a personal-capacity action is a victory against the individual defendant, rather than against the entity that employs him. Indeed, unless a distinct cause of action is asserted against the entity itself, the entity is not even a party to a personal-capacity lawsuit and has no opportunity to present a defense. That a plaintiff has prevailed against one party does not entitle him to fees from another party, let alone from a nonparty. Cf. Hensley v. Eckerhart, 461 U. S. 424 (1983). Yet that would be the result were we to hold that fees can be recovered from a governmental entity following victory in a personal-capacity action against government officials.
B
Such a result also would be inconsistent with the statement in Monell, supra, that a municipality cannot be made liable under 42 U. S. C. §1983 on a respondeat superior basis. Nothing in the history of § 1988, a statute designed to make effective the remedies created in § 1983 and similar statutes, suggests that fee liability, unlike merits liability, was intended to be imposed on a respondeat superior basis. On the contrary, just as Congress rejected making § 1983 a “mutual insurance” scheme, 436 U. S., at 694, Congress sought to avoid making § 1988 a “‘relief fund for lawyers.’” Hensley, supra, at 446 (opinion of Brennan, J.) (quoting 122 Cong. Rec. 33314 (1976) (remarks of Sen. Kennedy)). Section 1988 does not guarantee that lawyers will recover fees anytime their clients sue a government official in his personal capacity, with the governmental entity as ultimate insurer. Instead, fee liability runs with merits liability; if federal law does not make the government substantively liable on a respondeat superior basis, the government similarly is not liable for fees on that basis under §1988. Section 1988 simply does not create fee liability where merits liability is nonexistent.
Ill
We conclude that this case was necessarily litigated as a personal-capacity action and that the Court of Appeals therefore erred in awarding fees against the Commonwealth of Kentucky. In asserting the contrary, respondents point out that the complaint expressly named Commissioner Bran-denburgh in both his “individual” and “official” capacities and that the Commonwealth of Kentucky was named as a defendant for the limited purposes of a fee award. Nonetheless, given Eleventh Amendment doctrine, there can be no doubt that this damages action did not seek to impose monetary liability on the Commonwealth.
The Court has held that, absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court. See, e. g., Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459, 464 (1945). This bar remains in effect when state officials are sued for damages in their official capacity. Cory v. White, 457 U. S. 85, 90 (1982); Edelman v. Jordan, 415 U. S. 651, 663 (1974). That is so because, as discussed above, “a judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents . . . .” Brandon, supra, at 471.
Given this understanding of the law, an official-capacity action for damages could not have been maintained against Commissioner Brandenburgh in federal court. Although respondents fail to acknowledge this point, they freely concede that money damages were never sought from the Commonwealth and could not have been awarded against it; respondents cannot reach this same end simply by suing state officials in their official capacity. Nor did respondents’ action on the merits become a suit against Kentucky when the Commonwealth was named a defendant on the limited issue of fee liability. There is no cause of action against a defendant for fees absent that defendant’s liability for relief on the merits. See swpra, at 167-168. Naming the Commonwealth for fees did not create, out of whole cloth, the cause of action on the merits necessary to support this fee request. Thus, no claim for merits relief capable of being asserted in federal court was asserted against the Commonwealth of Kentucky. In the absence of such a claim, the fee award against the Commonwealth must be reversed.
<1
Despite the Court of Appeals’ contrary view, the result we reach today is fully consistent with Hutto v. Finney, 437 U. S. 678 (1978). Hutto holds only that, when a State in a § 1983 action has been prevailed against for relief on the merits, either because the State was a proper party defendant or because state officials properly were sued in their official capacity, fees may also be available from the State under § 1988. Hutto does not alter the basic philosophy of §1988, namely, that fee and merits liability run together. As a result, Hutto neither holds nor suggests that fees are available from a governmental entity simply because a government official has been prevailed against in his or her personal capacity.
Respondents vigorously protest that this holding will “effectively destro[y]” § 1988 in cases such as this one. Brief for Respondents 19. This fear is overstated. Fees are unavailable only where a governmental entity cannot be held liable on the merits; today we simply apply the fee-shifting provisions of §1988 against a pre-existing background of substantive liability rules.
V
Only in an official-capacity action is a plaintiff who prevails entitled to look for relief, both on the merits and for fees, to the governmental entity. Because the Court’s Eleventh Amendment decisions required this case to be litigated as a personal-capacity action, the award of fees against the Commonwealth of Kentucky must be reversed.
It is so ordered.
Clyde Graham was killed by a Kentucky state trooper a month later at a motel in Illinois.
Respondents asserted causes of action under 42 U. S. C. §§ 1983, 1985, 1986, and 1988, as well as the Fourth, Fifth, Sixth, Eleventh, and Fourteenth Amendments. Complaint ¶ 13. Because the case was settled, there has been no need below to separate out or distinguish any of these purported causes of action. Before this Court, the parties briefed and argued the case as if it had been brought simply as a § 1983 action and we, accordingly, analyze it the same way. Our discussion throughout is therefore not meant to express any view on suits brought under any provision of federal law other than § 1983.
The complaint states:
“Pursuant to the provisions of 42 U. S. C. Sec. 1988, the Commonwealth of Kentucky, d/b/a Bureau of State Police is liable for the payment of reasonable attorney fees incurred in this action.” Complaint ¶ 4(D).
According to respondents, “[paragraph 4(D). . . states the sole basis for including the Commonwealth as a named party.” Brief for Respondents 14.
Five thousand dollars came from the city and $10,000 from the county. The remaining $45,000 was to be paid by Commissioner Brandenburgh, both personally and as agent for the “Kentucky State Police Legal Fund.” The latter was not a named defendant but presumably represented the interests of the individual officers sued.
Petitioner did not appeal from the award of costs and expenses, and we therefore have no occasion to consider the appropriateness of these portions of the award.
Berry v. McLemore, 670 F. 2d 30 (CA5 1982) (municipal officials); Morrison v. Fox, 660 F. 2d 87 (CA3 1981) (same). At least one Court of Appeals appears to have reached the same result as that of the lower court in this case. See Glover v. Alabama Department of Corrections, 753 F. 2d 1569 (CA11 1985).
See 6 J. Moore, W. Taggart, & J. Wicker, Moore’s Federal Practice § 54.70[1], p. 1301 (1985) (“Costs” are awarded “against the losing party and as an incident of the judgment”); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2666, p. 173 (1983) (“‘Costs’ refers to those charges that one party has incurred and is permitted to have reimbursed by his opponent as part of the judgment in the action”).
We did hold that the court and its chief justice in his official capacity could be enjoined from enforcing the State Bar Code and suggested that fees could be recovered from these defendants in their enforcement roles. Because the fee award had clearly been made against the defendants in their legislative roles, however, the award had to be vacated and the case remanded for further proceedings. That fees could be awarded against the Virginia Supreme Court and its chief justice pursuant to an injunction against enforcement of the Code further illustrates that fee liability is tied to liability on the merits.
The rules are somewhat different with respect to prevailing defendants. Prevailing defendants generally are entitled to costs, see Fed. Rule Civ. Proc. 54(d), but are entitled to fees only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant. See Hensley v. Eckerhart, 461 U. S. 424, 429, n. 2 (1983).
We express no view as to the nature or degree of success necessary to make a plaintiff a prevailing party. See Maher v. Gagne, 448 U. S. 122 (1980).
Personal-capacity actions are sometimes referred to as individual-capacity actions.
Should the offical die pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the decedent’s estate. In an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official’s successor in office. See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App. Proc. 43(c)(1); this Court’s Rule 40.3.
See Monell, 436 U. S., at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983”).
In addition, punitive damages are not available under § 1983 from a municipality, Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981), but are available in a suit against an official personally, see Smith v. Wade, 461 U. S. 30 (1983).
There is no longer a need to bring official-capacity actions against local government officials, for under Monell, supra, local government units can be sued directly for damages and injunctive or declaratory relief. See, e. g., Memphis Police Dept. v. Garner, 471 U. S. 1 (1985) (decided with Tennessee v. Gamer) (damages action against municipality). Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought. Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). Thus, implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State. See Ex parte Young, 209 U. S. 123 (1908).
In many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. “The course of proceedings” in such eases typically will indicate the nature of the liability sought to be imposed. Brandon v. Holt, 469 U. S. 464, 469 (1985).
The city and county were sued directly as entities, but that aspect of the case is not before us.
See also n. 3, supra.
The Court has held that § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity. Quern v. Jordan, 440 U. S. 332 (1979); Edelman v. Jordan, 415 U. S. 651 (1974). Because this action comes to us as if it arose solely under § 1983, see n. 2, supra, we cannot conclude that federal law authorized an official-capacity action for damages against Commissioner Brandenburgh to be brought in federal court.
As to legislative waiver of immunity, petitioners assert that the Commonwealth of Kentucky has not waived its Eleventh Amendment immunity. This contention is not disputed, and we therefore accept it for purposes of this case.
In an injunctive or declaratory action grounded on federal law, the State’s immunity can be overcome by naming state officials as defendants. See Pennhurst State School & Hospital v. Halderman, 465 U. S. 89 (1984); see also Ex parte Young, supra. Monetary relief that is “ancillary” to in-junctive relief also is not barred by the Eleventh Amendment. Edelman v. Jordan, supra, at 667-668.
No argument has been made that the Commonwealth waived its Eleventh Amendment immunity by failing specifically to seek dismissal of that portion of the damages action that named Commissioner Brandenburgh in his official capacity. Nor is the Commonwealth alleged to have done so by allowing him to enter the settlement agreement; the Commonwealth did not even have notice of the settlement negotiations.
Brief for Respondents 17; Tr. of Oral Arg. 18.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_usc1sect
|
901
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 30. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Lauretta L. DOBBINS, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
No. 78-3100.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 9, 1980.
Decided April 20, 1981.
Frances L. Hancock, Hancock, Anthenien & Compton, San Francisco, Cal., for plaintiff-appellant.
Alan M. Grochal, Baltimore, Md., for defendant-appellee.
Before ELY and GOODWIN, Circuit Judges, and GRANT, Senior District Judge.
Senior District Judge Robert A. Grant of the United States District Court for the Northern District of Indiana, is sitting by designation.
GRANT, Senior District Judge:
The sole question before this Court is whether the Secretary’s decision denying benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972 (Act), 30 U.S.C. § 901 et seq., was supported by substantial evidence that Dobbins failed to marshal sufficient evidence to establish the existence of a total disability. We find that it was not and reverse.
Elbert Dobbins was a northern Alabama coal miner. He married the plaintiff-appellant in 1917. One morning in June, 1926, he was killed at the mine. He had been seated on tracks upon which loaded coal hoppers traveled, and was crushed when he could not scramble to safety from an onrushing coal car. Mrs. Dobbins, a seventy-nine year old widow who has never remarried, now seeks widow’s benefits under the Act. §§ 411(a) and 412(a)(2) of the Act, 30 U.S.C. §§ 921(a) and 922(a)(2). Mrs. Dobbins would be eligible for benefits if at the time of her husband’s death, he was “totally disabled,” as defined by the Act, from pneumoconiosis. Pneumoconiosis, known to laymen as black lung, is a chronic dust-caused malady which ultimately creates a totally disabling respiratory or pulmonary impairment. § 402(b) of the Act, 30 U.S.C. § 902(b), 20 C.F.R. § 410.110(o).
Our inquiry focuses upon whether plaintiff met her burden of proof in establishing that Mr. Dobbins was totally disabled. Alternatively stated, is the Secretary’s finding that she did not meet her burden supported by substantial evidence?
Mrs. Dobbins filed an application under the Act in July, 1971. There is no doubt from the factual record in this case that Mr. Dobbins was suffering to some degree from black lung when he died, but at the first hearing before an administrative law judge (AU), the claim was denied. The ALJ determined that Mrs. Dobbins failed to prove that her husband was totally disabled by the disease when he was killed. After the Act was first amended in 1972, Mrs. Dobbins reapplied, and the claim was again rebuffed. At a third administrative hearing in 1975, the ALJ affirmed this decision with a written opinion which was upheld by the Appeals Council. This constituted the final decision of the Secretary of Health, Education and Welfare, the officer charged with administering the program.
Mrs. Dobbins sought judicial review of this decision in the district court. In July, 1977, the district court remanded the case for the Secretary to obtain and review additional evidence on the total disability issue. This new hearing was held in October, 1977. Again the ALJ recommended that the claim be denied. The Appeals Council upheld that decision on April 11,1978. The district court upheld this decision via summary judgment in favor of the Secretary, and this appeal followed. In effect, this claim has been in the administrative-judicial system for nine years.
Despite the numerous hearings held, the evidence in favor of a finding of total disability is, as should be expected, sparse. Mr. Dobbins died 55 years ago. The physician who treated him died long ago and left no medical records. Vandals destroyed the dispensary records pertaining to this victim. For these reasons, Mrs. Dobbins was forced to rely upon lay testimony, including her own, to establish her entitlement.
Mrs. Dobbins unrefuted testimony, if believed, solidly supports a finding of total disability. Mrs. Dobbins testified that her husband had been treated for miner’s asthma and severe shortness of breath. She stated he spit up mouthfuls of coal and was being treated by a doctor for these conditions, including coughing which became progressively worse. She testified that in the last two years prior to his death, her husband would return from work choked and exhausted, unable to do anything but lay down and cough. She testified that his earnings had fallen off as his illness grew, but that he continued to work in the mines because he had no alternative. She stated that he was unable to complete his work in the mines without continuous assistance from fellow miners, and there were days when he could not work at all. He was unable to complete his farm chores.
These statements were fully corroborated by the testimony of other persons of the deceased’s generation who answered written interrogatories. They described Mr. Dobbins’ health in the same manner. They mentioned his apparent black lung condition, coughing, his inability to complete his work, and the progressively debilitating nature of his illness. No contrary evidence was put forward. The ALJ did not indicate any doubts as to the veracity or memory of these witnesses.
STANDARDS OF REVIEW
Initially, the burden of proof rests with the person who files a claim with an administrative agency to show that the required conditions of eligibility are met. 20 C.F.R. § 410.410(b).
In Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert, denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972), the standard of review to be applied was stated:
On appeal to this court, the findings of the Secretary are conclusive if supported by substantial evidence looking to the record as a whole. Harvey v. Richardson, 451 F.2d 589 (9th Cir. 1971), Rhinehart v. Finch, 438 F.2d 920 (9th Cir. 1971). Likewise, the statutory restriction upon our review applies to the inferences drawn from such facts, if they have a substantial basis in the record. Mark v. Celebrezze, 348 F.2d 289 (9th Cir. 1965).
The Supreme Court has held that “substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).
At the outset it should be noted, however, that Mrs. Dobbins’ claim was not decided on the basis of weighing contradictory or conflicting evidence as was the case in both Perales and Beane. There is no conflicting evidence in this case, only the information the plaintiff has brought forward. In all previous proceedings, judicial officers have merely weighed the information brought forward to decide whether the plaintiff had met her burden. In Perales, a government physician was vehemently opposed to the payment of benefits, classifying the respondent as a malingerer and phony. In this case no similar credibility determination was made to discredit the evidence put forward. The only question is whether the evidence presented was sufficient.
Section 411(b) of the Act, 30 U.S.C. § 921(b) delegates to the Secretary the authority to promulgate legal standards governing a finding that a miner suffered from pneumoconiosis. 20 C.F.R. § 410.414(b). See also 20 C.F.R. § 410.454(a). There are several methods by which the existence of the disease can be proven. It can be done by providing an x-ray, or the results of a biopsy or autopsy that medically proves the existence of the disease. 20 C.F.R. § 410.-414(a). See also 20 C.F.R. § 454(a). It can be proven by showing that the deceased perished from a respiratory disease after working at least ten years in the mines. 20 C.F.R. § 410.462(a). It can also be proven by a combination of medical data and lay opinion when the miner died from pneumoconiosis, not an accident. 20 C.F.R. § 410.-454(e). None of these methods can be applied here.
Recognizing that hard medical evidence would often be lacking, particularly where the miner had died some time ago, the Secretary created several presumptions of impairment which would entitle a claimant to recover benefits. One such presumption arises when it is shown that the miner has worked the requisite number of years in the mines, 20 C.F.R. § 410.414(b)(3) and (4), and proof is shown that the miner suffered from a totally disabling chronic respiratory impairment. 20 C.F.R. § 410.414(b)(1).
Mrs. Dobbins was able to establish that her husband satisfied the requirement of time in service to satisfy the first portion of this presumption. 20 C.F.R. § 410.414(b)(3) requires fifteen years’ service in the mines. The ALJ apparently had some doubt as to whether this fifteen year provision was satisfied. A statement of the U. S. Steel Corporation disclosed that the deceased miner had worked at least 11 years in its mines. This was supplemented by the written affidavits already discussed. These affidavits indicate Mr. Dobbins began work in the mines at age thirteen or fifteen, and worked there until his death approximately twenty-five years later, albeit sporadically near the end of his life. The ALJ presented no further findings as to whether these affidavits were accepted or refuted. Reading the record as a whole, the Appeals Council conceded this longevity issue in its decision.
The Senate Report on the Black Lung Benefits Act of 1972 summarized the problems of the original legislation and stated:
The Black Lung Benefits Act of 1972 is intended to be a remedial law — to improve upon the 1969 provisions so that the cases which should be compensated, will be compensated. In the absence of definitive medical conclusions there is a clear need to resolve doubts in favor of the disabled miner or his survivors.
U;S. Code Cong. & Adm. News 2305, 2315 (1972)' (emphasis added). The spirit of the legislation requires us to resolve doubts in favor of the miner’s family. Where the events in question took place so long ago, proof may reasonably depend not only on company records, but upon lay testimony. Karpovich v. Mathews, 426 F.Supp. 1316, 1317 (E.D.Pa.1977). While these affidavits and her lay testimony may well be insufficient when records exist from which dispositive proof can be advanced, that is not the case here.
For similar reasons, we find that Mr. Dobbins was suffering from a chronic respiratory impairment. The available evidence indicates that he was suffering from such a condition, or at least a “severe lung impairment,” 20 C.F.R. § 410.414(b)(4), based on the testimony previously discussed. This case bears a striking resemblance to Lloyd v. Mathews, 413 F.Supp. 1161 (E.D.Pa.1976), where the Secretary’s determination that the plaintiff’s lay testimony did not establish total disability was reversed. There, as here, the miner was killed by an accident, not pneumoconiosis, and was working in some capacity near the time of his death. The plaintiff in that case and her sister presented lay testimony regarding the deceased miner’s physical condition during the last years of his life. They indicated that he exhibited the classic symptoms of miner’s asthma, evidence similar to that presented here. In evaluating the testimony, the court stated:
[W]here the claimant is forced to proceed without the benefit of any favorable presumption on the issue of total disability, the Secretary must consider all the facts of the case and “other relevant evidence” besides medical or physical performance data. Lay testimony from the widow and other persons with knowledge of the deceased minor’s [sic] physical condition is of crucial importance here and must be given due weight by the finder of fact
% # H* sfc sfc *
The Administrative Law Judge made no specific finding of fact on the question of whether the plaintiff’s late husband suffered either from black lung disease or from a “chronic respiratory impairment,” but based on the evidence summarized above, I hold that the plaintiff has carried her burden of proof on this issue. There is absolutely no basis in the record for a contrary finding.
413 F.Supp. at 1164-65 (emphasis added). In conclusion, the court stated:
That is the crux of this case: the Administrative Law Judge, in his own words, found the plaintiff’s evidence to be “not convincing” on the issue of total disability. He gave no reason for disbelieving the testimony of the plaintiff or her sister, nor did he confront them at the hearing with his skepticism and give them an opportunity to refute his doubts or to explain away what the Secretary now characterizes as “conflicts” in the evidence. An Administrative Law Judge is not required to believe the testimony of interested witnesses, even if not contradicted, Rennar v. Weinberger, 399 F.Supp. 1301, 1304 (E.D.Okl.1975), but he has a correlative duty to make a specific finding of fact to that effect, Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). He also has an obligation, in this non-adversary proceeding, to solicit testimony or steer the claimant to do so, if need be, in order to clarify the record on critical points.
413 F.Supp. at 1166-67 (footnote omitted).
In this case, the government asserts that plaintiff-appellant has not established that Mr. Dobbins suffered from a chronic respiratory disease. The available evidence does not support this finding. As was stated in Lloyd:
The Federal Coal Mine Health & Safety Act of 1969, as amended, contains no statute of limitations to bar claims such as this which arose many years ago. It is, on the contrary, a remedial and essentially compassionate statute which is designed to compensate miners or their survivors, however imperfectly or late, for the ravages of black lung disease. Where the passage of time makes it difficult for a claimant to establish eligibility and forces her to rely almost exclusively upon her own memory of her husband’s physical condition and degree of disability, the Secretary in my judgment has a special duty of care to avoid a hypertechnical or insensitive approach to the evidence, lest a meritorious claim be denied through inadvertence or an inadequate record.
413 F.Supp. at 1167.
A finding of total disability can be made upon medical evidence which is not available here. Instead, plaintiff had the burden of proving that due to pneumoconiosis the deceased’s work in the mines did not constitute comparable and gainful work. This can be proven by declining earnings and poor job performance, as well as sporadic work activity on the part of the victim. 20 C.F.R. § 410.412(b)(1). See also 20 C.F.R. §§ 410.422(c) and 410.426(a). That a miner was working in some capacity at the time of his death does not alone decide the issue of whether he was totally disabled. Although physically weakened, miners often struggle on to support their families. Congress clearly intended to benefit the survivors of miners who died while working:
Under the operation of the law as it now exists, a widow is at the mercy of circumstance. Although her husband clearly had totally disabling pneumoconiosis, and would have been eligible were he alive, he may have died in a rock fall, an accident, or even a heart attack which may not be established medically to be causally related to pneumoconiosis. Under these circumstances his widow would not be eligible. However, the widow’s neighbor, whose husband died of natural causes after receiving title IV benefits, is entitled to the widow’s benefits of title IV. Such a result would seem to be unduly harsh with respect to widows whose husbands gave their health, and in many cases their lives, in the service of the nation’s critical coal needs.
(Senate Report) U.S. Code Cong. & Admin. News 2305, 2312 (1972).
The reasons for these denials are many. The great majority of denials are attributed to the inability of the miner to present X-ray evidence of the disease. Some have been denied because the simple breathing test, which measures only ventilatory capacity, may not adequately detect disabling respiratory or pulmonary impairment. Some have been denied because of the failure to recognize the special problems encountered by disabled miners in obtaining gainful employment outside of coal mining in Appalachia.
Over a hundred years ago, Emile Zola wrote his non-medical description of the coal miner in Germinal:
“Have you been working long at the mine?” He flung open both arms.
“Long? I should think so. I was not eight when I went down and I am fifty-eight. They tell me to rest, but I’m not going to; I’m not such a fool. I can get on for two years longer, to my sixtieth, so as to get the pension.” A spasm of coughing interrupted him again. “I never used to cough; now I can’t get rid of it. And the queer thing is that I spit.”
The rasping was again heard in this throat, followed by a black expectoration.
“Is it blood?”
He slowly wiped his mouth with the back of his hand.
“No, it’s coal. I’ve got enough in my carcass to warm me till I die. And it’s five years since I put a foot down below. I stored it up, it seems, without knowing it.”
Suffice it to say that this miner’s widow, were she alive today, would have great difficulty in obtaining benefits.
Id. at 2313.
In a case that is similar to this one, it was stated:
There are certain limited circumstances under which a miner can, through sheer determination, continue to work and still qualify as totally disabled. In order to fit within this narrow category of “working disabled”, it is necessary for a claimant to show that the miner’s work attendance was sporadic, his performance poor, and his earnings marginal.
Collins v. Mathews, 547 F.2d 795, 797-98 (4th Cir. 1976) (footnote omitted).
In Collins, the miner had been killed in a mine accident, and his widow sought benefits for his total disability at death. The Collins court concluded that the denial of benefits was not supported by substantial evidence, basing the reversal upon evidence of reduced earnings. The Dobbins claim stems from a simpler time, when record keeping was more casual, and the Social Security Administration had not yet begun its massive collection and retention of persons’ work histories. Despite the lack of clearly dispositive proof of her husband’s total disability at the time of his death, the Secretary’s findings that appellant failed to meet her burden of proving total disability is not supported by substantial evidence in light of the unrefuted lay testimony and affidavits that such a disability did exist.
Mrs. Dobbins urged in oral argument that the court apply the 1977 amendments to the Black Lung legislation. These amendments liberalize the evidentiary requirements necessary for a claim such as this one. Neither party briefed the issue of whether these amendments should be applied retroactively. Were they to be so applied, it is certain beyond a doubt that this claim would have been approved. Two circuit courts, however, have ruled that these amendments should not be retroactively applied. Due to our disposition of this case, it is unnecessary to decide this issue. Even if the amendments are not applied retroactively, we cannot close our eyes to the unequivocal Congressional intent for a compassionate application of this statute to those who have suffered. As was stated in Treadway v. Califano, 584 F.2d 48, 49-50 (4th Cir. 1978) (en banc):
Almost from the beginning, apparently, the Congress was dissatisfied with the HEW’s administration of the Act. It was thought that deserving claims were being impeded and denied. This thought prompted the adoption of the 1972 amendments liberalizing the standards to be applied in adjudicating the claims and creating a number of presumptions facilitating proof of claims. Administration of the 1969 Act, as amended in 1972, however, did not come up to congressional expectations. There was active consideration of further amendments in 1975, and the congressional purpose that still more claims be allowed and paid resulted in the Black Lung Benefits Reform Act of 1977.
sf: ¡t” sfc sfc s{e
The history of the 1977 Act shows clearly congressional concern that too few miners were being paid the benefits Congress had intended to provide them when enacting the legislation in 1969 and 1972. There is no suggestion in the legislative history anywhere of a congressional intention to take anything away from any miner, or to limit benefits which were available to him prior to enactment of the 1977 Act.
(footnote omitted).
We cannot ignore the thrust of congressional desires exhibited in the passage of the original legislation, and its subsequent amendments. Indeed, it would violate Congress’ clearly demonstrated intent if claims such as this one were evaluated without reference to those often stated policy concerns implicit therein.
For all of these reasons, the decision of the Secretary as approved by the District Court’s summary judgment order is reversed, with the direction that benefits be paid to the plaintiff without further delay.
REVERSED.
. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
. Pub.L.No. 92-303, 86 Stat. 150 (1972).
. Although the district judge orally stated that an opinion would issue explaining the reasons for this decision, no written memorandum has been filed.
. The actual standard is set out in § 413(b) of the Act, 30 U.S.C. § 923(b), which incorporates by reference the Social Security Act, 42 U.S.C. § 405(g).
. 20 C.F.R. 410.414(b)(4) allows miners who worked “many years,” but did not reach the fifteen year requirement established by (b)(3), to receive the presumption of impairment if he suffered from a “severe lung impairment.” Clearly, Mr. Dobbins met this requirement even if he had only worked at the U.S. Steel Corporation mine.
. Section 411(c)(3) of the Act, 30 U.S.C. § 921(c)(3) and 20 C.F.R. § 410.418 allows for an irrebuttable presumption of disability if “complicated pneumoconiosis” is clearly diagnosed. Obviously, that is inapplicable in this case. Nor can the medical presumption in 20 C.F.R. § 410.490, or the medical tests at 20 C.F.R. § 410.424 be applied here.
. Black Lung Benefits Reform Act of 1977, Pub. L.No. 95-239, 92 Stat. 97.
. Section 402(f) of the Act, 30 U.S.C. § 902(f), was amended to state in part:
[A] deceased miner’s employment in a mine at the time of his death shall not be used as conclusive evidence that the miner was not totally disabled;
30 U.S.C. § 902(f)(l)(B)(i).
Section 413(b) of the Act, 30 U.S.C. § 923(b), was also amended to state:
In determining the validity of claims under this part, all relevant evidence shall be considered, including . .. wife’s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner’s physical condition, and other supportive materials. Where there is no medical or other relevant evidence in the case of a deceased miner, such affidavits shall be considered to be sufficient to establish that the miner was totally disabled due to pneumoconiosis. . . .
(emphasis added).
As a general rule, appellate courts will apply changes in laws that come into effect after an initial judgment, but before an appeal is decided. In fact, this presumption applies unless there is a clear indication to the contrary in the legislation, or when it becomes necessary to avoid manifest injustice. United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 103 (1801); Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).
Two circuits have already ruled, that these particular amendments are not to be applied retroactively. Treadway v. Califano, 584 F.2d 48 (4th Cir. 1978) (en banc); Yakim v. Califano, 587 F.2d 149 (3d Cir. 1978).
The Yakim court was persuaded that the amendments’ legislative history, which included the apparent striking of a retroactivity provision in the Senate-House Conference Committee, precluded an application of these changes to pending cases. Id. at 150. The Treadway court similarly concluded that any application of the 1977 amendments would be inconsistent with the administrative mechanism, since the change would affect the evidence put forward and the burden of proof. They concluded that such a task was initially one for the fact finder, and therefore decided that the claims would be considered exclusively under the 1969 Act and the 1972 amendments thereto. Id. 584 F.2d at 51-52.
We express no opinion as to the correctness of these holdings.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 30? Answer with a number.
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.
BRUNSWICK CORPORATION, Appellant, v. Jerome DOFF, Appellee.
No. 79-3011.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 4, 1980.
Decided Jan. 30, 1981.
Timothy S. Harris, Los Angeles, Cal., for appellant.
Eric F. Edmunds, Jr., Los Angeles, Cal., on brief; John G. Wigmore, Los Angeles, Cal., argued, for appellee.
Before GIBSON, SNEED and TANG, Circuit Judges.
Honorable Floyd R. Gibson, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
SNEED, Circuit Judge:
Jerome Doff appeals from a contempt order entered against him for failing to answer interrogatories propounded by Brunswick. He contends that the district court abused its discretion because he answered some interrogatories to the best of his ability and, as to the others, he validly invoked his Fifth Amendment privilege not to incriminate himself. Brunswick, on the other hand, argues that Doff waived his Fifth Amendment privilege because (1) the claim was untimely raised; (2) Doff failed properly to support his claim below; and (3) Doff initially answered the interrogatories. Brunswick further contends that the district court properly rejected Doff’s excuse that he could not answer further because his records had been stolen.
I.
Fifth Amendment Claim
We need address only the second of Brunswick’s claims with respect to Doff’s assertion of his Fifth Amendment privilege because, if correct as to it, the issue whether Doff has waived his privilege in one manner or another is irrelevant. We hold that Doff did fail properly to support his claim below. We do so on the basis that the privilege normally is not asserted properly by merely declaring that an answer will incriminate. It is not necessary, of course, that the person to whom the question has been put establish the precise manner in which he will incriminate himself by responding. This would make the privilege useless. As the Supreme Court said in Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951):
To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.
Doff failed to meet this modest standard.
Interrogatories 30, 32, and 37 were directed specifically at what assets, if any, were owned by Doff. His initial answers left much to be desired in terms of specificity and made reasonable the district court’s order that additional answers be provided. The invocation of the privilege by Doff with respect to providing additional answers was accompanied by nothing other than a bald assertion of the privilege. In no way does it appear that more responsive answers would incriminate Doff. That such answers might assist Brunswick in collecting the amount of its debt does not amount to incrimination within the scope of the privilege. A debtor such as Doff cannot conceal such assets as he might own merely by uttering the incantation, “I hereby invoke the Fifth Amendment to the United States Constitution and thus refuse to answer this interrogatory on the grounds that my answer may tend to incriminate me.” Appendix B, Appellee’s Brief 52-54. It is not evident from the setting in which the questions were asked that responsive answers or explanations would incriminate. Cf. United States v. Neff, 615 F.2d 1235 (9th Cir. 1980).
Appellant argues strongly that, whatever might be the propriety of his invocation of the privilege with respect to interrogatories 30, 32, and 37, the refusal to answer interrogatory 69 on the grounds of the privilege was proper. That interrogatory asked whether Doff had filed federal and state income tax returns for the years 1971 through 1975, the date any such returns were filed, and the amount of adjusted gross income reported thereon. On the record before us we see no way in which answers to this interrogatory would tend to incriminate. Again a distinction between the unpleasantness of possibly revealing assets to a creditor and the tendency to incriminate within the meaning of the privilege must be drawn. While the possibility of the first is evident on this record, the second is not. Even responses indicating no returns had been filed would not on this record incriminate and, incidentally, would not be inconsistent necessarily with Doff's responses to interrogatories 30, 32, and 37.
We recognize that in cases such as this the need of the court to ascertain the legitimacy of a claim of the Fifth Amendment privilege exists in a state of tension with the need of the claimant to remain silent. The latter need must always weigh heavily in the balance, but it cannot be permitted to weigh so heavily as to relieve the court of its duty to determine the legitimacy of the claim. This would be the result were we to hold that a mere Fifth Amendment privilege incantation is sufficient. See United States v. Neff, supra at 1240.
II.
Adequacy of Doff’s Answers
The district court also appears not to have been impressed by the answers supplied to interrogatories 12,15, and 22 which sought information concerning the amounts and sources of various types of income of Doff. Nor need it have been inasmuch as Doff’s answers indicated that the amounts were insubstantial or “minimal” and that, in any event, his records had been stolen from his residence. Such responses are not marked with badges of candor.
III.
The Absence of Findings of Facts and Conclusions of Law
Our review in this case has been hampered somewhat by the absence of any findings of facts or conclusions of law prepared by the trial court. Such findings and conclusions are not required by Rule 52(a), Fed.R.Civ.P., in a proceeding such as this which was commenced by a motion by Brunswick for an order of contempt, a motion not embraced by Rule 41(b), Fed.R. Civ.P. Nonetheless, to require proper findings and conclusions is within the power of this court when a lower court has entered a contempt order. See Sanders v. Monsanto Co., 574 F.2d 198, 200 (5th Cir. 1978). Consideration was given to remanding for the preparation of findings and conclusions in this case. Our decision to affirm without a remand is based on the high level of contumacy on the part of Doff that this record reflects. Under less compelling circumstances a remand clearly would have been desirable.
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_sentence
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. James BUSHERT, Defendant-Appellant.
No. 91-3797.
United States Court of Appeals, Eleventh Circuit.
Aug. 4, 1993.
Ronald J. Marzullo, St. Petersburg, FL, for defendant-appellant.
Walter E. Furr, Tamra Phipps and David P. Rhodes, Asst. U.S. Attys., Tampa, FL, for plaintiff-appellee.
Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
The validity of a waiver of the right to appeal a sentence, included in a plea agreement, is the primary issue in this case. Appellant James Bushert also appeals various other sentencing issues and the denial of his motion to withdraw his guilty plea. The government contends that the appeal as to his sentence should be denied because Bus-hert’s plea agreement included a waiver of his right to appeal his sentence. We hold that sentence appeal waivers, made knowingly and voluntarily, are enforceable. Nevertheless, we consider the merits of the sentencing claims in this case because we conclude that Bushert’s waiver was not knowingly and voluntarily made.
I.
One of Bushert’s co-defendants, Frederick Albury, headed a cocaine distribution organization in Tampa. Albury was unable to contact his regular supplier of cocaine, Grillo. Knowing that Bushert was familiar with both Grillo and Grillo’s source of cocaine, Albury approached Bushert in the hope that Bushert could obtain cocaine for Albury. Although Bushert’s attempts to locate cocaine were unsuccessful, Albury was able to get thirty kilograms of cocaine from another source and paid Bushert for his efforts. Bushert knew that most of the cocaine Albury obtained was cooked into crack cocaine.
A grand jury in Florida returned an indictment against Bushert and five co-defendants charging them with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute crack cocaine. The defendants also were charged with operating an establishment used to manufacture crack cocaine. The defendants’ motions to suppress evidence that had been obtained through electronic surveillance were denied. At approximately the same time, all defendants entered into plea negotiations with the government. Bushert’s co-defendants reached plea agreements with the government that reserved the right to appeal the denial of their motions to suppress. Bus-hert’s negotiations with the government became protracted, however, because the government believed that Bushert was not being completely truthful.
Eventually, Bushert reached an agreement with the government. That agreement stated that Bushert would plead guilty to Count One of a Superseding Information, charging him with conspiracy to possess with intent to distribute 30 kilograms of cocaine. Bushert agreed to cooperate with the government and the government agreed to “consider” whether such cooperation qualified as substantial assistance under section 5K1.1 of the Sentencing Guidelines. The plea agreement stated that the decision as to whether or not the government would file a 5K1.1 motion rested solely with the government. Bushert agreed that “he cannot and will not challenge that decision, whether by appeal, collateral attack or otherwise.”
The plea agreement also included a general appeal waiver provision. This provision read that the “[defendant knowingly and voluntarily agrees to waive his right to appeal or contest, directly or collaterally, his sentence on any ground, unless the Court should impose a sentence in excess of the statutory maximum or otherwise impose a sentence in violation of law apart from the sentencing guidelines.”
At Bushert’s re-arraignment, the district court conducted a colloquy pursuant to Fed. R.Crim.P. 11. The court told Bushert that it needed to know if he made his plea “freely and voluntarily, without threats, force or promise except the promises contained in the four corners of this plea agreement.... If I ask you any question you don’t understand, stop me and I’ll explain to you.” Throughout the colloquy, the court elicited answers from Bushert that he was not under the influence of any drugs, had never been treated for a mental illness, knew where he was and knew to what charge he was pleading guilty. Bushert testified that no promises were made to him other than the promises recited in the plea agreement. The court informed Bushert of his various rights, including his right to a jury trial and the right against self-incrimination. The court also discussed appeals.
THE COURT: Do you understand that you’re losing the right to appeal regarding the charges in this case, however, you do retain the right to question whether you’re entering this plea freely and voluntarily, whether the Court has jurisdiction to take your plea. But other than that you’re losing your appeal right, do you understand that?
THE DEFENDANT: Yes, Your Honor.
The court also discussed appeals in the context of the Sentencing Guidelines.
THE COURT: Do you also understand that under some circumstances you or the government may have the right to appeal any sentence that the Court imposes, do you understand that?
THE DEFENDANT: Yes, Your Honor.
The court then questioned Bushert’s attorney concerning various issues. Finally, the court specifically found that Bushert understood what he was doing and that the plea was “not produced by risk, force or promise except those promises dictated into the record in the plea agreement.” After finding that the plea was entered freely and voluntarily, the court accepted Bushert’s guilty plea.
Two months later, Bushert filed a motion to withdraw his plea under Fed.R.Crim.P. 32(d), alleging that the government had promised orally that he would get the “same deal” as his co-defendants. The co-defendants retained the right to appeal the denial of the suppression motion; the plea agreement Bushert signed purports to waive all appellate rights. A magistrate judge reviewed this claim and made several findings of fact. The magistrate found that immediately prior to his re-arraignment, Bushert reviewed his plea agreement but that he did not have time to compare it with his co-defendants’ agreements. The magistrate concluded that an evidentiary hearing was not required because Bushert provided no affidavits, and because at the re-arraignment, Bushert had indicated that there were no promises outside the plea agreement. The magistrate recommended that Bushert’s motion to withdraw his guilty plea be denied. Although Bushert contested this report, the district court adopted the magistrate’s report and recommendation.
At the sentencing hearing, Bushert’s new counsel asserted that the government had acted in bad faith by refusing to file a 5K1.1 substantial assistance departure motion. Although Bushert withdrew his request for an evidentiary hearing on this matter, he notes that he did not waive the bad faith argument. The district court also considered and resolved Bushert’s objections to the PSI and heard testimony on the government’s proposed obstruction of justice enhancement. The court gave Bushert an obstruction of justice enhancement and an acceptance of responsibility downward departure. The court sentenced Bushert to 151 months of imprisonment, followed by 5 years of supervised release.
II.
A.
Bushert raises six issues on appeal. Before addressing these issues, we first consider the government’s claim that Bushert’s purported waiver of his right to appeal his sentence (“sentence appeal waiver”), as stated in his plea agreement, prevents him from contesting his sentence. This is an issue of first impression in this circuit.
There is no question that a defendant who enters a guilty plea waives numerous constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Those rights include the right to a jury trial, the right to call witnesses, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination. Id.; see also Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). In fact, guilty pleas have been described as “perhaps the supreme instance of waiver known to our system of justice, one by which all... trial rights and safeguards are voluntarily foregone.” United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc).
Plea bargains serve many significant and valid purposes. For example, they save the government time and money.
[Wjhen the state enters a plea bargain with a criminal defendant, it receives immediate and tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. Also, the defendant’s agreement to plead to some crime tends to ensure some satisfaction of the public’s interest in the prosecution of crime and confirms that the prosecutor’s charges have a basis in fact.
Newton v. Rumery, 480 U.S. 386, 393 n. 3, 107 S.Ct. 1187, 1192 n. 3, 94 L.Ed.2d 405 (1987) (citations omitted). Not only are such bargained guilty pleas and concomitant waivers permissible, the Supreme Court has stated that they are “important components of this country’s criminal justice system.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977).
By its terms, the appeal waiver in this case only applied to Bushert’s sentence. Accordingly, an appeal going to the heart of the plea — such as the one Bushert makes in his appeal from the denial of his Rule 32(d) motion that his plea was not made voluntarily — would not be affected by the waiver. The waiver of the right to appeal one’s sentence implicates a different set of concerns than a plea of guilty, which waives the bundle of constitutional rights discussed above.
There is no constitutional right to appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). The right to appeal is purely statutory. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); see 18 U.S.C. § 3742; 28 U.S.C. § 1291. Before the passage of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., defendants appealed their sentences pursuant to 28 U.S.C. § 1291. If, however, the district court imposed a sentence within the statutory limits, it was “generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). When Congress passed the Sentencing Reform Act, it greatly expanded a defendant’s right to obtain appellate review of his sentence. Under the authority of 18 U.S.C. § 3742(a), courts of appeals may now review certain sentences, including those “imposed in violation of law... [and those] imposed as a result of an incorrect application of the sentencing guidelines.” It is against the backdrop of the Sentencing Reform Act system that we approach this case.
At least five other circuits have addressed this issue. All have enforced sentence appeal waivers. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.1992); United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992); United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990): The Fourth Circuit initially addressed waivers in a context similar to the instant case in United States v. Clark, 865 F.2d 1433, 1437 (4th Cir.1989) (en banc). In Clark, a Bail Reform Act case, the court reasoned that “[i]f a defendant can waive fundamental constitutional rights such as the right to counsel, or the right to a jury trial, surely they are not precluded from waiving procedural rights granted by statute.” The next year, the Fourth Circuit was faced with a case also comparable to the one at bar. See Wiggins, 905 F.2d at 52. Working from Clark, the Wiggins court stated “that a defendant who pleads guilty, and expressly waives the statutory right to raise objections to a sentence, may not then seek to appeal the very sentence which itself was part of the agreement.” Id. at 53. The Wiggins court held that knowingly and voluntarily made waivers should be given full effect. Id. at 54.
In Wiggins, the district court had gone to great lengths during the Fed.R.Crim.P. 11 hearing to verify that the defendant understood the meaning of the waiver he was about to sign. Id. “On two separate occasions during the plea hearing, the district court reminded... [the defendant] that he was waiving his right to appeal his sentence even though its exact length was as yet undetermined.” Id. at 53. The Wiggins defendant stated that he had discussed the situation with his attorney and understood how the Sentencing Guidelines might be applied to his case. Id. at 54.
The Fourth Circuit refined its jurisprudence in this area in United States v. Wessells, 936 F.2d 165, 168 (4th Cir.1991), and in United States v. Marin, 961 F.2d 493 (4th Cir.1992). The law of the Fourth Circuit remains that sentence appeal waivers made knowingly and voluntarily will be enforced. The Marin court held, however, that “a waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the waiver provision of the plea agreement during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver.” Marin, 961 F.2d at 496 (citing Wessells, 936 F.2d at 168). The Marin court went on to state that “a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.” Id.
The Ninth Circuit also has enforced sentence appeal waivers. In Navarro-Botello, the defendant agreed to waive his right to appeal his sentence if the sentence imposed was within the Guidelines range calculated by the parties. 912 F.2d at 319-20. The parties calculated a range of 15-21 months and the district court sentenced the defendant to 21 months. Id. at 320. The defendant appealed, asserting that his plea was not voluntary and that sentence appeal waivers should not be enforced.
The Ninth Circuit rejected the argument made by the defendant that his waiver was involuntary because it gave up “unknown” appeal rights. Id. The Navarro-Botello court analogized this situation to a case in which the Supreme Court allowed an individual to waive the right to file a 42 U.S.C. § 1983 action in return for the prosecutor dismissing pending criminal charges. Id. (citing Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987)). In Newton, the Supreme Court had held that the. litigant gave up a somewhat unknown right by agreeing not to file a § 1983 action and that that action reflected a “highly rational judgment.” 480 U.S. at 394, 107 S.Ct. at 1193. Relying on Newton, the Ninth Circuit concluded that when the defendant signed the sentence appeal waiver, he “knew he was giving up possible appeals, even if he did not know exactly what the nature of those appeals might be.” Navarro-Botello, 912 F.2d at 320.
Adopting the rationale of Newton and Wiggins, the Navarro-Botello court held that it would enforce voluntary and intelligent sentence appeal waivers. 912 F.2d at 321. The court also concluded that public policy strongly supported sentence appeal waivers. Id. at 321-22. The Ninth Circuit added its own exception, however, stating that a waiver would not prevent an appeal if the “sentence imposed is not in accordance with the negotiated agreement.” Id. The Navarro-Botello defendant was sentenced to a term within the range contemplated by the negotiated plea agreement and the Ninth Circuit affirmed the district court. Id.
In United States v. Bolinger, 940 F.2d 478 (9th Cir.1991), the Ninth Circuit construed Navarro-Botello narrowly. The plea agreement in Bolinger contained a sentence appeal waiver and a provision that stated that the defendant would not be sentenced to more than 36 months. Id. at 479. The district court sentenced the defendant to 36 months of imprisonment. The defendant appealed, claiming the district court used an improper offense level and improperly departed from the Guidelines. The defendant argued that because his plea agreement specified that he was to be sentenced under the Sentencing Guidelines, “the alleged misapplication of the guidelines renders the sentence outside the negotiated agreement, thereby providing a basis for appeal under the Navarro-Botello exception.” 940 F.2d at 480. The court rejected this argument, asserting that such an interpretation would contravene the plain meaning of the plea agreement and would make sentence appeal waivers meaningless. Id. The court held that knowing and voluntary sentence appeal waivers would be enforced. Id.
Recently, another panel of the Ninth Circuit, diverging from the Fourth Circuit, refused to require a Rule 11 colloquy in order to enforce a waiver of appeal rights. United States v. DeSantiago-Martinez, 980 F.2d 582 (9th Cir.1992). The court found that the text of the sentence appeal waiver in the plea agreement was simple and clear. The agreement had been read to the defendant in Spanish, his primary language, and he had discussed it with his attorney. As such, the Ninth Circuit concluded that the sentence appeal waiver satisfied the knowing and voluntary requirement. Id. at 583.
On appeal, the defendant had objected because the district court did not address the sentence appeal waiver at the Rule 11 hearing. The DeSantiago-Martinez court rejected that argument. 980 F.2d at 583. “In our view, a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather a finding that the waiver is knowing and voluntary is sufficient.” Id. The dissent in De-Santiago-Martinez opined that the majority had allowed the district court to “shirk its duties under Rule 11... when a defendant’s waiver of the right to appeal a sentence is contained in a plea agreement_ The majority reduces the analysis of whether or not a waiver of the right to appeal is knowing and voluntary to a cursory look at the plea agreement itself.” Id.
The Eighth Circuit, when confronted with this issue, reviewed the importance of plea agreements to such concerns as the finality of judgments and sentences. Rutan, 956 F.2d at 829. “We also note that plea agreements are of value to the accused in order to gain concessions from the government. We feel constrained not to interfere with a defendant’s right to enter into these agreements.” Id. Thus, the court recognized implicitly that the government may be inclined to offer the defendant a more attractive plea agreement if the government knows that it will not have to spend the time and resources fighting an appeal of the conviction or fighting an appeal of the sentence.
The Rutan court cited the Fourth Circuit line of cases and concluded that if a sentence appeal waiver is made knowingly and voluntarily, it is enforceable. Id. The court also followed Navarro-Botello in holding that a sentence appeal waiver “would not prevent an appeal where the sentence imposed is not in accordance with the negotiated agreement.” Id. at 830. In deciding to enforce sentence appeal waivers, the Eighth Circuit rejected the argument that sentence appeal waivers should not be enforced because a “defendant cannot knowingly and voluntarily waive an unknown right.” Id. The court deemed this argument baseless, stating that such an accusation could just as easily be brought against guilty pleas generally because by pleading guilty a defendant waives his right to a trial. “An accused does not know that the government will be able to prove its case, how witnesses will testify, or that he will be able to competently represent himself, yet he may freely waive his right to jury trial, to confront witnesses, and to counsel.” Id. at 830 n. 2. The Rutan court stated that it was enough for the defendant to know he had a right to appeal and to understand that he was waiving that right. Id. at 830.
The final court to address sentence appeal waivers was the Fifth Circuit. Melancon, 972 F.2d at 567. The Melancon court followed unpublished Fifth Circuit precedent that enforced an “informed and voluntary” sentence appeal waiver. Id. (citing United States v. Sierra, No. 91-4342, [951 F.2d 345 (Table),] published as an attachment to Melancon, 972 F.2d at 568-70). The Fifth Circuit reaffirmed its unpublished precedent and dismissed the appeal.
We agree with the basic reasoning of our sister circuits that sentence appeal waivers may be enforced. However, just as a guilty plea must be made knowingly and voluntarily to be effective, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969), so must a sentence appeal waiver. As the Eighth Circuit noted in Rutan, 956 F.2d at 830, one of the keys to enforcing a sentence appeal waiver is that the defendant knew he had a “right to appeal his sentence and that he was giving up that right.” We hold, therefore, that in most circumstances a defendant’s knowing and voluntary waiver of the right to appeal his sentence will be enforced by this circuit.
B.
A defendant’s waiver of the right to appeal his sentence does not mean, however, that appellate review is completely unavailable. Even a defendant who has executed an effective waiver does not “subject himself to being sentenced entirely at the whim of the district court.” Id. Our endorsement of sentence appeal waivers is secured by the underpinning that for a waiver to be effective it must be knowing and voluntary. Marin, 961 F.2d at 496; see also supra note 14. Combining that underpinning with an understanding of Rule 11 leads us to conclude that in most circumstances, for a sentence appeal waiver to be knowing and voluntary, the district court must have specifically discussed the sentence appeal waiver with the defendant during the Rule 11 hearing.
District court observance of Rule 11 is vital to the effective functioning of our criminal justice system. Compliance with Rule 11 is designed to ensure that a “plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). The former Fifth Circuit, sitting en banc, identified the core concerns of Rule 11 as “absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea.” Dayton, 604 F.2d at 939. Deviations from these core concerns justify judicial intervention.
This court recently reaffirmed the general propositions of Dayton. United States v. Zickert, 955 F.2d 665, 667-68 (11th Cir.1992). In Zickert, we allowed a defendant to replead based on the district court’s failure to inform him that he could not withdraw his guilty plea if the court declined to impose the sentence recommended in the plea agreement. The district court allowed Zickert to retain the mistaken belief that in return for his guilty plea he would receive a fixed sentence. The Zickert court identified three primary objectives of Rule 11. “First, a guilty plea must be free from coercion. Second, the accused must understand the nature of the charges against him. Finally, the defendant must be aware of the direct consequences of his guilty plea.” Id. at 668. The Zickert court held that, on the facts before it, the district court deviated from the requirements of Rule 11 in such a way that the core concerns were not satisfied and that the defendant was entitled to replead. Id. at 667-68.
We conclude that -the defendant’s knowledge and understanding of the sentence appeal waiver is one of the components that constitutes-the “core concern” of the defendant’s right to “be aware of the direct consequences of his guilty plea.” Id. at 668. We agree with the Marin court’s holding that “a waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the waiver provision of the plea agreement during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver.” 961 F.2d at 496 (citation omitted).
In order to prevail in its argument that this court should enforce a sentence appeal waiver, the government need only demonstrate one of the two Marin items. The government must show that either (1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver.
We reject the view of the DeSantiago-Martinez court that an examination of the text of the plea agreement is sufficient to find the waiver knowing and voluntary. 980 F.2d at 583. Rather, we agree with the DeSantiago-Martinez dissent when it stated “it is incumbent upon the judge to canvass the defendant in a manner that' ensures that the defendant made a voluntary decision based on an understanding of both the nature of the charges against him and the statutory and constitutional rights he is relinquishing.” Id. (emphasis added). This is not to say that during a Rule 11 colloquy, the district court must question the defendant about every aspect of the plea agreement, but only those involving relinquishment of rights. The fact that the defendant is giving up a’ right when he agrees to a sentence appeal waiver is what distinguishes the district court’s responsibility with respect to such waivers from its responsibility with respect to other various and sundry provisions of a plea agreement such as a defendant’s promise to cooperate with the government.
Without a manifestly clear indication in the record that the defendant otherwise understood the full significance of the sentence appeal waiver, a lack of sufficient inquiry by the district court during the Rule 11 hearing will be error. Therefore, in most circumstances, for a sentence appeal waiver to be knowing and voluntary, the district court must have engaged the defendant about the sentence appeal waiver during the Rule 11 hearing.
. III.
A.
With that foundation laid, we turn to an examination of the. case at bar in order to determine whether to enforce Bushert’s purported sentence appeal waiver. The volun-tariness of a guilty plea is a question of law reviewed de novo. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). Similarly, the determination of whether a defendant effectively— that is knowingly and voluntarily-waived his right to appeal his sentence is a question of law that this court reviews de novo. Marin, 961 F.2d at 496; Bolinger, 940 F.2d at 479.
In this case, the district court did not specifically address the issue of the sentence appeal waiver in the Rule 11 hearing. The district court did inform Bushert that he was waiving his right to appeal the charges against him. In contrast, during the Rule 11 hearing, the court also informed Bushert that he might have the right to appeal his sentence under some circumstances: “Do you also understand that under some circumstances you or the government may have the right to appeal any sentence that the Court imposes, do you understand that?”
The district court’s language here was confusing.'It is true that even under the terms of the sentence appeal waiver, Bushert could appeal his sentence under some circumstances. The district court’s statement, however, did not clearly convey to Bushert that he was giving up his right to appeal under most circumstances. The statement the district court made to Bushert could have been made—and indeed would have been more appropriate if it had been made—to a defendant who had not signed a sentence appeal waiver. Defendants who do not sign sentence appeal waivers at all may appeal under some circumstances; they may appeal under the circumstances provided for in 18 U.S.C. § 3742(a). The district court’s generalization that the defendant could appeal his sentence under some circumstances was insufficient. It is not manifestly clear that Bushert understood he was waiving his appeal rights. Nor does a thorough review of the record yield any indication that Bushert otherwise understood the full significance of his sentence appeal waiver.
We conclude that the district court’s Rule 11 colloquy was deficient for failure to discuss sufficiently with Bushert his sentence appeal waiver. We hold that that failure was error.
B.
No court has explicitly discussed the rationale for determining the remedy the court should apply when a sentence appeal waiver is determined not to have been made knowingly and voluntarily. The Fourth Circuit case of Wessells, however, is informative. In Wessells, the Fourth Circuit determined that there was no Rule 11 inquiry concerning the sentence appeal waiver and that the defendant did not “knowingly agree to an absolute waiver of all rights to appeal his sentencing.” 936 F.2d at 168. The court then addressed the merits of the appeal in which the defendant had raised numerous issues concerning the Sentencing Guidelines. The Fifth Circuit followed this same path in Baty. 980 F.2d at 979.
Thus, it appears that the Fourth and Fifth Circuits’ remedy for an unknowing and involuntary waiver is essentially severance. The improper part of the defendant’s plea agreement—the unknowing and involuntary sentence appeal waiver—is severed or disregarded by the appellate court while the remainder of the plea agreement is enforced as written and the appeal goes forward. We agree with the remedy chosen by the other circuits.
By imposing the severance remedy, Bushert will get the benefit of the deal he thought he struck. Moreover, a severance remedy for an unknowing and involuntary sentence appeal waiver is not inconsistent with this court’s precedent in United States v. Zickert, 955 F.2d 665 (11th Cir.1992). In Zickert, we permitted the defendant to re-plead because the district court erroneously allowed him to believe that one of the concessions offered in return for his guilty plea was a fixed sentence. Under these circumstances, the failure of the district court to inform Zickert that he was bound by the plea agreement even if the court rejected the recommended sentence affected the fundamental consideration underlying the defendant’s guilty plea. The only remedy available was to allow the defendant to replead. Id. at 668.
Bushert’s situation may be distinguished from that of the defendant in Zickert. Unlike Zickert, there is a remedy available in the instant case that is less drastic than allowing the defendant to replead yet will allow the defendant to receive the full benefit of his plea bargain as he understood it. Severing the appeal waiver would correct the only violation of a Rule 11 core concern in this case—that Bushert was not aware of the direct consequences of his guilty plea. In short, we believe that our Rule 11 jurisprudence must distinguish the concerns posed by an involuntary and unknowing guilty plea from those raise by an involuntary and unknowing sentence appeal waiver. In the latter case but not the former, severance is both practical and adequate to preserve the defendant’s rights.
We understand that the government may have given Bushert a better deal because of the inclusion of the sentence appeal waiver than Bushert could have obtained without the sentence appeal waiver. See, e.g., Rutan, 956 F.2d at 829. Nevertheless, in this case the government will not be prejudiced by the court resolving the merits of Bushert’s appeal. In fact, the government argued the substantive merits of Bushert’s claims in addition to contending that the sentence appeal waiver should be enforced, thus implicitly acknowledging that severance was the appropriate remedy if this court invalidated the sentence appeal waiver.
IV.
We now consider the merits of Bushert’s five claims of sentencing errors: that the district court erred (1) in calculating his base offense level; (2) in not finding him a minor or minimal participant under the Sentencing Guidelines; (3) in enhancing his sentence under the Sentencing Guidelines for obstruction of justice; (4) in not reducing his sentence because of his substantial assistance; and (5) in sentencing him to the same amount of time in prison as an “organizer” of the conspiracy.
None of these contentions are meritorious. First, appellant asserts that the district court made a mistake in attributing 30 kilograms of cocaine to his offense. But Bushert has not demonstrated, as he must to prevail, that the district court’s factual findings with respect to the calculation of the base offense level were clearly erroneous. United States v. Burton, 933 F.2d 916, 917 (11th Cir.1991); see also U.S.S.G. § 2D1.4 (1991). Bushert’s next contention, that the district court erred in not reducing his base offense level in consideration for his alleged minor or minimal role in the offense, also fails because he has not established that the district court’s decision was clearly erroneous. United States v. Alston, 895 F.2d 1362, 1369 (11th Cir.1990) (upholding district court’s refusal to grant minor or minimal participant status for person who facilitated contact between parties in drug transaction). Bushert’s third claim, that he should not have received an enhancement for obstruction of justice, similarly is without merit, especially because the district court found that he lied during his plea negotiations and that these lies impeded the investigation of this offense. See U.S.S.G. § 3C1.1, application note 3(g) (1992) (obstruction enhancement appropriate when defendant provides “materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense”).
Appellant objects to the district court’s refusal to reduce his sentence in light of his alleged substantial assistance in accordance with his plea agreement. He contends that the government acted in bad. faith in declining to file the necessary U.S.S.G. § 5K1.1 substantial-assistance motion. In Wade v. United States, — U.S. -, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), the Supreme Court held that federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion if they find that the refusal was based on an unconstitutional motive. The Supreme Court specifically noted, however, that Wade did not involve a plea agreement:
[Wade] does not claim that the Government-motion requirement is itself unconstitutional, or that the condition is superseded in this case by any agreement on the Government’s behalf to file a substantial-assistance motion, cf. Santobello v. New York, 404 U.S. 257, 262-263, 92 S.Ct. 495, 498-499, 30 L.Ed.2d 427 (1971); United States v. Conner, 930 F.2d 1073, 1075-1077 (CA4), cert. denied, 502 U.S. -, 112 S.Ct. 420, 116 L.Ed.2d 440 (1991).
— U.S. at -, 112 S.Ct. at 1843. This case, unlike Wade, does involve a plea agreement. The circuits that have addressed the issue are split as to whether, when a plea agreement allows for a substantial-assistance motion contingent on the government’s subjective evaluation of a defendant’s effort to cooperate, the government’s decision not to file a substantial-assistance motion is reviewable for bad faith or only for unconstitutional motives. Compare United States v. Knights, 968 F
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_casesource
|
029
|
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.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. COMMERCIAL OFFICE PRODUCTS CO.
No. 86-1696.
Argued January 13, 1988
Decided May 16, 1988
MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which BREN-nan, White, Blacrmun, and O’CONNOR, JJ., joined, and an opinion with respect to Parts II-B and II-C, in which BRENNAN, White, and Black-mun, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 125. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 126. Kennedy, J., took no part in the consideration or decision of the case.
Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Charles A. Shanor, Gwendolyn Young Reams, Vella M. Fink, and Donna J. Brusoski.
James L. Stone argued the cause for respondent. With him on the brief was Brent T. Johnson.
A brief of amici curiae urging reversal was filed for the State of Colorado et al. by Duane Woodard, Attorney General of Colorado, Charles B. Howe, Deputy Attorney General, Richard-H. Forman, Solicitor General, Mary Ann F. Whiteside, First Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, Frederick D. Cooke, Jr., Acting Corporation Counsel of the District of Columbia, William L. Webster, Attorney General of Missouri, W. Cary Edwards, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Jim Mat-tox, Attorney General of Texas, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming.
Robert E. Williams, Douglas S. McDowell, and Jeffrey A. Norris filed a brief for the Equal Employment Advisory Council as amicus curiae.
Justice Marshall
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, and an opinion with respect to Parts II-B and II-C, in which Justice Brennan, Justice White, and Justice Blackmun joined.
This case raises two questions regarding the time limits for filing charges of employment discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. The primary question presented is whether a state agency’s decision to waive its exclusive 60-day period for initial processing of a discrimination charge, pursuant to a worksharing agreement with the EEOC, “terminates” the agency’s proceedings within the meaning of § 706(c) of Title VII, 78 Stat. 260, as amended in 1972, 86 Stat. 104, 42 U. S. C. §2000e-5(c), so that the EEOC immediately may deem the charge filed. In addition, we must decide whether a complainant who files a discrimination charge that is untimely under state law is nonetheless entitled to the extended 300-day federal filing period of § 706(e) of Title VII, 78 Stat. 260, as amended in 1972, 86 Stat. 105, 42 U. S. C. §2000e-5(e).
I
The time limit provisions of Title VII as interpreted by this Court establish the following procedures for filing discrimination charges with the EEOC. As a general rule, a complainant must file a discrimination charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice. § 706(e), 42 U. S. C. §2000e-5(e). If a complainant initially institutes proceedings with a state or local agency with authority to grant or seek relief from the practice charged, the time limit for filing with the EEOC is extended to 300 days. Ibid.
In order to give States and localities an opportunity to combat discrimination free from premature federal intervention, the Act provides that no charge may be filed with the EEOC until 60 days have elapsed from initial filing of the charge with an authorized state or local agency, unless that agency’s proceedings “have been earlier terminated.” § 706(c), 42 U. S. C. § 2000e-5(c). The EEOC’s referral of a charge initially filed with the EEOC to the appropriate state or local agency properly institutes the agency’s proceedings within the meaning of the Act, and the EEOC may hold the charge in “‘suspended animation’” during the agency’s 60-day period of exclusive jurisdiction. Love v. Pullman Co., 404 U. S. 522, 525-526 (1972). In light of the 60-day deferral period, a complainant must file a charge with the appropriate state or local agency, or have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event in order to ensure that it may be filed with the EEOC within the BOO-day limit. See Mohasco Corp. v. Silver, 447 U. S. 807, 814, n. 16 (1980). If the complainant does not file within 240 days, the charge still may be timely filed with the EEOC if the state or local agency terminates its proceedings before 300 days. See ibid.
The central question in this case is whether a state agency’s waiver of the 60-day deferral period, pursuant to a work-sharing agreement with the EEOC, constitutes a “termination” of its proceedings so as to permit the EEOC to deem a charge filed and to begin to process it immediately. This question is of substantial importance because the EEOC has used its statutory authority to enter into worksharing agreements with approximately three-quarters of the 109 state and local agencies authorized to enforce state and local employment discrimination laws. See § 709(b), 86 Stat. 107-108, 42 U. S. C. § 2000e-8(b) (authorizing the EEOC to “enter into written agreements” with state and local agencies to promote “effective enforcement” of the Act); Brief for Petitioner 4 (EEOC has entered into worksharing agreements with approximately 81 of 109 authorized state and local agencies).
These worksharing agreements typically provide that the state or local agency will process certain categories of charges and that the EEOC will process others, with the state or local agency waiving the 60-day deferral period in the latter instance. See, e. g., Worksharing Agreement between Colorado Civil Rights Division and EEOC, App. to Pet. for Cert. 48a-49a. In either instance, the nonprocessing party to the worksharing agreement generally reserves the right to review the initial processing party’s resolution of the charge and to investigate the charge further after the initial processing party has completed its proceedings. See, e. g., id., at 47a. Whether a waiver of the 60-day deferral period pursuant to a worksharing agreement constitutes a “termination” of a state or local agency’s proceedings will determine not only when the EEOC may initiate its proceedings, but also whether an entire class of charges may be timely filed with the EEOC in the first instance.
The facts of the instant case concretely reflect what is at stake. On March 26, 1984, Suanne Leerssen filed a charge of discrimination with petitioner EEOC. She alleged that 290 days earlier, respondent Commercial Office Products Company had discharged her because of her sex in violation of Title VII. On March 30, the EEOC sent a copy of Leers-sen’s charge and a charge transmittal form to the Colorado Civil Rights Division (CCRD), which is authorized by the State to process charges of employment discrimination. The form stated that the EEOC would initially process the charge, pursuant to the worksharing agreement between the EEOC and the CCRD.
The CCRD returned the transmittal form to the EEOC, indicating on the form that the CCRD waived its right under Title VII to initially process the charge. On April 4, the CCRD sent a form letter to Leerssen explaining that it had waived its right to initial processing but stating that it still retained jurisdiction to act on the charge after the conclusion of the EEOC’s proceedings. If the CCRD’s waiver “terminated” its proceedings, then Leerssen’s charge was filed with the EEOC just under the 300-day limit. If the waiver was not a “termination,” however, then the charge was not timely filed with the EEOC because the 60-day deferral period did not expire until well after the 300-day limit.
The timeliness issue was raised in this case when the EEOC issued an administrative subpoena for information relevant to Leerssen’s charge. Respondent refused to comply with the subpoena, maintaining that the EEOC lacked jurisdiction to investigate the charge because it was not timely filed. The EEOC commenced an action in the United States District Court for the District of Colorado seeking judicial enforcement of the subpoena. The District Court agreed with respondent and dismissed the EEOC’s enforcement action, holding that the EEOC lacked jurisdiction over Leerssen’s charge because it was not timely filed. See Civil Action No. 85-K-1385 (June 6, 1985), App. to Pet. for Cert. 23a.
The Court of Appeals for the Tenth Circuit affirmed. 803 F. 2d 581 (1986). As a threshold matter, the Court of Appeals rejected respondent’s contention that the extended 300-day federal filing period was inapplicable because Leerssen had failed to file her charge with the CCRD within the State’s own 180-day limitations period. Id., at 585-586, and n. 3. The Court of Appeals agreed with the District Court, however, that Leerssen’s charge was not filed within the 300-day period and that the EEOC therefore lacked jurisdiction over the charge. The Court of Appeals reasoned that a state agency “terminates” its proceedings within the meaning of § 706(c) only when it “completely surrenders its jurisdiction over a charge.” Id., at 587. Because the CCRD retained jurisdiction over Leerssen’s charge, reserving the right to act at the conclusion of the EEOC’s proceedings, it did not “finally and unequivocally terminate its authority” over the charge as the plain language of the statute required. Id., at 590. The Court of Appeals expressly disagreed with the decision of the First Circuit in Isaac v. Harvard University, 769 F. 2d 817 (1985). The First Circuit had upheld the EEOC’s view that a waiver of the right to initially process a charge constitutes a “termination,” reasoning that the language of the Act is ambiguous and that the history and purposes of the Act support the EEOC’s construction. Judge McKay dissented from the opinion of the Court of Appeals in this case, arguing that the EEOC should prevail for the reasons offered by the First Circuit.
We granted certiorari to resolve the conflict between the First and the Tenth Circuits, 482 U. S. 926 (1987), and we now reverse.
II
A
First and foremost, respondent defends the judgment of the Court of Appeals on the ground that the language of the statute unambiguously precludes the conclusion that the CCRD’s waiver of the deferral period “terminated” its proceedings. According to respondent, “terminated” means only “‘completed’” or “‘ended.’” Brief for Respondent 14. Respondent urges that this definition is met only when a state agency, in the words of the Court of Appeals, “completely relinquish[es] its authority to act on the charge at that point or in the future” 803 F. 2d, at 589, n. 13 (emphasis in original). Because the CCRD retained authority to reactivate its proceedings after the EEOC’s resolution of the charge, respondent maintains that the CCRD did not “terminate” its proceedings within the meaning of the Act.
We cannot agree with respondent and the Court of Appeals that “terminate” must mean “to end for all time.” Rather, we find persuasive the determination of the First Circuit that the definition of “termination” also includes “cessation in time.” The First Circuit noted that this -definition is included in both Webster’s Third New International Dictionary 2359 (1976) (definition of “terminate”) and Black’s Law Dictionary 1319 (5th ed. 1979) (definition of “termination”). See Isaac, 769 F. 2d, at 820, 821, n. 5. Moreover, the First Circuit correctly observed that common usage of the words “terminate,” “complete,” or “end” often includes a time element, as in “ending negotiations despite the likely inevitability of their resumption” or “terminating work on the job-site knowing that it will resume the next day.” Id., at 821. These observations support the EEOC’s contention that a state agency “terminates” its proceedings when it declares that it will not proceed, if it does so at all, for a specified interval of time.
To be sure, “terminate” also may bear the meaning proposed by respondent. Indeed, it may bear that meaning more naturally or more frequently in common usage. But it is axiomatic that the EEOC’s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference. See Oscar Mayer & Co. v. Evans, 441 U. S. 750, 761 (1979). The reasonableness of the EEOC’s interpretation of “terminate” in its statutory context is more than amply supported by the legislative history of the deferral provisions of Title VII, the purposes of those provisions, and the language of other sections of the Act, as described in detail below. Deference is therefore appropriate.
B
The legislative history of the deferral provisions of Title VII demonstrates that the EEOC’s interpretation of § 706(c) is far more consistent with the purposes of the Act than respondent’s contrary construction.
The deferral provisions of §706 were enacted as part of a compromise forged during the course of one of the longest filibusters in the Senate’s history. The bill that had passed the House provided for “deferral” to state and local enforcement efforts only in the sense that it directed the EEOC to enter into agreements with state agencies providing for the suspension of federal enforcement in certain circumstances. See H. R. 7152, 88th Cong., 2d Sess., §708, 110 Cong. Rec. 2511-2512 (1964). The House bill further directed the EEOC to rescind any agreement with a state agency if the EEOC determined that the agency was no longer effectively exercising its power to combat discrimination. See ibid. In the Senate, this bill met with strenuous opposition on the ground that it placed the EEOC in the position of monitoring state enforcement efforts, granting States exclusive jurisdiction over local discrimination claims only upon the EEOC’s determination that state efforts were effective. See, e. g., id., at 6449 (remarks of Sen. Dirksen). The bill’s opponents voiced their concerns against the backdrop of the federal-state civil rights conflicts of the early 1960’s, which no doubt intensified their fear of “the steady and deeper intrusion of the Federal power.” See id., at 8193 (remarks of Sen. Dirksen). These concerns were resolved by the “Dirksen-Mansfield substitute,” which proposed the 60-day deferral period now in § 706(c) of the Act. See 110 Cong. Rec., at 11926-11935.
The proponents of the Dirksen-Mansfield substitute identified two goals of the deferral provisions, both of which fully support the EEOC’s conclusion that States may, if they choose, waive the 60-day deferral period but retain jurisdiction over discrimination charges by entering into work-sharing agreements with the EEOC. First, the proponents of the substitute deferral provisions explained that the 60-day deferral period was meant to give States a “reasonable opportunity to act under State law before the commencement of any Federal proceedings.” Id., at 12708 (remarks of Sen. Humphrey). Nothing in the waiver provisions of the worksharing agreements impinges on the opportunity of the States to have an exclusive 60-day period for processing a discrimination charge. The waiver of that opportunity in specified instances is a voluntary choice made through individually negotiated agreements, not an imposition by the Federal Government. Indeed, eight worksharing States and the District of Columbia filed a brief as amici in this case, explaining their satisfaction with the operation of the waiver provisions of the worksharing agreements: “By clarifying primary responsibility for different categories of charges, work-sharing agreements benefit both the EEOC and the states.” Brief for Colorado et al. as Amici Curiae 5. Moreover, most worksharing agreements are flexible, permitting States to express interest in cases ordinarily waived under the agreement and to call upon the EEOC to refrain from assuming jurisdiction in such cases. See, e. g., Worksharing Agreement Between CCRD and EEOC, App. to Pet. for Cert. 49a.
In contrast, respondent’s argument that States should not be permitted to waive the deferral period because its creation reflected a congressional preference for state as opposed to federal enforcement is entirely at odds with the voluntarism stressed by the proponents of deferral. Congress clearly foresaw the possibility that States might decline to take advantage of the opportunity for enforcement afforded them by the deferral provisions. It therefore gave the EEOC the authority and responsibility to act when a State is “unable or unwilling” to provide relief. 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey). This Court, too, has recognized that Congress envisioned federal intervention when “States decline, for whatever reason, to take advantage of [their] opportunities” to settle grievances in “a voluntary and localized manner.” Oscar Mayer & Co. v. Evans, 441 U. S., at 761. As counsel for the EEOC explained, deferral was meant to work as “a carrot, but not a stick,” affording States an opportunity to act, but not penalizing their failure to do so other than by authorizing federal intervention. See Tr. of Oral Arg. 11. The waiver provisions of worksharing agreements are fully consistent with this goal.
In addition to providing States with an opportunity to forestall federal intervention, the deferral provisions were meant to promote “time economy and the expeditious handling of cases.” 110 Cong. Rec. 9790 (1964) (remarks of Sen. Dirksen). Respondent’s proposed interpretation of § 706(c), adopted by the Court of Appeals, is irreconcilable with this purpose because it would result in extraordinary inefficiency without furthering any other goal of the Act. The EEOC would be required to wait 60 days before processing its share of discrimination claims under a worksharing agreement, even though both the EEOC and the relevant state or local agency agree that the State or locality will take no action during that period. Or, in an effort to avoid this pointless 60-day delay, state and local agencies could abandon their work-sharing agreements with the EEOC and attempt to initially process all charges during the 60-day deferral period, a solution suggested by respondent. See Brief for Respondent 29-30. Such a solution would create an enormous backlog of discrimination charges in States and localities, preventing them from securing for their citizens the quick attention to discrimination claims afforded under worksharing agreements. Or, in another scenario proposed by respondent, see id., at 29, n. 29, state or local agencies could rewrite their worksharing agreements with the EEOC to provide for “termination” of state or local proceedings in accordance with respondent’s definition of that term — complete relinquishment of jurisdiction. This solution would prevent a pointless 60-day delay, but it would also preclude a State’s reactivation of a discrimination charge upon the conclusion of federal proceedings. Requiring that States completely relinquish authority over claims in order to avoid needless delay turns on its head the dual purposes of the deferral provisions: deference to the States and efficient processing of claims. As the amici States observe, such a requirement “frustrates the congressional intent to ensure state and local agencies the opportunity to employ their expertise to resolve discrimination complaints.” Brief for Colorado et al. as Amici Curiae 1..
The most dramatic result of respondent’s reading of the deferral provisions is the preclusion of any federal relief for an entire class of discrimination claims. All claims filed with the EEOC in worksharing States more than 240 but less than 300 days after the alleged discriminatory event, like Leers-sen’s claim in this case, will be rendered untimely because the 60-day deferral period will not expire within the 300-day filing limit. Respondent’s interpretation thus requires the 60-day deferral period — which was passed on behalf of state and local agencies — to render untimely a claim filed within the federal 300-day limit, despite the joint efforts of the EEOC and the state or local agency to avoid that result. As petitioner epigrammatically observes, a claim like Leerssen’s that is filed with the EEOC within the last 60 days of the federal filing period is “too early until it is too late.” Brief for Petitioner 25. This severe consequence, in conjunction with the pointless delay described above, demonstrates that respondent’s interpretation of the language of § 706(c) leads to “absurd or futile results... ‘plainly at variance with the policy of the legislation as a whole,”’ which this Court need not and should not countenance. United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940), quoting Ozawa v. United States, 260 U. S. 178, 194 (1922).
C
The EEOC’s construction of § 706(c) also finds support in other, related sections of Title VII. These sections reinforce our reading of the legislative history that the 1964 Congress did not intend to preclude the operation of the waiver provisions of the worksharing agreements now widely in force.
Section 706(d) provides that when a member of the EEOC, rather than an individual complainant, files a discrimination charge in a State or locality with concurrent jurisdiction, “the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days... unless a shorter period is requested, to act.” 42 U. S. C. §2000e-5(d) (emphasis added). This language clearly permits state and local agencies to waive the 60-day deferral period and thus authorize the EEOC to take immediate action in cases arising under § 706(d). There is every reason to believe that Congress intended the same result in § 706(c), notwithstanding the variance in language. The legislative history of the deferral provisions reflects the legislators’ understanding that the time limits of §§ 706(c) and (d) were the same. See, e. g., 110 Cong. Rec. 12690 (1964) (remarks of Sen. Saltonstall); id., at 15896 (remarks of Rep. Celler). Moreover, this Court already has recognized in Love v. Pullman Co., 404 U. S., at 526-527, n. 6, that “the difference in wording between [the two sections] seems to be only a reflection of the different persons who initiate the charge.” We concluded in Love that “[t]here is no reason to think” that Congress meant to permit the EEOC to hold a claim in abeyance during the deferral period under § 706(d), but not under § 706(c) — even though the former section expressly authorizes such action, and the latter section does not. Ibid. Similarly, in the instant case, there is no reason to think that Congress meant to make the deferral period waivable by States under § 706(d) when the EEOC files a claim, but mandatory under § 706(c) when an individual files a claim.
The EEOC’s interpretation of § 706(c) also finds support in provisions of the Act calling for formal cooperation between the EEOC and state and local agencies. Section 705(g)(1) gives the EEOC the power “to cooperate with and, with their consent, utilize regional, State, local, and other agencies.” 78 Stat. 258, 42 U. S. C. §2000e-4(g)(1). Section 709(b) specifies that “[i]n furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies.” 86 Stat. 108, 42 U. S. C. §2000e-8(b). These sections clearly envision the establishment of some sort of worksharing agreements between the EEOC and state and local agencies, and they in no way preclude provisions designed to avoid unnecessary duplication of effort or waste of time. Because the EEOC’s interpretation of the “termination” requirement of § 706(c) is necessary to give effect to such provisions in most of the existing worksharing agreements, we find that interpretation more consistent with the cooperative focus of the Act than respondent’s contrary construction.
I — I 1-H hH
In the alternative, respondent argues in support of the result below that the extended 300-day federal filing period is inapplicable to this case because the complainant failed to file her discrimination charge with the CCRD within Colorado’s 180-day limitations period. Respondent reasons that the extended 300-day filing period applies only when “the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief” from the practice
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_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.
In re Weiner MERCHANT, Debtor. ANDREWS UNIVERSITY, Plaintiff-Appellant, v. Weiner MERCHANT, Defendants Appellee.
No. 90-1969.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 16, 1991.
Decided March 11, 1992.
Robert A. Yingst, Holly F. Underwood (argued and briefed), Boothby, Ziprick & Yingst, Berrien Springs, Mich., for plaintiff-appellant.
Weiner Merchant, pro se.
Before KEITH and NORRIS, Circuit Judges, and JOHNSTONE, District Judge.
The Honorable Edward H. Johnstone, United States District Judge for the Western District of Kentucky, sitting by designation.
JOHNSTONE, District Judge.
Andrews University appeals from an order of the United States District Court for the Western District of Michigan holding in a chapter 7 bankruptcy proceeding that (1) an educational bank loan guaranteed by a private educational institution is discharge-able, (2) a private educational institution’s extensions of credit for educational expenses are dischargeable, and (3) a prepetition creditor violates 11 U.S.C. § 362 by withholding the transcript of a debtor-student. For the reasons given, the order of the district court is reversed in part and affirmed in part.
I.
, Weiner Merchant, a citizen of Great Britain, came to the United States to attend Andrews University. Merchant received a loan from Michigan National Bank to pay a portion of her educational expenses. The Bank made the loan in connection with a student loan program arranged with the University. The program included a provision to give the Bank full recourse against the University in the event a student defaults on the debt.
In addition to the Bank loan, Merchant received assistance for educational expenses which are evidenced by promissory notes payable to the University.
After graduation, Merchant defaulted on both her obligations to the Bank and the University. The University, pursuant to the guaranty agreement, paid the Bank, took assignment of the note, and became the sole student loan creditor for Merchant’s educational expenses.
One year after graduation, faced with $28,892.40 in debts, of which $23,614.00 was attributable to these educational loans, Merchant filed a chapter 7 bankruptcy. Soon thereafter, in an effort to gain citizenship, Merchant asked the University for a copy of her academic transcript. When her request was refused she filed an adversary proceeding against the University claiming its refusal violated the automatic stay provision, 11 U.S.C. § 362(a). The University claimed that both the educational loan and credit extensions are excepted from discharge under 11 U.S.C. § 523(a)(8) and thus it had a right to withhold the transcript.
The bankruptcy court held that neither the Bank loan nor the extensions of credit fall within the exceptions to discharge under 11 U.S.C. § 523(a)(8) and that the University violated 11 U.S.C. § 362(a) by withholding the transcript. On appeal, the district court affirmed.
Three issues are raised in this appeal. First, whether educational loans, made by commercial lenders and guaranteed by private educational institutions, are discharge-able under 11 U.S.C. § 523(a)(8). Next, whether extensions of credit for educational expenses are dischargeable under 11 U.S.C. § 523(a)(8). Finally, whether a school may withhold the transcript of a student who has defaulted on educational loans and filed for bankruptcy under chapter 7.
II.
Under In re Vause, 886 F.2d 794, 798 (6th Cir.1989), the court applies a de novo standard of review in determining Congress’ intent when enacting 11 U.S.C. § 523(a)(8). This statute provides:
(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt—
(8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution....
To ascertain the Congressional intent we review the language of the statute together with the design and policy underlying the overall statutory scheme. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990).
The Bankruptcy Code was drafted to provide a discharge procedure that enables insolvent debtors the ability to reorder their affairs and enjoy “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). Congress elected to exclude certain obligations from the general policy of discharge based upon the conclusion that the public policy in issue, availability and solvency of educational loan programs for students, outweighs the debtor’s need for a fresh start.
The legislative history of the 11 U.S.C. § 523(a)(8) teaches us that the exclusion of educational loans from the discharge provisions was designed to remedy an abuse by students who, immediately upon graduation, filed petition for bankruptcy and obtained a discharge of their educational loans. This was due to the fact that unlike commercial transactions where credit is extended based on the debtor’s collateral, income, and credit rating, student loans are generally unsecured and based solely upon the belief that the student-debtor will have sufficient income to service the debt following graduation. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 466-75 reprinted in 1978 U.S.Code Cong. & Admin.News 5787.
As stated by Senator DeConcini on the floor of the Senate:
Section 523(a)(8) represents a compromise between the House bill and the Senate amendment regarding educational loans. This provision is broader than current law which is limited to federally insured loans. Only educational loans owing to a governmental unit or a nonprofit institution of higher education are made non-dischargeable under this paragraph.
124 Cong.Rec. S33998 (daily ed. Oct. 5, 1978) (statement of Sen. DeConcini).
Thus, Congress decided that many student loans should not be dischargeable in bankruptcy. With this background we turn to examine the statutory language addressed in the issues raised on this appeal.
A.
The district court correctly found that (1) the University is a nonprofit institution, and (2) a student loan program existed between the University and the Bank. However, we reject its finding that the University did not “fund in whole or in part” an educational bank loan.
The district court reasoned that a nonprofit institution funds an educational bank loan when they agree to purchase every loan and that the University did not fund the educational loan because it purchased such loans only in the event of default. We are of the opinion that this narrow construction of the discharge provision failed to give proper weight to the design and policy underlying the overall statutory scheme of the educational loan exception to discharge.
In summary, the University, a nonprofit educational institution, processed and submitted Merchant’s student loan application to the Bank. Upon default, the Bank had full recourse against the University for the balance due on the note. The University’s participation in the student loan program was crucial to Merchant receiving money to fund a portion of her education. We hold that Merchant’s obligation to the Bank was funded, in part, by the University and that the loan is not dischargeable under 11 U.S.C. § 523(a)(8).
B.
The district court found that credit extensions in favor of Merchant as evidenced by the promissory notes payable to the University were beyond the scope of the definition of a “loan” as found in 11 U.S.C. § 523(a)(8). We disagree.
The term “loan” is not defined in the Bankruptcy Code; therefore, the court must infer that Congress intended for the term “loan” to be construed in accordance with its established meaning. NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2793, 69 L.Ed.2d 672 (1981). While this Circuit has not defined the term “loan” other circuits have adopted the following definition:
[A] contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transaction will be considered a loan without regard to its form.
In re Grand Union Co., 219 F. 353 (2nd Cir.1914). See also United States Dept. of Health and Human Services v. Smith, 807 F.2d 122, 124 (8th Cir.1986); United Virginia Corp. v. Aetna Casualty and Surety Co., 624 F.2d 814, 816 (4th Cir.1980); Calcasieu-Marine Natl. Bank v. American Employer’s Insurance Co., 533 F.2d 290, 296-7 (5th Cir.1976) (using Grand Union’s “classic definition of a loan”).
Notwithstanding this broad definition, both the district court and the bankruptcy court determined that the University’s credit extension was not within the 11 U.S.C. § 523(a)(8) exception to discharge.
The district and bankruptcy courts rejected the reasoning of In re Hill, 44 B.R. 645 (Bankr.D.Mass.1984). The Hill court found that the term “loan” under section 523(a)(8) included extensions of credit when the following factors are present: (1) the student was aware of the credit extension and acknowledges the money owed; (2) the amount owed was liquidated; and (3) the extended credit was defined as “a sum of money due to a person”. We find the Hill analysis persuasive.
In this case Merchant signed forms evidencing the amount of her indebtedness before she registered for classes. She received her education from the University by agreeing to pay these sums of money owed for educational expenses after graduation. The credit extensions were loans for educational expenses.
Following the Hill analysis we hold the credit extensions are not dischargeable under 11 U.S.C. § 523(a)(8).
C.
The final issue presented in this appeal is whether in refusing to provide a student-debtor their educational transcript because they are in default on a prepetition debt, a school violates the automatic stay provision, 11 U.S.C. § 362. This section states:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of ... (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case....
We held in In re Smith, 876 F.2d 524 (6th Cir.1989), that this provision was to be broadly interpreted and that it is self executing. Thus it automatically takes effect when a petition is filed in bankruptcy.
Various courts have found that the withholding of a debtor’s transcript or the refusal to issue a transcript until a debtor pays a prepetition debt is an act to collect, assess, or recover a prepetition debt and thus a violation of section 362(a)(6). See In re Gustafson, 111 B.R. 282 (Bankr. 9th Cir.1990), rev’d. on other grounds 934 F.2d 216 (9th Cir.1991); In re Watson, 78 B.R. 232 (9th Cir.BAP 1987) (creditor may proceed with an action to hold its debt non-dischargeable without violating 362 and, after a finding of non-dischargeability, may attempt to collect the debt); In Re Parham, 56 B.R. 531 (Bankr.E.D.Va.1986); In re Reese, 38 B.R. 681 (Bankr.N.D.Ga.1984); In Re Ware, 9 B.R. 24 (Bankr.W.D.Mo.1981); In re Heath, 3 B.R. 351 (Bankr.N.D.Ill.1980); In re Howren, 10 B.R. 303 (Bankr.D.Kan.1980).
We follow the reasoning of these decisions and hold a violation of 11 U.S.C. § 362(a) arises when a prepetition creditor withholds a student-debtor's transcript. Given this determination, we must now determine if Congress made it an exception to the automatic stay provision.
Section 362(b) sets forth the exceptions. While many of the exceptions to discharge found in 11 U.S.C. § 523 are exceptions from the automatic stay found in 11 U.S.C. § 362(b), educational loans are not. Thus, the automatic stay applies to creditors of education loans and remains in effect until (1) the case is closed, (2) the case is dismissed, or (3) a discharge is granted or denied. 11 U.S.C. § 362(c)(2)(C).
Merchant filed a petition for bankruptcy under chapter 7 and later the University failed to turn over her transcript. Although there is a presumption that the educational debts are not dischargeable, as stated above, they are not listed within the exceptions to the automatic stay found in 362(b). Accordingly, the University violated section 362(a). Having found the student loan debt excepted from discharge, the stay will terminate when the district court enters an order consistent with this opinion. See 11 U.S.C. § 362(c)(2)(C).
We affirm the Bankruptcy Court and District Court in finding the University in violation of 11 U.S.C. § 362(a)(6). As the violation was not willful, sanctions are not merited.
CONCLUSION
In summary, Congress enacted 11 U.S.C. § 523(a)(8) in an effort to prevent abuses in and protect the solvency of the educational loan programs. The transactions in issue here were educational loans funded in whole and in part by Andrews University, a nonprofit educational institution. The financial assistance programs made possible by the University enabled Merchant to obtain an education which she might otherwise have been denied. Congress, by excepting educational loans from discharge, has determined that the continued solvency of educational funding and financial aid programs override the need to provide debtor’s with a fresh start in their financial affairs. Congress, however, has not excepted educational loans from the automatic stay provision.
Accordingly, the judgment of the district court holding the indebtedness dischargea-ble is reversed. The judgment of the district court refusing to hold the appellant in contempt is affirmed. This case is remanded to the district court for entry of judgment in compliance with this opinion.
. The statute was amended November 29, 1990. The following language was added, "or for an obligation to repay funds received as an educational benefit, scholarship, or stipend_” While this section is not to be considered with cases commenced before November 29, 1990, it does strengthen the court’s interpretation of Congress’ intent.
. This is further supported by In re Shipman, 33 B.R. 80 (Bankr.W.D.Mo.1983), which held that the "central issue in determining dischargeability is whether the funds were for educational purposes, not whether the funds constituted a loan.”
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_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.
William T. MILLER, Appellant, v. J. T. WILLINGHAM, Warden, Appellee.
No. 10009.
United States Court of Appeals Tenth Circuit.
Sept. 23, 1968.
Jon L. Lawritson, Denver, Colo., for appellant.
Kenneth F. Crockett, Asst. U. S. Atty., Topeka, Kan. (Benjamin E. Franklin, U. S. Atty., Topeka, Kan., on the brief), for appellee.
Before LEWIS, SETH and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
This is an appeal from denial of a writ of habeas corpus by the United States District Court for the District of Kansas. The appellant, William T. Miller, is presently serving a five year sentence in the United States Penitentiary at Leavenworth, Kansas, for a Dyer Act violation, 18 U.S.C. § 2312. Miller plead guilty to the Dyer Act violation February, 1964, in the United States District Court for the Eastern District of Texas. When Miller entered his plea he was serving a sentence imposed by a Texas state court.
Three questions are presented by this appeal. First, is a writ of habeas corpus procedurally proper in this case; second, in the absence of explicit sentencing instructions was Miller’s sentence to run concurrently or consecutively with a Texas state sentence he was serving when he plead guilty to the Dyer Act violation; third, is Miller entitled to have the writ issue ?
In February, 1964, while serving a sentence in custody of the Director of the Texas Department of Corrections, Miller plead guilty to a Dyer Act violation. He was sentenced to a five year term without any comment by the sentencing judge concerning the concurrent or consecutive nature of the sentence vis-a-vis the uncompleted Texas sentence. After Miller was released by the Texas Department of Corrections, he was transferred to Leavenworth, Kansas, to serve the federal sentence.
Miller filed a writ of habeas corpus in the district court below contending that because the sentence of the United States District Court for the District of Texas did not provide that the federal sentence was to run consecutively with the Texas state sentence, the federal and state sentences must be construed to run concurrently. If the two sentences are concurrent, then Miller’s federal sentence is complete because the time he has been in Leavenworth, plus the time in state custody after he received the federal sentence, less applicable credits, exceeds his five year federal sentence.
Miller further contends that the terms of his sentence are ambiguous because the judgment and commitment form filed by the district court was wrongfully altered in longhand by an unknown person after it was signed by the trial judge.
Lastly, Miller contends that the trial court failed to allow credit for pre-sen-tencing custody time.
A writ of habeas corpus is a procedurally proper remedy in the instant case.
“A prisoner in a federal penitentiary may be heard to contend in a proceeding in habeas corpus that he has fully served the sentence or sentences imposed upon him and therefore should be discharged from further confinement. Title 28, section 2255, United States Code, does not impinge upon the right to urge such a contention in habeas corpus. Brown v. Hunter, 10 Cir., 187 F.2d 543; Mills v. Hunter, 10 Cir., 204 F.2d 468.” Darnell v. Looney, 239 F.2d 174 (10th Cir. 1956). Carpenter v. Crouse, 358 F.2d 701 (10th Cir. 1966) (dictum); Holloway v. Looney, 207 F.2d 433 (10th Cir. 1953) (dictum).
We therefore proceed to review the trial court’s determination of the merits of the application.
Although viable, the case law rule that ambiguous sentences are concurrent, is of very limited application. This is because 18 U.S.C. § 3568 is almost always controlling where the issue of concurrent versus consecutive sentences is raised. E. g., Powers v. Taylor, 327 F.2d 498 (10th Cir. 1964); Taylor v. Baker, 284 F.2d 43 (10th Cir. 1960); Hayward v. Looney, 246 F.2d 56 (10th Cir. 1957). This determination is, of course, predicated on the conclusion that Miller’s sentence by the district court was not ambiguous; we so hold. Although an explicit statement by the sentencing court regarding the relationship between the federal and state sentence may have been desirable, it certainly is not mandatory. The federal district court was under no compulsion to recognize the existence of the uncompleted sentence of another jurisdiction. Harris v. United States, 356 F.2d 945 (10th Cir. 1966); Hayward v. Looney, 246 F.2d 56 (10th Cir. 1957). That court was, however,r under compulsion to be cognizant of and give effect to all applicable United States Statutes. Hall v. St. Helena Parish School Bd., 268 F.Supp. 923 (E.D.La. 1967). In the absence of evidence to the contrary, we conclude that Miller was sentenced by the district court in full compliance with 18 U.S.C. § 3568. The absence of any reference to the concurrent or consecutive nature of the federal sentence vis-a-vis the Texas sentence did not create an ambiguity.
Miller’s argument regarding alteration of the judgment and commitment form is without merit. The inscriptions on this form are obviously of an administrative nature, and necessary to the maintenance of a record for sentence computation. The sentencing judge could not determine with certitude when the federal sentence would begin because he did not know when Texas would relinquish custody. There is an obvious necessity for an administrative notation concerning commencement of Miller’s federal internment. The fact that this notation was made on a copy of the judgment and commitment form does not render the original sentence ambiguous.
The allegation regarding pre-sentencing custody time is also without merit. The sentence begins to run in conformance with the language of 18 U.S.C. § 3568 and that language does not include time in custody, of the United States Marshal, awaiting return to the State of Texas.
Miller is not entitled to the relief he seeks because the sentence of the District Court for the Eastern District of Texas is not ambiguous. Therefore the case is controlled by previous Tenth Circuit decisions. E. g., Williams v. Taylor, 327 F.2d 322 (10th Cir. 1964); Taylor v. Baker, 284 F.2d 43 (10th Cir. 1960). Accord, Larios v. Madigan, 299 F.2d 98 (9th Cir. 1962); United States v. J. C. Martin Lumber Co., 246 F.2d 58 (5th Cir. 1957).
Affirmed.
. Downey v. United States, 07 App.D.C. 192, 91 F.2d 223 (1937), is one of the few cases whore tiie rule was actually applied. That opinion limited application of the rule to circumstances where the sentence was ambigious and not subject to correction.
. 18 U.S.C. § 3508 provides: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of bis sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term ‘offense’ moans any criminal offense, otlier than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
“If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
“No sentence shall prescribe any other method of computing the term.”
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_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.
Lafayette BROWN, Jr., Plaintiff-Appellee, v. GEORGIA DEPARTMENT OF REVENUE, et al., Defendants, Harry White, et al., Defendants-Appellants.
No. 88-8187.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1989.
Susan L. Rutherford, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants.
Benjamin P. Erlitz, Atlanta, Ga., for plaintiff-appellee.
Before TJOFLAT, and CLARK, Circuit Judges, and RYSKAMP, Senior District Judge.
Honorable Kenneth Ryskamp, District Judge, Southern District of Florida, sitting by designation.
CLARK, Circuit Judge:
Lafayette Brown was a Tax Field Agent for the Georgia Department of Revenue. During the first two weeks of May 1984, he did not report to work for several days because he was in the hospital. On discharge from the hospital, he received a letter from the Department of Revenue stating that his absence from work was deemed an abandonment of his position. Subsequently, he was told that he had no appeal rights. Mr. Brown filed suit in federal district court for the Northern District of Georgia alleging his termination violated the Fourteenth Amendment, Title VII, and 42 U.S.C. § 1985. After a one day bench trial, the district court granted the plaintiff part of the relief he requested, namely a hearing before the State Personnel Board. The defendants appeal that decision. We have jurisdiction under 28 U.S.C. § 1292(a)(1). Because we find that the plaintiff had a property interest in continued employment and that the defendants deprived him of that interest without due process, we affirm the district court.
I.
A. Facts
Lafayette Brown worked for the Georgia Department of Revenue from September 1981 through May 1984. He was a classified employee covered by the Georgia Merit Systems Act, O.C.G.A. § 45-20-1 et seq. On Monday, April 30, 1984, Mr. Brown did not report to work, but called in sick to his supervisor, Jacqueline Fitzgerald, stating that he was in the hospital because of possible kidney stones. Record, Vol. 3, at 150. He did not return to work until Friday, May 4th, at which time he brought a doctor’s note. Id. Because he was in pain, however, his supervisor allowed him to leave early. Id. at 48.
On Monday morning, May 7th, according to Mr. Brown’s testimony, the pain was much worse and he took a taxi to the hospital. When he could not pay the fare, he was arrested and brought to Atlanta City Jail. Id. He was detained overnight on charges of theft, but brought to Grady Hospital on Tuesday morning. Id. at 49. He did not contact his supervisor, however, until Wednesday morning, May 9th, because he was groggy from pain medication. Id. at 90. At that time, he informed Ms. Fitzgerald that he was in the hospital and did not know how long he would be there. Mr. Brown remained in the hospital until Friday May 11th, but had no other contact with his office. On his return home, he received a letter which stated that pursuant to Rule 12, § 12.202 of the Rules and Regulations of the State Merit System, he was deemed to have abandoned his job because he was absent for five days without being on leave. The letter did not indicate whether Mr. Brown had any right to review of the decision. Mr. Brown testified, however, that after receiving the letter he called Joyce Kelly, the Personnel Director, who directed him to John Smith, the Director of Field Services. According to Mr. Brown, Mr. Smith told him there was nothing he could do. Record, Vol. 3, at 54. On July 9th, however, Mr. Brown wrote a letter to the Merit System of Georgia and asked for review of the decision. Record, Vol. 1, Tab 27, Exhibit A. In response, he received a letter stating that he had no right to an appeal. Id. at Exhibit B.
B. Procedural History
Mr. Brown filed suit in federal district court alleging violations of the Fourteenth Amendment, Title VII, and 42 U.S.C. § 1985. Mr. Brown named as defendants the Georgia Department of Revenue, the State Personnel Board, the State Merit System, and three employees of the Department of Revenue in their individual and official capacities: Harry White, Gary Robinson, and Jacqueline Fitzgerald. Thus began a long and tortuous procedural history in which the district court attempted to clarify both the proper defendants and the substantive claims. Because the resolution of the issues on appeal necessitates a clear understanding of the procedural history, we present that history in more detail than usual.
1. The Parties
In their answer and summary judgment motion, the defendants raised the Eleventh Amendment as a defense. In an order dated March 5, 1987 (“the March 5 order”), the court granted summary judgment for the Department of Revenue, the Merit Systems Board, and the three defendants in their official capacity on Eleventh Amendment grounds. Since the plaintiff sought compensatory relief, the court held the Eleventh Amendment barred the suit against these defendants because the state was the real party in interest. Record, Vol. 1, Tab 23. The court also granted plaintiffs motion to amend the complaint to add three new defendants, all employees of the Department of Revenue in their individual and official capacities: Joyce Kelly, Fred White and John Smith. Then in an order dated July 7, 1987 (“the July 7 order”), the district court also ordered summary judgment on Eleventh Amendment grounds for the three new defendants in their official capacity. Recognizing for the first time that the plaintiff also sought prospective injunctive relief, however, the court held that the Eleventh Amendment did not bar suit against the Personnel Board or the Department of Revenue insofar as it sought equitable relief. Record, Vol. 1, Tab 31.
Finally, on September 14, 1987, the plaintiff again sought leave to amend his complaint by deleting the state agencies as defendants and substituting Marcus Collins, the Commissioner of the Department of Revenue in his official capacity and the six members of the State Personnel Board in their official capacity: Susan Landrum, Richard Babush, Charles Storm, Pamela Fuller, W. Howard Fowler, and C. Ron Cheeley. The plaintiff also sought reconsideration of the prior dismissal of the Department of Revenue employees in their official capacity. At an oral hearing on that date, the district court granted the motion to amend. Record, Vol. 2, at 11. Therefore, the defendants at trial were: (1) Marcus Collins and the six members of the Personnel Board in their official capacity and (2) the six employees of the Department of Revenue in both their official and individual capacity.
2. The claims
The claims asserted by the plaintiff were also subject to a confused history. The complaint alleged violations of the Fourteenth Amendment, Title VII, and 42 U.S.C. § 1985. The plaintiff voluntarily dismissed the latter two claims in the March 5 order. The substance of the case therefore was that the dismissal violated substantive and procedural due process as well as equal protection. In the March 5 order, the district court held there was no property interest created by the Georgia Merit Systems Act and therefore dismissed both the substantive and procedural due process claims. The court then asked the parties to brief the question of whether Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), barred the federal suit because the complaint merely alleged that state officials had violated state law. Record, Vol. 1, Tab 23, at 8. In the course of considering the Pennhurst issue, the district court reconsidered its prior dismissal of the procedural due process claim and allowed the case to proceed to trial on procedural due process and equal protection grounds. On September 15, 1987, the court also reversed its holding dismissing the substantive due process claims. Record, Vol. 1, Tab 38.
At the conclusion of the bench trial, the district court dismissed the claims against the Department of Revenue employees in their individual capacity, except for John Smith. Although the court found him responsible for the termination, the court determined that he was entitled to qualified immunity. The court also held that the State Personnel Board members had violated the plaintiffs rights by failing to grant him a hearing. The court therefore ordered the members of the Personnel Board to give Mr. Brown a hearing and stayed the other portions of the order pending the outcome of the hearing. Record, Vol. 1, Tab 42. The members of the Personnel Board appealed this order.
II. THE ISSUES ON APPEAL
The appellants raise three issues on appeal. First, they contend that the district court erred in allowing the plaintiff to amend the complaint to include the members of the Personnel Board in their official capacity. Second, the appellants argue that the Eleventh Amendment prohibits the relief granted in this case insofar as the district court ordered the state officials to comply with state law. Finally, the appellants argue that the district court erred in finding that the plaintiff was denied procedural due process. We affirm the district court on all three grounds.
A. Amendment of the Complaint
The first issue on appeal concerns whether the district court erred in allowing the plaintiff to amend his complaint to add the individual members of the State Personnel Board in their official capacity. The appellants argue that the amendment was not proper under Federal Rule of Civil Procedure 15(c) because the substituted defendants had no notice of the suit and did not know that absent the mistake, they would have been named as defendants. The appellants seek support for their argument in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986).
In Schiavone, the plaintiffs originally named “Fortune, Inc.” as a defendant in a libel suit arising from a story in Fortune magazine. Upon learning that Fortune was merely a trademark of Time, Inc., the plaintiff sought to amend the complaint to add Time as a defendant after the statute of limitations had run. The Supreme Court held that for an amendment to relate back under Rule 15(c) four factors must be satisfied:
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Id. at 29, 106 S.Ct. at 2384. The plaintiffs argued that Time received notice of the suit because they had attempted to serve the original complaint on Time, but Time’s agent refused service because Time was not named as a defendant. Since service of the original complaint was not attempted until after the statute of limitations had expired, however, the Court held the fourth requirement had not been met. Id. at 30. 106 S.Ct. at 2385.
This case is distinguishable on that precise point. The State Personnel Board was served with the original complaint within the statute of limitations period. In this case, we find that service on the Personnel Board as an entity was sufficient notice to the individual members sued in their official capacity. Amending the complaint was necessary to comply with the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908) (although Eleventh Amendment bars suit against state, it does not bar suit against state official in official capacity). Since the Personnel Board had been a party to the case, there was no prejudice from the late amendment naming the Board members. Since the members were sued in their official capacity, they could only assert defenses available to the state agencies, not any personal defenses. The Attorney General, who under Georgia law represents all state officials sued in their official capacity, O.C.G.A. § 45-15-3(6), represented the State Board and raised those defenses. Moreover, the fact that the Attorney General raised the Eleventh Amendment defense throughout the proceedings evidenced his awareness of the pleading mistake. In such a situation it is reasonable to conclude that the individual Board members should have known that they were the correct defendants. See Regents of University of Michigan v. Ewing, 474 U.S. 214, 221 n. 6, 106 S.Ct. 507, 511 n. 6, 88 L.Ed.2d 523 (1986); Sims v. State of Florida, 862 F.2d 1449, 1460 (11th Cir.1989) (in banc); Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir.1988); see also Stevens v. Gay, 864 F.2d 113, 116 (11th Cir.1989).
B. Pennhurst
The appellants’ second argument is that the Eleventh Amendment barred the district court from ordering the Personnel Board members to hold a hearing. They argue that under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment bars a federal court from ordering the state to comply with state law. This issue need not detain us long for the appellants misconstrue the holding of Pennhurst and the claim presented in this case. Since the plaintiff alleged a violation of the federal Constitution, Pennhurst does not apply. In Pennhurst, the Supreme Court reversed the Third Circuit’s holding that conditions at a state institution for the mentally retarded violated state law. 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The court held “that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when—as here—the relief sought and ordered has an impact directly on the state itself.” Id. at 117, 104 S.Ct. at 917. The Court reasoned that the exception to the Eleventh Amendment established in Ex parte Young was justified by the “need to promote the supremacy of federal law.” Id. at 105-06, 104 S.Ct. at 910-11. When the suit is brought under state law, however, there is no comparable justification. Id.
In this case, the district court ordered the State Personnel Board to conduct a hearing. Because the court ordered the hearing to comply with the State Personnel Rules, the appellants argue that the district court ordered the state to comply with state law. Under Pennhurst, however, the determinative question is not the relief ordered, but whether the relief was ordered pursuant to state or federal law. Despite the confusing procedural history of this case, it is clear that the district court ordered the hearing under federal law. Although the final district court order does not explain the grounds for granting relief, at the conclusion of the bench trial the court gave the basis for its ruling:
[i]t is apparent to me that Mr. Brown did have a right to a hearing before the State Personnel Board and that he was misadvised. It is clear to me that both the state and federal constitutions require in a ease such as this one where the state employee wishes to contest factually the claim that he abandoned his job, that he is entitled to a hearing and the State Personnel Board erred in not notifying Mr. Brown that he was entitled to a hearing.
Record, Vol. 3, at 216 (emphasis added). Since the relief was granted as a matter of federal due process, Pennhurst is no bar.
C. Procedural Due Process
The central issue on appeal is whether the letter from the Personnel Board informing Mr. Brown that he had no right to a hearing violated procedural due process. The Fourteenth Amendment protects against deprivation of liberty or property without due process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). The first question is whether Mr. Brown had a constitutionally protected property interest in continued employment. We do not need to address the second question, namely what process is due, because the only issue on appeal is the propriety of any hearing rather than the type of hearing necessary.
The Supreme Court has recognized that “property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” Id. at 571-572, 92 S.Ct. at 2706. In Roth, the Court stated:
Property interests... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Id. at 577, 92 S.Ct. at 2709.
Mr. Brown is a permanent employee governed by the Georgia Merit Systems Act. The Merit Systems Act states that “[p]er-manent status employees may be dismissed from employment or otherwise adversely affected as to compensation or employment status only if such action is taken in accordance with the rules and regulations of the State Personnel Board.” O.C.G.A. § 45-20-8(a). The appellants argue that under state law Mr. Brown did not have a constitutionally protected property interest in his job because subsection (b) states “[t]his article is not intended to create a property interest in the job, but rather to create only a procedure under which permanent status employees can be dismissed or otherwise affected.” According to the appellants property interests are “created and... defined by... state law,” this express disclaimer ends the inquiry.
The appellee argues that the Georgia Supreme Court’s opinion in Clark & Stephenson v. State Personnel Board, 252 Ga. 548, 314 S.E.2d 658 (1984), interprets the statute to create a property interest. In Clark, the issue facing the Court was whether the declassification of certain positions violated the Georgia Constitution’s prohibition on laws “impairing the obligations of contracts.” Art. I, Sec. I, Para. VII, 1976 Constitution of Georgia. The Court concluded that “to say that the Merit System Act does not create a constitutionally protected contract between the merit system members and the state would overlook the obvious purposes of the Act itself.” Id. at 550, 314 S.E.2d at 660. Because the Act creates a constitutionally protected contract, the Court held that when a position is declassified, the employees are entitled to the protections of the Merit Systems Act before they are demoted. Id. Although the Court was not faced with the question of whether there was a property interest, its reasoning is of significance to such an analysis because it represents the most recent interpretation of the Merit Systems Act. The Court held that the purpose of the Act was to establish a career service in government and personnel administration based on merit. Id. The statute therefore creates a systematic classification of positions based on merit and “reasonable job security for the competent employee” by providing that permanent status employees may not be fired except in accordance with the Personnel Board rules. Id.
These two sources of state law initially create confusion as to whether the Merit Systems Act creates a constitutionally protected property interest. On closer look, however, it becomes apparent that the statutory disclaimer is not dispositive of the issue. The cases from the Supreme Court and this court reveal that the existence of a property interest is a matter of federal constitutional law that depends on an interpretation of state law. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1976). More specifically, as a matter of federal law a property interest is created whenever a public employee can only be fired “for cause.” State law determines whether a particular employee is terminable at will or only for cause. An explicit contractual provision or rules or common understandings may determine that issue. Perry v. Sindermann, 408 U.S. 593, 602 & n. 7, 92 S.Ct. 2694, 2700 & n. 7, 33 L.Ed.2d 570 (1972); see Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976); Hatcher v. Board of Public Education & Orphanage, 809 F.2d 1546, 1551 (11th Cir.1987); Ogletree v. Chester, 682 F.2d 1366, 1370 (11th Cir.1982); Winkler v. County of DeKalb, 648 F.2d 411, 414 (5th Cir.1981); Glenn v. Newman, 614 F.2d 467, 471 (5th Cir.1980). In this case, since the Merit System Act, as interpreted by the Georgia Supreme Court in Clark & Stephenson, and the Personnel Board regulations require cause for dismissal, we find that the appellee had a property interest in his job. An analysis of the case law and the statute and regulations at issue will make this conclusion clear.
1. Case Law
In both Roth and Sindermann, nontenured professors brought procedural due process claims when they were not reappointed to their positions. In Sinder-mann, the Court held “[a] person’s interest in a benefit is a ‘property interest’ for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” 408 U.S. at 601, 92 S.Ct. at 2699. The Court held that a contractual provision providing that an employee would only be discharged for cause creates a legitimate entitlement to continued employment absent cause. Id. In Roth, the lack of such language negated a finding of a property interest since the plaintiff could point to nothing else — statute or common law — that gave him any legitimate claim to continued employment. Roth, 408 U.S. at 578 & n. 16, 92 S.Ct. at 2710 & n. 16. In Sindermann, however, the plaintiff did assert that he had an implied guarantee that he would be reemployed. The Court explained that Texas law would determine whether such a guarantee existed. Sindermann, 408 U.S. at 602 n. 7, 92 S.Ct. at 2700 n. 7.
In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the Supreme Court determined that a police officer in Marion, North Carolina did not have a property interest in his job. The Court noted that “the sufficiency of the claim of entitlement must be decided by reference to state law.” Id. at 344, 96 S.Ct. at 2077 (footnote omitted). First the Court determined that North Carolina law did not recognize implied “for cause” contracts in public employment, but rather required an explicit contractual guarantee of continued employment. Id. at 345, 96 S.Ct. at 2077. The Court therefore looked at the ordinance governing the employment of police officers and found that under state law, the ordinance provided that a police officer “ ‘held his position at the will and pleasure of the city.’ ” Id. at 345, 96 S.Ct. at 2078 (citation omitted). Although the ordinance on its face could “fairly be read” to require cause, the Court deferred to the contrary interpretation of the state law by the district court “who, of course, sits in North Carolina and practiced law there for many years.” Id. The Court emphasized that the determinative factor was that state law classified police employees as “at will.” Since Bishop, there has been no dispute that an employee has a property interest if he may only be dismissed for cause. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); cf. Memphis Light, Gas & Water, 436 U.S. at 11, 98 S.Ct. at 1561. (Tennessee residents had a property interest in continued utility service because “[s]tate law does not permit a public utility to terminate service ‘at will’ ”); Goss v. Lopez, 419 U.S. 565, 573-74, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975) (students had property interest in remaining at school because school officials had limited power to suspend students).
As the Sindermann Court noted, state law can create an entitlement to a job through explicit contractual provisions or through “rules or mutually explicit understandings.” 408 U.S. at 601, 92 S.Ct. at 2699. This court has recognized that personnel rules and regulations may create a property interest if they impose requirements or procedures regarding dismissals which are analogous to requiring cause. Glenn, 614 F.2d at 472; see Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571 (11th Cir.1983); Winkler, 648 F.2d at 414. Recently, however, this court affirmed a district court order declining to follow this line of case law. Wofford v. Glenn Brunswick Memorial Hosp., 864 F.2d 117 (11th Cir.1989). In Wofford, this court read Garmon v. Health Group of Atlanta, 183 Ga.App. 587, 589, 359 S.E.2d 450 (Ga.App.1987), to hold that under state law, internal personnel policies cannot transform an at will employee into a tenured employee. In Garmon, the Georgia Court of Appeals held that an employee of a hospital did not have a suit for wrongful termination because the hospital did not comply with personnel rules. The Garmon Court determined that to allow a suit for wrongful termination would “transform [the plaintiff] from an at-will employee into one under contract to the hospital in violation of O.C.G.A. § 34-7-1.” Id. at 589, 359 S.E.2d at 450. Wofford and Garmon do not control this case for two reasons. First, the plaintiff in Garmon conceded that she was an at will employee; she did not argue that the personnel policy had made her a tenured employee. Id. at 588, 359 S.E.2d at 452. Second and more importantly, Clark & Stephenson holds that the employee is entitled to rely on the Personnel Board regulations as the terms of his contract. Therefore, both the Merit Systems Act and the Personnel Board regulations are relevant to the question of whether a covered employee has a property interest in his job.
Therefore the case law explains that the appropriate inquiry into whether a property interest exists is determined by considering whether under state law, the employee could be fired only for cause. We must look at both the Merit Systems Act and the Personnel Board’s regulations. The appellant’s argument that the statutory disclaimer ends the analysis misconstrues the function of state law in the analysis. “Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause” Memphis Light, Gas, & Water Division, 436 U.S. at 9, 98 S.Ct. at 1560 (emphasis added) (citations omitted).
2. Georgia law
The appropriate starting point is of course the Merit Systems Act. The Georgia Supreme Court’s recent interpretation of the statute in Clark & Stephenson leaves little room for concluding that a covered employee is terminable at will. As pointed out above, the Court found that the statute was intended to create a merit system and provide job security. Although the Court never used the magic words “for cause,” it did state that the competent employee would have job protection. Moreover, although the statute leaves the task of defining the reasons for dismissal and the procedures to be used to the State Personnel Board, the statute does set forth the minimum procedural requirements for dismissal, namely notice and right to a post-termination hearing. O.C.G.A. § 45-20-8(b). Thus the statute envisions that an employee be allowed to contest the reasons for his dismissal suggesting that there is some substantive limitation on the state’s ability to fire covered employees.
The Personnel Board Rules and Regulations support a finding that employees may only be dismissed for cause. Rule 15.204 states that a permanent status employee may only be dismissed for “negligence or inefficiency...; inability or unfitness to perform assigned duties; insubordination; misconduct; conduct reflecting discredit on the department; commission of a felony or other crime involving moral turpitude; chronic tardiness, or absenteeism; failure to report for or remain at work without justifiable cause; or political activity in violation of Rule 3.” Rule 15 provides procedural protections before any adverse action may be taken, namely written advance notice, a reasonable time to refute the charges, and a written determination of the final action. In addition, Rule 14 provides for appeal after final decision for “any purported violations of the rules.”
Although the words “for cause” do not appear in the regulations, the discretion of the state to dismiss an employee is circumscribed. In addition, the rules explicitly grant the employee a hearing at which to dispute the facts. Moreover, in a prior version of the regulations, which did require cause for dismissal, cause was defined by reference to the language now included in Rule 15.204. See Eley v. Morris, 390 F.Supp. 913, 925 (N.D.Ga.1975) (earlier version included as appendix to opinion). These factors weigh in favor of finding that public employees have a legitimate entitlement to continued employment.
To avoid that result, the appellants argue that Rule 12 which discusses voluntary abandonment of jobs negates any claim of entitlement to continued employment. The appellants seem to be arguing that since Mr. Brown voluntarily abandoned his job, he had no property interest in it. This argument begs the question since it relies on a characterization of the termination of Mr. Brown’s employment as a voluntary abandonment rather than an involuntary dismissal. Moreover, an employee’s entitlement to continued employment rests on a consideration of the regulations as a whole. As a whole, the regulations provide that an employee is entitled to believe he will have a job unless he does something to disentitle himself to it. He may disentitle himself to it if he abandons it or if his supervisor believes he fits into the categories in Rule 15.204.
This analysis makes clear that a public employee governed by the Merit Systems Act and the State Board Personnel Rules has a property interest in his job entitling him to the protections of due process. The appellants raise one final argument to avoid having to give Mr. Brown a hearing at this late date. They argue that Brown waived his right to a hearing. Although there may be situations in which the plaintiffs behavior can waive any procedural due process rights to which he was entitled, we do not think this is such a case. The plaintiff never received any notice of his right to review. Indeed, the plaintiffs uncontradicted testimony established that John Smith led him to believe he had no appeal rights. Indeed even after the plaintiff independently realized that he might have a right to appeal, the State Personnel Board sent him a letter stating “[tjhere is no provision for appeal of separation under Rule 12.202 if the separation is done in accordance with the Rule and there is, therefore, no requirement of any notice of appeal.” Record, Vol. 1, Tab 27, Exhibit B. The appellants argue that this letter merely states that an appeal is not possible under the abandonment rule but does not rule out the possibility of an appeal under the catchall provision, Rule 14.212. When considered against the background of Mr. Brown’s dealings with the Department of Revenue officials immediately after his dismissal, however, we think Mr. Brown was reasonable to read this letter to preclude any appeals. In light of these facts, we cannot conclude that the plaintiff waived any rights. See Barnett, 707 F.2d at 1578 (no waiver of due process rights when delay attributable to state officials).
III.
We therefore affirm the district court on all grounds. The district court did not err in allowing the amendment to correct the Eleventh Amendment error. The court also was not barred from considering the claims because they were based on federal constitutional law. Finally, the plaintiff had a property interest in his continued employment and he was deprived of that interest without due process of law. The district court order granting Lafayette Brown a hearing by the State Personnel Board is AFFIRMED.
. Section 1292(a)(1) states:
(a)... the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States... granting, continuing, modifying, refusing or dissolving injunctions...
. Mr. Brown testified that after explaining this to Ms. Fitzgerald, she said "Okay." Record, Vol. 3, at 50. Ms. Fitzgerald, however, testified that Brown hung up immediately without waiting for any response. Id. at 137, 151. She did testify, however, that on instruction from her supervisor, she went to Grady
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_usc1
|
29
|
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.
NATIONAL LABOR RELATIONS BOARD v. NATIONAL NEW YORK PACKING & SHIPPING CO., Inc.
No. 140.
Circuit Court of Appeals, Second Circuit.
Nov. 2, 1936.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, David A. Moscovitz, Mary L. Schleifer, A. Norman Somers, Gerhard P. Van Arkle, and Philip Levy, ail of Washington, D. C., for petitioner.
Samuel J. Rosensohn, of New York City, for respondent.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
PER CURIAM.
An order issued by the petitioner pursuant to section 10, National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 160 [29 U.S.C.A. § 160]) directed the respondent, after complaint and hearing, to reinstate five employees, in its -place of business in New York with back pay. They were discharged because, as found by the Board, they had joined and assisted a labor organization. The order of reinstatement was based upon a finding that the respondent is engaged in unfair labor practices affecting commerce, as defined in section 8, subsecs. (1) and (3) of the act, 29 U.S. C.A. § 158 (1, 3), and section 2, subsecs. (6) and (7) of the act, 29 U.S.C.A. § 152 (6, 7).
The Board found that the respondent is engaged in interstate commerce and commerce with foreign countries. It made findings that the respondent had discriminated in regard to the hire and tenure of the employment of five employees, thereby discouraging membership in a labor union; that by interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by section 7 of the act (29 U.S.C.A. § 157) it had engaged in unfair labor practices within the meaning of section 8, subsec. 1 (29 U.S.C.A. § 158 (1); further, that such unfair labor practices “occurred in commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.” The findings of the Board, having evidence to support them, are conclusive upon this court. Section 10 (e) of the act (29 U.S.C.A. § 160 (e); National Labor Relations Board v. Associated Press, 85 F.(2d) 56 (C.C.A.2).
Respondent’s business consists of the consolidating and arranging for transportation of packages, which are already on an interstate journey pursuant to a contract of sale between buyer and seller. The purpose is to obtain bulk rates for transportation. Ninety percent of the shipments are to buyers in other states. The only change which occurs in' the transitory stop, that of uniting into single and larger packages, is intended to facilitate and render more economical the shipment of merchandise. Respondent, acting as agent for out-of-state buyers, is engaged in interstate transactions which fall within the sphere of federal power. Texas Transp. & Terminal Co. v. New Orleans, 264 U.S. 150, 44 S.Ct. 242, 68 L.Ed. 611, 34 A.L.R. 907; McCall v. California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391.
Undoubtedly, the mere fact that goods are intended to be transported interstate does not bring their production or manufacture under the Commerce Clause (Const, art. 1, § 8, cl. 3). Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. Nor does an interstate journey justify federal regulation of local activity which follows the termination of that journey. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R, 947. But there is a region of intrastate activity, tied up with interstate transportation and communication, in which federal power may properly operate and from which state regulation may be barred. Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239; Lemke v. Farmers’ Grain Co., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458; International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S. Ct. 481, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann. Cas. 1103.
Moreover, there is a continuity of transit from seller to buyer in which the respondent participates. The transitory stop does not break the interstate journey. Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626. “It was merely halted as a convenient step in the process of getting it to its final destination.” Binderup v. Pathé Exchange, 263 U.S. 291, 309, 44 S.Ct. 96, 99, 68 L.Ed. 308.
The motion for enforcement is granted.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Charles COLLE, Appellant, v. UNITED STATES of America, Appellee.
No. 18260.
United States Court of Appeals Fifth Circuit.
July 19, 1961.
O. B. Cline, Jr., Miami, Fla., for appellant.
E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.
PER CURIAM.
Appellant contends that in our disposition of this appeal we failed to indicate what he contends was his principal ground of appeal; that is that the court in some manner required the defendant to take the witness stand before the court would consider the exclusion of certain evidence offered by the Government. We have carefully considered this ground of appeal and find that the trial court, who tried the case without a jury by consent of the parties, permitted the defendant to take the stand to testify on the issue of the legality of a seizure of' the property tendered in evidence by the Government. The examination of the defendant in this connection was relevant to the issue on which the defendant sought to give testimony.
In our opinion we referred to “the jury’s verdict.” The opinion is modified to strike the words “the jury’s verdict,” and to substitute in lieu thereof the word “judgment.”
As thus modified the motion for rehearings is
Denied.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_genresp2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Lavere C. and Doris J. BAUGHMAN, Ernest and Jessie Billotte, Mabel E. Bock, Violet Dixon, Robert R. and Donna Ellinger, George and Ruth Elinsky, Hollis N. and Dorothy Jean Knepp, Harold O. and Lorraine Lansberry, James and Catherine Lombardo, Delbert and Janet H. Marsh, Lyle A. and Ruth S. Miller, Howard C. and Loraine G. Shaffer, Richard, Edmund and Emmabell Swanson, Edward L. and M. Joanne Welsh, Abram B. and Mabel L. Wisor, Abe B. and Leda Jane Wisor, and Thomas Irvin and Carol Shelia Wisor, and Carl and Jeannette Leidholm, Plaintiffs-Appellees, v. BRADFORD COAL CO., INC., Defendant-Appellant.
No. 78-1764.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Dec. 14, 1978.
Decided Feb. 5, 1979.
David S. Watson, Richard M. Zomnir, Thorp, Reed & Armstrong, Pittsburgh, Pa., William C. Kriner, Nevling, Davis, Kriner & Yeager, Clearfield, Pa., for defendant-appellant.
Marvin A. Fein, Pittsburgh, Pa., for plaintiffs-appellees.
Before ALDISERT, and ADAMS, Circuit Judges, and COOLAHAN, District Judge.
Honorable James A. Coolahan, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
COOLAHAN, Senior District Judge.
Several residents of Bigler, Pennsylvania filed this action under the Clear Air Act, 42 U.S.C. § 7401 et seq., against the Bradford Coal Company (“Bradford”) alleging that the Bradford coal processing plant located in Bigler violated the Pennsylvania Implementation Plan. Bradford brought an interlocutory appeal, duly authorized under 28 U.S.C. § 1292(b), from the denial of its motion to dismiss the action for lack of subject matter jurisdiction. We affirm.
The complaint in the District Court was filed on December 27, 1976. Well before that date the Pennsylvania Department of Environmental Resources (“DER”) began an action before the Pennsylvania Environmental Hearing Board (“Hearing Board”) for civil penalties against Bradford, pursuant to 35 P.S. § 4009.1. This action alleged the same violations of the Plan which the Bigler Residents would later aver in their suit. While the DER did not request a direct prohibition of further plan violations by Bradford, it did pray that the assessed penalty be “sufficient to deter such unlawful conduct in the future.”
Pursuant to 42 U.S.C. § 7604(a)(1), formerly 42 U.S.C. § 1857h-2(a)(l), federal district courts have jurisdiction over suits by private citizens to enforce Clean Air Act implementation plans against violators. However, 42 U.S.C. § 7604(b)(1)(B) provides that no such action may be commenced
if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard .
Bradford argues that the DER civil penalty action before the Hearing Board was a prior “civil action in a court of . . .a State to require compliance” with the Plan. Accordingly, Bradford asserts, there is no subject matter jurisdiction under § 7604 to entertain this suit. Finding that the Hearing Board is not a “court of ... a State”, we disagree.
This is an issue of first impression; we can find no cases construing § 7604(b)(1)(B) or its equivalent in the Federal Water Pollution Control Act, 33 U.S.C. § 1365(b)(1)(B). Generally, the word “court” in a statute is held to refer only to the tribunals of the judiciary and not to those of an executive agency with quasi-judicial powers. United States v. Frantz, 220 F.2d 123, 125 (3rd Cir.), cert. den., 349 U.S. 954, 75 S.Ct. 883, 99 L.Ed. 1278 (1955); Nelson v. Real Estate Comm’n, 35 Md.App. 334, 370 A.2d 608, 614 (1977); Department of State v. Spano, 1 Pa.Cmwlth. 240, 274 A.2d 563 (1971). Nevertheless, an administrative board may be a “court” if its powers and characteristics make such a classification necessary to achieve statutory goals. Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Board, 454 F.2d 38 (1st Cir. 1972). Indeed, the Pennsylvania Environmental Hearing Board has been held to be a “State Court” for purposes of the Federal Removal Statute, 28 U.S.C. § 1442. United States v. Pennsylvania Environmental Hearing Board, 377 F.Supp. 545, 553 (M.D.Pa.1974).
There is little legislative history on the subsection at issue: 7604(b)(1)(B). That subsection, which did not appear in either the House or the Senate bills, was added by the Committee on Conference. The Committee tersely stated of § 7604(b)(1)(B):
If an abatement action is pending and is being diligently pursued in a United States or State court, such action cannot be commenced but any party in interest may intervene as a matter of right.
H.R.Rep. No. 1783, 91st Cong., 2d Sess. (1970) at p. 55.
There is however an extensive legislative history to establish that Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism. See, S.Rep. No. 1196, 91st Cong., 2d Sess. 2, 35-36 (1970) and the comments of Senator Muskie and Senator Boggs in 116 Cong.Rec. (1970) at pp. 32902, 32918, respectively. Accord: Friends of the Earth v. Carey, supra, 535 F.2d at 172; and Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 320, 510 F.2d 692, 700 (1975). The same legislative history also indicates
that Congress intended to provide for citizens’ suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief.
City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir. 1975). See, Remarks of Senator Muskie at 116 Cong.Rec. 32926 and 33102 (1970) and those of Senator Hart, id. at 33183.
The preclusion of § 7604(b)(1)(B), and the constituent phrase “court of . a State”, must be construed in light of those policies. Accordingly, for a State administrative board to be a “court” under that sub-section, that tribunal must be empowered to grant relief which will provide meaningful and effective enforcement of an implementation plan. Unless this were true, any action by a State before the board would neither alleviate the need for judicial relief nor supplant the enforcement function of citizen suits.
The Clean Air Act does provide a benchmark for evaluating the sufficiency of State administrative remedies. Section 7604(b)(1)(B) also precludes citizen suits where the EPA has commenced a “civil action in a court of the United States.” Thus, Congress believed that such proceedings would provide effective enforcement and obviate the need for citizen actions. Under 42 U.S.C. § 7413, the EPA may sue
for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both. .
Congress thus perceived that effective enforcement required, in addition to the sanction of penalties, the option of an injunction to mandate compliance. Some large dis-chargers of pollutants might believe it more economical to pay a fine than to incur the costs of compliance. Without injunctions, enforcers would be compelled, in effect, to sell a variance from an implementation plan to any wealthy pollutor.
It follows that to constitute a “court” in which proceedings by the State will preclude private enforcement actions under § 7604, a tribunal must have the power to accord relief which is the substantial equivalent to that available to the EPA in federal courts under the Clean Air Act. The Pennsylvania Environmental Hearing Board lacks this capacity. Pursuant to 35 P.S. § 4009.1, the Hearing Board is empowered only to assess a penalty which cannot exceed $10,000 plus $2,500 for each day of continuing violation of the Implementation Plan. Thus, the maximum potential financial deterrent available to the Hearing Board is merely one-tenth that wielded by federal courts. More significantly, the Hearing Board lacks the power to enjoin violations of the Plan. Cf. 71 P.S. § 510-21 and 35 P.S. § 4006. Compare, 35 P.S. § 4010.
The procedures of the Hearing Board are also deficient. Section 7604(b)(1)(B) provides that where an agency commences an action in federal court, citizens may intervene in those proceedings “as a matter of right.” (emphasis added). Apparently Congress intended that, even where private enforcement actions were precluded, the salutary effects of citizen gadflies should be preserved by allowing their participation as intervenors in the government-initiated suit. The right of intervention is, of course, not applicable to proceedings “in a court of . a State.” Nevertheless, we believe that the existence of such a right may be properly considered as one factor in determining whether a particular state tribunal is a “court” for purposes of preclusion of citizen actions.
Under the Hearing Board’s Rules of Practice and Procedure, citizen intervention is not of right, but rather is discretionary with the Board. 25 P.C. § 21.14(b). Thus, were the Board held to be a “court”, citizens could be effectively frozen out of the enforcement process. Such a result would contravene the general Congressional intent of the Clean Air Act.
Accordingly, we find that the Pennsylvania Environmental Hearing Board not to be a “court” under § 7604(b)(1)(B). The District Court’s Order that it has jurisdiction under the Clean Air Act will be affirmed.
. Under the Clean Air Act, each State is required to promulgate a scheme to control the level of air pollution which complies with certain minimum national standards. Such schemes are called “implementation plans,” and are subject to the approval of the Environmental Protection Agency (“EPA”). Once approved, a plan is enforcible by either the State or the EPA. Friends of the Earth v. Carey, 535 F.2d 165 (2nd Cir. 1976), cert. den., 434 U.S. 902, 98 S.Ct. 4, 54 L.Ed.2d 23 (1977).
. On October 15, 1977, after commencement of this action, the DER and Bradford entered into a Consent Order of Settlement for the civil penalties action. Bradford agreed to pay the State $10,000 for past violations and to construct a new plant by December 31, 1979 which would comply with the Plan. The DER agreed to allow Bradford to continue to operate its old Bigler plant until July 1, 1979, provided that Bradford “take all reasonable interim measures at the existing site to keep fugitive emissions to a minimum” (albeit, apparently, in excess of Plan levels). The DER also agreed not to institute any further enforcement actions against Bradford so long as Bradford complied with the agreement. The Order was not submitted to the EPA for approval. Variances from an implementation plan granted by a State are not effective until approved by the EPA. Friends of the Earth v. Carey, supra.
. Thus we need not, and do not, decide whether an action for civil penalties against a violator is an “action ... to require compliance” with an implementation plan. We note that Congress recently enacted 42 U.S.C. § 7420(a) which empowers both the States and the EPA to administratively assess and collect civil penalties from violators. The purpose of the provision was, inter alia “to encourage compliance as effectively as possible . . . .” H.R. Rep. No. 294 (Interstate and Foreign Commerce Committee), 95th Cong., 1st Sess. 5 (1977), U.S.Code Cong. & Admin.News 1977, pp. 1077, 1083. Nevertheless, Congress was careful to add subsection (f) which provides:
Any orders, payments, sanctions, or other requirements under this section shall be in addition to any other permits, orders, payments, sanctions, or other requirements established under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under any provision of this chapter or State or local law. (emphasis added).
. It may be argued that the Senate bill contained in its notice requirement an implied preclusion of private suits in the event of prior agency action. Section 304(a)(3) provided:
No such suit shall be filed unless such person or persons shall have afforded the Secretary, his representative, or such agency, at least thirty days from the receipt of such notice to institute enforcement proceedings under this title to abate such alleged violation;
(emphasis added). S.Rep. No. 1196 (Senate Comm, on Public Works) 91st Cong., 2nd Sess. 122 (1970). However, in its Statement of Intent, the Senate Committee on Public Works said:
It should be emphasized that if the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition. On the other hand, if the court viewed the agency action as inadequate, it would have jurisdiction to consider the citizen action notwithstanding any pending agency action.
Id. p. 37.
. Accordingly, we do not decide whether the lack of citizen intervention of right, alone, is a sufficient basis to find an otherwise competent tribunal not to be a “court” under § 7604(b)(1)(B).
. Because of this conclusion, we do not address the alternative jurisdictional bases argued by the parties.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Theodore BENAZET, Plaintiff-Appellee, v. ATLANTIC COAST LINE RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. ERIE LACKAWANNA RAILROAD COMPANY, Third-Party Defendant-Appellee.
Nos. 474, 475, Dockets 35278, 35279.
United States Court of Appeals, Second Circuit.
Argued March 16, 1971.
Decided April 23, 1971.
Joseph P. Altier, New York City (Bromsen & Gammerman, New York City, on the brief), for plaintiff-appel-lee.
Devereux Milburn, New York City (Carter, Ledyard & Milburn, Frank G. Kurka, James J. Mennis and Jerome L. Getz, New York City, on the brief), for Atlantic Coast Line Railroad Company, defendant and third party plaintiff-appellant.
Lloyd W. Roberson, New York City, for Erie Lackawanna Railroad Company, third party defendant-appellee.
Before SMITH and MOORE, Circuit Judges, and TIMBERS, District Judge.
Chief Judge of the District of Connecticut, sitting by designation.
TIMBERS, District Judge:
Appellant Atlantic Coast Line Railroad Company (Atlantic) appeals from, a $200,000 judgment entered against it after a four day jury trial in the United States District Court for the Southern District of New York, Irving Ben Cooper, District Judge, and from an order entered by Judge Cooper after trial dismissing Atlantic’s third party complaint against the Erie Lackawanna Railroad Company (Erie). 315 F.Supp. 357 (S.D.N.Y.1970).
The accident occurred July 30, 1964. Plaintiff was employed as a yard brakeman by Erie. He sustained injuries while working on a box car owned by Atlantic. The box ear was being moved from the shore near Jersey City, New Jersey, over a float bridge and on to a carfloat which is a barge with railroad tracks to accommodate railroad cars. The carfloat was owned by Erie. It was moored on the Hudson River which is part of the navigable waters of New York Harbor just off the Jersey shore. Plaintiff fell from the box car to the deck of the carfloat. His fall was caused by a defective handbrake on the box car which he was attempting to tighten while standing on a footboard which had rotted and decayed. When the footboard and handbrake assembly gave way, plaintiff was catapulted to the deck of the carfloat. No issue is raised on this appeal with respect to the defective conditions of the box car owned by Atlantic being the proximate cause of plaintiff’s injuries.
Atlantic’s essential claims on appeal are (1) that the case was erroneously submitted to the jury on the issue of contributory negligence; (2) that Atlantic’s asserted right of contribution between joint tort feasors in a non-collision case was erroneously rejected in the dismissal of its third party complaint against Erie; and (3) that the trial judge erroneously refused to set aside the verdict as excessive. Finding no error, we affirm.
I.
We need not tarry long over Atlantic’s claim that the case was erroneously submitted to the jury on the issue of contributory negligence. In the first place, in response to a written interrogatory submitted with the approval of all counsel, including Atlantic’s, the jury expressly found that plaintiff was not contributorily negligent; and our independent examination satisfies us that this finding is adequately supported by the record. Furthermore, Atlantic’s counsel not only did not object to the manner in which the judge submitted the issue of contributory negligence to the jury, but he participated in the formulation of the charge as given on this issue.
What happened was somewhat unusual. At the conclusion of the third day of the trial of an action that had been pending for four years, counsel for Erie submitted- a memorandum of law indicating for the first time that general maritime law governed rather than the common law as all counsel and the judge had supposed up to that point. Confronted with this development at the close of the evidence and on the eve of summations and charge, Judge Cooper resorted to what strikes us as a sensible, practical method of resolving the dilemma: he invited all counsel to confer with him and to participate in the formulation of the charge and written interrogatories to be submitted to the jury, especially on the issue of contributory negligence. They did. There emerged a charge, agreed to by all -counsel, under which the jury was instructed with respect to the applicable rule of contributory negligence under common law (complete bar to recovery) and under general maritime law (comparative negligence). The charge was accompanied by seven, written interrogatories, also agreed to by all counsel, in response to which the jury was instructed to decide (No. 3) whether plaintiff had established “that he exercised due care for his own safety” (which the jury answered in the affirmative); or (No. 5), in the event its answer were in the negative to No. 3, whether defendant had established “that plaintiff was contributorily negligent” and, if so, “what per cent” (which the jury did not answer, having answered No. 3 in the affirmative)
We have no doubt that the trial judge, if given more time to determine whether the common law or general maritime law governed, would have preferred to have submitted the issue of contributory negligence to the jury differently. We are satisfied, however, under the circumstances that essential justice was done. And certainly Atlantic is foreclosed from claiming error with respect to a charge in which it acquiesced and to which it intex’posed no objection until after the return of a substantial verdict .against it.
II.
Altantic’s third party claim against Erie was based alternatively on indemnity or contribution between joint tort feasors. At trial, in response to the judge’s inquiry before charging the jury, Atlantic’s counsel withdrew its indemnity claim. Such withdrawal was confirmed by Atlantic’s counsel at the time of oral argument before us.
Atlantic however continues vigorously to press its contribution claim before us as it did below. It points to the jury’s answers to written interrogatories Nos. 6 and 7 where the jury found Erie, as well as Atlantic, to have been negligent, and Erie’s negligence to have been a substantial factor in bringing about plaintiff's injuries. Atlantic’s contribution claim, so far as the equities are concerned, is appealing. But the controlling law is to the contrary.
Plaintiff having been injured aboard a vessel upon navigable waters, clearly general maritime law controls. Kermarec v. Compagnie Generale, 358 U.S. 625, 628 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953). The Supreme Court has expressly held that under general maritime law there is no contribution among joint tort feasors in a non-collision case, noting that “because Congress while acting in the field has stopped short of approving the rule of contribution here urged, we think it would be inappropriate for us to do so.” Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 285-87 (1952).
Atlantic urges a variety of arguments, not without ingenuity, which add up to an invitation to us either to ignore Halcyon or to urge the Supreme Court to overrule it. We decline the invitation and adhere to the view expressed by this Court, through Judge Friendly, in McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1338 (2 Cir.), cert. denied, 395 U.S. 946 (1969):
“So long as Halcyon v. Haenn remains on the books, inferior federal courts will do better to abstain from further adventures in this wonderland and leave doctrinal development to the Supreme Court ft
For substantially the same reasons, we likewise decline Atlantic’s invitation to permit “supplementation” of general maritime law with the New Jersey Joint Tortfeasors Act, N.J.Rev.Stat. § 2A:53A (1952). Aside from the controlling bar of Halcyon to contribution in a non-collision case, we note that it is doubtful that the New Jersey statute is applicable to a third party action against the employer of an injured plaintiff. Farren v. New Jersey Turnpike Authority, 31 N.J.Super. 356, 106 A.2d 752 (App.Div. 1954). And in any event, Atlantic’s basic argument that a state statute on contribution may be applied to fill a void in federal máritime law completely misses the point of Halcyon. There the Supreme Court did not create a void in the maritime law; it squarely held there is no right of contribution among tort feasors in a non-collision case.
We hold that Judge Cooper correctly dismissed Atlantic’s third party complaint against Erie.
III.
Finally, Atlantic claims that the trial judge erred in refusing to set aside the $200,000 verdict as excessive and it urges us to order a remittitur.
Plaintiff, 37 years of age, sustained serious and painful injuries to his face, head, both legs and back. He has a 50% permanent disability in the use of his right leg and a 35% disability in the use of his left leg and low back. He was hospitalized for five weeks and was out of work for approximately one year following the accident. His annual wages were roughly $6,000. His life expectancy was 35 years, his working expectancy 22 years. His hospital and medical expenses were approximately $3,000. While he has returned to his former job, the record clearly establishes the permanency of his injuries, the diminution of his prospective earnings and the extent of his pain and suffering, past and future.
We note that the trial judge, who, along with the jury, was in a better position than we to observe plaintiff’s demeanor and to assess his injuries, had this to say:
“ . . .we can well understand how the jury came to regard plaintiff’s testimony as forthright, clean and without exaggeration. That portion of the entire trial record which concerns itself with the pain and suffering endured, and clearly to be anticipated, demonstrates experiences of deep-seated unremitting and excruciating pain, both physical and mental, over an extensive period of time.”
We hold that the verdict, while substantial, was not excessive. It was not “so high that it would be a denial of justice to permit it to stand.” Dagnello v. Long Island R. R. Co., 289 F.2d 797, 806 (2 Cir. 1961). Nor was it “fantastic.” La France v. New York, N. H. & H. R. R. Co., 292 F.2d 649, 650 (2 Cir. 1961), aff’g 191 F.Supp. 164, 168-71. See also Gasperino v. Larsen Ford, Inc., 426 F.2d 1151, 1154 (2 Cir. 1970); Bazydlo v. Placid Marcy Co., 422 F.2d 842, 843 (2 Cir. 1970); Diapulse Corp. of America v. Birtcher Corp., 362 F.2d 736, 744 (2 Cir.), cert. dismissed, 385 U.S. 801 (1966).
Affirmed.
. The seven written interrogatories, together with the jury’s responses, are set forth in full in the District Court’s opinion. 315 F.Supp. 357, 360 n. 1.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
MINOR v. UNITED STATES
No. 189.
Argued October 15, 1969
Decided December 8, 1969
Phylis Skloot Bamberger, by appointment of the Court, post, p. 809, argued the cause for petitioner in No. 189. With her on the briefs was William E. Heller-stein. David A. Diamond argued the cause and filed a brief for petitioner in No. 271.
Peter L. Strauss argued the cause for the United States in No. 189. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Leonard H. Dickstein. Joseph J. Connolly argued the cause for the United States in No. 271. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Miss Rosenberg, and Mervyn Hamburg.
Together with No. 271, Buie v. United States, also on certiorari to the same court.
Mr. Justice White
delivered the opinion of the Court.
These cases raise related questions about the availability of the Fifth Amendment as a defense to convictions for selling narcotic drugs and marihuana without the written order forms required by law.
James Minor, petitioner in No. 189, sold heroin on two separate occasions in 1967 to an undercover narcotics agent. Having waived trial by jury, petitioner was convicted in the United States District Court for the Southern District of New York of selling narcotics not pursuant to a written order on an official form — a violation of § 2 of the Harrison Narcotics Act, now 26 U. S. C. §4705 (a).
Michael Buie, petitioner in No. 271, sold five packages of marihuana in May 1967 to an undercover narcotics agent. The agent did not have the official order form required for such transactions by § 6 of the Marihuana Tax Act, now 26 U. S. C. §4742 (a). A jury in the United States District Court for the Southern District of New York convicted petitioner of violating §4742 (a).
In separate opinions, the Court of Appeals for the Second Circuit affirmed both convictions over objections in each case that the statutory obligation to sell only in pursuance of an official order form violated petitioner’s Fifth Amendment privilege against self-incrimination. United States v. Minor, 398 F. 2d 511 (1968); United States v. Buie, 407 F. 2d 905 (1969). We granted certiorari, 395 U. S. 932 and 976, to consider petitioners’ Fifth Amendment claims, particularly in light of our intervening decision in Leary v. United States, 395 U. S. 6 (1969). For the reasons that follow, we affirm the judgments in both cases.
We deal first with No. 271. Under pertinent provisions of the Marihuana Tax Act, 26 U. S. C. §§ 4751-4753, every person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupational tax. The Act also imposes a tax on transfers of marihuana, to be paid by the transferee; the rate for those who have registered and paid the occupational tax is $1 per ounce; for those who have not or who cannot register the rate is $100 per ounce. Under § 4742 (a) it is illegal to transfer marihuana except pursuant to a written order of the transferee on a form obtained by the latter at the time he pays the transfer tax. The order form when issued must carry the name and address of both buyer and seller and the amount of marihuana to be purchased. 26 U. S. C. § 4742 (c). Other provisions of § 4742 require the form to be issued in triplicate, one copy to be retained by the Internal Revenue Service, the other copy to be kept in the buyer’s files, and the original to be delivered to the seller and retained by him. 26 U. S. C. § 4742 (d). Both original and copies are open to inspection by federal and state law enforcement officers. 26 U. S. C. §§ 4742 (d), 4773.
Buie argues that because the buyer’s order must be on the form issued by the Secretary of the Treasury and because § 4742 (c) requires the seller’s name and address to be on the form before its issuance to the buyer, the seller is forced to incriminate himself: he is forced to insist on an order form linking him to an illicit transaction and in many instances must furnish one of those links himself by giving his name to the buyer so that the latter will have the data necessary to secure the form. Moreover, it is said that the very act of selling pursuant to the order form forces the seller to admit that he is the person named in the document and to acknowledge the sale of specified amounts of marihuana on a specified date; the sale also leads to the further requirement that both seller and buyer retain a copy of the form open to inspection by law enforcement officials.
We have considerable doubt that any of these arguments would withstand close scrutiny, but we find it unnecessary to appraise them in detail because we have concluded that there is no real and substantial possibility that Buie’s purchaser, or purchasers generally, would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law.
The situation of the buyer is this: if he applies for the order form he must announce his intention to purchase marihuana — a transaction that, if he is unregistered, will involve a tax of $100 for each ounce of marihuana involved in the impending sale and that is illegal under both federal and state law. We have great difficulty in believing, and nothing in this record convinces us, that one who wishes to purchase marihuana will comply with a seller’s request that he incriminate himself with federal and local authorities and pay $100 per ounce in taxes in order to secure the order form. The possibility is particularly unlikely in view of the fact that the Eifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form. Leary v. United States, 395 U. S. 6 (1969). Except that they are sources of marihuana, sellers have no magic power over, buyers; and the characteristics of marihuana do not suggest that buyers would be driven by such urgent need that to get the drug they would incriminate themselves at the seller’s behest and pay the prohibitive tax imposed on the transfer. As insistent as sellers might be, it is extremely unlikely that buyers would comply.
Buie’s situation thus bears little resemblance to the situation that confronted Leary. The vice of the statute in that case — as in Marchetti v. United States, 390 U. S. 39, Grosso v. United States, 390 U. S. 62, and Haynes v. United States, 390 U. S. 85 (1968) — stemmed from the dilemma that confronted the buyer. The statute purported to make all purchases of marihuana legal from the buyer’s viewpoint at his option; all he had to do to avoid the federal penalty was to secure the form and pay the tax. But to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. In the present case, the first horn of this dilemma does not confront the seller. In the face of a buyer’s refusal to secure the order form, the option of making a legal sale under federal law is foreclosed by the buyer’s decision, and “full and literal compliance” with the law by the seller means simply that he cannot sell at all. There is no real and substantial possibility that the § 4742 (a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form.
This conclusion is not affected by the fact that there is a tiny number of registered marihuana dealers — some 83 in the entire country according to government figures for 1967. In order to register, dealers must show that they are in compliance with local laws and, when registered, can get order forms by paying a transfer tax of only $1 per ounce. A registered dealer is thus not subject to the deterrent pressures operating on the unregistered dealer. But the possibility that a registered dealer would present an order form to an unregistered seller like Buie is itself a hypothesis more imaginary than real; any buyer who can purchase marihuana from a legitimate source is hardly likely to find it to his advantage to secure the drug instead on the illegal market. In any event, it is quite clear in this case that Buie’s customer was not a registered dealer. Nor is there anything to suggest that he would have been willing or able to get an order form had he been asked.
No. 189. The same result must follow in Minor’s case and for similar reasons. The Harrison Narcotics Act, 26 U. S. C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U. S. C. §§ 4721-4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U. S. C. §§4701, 4703, 4771 (a)(1); and it is illegal to purchase or sell except from the original stamped package, 26 U. S. C. §4704 (a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U. S. C. § 4705 (a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U. S. C. §§4705 (f), (g) ; see 26 U. S. C. § 4721; 26 CFR § 151.24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U. S. C. § 4705 (f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163-151.165, 151.167. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161 (a), 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705 (d) of the Act requires both seller and buyer to keep their respective copies for a period of two years and to make them accessible to inspection by law enforcement officers.
The order form provisions for narcotic drugs thus differ from the marihuana provisions in three principal respects. First, the prospective seller’s name does not have to be given to the Government when the order form is secured, but is filled in only when the form is subsequently executed. Second, although the marihuana seller apparently does not have to add anything to the order form in making the sale, the seller of narcotics must enter the amounts sold and the dates. Finally, unlike the Marihuana Tax Act, which at least in theory permits any person to buy as long as the transfer tax is paid, the Harrison Narcotics Act explicitly forbids the sale of order forms to any but registered dealers and permits registration only by those “lawfully entitled” under the laws of their State to deal in the drug.
Like Buie, Minor argues that compliance with the order form provision would compel him to give incriminating information to be preserved in his and the buyer’s files and to be made readily accessible to law enforcement agents. Like Buie’s argument, Minor’s argument assumes that an order form would otherwise be forthcoming if he refused to sell without it and founders if in reality there is no substantial possibility that the buyer would or could have secured an order form. As in Buie’s case, we are convinced that this possibility is an unreal one. Prospective buyers who have either failed to register or cannot register because their dealings in the drug are illicit — and petitioner himself strenuously argues that virtually all dealings in heroin are illicit — simply are not among the class of persons to whom sellers are permitted to sell under any condition. When dealing with buyers in this class, the seller faces no risk of incrimination by reason of § 4705 (a) since there will be and can be no order form involved. Confronted with would-be buyers in this class, “full and literal compliance” with § 4705 (a) leaves the seller only one alternative: not to sell. Since from this record it is clear that Minor’s customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical.
We doubt that our conclusion would be different even if Minor’s customer were registered. It is true that there were some 400,000 registered dealers under the Harrison Narcotics Act in 1967 and that registered dealers can readily get order forms issued in blank. It is conceivable, of course, that a registered dealer would seek to buy heroin on the illegal market, but it is difficult to imagine that he would enter the name of an unregistered seller on the order form and make a record of what would surely be an illegal sale. Such unlikely possibilities present only “imaginary and insubstantial” hazards of incrimination, rather than the “real and appreciable” risks needed to support a Fifth Amendment claim.
The judgments in both cases are affirmed.
It is so ordered.
Mr. Justice Black and Mr. Justice Douglas dissent in No. 271.
Section 4705 (a) provides:
“It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
Section 4742 (a) provides:
“It shall be unlawful for any person ... to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.”
Under 26 U. S. C. §7237 (b), any person who violates the provisions of §§ 4705 (a) or 4742 (a) “shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000.”
The obligation to furnish the necessary information is in terms placed on the buyer; while his compliance with that obligation may “inform” on the seller, it would not ordinarily be thought to result in the latter’s “self-incrimination.” Nor is there anything in the record to suggest that buyers cannot get a seller’s name except through the seller himself, or that the simple act of selling pursuant to an order form — even assuming the act is “testimonial” for purposes of the Fifth Amendment — adds significantly to the information that the Government has already obtained from the buyer. Finally, whatever the merits of a seller’s attempt to assert the privilege in a prosecution for failure to keep and exhibit the order forms, it need not follow that he can similarly dispense with the requirement that he sell only to buyers who first identify themselves, via the order form, as lawful purchasers. Cf. Nigro v. United States, 276 U. S. 332, 351 (1928); United States v. Doremus, 249 U. S. 86, 94 (1919).
It would have been no answer in Leary to suggest that the buyer avoid his dilemma by not buying. See Marchetti v. United States, 390 U. S. 39, 51-52. But the buyer in Leary, unlike the seller here, was presented with the possibility of both purchasing and complying with the federal law, if he would only incriminate himself. In the present case, compliance by selling is foreclosed as a viable option, not because the seller might incriminate himself, but because the buyer refuses to meet a specified condition. Nothing in the Fifth Amendment prevents Congress from restricting a seller’s market to specified classes of duly licensed buyers. And although the buyer’s refusal to comply with the Act’s requirements may stem from his fear of incrimination, the buyer’s personal privilege cannot be raised by the seller as an excuse for evading the clear statutory requirement. See George Campbell Painting Corp. v. Reid, 392 U. S. 286 (1968) ; Rogers v. United States, 340 U. S. 367 (1951).
U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 42 (1968).
The regulations, 26 CFR §§ 152.22, 152.23, which limit registration to persons whose dealings are legal under relevant state and local laws, are supported by the legislative history and represent what is by now long-established administrative practice. See Leary v. United States, 395 U. S. 6, 24 n. 38 (1969); H. R. Rep. No. 792, 75th Cong., 1st Sess., 2 (1937); S. Rep. No. 900, 75th Cong., 1st Sess., 3 (1937); Hearings on H. R. 6906 before a subcommittee of the Senate Committee on Finance, 75th Cong., 1st Sess., 6 (1937); Hearings on H. R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 8 (1937).
It is not specified in either the statute or the regulations when the blank for the seller's name is filled in or by whom. But the form itself is addressed “to” the seller, and the form and the regulations contain provisions that enable a form “made out to” one seller, to be endorsed by him to another if the first seller cannot fill the order. See 26 CFR § 151.189. This suggests that it is the buyer who fills in the seller’s name when he sends in the order. Whether or not that is the case in fact is irrelevant under the analysis in the text.
The difference between the availability of order forms under the Harrison Narcotics Act and the Marihuana Tax Act was explicitly recognized by Congress when it passed the latter Act. See Leary v. United States, 395 U. S. 6, 21-22 (1969). The regulation restricting registration to those “lawfully entitled” to deal in narcotic drugs, 26 CFR § 151.24, finds specific support in the language of the Act. See 26 U. S. C. §§4705 (g), 4721.
Even if order forms could realistically be secured, Minor’s Fifth Amendment arguments are no more persuasive than Buie’s. See n. 3, supra.
See Brief for Petitioner 22-23. Convinced that “[h]eroin has no medical value that is not better served by legitimate drugs,” S. Rep. No. 1997, 84th Cong., 2d Sess., 7 (1956), Congress in 1956 required the surrender of all theretofore lawfully possessed heroin, to be distributed only as approved by the Secretary for purposes of scientific research. 18 U. S. C. § 1402. The Narcotic Drugs Import and Export Act, 35 Stat. 614, as amended, 21 U. S. C. §§ 173, 174, effectively prohibits the importation of heroin or of opium for the purpose of manufacturing heroin, and makes it a felony to traffic in drugs knowing them to have been unlawfully imported. The Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U. S. C. § 501 et seq., prohibits the manufacturing of heroin except as authorized for limited scientific purposes. Given the resulting absence of original stamped packages of heroin, 26 U. S. C. § 4704 (a) effectively forbids buying, selling, dispensing, or distributing the drug. Since for ail practical purposes there is thus no legitimate dealing in heroin, any attempt to use an order form to purchase the drug would almost certainly subject the buyer to prosecution under 26 U. S. C. §4705 (g):
“It shall be unlawful for any person to obtain by means of said order forms narcotic drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.”
See U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22, 42 (1968).
Even if the hypothetical became a reality, it is doubtful that the incriminating information would get back to the Government via the buyer, wrho would himself be guilty of a violation of the narcotics laws. See n. 10, supra. See also 26 CFR § 151.181, which provides that order forms may be filled only by registered sellers— a class to which Minor does not belong. It is significant that of the nearly 400,000 registered dealers in 1967, only four were reported during that year for a violation of the narcotics laws. See U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22 (1968).
The dissent suggests that the courts should refuse to enforce § 4705 (a) as part of a revenue measure. But these very order form provisions were upheld long ago as valid revenue laws even though they operated to prevent large classes of people from obtaining order forms — and hence from acquiring drugs — at all. United States v. Doremus, 249 U. S. 86 (1919); Webb v. United States, 249 U. S. 96 (1919); see Nigro v. United States, 276 U. S. 332 (1928). A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal. See, e. g., Marchetti v. United States, 390 U. S. 39, 44 (1968); United States v. Kahriger, 345 U. S. 22, 28 (1953); License Tax Cases, 5 Wall. 462 (1867).
Even viewing § 4705 (a) as little more than a flat ban on certain sales, it is sustainable under the powers granted Congress in Art. I, §8. See Yee Hem v. United States, 268 U. S. 178, 183 (1925). Brolan v. United States, 236 U. S. 216, 222 (1915); cf. United States v. Sullivan, 332 U. S. 689 (1948); United States v. Darby, 312 U. S. 100 (1941).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_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 of America ex rel. William J. STEELE, Jr., Appellant, v. James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh, Pennsylvania.
No. 15674.
United States Court of Appeals Third Circuit.
Submitted Sept. 13, 1966.
Decided Nov. 3, 1966.
William J. Steele, Jr., pro se.
No appearance for appellee.
Before STALEY, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
The District Court denied the appellant’s petition for a writ of habeas corpus on its finding that there was no foundation in fact for his contentions that (1) counsel was not made available to him in denial of his requests when he pleaded guilty at a preliminary hearing to two indictments charging him with burglary and larceny; (2) he was subjected to “intimidation, threats and coercion” in an effort to extract his confession ; (3) he was not adequately represented by court-appointed counsel when his case came on for trial and he pleaded guilty; (4) he was held incommunicado from the time of his arrest until his trial and his requests to communicate with his family and friends were denied; and (5) he was later denied a transcript of the proceedings at which he was sentenced.
The record discloses that the appellant was given a full hearing on his application for a writ of habeas corpus, based on the grounds stated, in the Court of Common Pleas of Lycoming County, Pennsylvania, at which he was represented by court-appointed counsel; that the state court denied the writ and its action was affirmed by the Superior Court of Pennsylvania.
We find no error in the District Court’s holding that the relator’s contentions “are without foundation in fact”.
The Order of the District Court denying the writ will be affirmed.
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_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.
J. W. McTIERNAN, Plaintiff-Appellant, v. Marvin FRANKLIN, Acting Secretary of the Interior of the United States of America, et al., Defendants-Appellees.
No. 74-1266.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 11, 1974.
Decided Jan. 7, 1975.
Jay R. Bond, Oklahoma City, Okl., for plaintiff-appellant.
George Verity, Oklahoma City, Okl. (David T. Burleson, El Paso, Tex., on the brief), for defendants-appellees El Paso Nat. Gas Co., Inexeo Oil Co., Getty Oil Co., Freeport Oil Co. and R. G. Anderson.
Peter B. Bradford, Oklahoma City, Okl. (Ray G. Moss, Oklahoma City, Okl., on the brief), for defendant-appellee Northern Nat. Gas Co.
Dirk D. Snel, Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., William R. Burkett, U. S. Atty., James M. Peters, Asst. U. S. Atty., Oklahoma City, Okl., Edmund B. Clark, Dept, of Justice, on the brief), for defendant-appellee Secretary of the Interi- or.
Richard L. Dugger, Dist. Atty., Sayre, Okl., for defendant-appellee Bd. of County Commissioners of Roger Mills County, Oklahoma.
Wallace E. Robertson, Oklahoma City, Okl., for defendant-appellee, Statex Petroleum, Inc.
Before MURRAH, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
This action results from a Board of Land Appeals’ (Board) rejection of certain non-competitive oil and gas lease offers because of uncertain title. The applicant, J. W. McTiernan, filed suit in the United ■ States District Court for the Western District of Oklahoma seeking, by amended pleadings, reversal of the Board’s decision and an order directing it to reconsider the lease offers on the basis that the United States owned the minerals in question. The district court dismissed the action, and we affirm.
At issue are five tracts of land located in Roger Mills County, Oklahoma. In 1939 or 1940 these tracts were sold for delinquent taxes and purchased at a tax resale by the County’s Board of Commissioners. Some time thereafter the Commissioners sold these tracts to the United States, reserving to the County all mineral rights for a period of fifty years.
In December, 1971, J. W. McTiernan filed five non-competitive oil and gas lease offers covering these tracts with the Bureau of Land Management. The offers were rejected for the reason that the minerals were not yet owned by the United States. McTiernan appealed to the Board of Land Appeals. He contended that the County’s mineral reservations were void, thereby vesting title thereto in the United States as a matter of law, because the County acquired and sold the tracts in the state’s taxing process under which a grantee obtains a fee simple absolute.
The Board acknowledged that McTier-nan had some support for his position but, because deeds to the tracts and government title opinions stated that the mineral rights were reserved to the County, found that title to the minerals was uncertain. On June 27, 1973, it affirmed the Bureau of Land Management’s decision on the grounds “that oil and gas lease offers may properly be rejected in the exercise of administrative discretion when there is a ‘mere uncertainty regarding title to oil and gas deposits.’ ”
On July 16, 1973, McTiernan instituted suit against the Acting Secretary, alleging that the Board’s decision was an abuse of discretion because the evidence before it established that title to the mineral deposits was vested in the United States. The complaint requested that the Board’s decision be reversed and that a writ of mandamus be issued directing the Secretary to accept McTiernan’s lease offers.
McTiernan’s subsequent motion to make the Secretary an additional party defendant was granted and an amended complaint was filed. A second amended complaint was filed on December 5, 1973, listing various oil and gas lessees of Roger Mills County, and the Board of County Commissioners, as defendants. This complaint requested that title to the lands in question be quieted in the United States.
All of the defendants filed motions to dismiss. At the hearing on these motions McTiernan orally amended his pleadings, deleting therefrom his request for mandamus and instead requesting the court to reverse the Board’s decision and direct it to reconsider the lease offers on the basis that the United States owned the minerals.
On April 4, 1974, the court dismissed the action on the grounds (1) the Secretary, acting through the Board, properly exercised his discretion in refusing to grant the leases; (2) that McTiernan lacked standing to sue; and (3) that the action was barred as to all defendants other than the Secretary by the 90-day statute of limitations for filing oil and gas contests.
On appeal McTiernan contends (1) the Board’s decision was improper because it was based on the erroneous finding that title to the mineral rights was uncertain, and (2) title to the mineral rights is vested in the United States as a matter of law because the County’s reservation thereof is void under Oklahoma law.
We do not believe the Secretary’s decision to reject McTiernan’s lease offers was improper. The Mineral Leasing Act, 30 U.S.C. § 181 et seq., gives the Secretary discretionary power to accept or reject oil and gas lease offers. Although a tract, if leased, must go to the first qualified applicant, the Secretary may refuse to issue any lease at all on a given tract. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Such is the situation here.
McTiernan contends the Secretary abused this discretion because his decision refusing the offers was not premised on the fact that title to the minerals was vested in the United States under Oklahoma law. Although he proffered some support for this position, the deeds and title opinions which stated that the mineral rights were reserved to the County made such a conclusion questionable. Because the reservations may be valid, and the minerals therefore not subject to the Secretary’s disposition, the decision refusing McTiernan’s offers was proper.
Under these circumstances the only alternative available to the Secretary, and the course McTiernan apparently believes should have been taken, would have been to administratively determine title to the mineral rights. Such a decision, however, can only be made in a quiet title action. Since McTiernan’s oil and gas lease offer does not give him a vested property right, Hannifin v. Morton, 444 F.2d 200, 203 (10th Cir. 1971), he has no standing to question title to the mineral rights. Clark v. Holmes, 31 Okl. 164, 120 P. 642 (1912). We therefore find it unnecessary to consider the effect of Oklahoma law on the mineral rights in question.
Affirmed.
. 30 U.S.C. § 226-2 provides in part: “No action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced within ninety days after the final decision of the Secretary .
. See, e. g., 30 U.S.C. § 226(a), which provides: “All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary.” (Emphasis added).
. 43 CFR § 2091.1 provides in part: “ [Applications . . . must be rejected . when approval ... is prevented by:
(a) Withdrawal or reservation of the lands;
* * * * * *
(e) The fact that for any reason the land has not been made subject ... to the operation of the public land laws.”
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_casesource
|
158
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UTAH, Petitioner
v.
Edward Joseph STRIEFF, Jr.
No. 14-1373.
Supreme Court of the United States
Argued Feb. 22, 2016.
Decided June 20, 2016.
Tyler R. Green, Solicitor General, for petitioner. John F. Bash for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. Joan C. Watt, Salt Lake City, UT, for respondent.
Sean D. Reyes, Utah Attorney General, Tyler R. Green, Utah Solicitor General, Laura B. Dupaix, Deputy Solicitor General, Thomas B. Brunker, Criminal Appeals Director, Jeffrey S. Gray, Search & Seizure Section Director, Salt Lake City, UT, for petitioner.
Stuart Banner, UCLA School of Law, Supreme Court Clinic, Los Angeles, CA, Patrick L. Anderson, Joan C. Watt, Salt Lake Legal Defender, Association, Salt Lake City, UT, for respondent.
Justice THOMAS delivered the opinion of the Court.
To enforce the Fourth Amendment's prohibition against "unreasonable searches and seizures," this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.
I
This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police's drug-tip line to report "narcotics activity" at a particular residence. App. 15. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs.
One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store's parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence.
As part of the stop, Officer Fackrell requested Strieff's identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff's information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.
The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.
The trial court agreed with the State and admitted the evidence. The court found that the short time between the illegal stop and the search weighed in favor of suppressing the evidence, but that two countervailing considerations made it admissible. First, the court considered the presence of a valid arrest warrant to be an " 'extraordinary intervening circumstance.' " App. to Pet. for Cert. 102 (quoting United States v. Simpson, 439 F.3d 490, 496 (C.A.8 2006) ). Second, the court stressed the absence of flagrant misconduct by Officer Fackrell, who was conducting a legitimate investigation of a suspected drug house.
Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court's denial of the suppression motion. The Utah Court of Appeals affirmed. 2012 UT App ¶ 245, 286 P.3d 317.
The Utah Supreme Court reversed. 2015 UT ¶ 2, 357 P.3d 532. It held that the evidence was inadmissible because only "a voluntary act of a defendant's free will (as in a confession or consent to search)" sufficiently breaks the connection between an illegal search and the discovery of evidence. Id., at 536. Because Officer Fackrell's discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed. Ibid.
We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. 576 U.S. ----, 136 S.Ct. 27, 192 L.Ed.2d 997 (2015). Compare, e.g., United States v. Green, 111 F.3d 515, 522-523 (C.A.7 1997) (holding that discovery of the warrant is a dispositive intervening circumstance where police misconduct was not flagrant), with, e.g., State v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). We now reverse.
II
A
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999). In the 20th century, however, the exclusionary rule-the rule that often requires trial courts to exclude unlawfully seized evidence in a criminal trial-became the principal judicial remedy to deter Fourth Amendment violations. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Under the Court's precedents, the exclusionary rule encompasses both the "primary evidence obtained as a direct result of an illegal search or seizure" and, relevant here, "evidence later discovered and found to be derivative of an illegality," the so-called " 'fruit of the poisonous tree.' " Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). But the significant costs of this rule have led us to deem it "applicable only... where its deterrence benefits outweigh its substantial social costs." Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation marks omitted). "Suppression of evidence... has always been our last resort, not our first impulse." Ibid.
We have accordingly recognized several exceptions to the rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. See Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. See Nix v. Williams, 467 U.S. 431, 443-444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." Hudson, supra, at 593, 126 S.Ct. 2159.
B
Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The Utah Supreme Court declined to apply the attenuation doctrine because it read our precedents as applying the doctrine only "to circumstances involving an independent act of a defendant's 'free will' in confessing to a crime or consenting to a search." 357 P.3d, at 544. In this Court, Strieff has not defended this argument, and we disagree with it, as well. The attenuation doctrine evaluates the causal link between the government's unlawful act and the discovery of evidence, which often has nothing to do with a defendant's actions. And the logic of our prior attenuation cases is not limited to independent acts by the defendant.
It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff's person. The three factors articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), guide our analysis. First, we look to the "temporal proximity" between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Id., at 603, 95 S.Ct. 2254. Second, we consider "the presence of intervening circumstances." Id., at 603-604, 95 S.Ct. 2254. Third, and "particularly" significant, we examine "the purpose and flagrancy of the official misconduct." Id., at 604, 95 S.Ct. 2254. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant's existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.
1
The first factor, temporal proximity between the initially unlawful stop and the search, favors suppressing the evidence. Our precedents have declined to find that this factor favors attenuation unless "substantial time" elapses between an unlawful act and when the evidence is obtained. Kaupp v. Texas, 538 U.S. 626, 633, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (per curiam ). Here, however, Officer Fackrell discovered drug contraband on Strieff's person only minutes after the illegal stop. See App. 18-19. As the Court explained in Brown, such a short time interval counsels in favor of suppression; there, we found that the confession should be suppressed, relying in part on the "less than two hours" that separated the unconstitutional arrest and the confession. 422 U.S., at 604, 95 S.Ct. 2254.
In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. In Segura, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599, the Court addressed similar facts to those here and found sufficient intervening circumstances to allow the admission of evidence. There, agents had probable cause to believe that apartment occupants were dealing cocaine. Id., at 799-800, 104 S.Ct. 3380. They sought a warrant. In the meantime, they entered the apartment, arrested an occupant, and discovered evidence of drug activity during a limited search for security reasons. Id., at 800-801, 104 S.Ct. 3380. The next evening, the Magistrate Judge issued the search warrant. Ibid. This Court deemed the evidence admissible notwithstanding the illegal search because the information supporting the warrant was "wholly unconnected with the [arguably illegal] entry and was known to the agents well before the initial entry." Id., at 814, 104 S.Ct. 3380.
Segura, of course, applied the independent source doctrine because the unlawful entry "did not contribute in any way to discovery of the evidence seized under the warrant." Id., at 815, 104 S.Ct. 3380. But the Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is "sufficiently attenuated to dissipate the taint." Ibid. That principle applies here.
In this case, the warrant was valid, it predated Officer Fackrell's investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. "A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions." United States v. Leon, 468 U.S. 897, 920, n. 21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (internal quotation marks omitted). Officer Fackrell's arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell's safety. See Arizona v. Gant, 556 U.S. 332, 339, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (explaining the permissible scope of searches incident to arrest).
Finally, the third factor, "the purpose and flagrancy of the official misconduct," Brown, supra, at 604, 95 S.Ct. 2254, also strongly favors the State. The exclusionary rule exists to deter police misconduct. Davis v. United States, 564 U.S. 229, 236-237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence-that is, when it is purposeful or flagrant.
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell's stated purpose was to "find out what was going on [in] the house." App. 17. Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions"). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff's Fourth Amendment rights.
While Officer Fackrell's decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer's decision to run the warrant check was a "negligibly burdensome precautio[n]" for officer safety. Rodriguez v. United States, 575 U.S. ----, ----, 135 S.Ct. 1609, 1616, 191 L.Ed.2d 492 (2015). And Officer Fackrell's actual search of Strieff was a lawful search incident to arrest. See Gant, supra, at 339, 129 S.Ct. 1710.
Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations.
Applying these factors, we hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct.
2
We find Strieff's counterarguments unpersuasive.
First, he argues that the attenuation doctrine should not apply because the officer's stop was purposeful and flagrant. He asserts that Officer Fackrell stopped him solely to fish for evidence of suspected wrongdoing. But Officer Fackrell sought information from Strieff to find out what was happening inside a house whose occupants were legitimately suspected of dealing drugs. This was not a suspicionless fishing expedition "in the hope that something would turn up." Taylor v. Alabama, 457 U.S. 687, 691, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).
Strieff argues, moreover, that Officer Fackrell's conduct was flagrant because he detained Strieff without the necessary level of cause (here, reasonable suspicion). But that conflates the standard for an illegal stop with the standard for flagrancy. For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure. See, e.g., Kaupp, 538 U.S., at 628, 633, 123 S.Ct. 1843 (finding flagrant violation where a warrantless arrest was made in the arrestee's home after police were denied a warrant and at least some officers knew they lacked probable cause). Neither the officer's alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression.
Second, Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. See 42 U.S.C. § 1983 ; Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; see also Segura, 468 U.S., at 812, 104 S.Ct. 3380. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.
* * *
We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest. The judgment of the Utah Supreme Court, accordingly, is reversed.
It is so ordered.
Justice SOTOMAYOR, with whom Justice GINSBURG joins as to Parts I, II, and III, dissenting.
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights. Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants-even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
I
Minutes after Edward Strieff walked out of a South Salt Lake City home, an officer stopped him, questioned him, and took his identification to run it through a police database. The officer did not suspect that Strieff had done anything wrong. Strieff just happened to be the first person to leave a house that the officer thought might contain "drug activity." App. 16-19.
As the State of Utah concedes, this stop was illegal. App. 24. The Fourth Amendment protects people from "unreasonable searches and seizures." An officer breaches that protection when he detains a pedestrian to check his license without any evidence that the person is engaged in a crime. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer deepens the breach when he prolongs the detention just to fish further for evidence of wrongdoing. Rodriguez v. United States, 575 U.S. ----, ---- - ----, 135 S.Ct. 1609, 1615-1616, 191 L.Ed.2d 492 (2015). In his search for lawbreaking, the officer in this case himself broke the law.
The officer learned that Strieff had a "small traffic warrant." App. 19. Pursuant to that warrant, he arrested Strieff and, conducting a search incident to the arrest, discovered methamphetamine in Strieff's pockets.
Utah charged Strieff with illegal drug possession. Before trial, Strieff argued that admitting the drugs into evidence would condone the officer's misbehavior. The methamphetamine, he reasoned, was the product of the officer's illegal stop. Admitting it would tell officers that unlawfully discovering even a "small traffic warrant" would give them license to search for evidence of unrelated offenses. The Utah Supreme Court unanimously agreed with Strieff. A majority of this Court now reverses.
II
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don't make a right. See Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). When "lawless police conduct" uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence. Terry, 392 U.S., at 12, 88 S.Ct. 1868 ; Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). For example, if an officer breaks into a home and finds a forged check lying around, that check may not be used to prosecute the homeowner for bank fraud. We would describe the check as " 'fruit of the poisonous tree.' " Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence "come at by exploitation of that illegality." Ibid.
This "exclusionary rule" removes an incentive for officers to search us without proper justification. Terry, 392 U.S., at 12, 88 S.Ct. 1868. It also keeps courts from being "made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Id., at 13, 88 S.Ct. 1868. When courts admit only lawfully obtained evidence, they encourage "those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system." Stone v. Powell, 428 U.S. 465, 492, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). But when courts admit illegally obtained evidence as well, they reward "manifest neglect if not an open defiance of the prohibitions of the Constitution." Weeks, 232 U.S., at 394, 34 S.Ct. 341.
Applying the exclusionary rule, the Utah Supreme Court correctly decided that Strieff's drugs must be excluded because the officer exploited his illegal stop to discover them. The officer found the drugs only after learning of Strieff's traffic violation; and he learned of Strieff's traffic violation only because he unlawfully stopped Strieff to check his driver's license.
The court also correctly rejected the State's argument that the officer's discovery
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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").
CARTER v. JOHN HENNES TRUCKING CO.
No. 10874.
United States Court of Appeals, Seventh Circuit.
Jan. 4, 1954.
Rehearing Denied March 1,1954.
Joseph H. Hinshaw, Oswell G. Tread-way, Chicago, 111., for appellant.
David M. Burrell, Ramer B; Holtan, Freeport, 111., Robert P. Sullivan, Chicago, 111., Burrell & Holtan, Freeport, 111., for appellee.
Before MAJOR, Chief Judges, FINNEGAN, Circuit Judge, and PLATT, District Judge.
PLATT, District Judge.
Plaintiff, Jay Wallace Carter, brought an action to recover damages for personal injuries sustained as a result of an occurrence on February 4, 1952, alleged to have been proximately caused by negligence of the defendant in leaving a block of wood in a place of danger on a punch press. The jury returned a verdict for the plaintiff on which the court entered judgment. The defendant presented a motion for judgment notwithstanding the verdict. The district court denied this motion and from this ruling the defendant, John Hennes Trucking Company, appeals.
The questions presented are: (1) was there any evidence in the record upon which the jury could have found that the plaintiff was in the exercise of ordinary care; (2) was the defendant negligent; and (3) was such negligence, if any, the proximate cause of the plaintiff’s injuries. In determining these questions the evidence must be viewed! in the light most favorable to the plaintiff to sustain his recovery. Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 69' S.Ct. 91, 93 L.Ed. 41; Nattens v. Grolier Society, 7 Cir., 195 F.2d 449, 450. To this end the plaintiff is entitled to the full effect of every inference from the evidence presented which reasonably minded men might deduce. A mere scintilla of evidence is not sufficient to sustain the verdict. It must be of substantial and relative consequence and carry the quality of proof to induce conviction and make an impression on reason. Commercial Casualty Ins. Co. v. Stinson, 6 Cir., 111 F.2d 63, certiorari denied, 311 U.S. 667, 61 S.Ct. 25, 85 L.Ed. 428.
The facts taken in their best light for the plaintiff disclose that the plaintiff was employed by Warner Electric Brake & Clutch Company as a punch press operator. On Monday, February 4, 1952, he reported for work about 6:50 a. m. in excellent health. He had worked at the machine the previous Friday. He went to press No. 2 to which he was assigned and greased it. The grease zerts were two or three feet above the floor. He saw no 4 x 4 board on the face of the machine, and there was no 4 x 4 at his feet. This was corroborated by two other witnesses. He faced the front of the press, reached up, and pushed the two starting switch buttons which were located a little over his head. An average sized man would have to reach over his head to push these buttons. The press started and that was all that the plaintiff remembered. In a row on the west side of the shop were three punch presses for the forming and shaping of steel. Press No. 2 was the middle press. They were large presses 15 or 16 feet high and set about 10 to 20 feet apart. Two large bull wheels revolving toward the front operated these machines. The bottom of the bull wheels was about 9 feet and the top was about 15 feet above the floor. The defendant trucking company had been called in to dismantle and repair press No. 4 which was to the right and north of press No. 2. The defendant started its repair work on the preceding Saturday morning. It was necessary in repairing press No. 4 to lift off the crown which weighed SYz tons. A steel cable % inch in diameter was attached by the defendant to a beam of the building north of press No. 4, and ran directly over press No. 4 to another roof .beam south of press No. 4, and down at an angle touching press No. 2. Press No. 2 could not be operated while the cable was in place. There was evidence that this cable ran through or over the bull wheel of press No. 2. One witness testified that this cable went over the front of the press fairly high. A chain hoist was attached to the cable between the two parallel roof beams at a point directly over press No. 4 in order to lift the crown from this press. As the steel cable was tightened, a 4 x 4 about two or three feet long was placed as a softener between the cable and press No. 2. This 4x4 was picked up at random in the plant by the defendant’s employee and placed by him in its position. The defendant’s employees finished repairing press No. 4 late Saturday night, or early Sunday morning, and removed the cable and the hoist. The part of the plant where the defendant had been working was deserted at the time. The plant was not in operation on Sunday. There was no proof in the record that anyone was near the machine until the following morning when the plaintiff was injured. Immediately after the plaintiff started press No. 2 a fellow employee working in this part of the plant heard something which sounded like a block of wood hit the floor. Instantly with this noise the witness turned around and saw the plaintiff with his hands on his head looking up toward the top of the machine. He went to the plaintiff and saw a bruise on his head. Immediately after the occurrence a 4 x 4, 32 inches long, weighing 16 pounds was found back of where the plaintiff was standing and in close' proximity to him. It had a cable mark angling across one face of it. The plaintiff attempted to work but was taken to the nurse and later was taken to the hospital where he was attended by a physician. He suffered injuries to his neck, shoulder, and arm. There were no eye witnesses to the accident.
The defendant insists that there is no evidence in the record that the plaintiff was in the exercise of due care, or of negligence on the part of the defendant which was the proximate cause of plaintiff’s injuries. These ultimate facts can neither be supported by mere speculation or conjecture, nor can they be inferred by the mere fact that an accident occurred which resulted in an injury to a person. Rotche v. Buick Motor Co., 358 Ill. 507, 516, 193 N.E. .529; Huff v. Illinois Central R. Co., 362 Ill. 95, 101, 199 N.E. 116; Coulson v. Discerns, 329 Ill.App. 28, 31, 66 N.E.2d 728. However, due care, negligence, and proximate cause may be established by circumstantial evidence. In Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96, at pages 102 and 103, 115 N.E. 149, at page 151, the court discussing the inferences that can be logically drawn from the circumstances in the evidence expressed itself as follows:
“It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. A theory cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them. (Citing cases.) But the proof of such facts may be made by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts.” (Citing cases.)
The court further stated 277 Ill. at page 110, 115 N.E. at page 154:
"Where there is no eyewitness the fact at issue may be proved by circumstantial evidence. Such evidence consists of proof of certain facts and circumstances from which the court may infer other connected facts which usually and reasonably follow according to the common experience of mankind.”
The plaintiff’s theory of recovery as stated by the defendant is that the defendant, in the course of dismantling and repairing press No. 4, carelessly and negligently placed and left a certain wooden block in an unspecified place on press No. 2 in such a manner that when the plaintiff, in the exercise ■of ordinary care, began operating the press, the block of wood fell upon him causing his injuries. Bearing in mind the foregoing principles of law we must examine the necessary elements of the plaintiff’s case.
The jury had a firm basis to conclude -that the plaintiff was in the exercise of due care at and immediately before the •occurrence. He acted as an ordinarily prudent punch press operator would have in starting his machine. He stood in front of his press, reached up, and pushed the starting buttons. The machine started. Although no one saw him at the instant of the injury, he was seen immediately afterwards holding his head in his hands and looking up. It is unreasonable to assume or conjecture that the plaintiff through his own fault fell against the press, incurring his injuries. Under these circumstances the probability was that the plaintiff exercised ordinary care, and the evidence was satisfactory for the jury so to conclude.
We are next confronted with the question as to whether there is any evidence that the defendant through its employees was negligent in causing and allowing a wooden block which was used in its repair work to remain in a place of danger on press No. 2. It is undisputed that the defendant used a 4 x 4, 2 to 3 feet long, between the cable and press No. 2. The cable was against press No. 2, and although the defendant’s evidence was that the block of wood was used over the buttons of the press, there is evidence from which the jury could reasonably believe that the cable ran through or over one of the bull wheels. Moreover, there is direct evidence that the cable did not run over the operating buttons. The bottom of the bull wheel was 9 feet and the top 15 feet above the floor. There can be no doubt that the cable, pressed the block of wood with great force against press No. 2 when the steel cable tightened, with a chain hoist attached to it, lifting the crown of press No. 4 which weighed 3% tons. The cable must have made its impression on one face of the block of wood, and it is reasonable to conclude that the block remained in or on the press. There is no evidence that any of the defendant’s servants actually removed the block of wood when the cable was released and taken down. One witness for the defendant testified that he saw a 4 x 4 drop to the floor, but the jury were neither required to believe this witness, nor to believe that the piece of wood was over the control buttons, with the bottom of the block 3 to 4 feet above the floor, as he testified. The circumstances were sufficient to draw the reasonable inference that the block of wood was left in a place of danger and probably against or in the bull wheel. There is no reasonable theory inconsistent with this which is of equal certainty when the evidence is taken in its best light for the plaintiff. We have direct evidence that the block of wood was placed between the steel cable and the press by the defendant’s employee, and that the cable passed over or through the bull wheel. The block was used as a softener between the press and the cable. The press could not be operated because of the location of the cable. Furthermore, there is no evidence that anyone was on or about press No. 2 between the time the defendants’ servants left the Warner plant and the time the plaintiff started the press. There is affirmative evidence that this part of the plant was deserted. It was within the province of the jury to conclude that the defendant negligently placed and permitted the block of wood to remain in a position of danger.
Finally the question is presented: was there any evidence that the negligence of the defendant was the proximate cause of the plaintiff’s injuries. There was no 4 x 4 on the floor in the vicinity where the plaintiff stood when he started the machine. Immediately on the starting of the press a noise was heard that sounded like a block of wood hitting the floor. This block of wood weighing 16 pounds had a steel cable mark diagonally across one face of it. It was found back of and near where the plaintiff was standing holding his head looking up toward the top of the machine. This block conformed in size with the block of wood admittedly used by the defendant as a softener. It is hardly necessary to mention that the law of gravity would have caused the block of wood to fall down when the press started, and the bull wheels revolved forward, dislodging it. The fall of a block of wood weighing 16 pounds from any height above a man’s head could cause injury. The plaintiff had a bruise on his head which must have resulted from being struck with the block of wood, since he was in good health before the accident. There is no evidence in the record from which any reasonable inference-could be drawn that the block of wood was thrown against the plaintiff by a third person, or that he fell against the press. The proof of the facts and circumstances would reasonably convince the jury according to the common experience of mankind that the fall of the block of wood, negligently placed and left in a dangerous position upon the-press, proximately caused the plaintiff’s-injuries.
In conclusion we find that the jury’s verdict for the plaintiff was based upon direct evidence and the most reasonable inferences from all of the facts and circumstances in evidence. None of the-cases cited by the defendant justify analysis, since they are not factually in point. The district court properly denied the defendant’s motion for judgment notwithstanding the verdict, and therefore the judgment is
Affirmed.
. United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 535-536, 71 N.E. 1081; Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34, 36, 65 N.E. 144.
. Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272, 280; Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, 137-139.
. Lindroth v. Walgreen Co., 407 Ill. 121, 131-135, 94 N.E.2d 847; Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, 137-139.
. Also see Hunter Packing Co. v. Industrial Comm., 1 Ill.2d 99, 105-106, 115 N.E.2d 236.
. The jury are not bound to believe anything to be a fact simply because a witness has stated it so to be, provided the jury believe that the witness was mistaken or testified falsely. People v. Matter, 371 Ill. 333, 339, 20 N.E.2d 600; Goss Printing Press Co. v. Lempke, 191 Ill. 199, 60 N.E. 968.
. We are aware that the court withdrew the allegation of the complaint that the defendant negligently caused and allowed a block of wood to remain on the top of the press.
. “[W]hen the facts are established from which presumption may be legitimately drawn, it is the province of the jury to deduce the presumption or inference of fact.” Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, at page 137; Plodzien v. Segool, 314 Ill.App. 40, 42-43, 40 N.E.2d 783; Lindroth v. Walgreen Co., 338 Ill.App. 364, 377, 87 N.E.2d 307, affirmed 407 Ill. 121, 94 N.E.2d 847.
. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, the Supreme Court stated: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle-the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function, is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” Also see Lindroth v. Walgreen Co., 407 Ill. 121, 132-133, 94 N.E.2d 847; Plodzien v. Segool, 314 Ill.App. 40, 4B-43, 40 N.E.2d 783.
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_respond1_3_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
Gregg A. TALLMAN, Appellant, v. Ronald W. REAGAN, Ed Meese, Otis Bowen and Richard Turner, Appellees.
No. 87-1586.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 17, 1986.
Decided May 10, 1988.
Gregg A. Tallman, pro se.
John Beamer, Asst. U.S. Atty., Des Moines, Iowa, for appellees.
Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.
PER CURIAM.
Gregg A. Tallman appeals pro se from a final order entered in the District Court for the Southern District of Iowa dismissing his complaint. For the reasons discussed below, we affirm the judgment of the district court.
Tallman’s action arises out of his application in 1982 for Social Security disability benefits after he was injured in an industrial accident. On August 20, 1986, Tallman filed the instant complaint claiming that Ronald Reagan, Otis Bowen, Ed Meese, Richard Turner, and the United States government deprived Tallman of his constitutional rights and his rights under the Social Security Act. Tallman argued, that at that point, several years had passed since his disability claim was initially filed and he had not yet been awarded benefits, due to appellees’ negligence in handling his application. Tallman alleged that the delay in receiving benefits caused his injury to worsen, and he sought actual and punitive damages in the amount of ten million dollars.
On November 14, 1986, the district court dismissed Tallman’s complaint. Tallman subsequently filed a “motion to amend judgment” (November 18, 1986), a “motion for continuance” (December 8, 1986), and a “motion for judgment” (April 2, 1987). On April 7, 1987, the same district court entered a final judgment in Tallman’s disability case, reversing the decision of the Secretary of Health and Human Services to deny Tallman disability benefits and ordering the Secretary to pay Tallman benefits past due. On May 7, 1987, the court denied Tallman’s post-judgment motions in the instant action, and this appeal followed.
A complaint should not be dismissed for failure to state a claim “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Kaylor v. Fields, 661 F.2d 1177, 1181 (8th Cir.1981) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). As we read Tallman’s pleadings, we understand his complaint as an attempt to state a Bivens-type constitutional tort action against the individual appellees, and an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674, against the government.
Tallman’s complaint, however, is deficient in several respects. Only federal officials who actually participate in alleged violations are subject to a Bivens-type suit. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). Tallman did not allege that appellees Reagan, Meese or Bowen actually participated in, nor how appellee Turner may have contributed to, the alleged violations. Tallman’s complaint alleged at the most gross negligence on the part of appellees, which does not implicate the due process clause. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). The Social Security Act, 42 U.S.C. § 405(h), precludes a FTCA action “to recover on any claim arising under this subchapter.” Cf. Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590, 592 (9th Cir.1985) (FTCA action for damages caused by negligently tardy processing of cost reports barred), cert. denied, 474 U.S. 1061, 106 S.Ct. 808, 88 L.Ed.2d 783 (1986). Finally, we note that in Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984), the Supreme Court held that Congress, in enacting the Social Security Act, had repeatedly rejected the “imposition of mandatory deadlines on agency adjudication of disputed disability claims.” Id. at 119, 104 S.Ct. at 2257.
Although we are sympathetic to Tallman in that it took several years before he was finally awarded benefits, his complaint in the instant action failed to state a claim upon which relief could be granted.
Accordingly, the judgment of the district court is affirmed.
. The Honorable William C. Stuart, Senior United States District Judge for the Southern District of Iowa.
. The record indicates that Assistant United States Attorney Richard Turner represented the Secretary of Health and Human Services in Tallman's action for judicial review of the Secretary’s decision to deny benefits.
. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized a cause of action for damages against federal officials for violation of one’s fourth amendment rights. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), this right was extended to actions arising under the due process clause of the fifth amendment.
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_circuit
|
D
|
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.
In re Steven Thomas HOLDER, Debtor. WACHOVIA BANK AND TRUST COMPANY, N.A., Plaintiff-Appellant, v. Kathryn L. BRINGLE, Standing Trustee, Defendant-Appellee, and Steven Thomas Holder, Rayford K. Adams, Standing Trustee, Defendants.
No. 88-2993.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 2, 1989.
Decided Dec. 15, 1989.
Thomas William Waldrep, Jr. (Womble Carlyle Sandridge & Rice, Winston Salem, N.C., on brief) for plaintiff-appellant.
Rayford Kennedy Adams, III (Tuggle, Duggins Meschan & Elrod, P.A., Greensboro, N.C., on brief) for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and PHILLIPS, Circuit Judge, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.
PER CURIAM:
The question presented is whether § 547(c)(1) of the federal bankruptcy code, 11 U.S.C. § 547(c)(1), is applicable to protect purchase money security interests perfected more than 10 days after the debtor receives possession of the collateral. We find § 547(c)(1) inapplicable and, accordingly, affirm the judgment of the district court.
I.
The relevant facts are not in dispute. On July 24, 1987, Stephen Holder (“debtor”) purchased a Dodge truck. On that day, he signed a security agreement with appellant Wachovia Bank & Trust Company in exchange for a loan to buy the truck. The necessary registration and other paperwork were delivered to the North Carolina Division of Motor Vehicles 19 days later, on August 12, 1987. According to N.C.Gen. Stat. § 20-58.2, August 12, 1987, is the date on which appellant perfected its security interest.
On November 2, 1987, 82 days after the debtor received possession of the vehicle, the debtor filed for relief under Chapter 13 of the federal bankruptcy code. Respondent, the Chapter 13 trustee, filed a motion in bankruptcy court to avoid appellant’s lien. The bankruptcy court granted this motion, and the district court affirmed. 94 B.R. 394. See Joint Appendix at 23, 53.
II.
Both parties agree that the secured transaction at issue here constitutes a preference under 11 U.S.C. § 547(b) and, hence, is avoidable by the trustee unless it is excepted from § 547(b) by the provisions of 11 U.S.C. § 547(c). See Brief of Appellee at 3. Section 547(c) states, in pertinent part:
(c) The trustee may not avoid under this section a transfer—
(1) to the extent that such transfer was—
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given the debt- or; and
(B) in fact a substantially contemporaneous exchange;
(3) that creates a security interest in property acquired by the debtor—
(A) to the extent such security interest secures new value that was—
(i) given at or after the signing of a security agreement that contains a description of such property as collateral;
(ii) given by or on behalf of the security party under such agreement;
(iii) given to enable the debtor to acquire such property; and
(iv) in fact used by the debtor to acquire such property; and
(B) that is perfected on or before 10 days after the debtor receives possession of such property....
If appellant’s security interest had been perfected within 10 days after the debtor took possession of the truck, 11 U.S.C. § 547(c)(3) would have prevented the trustee from avoiding the lien. Because perfection took 19 days, however, appellant seeks exception from avoidance pursuant to the “contemporaneous exchange” exception of § 547(c)(1). It argues that the plain meaning and legislative history of § 547(c)(1) allow the “contemporaneous exchange” exception to be applied to purchase money security transactions.
Four courts of appeals have addressed this question, and all have held that § 547(c)(1) does not apply to purchase money security transactions perfected more than 10 days after the debtor receives possession of the collateral. See In re: Tressler, 771 F.2d 791 (3d Cir.1985); In re: Davis, 734 F.2d 604 (11th Cir.1984); In re: Arnett, 731 F.2d 358 (6th Cir.1984); In re: Vance, 721 F.2d 259 (9th Cir.1983). There is a strong interest in uniform interpretations of federal bankruptcy laws. See U.S. Const, art. I, § 8, cl. 4 (granting Congress the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States”); LeBoeuf v. Austrian, 240 F.2d 546, 551 (4th Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957) (“The Bankruptcy Act is intended to be uniform throughout the States except to the extent that its own provisions are to the contrary, as, for instance, where local State property rights are involved.”). For the reasons stated in the opinions of the Third, Sixth, Eleventh, and Ninth Circuits, and to maintain a uniform federal interpretation of § 547(c), we hold that § 547(c)(1) does not apply to purchase money security transactions perfected more than 10 days after the debtor receives possession of the collateral. The judgment of the district court is therefore AFFIRMED.
. Section 20-58.2 of the General Statutes of North Carolina states:
If the application for notation of security interest with the required fee is delivered to the Division within 10 days after the date of the security agreement, the security interest is perfected as of that date. Otherwise, the security interest is perfected as of the date of delivery of the application to the Division.
. The four courts held that § 547(c)(1) does not apply to purchase money security transactions perfected more than 10 days "after such security interest attaches.” All four cases were decided before Congress amended § 547(c)(3)(B) in 1986, changing "that is perfected before 10 days after such security interest attaches" to "that is perfected on or before 10 days after the debtor receives possession of such property.” This amendment has no relevance to the validity of the reasoning or holdings of any of these cases.
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_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.
David LUXENBERG, Appellant, v. MAYFAIR EXTENSION, INC., et al., Appellees.
No. 20204.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 16, 1966.
Decided July 26, 1967.
Mr. Warren E. Magee, Washington, D. C., with whom Messrs. Thomas G. Laughlin and Hans A. Nathan, Washington, D. C., were on the brief, for appellant.
Mr. Joel C. Wise, Washington, D. C., with whom Mr. Roger Peed, Washington, D. C., was on the brief, for appellees.
Before Bazelon, Chief Judge, and Danaher, Circuit Judge, and Coffin, Circuit Judge of the United States Court of Appeals for the First Circuit.
Sitting by designation pursuant to 28 U.S.C. § 291(a).
DANAHER, Circuit Judge:
The Board of Commissioners of the District of Columbia filed a complaint to enforce an order of the Department of Licenses and Inspections that appellee, Mayfair Extension, Inc., raze certain buildings wherein the appellant was lessee. The court entered an order accordingly on October 27, 1965. Having been joined in that action as a party defendant, Luxenberg had filed his third party complaint alleging an anticipatory breach by and claiming damages from Mayfair. This appeal challenges as erroneous the judgment which was entered in favor of the appellees.
I
The November, 1951 lease under which Luxenberg first gained status accorded “the exclusive right to conduct a food store in the present existing premises” for the duration of the lease “should said premises remain in existence, or until the present building * * * is demolished for reconstruction or replacement purposes.”
Additionally the lease specified “Upon the demolition of the present premises and upon completion of replacement facilities,” the lessee was to have “the first option to lease the food market and grocery facilities in said replacement facilities * * * ”
After an earlier renewal, the lease of the same premises was again extended for five years from August, 1961, its terms to remain in full force and effect, with certain modifications. The lease as modified was executed in the name of Mayfair Extension, Inc. by L. S. Michaux, its president. The term was further extended for five years from November, 1966, just as the parties had agreed. Importantly, it was expressly provided that the lessee’s “first option to lease the food and grocery facilities which might replace the existing premises after the possible demolition thereof” (emphasis added) was to remain in full force except as to “the rate of rental to be paid in such case.” The lessee in the circumstance mentioned was to pay an amount equal to a bona fide offer which the lessor might receive from another prospective tenant. Luxenberg was to have thirty days after receipt of notice of any such terms “within which to elect to exercise said option to lease the said replaced facilities.”
It appears that the parties knew from the very outset of their dealings that the store structure was subject to demolition for non-compliance with a 1946 building permit. The trial judge found that the District’s proceedings had formally been initiated in September, 1962, had thereafter been carried through various administrative review steps but had culminated in a court order that the original structure be razed and that the lots be cleared by February 1, 1966.
It is apparent that the trial judge concluded, and we agree, that Luxenberg entitled to the rights of a lessee in the originally leased premises so long as they were permitted to stand. Otherwise, upon demolition of the building, the appellant had been accorded only the first option to lease the food and grocery facilities in a structure which “might” replace the leased premises. Mayfair was under no obligation to construct a new building. Moreover, it is clear that if and after replacement facilities actually should have been constructed, recognition of the timely exercise of Luxenberg’s option was to depend upon his matching whatever rate of rental might be specified in a bona fide offer to be submitted by another prospective tenant. We doubt that Luxenberg would seriously contend to the contrary respecting any of the foregoing conclusions. Moreover, he testified that he was “willing to meet a bona fide [rental] offer and am willing to pay it.”
But the demolished structure was not replaced. No time had been fixed within which Mayfair was to reach a decision. Mayfair may or may not rebuild the grocery store facilities. If it shall do so, Luxenberg may elect to exercise the option in accordance with the terms mentioned.
II
The appellant claimed at trial and argues here that the appellees were guilty of an anticipatory breach of his rights. His contention stems from the fact that the appellees as of May 14, 1964, acting through the appellee Michaux, had signed a lease with a supermarket chain, Grand Union Company. The term was to run until July 31, 1980, and the premises included the very area covered by Luxenberg’s option. The appellant argues that because of the provisions of that instrument, the appellees had put it beyond their power to perform their obligations to Luxenberg.
The record shows that about a year before the execution of the Grand Union lease, appellee Michaux had turned to one Wallace Agnew for professional assistance in financial transactions involving real estate. Agnew testified that he had sought to improve the financial position of the appellee Michaux and the corporations controlled by him. Agnew was aware that Luxenberg for some years had been Mayfair’s lessee but had no knowledge that the term of his lease had been extended. On the assumption that the lessee had simply held over, Agnew on August 5, 1964 wrote to Luxenberg, notified him that the original leased structure had been ordered demolished, and requested Luxenberg to vacate the premises on or before October 1, 1964. In early September, Agnew with Michaux had attended a conference with Luxenberg’s attorney and a lawyer from Agnew’s firm. Copies of the extension document were distributed among those in attendance, and the status of Luxenberg was thereupon recognized. Agnew promptly wrote a letter under date of September 10, 1964 withdrawing the August 5, 1964 notice to vacate, cancel-ling the request, and giving notice that his “principal does not at this time intend to demolish the existing premises.” Additionally, the letter reaffirmed the Luxenberg lease and informed the appellant that the “lessor under such lease intends to follow the terms required by it to be performed under such lease, as amended.”
The May, 1964 lease to Grand Union in elaborate detail spelled out the respective rights of the appellees as “Landlord” and of Grand Union as “Tenant.” We may note as typical for present purposes:
“The Landlord shall commence construction of the Tenant’s store on or before January 1st, 1965, and if Landlord shall fail to commence construction by said date Tenant may cancel this lease at any time thereafter before such construction shall be commenced.”
“The Tenant agrees that it will provide the Landlord with 60 days advance written notice of any cancellation of this lease pursuant to the provisions of paragraph 2 hereof, and further agrees that if on the first day of December, 1965 the premises are substantially under construction, it will defer exercise of its right of cancellation so long as such construction is continued with diligence and continuity.”
“The tenant presently considers the addition of at least 500 units to the Apartment Development known as Mayfair Mansion Apartments lying adjacent to the Shopping Center essential to its [sic] profitable business operation in the demised premises. It is therefore agreed that unless the Landlord shall on or prior to September 1, 1964, guarantee in writing to the Tenant that it will include an additional 500 units in said Apartment Development prior to the delivery of the demised premises to the Tenant, the Tenant may cancel this lease at any time thereafter prior to October 1, 1964.”
“The Landlord covenants and warrants it has full right and lawful authority to enter into this lease for the full term herein granted and for all extensions herein provided, and that it has a good and marketable title to the premises, free and clear of all occupancies, tenancies, mortgages, liens and other encumbrances except the following: None. ”
The testimony before the trial court disclosed that Grand Union had not can-celled the lease despite its right to do so. Despite the apparent incompatibility between the Grand Union lease and the outstanding lease to Luxenberg, the trial judge observed that the appellees had not yet placed it out of their power to perform, they had not sold the property, whatever rights Luxenberg had still remained in effect, and Mayfair had expressed its intention to continue performance under the Luxenberg lease.
The trial judge concluded — we think, correctly — that the evidence failed to disclose a clear and unequivocal breach of the contract rights of Luxenberg. We go one step farther and say that if replacement facilities shall be constructed within the term of Luxenberg’s lease and if Luxenberg shall elect to meet a bona fide offer to pay a rental equal to that offered by any prospective tenant, Grand Union or other, he will be entitled to the benefit of his agreement. That is as far as his conditional contract can be said to go.
But, the appellant would have us say the appellees had bound themselves, within a time certain, to erect a building for Grand Union. However he was not a party to that contract and had gained no rights under it; indeed, to the contrary, his whole claim stems from his contention that the rights purportedly created in favor of Grand Union were in derogation of his own.
The appellant next argues that we had earlier resolved similar issues in favor of his position in Friedman v. Decatur Corporation, 77 U.S.App.D.C. 326, 135 F.2d 812 (1943). Not so. There the appellant had agreed to buy certain land respecting which the contract was to be voidable if the seller should find it impossible to obtain certain wharfage facilities and the privilege of running a pipeline from the wharf to the premises in question. The agreement of the parties was expressly subject to that condition which, we observe, had been inserted for the benefit of the buyer. He could have waived performance of the condition. The seller could not obtain the benefits of the contract unless it had performed that condition. Such performance, however, might be excused if it should develop that the buyer would have failed to carry out his promise to acquire the premises whether the seller performed the condition or not. Despite efforts by the seller to fulfill the requirements of the condition, the buyer notified the seller that since he had been unable to complete business arrangements with an oil company, he could not and would not perform his part of the contract. The anticipatory breach by the seller was thus excused when the buyer cut off all pending efforts on the párt of the seller to fulfill the condition. The appellant’s reliance upon Friedman is unavailing.
Luxenberg points for support to Burke v. Thomas J. Fisher & Company, 127 F. Supp. 1 (D.D.C.), aff’d, 95 U.S.App.D.C. 85, 219 F.2d 767 (1955). There an anticipatory breach of contract was found where a purchaser refused to perform his contract to buy certain real estate. In the lawsuit which followed, the purchaser contended that the tender of a deed was a condition precedent to his obligation to pay. The trial court found, correctly we concluded, that the condition of tender had been excused since the purchaser had clearly indicated his intention not to perform regardless of the tender.
Other cases cited by the appellant have no applicability. The appellant can not escape the fact that the construction of replacement facilities by the appellees was a condition precedent to the exercise of his option. The appellees, as owners, had simply decided not to fulfill a condition which they were under no legal obligation to meet. Since the owners had incurred no obligation to build, they had incurred no obligation to lease until and unless they built. There was no escalation of the appellant’s rights by virtue of the lease between the appellees and Grand Union.
Affirmed.
. In light of the evidence developed at trial, Gospel Spreading Association, Inc. and L. S. Michaux were joined as parties and aligned with Mayfair, and thereupon were treated as representing a single interest in the realty here involved. All three will hereinafter be referred to as appellees. Sixty per cent of the Mayfair stock is owned by Gospel, and forty per cent is owned by Michaux, who is also president of both corporations.
. The memorandum filed by Judge Walsh appears sub nom Tobriner v. Mayfair Extension, Incorporated, 250 F.Supp. 614 (D.D.C.1966) to ■which reference may be had for details not herein set forth.
. Luxenberg caused its lease as extended to be recorded September 24, 1964. Of. D.C.Code § 45-502 (1961), 31 Stat. 1268, ch. 854, § 500.
. Cf. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953 (1900).
. Factual details are developed in the opinion of the trial court, uM, supra.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_issue_8
|
14
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
ORGANIZED VILLAGE OF KAKE et al. v. EGAN, GOVERNOR OF ALASKA.
No. 3.
Argued December 14, 1961.
Decided March 5, 1962.
John W. Cragun argued the cause for appellants. With him on the briefs was Frances L. Horn.
Ralph E. Moody, Attorney General of Alaska, and, by special leave of Court pro hac vice, Avrum M. Gross, Assistant Attorney General, argued the cause and filed briefs for appellee.
Oscar H. Davis, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Cox and Roger P. Marquis.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This is a companion case to No. 2, Metlakatla Indian Community v. Egan, ante, p. 45, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, - Alaska -, 362 P. 2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.
The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934, 48 Stat. 984, 988, as amended, 49 Stat. 1250 (1936), 25 U. S. C. §§ 473a, 476, 477. Kake is located on Kupreanof Island, 100 miles south of Juneau. Angoon is located on Admiralty Island, 60 miles south of Juneau. They are occupied by Thlinget or Tlinget Indians, native to Alaska.
Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March 1959 the Secretary of the Interior, by regulations issued under authority of the White Act, 43 Stat. 464, as amended, 48 U. S. C. §§ 221-228, and the Alaska Statehood Act, 72 Stat. 339, permitted Angoon to operate three fish traps during the 1959 season and Kake four. 24 Fed. Reg. 2053, 2069. The following year the Secretary authorized permanent operation of these trap-sites and specified one additional site for Angoon and five more for Kake for possible future authorization. 25 CFR (1961 Supp.) pt. 88.
The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska in 1959 threatened to enforce against Kake and Angoon her anti-fish-trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.
The situation here differs from that of the Metlakat-lans in that neither Kake nor Angoon has been provided with a reservation and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary’s regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish but forbade him in so doing to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., 337 U. S. 86, 122-123. Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained “absolute jurisdiction and control” of Indian “property (including fishing rights)” in the United States, but it did not give powers of the nature claimed to the Secretary of the Interior. No other source of authority appears available. The provisions now found in 25 U. S. C. §§ 2 and 9, referring to the President’s power to prescribe regulations for effectuating statutes “relating to Indian affairs,” to settle accounts of “Indian affairs,” and concerning “the management of all Indian affairs and of all matters arising out of Indian relations,” derive from statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. In keeping with the policy of almost total tribal self-government prevailing when these statutes were passed, see pp. 71-72, infra, the Interior Department itself is of the opinion that the sole authority conferred by the first of these is that to implement specific laws, and by the second that over relations between the United States and the Indians — not a general power to make rules governing Indian conduct. United States Department of the Interior, Federal Indian Law (1958), pp. 54-55; Cohen, Handbook of Federal Indian Law (1945), p. 102. We agree that they do not support the fish-trap regulations.
Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, 309 U. S. 598; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177. The Engineers have no objection under the Rivers and Harbors Act, 30 Stat. 1121, 1151, 33 U. S. C. § 403, to the obstruction of navigable streams incident to the operation of fish traps at Kake and Angoon; the Forest Service has no objection to the use of National Forest land to anchor them. Neither attempted to exempt these traps from state law.
As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of § 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained “absolute jurisdiction and control” over, inter alia, “any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives.”
The United States in its 'brief amicus curiae contended that the reservation of absolute jurisdiction over Indian “property (including fishing rights)” ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that in using fish traps they were exercising an aboriginal right to fish that was protected by § 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that § 4 protects only exclusive rights given Indians by federal law.
The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention, in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e. g., Hearings Before House Committee on Interior and Insular Affairs on H. R. 2535 and related bills, 84th Cong., 1st Sess. 124-131, 266-267, 381-383 (1955). But we cannot accept Alaska’s contention that Indian “property (including fishing rights)” refers only to property owned by or held for Indians under provisions of federal law. Section 4 must be construed in light of the circumstances of its formulation and enactment. See Alaska Pacific Fisheries v. United States, 248 U. S. 78, 87. Congress was aware that few such rights existed in Alaska. Its concern was to preserve the status quo with respect to aboriginal and possessory Indian claims, so that statehood would neither extinguish them nor recognize them as compensable. See, e. g., House Hearings, supra, 130, 384 (1955) (Delegate Bartlett); Hearings Before Senate Committee on Interior and Insular Affairs on S. 50, 83d Cong., 2d Sess. 227 (Senator Jackson), 260-261 (1954).
Discussion during hearings on the 1955 House bill affords further evidence that claims not based on federal law are included. Section 205 of that bill (like § 6 of the bill as enacted) authorized Alaska to select large tracts of United States land for transfer to state ownership. It was understood that the disclaimer provision left the State free to choose Indian “property” if it desired, but that such a taking would leave unimpaired the Indians’ right to sue the United States for any compensation that might later be established to be due. See House Hearings, supra, 135 (1955) (Delegate Bartlett). Feeling that experience had shown this procedure too slow to give prompt relief to the Indians, Oklahoma’s Representative Edmondson proposed to exempt Indian property from the State’s selection. Id., at 381. This was rejected as virtually destroying Alaska’s right to select lands. For, although Representative Edmondson pointed out that the disclaimer extended only to property owned by Indians or held in trust for them, four representatives clearly stated their belief that the disclaimer included not just the few Alaska reservations but also the aboriginal or other unproved claims in dispute, which covered most if not all of Alaska. Id., at 383 (Representatives Engle, Dawson, Metcalf, Westland).
“Fishing rights” first appeared in a Senate bill reported in 1951, S. Rep. No. 315, 82d Cong., 1st Sess. 2. Earlier bills had mentioned only land. The fishing-rights provision is unique to Alaska, although the disclaimer is in other respects the same as in earlier statutes. See pp. 67-68, infra. It was included because fishing rights are of vital importance to Indians in Alaska. House Hearings, supra, 125 (1955) (Delegate Bartlett). The existence of aboriginal fishing rights was affirmed by the Interior Department’s Solicitor in 1942, 57 I. D. 461. There was almost no discussion of “fishing rights” in Congress. In earlier hearings the Senate Committee was considering a suggestion by Senator Cordon that all Indian property be granted to the State, reserving the right to seek federal compensation, except for property actually occupied by Indians. Asked to describe Indian possessory rights, Governor Heintzleman portrayed a smokehouse beside a stream, 50 miles from the town where they live, visited for fishing purposes perhaps two weeks each year. Senate Hearings, supra, 137 (1954).
On a similar basis the Kakes and the Angoons have fished at the disputed locations since 1948 and 1950. It appears to be Alaskan custom that, although traps are taken from the water and replaced each year, one does not “jump” a trap-site. The prior claim of the first trapper is respected. See United States v. Libby, McNeil & Libby, 14 Alaska 37, 42, 107 F. Supp. 697, 700 (D. Alaska 1952); Gruening, The State of Alaska (1954), p. 171; 57 I. D. 461, 462 (1942). The Statehood Act by no means makes any claim of appellants to fishing rights compensable against the United States; neither does it extinguish such claims. The disclaimer was intended to preserve unimpaired the right of any Indian claimant to assert his claim, whether based on federal law, aboriginal right or simply occupancy, against the Government. Appellants’ claims are “property (including fishing rights)” within § 4.
Because § 4 of the Statehood Act provides that Indian “property (including fishing rights)” shall not only be disclaimed by the State as a proprietary matter but also “shall be and remain under the absolute jurisdiction and control of the United States,” the parties have proceeded on the assumption that if Kake and Angoon are found to possess “fishing rights” within the meaning of this section the State cannot apply her law. Consequently argument has centered upon whether appellants have any such “rights.”
The assumption is erroneous. Although the reference to fishing rights is unique, the retention of “absolute” federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts. Indian lands in Arizona remained “under the absolute jurisdiction and control” of the United States, 36 Stat. 557, 569; yet in Williams v. Lee, 358 U. S. 217, 220, 223, we declared that the test of whether a state law could be applied on Indian reservations there was whether the application of that law would interfere with reservation self-government. The identical language appears in Montana's admission Act, 25 Stat. 676, 677, yet in Draper v. United States, 164 U. S. 240, the Court held that a non-Indian who was accused of murdering another non-Indian on a Montana reservation could be prosecuted only in the state courts. The Montana statute applies also to North Dakota, South Dakota, and Washington. Identical provisions are found in the Acts admitting New Mexico (36 Stat. 557, 558-559) and Utah (28 Stat. 107, 108), and in the Constitutions of Idaho (1890, Art. 21, § 19) and Wyoming (1890, Art. 21, § 26), which were ratified by Congress (26 Stat. 215 (Idaho); 26 Stat. 222 (Wyoming)).
Draper and Williams indicate that “absolute” federal jurisdiction is not invariably exclusive jurisdiction. The momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act in light of its legislative history.
Section 4 of the Statehood Act contains three provisions relating to Indian property. The State must disclaim right and title to such property; the United States retains “absolute jurisdiction and control” over it; the State may not tax it. On the urging of the Interior Department that Alaska be dealt with as had other States, these provisions replaced an earlier section granting to the State all lands not actually possessed and used by the United States. Hearings Before a Subcommittee of the House Committee on Public Lands on H. R. 206 and H. R. 1808, 80th Cong., 1st Sess. 2, 12, 14 (1947). The first and third provisions have nothing to do with this case; the second does not exclude state conservation laws from appellants’ fish traps.
The disclaimer of right and title by the State was a disclaimer of proprietary rather than governmental interest. It was determined, after some debate, to be the best way of ensuring that statehood would neither extinguish nor establish claims by Indians against the United States. If lands subject to the claim of Indian rights were transferred to the State, the Indians were not thereby to lose the right to make claims against the United States for damages. See Senate Hearings, supra, 286 (1954).
The provision for “absolute jurisdiction and control” received little attention in Congress. In the 1954 Senate hearings the Committee was considering a provision copied from the Oklahoma statute that Indian lands should remain “subject to the jurisdiction, disposal, and control of the United States.” Mr. Barney, on behalf of the Justice Department, urged the inclusion of such a provision in order to avoid the possibility that, under United States v. McBratney, 104 U. S. 621, federal criminal jurisdiction over Indian reservations might be extinguished by statehood. Senators Barrett and Jackson thereupon expressed the clear desire that federal jurisdiction not be made exclusive over all disclaimed areas. Mr. Barney denied that the provision would deprive the State of “political jurisdiction” over disclaimed properties. Senator Cordon declared:
“The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land.”
Senator Jackson said: “All that you are doing here is a disclaimer of proprietary interest,” and Mr. Barney agreed. Senator Cordon said:
“The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by the term 'police power/ within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States.”
Senators Barrett and Jackson and Mr. Barney agreed. Mr. Slaughter of the Interior Department pointed out that a later section of the bill, now § 11, provided for “exclusive” federal jurisdiction over Mt. McKinley National Park. Mr. Barney, in answer to a direct question, stated that “jurisdiction” in the Oklahoma statute and in his proposal for Indian property did not mean exclusive jurisdiction. Senate Hearings, supra, 283-287 (1954). The bill as reported contained no provision on jurisdiction but only a disclaimer of right and title, a reservation of federal power to extinguish Indian claims as if there had been no statehood Act, and an exemption from state taxation. Id., at 331. Provisions retaining federal “jurisdiction” and “absolute jurisdiction” were considered interchangeable by at least one committee, which reported the disclaimer in an Alaska bill as “almost identical” with those in the preceding 13 admission Acts. S. Rep. No. 315, 82d Cong., 1st Sess. 15 (1951).
Most statehood bills contained the more common phrasing “absolute jurisdiction and control” rather than the Oklahoma phrase. Although this was the usual language employed to retain federal power in statehood acts, the Senate Committee in 1958 out of an abundance of caution deleted the word “jurisdiction” in order that no one might construe the statute as abolishing state power entirely: The Committee declared that it was not its intention by the retention of federal control to make the Alaska situation any different from that prevailing in other States as to state jurisdiction over Indian lands. S. Rep. No. 1163, 85th Cong., 1st Sess. 15 (1957). The House bill, which retained the usual language, was passed first, 104 Cong. Rec. 9756, and the Senate made no amendments to the House bill because it feared that statehood might be lost once again if the House had to act on a conference report. 104 Cong. Rec. 12009-12010. Senator Jackson stated that “the differences are of wording and language rather than policy . . . designed to define more clearly some of the jurisdictional problems involved .... The objective of both bills is identical. There is strong evidence that the end product of both bills would be identical.” The Senate amendment was designed simply to make clear what an examination of past statutes and decisions makes clear also: that the words “absolute jurisdiction and control” are not intended to oust the State completely from regulation of Indian “property (including fishing rights).” “Absolute” in § 4 carried the gloss of its predecessor statutes, meaning undiminished, not exclusive. Cf. Boston Sand & Gravel Co. v. United States, 278 U. S. 41, 47-48. The power of Alaska over Indians, except as granted by Congress in 1958, 72 Stat. 545, is the same as that of many other States.
The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation, 7 Stat. 311, guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory. Even the Federal Government itself asserted its power over these reservations only to punish crimes committed by or against non-Indians. 1 Stat. 469, 470; 2 Stat. 139. See 18 U. S. C. § 1152.
As the United States spread westward, it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country. In 1871 the power to make treaties with Indian tribes was abolished, 16 Stat. 544, 566, 25 U. S. C. § 71. In 1887 Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U. S. C. §§ 331-358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. In 1885, departing from the decision in Ex parte Crow Dog, 109 U. S. 556, Congress intruded upon reservation self-government to extend federal criminal law over several specified crimes committed by one Indian against another on Indian land, 23 Stat. 362, 385, as amended, 18 U. S. C. § 1153; United States v. Kagama, 118 U. S. 375. Other offenses remained matters for the tribe, United States v. Quiver, 241 U. S. 602.
The general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia, 6 Pet. 515, 561; The Kansas Indians, 5 Wall. 737, 755-757; and The New York Indians, 5 Wall. 761, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880 the Court no longer viewed reservations as distinct nations. On the contrary, it was said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law, Utah & Northern R. Co. v. Fisher, 116 U. S. 28, 31. In Langford v. Monteith, 102 U. S. 145, the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, 104 U. S. 621, and Draper v. United States, 164 U. S. 240, the Court held that murder of one non-Indian by another on a reservation was a matter for state law.
The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government. 48 Stat. 984, 986, 987, 988. These provisions were soon extended to Alaska, 49 Stat. 1250.
Concurrently the influence of state law increased rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress in 1929 authorized the States to enforce sanitation and quarantine laws on Indian reservations, to make inspections for health and educational purposes, and to enforce compulsory school attendance. 45 Stat. 1185, as amended, 25 U. S. C. § 231. See Meriam, Problem of Indian Administration (1928); H. R. Rep. No. 2135, 70th Cong., 2d Sess. (1929); Cohen, Handbook of Federal Indian Law (1945), p. 83; United States Department of the Interior, Federal Indian Law (1958), pp. 126-127. In 1934 Congress authorized the Secretary of the Interior to enter into contracts with States for the extension of educational, medical, agricultural, and welfare assistance to reservations, 48 Stat. 596, 25 U. S. C. § 452. During the 1940’s several States were permitted to assert criminal jurisdiction, and sometimes civil jurisdiction as well, over certain Indian reservations. E. g., 62 Stat. 1161; 62 Stat. 1224; 64 Stat. 845; 63 Stat. 705. A new shift in policy toward termination of federal responsibility and assimilation of reservation Indians resulted in the abolition of several reservations during the 1950’s. E. g., 68 Stat. 250 (Menominees); 68 Stat. 718 (Klamaths).
In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588, 18 U. S. C. § 1162, 28 U. S. C. § 1360. Alaska was added to the list of such States in 1958, 72 Stat. 545. This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property. Finally, the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself. 67 Stat. 586, 18 U. S. C. § 1161. Thus Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall.
Decisions of this Court are few as to the power of the States when not granted Congressional authority to regulate matters affecting Indians. In Thomas v. Gay, 169 U. S. 264, an Oklahoma territorial tax on the cattle of non-Indian lessees of reservation land was upheld on the authority of the Fisher and Maricopa decisions, supra, which permitted taxation of railroad rights-of-way. The Court conceded that because the lands on which the taxed cattle grazed were leased from Indians the tax might, in contrast to the railroad cases, have an indirect effect on Indians, but that effect was declared to be too remote to require a contrary result. In the latest decision, Williams v. Lee, 358 U. S. 217, we held that Arizona had no jurisdiction over a civil action brought by a non-Indian against an Indian for the price of goods sold the latter on the Navajo Reservation. The applicability of state law, we there said, depends upon “whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them,” 358 U. S., at 220. Another recent statement of the governing principle was made in a decision reaffirming the authority of a State to punish crimes committed by non-Indians against non-Indians on reservations: “[I]n the absence of a limiting treaty obligation or Congressional enactment each state had a right to exercise jurisdiction over Indian reservations within its boundaries,” New York ex rel. Ray v. Martin, 326 U. S. 496, 499.
These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Congress has gone even further with respect to Alaska reservations, 72 Stat. 545, 18 U. S. C. § 1162, 28 U. S. C. § 1360. State authority over Indians is yet more extensive over activities, such as in this case, not on any reservation. It has never been doubted that States may punish crimes committed by Indians, even reservation Indians, outside of Indian country. See Cohen, Indian Rights and the Federal Courts, 24 Minn. L. Rev. 145, 153 (1940), citing Pablo v. People, 23 Colo. 134, 46 P. 636. Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, 163 U. S. 504; Tulee v. Washington, 315 U. S. 681, in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557; Moore v. United States, 157 F. 2d 760, 765 (C. A. 9th Cir.). See State v. Cooney, 77 Minn. 518, 80 N. W. 696.
True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing certainly does not impinge on treaty-protected reservation self-government, the factor found decisive in Williams v. Lee. Nor have appellants any fishing rights derived from federal laws. This Court has never held that States lack power to regulate the exercise of aboriginal Indian rights, such as claimed here, or of those based on occupancy. Because of the migratory habits of salmon, fish traps at Kake and Angoon are no merely local matter.
Congress has neither authorized the use of fish traps at Kake and Angoon nor empowered the Secretary of the Interior to do so. The judgment of the Supreme Court of Alaska is affirmed. However, in view of all the circumstances and in order to avoid hardship, the stay granted by Mr. Justice Brennan, and continued by the Court, will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior.
T, . , , It ts so ordered.
In 1948 a statehood bill requiring disclaimer of “all lands . . . owned or held by any . . . natives, the right or title to which shall have been acquired through or from the United States or any prior sovereignty,” was favorably reported with this explanation:
“As proposed to be amended, this paragraph would preserve all existing valid native property rights in Alaska, including those derived from use or occupancy, together with all existing authority of the Congress to provide for the determination, perfection or relinquishment of native property rights in Alaska. It would neither add to nor subtract from such rights and such authority, but would simply maintain the status quo.” H. R. Rep. No. 1731, 80th Cong., 2d Sess. 16 (1948).
To the same effect, see H. R. Rep. No. 255, 81st Cong., 1st Sess. 13 (1949).
Fisher permitted a territorial tax on a railway through Indian country, and one basis for the holding was that here discussed. The alternative ground was that the railway right-of-way had been withdrawn from the reservation, as was held in Maricopa & Phoenix R. Co. v. Arizona Territory, 156 U. S. 347.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
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.
DEERING MILLIKEN RESEARCH CORPORATION, Appellant, v. TEXTURED FIBRES, INC., Virginia Mills, Inc., and Throwing Corporation of America, Appellees.
No. 13214.
United States Court of Appeals Fourth Circuit.
Argued June 9, 1969.
Decided Sept. 11, 1969.
See also D.C., 302 F.Supp. 487.
Kurt Shaffert, New York City (Robert F. Conrad, Washington, D. C., and Thomas A. Evins, and Means, Evins, Browne & Hamilton, Spartanburg, S. C., on the brief), for appellant.
Edward P. Perrin, Spartanburg, S. C. (Perrin & Perrin, Spartanburg, S. C., Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., and Pell & Leviness, New York City, on the brief), for appel-lees.
Before HAYNSWORTH, Chief Judge, WINTER and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:
Deering Milliken Research Corp. appeals from an order of the district court quashing service of process on Textured Fibres, Inc., Virginia Mills, Inc., and Throwing Corp. for want of personal jurisdiction. We hold that South Carolina’s long-arm statute confers jurisdiction over a person who breaches a contract after the effective date of the statute, although the contract was made before that date. Accordingly, we reverse and remand.
In May 1964, Deering Milliken licensed the defendants to use a process it had developed. The licensees agreed to pay Deering Milliken a percentage of the price of all yarn produced by the process. In its complaint, Deering Milliken alleged a series of underpayments from January 1, 1966 through March 31, 1968. It filed suit in the United States District Court for the District of South Carolina alleging diversity of citizenship and obtaining service of process under South Carolina’s long-arm statute, S. C. Code Ann. § 10.2-801 to -809 (1966), and Fed. R.Civ.P. 4(e). On a motion to quash service of process under Fed.R.Civ.P. 12(b), the district judge held South Carolina’s long-arm statute did not apply to a contract entered into before January 1, 1968.
South Carolina's pertinent statutes are:
“A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person’s
“(g) entry into a contract to be performed in whole or in part by either party in this State * * *."
* * * * * *
“This act shall become effective at 12:01, January 1, 1968. It applies to transactions entered into and events occurring after that date.”
The licensees reason that because entry into a contract is necessary to subject a person to the court’s jurisdiction, entry must also mark the date for application of the long-arm statute.
However, we do not read the language of the South Carolina law so restrictively. The provisions governing the effective date are not limited to transactions entered into after January 1, 1968. They also embrace “events occurring after that date.” Literally, the breach of a contract and the simultaneous accrual of a cause of action are events. And, since a literal construction of “events” is consistent with the intention of the South Carolina legislature to expand the state’s jurisdiction, we are not at liberty to deny effect to this part of the statute. Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782 (1879).
Here the alleged underpayments were significant breaches of the licensing agreement, and with each a new cause of action accrued. Those underpayments that occurred after January 1, 1968 were, we hold, events sufficient to bring the long-arm statute into effect.
The licensees rely upon Johnson v. Baldwin, 214 S.C. 545, 53 S.E.2d 785 (1949), and related cases, to support their argument that South Carolina does not give retrospective effect to statutes dealing with service of process. But here, in contrast to Johnson, the statute applies prospectively, because the breach of contract that caused the action to accrue occurred after the statute’s effective date. Sampson Constr. Co. v. Farmers Co-op. Elevator Co., 382 F.2d 645, 649 (10th Cir. 1967); Annot., 19 A.L.R.3d 138, 161 (1968).
The licensees also argue that since there has been no proof that the alleged underpayments occurring after January 1, 1968 aggregated $10,000, the jurisdictional amount required by 28 U.S.C. § 1331 is lacking. This argument confuses jurisdiction over the person with jurisdictional amount. Once jurisdiction over the person is obtained, tKe entire subject matter of the controversy between the parties comes before the court. Therefore, to determine the jurisdictional amount, the total underpayments, those occurring before and after January 1, 1968 — here alleged to be $45,000 — should be considered.
The licensees asserted a number of other grounds in their motion to quash. Since the district judge believed the long-arm statute was inapplicable, he did not pass on them. Some will require findings of fact. In any event, we believe that all should be decided on remand so that piecemeal litigation on appeal may be avoided.
Reversed and remanded.
. S.C.Code Ann. § 10.2-803(1) (g) (1966).
. S.C.Code Ann. § 10.10-101 (1966). This statute fixes the effective date for the entire South Carolina Uniform Commercial Code, -which includes the long-arm statute.
. In Johnson v. Baldwin, the court held that a statute providing that a nonresident director of a domestic corporation shall be held to have appointed the Secretary of State as his attorney for service of process could not apply retroactively to sustain jurisdiction over two nonresident directors who had resigned before the effective date of the statute.
. Among these issues are additional questions posed by service under the long-arm statute: whether the contract was to he performed in whole or in part by either party in South Carolina, within the meaning of S.C.Code Ann. § 10.2-803(1) (g); and whether' the defendants have the minimum contacts with South Carolina required by the due process clause of the Fourteenth Amendment, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In the absence of findings of fact necessary for decision of these issues, we express no opinion concerning them.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_circuit
|
K
|
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.
Alvin Bernard FORD, Petitioner, v. Charles G. STRICKLAND, Jr., Warden, Florida State Prison; Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida; Jim Smith, Attorney General, State of Florida, Respondents.
No. 81-6200.
United States Court of Appeals, Eleventh Circuit.
April 15, 1982.
Rehearing Granted April 28, 1982.
Richard H. Burr, III, Nashville, Tenn., Marvin E. Frankel, New York City, for petitioner.
Joy B. Shearer, Asst. Atty. Gen., W. Palm Beach, Fla., for respondents.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN, District Judge.
Honorable Virgil Pittman, U. S. District Judge for the Southern District of Alabama, sitting by designation.
Judge Hatchett is recused and did not participate in this decision.
RONEY, Circuit Judge:
Alvin Bernard Ford was charged with shooting a wounded policeman in the back of the head at close range while fleeing from an armed robbery. Convicted of murder, Ford was sentenced to death in Florida. He appeals the denial of a petition for writ of habeas corpus alleging essentially seven contentions: (1) improper admission of an oral confession; (2) failure of the Florida Supreme Court to require resentencing when it found three of the statutory aggravating circumstances unsupported by the evidence; (3) improper state trial court instructions on mitigating circumstances; (4) failure of the Florida death law to require a finding that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt; (5) failure of the Florida Supreme Court to apply a consistent standard of reviewing the aggravating and mitigating circumstances in the case; (6) ineffective assistance of counsel at sentencing; and (7) review by the Florida Supreme Court of nonrecord materials in death cases, the so-called Brown issue. After examining each of these contentions carefully, we affirm the denial of the writ of habeas corpus.
Briefly, the facts giving rise to petitioner’s conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner’s accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant’s vault.
Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him, ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Uyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape.
Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury’s recommendation, the trial judge sentenced him to death. On direct appeal, both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford’s petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court’s practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court dismissed the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).
Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla. 1981).
Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and we granted a stay of execution so that the issues raised could be reviewed on appeal.
I.
Admission of Ford's Oral Confession
Ford was arrested in Gainesville, Florida on the day of the murder. He refused to talk with Gainesville police officers, indicating he first wanted to consult a lawyer. He was given an opportunity to talk to a public defender, but refused to accept that representation. He was Unable to reach his private attorney.
Fort Lauderdale police officers came to return Ford to Fort Lauderdale. The Miranda warnings were given and petitioner “wanted” to talk but would not give a written statement until he had contacted his lawyer. Petitioner’s only statement at the time was “I didn’t shoot that cop.” On a small plane from Gainesville to Fort Lauderdale, another officer gave Ford Miranda warnings. Ford said he was willing to talk but would give no written statement until he had talked with his lawyer. After informing a Fort Lauderdale officer of his earlier unsuccessful effort to contact his attorney and his refusal of representation by the public defender, petitioner admitted participating in the Red Lobster robbery. Although denying participation in the killing, he admitted being left behind at the Red Lobster by his accomplices, seeing a police officer lying on the ground as he left the restaurant, and escaping in the police car which he abandoned for a green Volkswagen.
Ford claims admission of the above statement in his trial violated the Fifth, Sixth and Fourteenth Amendments and was contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, including United States v. Priest, 409 F.2d 491 (5th Cir. 1969), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that having invoked without waiving his right to counsel, his responses to subsequent police-initiated custodial interrogation without an attorney should not have been admitted into evidence.
Petitioner moved to suppress his confession, but failed to appeal the trial court’s denial of his motion on direct appeal to the Florida Supreme Court. Based on Wain wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the district court held Ford’s failure to raise the issue on direct state appeal forecloses its consideration in this habeas corpus proceeding.
The Florida procedural law is clear. A criminal defendant’s failure to raise an issue which could be asserted on direct appeal precludes consideration of the issue on a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla. 1981). Accordingly, the state courts refused to consider this contention concerning the confession.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held a state prisoner who knowingly and deliberately bypasses state procedures intentionally relinquishes known rights and can be denied habeas corpus relief on that basis. Recognizing Fay left open the possibility of “sandbagging” by defense lawyers, the Supreme Court narrowed its sweeping rule in Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977). The Court held that absent a showing of both cause for noncompliance and actual prejudice, habeas corpus relief is barred where a state prisoner has failed to comply with a state contemporaneous objection rule. 433 U.S. at 87, 97 S.Ct. at 2506.
While Sykes arose in the context of a procedural default at the trial level, we have applied its rationale in cases involving a procedural default during the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to strictly enforce procedural rules, thereby reducing the possibility the federal court will decide the constitutional issue without the benefit of the state’s views. Gibson v. Spalding, 665 F.2d at 866; Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508. Additionally, application of Sykes to the forfeiture of specific claims on appeal promotes the goals of comity and accuracy identified by the Sykes Court. Forman v. Smith, 633 F.2d at 639.
Thus, in this Circuit a state prisoner can forego the opportunity to raise constitutional issues in habeas corpus proceedings by deliberately bypassing state appellate procedural rules or by merely failing to follow them without showing both cause for the default and prejudice resulting from it. Because this record does not reveal Ford’s procedural default was the result of an intentional bypass within the meaning of Fay, we turn to the cause and prejudice exception of Sykes.
Cause and prejudice are sometimes interrelated. Huffman v. Wainwright, 651 F.2d at 351. While the Supreme Court has not explicitly defined cause and prejudice, our precedents have defined “cause” sufficient to excuse a procedural default in light of the determination to avoid “a miscarriage of justice.” Id. Prejudice means “actual prejudice” which in this case must result from the failure to appeal the trial court’s admission of petitioner’s statement. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir. 1978).
A careful review of the record reveals the Sykes exception does not apply in this case. Ford’s argument that the procedural default is excused because of the position of Florida courts at the time on the issue must fail. The claim was perceived and asserted in the trial court, and therefore could have been asserted on appeal. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.
- U.S. at -, 102 S.Ct. at 1572 (footnotes omitted).
Even addressed in terms of manifest injustice, see Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981), under the circumstances of this case, imposition of the Sykes forfeiture rule does not constitute a miscarriage of justice. Petitioner does not contest the accuracy of the statement made to the Fort Lauderdale police. The statement admitted only presence and participation in the robbery; it denied participation in the shooting. The Florida Supreme Court, in discussing effectiveness of counsel, concluded and we agree that “[tjhere was abundant evidence apart from the confession, some by eyewitnesses, to place him at the scene as a participant.” Ford v. State, 407 So.2d at 909.
II.
Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances
After receiving instructions on the eight aggravating circumstances under Fla.Stat. § 921.141, Ford’s jury recommended the death penalty. Finding evidentiary support for all eight aggravating circumstances, the judge sentenced petitioner to death. On appeal, the Florida Supreme Court ruled three of the eight did not apply because two lacked evidentiary support and one was based on the same aspect of the crime as another circumstance. Ford v. State, 374 So.2d 496, 501-03 (Fla.1979). The court upheld the five other aggravating circumstances, specifically finding the killing “especially heinous, atrocious, or cruel.” Id. at 503. In the absence of any mitigating circumstances, death was presumed the appropriate penalty and the sentence was affirmed. Id.
Petitioner argues that Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), and Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), reh. denied and modified, 648 F.2d 446 (5th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 90, 71 L.Ed.2d 82 (1981), require resentencing under the above circumstances.
In Stephens the Georgia Supreme Court had held unconstitutional one of the statutory aggravating circumstances presented to the jury. We held that the death sentence must be set aside because it was impossible to tell from the record the extent to which the Georgia jury had relied on an unconstitutional statutory aggravating factor in imposing the death penalty. Stephens v. Zant, 631 F.2d at 406. In Henry, we held the trial court committed constitutional error in admitting into evidence and permitting the jury to consider evidence of nonstatutory aggravating circumstances. Henry v. Wainwright, 661 F.2d at 60. These two cases are inapposite to the case at bar.
The instant case involves consideration of neither unconstitutional nor nonstatutory aggravating factors. That evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not compel the conclusion that the death sentence was unconstitutionally infected by consideration of extraneous evidence. The sentencing jury and judge considered only evidence of factors which could properly be considered by them. Where, as here, there were no statutory mitigating circumstances and the sentencer has considered only constitutional statutory aggravating circumstances, we perceive no reversible error where properly found statutory aggravating circumstances sufficiently support the sentence. The Florida Supreme Court’s review has achieved the goals of rationality, consistency and fairness required under Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 2969-70, 49 L.Ed.2d 913 (1976), and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
Neither did the trial court commit constitutional error in instructing the jury as to all aggravating and mitigating circumstances permitted by the statute. To assure the jury understands the structure of the law as required by Proffitt, it seems appropriate that they be charged fully on the Florida statute, provided proper instructions on the burden of proof and the standard of evidence required to prove the factors are given.
III.
Instructions on Mitigating Circumstances
Instructing the jury on aggravating circumstances, the trial judge stated, “you shall consider only the following...,” and read the statutory language. With regard to mitigating circumstances, he said, “you shall consider the following...,” again reading the appropriate statutory language. Ford neither objected to the instruction at trial nor raised it on direct appeal.
Relying primarily on Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981), petitioner argues the above instructions improperly limited the jury’s consideration to statutory mitigating factors and precluded consideration of nonstatutory mitigating factors contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett held “the sentencer... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964.
With reference to aggravating circumstances, the Mississippi trial court in Washington instructed the jury to “consider only the following elements.... ” As to mitigating circumstances, the judge stated, “consider the following elements.... ” Washington v. Watkins, 655 F.2d at 1367. The state court concluded:
If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts....
Id. at 1368 (emphasis added).
Reasoning that in determining whether aggravating outweighed mitigating factors jurors might have believed it was their sworn duty to consider only the two statutory mitigating circumstances enumerated in the charge, the Fifth Circuit reversed Washington’s death sentence.
In evaluating the state court’s instructions, we must pay careful attention to the words actually spoken to the jury to determine the interpretation a reasonable juror might give the instruction in question. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The entire charge must be examined as a whole to discern whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409. Where some deficiency exists in the language of the charge taken as a whole, it must be shown that it so infected the entire trial process that a due process violation occurred. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Washington v. Watkins, 655 F.2d at 1369.
Evaluating the jury charge in this case under the foregoing standard, we reject Ford’s contention. While the instructions in Washington and the instant case involve similar use of the term “only,” there are significant differences. Petitioner’s jury was read the entire list of statutory mitigating circumstances and was not confined to two “preceding elements of mitigation,” an important factor to the court’s decision in Washington. 655 F.2d at 1370. More importantly, the sentencing judge’s order which stated “[t]here are no mitigating circumstances existing — either statutory or otherwise — which outweigh any aggravating circumstances” reflects his consideration of the nonstatutory mitigating evidence offered by Ford. The Florida statute does not restrict a jury’s consideration of mitigating circumstances to those listed in the statute. It is reasonable to conclude the state trial judge’s perception that nonstatutory mitigating factors could be considered was conveyed to the advisory jury. The language about which petitioner complains did not so “infect” the entire sentencing process as to present a due process violation.
IV.
Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors
Florida Statute § 921.141(3)(b) requires the sentencing court, in imposing the death penalty, to state in writing its finding “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Petitioner contends that because the statute, case law and jury instructions do not require the state to prove that aggravating factors outweigh mitigating factors “beyond a reasonable doubt,” Florida’s death penalty statute, on its face and as applied in this case, denies convicted capital defendants due process. Ford argues that the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances, and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment. Since the element is part of the crime, he asserts that the beyond a reasonable doubt standard is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny. We reject this argument for several reasons.
First, that the aggravating must outweigh mitigating factors for imposition of the death penalty under the Florida statute is not an element of the crime of capital murder in Florida. Under the Florida bifurcated death penalty statute, the sentencing proceeding is entirely separate from trial on the capital offense. Indeed, in certain circumstances the state judge can summon different jurors for the latter phase. Fla.Stat. § 921.141(1). Guilt of the capital offense having already been decided, the sentencing jury’s sole function is to render an advisory sentence aiding the state judge in determining whether the defendant should be sentenced to death or life imprisonment. Id. Thus, that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072 (emphasis added), is irrelevant to deciding under the Florida statute whether there are insufficient mitigating circumstances to outweigh aggravating circumstances. The aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer’s discretion in a structured way after guilt has been fixed. As the Supreme Court explained:
While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).
Second, the United States Supreme Court has declared constitutional on its face Florida’s capital sentencing procedure, including its weighing of aggravating and mitigating circumstances. The Supreme Court stated: Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. The statute, facially constitutional, was strictly applied according to its terms.
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.
Third, Ford’s argument under In re Winship seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d at 617, and State v. Woods, 648 P.2d 71 (1981) [Utah 1981],
Ford’s alternate argument, raised for the first time in his reply brief, is that the Florida capital sentencing proceeding involves new findings of fact significantly affecting punishment to which the full panoply of due process rights should be extended, including the requirement that the state prove beyond a reasonable doubt that mitigating factors outweigh aggravating factors. Again petitioner confuses proof of facts with the weighing process undertaken by the sentencing jury and judge. Because the latter process is not a fact susceptible of proof under any standard, we reject this contention.
V.
Florida Supreme Court’s Standard of Review
Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and nonstatutory mitigating circumstances.
While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review, the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 1978). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605.
The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Stephens v. Zant, 631 F.2d at 405-06. Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances.
Moreover, examination of. the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with the constitutional principles relating to sentencing in capital cases. Under 28 U.S.C.A. § 2254(d), we presume correct facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71. L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny.
VI.
Assistance of Counsel at Sentencing
Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he “failed to focus the trial judge’s and jury’s attention on the critical factors relevant to the sentence determination.” Careful review of the record and Ford’s specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel.
On reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978); United States v. Beasley, 479 F.2d 1124, 1129 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). That an attorney’s strategy may appear wrong in retrospect does not automatically mandate constitutionally ineffective representation. Baty v. Balkcom, 661 F.2d 391, 395 n.8 (5th Cir. 1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981).
That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). This is not a case in which counsel allegedly failed to adequately prepare and investigate. See Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982). Ford’s counsel was reasonably likely to render and did render reasonably effective assistance. Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). Because the record reveals counsel’s representation was constitutionally adequate and there resulted no prejudice to petitioner by any action or inaction of counsel, see Washington v. Watkins, 655 F.2d at 1362, Ford has not carried his burden of proving ineffective assistance of counsel. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981).
VII.
The Brown Issue: Nonrecord Material Before the Florida Supreme Court
Petitioner alleges the Florida Supreme Court had a practice of receiving nonrecord materials concerning death row inmates during the pendency of the appeal of his death sentence. Ford specifically claims that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation and reliability and proportionality of capital sentencing. Additionally, he argues the court’s receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them.
This issue first surfaced in a petition for writ of habeas corpus directed to the Florida Supreme Court brought on behalf of 122 Florida death row inmates, of which Ford was one. The Court denied the petition with a full opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981).
We reject the contention both generally and specifically as made for Ford. The function of the Supreme Court of Florida in these cases is to review sentences for procedural regularity and proportionality. The court does not “impose” sentence, and for that reason there cannot exist a due process violation under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1980). As the Florida Supreme Court aptly stated:
The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role. Indeed, our role is neither more nor less, but precisely the same as that employed by the United States Supreme Court in its review of capital punishment cases. Illustrative of the Court’s exercise of the review function is Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
******
It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence “review.” That fact is obviously appreciated by the United States Supreme Court, for it very carefully differentiated the sentence “review” process of appellate courts from the sentence “imposition” function of trial judges in Proffitt and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
Brown v. Wainwright, 392 So.2d at 1332-33. We view the court’s statement in Brown that such material would be irrelevant to its ultimate decision in these cases correct as a description of its function and as a state-' ment of law. Of course, review of the records in other cases is necessarily involved in achieving the United States Supreme Court’s requirement of consistency and proportionality.
Specifically we reject the claim for three reasons. First, there is not an iota of evidence in this record to indicate the Florida Supreme Court viewed any extra-record materials in affirming petitioner’s conviction and sentence. The court’s reviewing such information in connection with death row inmates other than Ford would not render his death sentence unconstitutional. Thus, discovery on this issue, based solely on Ford’s bare, unsupported allegations, would be nothing more than a fishing expedition in which it would be necessary for him to show that in his case the court received, viewed and relied on the information. Since the latter could not be shown in the face of Brown v. Wainwright, we affirm the district court’s refusal to permit Ford to launch such a discovery expedition.
Second, there is absolutely no indication what material could have been received by the court which was prejudicial. By the specific description of the information set forth in his habeas corpus petition, Ford presumably knows something of the nature of the materials allegedly viewed. He made no effort whatsoever to demonstrate those materials were harmful to his case.
Third, in the face of petitioner’s unsupported allegations to the contrary, we accord a presumption of correctness to the Florida Supreme Court’s statement that its members properly perform their procedural appellate function in reviewing death sentences. See 28 U.S.C.A. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). In the context of a federal collateral attack on a state criminal conviction, comity and federalism demand no less. As the highest court in the state, the Florida Supreme Court’s interpretation of its procedural role is the law of the state and we do not question it. See Stephens v. Zant, 631 F.2d at 405-06.
These conclusions do not reflect the view that any court, including an appellate court, should review material extraneous to the record. We do not condone such a practice.
Conclusion
The Court has discussed above the seven issues as framed by petitioner in his brief. Although not required to do so, because of the now usual practice of challenging counsel’s effectiveness in later proceedings, we have examined every issue asserted in the petition for writ of habeas corpus. These issues were set forth by headings in the pleadings as follows:
Grounds for Habeas Corpus Relief
A. Denial of Right to Confront Witnesses
B. Non-disclosure of Exculpatory Evidence
C. Denial of Right to Assistance of Counsel
D. Witherspoon Violation of Petitioner’s Right to Trial by Fair and Impartial Jury
E. Sentencing Phase Instructions to the Jury: Permitting the Arbitrary, Unguided Imposition of the Death Penalty
F. Unconstitutional Shifting of the Burden of Proof at the Penalty Phase
G. Review by the Florida Supreme Court: Failure to Set Aside Death Sentence Despite the Substantial Erosion of the Basis for the Death Sentence
H. Review by the Florida Supreme Court: Failure to Assure the Imposition
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_respond2_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 second 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.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS and United Transportation Union, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Missouri Pacific Railroad Company and Louisville and Nashville Railroad Company, Intervenors.
No. 82-1944.
United States Court of Appeals, District of Columbia Circuit.
Argued June 2, 1983.
Decided Jan. 9, 1987.
Harold A. Ross, Cleveland, Ohio, and Gordon P. MacDougall, Washington, D.C., for petitioners.
Timm L. Abendroth, Atty., I.C.C., with whom John Broadley, General Counsel and Henri F. Rush, Associate General Counsel, I.C.C., Washington, D.C., were on the brief, for respondent I.C.C. John J. Powers, III, and Mark C. Del Bianco, Attys., Dept, of Justice, Washington, D.C., entered appearances for respondent United States of America.
R. Lyle Key, Jr., Louisville, Ky., for intervenor Louisville and Nashville R. Co.
Nina K. Wuestling, St. Louis, Mo., was on the brief for intervenor Missouri Pacific R. Co. Michael Thompson, St. Louis, Mo., also entered an appearance for Missouri Pacific R. Co.
Before WALD, Chief Judge, ROBINSON, Circuit Judge, and WRIGHT, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Presented for our review are two orders of the Interstate Commerce Commission dismissing complaints by the Brotherhood of Locomotive Engineers (the Brotherhood) and the United Transportation Union (United) against the Louisville and Nashville Railroad Company (L & N) and the Missouri Pacific Railroad Company (MoPac). These orders endeavored to resolve a controversy arising in the wake of an earlier decision of the Commission awarding L & N trackage rights over a segment of a neighboring railroad’s line and authorization to construct a short connecting track to that line. The controversy had become full-blown when L & N complemented its exercise of these powers with a consolidation of some of its freight-yard operations with those of MoPac. The current contest centers on the proper interpretation of labor conditions imposed by the Commission for the protection of employees at the consolidated yard. We affirm the Commission’s disposition of the dispute.
I. Background
A. The Grant of Trackage Rights to L & N
L & N operated over two somewhat parallel lines between Chicago, Illinois, and the Kentucky area. Prior to 1981, L & N maintained freight classification yards on each line, one at South Hammond, Indiana, and the other approximately six miles away at Yard Center near Dolton, Illinois. L&N was sole owner of South Hammond Yard and shared ownership of Yard Center with MoPac.
In 1975, L&N decided to eliminate the extra expense of duplicate yard facilities by consolidating classification operations at Yard Center. To this end, it sought authority from the Commission to acquire trackage rights over 5.6 miles of the Grand Trunk Western Railroad Company’s line between Munster, Indiana and Thornton Junction, Illinois, and to construct a connecting track to the Grand Trunk Western line.
In 1979, the Commission awarded L&N the requested trackage and construction rights. The Commission noted that L & N’s project would rid it of the costs attributable to the duplication of classification facilities by “consolidating two freight yards which are 6 miles apart[,] and could result in more efficient and economic operations.” The Commission found that the overall benefits, environmental as well as operational, of combined operations at Yard Center outweighed any adverse environmental effect on the surrounding area. The Commission concluded, then, “that, subject to labor protective conditions, [L & N’s] applications are consistent with the public interest.” The Commission’s order identified the N & W labor provisions as the appropriate means for protecting labor interests in this transaction. The Seventh Circuit reviewed and affirmed the Commission’s decision.
In 1980, L & N and MoPac notified their employees that South Hammond Yard and Yard Center classification operations would be merged at Yard Center. Thereafter, the unions and the railroads entered into negotiations envisioning an agreement specifying the treatment to be accorded employees there. These efforts failed, however, whereupon the railroads requested the National Mediation Board to appoint an arbitrator in accordance with the N & W conditions. In 1981, while arbitration was pending,. L & N completed the yard consolidation and the litigation now before us commenced.
B. The Administrative Proceedings in the Present Cases
The Brotherhood first registered a protest with the Commission. Its complaint averred that the N & W conditions were transgressed by L & N’s plan to transfer employees to MoPac’s payroll, to require employees to relocate, and to subject employees to MoPac’s collective bargaining agreements and seniority lists. The Brotherhood called upon the Commission to restrain the railroads from consummating the trackage-rights and construction proposals until the alleged violations were eliminated by mutual agreement.
In a second administrative proceeding subsequently initiated, United contended that the Commission’s 1979 order did not authorize L & N to transfer classification operations from South Hammond Yard to Yard Center. United attempts to bolster this position by citing the fact that the Commission imposed the N & W conditions in that order — conditions which, in United’s view, are inapposite to yard consolidations. United further argued to the Commission that the labor provisions applicable to such consolidations are the more protective “New York Dock” or “Washington Job Agreement” conditions, and that accordingly the notice given employees of the intended transfer of operations and the transfer itself were invalid.
In response to the unions’ complaints, both L & N and MoPac claimed that the Commission’s 1979 order permitted a relocation of employees as part of the project. The railroads further contended that employees had not been hurt by the consolidation of operations, and that the relief sought by the unions would not be appropriate because the arbitral procedures set forth in the N & W conditions were then being pursued.
The Commission dismissed the unions’ complaints in two separate orders. It found that the yard consolidation was a part of the arrangement it had approved in 1979, that the N & W conditions applied, and that the unions had not demonstrated any resulting harm to employees that could not be later remediated. Particularly since the Commission had decided in 1979 to allow expeditious achievement of L & N’s goals, it deemed an interruption of the process an undue intrusion on L & N’s operations and thus a step contrary to the public interest. The Commission pointed out that trackage-rights acquisitions can involve employee reassignments and maintained that the N & W conditions establish arbitration as the exclusive means of resolving disputes in connection therewith. The unions then came to this court for review of those orders.
II. The Consolidation op Yards and the Appropriate Protective Conditions
The unions contend that the Commission’s 1979 decision in L & N Trackage Rights did not empower the railroads to transfer South Hammond Yard freight classification operations to Yard Center. The unions refer us to the language of the order culminating that litigation, which specifically awarded L & N trackage rights over a 5.6-mile segment of Grand Trunk Western Railroad’s mainline between Munster and Thornton Junction, and authorized L & N to construct and utilize a connecting track at Munster, without express mention of any yard consolidation. On the premise that the N & W conditions are not suitable for such consolidations, United adds that the order's imposition of those conditions is further indication that the Commission did not sanction the amalgamation of classification operations at Yard Center.
This reading of the order completely ignores a number of features conspicuous in and fundamental to the Commission’s 1979 action. The unmistakable purpose of L & N’s quest for trackage and construction rights was to enable it to eliminate the costly duplicate facilities at South Hammond Yard by merging that facility’s operations into those at Yard Center. Upon receipt of L & N’s trackage rights and construction applications, the Commission notified interested parties that “[t]hese proposals would allow L & N’s planned elimination of its South Hammond, Ind., marshalling yard and consolidation of classification activities at Yard Center, 111.” The Commission’s environmental impact statement repeated that announcement, and proceeded to examine the environmental consequences of permitting that consolidation. In its decision granting L & N’s applications, the Commission declared that “the proposal will allow L & N to consolidate switching facilities at Yard Center,” and devoted the bulk of its discussion to the environmental issue posed by consolidation. We cannot understand how there could be any doubt as to the inclusion of consolidation of yard operations within the compass of the Commission’s deliberations and decision.
Nor does the Commission’s imposition of the N &W conditions, instead of the New York Dock conditions, support the extrapolation United attempts. Nowhere did the Commission suggest that it made this choice because it did not intend to approve the consolidation of yard activities; indeed, the Commission’s explicit language hardly leaves room for a contrary inference. Nor can we accept the unions’ argument that the N & W conditions were inappropriate in the situation at hand. The Commission’s statutory responsibility, upon approval of L & N’s requests, was “to provide a fair arrangement for employees who are affected by the transaction,” and we have heretofore held that ordinarily the N & W conditions do that well enough in trackage-rights cases. While we recognized that a particular grant of trackage rights might so threaten employees as to demand greater protection, we left identification of such instances to the Commission’s discretion, and the unions are not in position to claim an unwarranted exercise of discretion here. In their respective complaints to the Commission, the unions concentrated their attack on the asserted lack of authorization to consolidate classification operations at Yard Center and on alleged violations of the N & W conditions; they did not insist that the exigencies of the consolidation required a heightened degree of employee protection. It is not incumbent upon us to consider whether the Commission abused discretion which it was never pressed to invoke.
III. The Effects of the N & W Conditions
The Brotherhood characterizes as unlawful several consequences of the merger of L & N’s South Hammond Yard operations with operations at Yard Center. L & N employees at South Hammond Yard were transferred to MoPac’s employ at • Yard Center. L & N’s seniority rosters for the transferred employees were integrated into the seniority rosters for MoPac employees there. Collective bargaining agreements secured by the transferred employees at South Hammond Yard, as well as protective conditions derived from a prior merger with another railroad, the Brotherhood claims, were abrogated along the way. The Brotherhood charges that these activities violated both the N & W conditions and the Interstate Commerce Act. The Brotherhood argues that the yard consolidation should not have been permitted to go forward until L & N and the unions reached an agreement on these subjects, and that the Commission itself should have composed their differences instead of remitting them to arbitration. We cannot accept these claims.
The statute requiring imposition of labor protective conditions upon Commission authorization of designated transactions also prohibits any resultant worsening of the position of affected employees for a period of up to four years. Consonantly, the N & W conditions expressly preserve all employee rights and benefits under applicable laws and existing collective bargaining agreements until changed by new statutes or future agreements. Since a trackage-rights transaction may involve reassignment or even dismissal of some employees, the N & W conditions address these consequences and assure that employees facing them will receive their statutory due. Retained employees are guaranteed the rates of pay, rules, working conditions, pensions and all other rights inuring under applicable statutes, collective bargaining agreements, job-security conditions and other protective arrangements. These employees also become entitled to moving expenses and reimbursement for losses from sales or other dispositions of their homes when they are required to change their places of residence because of changes in the site of their employment. Displaced and dismissed employees are granted monthly allowances that many continue for as much as six years, and to fringe benefits for as long as retained and furloughed employees receive them. In conferring this panoply of benefits, we have held, the N & W conditions satisfy the statutory mandates of fair protection and adequate safeguards for employees in the situations to which those conditions apply.
As the Commission acknowledged, the consolidation of freight-classification operations at Yard Center may have produced dislocations of the kind alleged by the Brotherhood. It does not follow, however, either that the underlying transaction must be stymied until an implementing agreement between the railroads and their unions can be reached, or that the Commission itself must adjudicate issues upon which the parties cannot come to terms. The N & W provisions specify that either the railroad or the union may request and compel negotiations seeking an agreement respecting the applicability of those provisions to the transaction proposed, and that, should the negotiations fail, either party may submit the dispute for adjustment by a referee, whose decision will “be final, binding, and conclusive.” With only narrow exceptions, the N & W conditions require arbitration by a committee of “any dispute” regarding “the interpretation, application or enforcement of any provision of” those conditions, and likewise make the arbitral decision “final, binding, and conclusive.” Equally importantly, the N & W conditions expressly authorize consummation of the underlying transaction pending negotiations and arbitration, subject to an obligation on the railroad to thereafter make employees whole.
IV. Conclusion
These considerations the Commission fully recognized. Indeed, they formed the core of the Commission’s decisions in favor of the railroads. The Commission properly viewed the N & W conditions as the framework within which the unions’ grievances were to be examined and any redress measured, and the N & W arbitration procedures as the methodology by which disputes over the interpretation and application of the N & W conditions were to be analyzed and resolved. And the Commission correctly concluded that the railroads need not delay consummation of the yard-consolidation proposal pending the completion of the arbitral process.
In these circumstances, the Commission perceived no basis for affording relief to the unions, and consequently dismissed their complaints. For the reasons we have explained, we find no fault in these dispositions. The orders under review are accordingly
Affirmed.
. At classifications yards, railroads engage in switching operations to add or separate cars to or from trains, in order to make up trains or change their composition.
. See Brief for Respondent Interstate Commerce Commission at 7; Louisville & N.R.R., 334 I.C.C. 273 (1968) (L & N’s purchase of Chicago & E.I. Railroad Company); Louisville & N.R.R., 338 I.C.C. 134 (1970) (merger with Monon Railroad).
. See 49 U.S.C. § 11343(a)(6) (1982). Trackage rights are in the nature of licenses permitting one carrier to operate over the right-of-way of another. See Chicago, R.I. & P.R.R. v. Chicago, B. & Q.R.R., 437 F.2d 6, 10 (7th Cir.), cert. denied, 402 U.S. 996, 91 S.Ct. 2173, 29 L.Ed.2d 161 (1971).
. See 49 U.S.C. § 10901 (1982).
. Louisville & N.R.R., 360 I.C.C. 115 (1979), aff’d mem. sub nom. Illinois v. ICC, 622 F.2d 591 (7th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 128 (1980) [hereafter cited as L & N Trackage Rights].
. Id. at 118 (footnotes omitted).
. Id. at 119.
. The Commission is statutorily required, upon approval of activity of this type, to designate a fair arrangement for the protection of employees. 49 U.S.C. § 11347 (Supp. III 1985). For discussions of the history of labor protective conditions under the interstate commerce laws, see Brotherhood of Locomotive Eng'rs v. ICC, 245 U.S.App.D.C. 311, 313-314, 761 F.2d 714, 716-718 (1985), cert. granted, — U.S. —, 106 S.Ct. 1457, 89 L.Ed.2d 714 (1986); Railway Labor Executives’ Ass’n v. United States, 219 U.S.App.D.C. 23, 25-26, 675 F.2d 1248, 1250-1251 (1982); New York Dock Ry. v. United States, 609 F.2d 83, 86-90 (2d Cir.1979).
. L & N Trackage Rights, supra note 5, 360 I.C.C. at 120.
. See Norfolk & W. Ry., 354 I.C.C. 605, 610 (1978), as modified by Mendocino Coast Ry., 360 I.C.C. 653 (1980), aff'd sub nom. Railway Labor Executives’ Ass’n v. United States, 219 U.S.App.D.C. 23, 675 F.2d 1248 (1982). The conditions, which appear as an appendix to Norfolk & W. Ry., supra, 354 I.C.C. at 610, will hereinafter be referred to as the N & W conditions. See also Railway Labor Executives’ Ass’n v. United States, supra note 8, 219 U.S.App.D.C. at 29, 675 F.2d at 1254 (holding N & W conditions consistent with statutory requirements).
. L & N Trackage Rights, supra note 5, 360 I.C.C. at 122.
. Illinois v. ICC, supra note 5.
. The notice is reproduced in the Joint Appendix (J.App.) 16-18. This notice was required by art. I, § 4 of the N & W conditions. See Norfolk & W. Ry., supra note 10, 354 I.C.C. at 610.
. See Norfolk & W. Ry., supra note 10, 354 I.C.C. at 610-611.
. Complaint of Brotherhood of Locomotive Engineers ¶ 17, Brotherhood of Locomotive Eng’rs v. Louisville & N.R.R., Fin. No. 29733 (I.C.C.) (served Sept. 18, 1981) [hereinafter cited as Brotherhood Complaint], J.App. 11.
. Id. at 13-14 (prayers for relief), J.App. 13-14.
. Complaint of United Transportation Union § IV, United Transp. Union v. Louisville & N.R.R., Fin. No. 29786 (I.C.C.) (served Dec. 3, 1981) [hereinafter cited as United Complaint], J. App. 151-152.
. See notes 10-11 supra and accompanying text.
. Brief for United Transportation Union at 19. This point was not made before the Commission. See text infra at notes 46-48.
. In New Orleans Union Passenger Terminal, 282 I.C.C. 271 (1952), the Commission formulated what became known as the "New Orleans” conditions. These were superseded in 1979 by the "New York Dock" conditions, which apply corporate mergers, consolidations and acquisition of control. See New York Dock Ry., 360 I.C.C. 60, 84, aff’d, 609 F.2d 83 (2d Cir.1979). The New York Dock conditions differ from the N & W conditions in that they call for a longer notice period before the effective date of the transaction, and forbid consummation thereof until the railroad and its employees reach agreement on employee selection and assignment. The reason for the difference in the levels of employee protection is the Commission’s belief that since transactions other than corporate mergers, consolidations and acquisitions of control — for example, trackage rights and leases— are less disruptive and have less significant impact on employee rights, the public interest is better served by postponing vindication for ultimately victorious employees than by delaying improvements and efficiencies in rail service. Mendocino Coast Ry., supra note 10, 360 I.C.C. at 662-663; see note 43 infra.
. The Washington Job Protection Agreement is reproduced in Chesapeake & O. Ry. v. United States, 187 U.S.App.D.C. 241, 257-263, 571 F.2d 1190, 1206-1212 (1977).
. United Complaint, supra note 17, § VIII, J.App. 153.
. Answer of Louisville & Nashville Railroad Company § IV, United Transp. Union v. Louisville & N.R.R., Fin. No. 29786 (I.C.C.) (served Dec. 22, 1981) [hereinafter cited as L & N Answer to United], J.App. 176-177; Answer of Missouri Pacific Railroad Company § IV, United Transp. Union v. Louisville & N.R.R., Fin. No. 29786 (I.C.C.) (filed Dec. 11, 1981) [hereinafter cited as MoPac Answer to United], J.App. 169.
. MoPac Answer to United, supra note 23, § VI, J.App. 170; L & N Answer to United, supra note 23, § VI, J.App. 178; Answer of Louisville & Nashville Railroad Company at 6 (conclusion), Brotherhood of Locomotive Eng’rs v. Louisville & N.R.R., Fin. No. 29733 (I.C.C.) (filed Oct. 7, 1981) [hereinafter referred to as L & N Answer to Brotherhood], J.App. 26; Answer of Missouri Pacific Railroad Company ¶20, Brotherhood of Locomotive Eng’rs v. Louisville & N.R.R., Fin. No. 29733 (filed Oct. 6, 1981) [hereinafter cited as MoPac Answer to Brotherhood], J.App. 40.
. L & N Answer to Brotherhood, supra note 24, at 7 (conclusion), J.App. 27; MoPac Answer to Brotherhood, supra note 24, ¶ 7, J.App. 40.
. Brotherhood of Locomotive Eng’rs v. Louisville & N.R.R., Fin. No. 29733 (I.C.C. Jan. 4, 1982) (decision and order) [hereinafter cited as Brotherhood /], J.App. 107; Brotherhood of Locomotive Eng’rs v. ICC, Fin. No. 29733 (I.C.C. June 10, 1982) (decision and order) [hereinafter cited as Brotherhood II], J.App. 142.
. Brotherhood II, supra note 26, at 2, J.App. 143 (“[t]he Commission permitted L & N... to combine switching activities at... Yard Center”); id. at 4, J.App. 145 (‘‘[i]n L & N Trackage Rights, we discussed the benefits resulting from the proposal including more efficient and economic operations as well as combining freight yards”); id. at 4 n. 2, J.App. 145 ("[t]he Commission at pages 116 and 118 of L & N Trackage Rights recognized the combining of operations at Yard Center, and its results”).
. Brotherhood II, supra note 26, at 5, J.App. 146 ("[t]he combining of switching and classification operations at Yard Center is not a ‘consolidation’ within the meaning of 49 U.S.C. [§] 11343, and did not require a different level of employee protection. These are only operational changes and not the type of ‘railroad consolidations' contemplated by the statute”) (citation omitted).
. Brotherhood I, supra note 26, at 4, J.App. 110 (“the kinds of employee impacts described are capable of being remedied through monetary compensation or adjustment of seniority lists”).
. Brotherhood I, supra note 26, at 4, J.App. 110.
. The Commission made this clear in both of its decisions. In the first it stated:
We recognize that employees may be dismissed or reassigned as a consequence of a trackage rights transaction. The very kinds of employee impacts described in this proceeding were considered in the N & W conditions. Where the railroads and employee representatives are unable to reach an accord on these matters the conditions provide for arbitration procedures. The conditions also provide that the railroads may consummate a transaction... prior to the time that an implementation agreement is reached through arbitration, provided that, adversely affected employees are ultimately made whole.
Brotherhood I, supra note 26, at 3, J.App. 109. In its second decision, the Commission said:
The complaints here, including transfer of L & N employees to MoPac, merging of seniority lists, and application of MoPac’s collective bargaining agreement to all employees, may have resulted from the transaction in L & N Trackage Rights, and thus fall within the scope of the N & W conditions. Under these conditions, a railroad, after notice to its employees, can consummate a transaction before the parties negotiate an implementing agreement or reach one through arbitration. However, adversely affected employees are required to be made whole. The arbitration procedure comports with Federal policy favoring arbitration for settling labor disputes. Because the N & W conditions specifically prescribe arbitration in lieu of a Commission proceeding as the remedy for employee complaints, the Commission no longer has authority to involve itself in a dispute arising out of the protective conditions.
Brotherhood II, supra note 26, at 5-6, J.App. 146-147 (citation omitted).
. Supra note 5.
. 360 I.C.C. at 122.
. See text supra at notes 17-21. But see notes 41-48 infra and accompanying text.
. Notice to the Parties, Louisville & N.R.R., Fin. No. 27972 (I.C.C.) (filed Dec. 16, 1977), Appendix to Brief for United Transportation Union (U.App.) at 1a.
. Final Environmental Impact Statement, Louisville & N.R.R., Fin. No. 27972 (I.C.C.) (filed Feb. 3, 1978), U.App. at 3a.
. Id., U.App. at 3a.
. L & N Trackage Rights, supra note 5, 360 I.C.C. at 115; see also id. at 118 n. 8.
. Id. at 118-120.
. See note 35 supra and accompanying text.
. We are mindful that L & N Trackage Rights, in which the Commission selected the N & W conditions for the L & N-MoPac yard consolidation, won judicial approval, see text supra at note 12, and may have long since become preclusive on that point. That is a matter we need not address since we may rest our decision on other grounds.
. The full text of the statute is as follows:
When a rail carrier is involved in a transaction for which approval is sought under [49 U.S.C. §§ 11344, 11345 or 11346], the Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interests of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 405 of the Rail Passenger Service Act (45 U.S.C. 565). Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission (or if an employee was employed for a lesser period of time by the carrier before the action become effective, for that lesser period).
49 U.S.C. § 11347 (Supp. III 1985).
. Brotherhood of Locomotive Eng’rs v. ICC, supra note 8, 245 U.S.App.D.C. at 315, 761 F.2d at 718; Railway Labor Executives' Ass’n v. United States, supra note 8, 219 U.S.App.D.C. at 31, 675 F.2d at 1256; see also New York Dock Ry. v. United States, supra note 8, 609 F.2d at 101.
. Railway Labor Executives' Ass’n v. United States, supra note 8, 219 U.S.App.D.C. at 31, 675 F.2d at 1256. In contrast, a higher grade of protection follows automatically in certain kinds of cases. When Commission approval is sought for acquisition of trackage rights in conjunction with a “consolidation or merger of... properties or franchises,” see 49 U.S.C. § 11343(a)(1) (1982), the Commission affords the maximum employee protection by imposing the New York Dock conditions instead of the N & W conditions traditionally applied to track-age-rights awards. See note 43 supra. It is clear, however, that L & N’s planned consolidation of its own operations at South Hammond Yard with those at another facility owned jointly with another railroad is not a transaction intercepted by the statute. Section 11343(a)(1) speaks to “consolidation or merger of the properties or franchises of at least 2 carriers into one corporation for the ownership, management, and operation of the previously separately owned properties," and nothing of that magnitude was envisioned here. Rather, as the Commission pointed out, L & N's proposal involved “only operational changes and not the type of 'railroad consolidations' contemplated by the statute.” Brotherhood II, supra note 26, at 5, J.App. 146.
The Brotherhood says, however, that the yard consolidation was a “coordination” within the meaning of the. Washington Job Protective Agreement of 1936, supra note 21, which by § 2(a) is defined as "joint action by two or more carriers whereby they unify, consolidate, merge or pool in whole or in part their separate railroad facilities or any of the operations or services previously performed by them through separate facilities.” Brief for Brotherhood of Locomotive Engineers at 20. It would suffice that the Brotherhood did not make this claim in its complaint to the Commission. See note 48 infra and accompanying text. Moreover, as we later discuss, the question whether that or any other agreement was infringed by L & N’s transfer of classification operations to Yard Center is a matter for arbitration under the N & W conditions. See Part III infra.
. Railway Labor Executives’ Ass’n v. United States, supra note 8, 675 F.2d at 1276.
. See Brotherhood Complaint, supra note 15, ¶ 15, J.App. 10-11; United Complaint, supra note 17, § IV, J.App. 151-152.
. See Brotherhood Complaint, supra note 15, ¶¶ 16 — 17, J.App. 11; United Complaint, supra note 17, § VIII, J.App. 153.
. It is well settled that a litigant must present a contention for a ruling at the administrative level before it will be considered by a reviewing court. Blanco Oil Co. v. FERC, 194 U.S.App.D.C. 233, 247 & n. 70, 598 F.2d 152, 166 & n. 70 (1979); Quick v. Martin, 130 U.S.App.D.C. 83, 86, 397 F.2d 644, 647 (1968); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 413, 379 F.2d 453, 467 (1967); California Interstate Tel. Co. v. FCC, 117 U.S.App.D.C. 255, 258-259, 328 F.2d 556, 559-560 (1964).
. The references are to ¶¶ 2 and 3 of Article I of the N & W conditions, which provide:
2. The rates of pay, rules, working conditions and all collective bargaining and other rights, privileges and benefits (including continuation of pension rights and benefits) of railroads’ employees under applicable and/or existing collective bargaining agreements or otherwise shall be preserved unless changed by future collective bargaining agreements or applicable statutes.
3. Nothing in [these conditions] shall be construed as depriving any employee of any rights or benefits or eliminating any obligations which such employee may have under any existing job security or other protective conditions or arrangements; provided, that there shall be no duplication or pyramiding of benefits to any employees, and, provided further, that the benefits under [these conditions], or any other arrangement, shall be construed to include the conditions, responsibilities, and obligations accompanying such benefits.
N & W conditions, supra note 10, art. I, §§ 2-3.
. See 49 U.S.C. § 11347 (Supp. III 1985), quoted supra note 42.
. See id.
. See note 49 supra.
. See Brotherhood I, supra note 26, at 3, J.App. 109; Brotherhood II, supra note 26, at 5, J.App. 146.
. N & W conditions, supra note 10, art. I, ¶¶ 2-3, quoted supra note 49.
. Id. art. I, ¶ 9.
. Id. art. I, ¶ 12(a)(i), (ii).
. There are exceptions to entitlements for moving expenses and loss-reimbursement. See id. art. I, ¶¶ 9, 12(b), 12(c).
. A "displaced” employee is "an employee of the railroads who, as a result of a transaction is placed in a worse position with respect to his compensation and rules governing his working conditions.” Id. art. I, ¶ 1(b).
. A "dismissed” employee is "an employee of the railroads who, as a result of a transaction is deprived of employment with the railroads because of the abolition of his position or the loss thereof as the result of the exercise of seniority rights by an employee whose position is abolished as a result of a transaction.” Id. art. I, ¶ 1(c).
. Id. art I, ¶¶ 5-6.
. Id. art. I, ¶ 1(d). However, “[a] dismissed employee entitled to protection..., may, at his option within 7 days of his dismissal, resign and (in lieu of all other benefits and protections provided in [these conditions]) accept a lump sum payment computed in accordance... with the Washington Job Protection Agreement of May, 1936.” Id. art. I, ¶ 7.
. Id. art. I ¶ 8.
. Railway Labor Executives’ Ass'n v. United States, supra note 8, 219 U.S.App.D.C. at 31, 675 F.2d at 1256.
. Brotherhood II, supra note 26, at 5, J.App. 146.
. N & W conditions, supra note 10, art. I, ¶ 4.
. Id.
. Id. art. I, ¶ 4(c).
. Id. art. I, ¶ 11.
. Id. art. I, ¶ 11(c).
. Notwithstanding any of the foregoing provisions of this section, at the completion of the twenty- (20-) day notice period the railroads may proceed with the transaction, provided that all employees affected (displaced, dismissed, rearranged, et cetera) shall be provided with all of the rights and benefits of [these conditions] from the time they are affected through to the expiration of the seventy-fifth (75th) day following the date of notice of the intended transaction____ If the above proceeding results in displacement, dismissal, rearrangement, et cetera other than as provided by the railroads at the time of the transaction pending the outcome of such proceedings, all employees affected by the transaction during the pendency of such proceedings shall be made whole.
Id. art. I, ¶ 4.
. See Brotherhood I, supra note 26, at 3-4, J.App. 109-110; Brotherhood II, supra note 26, at 5-6, J.App. 146-147.
. See Brotherhood I, supra note 26, at 4, J.App. 110; Brotherhood II, supra note 26, at 6, J.App. 147.
. See Brotherhood I, supra note 26, at
Question: This question concerns the second 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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. 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.
Square COBB, Plaintiff-Appellant, v. SUN PAPERS, INC., Defendant-Appellee.
No. 80-7955.
United States Court of Appeals, Eleventh Circuit.
April 12, 1982.
Rehearing and Rehearing En Banc Denied June 10, 1982.
Allan Kanner, Philadelphia, Pa. (Court-appointed), for plaintiff-appellant.
William C. Wood, Jr., Birmingham, Ala., for defendant-appellee.
Before RONEY and FAY, Circuit Judges, and EDENFIELD , District Judge.
The Honorable Newell Edenfield, United States District Judge for the Northern District of Georgia, sitting by designation. This case is being decided by a quorum due to the death of Judge Edenfield on December 27, 1981. 28 U.S.C. § 46(d).
RONEY, Circuit Judge:
Plaintiff Square Cobb appeals the dismissal of his action alleging race discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. The district court found Cobb was an independent contractor and hence not protected by Title VII. The two issues on appeal are whether the district court used the proper test to determine whether plaintiff was an employee or an independent contractor, and if so, whether the correct finding was made under that test. Holding the district court right on both issues, we affirm.
Background
Square Cobb worked at Sun Papers, Inc. as a janitor/custodian for approximately six months from May 1977 until November 24, 1977, when he was terminated. He filed a Title VII action on August 17, 1979. The action was dismissed by the district court on October 23, 1979. On appeal the Fifth Circuit vacated that dismissal order on July 28, 1980 and remanded the case for an evidentiary hearing.
On remand, the district court held a hearing pursuant to Rule 42(b), Fed.R.Civ.P., on the severed issue of plaintiff’s status as employee or independent contractor. The court made a number of findings of fact, some of which supported the view that plaintiff was an employee of Sun Papers, and others which indicated he was an independent contractor. In its conclusions of law the court applied the common law approach for determining employee/independent contractor status, found that Cobb was an independent contractor, and held that he was not subject to Title VII’s protections.
The Test
On appeal, plaintiff argues that the trial court erroneously applied the common law test of employee status. He urges the Court to adopt the approach used in Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299-300 (5th Cir. 1975), which applied an “economic realities test” under which persons are considered employees if they “are dependent upon the business to which they render service.” Mednick, supra, quoting Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947). Although Mednick was a case under the Fair Labor Standards Act, 29 U.S. G.A. § 201 et seq., plaintiff argues the statement made in Mednick that “[t]he terms ‘independent contractor,’ ‘employee,’ and ‘employer’ are not to be construed in their common law senses when used in federal social welfare legislation,” 508 F.2d at 299, supports the proposition that this Court should apply an equally expansive definition to the term “employee” in cases under Title VII.
Defendant Sun Papers asserts the district court was correct in following the decision in Smith v. Dutra Trucking Co., 410 F.Supp. 513 (N.D.Cal.1976), aff’d mem., 580 F.2d 1054 (9th Cir. 1978), which specifically rejected the Mednick approach in a Title VII case and held that while “Title VII is not to be construed narrowly, there is nothing in the legislative history of the Act to indicate a Congressional intent to construe the term ‘employee’ in any manner other than in accordance with common-law agency principles.” 410 F.Supp. at 516. This traditional test for distinguishing between employees and independent contractors is described as the “ ‘right to control’ reserved by the person for whom the work is being done, ‘not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished.’ ” Id. (citation omitted).
This Court has held that employee status under Title VII is a question of federal law, “to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand.” Calderon v. Martin County, 639 F.2d 271, 272-73 (5th Cir. 1981). The Court has not yet decided, however, whether federal law requires a common law test of employee/independent contractor status or an economic realities test.
Title VII defines “employee” to mean “an individual employed by an employer .... ” 42 U.S.C.A. § 2000e(f). There is no further elaboration in the statute, nor is there any evidence in the legislative history as to how expansively that definition is meant to be read. From this, the Court may well assume that Congress intended the term “employee” to be given its common, everyday meaning, because “legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944).
Federal case law on this question is somewhat unclear. Some courts have applied the common law principles spoken of in Dutra Trucking. See, e.g., Takeall v. Werd, Inc., 23 FEP 947 (M.D.Fla.1979); Dumas v. Town of Mt. Vernon, 436 F.Supp. 866 (S.D.Ala.1977), modified on other grounds, 612 F.2d 974 (5th Cir. 1980). See also Gutierrez v. Aero Mayflower Transit Co., 22 FEP 447 (N.D.Cal.1979). Others have attempted to give a more “liberal” construction to the term “employee” under Title VII. See Unger v. Consolidated Foods Corp., 657 F.2d 909 (7th Cir. 1981). Some courts, although suggesting an economic realities test, have merely followed a common law type of analysis in which the employer’s right to control the employee is the most important factor rather than the determinative factor. As the D. C. Circuit explained in Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979), when it articulated a test requiring an analysis of the economic realities of the work relationship:
This test calls for application of general principles of the law of agency to undisputed or established facts. Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer’s right to control the “means and manner” of the worker’s performance is the most important factor to review here, as it is at common law .... If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.
613 F.2d at 831-32. The court then went on to list additional factors which are relevant to the consideration of this issue:
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or-the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer"; (9) whether the worker accumulates retirement benefits; (10) whether the “employer” pays social security taxes; and (11) the intention of the parties.
Id. at 832. This approach has been adopted by the Ninth Circuit which affirmed the district court’s ruling in Dutra Trucking. See Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n.5 (9th Cir. 1980).
No court has ever given as expansive an interpretation of the term “employee” in a Title VII case as that given in Mednick. The Ninth Circuit which rejected the Med-nick approach to Title VII cases for a “common law/economic realities” approach, has cited Mednick for support on the employee/independent contractor question in cases under the Fair Labor Standards Act. See Donovan v. Sureway Cleaners, 656 F.2d 1368, 1371 (9th Cir. 1981); Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th Cir. 1979).
The reason for this reluctance of the courts to go as far as Mednick in the Title VII area is that there is no statement in the Act or legislative history of Title VII comparable to one made by Senator Hugo Black (later Justice Black), during the debates on the Fair Labor Standards Act, that the term “employee” in the FLSA was given “the broadest definition that has ever been included in any one act.” 81 Cong.Rec. 7657, quoted in United States v. Rosenwasser, 323 U.S. 360, 363 n.3, 65 S.Ct. 295, 296 n.3, 89 L.Ed. 301 (1945). As one court has stated:
Employment must be distinguished from the independent contractual associations of business entities for the latter are not covered by Title VII. While it would be a desirable goal to eliminate racial discrimination in all business enterprises, it does not appear that Congress intended such a broad objective for Title VII. The emphasis on the word “employment” in the legislative history supports such a conclusion.
Mathis v. Standard Brands Chemical Industries, 10 FEP 295, 297 (N.D.Ga.1975).
We find no indication that Congress intended the words of the statute to have anything but their ordinary meaning as commonly understood. Absent guidance from the Supreme Court, we conclude therefore that the term “employee” in cases under Title VII is to be construed in light of general common law concepts. The analysis of the question in a given case should take into account the economic realities of the situation in the manner done in Spirides and Lutcher. This does not mean, however, that the economic realities with respect to the dependence of the individual on the employment will control. Rather, it is the economic realities of the relationship viewed in light of the common law principles of agency and the right of the employer to control the employee that are determinative. Whether it would be desirable to import the Mednick “dependence test” into the Title VII area, or to include all independent contractors within Title VII coverage for that matter, is a decision for Congress, not the court.
The district court employed the correct common law analysis in deciding the question of whether plaintiff was an employee or an independent contractor.
Employee/Independent Contractor
Plaintiff argues that even under the common law test, the district court erred in ■ concluding that plaintiff was an independent contractor. A review of the record reveals, however, that the choice of tests controls the outcome of this case. Whether the district court’s decision is to be reviewed as a finding of fact, a finding of “ultimate fact,” a mixed question of law and fact, or a conclusion of law, we perceive no reversible error. See Bickel v. Burkhart, 632 F.2d 1251, 1255 n.7 (5th Cir. 1980).
The court found that the evidence on the question was “mixed.” The following facts were found in favor of a determination that appellant was an employee: (1) There was some direction given by the defendant as to certain details of the work to be done; (2) the basic materials and tools used in the work were paid for and furnished by the defendant; (3) there was no written contract with provisions typically found in contracts involving independent contractors; (4) the firm that replaced plaintiff, Associated Cleaning, had a contract in writing that clearly delineated an independent contractor relationship with Sun Papers; and (5) plaintiff did not report his payments from Sun Papers as business income on his 1977 tax returns.
On the other hand, the district court set out basic findings of fact that pointed to a conclusion that plaintiff was an independent contractor:
Among these items would be the fact that Mr. Cobb was not given the exact number of hours that work was to be performed, that rather he was told what work was to be accomplished in the way of cleaning, that he was not told the details of how to perform that job, or by whom it was to be performed, whether by a single individual or by a group of individuals, that the criterion used by the Defendant in connection with this relationship was the quality of the work ultimately performed, that the Defendant did not care and have concern as to who was performing the work, and indeed was aware that Mr. Cobb was having the work performed not only by himself but by other persons. And notwithstanding that, the Defendant did not pay those other persons any amounts of money, looking to Mr. Cobb to handle any such details, including any taxes that might be due to be withheld, that it treated Mr. Cobb as an independent contractor in its accounting materials, paying him on the basis of an accounts payable ledger and not paying him in the way that employees of the company were being paid, that it did not withhold any amounts for taxes, Social Security, or unemployment compensation or the like from the amounts paid to Mr, Cobb, as would have been the case had it treated him as an employee.
That it at the outset of the relationship had discussed through its chairman, Mr. Cook, that it would be up to Mr. Cobb to determine how the work was to be performed, and to be a contractor for this matter, and that indeed after the severance of the relationship with Mr. Cobb it had a similar relationship with Cobb’s successor, and that there was a conversation between Mr. Cobb and the comptroller of the company about the first two weeks or so of this relationship in which it was affirmed that Mr. Cobb was to be and was being treated as an independent contractor, that amounts were not being withheld from payments to him, that taxes were to be accounted for by him, including any withholding of taxes for those who were employed by Mr. Cobb.
The “most critical fact” to the district court was
that Mr. Cobb had this work performed not only by himself but by his wife, at times by his son, and by at least one other person on a regular basis, and that there was no approval by the Defendant of this relationship as such. They had nothing to do with having those persons being employed to do this work, and that their sole interest was in the work product itself, not how it was being done.
The court concluded there was no “supervision” of how the work was to be done and that the direction given was a “typical” way of dealing with an independent contractor.
Finally, the court found that plaintiff in the original presentation of this case in his complaint described himself as self-employed, that he did after this relationship perform and provide janitorial services to at least two other companies, doing so on much the same basis, which I take it to mean that the work was being performed not only by himself but by others, including his wife, but with only himself being paid for the product of those services.
After making these findings the district court, using a common law analysis, held that, on balance, the “totality of the evidence” favored a finding that plaintiff was an independent contractor.
Plaintiff argues the common law analysis of the court did not apply the economic realities orientation of the kind set out in Spirides and Lutcher. It is clear, however, that the district court went beyond the simple right to control issues and weighed all the factors involved in the situation in making its determination. We must affirm this decision of the trial court.
AFFIRMED.
. The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), adopted as precedent the decisions, of the former Fifth Circuit.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES v. DUPIRE.
No. 11268.
Circuit Court of Appeals, Eighth Circuit.
Feb. 21, 1939.
Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Fendall Marbury, Sp. Asst, to Atty. Gen., and Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C.
Lawrence E. Goldman and Frank R. Daley, both of Kansas City, Mo., for appellee.
•Before GARDNER, SANBORN and VAN VALKENBURGH, Circuit Judges.
VAN VALKENBURGH, Circuit Judge.
The appellee, plaintiff below, entered the military service of the United States on May 6, 1918, and was honorably discharged therefrom on August 29, 1918; while in the service he was granted war risk insurance in the amount of $10,000. This policy was permitted to lapse for non-payment of the monthly premium which fell due September 1, 1918. Effective May 1, 1924, he reinstated $5,000 of this term insurance, and, in June, 1927, converted the same into a five year convertible term policy. In 1932 he changed this form of insurance into a full life policy, which contained a total permanent disability provision. Upon the converted contract, premiums were paid up to the date of the trial in February, 1936. Plaintiff’s claim for insurance under the total permanent disability provision was denied by the Insurance Claims Council July 16, 1932. Suit was filed June 25, 1935. The jury returned a verdict in favor of plaintiff in’the sum of $1,265, and the court entered judgment for that amount, “being the accrued installment benefits found to be due to the plaintiff commencing on, from, and after July 1, 1932 to the date of trial”. It was found that the plaintiff became permanently and totally disabled on July 1, 1932.
The government, by its amended answer, at first contended that if plaintiff was suffering from any impairment of mind or body, that disability existed prior to the time his contract of insurance was reinstated, and was, therefore, not 'insured against. That defense however is barred by the incontestable clause of the policy (United States v. Patryas, 7 Cir., 90 F.2d 715; affirmed 303 U.S. 341, 58 S.Ct. 551, 82 L.Ed. 883), and is not urged here in the brief submitted. Therein appellant states, as the question presented, “whether there was any substantial evidence to show that the plaintiff became totally and permanently disabled on July i, 1932”. The error urged is the action of the trial court in overruling the government’s motion for a directed verdict at the close of the evidence.
The plaintiff, a coal miner by occupation, had submitted to an operation for the removal of a growth on his left leg before he entered the military service. During service, while engaged in “scrimmage’ fell into a hole and injured the leg. He was discharged from the service upon a certificate of disability because of this leg condition. After discharge he resumed work until February, 1923, when his leg was amputated. It had begun to swell, and amputation was performed upon diagnosis of sarcoma. From that date the stump of his leg gave him great pain and trouble. He was unable to wear an artificial leg continuously. He worked at times, but was unable to pursue any substantially gainful occupation continuously. This is conceded in appellant’s brief in the following language: “While it was not shown that plaintiff had been regularly and gainfully employed for any substantial periods, he did do some carpenter work and operated to some extent at least two trucks which he owned on different occasions”. he
He developed a highly nervous condition. In his petition he alleges that he became totally and permanently disabled “by reason of amputated leg, chronic neurosis, extreme nervousness, chronic rhinitis, and general debility.” The trial judge took great pains to arrive at a just determination. He postponed passing upon the motion for new trial until the transcript of the evidence could be obtained and examined. In denying the motion, among other things, he said: “The testimony was that his left leg was amputated in the year 1923. At that time, and for a long time previously thereto he had suffered from an inflammation of his nasal passages, technically called rhinitis. The evidence was that he was nervous, and that the inflammation of his nasal passages was a chronic catarrhal condition, and that it wras quite extreme in its symptoms. There was evidence that the amputation of his left leg above the knee, although successful from a surgical standpoint, nevertheless left symptoms which indicated deterioration of bone matter. The evidence was not specific on this question, but the stump of his limb was in a constant state of irritation and extreme nervousness, which manifested itself in jerking of the flesh and causing the plaintiff to fall. At these times lie suffered great pains, etc. This was evidenced, not only from his own testimony, but from his appearance of suffering as observed by witnesses”.
In the government brief counsel say that plaintiff failed to sustain the burden of establishing that he became totally and permanently disabled because “his principal disability was shown to be an amputated left leg, and it has been frequently held that the loss of a leg does not constitute a total permanent disability”. And this is undoubtedly true. Thompson v. United States, 8 Cir., 65 F.2d 897; United States v. Adcock, 6 Cir., 69 F.2d 959; United States v. Mayfield, 10 Cir., 64 F.2d 214; United States v. Weeks, 8 Cir., 62 F.2d 1030; Hanagan v. United States, 7 Cir., 57 F.2d 860.
Appellant’s case, in a nutshell, is thus further stated in its brief: “It is our opinion that the loss of a leg between the knee and ankle in the absence of other complications cannot be regarded as a total and permanent disability”.
This is a fair and correct statement of the law, but does not comport with the situation presented by the record. While the loss of appellee’s leg, and the severe and continuous suffering he has experienced from the condition of the stump, is an important element of the disability pleaded, it is not only the only element, but is attended by other serious complications. It is apparent that his physical condition has gradually and steadily deteriorated until, on the date found, he was totally and permanently incapacitated for following continuously any substantially gainful occupation.
As said by this court in United State v. Rice, 8 Cir., 72 F.2d 676, “whether loss of a leg constitutes ‘total disability,’ within war risk policy, depends upon facts in particular case”. And further: “Decisions in this and other jurisdictions which have been cited by counsel for the government in conceived opposition to this view may be successfully distinguished upon their facts”. Loc.cit. 678. Compare Wood v. United States, D.C., 28 F.2d 771, and United States v. Ford, 10 Cir., 71 F.2d 83. The physical and mental condition of appellee to which witnesses have testified is further convincingly presented in a diagnosis of December 1, 1932, set out in the government brief:
“Diagnosis: Chronic prostatitis; chronic epididymitis, right; atrophic rhinitis with ozena; chronic ethmoiditis ; chronic pharyngitis, moderate and permanent; amputation left femur middle one-third; osteitis end stump of left femur, slight spur formation left femur (sensitive stump) ; borderline mental defective”.
The definitions of these medical terms, based on Gould’s Medical Dictionary (1935), are set out in appellee’s brief and will not be repeated here. It is sufficient to say that the conditions found to exist in combination furnish substantial support for the verdict of the jury. “In determining whether there was any evidence to sustain a verdict for the plaintiff, all facts that the evidence supporting his claim reasonably tends to prove should be assumed as established, and all inferences fairly deducible from them should be drawn in his favor”. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; Asher v. United States, 8 Cir., 63 F.2d 20.
Generally the question of total and permanent disability is for the jury under appropriate instructions. United States v. Crume, 5 Cir., 54 F.2d 556. And the appellate court will not consider the weight of the evidence if it is substantial. Booth v. Gilbert, 8 Cir., 79 F.2d 790.
It appears that appellee continued to do some work, at different times, and made a substantial effort to make a living. He also paid the premiums upon his policy as they matured. We have here no case of a claim presented long after the policy had lapsed. United States v. Rice, 8 Cir., 72 F.2d 676, loc.cit. 677, 678. “Actual performance of work by insured in war risk policy does not necessarily negative permanent and total disability”. United States v. Harris, 4 Cir., 66 F.2d 71.
In our opinion the judgment below should be affirmed and it is so ordered.
A true copy.
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
McNABB v. VIRGINIAN RY. CO.
No. 3226.
■ Circuit Court of Appeals, Fourth Circuit.
Jan. 12, 1932.
Affirmed.
A. A. Lilly, of Charleston, W. Va. (Lilly, Lilly & Warwick and It. G. Lilly, all of Charleston, W. Va., on the brief), for appellant.
John R. Pendleton, of Princeton, W. Va. (Harry C. Ellett, of Princeton, W. Va., on the brief), for appellee.
Before PARKER, NORTHCOTT and SOPER, Circuit Judges.
PER CURIAM.
Willie McNabb, appellant, brought this action of trespass on the ease against the Virginian Railway Company, a corporation, appellee, and against H. Clay Jacobs and R. C. Lambert, in the circuit court of Payette county, W. Va. The cause was subsequently removed to the District Court of the United States for the Southern District of West Virginia) and the defendants H. Clay Jacobs and R. C. Lambert were dismissed as defendants, and, the defendant, Virginian Railway Company, having pleaded not guilty, the issue was tried before a jury in May, 1931.
After the conclusion of the evidence for both the plaintiff and the defendant, the court, upon motion of the defendant, directed the jury to find for the defendant, which was accordingly done. The plaintiff moved to set aside the verdict of the jury, and to grant him a new'trial, which motion the court overruled. Prom that judgment this appeal is taken.
The appellant, who was plaintiff below, was struck by a locomotive of the railway company at a road crossing near Deep-water, Payette county, W. Va. There is evidence on behalf of the railway company that the headlight was burning on the locomotive and that the crossing signals were duly given. Plaintiff and a witness testified that the light was not burning. Assuming, that the evidence was sufficient do carry the ease to the jury on the issue of negligence, we think that plaintiff was unquestionably barred of recovery by his contributory negligence and that verdict was properly directed against him. We think it clear in the light of the evidence that, if plaintiff had looked before stepping in front of the approaching locomotive, he could unquestionably have seen it in timé to have avoided being struck, and his injury is therefore to be attributed to his own negligence in stepping in front of the locomotive without taking' proper precautions. A number of witnesseá on both sides) who had no better view than the plaintiff; testified that they saw the approaching locomotive. In view of the physical conditions disclosed by the other evidence, his testimony that he looked but failed to see>-the locomotive approaching is without probative force and entirely insufficient to form the basis of a verdict in his behalf.
Had the jury returned a verdict for the plaintiff, it would have been the duty of the trial judge in the exercise of a sound judicial discretion to set it aside. It was therefore proper for him to direct a verdict for the defendant. South Carolina Asparagus Growers’ Association v. Southern Railway Co. (C. C. A.) 46 F.(2d) 452, 453, and cases there cited; Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Hetzel v. Kemper, 102 W. Va. 567, 135 S. E. 667.
This rule applies not only in cases where the evidence is undisputed, but also in eases where the evidence is só conclusive in character that reasonable men would not reach different conclusions in regard thereto. In Ellerson v. Grove, 44 F.(2d) 493, 496, this court holds as follows:
“The general rule as to direction of verdicts is set out in the case of Marion County Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59, as follows: ‘Decided cases may be found where it is held that, if there is a scintilla, of evidence in support of a ease, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule; to wit, that, before the evidence is left to the jury, there is or may be in every ease a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.’ * * *
“See also Coughran v. Bigelow, 164 U. S. 307, 17 S. Ct. 117, 41 L. Ed. 442; Patton v. Southern Ry. Co. (C. C. A.) Ill P. 712; Woodward et al. v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 145 P. 577. In the last-mentioned ease it is said that it is the duty of a court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is' undisputed; and (2) that class in which the evidence is conflicting but is of so conclusive a character that the court in the exercise of a sound judicial discretion will set aside the verdict in opposition to it. See also numerous cases cited in that opinion.”
The judgment of the court below-is accordingly affirmed.- -
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
LOPEZ v. GONZALES, ATTORNEY GENERAL
No. 05-547.
Argued October 3, 2006
Decided December 5, 2006
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 60.
Robert A. Long, Jr., argued the cause for petitioner. With him on the briefs was Theodore P. Metzler.
Deputy Solicitor General Kneedler argued the cause for respondent. With him on the brief were Solicitor General Clement, Assistant Attorneys General Keister and Fisher, Deputy Solicitor General Dreeben, Patricia A. Millett, and Donald E. Keener.
Briefs of amici curiae urging reversal were filed for the American Bar Association by Michael S. Greco and David W. DeBruin; for the Asian American Justice Center et al. by Jayashri Srikantiah; for the Center for Court Innovation et al. by Nancy Morawetz; for Former General Counsels of the Immigration and Naturalization Service by Neal Mollen; for Human Rights First by Linda T. Coberly and Gene C. Schaerr; and for the NYSDA Immigrant Defense Project et al. by Christopher J. Meade, Steven R. Shapiro, Lucas Guttentag, Marianne C. Yang, and Manuel D. Vargas.
Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kent C. Sullivan, First Assistant Attorney General, Don Clemmer, Deputy Attorney General, and Amy Warr, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Mike Beebe of Arkansas, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Lawrence Wasden of Idaho, Phill Kline of Kansas, Kelly A Ayotte of New Hampshire, Thomas W. Corbett, Jr., of Pennsylvania, Mark L. Shwrtlejf of Utah, and Robert F. McDonnell of Virginia; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp.
Justice Souter
delivered the opinion of the Court.
The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a “felony punishable under the Controlled Substances Act.” 18 U. S. C. § 924(c)(2). We hold it is not.
I
A
The Immigration and Nationality Act (INA) defines the term “aggravated felony” by a list that mentions “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of title 18).” § 101(a)(43)(B), as added by §7342, 102 Stat. 4469, and as amended by § 222(a), 108 Stat. 4320, 8 U. S. C. § 1101(a)(43)(B). The general phrase “illicit trafficking” is left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by defining “drug trafficking crime” as “any felony punishable under the Controlled Substances Act” or under either of two other federal statutes having no bearing on this case. Following the listing, § 101(a)(43) of the INA provides in its penultimate sentence that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law” or, in certain circumstances, “the law of a foreign country.” 8 U. S. C. § 1101(a)(43).
An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General’s discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. § 1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the “aggravated felony” designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for “any other felony.” United States Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition of aggravated felony).
B
Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person’s possession of cocaine, and was sentenced to five years’ imprisonment. See S. D. Codified Laws § 22-42-5 (1988); § 22-6-1 (Supp. 1997); § 22-3-3 (1988). He was released for good conduct after 15 months.
After his release, the Immigration and Naturalization Service (INS) began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U. S. C. § 1227(a)(2)(B)(i), and was also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See § 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez’s drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F. 3d 934 (CA8 2005).
We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA. 547 U. S. 1054 (2006). We now reverse.
II
The INA makes Lopez guilty of an aggravated felony if he has been convicted of “illicit trafficking in a controlled substance ... including,” but not limited to, “a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U. S. C. §1101(a)(43)(B). Lopez’s state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S. D. Codified Laws §22-3-3, a state felony, §22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U. S. C. § 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see § 841 (2000 ed. and Supp. Ill); United States v. Kates, 174 F. 3d 580,582 (CA5 1999) (per curiam) (“Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone”).
Despite this federal misdemeanor treatment, the Government argues that possession’s felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (21 U. S. C. 801 et seq.),” § 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U. S. C. § 844(a). That is enough, says the Government, because § 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way.
There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of “illicit trafficking,” the term ultimately being defined. The everyday understanding of “trafficking” should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U. S. 471, 476 (1994). And ordinarily “trafficking” means some sort of commercial dealing. See Black’s Law Dictionary 1534 (8th ed. 2004) (defining to “traffic” as to “trade or deal in (goods, esp. illicit drugs or other contraband)”); see also Urena-Ramirez v. Ashcroft, 341 F. 3d 51,57 (CA1 2003) (similar definition); State v. Ezell, 321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government’s reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.
Reading § 924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Cf. Leocal v. Ashcroft, 543 U. S. 1,11 (2004) (“[W]e cannot forget that we ultimately are determining the meaning of the term ‘crime of violence’”). Which is not to deny that the Government might still be right; Humpty Dumpty used a word, to mean “‘just what [he chose] it to mean — neither more nor less,’” and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.
First, an offense that necessarily counts as “illicit trafficking” under the INA is a “drug trafficking crime” under § 924(c), that is, a “felony punishable under the [CSA],” § 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of §924 expressly refer to guilt under state law, see §§ 924(g)(3), (k)(2), and the implication confirms that the reference solely to a “felony punishable under the [CSA]” in § 924(c)(2) is to a crime punishable as a felony under the federal Act. See Russello v. United States, 464 U. S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count.
The Government stresses that the text does not read “punishable as a felony,” and that by saying simply “punishable” Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government’s way. We do not use a phrase like “felony punishable under the [CSA]” when we mean to signal or allow a break between the noun “felony” and the contiguous modifier “punishable under the [CSA],” let alone a break that would let us read the phrase as if it said “felony punishable under the CSA whether or not as a felony.” Regular usage points in the other direction, and when we read “felony punishable under the ... Act,” we instinctively understand “felony punishable as such under the Act” or “felony as defined by the Act.” Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating “the cardinal rule that statutory language must be read in context.” General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581,596 (2004) (internal quotation marks and brackets omitted). That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason.
The Government thinks it has a good enough reason for doing just that, in the IN A provision already mentioned, that the term “aggravated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” 8 U. S. C. § 1101(a)(43). But before this provision is given the Government’s expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of “an offense ... in this paragraph,” one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez’s state crime actually fell within the general term “illicit trafficking,” the state felony conviction would count as an “aggravated felony,” regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U. S. C. § 844(a).
The Government’s reliance on the penultimate sentence of 8 U. S. C. § 1101(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of § 1101(a)(43) suggests that Congress changed the meaning of “felony punishable under the [CSA]” when it took that phrase from Title 18 and incorporated it into Title 8’s definition of “aggravated felony.” Yet the Government admits it has never begun a prosecution under 18 U. S. C. § 924(c)(1)(A) where the underlying “drug trafficking crime” was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government’s interpretation of “felony punishable under the [CSA]” in the very context in which that phrase appears in the United States Code belies the Government’s claim that its interpretation is the more natural one.
Finally, the Government’s reading would render the law of alien removal, see 8 U. S. C. § 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute, (as in the case of “illicit trafficking in a controlled substance”). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an “aggravated felony” (like the § 924(c)(2) definition of “drug trafficking crime”). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily.
Two examples show the untoward consequences of the Government’s approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U. S. C. § 844(a), but the INA expressly excludes “a single offense involving possession for one’s own use of 30 grams or less” from the controlled substance violations that are grounds for deportation, 8 U. S. C. § 1227(a)(2)(B)(i). Yet by the Government’s lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See § 1229b(a)(3). There is no hint in the statute’s text that Congress was courting any such state-by-state disparity.
The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U. S. C. § 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government’s reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers.
True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them.
In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. 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.
The INS’s immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374, n. 1 (2005).
Although the Government has deported Lopez, we agree with the parties that the case is not moot. Lopez can benefit from relief in this Court by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony.
Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F. 3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez, 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo, 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia, 171 F. 3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft, 382 F. 3d 905 (CA9 2004) (in immigration case, state-law felony is not an aggravated felony); Aguirre v. INS, 79 F. 3d 315 (CA2 1996) (same).
Several States punish possession as a felony. See, e. g., S. D. Codified Laws §§22-42-5 (2004), 22-6-1 (2005 Supp.); Tex. Health & Safety Code Aim. §481.115 (West 2003); Tex. Penal Code Ann. §§12.32-12.35 (West 2003); see also n. 10, infra. In contrast, with a few exceptions, the CSA punishes drug possession offenses as misdemeanors (that is, by one year’s imprisonment or less, cf. 18 U. S. C. § 3559(a)), see 21 U. S. C. § 844(a) (providing for “a term of imprisonment of not more than 1 year” for possession offenses except for repeat offenders, persons who possess more than five grams of cocaine base, and persons who possess flunitrazepam), and trafficking offenses as felonies, see §841 (2000 ed. and Supp. III).
L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982).
Of course, we must acknowledge that Congress did counterintuitively define some possession offenses as "illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U. S. C. § 844(a), clearly fall within the definitions used by Congress in 8 U. S. C. § 1101{a)(43)(B) and 18 U. S. C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of “illicit trafficking” does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.
With respect to this last possibility, for purposes of § 924(c)(2) the crimes the CSA defines as “felonies” are those crimes to which it assigns a punishment exceeding one year’s imprisonment. As the Government wisely concedes, see Brief for Respondent 25, although for its own purposes the CSA defines the term “felony” standing alone as “any Federal or State offense classified by applicable Federal or State law as a felony,” 21 U. S. C. §802(13), that definition does not apply here: § 924(c)(2) refers to a felony “punishable under the [CSA],” not to conduct punishable under some other law but defined as a felony by the CSA.
Although the parties agree that Congress added the provision that both state and federal offenses qualify as aggravated felonies to codify the BIA’s decision in Matter of Barrett, 20 I. & N. Dec. 171 (1990), see also H. R. Rep. No. 101-681, pt. 1, p. 147 (1990) (noting that the provision reflects congressional approval of Barrett), our enquiry requires looking beyond Congress’s evident' acceptance of Barrett. In Barrett, the BIA held only that the phrase “ ‘drug trafficking crime’ ” includes state “crimes analogous to offenses under the [CSA],” 20 I. & N. Dee., at 177,178, without specifying whether a state crime must be “analogous” to a CSA felony, as opposed to a CSA misdemeanor, to count.
Contrary to the Government’s response at oral argument, such a prosecution should be possible under the Government’s proffered interpretation because this subset of “drug trafficking crimefs]” still “may be prosecuted in a court of the United States,” 18 U. S. C. § 924(c)(1)(A), albeit at the misdemeanor level. For the same reason, the dissent’s argument that our reading renders superfluous the requirement in § 924(c)(1)(A) that the crime “may be prosecuted in a court of the United States” misses the mark. Post, at 62 (opinion of Thomas, J.). That phrase would be no less superfluous under the dissent’s preferred reading, which would still require that the offense be “capable of punishment under the [CSA],” post, at 61, and therefore subject to prosecution in federal court.
Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. §§893.13(6)(a)-(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. §§ 453.336ÜM2) (2004), §§453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. §§ 19-03.1-23(6) (Lexis Supp. 2005), 12.1-32-01(4) (Lexis 1997) (same); Ore. Rev. Stat. § 161.605(2) (2003), Act Relating to Controlled Substances, §33, 2005 Ore. Laws p. 2006 (same).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_usc1sect
|
846
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Raymond WATSON, Herbert L. Williams, Walter Arthur Parker, William Harrison King, Michael D. Berry, a/k/a “Jerry Forsh” and J. B. McGlocklin, Defendants-Appellants.
No. 80-5613.
United States Court of Appeals, Eleventh Circuit.
March 8, 1982.
Vincent J. Flynn, Miami, Fla., for Watson.
Roger D. Patterson, Panama City Beach, Fla., for Williams.
James K. Jenkins, Atlanta, Ga., Gerald H. Goldstein, San Antonio, Tex., for Parker.
Owen N. Powell, Bonifay, Fla., for King & Berry.
Bonnie K. Roberts, Bonifay, Fla., for McGloeklin.
David L. McGee, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Before FAY, ANDERSON and CLARK, Circuit Judges.
FAY, Circuit Judge:
Appellants Watson, Williams, Parker, King, Berry, and McGloeklin were each charged under a one count indictment with conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846. On July 10, 1980, a jury found all six guilty. Among the numerous issues presented on appeal, we find that one, the exclusion of opinion witnesses offered by the defense to impeach the government’s key witness, requires reversal.
THE FACTS
The evidence presented by the government consisted primarily of testimony by Patrick Campbell. Campbell related two major incidents which occurred during the course of the conspiracy. The first incident involved Campbell’s introduction to the conspiracy at an airport in north Florida. The second incident entailed the planning and carrying out of a trip to Colombia, South America, for the purpose of importing marijuana. What follows is a review of the evidence presented at trial, considered in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The Tri-County Airport
The Tri-County Airport is located in Holmes County, Florida — a rural area in the panhandle. Patrick Campbell and his wife lived in a trailer at the airstrip in April, 1979. On the evening of April 8, 1979, appellants Bill King, J. B. McGloeklin, and Mike Berry appeared at the Campbell’s trailer. King told Campbell that a load of marijuana was being flown into the airport that night and offered him $5,000 to keep silent. Pursuant to an agreement with Agent Rowell, of the Florida Department of Law Enforcement, Campbell informed King that he was a pilot and offered to help in future ventures. King said that he would “contact the people down south” to see if Campbell could act as pilot on future trips.
About the end of June, 1979, the Camp-bells vacated the trailer and Phil Robbins, who was also working with Agent Rowell, moved in. Appellants King and Berry came to the trailer looking for Campbell on August 8th. They asked Robbins where Campbell was and after a short conversation Robbins offered to help the smugglers. King then told Robbins that there were plans to bring about five loads of marijuana into the Tri-County Airport and he offered Robbins $5,000 each trip for his cooperation. King said that his responsibility in the “organization” was to provide protection at the airstrips and to see to the unloading and delivery of the marijuana.
The Colombian Trip
In mid-August, 1979, King, Robbins, and Campbell met at a convenience store in Wausau, Florida. King asked Campbell if he would be interested in flying marijuana into the country. Campbell agreed. A few days later, King purchased a ticket to West Palm Beach and sent Campbell there to meet Ray Watson. Watson picked Campbell up at the West Palm Beach Airport on August 15th or 16th. They drove to Fort Lauderdale to check on the airplane which would be used to transport the marijuana and then they returned to West Palm Beach.
In West Palm Beach, Campbell attended a meeting which included Ray Watson, Walter Parker, and William Pitts. At the meeting Campbell was told that the marijuana would be picked up in Colombia, flown to the California coast where a water drop would be made of three or four thousand pounds, and then the rest of the load would be flown to the Tri-County Airport and distributed from there. After the meeting, Campbell and Watson drove to a convenience store where Watson made a phone call to Colombia and told his brother, Herb Williams, to get the marijuana ready to load up.
A couple of days after the West Palm Beach meeting, Campbell, Parker, and Dirk Winky flew out of Lakeland, Florida to Port-au-Prince, Haiti. The trio spent the night at Parker’s house in Haiti. The next day, Parker, Campbell, Dirk Winky, and “Jim” flew to Colombia. They landed on an airstrip adjacent to a river. But it was the wrong airstrip and, to make matters worse, the plane was stuck in mud. Dirk Winky went upriver and returned with Herb Williams and a few other people. While all hands were attempting to free the plane, a Colombian airplane appeared and began circling. The group jumped into motorized canoes and proceeded upriver to a farmer’s shack. From their vantage point at the shack they observed the Colombian aircraft dropping bombs in the vicinity of the stranded plane. Herb Williams left the group at the shack, but all five met up later that evening at the airstrip where the plane should have landed. From that airstrip, Campbell, Jim, Dirk Winky, and Parker went further upriver to the spot where the marijuana was stored. They stayed at that site for three days.
Then commenced the return trip. The route back took the group to Bogota, an airstrip on the Colombian coast, Port-au-Prince, and Nassau — with mishaps occurring at every turn. Campbell, accompanied by the McCoys (friends of Parker), finally arrived back in the United States on August 29, 1979. He was picked up at the West Palm Beach Airport by Herb Williams.
Sometime after the August fiasco, Campbell, King, Watson, and McGlocklin waited on a planeload of marijuana at Watson’s house in Okeechobee, Florida. After a few hours, Watson announced that the plane had been stolen by its pilot, no “dope” was coming in, and everyone should go home. At the last meeting Campbell had with King, in December, 1979, King indicated that he feared they were all going to jail because the “people down south had their telephone records subpoenaed.”
THE ISSUES
Although we find that the District Court’s exclusion of witnesses who would give their opinion of Patrick Campbell’s ability to testify truthfully requires reversal, we will also address all other issues presented by the appellants. Guidance at this point, we believe, will serve as an aid to proceedings on retrial.
The issues roughly fall into three categories: the sufficiency of the government’s proof; the exclusion of character witnesses and other evidentiary matters; and matters occurring at the end of trial.
Sufficiency of the Government’s Proof
Two issues concern the sufficiency of the evidence: All appellants argue that the government charged one, but proved two conspiracies. Appellant Williams also challenges the sufficiency of the evidence to support his conviction.
Appellants argue that the District Court’s denial of their severance motions was improper because the government presented proof at trial of two conspiracies when the indictment charged a single conspiracy to possess with intent to distribute marijuana. They maintain that the first conspiracy centered around the April incident at the TriCounty Airport while the second conspiracy involved the aborted smuggling trip to Colombia, that the government failed to prove any connection between the two incidents, and that the government failed to prove that either group of participants was aware of the activities of the other group.
When a conspiracy is charged under 21 U.S.C. § 846, the government must prove, by direct or circumstantial evidence, that there was an agreement among the defendants to achieve an illegal purpose. United States v. Michel, 588 F.2d 986, 994 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979); United States v. Gordon, 580 F.2d 827, 834 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). The existence of the conspiracy must be proved beyond a reasonable doubt, Michel, 588 F.2d at 994; but the government is not required to prove that each conspirator was aware of all other conspirators, or that each conspirator participated at every stage of the conspiracy. United States v. Becker, 569 F.2d 951, 960 (5th Cir. 1978), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1979); United States v. Morrow, 537 F.2d 120, 130 (5th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). The factors we examine to determine whether there is one overall conspiracy are “the existence of a common goal, the nature of the scheme, and an overlapping of participants in the various dealings.” Becker, 569 F.2d at 960.
The government presented substantial evidence in this case to support the jury’s verdict of a single conspiracy. The common goal of the conspiracy was the importation and distribution of marijuana into this country. The nature of the scheme, involving as it did the unloading of marijuana off planes at the Tri-County Airport and flights to Colombia to pick up the marijuana, renders it inconceivable that the appellants were unaware of the participation of others in the conspiracy. Finally, there was proof of overlapping membership; King, McGlocklin, and Berry were together at the Tri-County Airport, Watson and Parker met with Campbell to plan the Colombia flight, and King, Watson, and McGlocklin waited together on another planeload of marijuana. That some of the defendants were responsible for smuggling the marijuana out of Colombia and others were responsible for offloading and distribution at the Tri-County Airport makes no difference. The government’s evidence established that they were working together “with a single design for the accomplishment of a common purpose.” United States v. Johnson, 585 F.2d 119, 128 (5th Cir. 1978). We conclude that appellants’ motions for severance were properly denied by the District Court.
Appellant Williams claims that the evidence is insufficient to support his conviction because the government proved no more than his presence and association with conspirators.
On appeal, we must determine whether, taking the view most favorable to the government, Glasser, 315 U.S. at 80, 62 S.Ct. at 469, the evidence could be found to exclude every reasonable hypothesis of innocence. United States v. Berry, 644 F.2d 1034, 1039 (5th Cir. 1981); United States v. Marable, 574 F.2d 224, 229 (5th Cir. 1978). To establish individual guilt in the context of a conspiracy charge, the government must prove that the defendant knew of the conspiracy and voluntarily participated in it. United States v. Middlebrooks, 618 F.2d 273, 278 (5th Cir.), modified on other grounds, 624 F.2d 36 (5th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980); United States v. Harbin, 601 F.2d 773, 781 (5th Cir. 1979). Mere association with other conspirators, or presence at the scene of the crime, without more, is insufficient to prove knowing participation in the conspiracy. United States v. Littrell, 574 F.2d 828, 833 (5th Cir. 1978). But participation in the conspiracy may be demonstrated by circumstantial evidence and the jury may draw inferences that are supported by proof. United States v. Fitzharris, 633 F.2d 416, 422 (5th Cir. 1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981). See United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981).
The government presented evidence that Watson made a phone call to Colombia and told Williams to get the marijuana ready to load up. A few days after that conversation, Williams came to the aid of the other conspirators when their plane landed at the wrong airstrip in Colombia. He assisted them in trying to remove the plane and, after they abandoned their efforts, he trav-elled upriver with the group to a farmer’s shack. He then left the group and met up with them later at the airstrip where the plane should have landed. Finally, Williams picked Campbell up at the West Palm Beach Airport upon Campbell’s return to the United States.
Williams postulates as an innocent motive for his activities that he might have been “boondock stomping” in Colombia. The evidence, however, supports a finding that Williams was not taking a stroll in the jungle. The jury could reasonably infer, from the phone conversation and Williams’ subsequent appearances and assistance at the Colombia airstrips, that Williams agreed to have the marijuana ready to load when the plane landed and that his presence at the airstrips was for that purpose. It was for the jury to decide whether such activity was a part of the conspiratorial effort or an innocent sojourn. The evidence supports the conclusion that Williams was a knowing and voluntary participant in the conspiracy.
The Exclusion of Character Witnesses
Six impeachment witnesses were offered by appellants to give testimony regarding Patrick Campbell’s character for truthfulness. During voir dire examination the prosecutor inquired into the extent of each witness’ familiarity with the community and with Campbell. The government’s attorney then objected to each of the witnesses on the ground that an adequate foundation of familiarity had not been laid. The District Court ruled that five were excluda-ble on that ground. Appellants chose not to put the sixth witness, Campbell’s father, on the stand because they believed the father’s testimony against his son, standing alone, would hurt more than it would help.
The issue on appeal is whether the trial court’s exclusion of the five character witnesses was prejudicial error. One of the excluded witnesses was offered solely to give reputation testimony. The rest would have given opinion testimony or a combination of opinion and reputation testimony.
Rule 608, Federal Rules of Evidence, governs the use of character evidence to attack credibility. The rule provides: “The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation.... ” Fed.R.Evid. 608(a) (emphasis supplied).
We deal with the reputation witness first. A proper foundation must be laid before the admission of reputation testimony. The reputation witness must be qualified through a showing of “such acquaintance with the [person under attack], the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded.” Michelson v. United States, 335 U.S. 469, 478, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). See also United States v. Augello, 452 F.2d 1135, 1139-40 (2d Cir. 1971), cert. denied, 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122 (1972); United States v. Salazar, 425 F.2d 1284, 1286 (9th Cir. 1970). Appellants’ reputation witness testified that she had lived in Bonifay (the location of the Tri-County Airport) for thirty-three years; she worked with Campbell every day from July, 1978 to October, 1978; she talked with customers about Campbell; and his reputation for truthfulness at that time was bad.
A trial court’s determination that the foundation of a reputation witness is inadequate will ordinarily not be overturned on appeal. See Michelson, 335 U.S. at 480-81, 69 S.Ct. at 220-221; Augello, 452 F.2d at 1140. In the present case, the witness’ testimony indicated that she not only knew Campbell for a short period of time, but also that her testimony was to a reputation that existed at a time remote from both the time of the conspiracy and the time of trial. The District Court’s ruling regarding this witness was within the bounds of its discretion. Were Rachel Mes-ser the only character witness offered by appellants we would not reverse.
The District Court’s exclusion of the opinion witnesses is the most troubling issue in this case. The inclusion of opinion testimony in Rule 608(a) represents a deviation from common law practice. See 3 Weinstein’s Evidence ¶ 608[04] (1981). Whether a foundation such as that required for reputation testimony is also required for opinion testimony was decided by the Fifth Circuit in United States v. Lollar, 606 F.2d 587 (5th Cir. 1979). In Lollar, the defendant argued that the district court erred when it permitted a government witness to give an opinion of the defendant’s character for truthfulness. The Fifth Circuit determined that prior questioning of the opinion witness regarding his knowledge of the defendant’s reputation was unnecessary. “The rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.” Id. at 589 (quoting 3 Weinstein’s Evidence ¶ 608[04], at 608-20 (1978)).
That opinion testimony does not require the foundation of reputation testimony follows from an analysis of the nature of the evidence involved. The reputation witness must have sufficient acquaintance with the principal witness and his community in order to ensure that the testimony adequately reflects the community’s assessment. Michelson, 335 U.S. at 478, 69 S.Ct. at 219. In contrast, opinion testimony is a personal assessment of character. The opinion witness is not relating community feelings, the testimony is solely the impeachment witness’ own impression of an individual’s character for truthfulness. Hence, a foundation of long acquaintance is not required for opinion testimony. Of course, the opinion witness must testify from personal knowledge. See Fed.R.Evid. 602. But once that basis is established the witness should be allowed to state his opinion, “cross-examination can be expected to expose defects.” 3 Weinstein’s Evidence ¶ 608[04], at 608-20 (1981).
The record reveals that the opinion witnesses offered by appellants had formed an opinion based on personal knowledge. Consequently, we find that the District Court’s exclusion of their testimony for failure to meet a foundation requirement was error. We recognize that trial courts, in the exercise of their discretion, may limit the number of character witnesses a party may call and, absent an abuse of discretion, the district court’s ruling will not be disturbed on appeal. United States v. Haynes, 554 F.2d 231, 234 (5th Cir. 1977); United States v. Gray, 507 F.2d 1013, 1016 (5th Cir. 1975). But this case does not involve such an exercise of discretion. The four opinion witnesses were excluded because the District Court was mistaken regarding the necessity of a foundation for opinion testimony. See United States v. Oliver, 492 F.2d 943, 947 (8th Cir. 1974). Moreover, the District Court’s error denied appellants their sixth amendment right to compulsory process. United States v. Davis, 639 F.2d 239, 244 (5th Cir. 1981); United States v. Goodwin, 625 F.2d 693, 700 (5th Cir. 1980). The Supreme Court has termed this right “a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Constitutional error such as this mandates reversal unless we are convinced that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
United States v. Davis is instructive on this point. The prosecution, in Davis, relied heavily on the testimony of an informant. The defense called two character witnesses to impeach the informant’s credibility, but they were disallowed by the trial court as a discovery sanction and under Rule 403, Federal Rules of Evidence. The Fifth Circuit found that the district court erred in excluding the witnesses and, as a result of the error, the defendants’ right to compulsory process was infringed. It was not possible to find the error harmless beyond a reasonable doubt when “the role of the government’s witness [was] so central and the jury’s perception of his credibility so crucial to conviction.” 639 F.2d at 245. Campbell occupied a similar position. He was the lynchpin to the government’s case. His testimony was the only testimony to link all the appellants in a single conspiracy and it was the only direct evidence of the flight to Colombia. Campbell’s credibility was critical to the government’s case. The excluded “testimony would certainly be essential to a jury’s decision whether to believe [Campbell’s] testimony, without which the government would have no case.” Id. Under these circumstances we are unwilling to speculate whether the excluded evidence would have affected the jury’s verdict. We hold that the exclusion of the opinion witnesses was not harmless beyond a reasonable doubt and therefore conclude that we must reverse and remand for retrial.
Two other evidentiary matters must be discussed. Appellant Watson challenges the denial of his motion to suppress. When Watson was arrested the police officers searched his person and removed his wallet which they placed on a table. One of the officers testified that he left the room momentarily with Watson’s girlfriend. When he returned he saw another officer remove the wallet from a cabinet drawer and advise Watson that the wallet had been seized as evidence. Several items, including an address book, receipts, and a piece of paper containing names, were taken from the wallet and placed in a plastic evidence bag. Watson claims that a warrant was required to search the wallet because the wallet was under the exclusive control of the officers. We cannot agree. The wallet was taken from Watson’s person during a search incident to arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The seizure of documents found within the wallet was within the proper scope of the search. See United States v. Setzer, 654 F.2d 354, 359 (5th Cir. 1981); United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979).
King, Berry and McGlocklin claim that the District Court erred when it failed to exclude from evidence fuel receipts and ledger entries as a discovery sanction against the government. Discovery matters are ordinarily committed to the sound discretion of the trial court. Ginsberg v. United States, 257 F.2d 950, 956 (5th Cir. 1958). A discovery ruling will not be reversed on appeal unless it is shown that the trial court exceeded its discretion and that the error prejudiced the substantial rights of the party seeking reversal. United States v. Bullock, 551 F.2d 1377, 1384 (5th Cir. 1977); United States v. Saitta, 443 F.2d 830, 831 (5th Cir.), cert. denied, 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250 (1971).
At trial the government called Sue For-an, owner of a flight fuel station, who testified that large quantities of fuel were purchased from her station by a man resembling Mike Berry. She produced three fuel receipts and a ledger. Appellants objected to the introduction of the documents into evidence because they had not been disclosed in discovery. The trial judge ruled that discovery had been made and overruled the objection. The record reflects that the government’s amended response to defendants’ request for discovery, filed three days before trial, lists the fuel receipts and certifies that a copy of the amended response was furnished by hand delivery to all appellants. The ledger was not listed. The trial transcript also reflects that one defense attorney (although not the one representing these three appellants) was orally notified of the government’s intended use of the documents.
Although the discovery made by the government was on short notice and was not as complete as it could have been, the District Court’s ruling that the government had made disclosure is supported by the record. We do not believe that allowing the documents into evidence was an abuse of discretion. Nor do we find that appellants were prejudiced by the introduction of the documents. The documents were merely corroborative of Sue Foran’s testimony, added little to the government’s case, and their introduction fell short of affecting appellants’ substantial rights.
The End of Trial
The remaining issues can best be addressed by setting forth briefly the sequence in which they arose.
Prior to closing arguments the trial judge held a charge conference. At the conference appellants were informed that the jury instructions would be tape recorded and a copy sent with the jurors into the jury room. An objection was made to this procedure. Near the close of the conference a request was made under Rule 30, Federal Rules of Criminal Procedure, that after the charge, the jury be excused in order to give appellants an opportunity to make objections out of the presence of the jury. After the jury was charged, however, appellants were required to make their objections at the bench in the presence of the jury. Thirty-five minutes after the jury retired, the trial judge realized that an alternate juror had retired with the jury. The jury was called back and the alternate was immediately discharged.
The tape recorded charge, the Rule 30 violation, and the failure to discharge the alternate before the jury retired are cited on appeal as instances of reversible error. We believe that these problems and, indeed, our reversal predicated on the exclusion of the opinion witnesses could have been avoided by more careful attention to the rules of evidence and the rules of criminal procedure. We recognize that presiding over a complex conspiracy case such as this can be confusing and vexatious. When a trial involves multiple defendants and their attendant lawyers opportunities for mistake increase dramatically. It is imperative that the trial judge adopt some method for containing the confusion inherent in such trials. One solution, adopted successfully by other district courts, is the use of a checklist. The list sets forth important eviden-tiary and procedural points and the order in which they must occur. Through the use of such a list the trial is kept on an orderly course and errors due to simple inadvertence are prevented. We suggest that on retrial a checklist, or some other similar method, might be employed by this District Court. We also feel compelled to remind all counsel that they are “officers of the court.” Being advocates for specific clients does not relieve such officers of their obligation to assist the court, particularly in areas of procedure. We must all be concerned with the smooth operation of our judicial machinery for its ability to function is the cornerstone for protecting the rights of all.
As to the issues, we address them in the order they occurred.
Whether it is error to provide the jury with a taped copy of the instructions to refer to during its deliberations has never been addressed by this Court or any other Court of Appeals. The decision of United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977), however, is closely analogous. In Schilleci, the trial court furnished the jury with a written copy of its instructions. The Fifth Circuit explained that “[wjhile not error in itself, the practice is conducive to dissection of the charge by the jury and overemphasis of isolated parts rather than consideration of the charge as a whole.” Id. at 526. Schiileci criticizes the practice of giving the jury a copy of the instructions, but it does not label that practice error. It was the presence of other factors prejudicial to the defendant which convinced the Schilleci court that reversal was necessary. Id. at 526. See United States v. Perez, 648 F.2d 219, 222 (5th Cir.), cert. denied, 449 U.S. 1084, 101 S.Ct. 872, 66 L.Ed.2d 810 (1981); United States v. Hooper, 575 F.2d 496, 499 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978).
Appellant Parker argues that providing the jury with a taped copy of the charge is reversible error because prejudicial factors were present. First, Parker claims the trial judge’s instruction to the jury that they could replay “all or any part of the instructions” permitted the jury to single out and overemphasize portions of the charge. Second, he asserts that the trial judge’s misreading of a sentence when instructing the jury could confuse the jury if that portion of the charge were replayed in the jury room.
As to the first assertion, the trial court was careful to instruct the jury at the beginning of the charge that they should consider the charge as a whole:
Unless otherwise stated, you should consider each instruction to apply separately and individually to each Defendant on trial and you must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction or to question the wisdom or correctness of any rule I may state to you.
Record, vol. XIV, at 1793.
Unlike Schilleci, this jury was adequately informed that the whole charge must be considered in reaching their verdict. Against that background, the judge’s further instruction regarding use of the tape recorder was not prejudicial.
Appellant’s second claim of prejudice also lacks merit. The district judge corrected himself in mid-sentence: “But do not consider your — surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Record, vol. XIV, at 1807. Taken as a whole the intent of the instruction is clear. It is not confusing or misleading and is certainly not equivalent to the erroneous instruction which was sent into the jury room in Schilleci.
Although prejudicial circumstances are absent, our inquiry is not ended. Appellants Watson, Williams, King, Berry, and McGlocklin ask this Court to hold that providing a jury with taped instructions is per se reversible error. They argue that a taped copy of the charge is more objectionable than a written copy because the tape recorder is in the control of its operator and a tape excerpt is more easily taken out of context. Thus, they stress, the risk that the jury will overemphasize one portion of the charge is increased.
Appellants ask too much. The additional risk of overemphasis which might result from use of a tape recorder does not justify automatic reversal. Schilleci points out that the practice of providing a written copy of the instructions is “conducive to.... overemphasis of isolated parts” and the same would apply to a taped copy. But when the jury is cautioned to consider the charge as a whole and the jury charge is accurate and complete, reversal solely because a taped or a written charge was provided to the jury is not warranted. In fact, under appropriate circumstances, the use of a taped charge or a written charge could well aid juror comprehension, as well as expedite the proceedings. See Perez, 648 F.2d at 224 (Fay, J., specially concurring) (“furnishing a [written] copy of the court’s instructions to the jury is both sound and proper”).
In any event, appellants in this case were not prejudiced by the taped charge and its use does not constitute reversible error.
Appellants King, Berry, McGlocklin, Parker, and Watson claim the District Court’s refusal to follow the dictates of Rule 30 was reversible error.
Under Rule 30, after the jury has been instructed, counsel must be given an opportunity to object to the instructions out of the hearing of the jury. The rule was amended in 1966 to provide that opportunity must be given to object out of the presence of the jury, as well as out of its hearing, if requested by counsel.
At the conference held prior to closing arguments, counsel for appellant Parker specifically requested that a hearing out of the presence of the jury be given at the conclusion of the court’s charge:
THE COURT: What I do is after I send the jury to deliberate on the record I say are there any objections to the charge the Court has given other than as previously noted.
MR. GOLDSTEIN [counsel for appellant Parker]: All right. That will satisfy us. In the event that there are additional objections, may we make a request at this time under Rule 30 that the jury be excused so we can make any objections out of their presence, Your Honor?
THE COURT: You mean if I misread something?
MR. GOLDSTEIN: Yes, Your Honor. If we have something that was not previously logged.
THE COURT: Okay.
Record, vol. XIII, at 1542.
This request was repeated after the jury was instructed:
[THE COURT]: Let’s give these to the lawyers, a copy of the verdict form for each counsel. Do you wish to approach the bench before the jury retires?
MR. GOLDSTEIN: We would request a Rule 30 conference, Your Honor.
THE COURT: Okay. Approach the bench.
[Whereupon, a bench conference was held.]
THE COURT: Does counsel have any objections to the instructions as given other than as noted in our previous Rule 30 conference?
MR. GOLDSTEIN: Yes, Your Honor. First we would respectfully request a hearing out of the presence of the jury.
THE COURT: What is the basis of it?
MR. GOLDSTEIN: Rule 30.
THE COURT: Well, we are.
MR. GOLDSTEIN: I have an objection and we are out of the hearing of the jury but not out of the presence and I would like the record to reflect that the jury is in the courtroom, and is looking at us right now.
THE COURT: Well, state what your objections are.
MR. GOLDSTEIN: I would like to do this out of the presence of the jury and if the Court insists, I will proceed, Your Honor.
THE COURT: All right.
MR. GOLDSTEIN: We are preceding [sic] in the presence of the jury. Your Honor, my first objection is....
Record, vol. XIV, at 1809-10.
The trial judge obviously misunderstood the distinction between “out of the hearing” and “out of the presence.” The rule clearly makes such a distinction. Again, we suggest that one way to avoid procedural errors is to establish a routine and follow it at every trial by means of a checklist. For example, the preferred procedure for a trial court to follow after completing its charge is to excuse the jury with the admonition that they are not to start their deliberations. Counsel could then be permitted to make objections to the charge out of the presence of the jury. After all objections have been made, the judge should bring the jury back, make any corrections to the charge that are merited, and explain to the jury that they may now start their deliberations. This would also be an appropriate point to check the jury one last time to make sure that all alternates have been discharged before the jury retires to deliberate.
In the present case, the District Court did not follow the procedure outlined above. Over counsel’s proper request for a hearing out of the presence of the jury, the trial judge required counsel to make objections at a bench conference. This was a clear violation of Rule 30, but reversal based on this error is not required unless we find that appellants were in some way prejudiced. Hamling v. United States, 418 U.S. 87, 135, 94 S.Ct. 2887, 2916, 41 L.Ed.2d
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Sorachai SIDA and Nongyoa P. Sida, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 84-7630.
United States Court of Appeals, Ninth Circuit.
Submitted April 2, 1985.
Decided July 2, 1985.
M. Rito Corrales, Santa Ana, Cal., for petitioners.
Robert C. Bonner, Frederick M. Brosio, Jr., Carolyn M. Reynolds, Los Angeles, Cal., for respondent.
Before PREGERSON and REINHARDT, Circuit Judges, and HARDY, District Judge.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R. App.P. 34(a) and Ninth Circuit Rule 3(f).
Honorable Charles L. Hardy, United States District Judge, District of Arizona, sitting by designation.
PREGERSON, Circuit Judge.
This matter is before us for the third time.
Petitioners, Mr. Sorachai Sida and Mrs. Nongyao P. Sida, now appeal the July 1984 decision of the Board of Immigration Appeals (BIA) denying their motion to reopen deportation proceedings to apply for suspension of deportation. The motion was denied on the ground that the Sidas failed to satisfy the seven years continuous presence requirement of 8 U.S.C. § 1254(a)(1) (1982) for suspension of deportation.
The Sidas, citizens of Thailand, first entered the United States in 1969. They returned to Thailand in 1972 to get married. They remained there from August 14 to September 13. This visit broke the continuity of their physical presence in the United States. Mr. Sida departed from the United States on one other occasion. His latest entry into the United States was on September 19, 1976. Mrs. Sida’s latest entry was on September 13, 1972.
The Immigration and Naturalization Service (INS) instituted deportation proceedings in August 1977. The Sidas were found deportable and were then granted voluntary departure. Thereafter, the Sidas moved twice to reopen the deportation proceedings to apply for suspension of deportation. The Immigration Judge (IJ) found that they had not fulfilled section 1254(a)(l)’s seven year continuous physical presence requirement. The denial of the motion to reopen was appealed to the BIA. The BIA dismissed this appeal in July 1980. The Sidas petitioned this court to review the BIA’s 1980 dismissal. We then remanded and required that the BIA address and rule on the new evidence the Sidas presented in their motions to reopen. Sida v. INS, 665 F.2d 851 (9th Cir.1981).
On June 30, 1982, the BIA again dismissed the Sidas’ appeal on the ground that little likelihood existed that their application for suspension of deportation would be granted at reopened proceedings. The BIA again failed to consider the Sidas’ new evidence.
On January 17, 1984, the Sidas appealed to this court for the second time. On February 15, 1984, 732 F.2d 164, we again remanded and instructed the BIA to determine whether INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984), controls the disposition of the pending application. In Phinpathya, the Supreme Court held that section 244(a)(1) of the Immigration & Nationality Act must be read literally with regard to the requirement of seven years continuous physical presence. Id. 104 S.Ct. at 589.
On July 9,1984, the BIA again dismissed the Sidas’ appeal holding that in view of Phinpathya the motion before the BIA failed to establish that the Sidas had the requisite seven years of continuous physical presence at the time of filing their motion to reopen on February 28, 1979. The BIA did not reach the issue of extreme hardship. On December 17,1984, the Sidas filed the instant appeal from the BIA’s September 7, 1984 deportation order.
The Sidas now contend that following their latest entries into the United States— counting the time accrued on appeal — they can satisfy the minimum required period of seven years continuous physical presence. They ask that we remand the matter to the BIA to reconsider the issue of their continuous physical presence and to consider the issue of extreme hardship in light of current circumstances.
Alvarez-Ruiz v. INS, 749 F.2d 1314 (9th Cir.1984), a recent Ninth Circuit decision parallels the Sidas’ case. In Alvarez-Ruiz, the alien entered the United States from Mexico in March 1974 without inspection. He travelled to Mexico in November 1975 to get married. He returned to the United States in May 1976. The INS instituted deportation proceedings in 1981. The IJ refused to suspend deportation because the alien’s six month absence broke the continuity of the seven year physical presence requirement. The BIA affirmed. We ruled that the proper procedure was for the alien to file a new motion to reopen with the BIA to resolve the question whether Alvarez-Ruiz had been continuously present in the United States since his return in 1976. We directed the BIA to count the time accrued on appeal. 749 F.2d at 1315.
The Supreme Court’s opinion in INS v. Rios-Pineda, — U.S.-, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985), suggests that, under certain circumstances, time accrued on appeal can count toward establishing the seven years continuous physical presence requirement.
Rios-Pineda held that the BIA did not abuse its discretion by denying reopening of deportation proceedings where six of the seven years of continuous physical presence in the United States accrued “by virtue of [the aliens’] baseless appeals.” Id., — U.S. at-, 105 S.Ct. at 2103. “No substance was found in any of the points raised on appeal, in and of themselves, and we agree with the BIA that they were without merit.” Id.., — U.S. at-, 105 S.Ct. at 2102. In our view, the Sidas’ appeals have not been baseless, therefore, we perceive no impediment to counting the time accrued during the pendency of their appeals.
Moreover, on the issue of time accrued on appeal, this case should not be confused with another recent Ninth Circuit decision, Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir.1985), which deals with section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1982). Avila-Murrieta does not apply to the disposition of the Sidas’ case, which deals with section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1).
Avila-Murrieta addressed one narrow question: “whether the time awaiting discretionary relief [from an order of deportation] under section 212(c) should also accrue toward that section’s seven year requirement when the merits of deportation are not challenged.” Slip op. at 5 (emphasis added).
Section 212(c) applies to aliens who, unlike the Sidas, were lawfully admitted for permanent residence. Avila-Murrieta determines when that lawful permanent residence terminates.
To be eligible for section 212(c) relief, an alien must have maintained a “lawful unre-linquished domicile of seven consecutive years____” 8 U.S.C. § 1182(c). In discussing the history of section 212(c), a Senate Report stated that
the proviso was intended to give discretionary power to the proper Government official to grant relief to aliens who were reentering the United States after temporary absence, who came in the front door, were inspected, lawfully admitted, established homes here, and remained for 7 years before they got into trouble [for committing a crime].
Marti-Xiques v. INS, 741 F.2d 350, 352-53 (11th Cir.1984) (quoting The Immigration and Naturalization Systems of the United States, S.Rep. 1515, 81st Cong.2d Sess. 382 (1950)) (emphasis in original).
In contrast with section 212(c), section 244(a)(1), the section we are presently concerned with, does not relate to aliens who are “in trouble” for committing a criminal act. See 8 U.S.C. §§ 1251(a)(3) (1982). In short, section 212(c) is inapplicable to the Sidas’ case.
The factual determination whether the Sidas have been continuously physically present in the United States for the seven years required under section 244(a)(1) is for the BIA to determine in the first instance. Phinpathya, 104 S.Ct. at 588 n. 6. The appropriate procedure would be for the Si-das to “ ‘follow the INS regulations and file a motion to reopen with the BIA.’ ” Alvarez-Ruiz v. INS, 749 F.2d 1314, 1316 (quoting Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1214 (9th Cir.1983)).
If, following the motion to reopen, the Board finds that the Sidas now meet the seven year physical presence test, the BIA should then consider their claim of extreme hardship. This claim should be examined in light of current circumstances. See Chookhae v. INS, 756 F.2d 1350 (9th Cir.1985) (per curiam).
To avoid unduly interfering with the BIA’s discretion and to enable petitioners to seek relief from the BIA, we stay our mandate for sixty days. If a motion to reopen and application for stay are filed with the BIA or District Director within this period, we stay our mandate for such further time as is required for disposition of the application for stay by the BIA or District Director. See 8 C.F.R. § 3.6(b) (1985); Alvarez-Ruiz v. INS, 749 F.2d at 1316.
REVERSED AND REMANDED for further proceedings consistent with the views expressed in this opinion.
. Section 1254(a)(1) permits suspension of deportation if the alien demonstrates (1) seven years continuous physical presence in the United States; (2) good moral character during that time; and (3) extreme hardship “to the alien or his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
. The new evidence was a doctor’s letter stating that the Sidas’ child had a severe respiratory condition and therefore should not return to Thailand.
. Attached to the February 26, 1979 motion to reopen was previously submitted documentation plus a letter from the Sidas’ doctor stating: "This child is suffering from recurrent tonsillitis and pulmonary congestion and fever by history. This child historically becomes very ill in Thailand. He shouldn't return to Thailand.” Mrs. Sida stated that this respiratory condition was "recently discovered” when the child traveled to Thailand to visit his grandparents. Thus, Mrs. Sida did submit new evidence justifying her motion to reopen and, in the absence of contrary findings, we cannot say that this evidence is baseless.
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_treat
|
C
|
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.
The YANKTON SIOUX TRIBE OF INDIANS, Appellee, and The United States of America, Intervenor/Appellant, v. STATE OF SOUTH DAKOTA and County of Charles Mix, South Dakota. The YANKTON SIOUX TRIBE OF INDIANS, Appellee, and The United States of America, v. STATE OF SOUTH DAKOTA and County of Charles Mix, South Dakota, Intervenor/Appellants.
Nos. 85-5289, 85-5290.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 10, 1986.
Decided July 22, 1986.
Daniel J. Doyle, Asst. Atty. Gen., Piere, S.D., and Robert L. Klarquist, Washington, D.C., for intervenor/appellant.
Arlinda Locklear, Washington, D.C., for appellee.
Before ARNOLD and FAGG, Circuit Judges, and OLIVER, Senior District Judge.
The HONORABLE JOHN W. OLIVER, Senior United States District Judge for the Western District of Missouri, sitting by designation.
FAGG, Circuit Judge.
The State of South Dakota appeals the district court’s determination, 604 F.Supp. 1146, that the Yankton Sioux Tribe of Indians (Tribe) owns the bed of Lake Andes located within the boundaries of the Yank-ton Sioux Tribe Reservation. We reverse.
The United States acquired sovereign title to Lake Andes and the land underlying its waters in 1803, as part of the Louisiana Purchase. Prior to the Louisiana Purchase, the Tribe, then nomadic, began periodically to hunt buffalo in the area around Lake Andes. Sometime after the Louisiana Purchase, however, the Tribe settled in the area on a permanent and exclusive basis. See Joint Appendix 14, 157-58; see also Appellee’s Brief at 4.
In 1858, the Tribe and the United States entered into a treaty in which the Tribe ceded all lands “owned, possessed, or claimed” by the Tribe except four hundred thousand acres that established the Yankton Sioux Tribe Reservation. 11 Stat. 743, 744. Lake Andes is located within the boundaries of the reservation. In consideration of the Tribe’s cession, the United States agreed “[t]o protect the said Yan[k]tons in the quiet and peaceable possession of the said tract of four hundred thousand acres of land so reserved for their future home.” Id.
The incident giving rise to this lawsuit occurred in 1976 when a number of individuals, all non-Indians, were permitted by South Dakota to enter the reservation to harvest a crop of kochia (fireweed) on the bed of Lake Andes. The Tribe then instituted this action against these individuals, claiming ownership to the lake bed and seeking a declaratory judgment, injunctive relief, and damages for wrongful conversion. South Dakota intervened in the Tribe’s lawsuit, and the individual defendants were then dismissed from the case.
In ruling upon cross-motions for summary judgment, the district court determined that the Tribe held aboriginal title to the bed of Lake Andes. Furthermore, the district court concluded that the United States, in acquiring the lake bed as part of the Louisiana Purchase, gained only “an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest.” Yankton Sioux Tribe of Indians v. Nelson, 521 F.Supp. 463, 466 (D.S.D.1981) (quoting Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 586, 5 L.Ed. 681 (1823)). Finally, because the United States has not extinguished the Tribe’s aboriginal title, the court concluded that the Tribe rather than the State of South Dakota owns the lake bed. Id.
On appeal, this court did not reach the merits of the Tribe’s claim of ownership but instead remanded the claim back to the district court for a determination of whether Lake Andes was navigable both at the time of the 1858 treaty and at the time of South Dakota’s entrance to the Union in 1889. Yankton Sioux Tribe of Indians v. Nelson, 683 F.2d 1160, 1163 n. 2 (8th Cir.1982) . On remand, the district court determined that Lake Andes was indeed navigable at those times. Yankton Sioux Tribe of Indians v. Nelson, 566 F.Supp. 1507 (D.S.D.1983).
None of the parties challenge the district court’s determination that Lake Andes was navigable. Hence, the only issue before us is the ownership of the bed of Lake Andes.
Initially, this court must identify the source of South Dakota’s and the Tribe’s competing claims of ownership. South Dakota bases its claim of ownership on the United States’ acquisition of the lake bed as part of the Louisiana Purchase.
As South Dakota properly observes, the United States, upon acquiring the Louisiana territory, immediately began to hold the land underlying all navigable waters in trust for future states, including South Dakota. See Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493 (1981). This trusteeship was necessary to ensure that South Dakota, upon its admission to the Union, would possess “the same rights, sovereignty and jurisdiction * * * as the original States possess within their respective borders,” Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 436, 18 L.Ed. 756 (1867), or, in other words, would “enter the Union and assume sovereignty on an ‘equal footing’ with the established States,” Montana, 450 U.S. at 551, 101 S.Ct. at 1251. South Dakota contends that this trusteeship was fulfilled in 1889 when South Dakota was admitted into the Union and, as an incident of its sovereignty, it was granted ownership of all lands underlying navigable waters, including Lake Andes, subject only to the United States’ power to ensure that such waters remain open for commerce. See id.
By contrast, the Tribe traces its claim of ownership to events predating South Dakota’s admission to the Union. Specifically, the Tribe claims the record “indisputably establishes that [it] held aboriginal title to Lake Andes at the time of the 1858 Treaty.” Appellee’s brief at 8. Furthermore, the Tribe argues that its aboriginal title was confirmed in the Treaty of 1858. According to the Tribe, because the 1858 treaty recognized its aboriginal title, and because its title has never been extinguished, the Tribe still holds aboriginal title to the lake bed. As a result, the Tribe claims it, rather than the State of South Dakota, owns the lake bed.
Aboriginal title provides the original natives of this country the exclusive right to occupy the lands and waters used by them and their ancestors before the United States asserted its sovereignty over these areas. People of the Village of Gambell v. Clark, 746 F.2d 572, 574 (9th Cir.1984); see also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-69, 94 S.Ct. 772, 777-78, 39 L.Ed.2d 73 (1974). In order to establish aboriginal title, an Indian tribe must show that it actually, exclusively, and continuously used the property for an extended period of time. Sac & Fox Tribe of Indians v. United States, 179 Ct.Cl. 8, 383 F.2d 991, 998 cert. denied, 389 U.S. 900, 88 S.Ct. 212, 19 L.Ed.2d 217 (1967); see also United States v. Sanie Fe Pacific Railroad Co., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941); Note, Aboriginal Land Rights in the United States and Canada, 60 N.D.L.Rev. 107, 113-14 (1984). Once established, the United States may extinguish aboriginal title at any time, see United States v. Sioux Nation of Indians, 448 U.S. 371, 415 n. 29, 100 S.Ct. 2716, 2740 n. 29, 65 L.Ed.2d 844 (1980); Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955), but an intent to extinguish Indian title by treaty must be plain and unambiguous. County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985); Santa Fe Pacific Railroad Co., 314 U.S. at 353-56; 62 S.Ct. at 255-56; Bennett County v. United States, 394 F.2d 8, 11-12 (8th Cir.1968).
In essence, at issue in this case are two competing claims of ownership, each of which is governed, by distinct and well-established doctrines. We find it significant that the Tribe did not have any claim of aboriginal title to the lake bed until after the Louisiana Purchase of 1803. Although it appears that the district court determined the Tribe had established its aboriginal title before the Louisiana Purchase, the record before us does not support such a finding. Indeed, the Tribe’s brief even acknowledges that the Tribe’s exclusive occupancy of the lake bed did not begin until approximately 1810. See Appellee’s Brief at 4. Hence, to the extent that the district court held the Tribe’s aboriginal title vested before the United States’ sovereign title, we conclude that finding is clearly erroneous.
The Tribe claims, however, that aboriginal title can ripen after sovereign title attaches and that the Tribe had been in the area long enough for its aboriginal title to attach by the time of the 1858 treaty. See Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct.Cl. 426, 490 F.2d 935, 941 (1974). Even assuming that aboriginal title can ever attach to the bed of navigable waters, we hold that, when sovereign title is in place and operation of the equal footing doctrine begins before any claim of aboriginal title has ripened, the state’s claim of ownership is preeminent unless a recognized exception to the equal footing doctrine is applicable.
The only recognized exception to the equal footing doctrine is a congressional conveyance of the land underlying navigable waters. The intent to convey, however, must either be explicit or clearly inferrable from the circumstances. See Montana, 450 U.S. at 551-52, 101 S.Ct. at 1251; United States v. Holt State Bank, 270 U.S. 49, 54-55, 46 S.Ct. 197, 198-99, 70 L.Ed. 465 (1926). The Tribe does not claim any congressional conveyance of the lake bed, either explicitly or by inference.
Accordingly, we conclude that title to the lake bed passed to South Dakota in 1889 under the equal footing doctrine. Our resolution of this issue makes it unnecessary for us to address the other claims raised by the parties.
The judgment of the district court is reversed.
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_circuit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Joseph A. PULEIO, Plaintiff, Appellant, v. George A. VOSE, Jr., etc., Defendant, Appellee.
No. 87-1135.
United States Court of Appeals, First Circuit.
Heard July 29, 1987.
Decided Oct. 9, 1987.
Thomas E. Kanwit, Boston, Mass., by Appointment of the Court, with whom James E. Carroll, Gaston Snow and Ely Bartlett, Boston, Mass., were on brief, for plaintiff, appellant.
Paula J. DeGiacomo, Asst. Atty. Gen., Acting Chief, Crim. Appellate Div., with whom James M. Shannon, Atty. Gen., and A. John Pappalardo, Chief, Crim. Bureau, Boston, Mass., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
SELYA, Circuit Judge.
Appellant, Joseph A. Puleio, was convicted of first degree murder in a Massachusetts state court in March 1981. The judgment was affirmed by the Massachusetts Supreme Judicial Court (SJC). See Commonwealth v. Puleio, 394 Mass. 101, 474 N.E.2d 1078 (1985) (Puleio I). The appellant thereafter filed for habeas corpus in the United States District Court for the District of Massachusetts, alleging that his state conviction was thrice tainted by error of constitutional dimension: (1) the lack of a correct definition of “malice aforethought” in the jury instructions worked a denial of substantive due process; (2) the court so restricted the cross-examination of a prosecution witness that the protection of the confrontation clause, U.S. Const. Amend. VI, was stripped away; and (3) the improper admission of hearsay testimony likewise impeded the constitutional right to confrontation. The district court, adopting the report and recommendation of a United States magistrate, dismissed the habeas application on the merits, but granted a certificate of probable cause. This appeal followed.
The same triumvirate of points which were rebutted by the district court are presented for our scrutiny. We will deal with them separately. We will not, however, narrate the facts of the incident in any expository fashion. The evidentiary predicate for Puleio’s murder conviction was well summarized by the SJC, see id. at 102, 474 N.E.2d 1078, and there would be little advantage in attempting federally to reinvent that particular wheel. Nonetheless, we will refer from time to time to particular facts developed during the trial as our consideration of the issues reasonably requires.
I. THE CHARGE.
Puleio maintained before the SJC and in the district court that the charge to the jury failed to afford a proper definition of “malice aforethought”, thereby abridging his fourteenth amendment right to due process of law. The Commonwealth’s threshold response has been — and still is — that no contemporaneous objection was interposed at trial to the challenged segment of the jury instructions. Inasmuch as state law plainly requires such an objection, see Commonwealth v. Fluker, 377 Mass. 123, 131, 385 N.E.2d 256 (1979), the appellee argues that petitioner is barred from raising the supposed defect in a federal habeas proceeding. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). The district court agreed, and so do we.
Under the now familiar Wainwright doctrine, a defendant’s failure to object at his original state trial may constitute an “independent and adequate state procedural ground” sufficient to foreclose collateral federal review of claimed constitutional error, id. at 87, 97 S.Ct. at 2506, so long as the state has a contemporaneous objection rule and has not waived its enforcement. McCown v. Callahan, 726 F.2d 1, 3 (1st Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 78 (1984). To escape from the preclusory effect of such a procedural default, the defendant is obliged to show both “cause” for, and “prejudice” from, his noncompliance with the rule. Id.
In the case at bar, Puleio concedes that Massachusetts employs a contemporaneous objection rule and that his trial counsel did not register a timely protest to the malice instruction. Notwithstanding, appellant contends that the Commonwealth waived enforcement of the rule, and that, in any event, he has shown sufficient cause and prejudice to clear the Wainwright hurdle. Having scoured the record with meticulous care, we find that these contentions wither and die in the bright glare of controlling precedent.
A. Waiver. Petitioner’s waiver argument reduces to the forlorn claim that the SJC jettisoned the procedural default (as a prospective bar to federal habeas review) when it considered and passed upon the merits of Puleio’s assignment of instructional error. To be sure, the SJC did examine the substance of this asseveration, concluding that although the malice instruction was erroneous, “it was harmless to the defendant beyond a reasonable doubt.” Puleio I, 394 Mass, at 107, 474 N.E.2d 1078. But, it is not enough for Puleio’s present purpose that some oblique consideration was given to the merits of his claim. Not every passing reference to substance dispels the onus of noncompliance with a contemporaneous objection rule. Waiver in such circumstances must entail the state court reaching the gist of the federal constitution question. The test “is the extent to which the state court relies upon federal rights, cases and legal principles in conducting its review____ The greater the reliance on federal doctrine, the more likely we are to find waiver.” Jackson v. Amaral, 729 F.2d 41, 45 (1st Cir.1984). Such reliance is notably absent in this instance.
Massachusetts law provides that the SJC may reach the merits of an appeal, notwithstanding procedural default, to determine whether a miscarriage of justice likely occurred. See M.G.L. ch. 278, § 33E (special standard of review in capital cases); Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982); Commonwealth v. Perry, 385 Mass. 639, 647, 433 N.E.2d 446 (1982); Commonwealth v. Roberts, 378 Mass. 116, 123, 389 N.E.2d 989 (1979). It is altogether evident that the SJC’s consideration of the alleged instructional error in Puleio’s case “went not to the federal question of... constitutional sufficiency, but to the state law question of whether a ‘substantial risk of a miscarriage of justice’ was present.” Gibson v. Butterworth, 693 F.2d 16, 17 (1st Cir.1982) (emphasis in original). The SJC itself was careful to point out that the neglect seasonably to press an objection to this aspect of the charge prevented analysis of petitioner’s claim under any but the state law miscarriage of justice standard:
[A]s the colloquy between the judge and counsel following the main part of the charge shows, the defendant... did not object to the instructions on malice. Rather, defense counsel joined the prosecutor in focusing on deliberate premeditation. Because defense counsel did not suggest to the judge any dissatisfaction with the judge’s further jury instructions, to obtain a reversal of the conviction on the ground that the jury charge was inadequate, the defendant must demonstrate that the error created a substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E.
Puleio I, 394 Mass, at 109, 474 N.E.2d 1078. Against this backdrop, it is disingenuous to argue that the SJC’s “harmless... beyond a reasonable doubt” finding was intended to incorporate the federal harmless error standard, see Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); United States v. Argentine, 814 F.2d 783, 789 (1st Cir.1987), into its review. We have repeatedly held, and today reaffirm, that SJC review under the discretionary state miscarriage of justice standard will not suffice, in and of itself, to bypass the Commonwealth’s contemporaneous objection rule. See McCown, 726 F.2d at 3; Gibson, 693 F.2d at 17. A clearer showing of waiver is manifestly necessary.
There is a second reason, too, why the white flag of waiver will not fly from these ramparts. It is crystal clear that the SJC rested its “miscarriage” decision exclusively on state law anent the malice aforethought point. Here as in McCown, 726 F.2d at 4, there was "no indication that the court researched, examined in depth, or intended to rely upon, federal law in the area.” Indeed, the SJC’s discussion of the malice instruction contained not a single reference to any federal case or statute. See Puleio I, 394 Mass, at 105-09, 474 N.E.2d 1078. Accordingly, we are constrained to conclude that the SJC's ascertainment of the benignity of the error “should be read to mean only that, as a matter of state law, the case did not pose a substantial risk of a miscarriage of justice.” Gibson, 693 F.2d at 18 (emphasis in original).
Before leaving the question of waiver, we must address yet another shot from the petitioner’s sling: Puleio’s exhortation that the federal district court waived the procedural default by reaching the merits of his constitutional claim. Novel though this bombardment may be, it is easily deflected. As we have already noted, the district court — far from pardoning Puleio’s procedural default — expressly relied on it as a primary basis for dismissing the habeas application. More importantly, principles of federalism and comity augur that only a state tribunal may waive such a procedural default so as to permit substantive collateral review in federal habeas jurisdiction. After all, the very purpose of the Wainwright limitation is “to accord appropriate respect to the sovereignty of the States in our federal system____ [If the state courts do not] indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the state by entertaining the claim.” Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). If federal courts were free at whim to overlook state procedural defaults, the Wainwright rule would lose all vitality. We will not countenance such a casual disparagement of state sovereignty. It follows that the district court, which did not purport to waive the procedural default, could not have done so in any event. Thus, the appellant’s parting shot falls well wide of the mark.
For all of these reasons, there was no waiver.
B. Cause and Prejudice. The Massachusetts contemporaneous objection rule being alive and well in this case, we turn next to petitioner’s contention that he has satisfied the obligation of showing cause and prejudice relative to noncompliance with that rule.
Puleio’s initial sally — that counsel’s failure contemporaneously to object resulted from inadvertence rather than a deliberate tactical decision, and that the Commonwealth should therefore be required to “justify” federal abstention — need not occupy us for long. The Court addressed this question squarely in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), holding that attorney error (not sinking to the level of ineffective assistance of counsel) cannot constitute “cause” within the Wainwright purview. Id. 106 S.Ct. at 2645-46. Rather, “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. 106 S.Ct. at 2646.
Perhaps recognizing that Murray slams the door on his inadvertence sortie, Puleio next argues that trial counsel’s “hearing difficulty” represents an “objective external factor” which impeded compliance with the contemporaneous objection rule to an extent sufficient to constitute cognizable cause. Yet, like his late-blooming claim of ineffective assistance of counsel itself, this contention was never raised in the state courts. As Murray teaches, the exhaustion doctrine requires that such initiatives be presented to the state courts on an independent basis before they may be used as building blocks to erect a palladium of cause sufficient to shelter an habeas applicant from the rigors of his procedural default. Murray, 106 S.Ct. at 2646. “[I]f a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available.” Id. The same holds true of the trial lawyer’s supposed hearing impairment. For purposes of the exhaustion requirement, counsel’s disability and counsel’s inability are functionally equivalent.
To slide one last deadbolt across an already-shut portal, we must note that Puleio eschewed the hearing impairment argument in district court, presenting it for the first time on appeal. Under well settled principles, we need not — indeed, should not — consider matters which were not raised below. United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987). And, we will not do so in this case.
Puleio has wholly failed to show adequate cause for his neglect to fulfill the requirements of the Commonwealth’s contemporaneous objection rule. Because under Wainwright, 433 U.S. at 86-87, 97 S.Ct. at 2506-07, the twin requirements of cause and prejudice are conjunctive, the absence of any demonstration of the former renders inquiry into the latter unnecessary. The trial court’s charge cannot successfully be challenged in this proceeding.
II. SUBATCH’S TESTIMONY.
At trial, petitioner sought to impeach the testimony of Wayne Subatch, a key prosecution witness, by reference to Subatch’s criminal record. A state statute, M.G.L. ch. 233, § 21, provided that to impeach a witness in this fashion, the conviction must be proved by a court record or a certified copy. See Commonwealth v. Atkins, 386 Mass. 593, 600, 436 N.E.2d 1203 (1982). In the absence of such proof, the Commonwealth declined to agree to the introduction of prior convictions through an (unofficial) probation department form known as a “blue sheet.” The trial judge ordered that Subatch be examined out of the presence of the jury to determine whether he had been convicted of the crimes limned in the blue sheet, and if so, whether he had been represented by counsel during the predicate legal proceedings. Subatch acknowledged during.this voir dire that he was the person who had been convicted of a number of the offenses, and testified further that he had been represented by counsel in connection with some (though not all) of those convictions.
In toto, four convictions were involved: one for assault with a dangerous weapon (1976), one for assault and battery of a police officer (1977), one for disorderly conduct (1977), and one for larceny (1979). Although the record is less than explicit on this point, it appears that after the voir dire the trial judge was willing to allow cross-examination regarding the first three of these convictions, notwithstanding the defense’s failure to comply with M.G.L. ch. 233, § 21. Puleio’s counsel did, in fact, cross-question Subatch about his two 1977 convictions. For reasons not readily apparent on the face of the record, he made no effort to impeach Subatch with the 1976 conviction. Although the petitioner argues that the state court precluded him from cross-examining the witness about that episode, the record simply fails to bear out this assertion. Hence, the only bit of impeachment evidence which can be said to have been excluded by the court was the 1979 larceny conviction.
Appellant trumpets that this restriction on cross-examination denied him his constitutional rights to confrontation and due process. See U.S. ConstAmend. VI, XIV. Though loudly proclaimed, the call signifies nothing of any substance. Defense counsel took full advantage of the opportunity to conduct a lengthy, penetrating cross-examination of Subatch, during which the jury heard evidence that the witness had been found guilty of disorderly conduct and an assault upon a peace officer. He could have — but did not — grill Subatch about his conviction for assault with a dangerous weapon. There is no rational basis, under the circumstances, for regarding the limitation against use of a lone larceny conviction (of questionable relevance, we might add) as a violation of Puleio’s constitutional rights.
We need not probe the point too deeply, however, for it is perfectly plain that any restriction on the right of cross-examination was of petitioner’s own making. Puleio had ample notice that Subatch would testify for the prosecution, and the Massachusetts rule mandating that impeachment evidence of prior criminal convictions be by court records or certified copies thereof is of long standing. E.g., Commonwealth v. Walsh, 196 Mass. 369, 369-70, 82 N.E. 19 (1907). Having frittered away a period of no less than several months within which he could have procured the, requisite documentation but did not, petitioner cannot meaningfully be heard to insist that this was the cornerstone of his defense.
The law ministers to the vigilant not to those who sleep upon perceptible rights. Like any litigant, a criminal defendant cannot routinely be rewarded for somnolence and lassitude. Once these verities are acknowledged, it becomes readily apparent that the trial court denied the defendant no right which he had not already sacrificed on his own. No error of constitutional magnitude attended the enforcement of M.G.L. ch. 233, § 21 in the circumstances of this case.
III. THE EXCITED UTTERANCE.
Jacqueline LaMothe, the barkeep at the tavern where the homicide took place, testified about her recollection of the evening’s events. According to the SJC’s summary of the facts — a summary which we have found, on perscrutation of the full record, to be essentially accurate — LaMothe indicated that, while she was attending to patrons in the pub,
She heard a shot and then a scream, and that then someone ran into the bar and told her to telephone for an ambulance. She testified that after making the telephone call she went outside and “asked who had shot the gun once, and nobody answered me.” Over the defendant’s objection, LaMothe testified that Bonnie Eaton then “yelled out” a response to her inquiry. The defendant again objected [citing the rule against hearsay]. The prosecutor indicated that she relied on the “spontaneous utterance” exception to that rule. See Commonwealth v. Hampton, 351 Mass. 447 [221 N.E.2d 766] (1966). The judge allowed the prosecutor to ask LaMothe, “What did Bonnie Eaton say?” LaMothe responded, “Joe Puleio.”
Puleio I, 394 Mass. at 104, 474 N.E.2d 1078.
Appellant urges that LaMothe’s account did not qualify for admission into evidence under the excited utterance exception to the hearsay rule. Even if it did, he says, it was error to admit the narrative because its probative value was substantially overbalanced by its prejudicial effect. Cf. Fed. R.Evid.'403. And, petitioner builds to the ultimate crescendo: that admission of this highly incriminating hearsay was in blatant derogation of the federal Constitution’s confrontation clause.
The first two of these forays are easily turned aside. Habeas review does not ordinarily extend to state court rulings on the admissibility of evidence. Burgett v. Texas, 389 U.S. 109, 113-14, 88 S.Ct. 258, 260-61, 19 L.Ed.2d 319 (1967); Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 286, 86 L.Ed. 166 (1941). The federal judiciary holds no roving commission to monitor case-by-case compliance with rules of evidence in the trial courts of the several states. Thus, our role is not to determine whether LaMothe’s testimony was admissible under the state’s evidentiary precedents. In that regard, we are “bound by the Massachusetts court’s interpretation of [its] evidentiary law____” McLaughlin v. Vinzant, 522 F.2d 448, 450 (1st Cir.), cert. denied, 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975). See also Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir.1983) (the issue on federal habeas review is not “whether the statements are admissible under the state evidentiary rules”), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); Olson v. Green, 668 F.2d 421, 428 n. 12 (8th Cir.1982) (“state court’s interpretation of its own rules of evidence is binding” upon federal court). Cf. Salemme v. Ristaino, 587 F.2d 81, 87 (1st Cir.1978) (interpretation of state statute by state’s highest tribunal binds federal court). In habeas jurisdiction, we review state convictions solely for error of constitutional stature. See 28 U.S.C. § 2254(a). Accordingly, Puleio’s contention that, under Massachusetts’s code of evidence, the spontaneous utterance exception was inapposite does not comprise proper grist for the federal habeas mill. The same holds true of his lamentation that the evidence should have been excluded under state law because its prejudicial impact outweighed its probative value.
The last furculum of the petitioner’s challenge is not so facilely to be dismissed. It is altogether fitting that we assay his assertion that the state evidentiary ruling — the application of the spontaneous utterance exception to the hearsay rule in the circumstances of his case — deprived him of his sixth amendment right to confrontation. See Olson v. Green, 668 F.2d at 428 n. 12 (question of “whether the statements at issue fall within a ‘firmly rooted’ hearsay exception implicates matters of constitutional magnitude under the confrontation clause,” cognizable in federal court on habeas review).
We start with the settled notion that the confrontation clause does not preclude admission of all out-of-court statements. United States v. Bourjaily, —U.S.-, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987); Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); Mattox v. United States, 156 U.S. 237, 242-44, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). If woodenly construed, the right of the accused “to be confronted with the witnesses against him” would foreclose the use of virtually all declarant-absent hearsay, no matter how reliable. See Bourjaily, 107 S.Ct. at 2782 (“literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable”). The Court has rejected that view as “unintended and too extreme.” Roberts, 448 U.S. at 63, 100 S.Ct. at 2537. By the same token, however, the Court has made it clear that the sixth amendment does more than merely codify the common law hearsay rule and its myriad exceptions. Id. at 63-64, 100 S.Ct. at 2537-38. See also California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970); United States v. Iron Shell, 633 F.2d 77, 87 n. 13 (8th Cir.1980). Reconciliation of hearsay principles with the confrontation clause, therefore, calls on a reviewing court to weigh the interests served by each, with particular attention to the core concern that any admitted hearsay must fall within an exception to the hearsay rule “firmly enough rooted in our jurisprudence” to satisfy the strong underlying interest in an accurate and reliable factfinding process. Bourjaily, 107 S.Ct. at 2783. Since such exceptions, once established, fall “outside the compass of the general hearsay exclusion,” id., the use of this type of evidence will not run afoul of the confrontation clause.
The nature of our inquiry in this regard has recently been clarified. In Roberts, the Court articulated an accommodation between the competing concerns which, on the one hand, allow for the admission of some (better credentialed) hearsay and those which, on the second hand, guarantee a criminal defendant the right to face his accusers. The Court concluded:
[Cjertain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.’...
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.
448 U.S. at 66, 100 S.Ct. at 2539. Since Roberts was announced, federal appellate courts have marched in near-perfect unison to the Roberts tune. See United States v. Moore, 791 F.2d 566, 574 (7th Cir.1986); United States v. Massa, 740 F.2d 629, 638-40 (8th Cir.1984); United States v. Ordonez, 722 F.2d 530, 535-36 (9th Cir.1983); United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d at 1056-57; United States v. Washington, 688 F.2d 953, 959 (5th Cir.1982).
In Bourjaily, the Court, while retaining the score of Roberts, has lately rearranged the melody. Noting that its previous decisions had the effect of establishing only “a general approach to the problem [of reconciling hearsay exceptions with the confrontation clause],” Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, the Bourjaily Court decreed that, with reference to out-of-court declarations of unavailable co-conspirators, “the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of [such] statements____” Bourjaily, 107 S.Ct. at 2783. Accordingly, to the extent that a traditional hearsay exception has sufficiently long and sturdy roots, a determination that the exception applies obviates the need for a separate assessment of the indicia of reliability which may or may not attend the evidence.
In this case, Bonnie Eaton did not testify. She was concededly unavailable during trial. Thus, the constitutionality of admitting LaMothe’s testimony turns on whether the basis for its admission grew out of a “firmly rooted hearsay exception” within the ambit of the Bourjaily/Roberts rule. The Supreme Court itself has had occasion to identify only a few hearsay exceptions which satisfy this criterion: e.g., coconspirator statements, see Bourjaily, 107 S.Ct. at 2782-83; business records, see Roberts, 448 U.S. at 66 n. 8, 100 S.Ct. at 2539 n. 8; cross-examined prior trial testimony, see Mancusi v. Stubbs, 408 U.S. 204, 213-16, 92 S.Ct. 2308, 2313-15, 33 L.Ed.2d 293 (1972); and dying declarations, see Pointer v. Texas, 380 U.S. at 407, 85 S.Ct. at 1069. The Court has not spoken to whether the excited utterance exception measures up to the Bourjaily/Roberts benchmark. Nor have we. Today, we resolve that inquiry for ourselves in the affirmative. Indeed, we regard this question and answer as having been foreshadowed by our pre-Roberts decision in McLaughlin v. Vinzant, 522 F.2d 448 (1st Cir.), cert. denied, 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975).
In McLaughlin, appellant sought habeas relief on the ground that the admission of testimony as to an incriminating out-of-court statement attributed to a codefendant abridged the right to confrontation. The witness in McLaughlin’s case testified that the defendant’s companion, Dellamano, had rushed through the door immediately after the shooting, exclaiming that McLaughlin shot someone. The testimony was allowed despite the fact that Dellamano did not take the stand and was thus unavailable for cross-examination. In rejecting appellant's sixth amendment challenge, we acknowledged that while the protections of the confrontation clause are not necessarily coextensive with hearsay principles, 522 F.2d at 451 n. 1, “the spontaneous exclamation exception to the hearsay rule is one of long standing...” Id. at 450. Accordingly, we affirmed the district court’s denial of the writ, finding that “neither [the excited utterance] exception in general nor its application permitting the admission of testimony as to [declarantes utterance contravenes the policy embodied in the confrontation clause.” Id. at 450-51.
As adumbrated by McLaughlin, we hold that spontaneous utterances comprise a firmly rooted hearsay exception under Bourjaily, 107 S.Ct. at 2782-83, and Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538-39. To borrow a phrase succinctly employed in the Court's most recent refinement of the principle, the special evidentiary treatment accorded to spontaneous exclamations is, we think, “steeped in our jurisprudence.” Bourjaily, 107 S.Ct. at 2783. In so ruling, we take note of the long and storied lineage of the exception. It was acknowledged in England, at common law. E.g., Aveson v. Kinnaird, 102 Eng.Rep. 1258 (1805); Thompson v. Trevanion, 90 Eng.Rep. 179 (1693). Examples of the genre are to be found in cases from many American jurisdictions, dating back to the nineteenth century. E.g., Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 407-08, 19 L.Ed. 437 (1869); Travelers’ Ins. Co. v. Sheppard, 85 Ga. 751, 775, 12 S.E. 18 (1890); Dismukes v. State, 83 Ala. 287, 289, 3 So. 671 (1887); State v. Wagner, 61 Me. 178, 195 (1873). As Professor Wig-more has written:
The limits of the Exception may be elusive and the practice in different courts may vary. But that the core and substance of such an Exception is universally accepted cannot be open to doubt.
Historically, this conscious recognition appears in England before the end of the 1700s... though it is only within the last few generations that it is firmly and unquestionably established. Such is, however, the inherent congruity of the doctrine that we are still able to resort to the earliest precedent for a succinct and accurate statement of the principle.
6 J. Wigmore, Evidence § 1080 at 137 (3d ed. 1940). In our view, it is indisputable that use of such spontaneous exclamations falls within one of the most deeply embedded of hearsay exceptions.
We are quick to remark that we are not alone in our view of the relationship between excited utterance hearsay and the confrontation clause. Those federal courts which have passed on the issue to date, insofar as we can determine, have uniformly reached a similar conclusion. See United States v. Moore, 791 F.2d at 574 (“The excited utterance exception is a firmly rooted hearsay exception.”); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d at 1057 (generally, “statements falling within the excited utterance exception do not contravene the policies of the confrontation clause”). See also United States v. Cree, 778 F.2d 474, 501-02 (8th Cir.1985) (Oliver, J., dissenting) (distinguishing excited utterances from evidence admitted under residual hearsay exception, Fed.R.Evid. 803(24)).
Thus, we rule that excited utterance testimony, generally, meets the Bourjaily/Roberts criterion. Yet, that does not complete our task. Notwithstanding that Bourjaily, 107 S.Ct. at 2783, relieves us of the duty to inquire exhaustively into the presence of indicia of reliability once we find that a firmly rooted hearsay exception is in play, see ante at 20, we stop short of holding that a federal court, in habeas jurisdiction, need make no inquiry whatever into the dependability of excited utterance testimony. Plainly, the mere fact that a state court, in admitting evidence, tucks it into a pigeonhole which bears the label of a time-honored hearsay exception cannot be entirely dispositive. Our habeas powers are not so blunted that we pay obeisance to the symbols of justice at the expense of substance. Thus, the state court record must show a sufficient factual predicate rationally to support the affixation of the label. Cf. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (evidence sufficient to support conviction so long as, after viewing it in the light most favorable to prosecution, “any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt”) (emphasis in original). But, once this is done — once the Commonwealth points to proof adequate to “show by a preponderance of the evidence that the... statement falls within a recognized exception to the hearsay rule____” United States v. Katsougrakis, 715 F.2d at 775— the federal inquiry has been answered.
This standard has been met in the case at bar. There was ample evidence before the trial court to allow the admission of Eaton’s statement, through LaMothe, under the excited utterance exception to the hearsay rule. Although Puleio has directed us to some evidence that Eaton might not have observed the murder (e.g., conflicting testimony as to Eaton’s precise location), the overall record positions her as a likely onlooker. See Puleio I, 394 Mass, at 105, 474 N.E.2d 1078. The other desiderata urged upon us by the appellant, such as the fact that all of the witnesses (including Eaton) had been drinking heavily, go properly to the weight of LaMothe’s testimony rather than to the constitutionality of its introduction into evidence. Likewise, appellant’s speculation that Eaton may have harbored some animosity against him furnishes no
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:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
DRAPER v. UNITED STATES.
No. 136.
Argued December 11, 1958.
Decided January 26, 1959.
Osmond K. Fraenkel argued the cause and filed a brief for petitioner.
Leonard, B. Sand argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Jerome M. Feit.
Mr. Justice Whittaker
delivered the opinion of the Court.
Petitioner was convicted of knowingly concealing and transporting narcotic drugs in Denver, Colorado, in violation of 35 Stat. 614, as amended, 21 U. S. C. § 174. His conviction was based in part on the use in evidence against him of two “envelopes containing [865 grains of] heroin” and a hypodermic syringe that had been taken from his person, following his arrest, by the arresting officer. Before the trial, he moved to suppress that evidence as having been secured through an unlawful search and seizure. After hearing, the District Court found that the arresting officer had probable cause to arrest petitioner without a warrant and that the subsequent search and seizure were therefore incident to a lawful arrest, and overruled the motion to suppress. 146 F. Supp. 689. At the subsequent trial, that evidence was offered and, over petitioner’s renewed objection, was received in evidence, and the trial resulted, as we have said, in petitioner’s conviction. The Court of Appeals affirmed the conviction, 248 F. 2d 295, and certiorari was sought on the sole ground that the search and seizure violated the Fourth Amendment and therefore the use of the heroin in evidence vitiated the conviction. We granted the writ to determine that question. 357 U. S. 935.
The evidence offered at the hearing on the motion to suppress was not substantially disputed. It established that one Marsh, a federal narcotic agent with 29 years’ experience, was stationed at Denver; that one Hereford had been engaged as a “special employee” of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to Marsh regarding violations of the narcotic laws, for which Hereford was paid small sums of money, and that Marsh had always found the information given by Hereford to be accurate and reliable. On September 3, 1956, Hereford told Marsh that James Draper (petitioner) recently had taken up abode at a stated address in Denver and “was peddling narcotics to several addicts” in that city. Four days later, on September 7, Hereford told Marsh “that Draper had gone to Chicago the day before [September 6] by train [and] that he was going to bring back three ounces of heroin [and] that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train.” Hereford also gave Marsh a detailed physical description of Draper and of the clothing he was wearing, and said that he would be carrying “a tan zipper bag,” and that he habitually “walked real fast.”
On the morning of September 8, Marsh and a Denver police officer went to the Denver Union Station and kept watch over all incoming trains from Chicago, but they did not see anyone fitting the description that Hereford had given. Repeating the process on the morning of September 9, they saw a person, having the exact physical attributes and wearing the precise clothing described by Hereford, alight from an incoming Chicago train and start walking “fast” toward the exit. He was carrying a tan zipper bag in his right hand and the left was thrust in his raincoat pocket. Marsh, accompanied by the police officer, overtook, stopped and arrested him. They then searched him and found the two “envelopes containing heroin” clutched in his left hand in his raincoat pocket, and found the syringe in the tan zipper bag. Marsh then took him (petitioner) into custody. Hereford died four days after the arrest and therefore did not testify at the hearing on the motion.
26 U. S. C. (Supp. V) § 7607, added by § 104 (a) of the Narcotic Control Act of 1956, 70 Stat. 570, provides, in pertinent part:
“The Commissioner . . . and agents, of the Bureau of Narcotics . . . may—
“(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs . . . where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.”
The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh “probable cause” within the meaning of the Fourth Amendment, and “reasonable grounds” within the meaning of § 104 (a), supra, to believe that petitioner had committed or was committing a violation of the narcotic laws. If it did, the arrest, though without a warrant, was lawful and the subsequent search of petitioner’s person and the seizure of the found heroin were validly made incident to a lawful arrest, and therefore the motion to suppress was properly overruled and the heroin was competently received in evidence at the trial. Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Giordenello v. United States, 357 U. S. 480, 483.
Petitioner does not dispute this analysis of the question for decision. Rather, he contends (1) that the information given by Hereford to Marsh was “hearsay” and, because hearsay is not legally competent evidence in a criminal trial, could not legally have been considered, but should have been put out of mind, by Marsh in assessing whether he had “probable cause” and “reasonable grounds” to arrest petitioner without a warrant, and (2) that, even if hearsay could lawfully have been considered, Marsh’s information should be held insufficient to show “probable cause” and “reasonable grounds” to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant.
Considering the first contention, we find petitioner entirely in error. Brinegar v. United States, 338 U. S. 160, 172-173, has settled the question the other way. There, in a similar situation, the convict contended “that the factors relating to inadmissibility of the evidence [for] purposes of proving guilt at the trial, deprive[d] the evidence as a whole of sufficiency to show probable cause for the search . . . .” Id., at 172. (Emphasis added.) But this Court, rejecting that contention, said: “[T]he so-called distinction places a wholly unwarranted emphasis upon the criterion of admissibility in evidence, to prove the accused’s guilt, of the facts relied upon to show probable cause. That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. It approaches requiring (if it does not in practical effect require) proof sufficient to establish guilt in order to substantiate the existence of probable cause. There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” 338 U. S., at 172-173.
Nor can we agree with petitioner’s second contention that Marsh’s information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by “special employee” Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a “fast” pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had “reasonable grounds” to believe that the remaining unverified bit of Hereford's information — that Draper would have the heroin with him — was likewise true.
“In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, supra, at 175. Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.
We believe that, under the facts and circumstances here, Marsh had probable cause and reasonable grounds to believe that petitioner was committing a violation of the laws of the United States relating to narcotic drugs at the time he arrested him. The arrest was therefore lawful, and the subsequent search and seizure, having been made incident to that lawful arrest, were likewise valid. It follows that petitioner’s motion to suppress was properly denied and that the seized heroin was competent evidence lawfully received at the trial.
Affirmed.
The Chief Justice and Mr. Justice Frankfurter took no part in the consideration or decision of this case.
The Fourth Amendment of the Constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Hereford told Marsh that Draper was a Negro of light brown complexion, 27 years of age, 5 feet 8 inches tall, weighed about 160 pounds, and that he was wearing a light colored raincoat, brown slacks and black shoes.
The terms “probable cause” as used in the Fourth Amendment and “reasonable grounds” as used in § 104 (a) of the Narcotic Control Act, 70 Stat. 570, are substantial equivalents of the same meaning. United States v. Walker, 246 F. 2d 519, 526 (C. A. 7th Cir.); cf. United States v. Bianco, 189 F. 2d 716, 720 (C. A. 3d Cir.).
In United States v. Heitner, 149 F. 2d 105, 106 (C. A. 2d Cir.), Judge Learned Hand said “It is well settled that an arrest may be made upon hearsay evidence; and indeed, the ‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.”
Grau v. United States, 287 U. S. 124, 128, contains a dictum that “A search warrant may issue only upon evidence which would be competent in the trial of the offense before a jury (Giles v. United States, 284 Fed. 208; Wagner v. United States, 8 F. (2d) 581) . . . .” But the principles underlying that proposition were thoroughly discredited and rejected in Brinegar v. United States, supra, 338 U. S., at 172-174, and notes 12 and 13. There are several cases in the federal courts that followed the now discredited dictum in the Grau case, Simmons v. United States, 18 F. 2d 85, 88; Worthington v. United States, 166 F. 2d 557, 564-565; cf. Reeve v. Howe, 33 F. Supp. 619, 622; United States v. Novero, 58 F. Supp. 275, 279, but the great weight of authority is the other way. See, e. g., Wrightson v. United States, 236 F. 2d 672 (C. A. D. C. Cir.); United States v. Heitner, supra (C. A. 2d Cir.); United States v. Bianco, 189 F. 2d 716 (C. A. 3d Cir.); Wisniewski v. United States, 47 F. 2d 825 (C. A. 6th Cir.); United States v. Walker, 246 F. 2d 519 (C. A. 7th Cir.); Mueller v. Powell, 203 F. 2d 797 (C. A. 8th Cir.). And see Note, 46 Harv. L. Rev. 1307, 1310-1311, criticizing the Grau dictum.
To the same effect are: Husty v. United States, 282 U. S. 694, 700-701; Dumbra v. United States, 268 U. S. 435, 441; Steele v. United States No. 1, 267 U. S. 498, 504-505; Stacey v. Emery, 97 U. S. 642, 645; Brinegar v. United States, supra, at 175, 176.
Weeks v. United. States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Giordenello v. United States, 357 U. S. 480, 483.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_altdisp
|
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 an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) 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, 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: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
FAIRFAX FAMILY FUND, INC. v. CALIFORNIA.
No. 124.
Decided October 11, 1965.
Herman F. Selvin for appellant.
Thomas C. Lynch, Attorney General of California, Charles E. Corker, Assistant Attorney General, and Arthur C. de Goede and H. Warren Siegel, Deputy Attorneys General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES ex rel. Raymond DE MARTINI, Relator-Appellant, v. William A. CARROLL, United States Marshal, etc., Respondent-Appellee.
No. 306, Docket 22159.
United States Court of Appeals Second Circuit.
Argued June 27, 1951.
Decided June 27, 1951.
Abraham Lebenkoff, New York City (John M. Smith, Jr., Philadelphia, Pa., of counsel), for relator-appellant.
Irving H. Saypol, U. S. Atty. for Southern District of New York, New York City (Roy Cohn, Asst. U. S. Atty., New York City, of counsel), for respondent-appellee.
Before SWAN, Chief Judge, and AUGUSTUS N. HAND and L. HAND, Circuit Judges.
PER CURIAM.
Order affirmed in open court;
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_respondentstate
|
41
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
NEW ENERGY COMPANY OF INDIANA v. LIMBACH, TAX COMMISSIONER OF OHIO, et al.
No. 87-654.
Argued March 29, 1988
Decided May 31, 1988
Scalia, J., delivered the opinion for a unanimous Court.
Herman Schwartz argued the cause for appellant. With him on the briefs was David J. Young.
Rickard C. Farrin, Assistant Attorney General of Ohio, argued the cause for appellees. With him on the brief for ap-pellees Limbach et al. was Anthony J. Celebrezze, Jr., Attorney General. David C. Crago and Karen B. Mozenter filed a brief for appellee South Point Ethanol.
Briefs of amici curiae urging affirmance were filed for the State of Idaho et al. by Michael H. Gottesman, Peter 0. Shinevar, James T. Jones, Attorney General of Idaho, Tam B. Ormiston, Assistant Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, and Hubert H. Humphrey III, Attorney General of Minnesota; for the State of Illinois by Neil F. Hartigan, Attorney General, Shawn W. Denney, Solicitor General, and Rosalyn B. Kaplan and Michael Wynne, Assistant Attorneys General; and for the National Governors’ Association et al. by Benna Ruth Solomon and Stuart A. Smith.
Justice Scalia
delivered the opinion of the Court.
Appellant New Energy Company of Indiana has challenged the constitutionality of Ohio Rev. Code Ann. §5735.145(B) (1986), a provision that awards a tax credit against the Ohio motor vehicle fuel sales tax for each gallon of ethanol sold (as a component of gasohol) by fuel dealers, but only if the ethanol is produced in Ohio or in a State that grants similar tax advantages to ethanol produced in Ohio. The question presented is whether § 5735.145(B) discriminates against interstate commerce in violation of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3.
I
Ethanol, or ethyl alcohol, is usually made from com. In the last decade it has come into widespread use as an automotive fuel, mixed with gasoline in a ratio of 1 to 9 to produce what is called gasohol. The interest in ethanol emerged in reaction to the petroleum market dislocations of the early 1970’s. The product was originally promoted as a means of achieving energy independence while providing a market for surplus corn; more recently, emphasis has shifted to its environmental advantages as a replacement for lead in enhancing fuel octane. See United States Department of Agriculture, Ethanol: Economic and Policy Tradeoffs 1 (1988). Ethanol was, however (and continues to be), more expensive than gasoline, and the emergence of ethanol production on a commercial scale dates from enactment of the first federal subsidy, in the form of an exemption from federal motor fuel excise taxes, in 1978. See Energy Tax Act of 1978, Pub. L. 95-618, § 221, 92 Stat. 3185, codified, as amended, at 26 U. S. C. §§4041, 4081 (1982 ed. and Supp. IV). Since then, many States, particularly those in the grain-producing areas of the country, have enacted their own ethanol subsidies. See United States General Accounting Office, Importance and Impact of Federal Alcohol Fuel Tax Incentives 5 (1984). Ohio first passed such a measure in 1981, providing Ohio gasohol dealers a credit of so many cents per gallon of ethanol used in their product against the Ohio motor vehicle fuel sales tax payable on both ethanol and gasoline. This credit was originally available without regard to the source of the ethanol. See Act of June 10, 1981, § 1, 1981-1982 Ohio Leg. Acts 1693, 1731-1732. In 1984, however, Ohio enacted § 5735.145(B), which denies the credit to ethanol coming from States that do not grant a tax credit, exemption, or refund to ethanol from Ohio, or, if a State grants a smaller tax advantage than Ohio’s, granting only an equivalent credit to ethanol from that State.
Appellant is an Indiana limited partnership that manufactures ethanol in South Bend, Indiana, for sale in several States, including Ohio. Indiana repealed its tax exemption for ethanol, effective July 1, 1985, see Act of Mar. 5, 1984, §§ 4, 5, 8, 1984 Ind. Acts 189, 194-195, at which time it also passed legislation providing a direct subsidy to Indiana ethanol producers (the sole one of which was appellant). See Ind. Code §§4-4-10.1 to 4-4-10.8 (Supp. 1987). Thus, by reason of Ohio’s reciprocity provision, appellant’s ethanol sold in Ohio became ineligible for the Ohio tax credit. Appellant sought declaratory and injunctive relief in the Court of Common Pleas of Franklin County, Ohio, alleging that § 5735.145(B) violated the Commerce Clause by discriminating against out-of-state ethanol producers to the advantage of in-state industry. The court denied relief, and the Ohio Court of Appeals affirmed. A divided Ohio Supreme Court initially reversed, finding that §5735.145(B) discriminated without adequate justification against products of out-of-state origin, and shielded Ohio producers from out-of-state competition. The Ohio Supreme Court then granted appel-lees’ motion for rehearing and reversed itself, a majority of the court finding that the provision was not protectionist or unreasonably burdensome. 32 Ohio St. 3d 206, 513 N. E. 2d 258 (1987). We noted probable jurisdiction. 484 U. S. 984 (1987).
II
It has long been accepted that the Commerce Clause not only grants Congress the authority to regulate commerce among the States, but also directly limits the power of the States to discriminate against interstate commerce. See, e. g., Hughes v. Oklahoma, 441 U. S. 322, 326 (1979); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-535 (1949); Welton v. Missouri, 91 U. S. 275 (1876). This “negative” aspect of the Commerce Clause prohibits economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. See, e. g., Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 270-273 (1984); H. P. Hood & Sons, supra, at 532-533; Guy v. Baltimore, 100 U. S. 434, 443 (1880). Thus, state statutes that clearly discriminate against interstate commerce are routinely struck down, see, e. g., Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982); Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980); Dean Milk Co. v. Madison, 340 U. S. 349 (1951), unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism, see, e. g., Maine v. Taylor, 477 U. S. 131 (1986).
The Ohio provision at issue here explicitly deprives certain products of generally available beneficial tax treatment because they are made in certain other States, and thus on its face appears to violate the cardinal requirement of nondiscrimination. Appellees argue, however, that the availability of the tax credit to some out-of-state manufacturers (those in States that give tax advantages to Ohio-produced ethanol) shows that the Ohio provision, far from discriminating against interstate commerce, is likely to promote it, by encouraging other States to enact similar tax advantages that will spur the interstate sale of ethanol. We rejected a similar contention in an earlier “reciprocity” case, Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366 (1976). The regulation at issue there permitted milk from out of State to be sold in Mississippi only if the State of origin accepted Mississippi milk on a reciprocal basis. Mississippi put forward, among other arguments, the assertion that “the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause.” Id., at 378. In response, we said that “Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement.” Id., at 379. More recently, we characterized a Nebraska reciprocity requirement for the export of ground water from the State as “facially discriminatory legislation” which merited “ ‘strictest scrutiny.’ ” Sporhase v. Nebraska ex rel. Douglas, supra, at 958, quoting Hughes v. Oklahoma, supra, at 337.
It is true that in Cottrell and Sporhase the effect of a State’s refusal 'to accept the offered reciprocity was total elimination of all transport of the subject product into or out of the offering State; whereas in the present case the only effect of refusal is that the out-of-state product is placed at a substantial commercial disadvantage through discriminatory tax treatment. That makes no difference for purposes of Commerce Clause analysis. In the leading case of Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935), the New York law excluding out-of-state milk did not impose an absolute ban, but rather allowed importation and sale so long as the initial purchase from the dairy farmer was made at or above the New York State-mandated price. In other words, just as the appellant here, in order to sell its product in Ohio, only has to cut its profits by reducing its sales price below the market price sufficiently to compensate the Ohio purchaser-retailer for the forgone tax credit, so also the milk wholesaler-distributor in Baldwin, in order to sell its product in New York, only had to cut its profits by increasing its purchase price above the market price sufficiently to meet the New York-prescribed minimum. We viewed the New York law as “an economic barrier against competition” that was “equivalent to a rampart of customs duties.” Id., at 527. Similarly, in Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 349-351 (1977), we found invalid under the Commerce Clause a North Carolina statute that did not exclude apples from other States, but merely imposed additional costs upon Washington sellers and deprived them of the commercial advantage of their distinctive grading system. The present law likewise imposes an economic disadvantage upon out-of-state sellers; and the promise to remove that if reciprocity is accepted no more justifies disparity of treatment than it would justify categorical exclusion. We have indicated that reciprocity requirements are not per se unlawful. See Cottrell, supra, at 378. But the case we cited for that proposition, Kane v. New Jersey, 242 U. S. 160, 167-168 (1916), discussed a context in which, if a State offered the reciprocity did not accept it, the consequence was, to be sure, less favored treatment for its citizens, but nonetheless treatment that complied with the minimum requirements of the Commerce Clause. Here, quite to the contrary, the threat used to induce Indiana’s acceptance is, in effect, taxing a product made by its manufacturers at a rate higher than the same product made by Ohio manufacturers, without (as we shall see) justification for the disparity.
Appellees argue that §5735.145(B) should not be considered discrimination against interstate commerce because its practical scope is so limited. Apparently only one Ohio ethanol manufacturer exists (appellee South Point Ethanol) and only one out-of-state manufacturer (appellant) is clearly disadvantaged by the provision. Our cases, however, indicate that where discrimination is patent, as it is here, neither a widespread advantage to in-state interests nor a widespread disadvantage to out-of-state competitors need be shown. For example, in Bacchus Imports, Ltd. v. Dias, supra, we held unconstitutional under the Commerce Clause a special exemption from Hawaii’s liquor tax for certain locally produced alcoholic beverages (okolehao and fruit wine), even though other locally produced alcoholic beverages were subject to the tax. Id., at 265, 271. And in Lewis v. BT Investment Managers, Inc., supra, we held unconstitutional a Florida statute that excluded from certain business activities in Florida not all out-of-state entities, but only out-of-state bank holding companies, banks, or trust companies. In neither of these cases did we consider the size or number of the in-state businesses favored or the out-of-state businesses disfavored relevant to our determination. Varying the strength of the bar against economic protectionism according to the size and number of in-state and out-of-state firms affected would serve no purpose except the creation of new uncertainties in an already complex field.
Appellees contend that even if § 5735.145(B) is discriminatory, the discrimination is not covered by the Commerce Clause because of the so-called market-participant doctrine. That doctrine differentiates between a State’s acting in its distinctive governmental capacity, and a State’s acting in the more general capacity of a market participant; only the former is subject to the limitations of the negative Commerce Clause. See Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806-810 (1976). Thus, for example, when a State chooses to manufacture and sell cement, its business methods, including those that favor its residents, are of no greater constitutional concern than those of a private business. See Reeves, Inc. v. Stake, 447 U. S. 429, 438-439 (1980).
The market-participant doctrine has no application here. The Ohio action ultimately at issue is neither its purchase nor its sale of ethanol, but its assessment and computation of taxes — a primeval governmental activity. To be sure, the tax credit scheme has the purpose and effect of subsidizing a particular industry, as do many dispositions of the tax laws. That does not transform it into a form of state participation in the free market. Our opinion in Alexandria Scrap, supra, a case on which appellees place great reliance, does not remotely establish such a proposition. There we examined, and upheld against Commerce Clause attack on the basis of the market-participant doctrine, a Maryland cash subsidy program that discriminated in favor of in-state auto-hulk processors. The purpose of the program was to achieve the removal of unsightly abandoned autos from the State, id., at 796-797, and the Court characterized it as proprietary rather than regulatory activity, based on the analogy of the State to a private purchaser of the auto hulks, id., at 808-810. We have subsequently observed that subsidy programs unlike that of Alexandria Scrap might not be characterized as proprietary. See Reeves, Inc., supra, at 440, n. 14. We think it clear that Ohio’s assessment and computation of its fuel sales tax, regardless of whether it produces a subsidy, cannot plausibly be analogized to the activity of a private purchaser.
It has not escaped our notice that the appellant here, which is eligible to receive a cash subsidy under Indiana’s program for in-state ethanol producers, is the potential beneficiary of a scheme no less discriminatory than the one that it attacks, and no less effective in conferring a commercial advantage over out-of-state competitors. To believe the Indiana scheme is valid, however, is not to believe that the Ohio scheme must be valid as well. The Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State’s regulation of interstate commerce. Direct subsidization of domestic industry does not ordinarily run afoul of that prohibition; discriminatory taxation of out-of-state manufacturers does. Of course, even if the Indiana subsidy were invalid, retaliatory violation of the Commerce Clause by Ohio would not be acceptable. See Cottrell, 424 U. S., at 379-380.
III
Our cases leave open the possibility that a State may vali date a statute that discriminates' against interstate commerce by showing that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. See, e. g., Maine v. Taylor, 477 U. S., at 138, 151; Sporhase v. Nebraska ex rel. Douglas, 458 U. S., at 958; Hughes v. Oklahoma, 441 U. S., at 336-337; Dean Milk Co. v. Madison, 340 U. S., at 354. This is perhaps just another way of saying that what may appear to be a “discriminatory” provision in the constitutionally prohibited sense— that is, a protectionist enactment — may on closer analysis not be so. However it be put, the standards for such justification are high. Cf. Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978) (“[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected”); Hughes v. Oklahoma, supra, at 337 (“[Fjacial discrimination by itself may be a. fatal defect” and “[a]t a minimum . . . invokes the strictest scrutiny”).
Appellees advance two justifications for the clear discrimination in the present case: health and commerce. As to the first, they argue that the provision encourages use of ethanol (in replacement of lead as a gasoline octane-enhancer) to reduce harmful exhaust emissions, both in Ohio itself and in surrounding States whose polluted atmosphere may reach Ohio. Certainly the protection of health is a legitimate state goal, and we assume for purposes of this argument that use of ethanol generally furthers it. But §5735.145(B) obviously does not, except perhaps by accident. As far as ethanol use in Ohio itself is concerned, there is no reason to suppose that ethanol produced in a State that does not offer tax advantages to ethanol produced in Ohio is less healthy, and thus should have its importation into Ohio suppressed by denial of the otherwise standard tax credit. And as far as ethanol use outside Ohio is concerned, surely that is just as effectively fostered by other States’ subsidizing ethanol production or sale in some fashion other than giving a tax credit to Ohio-produced ethanol; but these helpful expedients do not qualify for the tax credit. It could not be clearer that health is not the purpose of the provision, but is merely an occasional and accidental effect of achieving what is its purpose, favorable tax treatment for O/wo-prodúced ethanol. Essentially the same reasoning also responds to appellees’ second (and related) justification for the discrimination, that the reciprocity requirement is designed to increase commerce in ethanol by encouraging other States to enact ethanol subsidies. What is encouraged is hot ethanol subsidies in general, but only favorable treatment for Ohio-produced ethanol. In sum, appellees’ health and commerce justifications amount to no more than implausible speculation, which does not suffice to validate this plain discrimination against products of out-of-state manufacture.
# * *
For the reasons stated, the judgment of the Ohio Supreme Court is
Reversed.
Section 5736.145(B) provides:
“The qualified fuel otherwise eligible for the qualified fuel credit shall not contain ethanol produced outside Ohio unless the tax commissioner determines that the fuel claimed to be eligible for credit contains ethanol produced in a state that also grants an exemption, .credit or refund from such state’s motor vehicle fuel excise tax or sales tax for similar fuel containing ethanol produced in Ohio; provided however, that such credit shall not exceed the amount of the credit allowable for qualified fuel containing ethanol produced in Ohio.”
This provision was passed in 1984 and took effect on January 1, 1985. After this litigation began, Ohio again amended its ethanol credit statute to reduce the amount of the credit and scheduled it for elimination in 1993. See Ohio Rev. Code Ann. §5735.145 (Supp. 1987).
Appellant also argued there, as it has here, that § 5735.145(B) was an excessive burden on commerce under the test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). To the extent that claim requires separate analysis we find it unnecessary to reach it, in light of our disposition of the discrimination claim. Appellant also alleged in the state courts violations of the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment; those challenges are not at issue in this appeal.
We do not interpret the trial court’s acceptance of appellees’ proposed finding of fact of April 10, 1985, as a judicial finding that protecting health was in fact a purpose of the Ohio General Assembly, rather than merely one of several conceivable purposes for the enactment. In any event, a subjective purpose that has so little rational relationship to the provision in question is not merely implausible but, even if true, inadequate to validate patent discrimination against interstate commerce.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_casetyp1_7-3-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Juan DALMAU RODRIGUEZ, et al., Plaintiffs, Appellants, v. HUGHES AIRCRAFT COMPANY, et al., Defendants, Appellees.
No. 85-1303.
United States Court of Appeals, First Circuit.
Argued Oct. 9, 1985.
Decided Jan. 9, 1986.
Francisco M. Troncoso with whom Paul E. Calvesbert and Calvesbert & Brown, San Juan, P.R., were on brief for plaintiffs, appellants.
Francisco Ponsa-Flores with whom Francisco Ponsa-Feliu, Edda Ponsa-Flores, and Lawrence E. Duffy, San Juan, P.R., were on brief for defendants, appellees.
Before BOWNES, Circuit Judge, TIMBERS, Senior Circuit Judge, TORRUEL-LA, Circuit Judge.
Of the Second Circuit, sitting by designation.
BOWNES, Circuit Judge.
This is an appeal from a dismissal of plaintiffs’ diversity tort action against defendant Hughes Helicopters, Inc. of California for lack of personal jurisdiction. The question is whether Hughes’ contacts with Puerto Rico were sufficient under Puerto Rico law and the due process clause of the Constitution to subject it to the jurisdiction of the United States District Court for Puerto Rico.
THE FACTS
When jurisdiction is contested, the burden is on the plaintiff to prove facts necessary to sustain jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980). This action arose when a helicopter manufactured by Hughes and owned by the Police Department of Puerto Rico crashed on April 20, 1981, seriously injuring its two police occupants. The jurisdictional facts began with the acquisition by the Police Department of the helicopter that crashed.
On July 15, 1980, the General Services Administration of Puerto Rico solicited bids for two helicopters for the Police Department. Bids were submitted by Enstrom Corporation, Carib Aviation, Inc. of Miami, Florida, Hughes, and Helicopter Rental Co., a Puerto Rico company. Carib, Hughes, and Helicopter Rental all bid to sell the same helicopter, a model 300C Hughes helicopter. Enstrom bid to sell its own model, F-28C-2 helicopter. After consideration, the Puerto Rico GSA determined that the 3G0C Hughes machine was superior to the Enstrom. The Enstrom bid, which was the lowest, was, therefore, rejected. The next lowest bidder, Carib, was rejected because it did not submit a bid for the installation of the radios as called for in the specifications. Hughes, which submitted the third lowest bid, was eliminated because it did not submit a bid for the spare parts and special tools as required in the invitation to bid. Helicopter Rental was awarded the contract. It agreed to furnish two model 300C Hughes helicopters, optional equipment, spare parts, tools, freight, insurance, and training for pilots and mechanics for the sum of $272,995.
Hughes submitted its bid by mail and did not appear in person when the bids were opened. Hughes is incorporated in Delaware with its principal place of business in Culver City, California. At no time has it been authorized to do business in Puerto Rico and it has never done business there through any employee, agent or subsidiary. Hughes had no bank account in the Commonwealth and never owned or leased real or personal property located in Puerto Rico. The only personal contact Hughes had with Puerto Rico prior to its bid was a visit to the Island in 1977 or 1978 by its international sales representative, George Hurd, who went there as a guest of Carib Aviation and Marine Consultants, which was Hughes’ distributor for the Caribbean area at the time. After the sale, Ray Stephens, a Hughes technician, went to Puerto Rico from February 23 to 25, 1981, to give assistance and advice relative to the drive shaft alignments of the two helicopters. Stephens also went to Puerto Rico in April of 1981 to help in the investigation of the crash. This constitutes all of Hughes’ direct contacts with Puerto Rico.
Prior to receiving the invitation to bid, Augustine Carrasco, owner of Helicopter Rental, had seen an advertisement of Hughes in one of the trade journals or magazines that he received. He sent a request to the magazine for more information about Hughes helicopters and received a list of the commercial marketing personnel. Carrasco contacted the Eastern Sales Division of Hughes and was referred to one Robert F. Todd who, Carrasco was told, covered the Puerto Rico area. He told Todd about the bid request for the purchase of two helicopters by the Puerto Rico Police Department. According to Car-rasco’s sworn statement, he contacted Todd after he received the invitation to bid “on or about July 15, 1980.” Carrasco was informed by Todd that the two helicopters could be furnished by his office and Todd gave Carrasco all of the financial information needed to comply with the bid specifications.
After his company was awarded the bid, Carrasco called Todd who advised him to come to Atlanta, Georgia, and make a deposit for the two helicopters. When Car-rasco got to Atlanta, he was informed by Todd that the two helicopters had been “optioned” by Hughes to Carib Helicopters, Inc. of Miami. Todd said, however, that if Carrasco paid an additional $5,000 for each machine, he could arrange for them to be delivered to the Puerto Rico Police Department but, if the payment was not made, Carrasco would have to wait until the helicopters came off the production line, which meant delivery after October of 1980. Since Carrasco had to make immediate delivery of the helicopters, he paid the additional $10,000.
Todd wrote to Carrasco on October 10, 1980, telling him that the helicopters would be ready for pick up at Culver City on October 15. By telex of October 17, 1980, Carib authorized Hughes to accept payment in the amount of $181,700 from Car-rasco for the two machines and deliver them to Alex Air. Carrasco instructed Alex Air as to how and where the helicopters were to be shipped. They arrived in San Juan, Puerto Rico, before the end of October and were delivered to the Puerto Rico Police Department. For some reason, the spare parts did not arrive with the helicopters. Carrasco called Todd and the parts arrived in Puerto Rico in different shipments, some consigned directly to the Puerto Rico Police Department and others consigned to Helicopter Rental.
The papers show that the helicopters were sold by Hughes to Carib. The bills of sale ran from Hughes to Carib, as did the warranties. There was evidence that a Hughes warranty could be transferred to the first subsequent purchaser. Hughes had a helicopter service center agreement with Carib whereby Carib was authorized as a factory inspection and service center for Hughes “on a non-exclusive basis.” The agreement specifically provided that Carib was to furnish service “as an independent contractor and not as agent or manufacturer.”
THE LAW
In its definitive opinion on the reach of Puerto Rico’s long-arm statute, the Supreme Court of Puerto Rico held that in personam jurisdiction extends to all cases where it is constitutionally permissible. A.H. Thomas Co. v. Superior Court of Puerto Rico, 98 P.R.R. 864, 870 n. 5 (1970). Our inquiry into the requirements of state-law jurisdiction is, therefore, telescoped into our due process constitutional analysis.
The starting point is International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which laid down the jurisdictional principle that
due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278.
Id. at 316, 66 S.Ct. at 158. The Court stated that an estimate of the inconveniences which would result to the corporation from a trial away from its principal place of business was relevant in determining whether the demands of fair play and substantial justice had been met. Id. at 317, 66 S.Ct. at 158. It went on to explain that there could be instances in which the continuous corporate operations within a state could be thought so substantial and of such a nature as to justify suit against it on causes of actions arising from dealings entirely distinct from its continuous activities. Id. at 318, 66 S.Ct. at 159. The Court stated that as a general rule the commission of some single or occasional acts of the corporate agent in a state would not suffice to establish jurisdiction over the corporation. It pointed out, however, that some acts “because of their nature and quality and the circumstances of their commission,” could be deemed sufficient in and of themselves to render the foreign corporation liable to suit. Id. at 318, 66 S.Ct. at 159.
International Shoe’s main theme of “minimum contacts” and “traditional notions of fair play and substantial justice” has been replayed consistently by the Court with some variations and modifications. In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Court held that a contract which had a “substantial connection” with the forum State was a sufficient basis for allowing it to exercise jurisdiction in a suit based on that contract. Id. at 223, 78 S.Ct. at 201. The particular contract involved was a contract of insurance under which a Texas insurance corporation had agreed to insure a California resident. Suit was later instituted by the beneficiary of the insured against the insurer in California state court. The insurer had no office or agent in California, but the Court upheld the jurisdiction of the California court. It noted that the contract was delivered in California, that the premiums were mailed from there and that the insured was a resident of California when he died. Id. The Court concluded that California had “manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.” Id. The Court pointed out that California residents, especially those having small claims, would be seriously disadvantaged if forced to follow the insurance company to a different state in order to hold it legally accountable, and determined that the comparative inconvenience caused to the insurer by having to litigate in California did not amount to a denial of due process. Id. at 224, 78 S.Ct. at 201.
In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958), the court reiterated the holding of International Shoe:
[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 159, 90 L.Ed. 95].
The Court found that a Florida court had no jurisdiction to rule on the validity of a trust and power of appointment executed in Delaware with a Delaware trust company as trustee, even though the settlor of the trust was a Florida resident at her death. It distinguished McGee on the ground that the trust agreement had no connection with Florida. Id. at 252, 78 S.Ct. at 1239.
In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), a case involving quasi in rem jurisdiction, the court held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Id. at 212, 97 S.Ct. at 2584 (footnote omitted).
The case most pertinent is World-Wide Volkswagen Corp. v. Woodson, District Judge of Creek County, Oklahoma, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The issue in World-Wide was
whether, consistently with the Due Process Clause of the Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants’ only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma.
Id. at 287, 100 S.Ct. at 562. The Court reviewed International Shoe and progeny, it noted: “The limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years,” id. at 292, 100 S.Ct. at 565, but pointed out that despite this relaxation, the due process clause ensures not only fairness but the “orderly administration of the laws,” quoting from International Shoe, 326 U.S. at 319, 66 S.Ct. at 159. 444 U.S. at 293-94, 100 S.Ct. at 565. Quoting again from International Shoe, 326 U.S. at 319, 66 S.Ct. at 159, the Court emphasized that “the Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ ” 444 U.S. at 294, 100 S.Ct. at 565. It rejected the theory that foreseeability of an injury in states other than the one of manufacture or sale can be a foothold for jurisdiction. 444 U.S. at 295-96, 100 S.Ct. at 566. The foreseeability that the Court saw as critical was not “the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” 444 U.S. at 297, 100 S.Ct. at 567. The Court held that the sale of a product must be more than an isolated occurrence to ground jurisdiction, it must arise “from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States.” 444 U.S. at 297, 100 S.Ct. at 567. Jurisdiction over a manufacturer is consonant with due process if it “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” 444 U.S. at 298, 100 S.Ct. at 567. The Court found lack of jurisdiction because plaintiffs had no “contacts, ties, or relations” with the forum State. 444 U.S. at 299, 100 S.Ct. at 568.
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), involved a libel suit brought in New Hampshire by a resident of New York against an Ohio corporation. The Court found that defendant’s regular circulation of its magazine in New Hampshire was sufficient for jurisdiction. It noted:
Such regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process Clause that a State's assertion of personal jurisdiction over a nonresident defendant be predicated on “minimum contacts” between the defendant and the State. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298 [100 S.Ct. 559, 567, 62 L.Ed.2d 490] (1980); International Shoe Corp. v. Washington, 326 U.S. 310, 317 [66 S.Ct. 154, 158, 90 L.Ed. 95] (1945).
Id. at 774, 104 S.Ct. at 1478.
In another libel case involving the question of jurisdiction decided the same day as Keeton, the Court, in finding jurisdiction was proper, quoted International Shoe’s statement of the requirements of “minimum contacts” and “traditional notions of fair play and substantial justice.” Calder and South v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984).
Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) is a variation on the main theme. It involved a foreign corporation that did business in Texas. In rejecting Texas’ claim of jurisdiction, the Court held “that mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Id. at 418, 104 S.Ct. at 1874 (footnote omitted). In doing so, it relied on Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 (1923), noting that “[t]his Court in International Shoe acknowledged and did not repudiate its holding in Rosenberg.” 466 U.S. at 418, 104 S.Ct. at 1874.
In the latest jurisdictional case, Burger King Corporation v. Rudzewicz, - U.S. -, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Court stated that “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State,” citing to International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. - U.S. at -, 105 S.Ct. at 2183. The Court pointed out that “minimum requirements inherent in the concept of ‘fair play and substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities,” citing to World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564. - U.S. at -, 105 S.Ct. at 2185. The Court found that Florida had jurisdiction over a Michigan franchisee of Burger King where the franchisee relationship was established in Florida, governed by Florida law and called for payment of all required fees and relevant notices to be sent to the Florida headquarters in Miami.
Based on International Shoe and its now considerable progeny, we find that Hughes’ contacts with Puerto Rico are too attenuated to ground jurisdiction. Prior to the accident, Hughes’ only contacts were the submission of the bid, a trip by a Hughes employee for technical help and advice, and a visit by a Hughes sales representative to Puerto Rico in 1977 or 1978. We do not think that attendance by two Puerto Rico Police Department mechanics at Hughes helicopter training school in Culver City, California, qualifies as a contact by Hughes with the forum State. Nor does the crash-investigation visit by a Hughes representative maximize its contacts to a jurisdictional dimension. See Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d at 905; Mangual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir.1983).
Appellants’ “stream of commerce” theory must be rejected. Assuming that Hughes knew that the destination of the helicopters was Puerto Rico, we do not think that the sale of two helicopters to a police department can be the source of a stream of commerce. This is not like opening up a particular territory for sales to the general public. Nor can the single advertisement of Hughes helicopters that Car-rasco saw in a magazine be viewed as the incipient source of a stream of commerce. There is nothing in the record showing that Hughes advertised regularly in magazines circulated in Puerto Rico or aimed its advertising at Puerto Rico. The sale, here, was not a stream or the beginning of one; it was an isolated splash. It was not the type of transaction that could reasonably lead a manufacturer to believe would be the basis for haling him into court in Puer-to Rico.
We do not think that whether Hughes knew that the helicopters were being sold to the Puerto Rico Police Department has any jurisdictional significance. The test is not knowledge of the ultimate destination of the product, but whether the manufacturer has purposefully engaged in forum activities so it can reasonably expect to be haled into court there, and, even then, the minimum requirements of “fair play and substantial justice” may defeat jurisdiction. Burger King, - U.S. at -, 105 S.Ct. at 2185; World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. See Commonwealth of Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 667 (1st Cir.1980). All of the purposeful activities here were initiated and carried on by Carrasco of Helicopter Rental Co. He contacted Hughes to obtain information necessary to submit a bid and then went to Georgia to facilitate the purchase.
Finally, no jurisdictional consequence follows from the fact that Hughes directly or indirectly may have controlled Carib. Carib, whatever its status vis-a-vis Hughes, was a Florida corporation and there is nothing in the record indicating it did any business in Puerto Rico. In Escude Cruz v. Ortho Pharmaceutical Corp. we noted that “[t]he mere fact that a subsidiary company does business within a state does not confer jurisdiction over its nonresident parent, even if the parent is sole owner of the subsidiary.” 619 F.2d at 905. There is no jurisdictional footing whatsoever in the dealings between Hughes and Carib.
Affirmed.
. Now Hughes Aircraft Company.
. There is a letter in the record, Exhibit 2, from Todd to Carrasco dated June 8, 1980, to which was attached "a print out showing the finite life and TBO components of the Hughes 300C cost of operation financial summary.” The letter gives other cost information about the 300C Hughes helicopter and recommends that Carras-co “have the aircraft flown to P.R. from the Hughes plant." The discrepancy in dates was not explained.
. Carib Aviation, Inc., the rejected bidder, and Carib Helicopters, Inc. have the same Miami address so, for our purposes, we treat them as a single entity.
. We are not suggesting that Carib was not a completely independent corporation. This is merely an arguendo.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
SIMS v. UNITED STATES.
No. 88.
Argued February 26, 1959.
Decided March 23, 1959.
Fred H. Capian, Assistant Attorney General of West Virginia, argued the cause for petitioner. With him on the brief was W. W. Barron, Attorney General of West Virginia.
Melva M. Graney argued the cause for the United States. With her on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Joseph Kovner.
Mr. Justice Whittaker
delivered the opinion of the Court.
The Commissioner of Internal Revenue assessed an income tax deficiency against each of three residents of West Virginia and forwarded the assessment lists to the Director of Internal Revenue at Parkersburg for collection. The deficiencies remaining unpaid for more than 10 days- after demand for payment and the taxpayers being then employed by the State of West Virginia, the Director issued notices of levy directed to the State of West Virginia and served them on petitioner, as the State Auditor, seizing the accrued salaries of the taxpayers pursuant to § 6331 of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6331. Petitioner refused to honor the levies and instead issued and delivered payroll warrants to the taxpayers for their then accrued net salaries aggregating $519.71. Thereafter the .Government brought this suit in the Federal District Court against petitioner under § 6332 of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6332, to recover from him personally the $519.71 that he had so paid to the taxpayers in disobedience to and defeat of the Government’s levies. The District Court rendered judgment for the Government and the Court of Appeals affirmed, 252 F. 2d 434. Certiorari was sought on the grounds that § 6331 does not authorize a levy on the accrued salaries of employees of a State, and that, if it be held that it does, petitioner was not a person “obligated with respect to” the accrued and seized salaries, within the meaning of § 6332, and, therefore, is not personally liable for refusing to surrender them to the Government.' We granted the writ to determine those questions. 358 U. S. 809.
Nothing in the Constitution requires that the salaries of state employees be treated any differently, for federal tax purposes, than the salaries of others, Helvering v. Gerhardt, 304 U. S. 405; Graves v. New York ex rel. O’Keefe, 306 U. S. 466, and it is quite clear, generally, that accrued salaries are property and rights to prop-' erty subject to levy. In plain terms, § 6331 proyides for the collection of assessed and unpaid taxes “by levy upon all property and rights to property” belonging to a delinquent taxpayer. Pursuant to that statute a regulation was promulgated expressly interpreting and declaring § 6331 to authorize levy on the accrued salaries of employees of a State to enforce collection of any federal tax.
Although not disputing these principles, petitioner advances two arguments in support of his claim' that the statutes do not authorize a levy on the accrued salaries of employees of a State. First, he contends that a State is not a “person” within the meaning of § 6332, and, second,. he argues that Congress, by specifically authorizing in § 6331 a levy “upon the accrued salary or wages of any officer, employee, or elected 'Official, of the United States, 'the District of Columbia, or any agency or instrumentality” thereof, but not similarly specifically authorizing levy upon the accrued salaries or wages of employees of a State, evinced its intention to exclude the latter from such levies.
Though the definition of “person” in § 6332 does not mention States or any sovereign or political entity or their officers among those it “includes” (Note 3), it is equally clear that it does not exclude them. This is made certain by the provisions of § 7701 (b) of the 1954 Internal Revenue Code that “The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise .within the meaning of the term defined.” 26 U. S. C. (Supp. V) § 7701 (b). Whether the term “person” when used in a federal statute includes a State cannot be abstractly declared, but depends upon its legislative ewironment, Ohio v. Helvering, 292 U. S. 360, 370; Georgia v. Evans, 316 U. S. 159, 161. It is clear that § 6332 is stated in all-inclusive terms of general application. “In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax.” Wilmette Park Dist. v. Campbell, 338 U. S. 411, 416, and cases cited. We think that the subject matter, the context, the legislative history, and the executive interpretation, i. e., the legislative environment, of § 6332 make it plain that Congress intended to and did include States within the.term “person” as used'in § 6332.
Nor is there merit in petitioner’s contention that Congress, by specifically providing in § 6331 for levy upon the accrued salaries of federal employees, but not mentioning state employees, evinced an intention to exclude the latter from levy. The explanation of that action by Congress appears quite clearly to be that this Court had held in Smith v. Jackson, 246 U. S. 388, that a federal disbursing officer might not, in the absence of express congressional authorization, set off an indebtedness of a federal employee to tbe Government against the employee’s salary, and, pursuant to that opinion, the Comptroller General ruled that an “administrative official served with [notices of levy] would be without authority to withhold any portion of the current salary of such employee in satisfaction of the notices of levy and distraint.” 26 Comp. Gen. 907, 912 (1947). It is evident that § 6331 was enacted to overcome that difficulty and to subject the salaries of federal employees to the same collection procedures as are available against all other taxpayers, including employees of a State.
Accordingly we hold that §§ 6331 and 6332 authorize levy upon the accrued salaries of state employees for the collection of any federal tax. • :
This brings us to petitioner’s contention that even if the salaries of state employees are subject to levy, he is not personally liable to the Government for refusing to honor its levies because, contrary to the holding of the courts below, he was not a person “obligated with respect to” the salaries covered thereby. Congress did not define the questioned phrase, nor do we feel called upon here to delimit its scope, for we think it includes, at least, a person who has the sole power to control disposition of the fund, and we also think that, under the West Virginia law, petitioner both had and exercised that power. By a West Virginia statute, 1 W. Va. Code, 1955, § 1031 (1)-, he was empowered and obligated to deduct and withhold from the salaries of state employees sums “to pay taxes as may be required by an act or acts of the congress of the United States of America”; and, similarly, another West Virginia statute, 2 W. Va. Code, 1955, §3834.(18), authorizes garnishments to be served upon him to sequester the salaries of state employees. He alone has the obligation and power to issue warrants for the payment of salaries,. and state employees entitled to payment for services may enforce their rights by mandamus against him. State ex rel. Board of Governors of West Virginia University v. Sims, 133 W. Va. 239, 55 S. E. 2d 505; State ex rel. Board of Governors of West Virginia University v. Sims, 136 W. Va. 789, 68 S. E. 2d 489; State ex rel. Board of Governors of West Virginia University v. Sims, 140 W. Va. 64, 82 S. E. 2d 321. By and to the extent of these West Virginia laws petitioner was obligated and empowered in respect to the sequestered salaries. These laws empowered him completely to control the disposition of that fund. He exercised that power by refusing to honor the Government’s valid levies, and to surrender the fund to the Government. Instead he surrendered the fund to the taxpayers. That action by petitioner resulted in defeat of the Government’s valid levies.
Upon these principles four judges who are constantly required to pass upon West Virginia laws have held that, under the law of that State, petitioner is a person who was obligated with respect to the salaries covered by the Government’s levies. Their conclusion appears to be founded on reason and authority, and under familiar principles will be accepted here. Propper v. Clark, 337 U. S. 472, 486-487. Being a person who, under the law of West Virginia, was obligated with respect to the salaries covered by the Government’s levies, petitioner is, by § 6332 (b), made personally liable to the Government in a sum equal to the amount, not exceeding the delinquent taxes, which he refused to surrender to the Government but surrendered instead to the taxpayers in defeat of the Government’s levies. The judgment of the Court of Appeals was therefore correct and must be
Affirmed.
26 U. S. C. (Supp. V) § 6331, in pertinent part) provides:
“(a) Authority of secretary or delegate. — If any. person liable to pay any tax neglects or refuses to pay' the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax ... by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer ....
“(b) Seizure and sale of property. — The term ‘levy’ as used in this title includes the power of distraint and seizure by any means. In any case in .which the Secretary or his delegate may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).”
The assessment against each of the taxpayers substantially exceeded in amount the accrued salary owing to each at the time of the levies.
26 U. S. C. (Supp. V) §6332 provides:
“(a) Requirement. — Any person-in possession of (or obligated with respect to)- property or rights to property subject to levy -upon -which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such p^rt of the property or'rights as is, at the time of such demand, subject to an attachment1 or execution under any judicial process.
“(b)- Penalty for violation. — Any person who fails or refuses to surrender as required by subsection (a) any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and.estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy.
“(c) Person defined. — The term ‘person,’ as used in subsection (a), includes an officer or employee of. a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.”
Glass City Bank v. United States, 326 U. S. 265, 268; United States v. Long Island Drug Co., 115 F. 2d 983, 986 (C. A. 2d Cir.); 9 Mertens, Law of Federal Income Taxation (Rev.), §49.205.
The only property exempt from levy is that listed in § 6334 (a) of the 1954 Internal Revenue Code, 26 U. S. C. (Supp. V) § 6334 (a), consisting of certain personal articles, and provisions. It does not exempt salaries or wages.
Section 301.6331-1 (a) (4) (ii) of Treasury Regulations relating to Seizure of Property for Collection of Taxes (1954), 26 CFR (revised as of January 1, 1958) §301.6331-1 (a)(4)(h), in pertinent part, provides:
“State and municipal employees. Accrued salaries, wages, or other compensation of any officer, employee, or elected or appointed official of a State or Territory, or of any agency, instrumentality, or political subdivision thereof, are also subject to levy to enforce collection of any Federal tax.”
This Regulation became effective on January 1, 1955, 1955-1 Cum. Bull., p. 195, § 7851, and therefore prior to the service on petitioner of the Government’s notices of levy in October 1955.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES ex rel. LEE KUM HOY et al. v. MURFF, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 32.
Argued November 21, 1957.
Decided December 9, 1957.
Benjamin Gim argued the cause for petitioners. With him on the brief was Edward J. Ennis.
John F. Davis argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney, Acting Assistant Attorney General McLean and Beatrice Rosenberg.
Per Curiam.
In view of the representation in the Solicitor General’s argument at the Bar that the blood grouping test requirement here involved is presently and has been for some time applied without discrimination “in every case, irrespective of race, whenever deemed necessary,” and in view of our remand of the case, we need not now pass upon the claim of unconstitutional discrimination.
It appearing that the blood grouping tests made herein were in some respects inaccurate and the reports thereof partly erroneous and conflicting, the judgments heretofore entered are vacated and the case is remanded to the District Court with directions that the hearings before the Special Inquiry Officer or a Board of Special Inquiry be reopened, so that new, accurate blood grouping tests may be made under appropriate circumstances, and that relevant evidence may be received as offered on the issues involved. The excludability of petitioners remains to be determined upon those proceedings.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_stid
|
44
|
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.
Hollis G. BYRD, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director Texas Department of Corrections, Respondent-Appellee.
No. 83-2049.
United States Court of Appeals, Fifth Circuit.
June 8, 1984.
Garland D. Mclnnis, Jr., Houston, Tex. (court-appointed), for petitioner-appellant,
Jim Mattox, Atty. Gen., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before RUBIN, JOHNSON and DAVIS, Circuit Judges.
JOHNSON, Circuit Judge:
Appellant Hollis G. Byrd is in the custody of the State of Texas pursuant to a 30-year sentence resulting from his 1974 conviction for “robbery with firearms.” Tex.Penal Code Ann. art. 1408 (Vernon 1925). On appeal from the district court’s denial of habeas corpus relief, Byrd presents this Court with three claims of alleged constitutional deprivation. Specifieally, Byrd contends that he was subjected to prosecutorial vindictiveness, that his due process rights were violated when two jurors from a former trial testified at the punishment phase of his 1974 trial, and that he was deprived of due process when the jury at his 1974 trial was informed of a prior conviction and probated sentence. We affirm the district court’s denial of relief.
I. BACKGROUND
¡n 1964j Byrd pled guilty to robbery in the state district court in Potter County, Texas (hereinafter referred to as Potter County conviction). Byrd received a ten year sentence, which was suspended, and he was placed on probation for a period of ten years. One month later, Byrd’s probation was revoked and he was sentenced to confinement for a period of not less than five years nor more than ten years. Byrd was no^ represented by counsel at the probation revocation/sentencing hearing.
Byrd was released from custody in 1972 and, soon thereafter, committed another robbery. In April 1972, Byrd was indicted and convicted for “robbery by assault,” based upon an indictment that made no mention of the use of a firearm. The controlling 1925 Texas Penal Code at that time provided:
If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary f°r We> or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.
Tex.Penal Code Ann. art. 1408 (Vernon 1925) (emphasis added). Byrd’s sentence was enhanced by the 1964 Potter County conviction; he received life imprisonment, Byrd then sought state habeas corpus relief from his life sentence in the state district court in which his 1972 robbery by assault trial was held. Byrd alleged that the Potter County conviction was improperly used for enhancement since he was not represented by counsel at the probation revocation hearing. The state district court granted Byrd a new trial in Decernber 1972.
In June 1974, Texas again moved against Byrd for the 1972 robbery. A new indictment was obtained which did not allege “robbery by assault” (without the use of a firearm). Though the 1974 indictment grew out of the identical facts that were available to the State in 1972, the 1974 indictment alleged that the robbery was accomplished with the aid of a firearm. Byrd was tried and convicted on the “robbery with firearms” charge under the same article 1408 of the 1925 Texas Penal Code. Byrd elected, however, to be punished under the then new 1974 Texas Penal Code, which set the limits of imprisonment for robbery with firearms at five years to life, See, note 1, supra.
At the punishment phase of the 1974 trial, the jury was permitted to be informed of Byrd’s 1964 Potter County conviction, The jury was also informed that Byrd was placed on probation for the Potter County conviction, but was not informed of the later revocation of Byrd’s probation. Furthermore, at the punishment phase, the State offered as witnesses two jurors from the 1972 trial to testify as to Byrd’s character. The 1974 jury sentenced Byrd to 30 years’ imprisonment, the conviction and sentence were affirmed on direct appeal, and, after exhausting his state remedies, Byrd commenced this habeas corpus proceeding in the federal district court. The magistrate recommended that the writ be granted on the basis of Byrd’s claim that the prosecutor had exercised impermissible vindictiveness in reprosecuting on a more serious offense than that involved in the original 1972 indictment. The federal district court disagreed, and after directing the magistrate to make recommendations on Byrd’s two remaining claims, rendered judgment dismissing the action. This appea] f0j]0we(j
II. PROSECUTORIAL VINDICTIVENESS
The most serious of Byrd’s attacks upon the federal district court’s judgment alleges that Byrd’s due process rights were violated by the prosecutor’s vindictive actions in “upping the ante” in the 1974 indictment — i.e., changing the charge from robbery by assault (without firearms) to robbery with a firearm. According to Byrd, the prosecution vindictively decided to increase the charges in an attempt to punish Byrd for pursuing state habeas corpus relief. We disagree.
The law in this Circuit on prosecutorial vindictiveness is well developed, the most recent explication of which appears in United States v. Krezdorn, 718 F.2d 1360 (5th Cir.1983) (en banc). In Krezdorn, having discussed the historical underpinnings of the doctrine of prosecutorial vindictiveness, the en banc court set forth the test for resolution of a claim of prosecutorial vindictiveness. Writing for the Court, Chief Judge Clark stated:
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.
Id. at 1365. Byrd’s claim of prosecutorial vindictiveness must be examined according to these principles.
The threshold question in Byrd’s case, of course, is whether the 1974 indictment subjected him to a more severe charge than the charge contained in the 1972 indictment. Our resolution of this issue requires this Court to examine the change in charges from Byrd’s viewpoint. See, Blackledge v. Perry, 94 S.Ct. at 2102. As the Supreme Court noted in Blackledge, due process is violated by a possibility of increased punishment, on retrial, that poses a realistic likelihood of vindictiveness. Actual vindictiveness need not be shown, since the fear alone of vindictiveness may deter a defendant’s exercise of appeal or collateral attack. Id. at 2102.
It is to be remembered that Byrd was convicted in 1972 of robbery by assault under the 1925 Penal Code, art. 1408; Byrd’s sentence was enhanced by the Potter County conviction and he received a life sentence. By pursuing his proper collateral remedies (state habeas corpus), Byrd, in late 1972, was granted a new trial. His benefit on retrial was two-fold. First, Byrd knew the maximum penalty was life imprisonment, and was then aware that the odds favored a lesser sentence, since the enhancement charge (Potter County conviction) on state habeas corpus review had been set aside. Second, Byrd knew that since the new trial would take place after January 1, 1974, Byrd was in a position to elect to be sentenced under the then new 1974 Penal Code, which set the maximum penalty for robbery by assault (without firearms) at twenty years. See, Note 1, supra.
However, neither of what will be characterized as Byrd’s expectations were borne out. Perhaps realizing that, if prosecuted for robbery by assault (without firearms), Byrd could elect a maximum punishment exposure of not more than twenty years confinement (under the new 1974 Penal Code), the prosecutor secured an indictment for “robbery with firearms,” again to be enhanced by the 1964 Potter County conviction. Under the old 1925 Texas Penal Code, robbery with firearms carried a maximum penalty of death. See, Tex.Penal Code Ann. art. 1408 (Vernon 1925). The death penalty, however, had been declared unconstitutional in June 1972. See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, because of Furman only, a conviction for the offense of robbery with firearms carried the same maximum penalty under the old act (1925 Penal Code) as did robbery by assault (1925 Penal Code); both maximum punishments being life imprisonment. Furthermore, Byrd’s statutory right to elect punishment under the new 1974 Penal Code was rendered meaningless because of the new charge of robbery with firearms: under either statute he would face anywhere from five years to life. See, note 1, supra.
The question of whether Byrd was subjected to an increase in the severity of the charges is arguable. On the one hand, due to Furman, the new charges subjected Byrd to no more punishment than he had previously faced and, in fact, received. That punishment was life imprisonment. Even the range of punishment — five years to life — was the same. On the other hand, the prosecutor’s action could be deemed to increase the severity of the charges to which Byrd was exposed: as his retrial was not to be held until after the effective date of the 1974 Penal Code, Byrd was vested with the statutory right (if convicted) to elect the new Act’s punishment for the offense for which he was already indicted, robbery by assault (without firearms). See, note 2, supra. Under the new 1974 Penal Code, this offense is punishable by a term of not less than two, and no more than 20 years, a significant reduction in his maximum allowable sentence.
If the severity of the charges in the instant case (the new indictment for robbery with firearms) is to be measured by comparison with the severity of the charges in the prior case (the old indictment for robbery withowi firearms) at the time jeopardy attached for Byrd on that old indictment, it will be apparent that there has been no change in the severity of the charges. The range of punishments (five years to life) in each is virtually identical.
However, if the severity of the charges in the instant case (the new indictment for robbery with firearms) is to be measured by comparison with the severity of the charges in the prior case (the old indictment for robbery without firearms) at any time after the effective date of the new 1974 Penal Code, it will be apparent that a significant change in the severity of the charges has occurred. Under the new charge, the range of punishment is five years to life. Under the old charge — as modified by the new 1974 Penal Code — the range of punishment is two years to twenty years. Since we are admonished to view the issue from Byrd’s perspective, we find the charge more severe. In Byrd’s view, he was deprived of his right to elect punishment under the 1974 Penal Code for robbery by assault (without firearms) and was thereby deprived of the possibility of confinement for a maximum twenty years and, once again, faced the possibility of confinement for life.
Nevertheless, this does not end this Court’s inquiry. That more severe charges have been employed is not dispositive, for “the ‘Due Process Clause’ is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of vindictiveness.” Blackledge v. Perry, 94 S.Ct. at 2102.
Recognizing this principle in Krezdorn, the en banc court stated:
If any objective event or combination of events of those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created.
United States v. Krezdorn, 718 F.2d at 1365.
So the question arises: Was there any objective event or combination of events which should indicate that the prosecutor was motivated by a purpose other than a vindictive desire to deter or punish appeals? As noted, because of the change in the 1974 Texas Penal Code, robbery by assault (without firearms) carried a much less severe sentence (20 years) than that contained in the 1925 Texas Penal Code (life). This objective event — the Texas Legislature’s amendment of the Texas Penal Code — in combination with the other events in Byrd’s proceedings, should have indicated to the reasonable minded defendant that the prosecution’s decision to increase the charge was motivated not by a desire to “punish the pesky defendant,” but by a desire to expose Byrd to the same maximum sentence he faced in the 1972 trial — life imprisonment. Such a reasonable motive on the part of the prosecution could not be characterized as vindictive.
For these reasons, Byrd’s prosecutorial vindictiveness claim must fail. Byrd fails to establish a presumption of prosecutorial vindictiveness since the events in his case should indicate to the reasonable minded defendant that the prosecution’s decision to increase the severity of the charges was motivated by a legitimate, non vindictive purpose. Certainly, we cannot describe as vindictive, the prosecution's attempt to expose Byrd to the same range of punishment he faced at the original trial.
III. THE REMAINING ISSUES
A. The Admissibility of Byrd’s 1964 Conviction and Probated Sentence
Byrd maintains he was denied due process when the jury learned of his 1964 felony conviction and probated sentence, even though the jury did not learn that the probation was later revoked at a hearing in which Byrd allegedly was not represented by counsel. It is well settled that a defendant has a constitutional right to counsel at a joint parole revocation/sentencing proceeding. See, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), held retroactive by, McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). As the magistrate’s opinion notes, however, Byrd exhausted the instant claim — that he was deprived of due process when the jury learned of the 1964 conviction and probated sentence — in his most recent state habeas corpus action, (cause number 13,754) obtaining an adjudication on the merits that there had been no denial of counsel at the 1964 proceeding. See, Record, Vol. I at 9. After conducting an evidentiary hearing, the state trial court entered fact findings that Byrd was advised of his right to counsel, but waived his right at the parole revocation hearing. These findings must be afforded a presumption of correctness under 28 U.S.C. § 2254(b). See, Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Accordingly, Byrd has failed to demonstrate, as a factual matter, that he did not waive his right to counsel.
Nevertheless, it was established that Byrd was represented by counsel at his 1964 prosecution and conviction. The law is clear that Byrd’s 1964 conviction could be brought to the attention of the jury, even if the subsequent revocation of the probated sentence was invalid. The conviction remained valid for impeachment purposes under Texas law; see 3A Tex. Code Crim.Pro. § 37.07(3)(a) (Vernon 1974), and no due process problem arose through the introduction of the conviction and probated sentence. See, Langston v. Estelle, 544 F.2d 1331 (5th Cir.1977).
B. Former Jurors Testify
Byrd maintains that he was deprived of his due process right to a fair trial when two jurors from his 1972 robbery by assault trial were permitted to testify as character witnesses at his 1974 robbery by firearms trial. The record indeed indicates that two former jurors, who had no independent knowledge of Byrd other than that received while jurors at his 1972 trial, were permitted to take the stand and testify that they were familiar with Byrd’s character in the community and that his character was bad. See, Record, State Trial Transcript, Vol. Ill, at 598-606. However, no objection to the admissibility of this evidence was made by Byrd’s counsel. While Byrd’s counsel made one minor objection to the form of the prosecutor’s questions and once leveled a hearsay objection to the former juror’s testimony, the testimony’s admissibility or the juror’s qualifications to testify were never objected to by defense counsel. Indeed, Byrd-concedes that the Texas Court of Criminal Appeals expressly refused to consider this issue since Byrd failed to make an objection to the testimony in terms of federal constitutional law. See, Record, Vol. I at 89. In light of Byrd’s failure to object to the challenged testimony, we need not address the merits of this issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
IV. CONCLUSION
We have thoroughly reviewed the record in light of Byrd’s contentions and have concluded that he was not the subject of prosecutorial vindictiveness, was not deprived of due process by the introduction of his prior conviction and probated sentence, and failed to properly preserve the issue on the former jurors’ testimony for review. Accordingly, the district court’s judgment is affirmed in all respects.
AFFIRMED.
. Certain changes in Texas law after Byrd’s 1972 indictment bear heavily upon our resolution of Byrd’s prosecutorial vindictiveness claim. Hence, we set forth these changes in Texas law in some detail.
t a 4.1. r- „ , „ j , j In 1974, the Texas Penal Code was amended and the provisions of article 1408 of the 1925 „ J-4Í Texas Penal Code were separated into four sec-lions. Under the new 1974 Texas Penal Code, robbery by assault (without a firearm) was defined as follows:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony , secón egree.
3 Tex.Penal Code Ann. § 29.02 (Vernon 1974). As a second d fe, robbery b assauIt under the 1974 Texas PenaI Code exposed a defendant to the following realm of punishment*
(a) individual adjudged guilty of a felony 0f the second degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed 110,000.
1 Tex.Penal Code Ann. § 12.33 (Vernon 1974). Under the 1974 Texas Penal Code, robbery with a firearm was defined in the following terms:
(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon.
(b) An offense under this section is a felony of the first degree
3 Tex.Penal Code Ann. § 29.03 (Vernon 1974). A violation of section 29.03 would subject the defendant to punishment for a first degree felony, which carried the following realm of punishment: ■
An individual adjudged guilty of a felony of the first degree shall be punished by confinement in the Texas Department of Corrections for life or for any term of not more than 99 years or less than 5 years.
j Tex.Penal Code Ann. § 12.32 (Vernon 1974).
. Byrd was permitted to elect to be punished under the 1974 Texas Penal Code pursuant to legislative authorization. 1973 Texas Acts, chap 399 § 6(c) Section 6(c) provides:
In a cJiminaí f tionu P“dinS °« or menc„ed on after the effective date of this Act, f°r an °^ense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.
. See, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
. See, note 1, supra.
. See, note 2, supra.
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_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
TRANSWESTERN PIPELINE COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Utilities Commission of the State of California, Williams Natural Gas Company, Southern California Gas Company, Western Resources, Inc., Intervenors.
No. 91-1307.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 2, 1993.
Decided March 19, 1993.
William J. Grealis, Washington, DC, for petitioner.
Joel M. Cockrell, Atty., F.E.R.C. with whom William S. Scherman, Gen. Counsel, and Jerome M. Feit, Washington, DC, Sol., F.E.R.C., were on the brief, for respondent.
Martin J. Bregman, Topeka, KS, for in-tervenor Western Resources, Inc.
Arocles Aguilar and Edward O’Neill, San Francisco, CA, entered appearances for in-tervenor Public Utilities Com’n of the State of Cal.
Douglas O. Waikart and Gregory Grady, Washington, DC, entered appearances for intervenor Williams Natural Gas Co.
Michael A. Cartelli and Woodrow D. Smith, Los Angeles, CA, entered appearances for intervenor Southern California Gas Co.
Before: WALD, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
Transwestern Pipeline Company petitions for review of a FERC order permitting Williams Natural Gas Company to unconditionally abandon its certified obligation to purchase gas from Transwestern. Petitioner asserts that FERC should hold Williams responsible for “its share” of Transwestern’s take-or-pay costs incurred after Williams terminated its contractual relationship with Transwestern. We deny the petition.
I.
Section 7(c) of the Natural Gas Act requires natural gas companies to receive a certificate from FERC before they may sell or transport gas. 15 U.S.C. § 717f(c). A certificate creates two obligations, one on the part of the seller, and one on the part of the buyer. The seller must maintain the ability to supply the buyer with the amount of gas specified both in the certificate and in the seller’s contract with the buyer. As a corollary, the buyer is obliged to buy the gas from the seller.
The Natural Gas Act also requires that FERC review any attempt or agreement to terminate service under a certificate. “No natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission.” Id. at § 717f(b). In 1988, in accordance with its general deregulatory policies, FERC promulgated rules that inter alia allowed automatic abandonment of service by purchasers either when their underlying contract had expired, or when they had terminated their purchases pursuant to contract or agreement. Order No. 490, 53 Fed.Reg. 4121 (Feb. 12, 1988) (codified at 18 C.F.R. § 157.21). The pertinent part of Order No. 490 states that:
(a) ... a purchaser ... is authorized, upon 30-days written notice to (or from) the seller, or any longer notice period required by contract, to abandon purchases of natural gas from any first seller or pipeline: (1) Permanently, under a contract that has expired, or (2) To the extent that the obligation of the purchaser to take or pay for gas (or both), or of the seller to deliver gas, is unilaterally reduced, suspended or terminated by either party in accordance with a provision of an unexpired contract. Id.
The order also requires that the abandoning purchaser notify FERC within 30 days of the abandonment. In a change from previous policy, the new order does not require that FERC specifically authorize the abandonment, but instead permits abandonment automatically once a purchaser has satisfied the order’s terms.
In the case before us, Transwestern and Williams entered into an agreement in 1986 to settle various rate and purchase obligation issues. The settlement also gave Williams the option of terminating its sales service agreement with Transwestern on February 1, 1989, 1990, or 1991, after one year’s notice. Although the settlement did not refer to Transwestern’s take-or-pay costs (under its contracts with producers) or Williams’ liability for those costs, Article XVII of the contract did provide that:
[t]he provisions of this settlement are intended to relate only to specific matters referred to herein, and by agreeing to this settlement, no party waives any claim or right which it may otherwise have with respect to any matters not expressly provided for herein.
In accordance with the settlement, on February 1, 1988 Williams gave Transwest-ern one year’s notice of its intent to abandon service. Only 11 days later, FERC issued Order No. 490 to take effect on April 12, 1988. On January 5, 1989, Transwestern filed both its application to abandon sales service to Williams, and— pursuant to Williams’ request — an application on Williams’ behalf to abandon Williams’ purchase obligation. Transwest-ern also requested that FERC condition Williams’ abandonment to allow Transwest-ern to continue to recover a share of its take-or-pay costs.
In October 1989, FERC rejected Trans-western’s request to condition Williams’ abandonment. The agency held that Williams had “already obtained unconditional authorization to abandon its purchases from Transwestern pursuant to [Order No. 490], and that the authorization is final.” Transwestern Pipeline Co., 49 F.E.R.C. ¶ 61,021 (1989). FERC decided that it lacked the authority to impose any conditions on Williams because as of February 1, 1989 Williams had abandoned unilaterally in accordance with both the 1986 settlement and Order No. 490. FERC then held that Williams’ “compliance” with Order No. 490 made Williams’ formal application for abandonment — filed on its behalf by Transwestern — moot because Trans-western had filed its petition less than one month before the February 1, 1989 abandonment date. In short, Trans western’s delay foreseeably led to FERC’s not considering the ease before Williams had effected its abandonment. With Trans western’s application for abandonment of its service obligation the only matter still before the Commission, FERC held that “Transwest-ern’s abandonment authorization only applies to Transwestern, and any conditions on that authorization would only bind Transwestern — not Williams who has not been a customer since February 1, 1989.” Id.
Based on these findings, FERC decided that Williams was only liable for take-or-pay costs filed when still a Transwestern customer — up to February 1, 1989. FERC denied Transwestern’s petition for rehearing on April 30, 1991. This appeal followed.
II.
Transwestern’s underlying claim is that Williams should be held responsible for its share of the take-or-pay costs Transwest-ern incurred after February 1, 1989. These costs are attributed to amounts Transwestern was obliged to pay to buyout, buydown, or reform long-term gas contracts with take-or-pay provisions that were entered into, in part, to provide service to Williams. Petitioner therefore argues that it was arbitrary and capricious for FERC to permit Williams to abandon its certified purchaser status without meeting its obligations as to these costs.
Although Transwestern approaches its claim from several different directions, it is important to note, at the outset, what is not at issue. Transwestern does not directly challenge Order No. 490. A petition for review of the order is currently before the Sixth Circuit in Marathon Oil Co. v. FERC, No. 88-3666, but no stay of the order was granted so we must assume its validity for purposes of this case. 15 U.S.C. § 717r(c). Nor does Transwestern challenge the propriety of applying Order No. 490 to the transactions in this case on retroactivity grounds. Transwestern does not argue that FERC could not properly determine that when Williams gave notice under the contract on February 1, 1988, it had “complied with the requirements of Order No. 490.” Order No. 490 did not issue until February 12, 1988, and did not take effect until April 12 of that year, well after Williams had given notice.
Instead, Transwestern contends that Order No. 490 should not have governed FERC's decision. FERC assertedly misreads Transwestern’s settlement agreement with Williams as authorizing Williams to discontinue purchases without liability for subsequent take-or-pay costs. And, even if Williams had no continuing contract obligation to share Trans western’s take-or-pay costs, FERC did have “jurisdiction” over Williams (at least until February 1, 1989, when the one-year notice period had expired) when Transwestern filed its petition for a conditional abandonment. FERC could, and therefore should, have recognized Trans western’s regulatory claim against Williams by conditioning the abandonment. Without overtly challenging Order No. 490, Transwestern nevertheless argues that FERC should make an individualized determination under the Natural Gas Act that any particular abandonment is justified by the public interest. According to Transwestern, abandonment here was not so justified — at least without a condition — because the resulting mismatch between cost incurrence and cost responsibility is contrary to FERC’s traditional policy.
We turn first to the dispute over FERC’s interpretation of the settlement agreement between Transwestern and Williams. It will be recalled that Order No. 490 permits automatic abandonment of the purchaser’s certified duty to take gas if the purchaser’s contract with the seller has expired or the purchaser has given notice, pursuant to the contract, to terminate its purchase obligation. Upon examination of Transwest-ern’s petition, FERC observed that Williams had given the one year notice and that the purchaser’s obligation had expired by the time FERC considered the matter. The contract contained no provision that, on its face, contemplated any continuing obligation on Williams’ part to pay for Transwestern’s take-or-pay costs filed after February 1, 1989. Accordingly, FERC determined that Williams met Order No. 490’s criteria for automatic abandonment.
Transwestern argues that FERC’s examination of the settlement agreement was too cursory. Although Transwestern concedes that there is no specific language in the agreement continuing Williams’ liability, it points to the general reservation of rights clause set forth above. Transwest-ern contends that the clause preserves its claim because the settlement does not affect Transwestern’s “right” to recover Williams’ share of Trans western’s take-or-pay costs. Transwestern, however, does not identify the source of the alleged contract right supposedly preserved by the settlement agreement. Be that as it may, FERC has not purported to resolve definitively whether Transwestern has any continuing contractual claim for take-or-pay liability against Williams. When FERC issued Order No. 490, it said “the nature of the rights granted and whether the right was properly exercised are contractual issues to be determined by a court of competent jurisdiction.” 53 Fed.Reg. 4121 (February 12, 1988). As we understand FERC’s approach under the Order then, it will take only a quick look at a submitted agreement to determine whether the notifying purchaser’s obligation to purchase has ceased. If so, FERC will certify the abandonment, which simply means that the purchaser’s statutory obligation to continue purchasing gas ends. FERC’s order to that effect does not prejudice a seller’s claim under contract law. There is, in other words, no claim preclusion by reason of FERC’s Order.
FERC contends that it is entitled to deference in interpreting the contract for these purposes. To be sure, the contract term was not filed with, and approved by, a regulatory commission — a situation where we would normally afford deference. Cf. Cajun Elec. Power Coop., Inc. v. FERC, 924 F.2d 1132, 1135 (D.C.Cir.1991); National Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1569-71 (D.C.Cir.1987). Still, we defer to FERC because it is reading the contract term for a limited regulatory purpose, almost as an extension of its regulation, and not to determine the parties’ ultimate contractual rights and responsibilities. FERC’s interpretation does not give rise to the specter of res judicata, or the prospect of conflicting decisions in different forums. See Litton Financial Printing Div. v. NLRB, — U.S. -, -, 111 S.Ct. 2215, 2223-24, 115 L.Ed.2d 177 (1991); Local Union 1395, Int’l Bhd. of Electrical Workers v. NLRB, 797 F.2d 1027, 1030 (D.C.Cir.1986).
In the alternative, Transwestern claims that even if Order No. 490 governs, FERC still had the authority to condition Williams’ abandonment. Transwestern did file its abandonment petition a little less than a month before February 1, 1989 (the contract termination date and therefore presumably the effective date of Williams' abandonment). FERC determined, however, that by the time, in the ordinary course of events, it had examined Trans western’s petition, it was moot; the agency blamed Transwestern for having waited 11 months to take action. It would appear that FERC nevertheless could have asserted “jurisdiction” over Williams, but the Commission may well have been entitled to determine that it did not need to do so, given Transwestern’s long delay and its failure either to explain the delay or to bring the petition on an expedited basis. In any event, petitioner does not claim that FERC lacked the authority to decide as it did, so we need not resolve the scope of FERC’s discretion.
Transwestern’s real quarrel with FERC’s application of Order No. 490 is that, notwithstanding FERC’s generic approach, the Commission must still conduct an individualized abandonment proceeding. Of course, if Transwestern’s argument were accepted, Order No. 490 would be a dead letter. Its affirmance by the Sixth Circuit would be meaningless, due to our evisceration of the order. It should be obvious, therefore, that petitioner has brought an impermissible collateral attack on the regulation. This is not a case where a petition plausibly asserts that a rule should not be applied in the case because of unforeseen circumstances or special factors. Panhandle Eastern Pipe Line Co. v. FERC, 907 F.2d 185, 188 (D.C.Cir.1990).
There remains only petitioner’s claim that, even assuming the general propriety of FERC’s generic approach, this case calls for particularized attention because the result deviates from FERC's long-held policy that cost responsibility should match cost incurrence. Transwest-ern contends that if Williams avoids its share of Transwestern’s take-or-pay liability, Williams would escape responsibility for costs incurred on its behalf. FERC, however, correctly responds that in solving the unusual and vexing take-or-pay problems of the 1980s, FERC is authorized to depart from the matching principle. See K N Energy, Inc. v. FERC, 968 F.2d 1295, 1301-02 (D.C.Cir.1992). We see no reason why its application of Order No. 490, as in this case, should be thought an unreasonable extension of this notion.
* * * * *
For the foregoing reasons, we conclude that FERC acted properly when it refused to condition Williams’ abandonment. Thus, the Commission’s decision is affirmed.
So Ordered.
. In an earlier proceeding, the Commission had held that Williams also would remain liable for its share of take-or-pay costs arising from contracts in litigation as of March 31, 1989, because Transwestern had included a "litigation exception” in its tariff filings.
. That is how FERC describes Williams’ actions in its brief. From the context, it is apparent that FERC is referring to February 1, 1988, the date Williams gave the year’s notice (although FERC's order is less clear). Order No. 490, issued subsequently, thereby gives a legal significance to that act, which it arguably did not have at the time it was taken.
. With the exception of the litigation claims.
. Although FERC did approve the main elements of the settlement, see Transwestern Pipeline Co., 38 F.E.R.C. ¶ 61,061 (1987), reh’g granted in part and denied in part, 41 F.E.R.C. ¶ 61,-178 (1987), the Commission did not specifically discuss Art. XVII.
.FERC did not decide whether it might have acted differently if Transwestern’s petition had been filed at the time of Williams’ notice under the contract (or perhaps immediately thereafter).
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_direct2
|
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 broadest interpretation of First Amendment protection. 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.
Budd LEPMAN, Plaintiff-Appellant, v. Marjorie EVERETT and Time, Incorporated, a corporation, Defendants-Appellees.
No. 14414.
United States Court of Appeals Seventh Circuit.
June 18, 1964.
Rehearing Denied July 15, 1964.
Irving Goodman, Chicago, Ill., for appellant.
Don H. Reuben, Lawrence Gunnels, William J. Lynch, Howard Ellis, Chicago, Ill., for defendant-appellee, Time, Incorporated.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges.
HASTINGS, Chief Judge.
Plaintiff Budd Lepman brought this diversity action in the district court against defendants Marjorie Everett and Time, Incorporated. He sought recovery of $300,000 actual damages and $300,000 punitive damages for an alleged libel against him by defendants.
The trial court granted defendants’ motions to strike the complaint and dismiss the action and denied plaintiff’s subsequent motion to vacate and set aside its order of dismissal. Plaintiff appeals from orders of the trial court dismissing the action and refusing to vacate and set aside the dismissal.
Defendant Time, Incorporated owns and publishes a magazine of national circulation known as Sports Illustrated.
Defendant Marjorie Everett is alleged to be the chief stockholder and owner of a controlling interest in Chicago Thoroughbred Enterprizes, Inc., a corporation, which owns three race tracks in the Chicago, Illinois area, viz.: Arlington Park, Washington Park and Balmoral. She was said to wield great influence in racing circles in the United States and to have been the subject of frequent articles in newspapers and periodicals as an important influence in the sport of racing.
In the August 20, 1962 issue of Sports Illustrated there appeared an article entitled “The Racing Lady of Chicago.” This was a comprehensive report on Mrs. Everett’s life and activities as the “boss” of three major Chicago race tracks. She was characterized as an aggressive and imaginative person who had become a controversial figure in the racing field.
Th& subtitle of the article reads: “Her pace is furious and her manner brusque, but Marjorie Lindheimer Everett is bringing new vitality to her sport in the Midwest. She has spent millions to see that her patrons get the best, and now she offers the richest race of them all.” Whitney Tower is the author of the article.
The complaint quotes the following paragraph from such article:
“ ‘The TRPB [Thoroughbred Racing Protective Bureau] says they keep gangster elements out of tracks,’ says Mrs. Everett. ‘Well, they don’t.’ She tells of once pointing out a big Chicago bookmaker to TRPB men who had overlooked him in her own Post and Paddock Club. She now has her own track police. This costs her $100,000 a year more than it used to, but it is claimed to be more effective. ‘It better be!’ says Mrs. Everett. ‘We’ve thrown out dozens of undesirables,’ she adds, ‘including a bookmaking relative of mine who is racing right now in New Jersey.’” (Emphasis added.)
Plaintiff rests his entire case on the single sentence, emphasized in the foregoing quotation, viz.: “ ‘We’ve thrown out dozens of undesirables,’ she adds, ‘including a bookmaking relative of mine who is racing right now in New Jersey.’ ”
Plaintiff claims this statement is false and was known to be so when Mrs. Everett made it to the reporter for Sports Illustrated. He charges she made it “wilfully and maliciously with the intent to damage and injure the person referred to, namely the plaintiff in this cause.” He asserts he is thereby falsely charged with being a bookmaker.
Plaintiff Budd Lepman is nowhere identified by name or picture within the entire article. He points to the foregoing excerpt as the sole reference to him therein.
Plaintiff seeks to establish his identity with the foregoing statement through allegations in his complaint totally extrinsic to the article, that (1) his name is Budd Lepman; (2) he is Mrs. Everett’s first cousin; (3) his occupation is training horses; (4) he was in New Jersey when the article appeared; (5) he was training horses in New Jersey at that time; and (6) he was the only relative of Mrs. Everett then “engaged in racing” in New Jersey.
The motions to dismiss were grounded on failure of the complaint to state a claim. They charged that the language complained of is not libelous per se, is not libelous per quod, is not of and concerning the plaintiff, is not defamatory in any sense whatsoever and that the complaint fails to plead special damages.
The primary issue before us is whether the assailed language in Sports Illustrated raises a submissible jury question as to whether it was “of and concerning” the plaintiff.
It is agreed by the parties that Illinois law governs here. The result to be reached is controlled by the recent decision of the Supreme Court of Illinois filed January 23, 1962, reported as John v. Tribune Company, 24 Ill.2d 437, 181 N.E.2d 105.
In John, Chicago police raided a brothel in an apartment above the one in which plaintiff resided at the same address. Plaintiff’s landlady and several other women were arrested and charged with immoral activities. Plaintiff was in no manner involved in the raid. In two news stories, The Tribune reported that a woman known by several aliases, including plaintiff’s name, had been arrested in the raid by the vice squad in an apartment at plaintiff’s address. Plaintiff’s landlady was the only person identified in the articles. Her name was given as Dorothy Clark, alias Dolores Reising, Eve Spiro and Eve John. She was reported to be the friend of a gangster. Plaintiff’s maiden name had been Eve Spiro and her name at the time was Eve John. She was the only person with such name at that address.
The court held that “whether an article is susceptible of the construction for which a plaintiff claims is a question of law for the court, to be resolved by reading the offending language stripped of innuendo. * * * [Citing cases].” 24 I11.2d at 440-441, 181 N.E.2d at 107.
The court further held that the articles were capable of being read as “of and concerning” a woman other than plaintiff, and necessarily must be so read. 24 I11.2d at 441, 181 N.E.2d at 107.
It was held in John, applying the “innocent construction rule” to the subject language, that the publications were not libelous of plaintiff as a matter of law. “That rule holds that the article is to be read as a whole and the words given their' natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law. * * * [Citing cases].” 24 Ill.2d at 442, 181 N.E. 2d at 108.
In Crosby v. Time, Incorporated, 7 Cir., 254 F.2d 927 (1958), relying upon Illinois law, we followed the general principles reestablished and made final in John. We noted with approval the statement of the Illinois innocent construction rule: “The language must receive an innocent construction when susceptible of such interpretation and cannot by innuendo be extended beyond a reasonable construction.” 254 F.2d at 930. See Porcella v. Time, Inc., 7 Cir., 300 F.2d 162, 167 (1962) and Brewer v. Hearst Pub. Co., 7 Cir., 185 F.2d 846, 850 (1951).
Plaintiff seeks to distinguish John, Crosby and other cases cited by defendants. We reject any such distinction. If there be any question as to the continuing vitality of these applicable general principles in Illinois, reference is made to the action of the Appellate Court of Illinois on May 6, 1964, in No. 49358, 199 N.E.2d 73, when it overruled its prior decision in Proesel v. Myers Publishing Company, 24 Ill.App.2d 501, 165 N.E.2d 352 (1960), one of the cases relied upon by plaintiff in this appeal.
In the instant case, we find the article containing the assailed language is concerned solely with the racing background and activities of defendant Marjorie Everett. The allegedly libelous statement attributed to her was a passing comment concerning her activities in keeping bookmakers out of her race tracks in Chicago. Nowhere in the article is there any identification of plaintiff.
As we said in Crosby, 254 F.2d at 929: “On the face of the article under attack, it is not discernible how the ordinary reader (we have read the article many times) would have any reason to believe that plaintiff had any part in the corrupt activities attributed to others.”
Applying the principles in John and Crosby, reaffirmed by us in Porcella, we hold the district court correctly ruled the charged defamatory statement not to be libelous. The district court did not err in striking the complaint as stating no cause of action.
Such being our conclusion, we deem it unnecessary to comment on the numerous libel cases called to our attention. Further, we do not reach the question whether the complaint fails to properly plead special damages.
We have considered plaintiff’s procedural objections relating to the de-cisión of the case by the trial court before defendants’ reply brief was filed and without hearing oral argument. We find them to be without merit. Further, plaintiff was not harmed by any denial of opportunity to amend his complaint. He made no timely request to do so and has never indicated the nature of any amendments he proposes to make.
The judgment of the district court appealed from is affirmed.
Affirmed.
. See Wheeler v. Dell Publishing Co., 7 Cir., 300 F.2d 372, 375 (1962); Crosby v. Time, Incorporated, 7 Cir., 254 F.2d 927, 929 (1958).
. The court cites numerous Illinois cases and includes Crosby v. Time, Incorporated, 7 Cir., 254 F.2d 927 (1958) and Schy v. Hearst Pub. Co., 7 Cir., 205 F.2d 750 (1953).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
SIEGMUND v. GENERAL COMMODITIES CORPORATION Limited.
No. 12068.
United States Court of Appeals Ninth Circuit.
June 28, 1949.
James L. DeSouza, John F. Sullivan,, Phoenix, Arizona, for appellant.
Rawlins, Davis, Christy & Kleinman,, Phoenix, Arizona, for appellees.
Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.
DENMAN, Chief Judge; ..
Thi's is an appeal from a judgment dismissing a cause against the several appel-lees, who were some, but not all, of the defendants below. The complaint alleged, that the plaintiff, appellant here, was a citizen of Arizona; that defendant, General' Commodities Corporation, one of the ap-pellees, was a corporation organized under the laws of Hawaii; that the remaining ap-pellees were citizens of the Territory of Hawaii.
Jurisdiction of the district court was invoked on the ground of diversity of citizenship under the Act of April 20, 1940, c. 117, 54 Stat. 143, 28 U.S.C. § 41(1), later considered, which extended the diversity jurisdiction to include cases between citizens-of the District of Columbia, the Territories of Alaska and Hawaii, and any state of territory. The court below held that this Act was unconstitutional and so dismissed the-action as to appellees who were citizens of Hawaii.
Appellees have moved to dismiss the appeal on the ground that the order of dismissal was not a final order as required by § 128 of the Judicial Code, 28 U.S.C. § 225.
A. Motion to dismiss the appeal.
We think the order of dismissal is such a final order and that this court has jurisdiction to review it in this appeal.
The complaint states two causes of action. The first is against appellee General Commodities Corporation for breach of .contract. The second is against appellee General Commodities Corporation, Heen, Kai and Alcana, and also against W. T. Davis and two fictitious corporations and each of them, for conspiring to deprive appellant of his rights and the payment due him under the contract sued upon in the first cause. The relief sought was a judgment against the defendants upon both a joint and a several liability.
The two fictitious corporations have not been served with process, so the fact that there is no judgment as to them will not affect appellant’s right to this appeal. Bradshaw v. Miner’s Bank, Cir. 7, 81 F. 902.
Appellees, although they are sued jointly and severally, and the dismissal was as to both joint and several liability, contend that the judgment dismissing the complaint as to some of the defendants is not a final order since it leaves other defendants in the court below against whom joint relief is sought. In this situation the contention is that the partial joint defendants’ appeal should be dismissed and the appellant required to remain in the lower court until the question of joint liability of all is determined. In this appellees rely upon Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443, and cases following that decision. These cases hold that where a plaintiff seeks to hold multiple defendants jointly liable and the trial court dismisses the action as to some of the defendants, an appeal by the plaintiff from the judgment of dismissal will be dismissed on the ground of absence of jurisdiction in the appellate court. This because the judgment cannot be final until the case is wholly disposed of as to all defendants sought to be held jointly liable. See United States v. Girault, 11 Plow. 22, 32, 13 L.Ed. 587.
Without determining whether a final judgment could be entered below if only joint liability were asserted, we think that where a several liability is also' asserted a final judgment may be entered as to the several liability. Here, since such a judgment of several liability is entered, we deny the motion to dismiss. See Curtis v. Connly, Cir. 1, 264 F. 650, 651 affirmed 257 U.S. 260, 42 S.Ct. 100, 66 L.Ed. 222; Thompson v. Murphy, Cir. 8, 93 F.2d 38.
B. The Constitutionality of the Act.
Since the judgment of the court below was entered, the Supreme Court has decided the case of National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. -, 69 S.Ct. 1173 (decided June 20, 1949), which reversed 4 Cir., 165 F.2d 531, on which appellees rely here.
The National Mutual case upheld the constitutionality of the Act involved here as applied to an action between a citizen of the District of Columbia and a citizen of a state. We think that decision is controlling where the action is between the citizens of a state and a citizen of the Territory of Hawaii.
Section 41(1) of Title 28 United States Code provides as follows:
“41. (Judicial Code, Section 24) Original jurisdiction. The district courts shall have original jurisdiction as follows:
“(1) United States as plaintiff; civil suits at common law or in equity.
“First. Of all suits of a civil nature * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and * * *
“(b) Is between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory. * * *” (Italicized part added by amendment of April 20, 1940.)
The reasons assigned by the two groups of Justices who concurred in the result are as applicable to cases involving citizens of territories as they are to’ cases in which citizens of the District of Columbia are parties.
The opinion of Mr. Justice Jackson, concurred in by Mr. Justice Black and Mr. Justice Burton, states [69 S.Ct. 1182]:
“We conclude that where Congress in the exercise of its powers under Art. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies, that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship. The basis of the holdings we have discussed is that when Congress deems that for such purposes it owes a forum to claimants and trustees, it may execute its power in this manner. The Congress, with equal justification, apparently considers that it also-owes such a forum to the residents of the District of Columbia in execution of its power and duty under the same Article. We do not see how the one could be sustained and the other denied.
“We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudicating justiciable controversies on the regular federal courts which under the Constitution it has the power to ordain and establish and which it may invest with jurisdiction and from which it may withhold jurisdiction ‘in the exact degrees and character which to Congress may seem proper for the public good.’ Lockerty v. Phillips, 319 U.S. 182; 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339.”
The power of Congress to legislate for the territories, while not as expressly stated as the power over the District of Columbia, Const. Art. I, § 8, has nevertheless been held to be plenary. It was early said that “The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this proposition be contested, the Constitution of the United States declares that ‘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.’ ” Const. Art, IV, § 3. Sere v. Pitot, 6 Cranch 332, 336, 337, 3 L.Ed. 240. See also Downes v. Bidwell, 182 U.S. 244, 267, 21 S.Ct. 770, 45 L.Ed. 1088. Thus under the view expressed by Mr. Justice Jackson the act in question would be constitutional because it is a legitimate exercise of the power of Congress to legislate for the territories.
Under the view of Mr. Justice Rutledge, concurred in by Mr. Justice Murphy, the decision of Hepburn v. Ellzey, 2 Cranch 445, 2 L.Ed. 332, should be overruled on the ground that there is no basis to discriminate between citizens of the District of Columbia and citizens of states in such a matter as equal access to the federal courts. His opinion states, 69 S.Ct. 1190.
“However, nothing but naked precedent, the great age of the Hepburn ruling, and the prestige of Marshall’s name, supports such a result. It is doubtful whether anyone could be found who now would write into the Constitution such an unjust and discriminatory exclusion of District citizens from the federal courts. All of the reasons of justice, convenience, and practicality which have been set forth for allowing District citizens a furtive access to federal! courts, point to the conclusion that they should enter freely and fully as other citizens and even aliens do.”
And at page 1195,
“ * * * Reasonable men may differ perhaps over whether or, more appropriately, to what extent citizens of the District should have political status and equality with their fellow citizens. But with reference to their civil rights, especially in such a matter as- equal access to the federal courts, none no-w can be found to defend discrimination against them save strictly on the ground of precedent.
“I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against * * * **
In Corporation of New Orleans v. Winter, 1 Wheat. 91, 4 L.Ed. 44, on the authority of the Hepburn case the judiciary act was construed to exclude citizens of the territories from the purview of the diversity clause. Mr. Chief Justice Marshall, speaking for the Court, said 1 Wheat, at page 94, 4 L.Ed. 44, “It has been attempted to distinguish a territory from the District of Columbia; but the court is of the opinion that this distinction cannot be maintained.” We agree that the distinction cannot be maintained for the purposes of construing Article III, § 2, of the Constitution.
The Judgment is reversed and the case remanded to the district court for further proceedings.
STEPHENS, Circuit Judge, did not participate in the decision of this case.
1948 Revised Judicial Code, 28 U.S.C.A. §§ 1331, 1332.
1948 Revised Judicial Code, 28 U.S.C.A. §§ 1291-1294.
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_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
SOCHANSKI, Stanley J., Appellant, v. SEARS, ROEBUCK AND CO. et al., The Goodyear Tire & Rubber Co. v. John F. SOLOMON, Jr., Palmer Tire Company, Geneva Metal Wheels Co.
No. 79-1963.
United States Court of Appeals, Third Circuit.
Argued Jan. 17, 1980.
Decided May 2, 1980.
August J. Lacko, Lyons & Lacko, Philadelphia, Pa., for appellant.
John J. O’Brien, Jr., O’Brien & O’Brien Associates, Philadelphia, Pa., for appellee.
Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Stanley Sochanski brought suit in the federal district court under diversity jurisdiction alleging that he had been injured while repairing a defective tire of a garden cart sold by Sears, Roebuck & Co. (Sears). A jury awarded damages to Sochanski but the district court granted a motion for judgment n.o.v. stating that Sochanski had not met the burden of proof which Pennsylvania law required to prove that the tire was defective. We disagree and will reverse so that judgment may be entered for the plaintiff.
I.
Sochanski was injured while attempting to repair a tire from a garden cart sold by Sears, Roebuck & Co. The tire was manufactured by Goodyear Tire and Rubber Co. (Goodyear). The tire was mounted onto a metal frame (the wheel). This wheel unit (the tire and wheel) was purchased by the Palsgrove Manufacturing Co., which used the unit to make the garden cart, which was sold to Sears which, in turn, sold the cart to John Solomon in April, 1971.
In July, 1974 Solomon noticed that one of the garden cart’s tires was losing air and took the tire to the Palmer Tire Co. (Palmer) to have an inner tube inserted. The tire was originally a tubeless tire; Solomon felt that an inner tube would stop the leakage problem. Sochanski, an employee of Palmer, was assigned the repair job. At trial he testified about how he had tried to repair the tire. He stated that he first removed the tire from the wheel so that he could remove the valve stem from the wheel because the inner tube had its own valve. After removing the original valve stem, he put one side of the tire onto the wheel, pulling it over the edge of the wheel (flange) with a small crowbar specially designed for that purpose. He explained that the edge of the tire (the bead) was built up slightly so that it would fit snugly against the flange. (Goodyear’s expert explained that the bead is constructed of steel wires). He also explained that the edge of the tire was slightly smaller than the wheel on which it was to be placed so that the tire would lie taut against the flange when stretched to fit on the wheel.
After removing the tire he fit the inner tube on the wheel, checked the valve stem, and inflated the inner tube slightly. He explained that he inflated the tube so it would mold onto the wheel and thus not become folded or twisted. Next he lubricated the other side of the tire so that it could be put onto the wheel easily and pulled that side over the flange with the crowbars. Thus both sides were fastened onto the wheel within the two flanges. He then inflated the inner tube to fifteen pounds of air pressure and stopped to check the tire. He noticed that one edge of the tire was not securely against the flange. Although this was unusual, he felt that the bead would fit more securely once the tire was fully inflated. He then pumped the tire to the required thirty-four pounds of pressure. Again, he noticed that the tire was not securely against the flange. He testified that he figured “something else was wrong” and decided to take the unit apart to try a second time. As he leaned toward the tire to take it apart, the tire burst. The unit shot upwards and struck him in the head rendering him unconscious. Sochanski stated that the procedure he had used to fix the tire was the procedure which was regularly followed at Palmer. Edward Ortman, a fellow employee, concurred. As a result of the accident he suffered a concussion, fracture of the facial bone, spinal fluid rhinorrhea, and spinal meningitis. He was permanently deformed. He has lost his sense of smell and suffers a diminution of his IQ.
Sochanski brought suit, alleging that the tire was defective when Goodyear sold the tire to Palsgrove and through the chain of sales described above, Sears, the final seller, had sold a defective tire to Solomon and the defect had caused Sochanski’s injuries. He asserted that under section 402A of the Restatement (Second) of Torts (1965) Sears and Goodyear were strictly liable for his injuries. At trial he attempted to call Vassilis Morfopoulos as an expert witness. He asserts here that Morfopoulos is an expert on tire safety and would have testified that the tire and the wheel were mismatched and that this mismatch created strain on the tire causing it to pop off the wheel. The district court did not permit Morfopoulos to testify on the ground that Morfopoulos was not qualified.
The jury found, in response to special interrogatories, that the tire was defective when it left Goodyear’s hands, that the defect rendered it unreasonably dangerous, that the wheel unit was defective when it was sold by Sears, that the wheel unit was unreasonably dangerous, and that the defect was the proximate cause of Soehanski’s injuries. The jury awarded $395,000 in damages. In response to a motion for judgment n.o.v. the district court set aside the jury’s verdict. The court held that under section 402A a plaintiff is required to negate abnormal use and reasonable secondary causes, and that the plaintiff’s proof had fallen short of negating reasonable secondary causes.
Sochanski appeals the district court’s decision. He argues that the district court erred as a matter of law because he had met his burden of proof and that the district court abused its discretion by not permitting one of Sochanski’s expert witnesses to testify.
II.
Section 402A of the Restatement (Second) of Torts provides for strict liability of a seller when a defective product he has sold is the proximate cause of a user’s injuries.
Specifically, it states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
This section has been adopted by the Pennsylvania courts, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and applied a number of times. E. g., Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1975); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976).
A plaintiff may prevail under section 402A under a “malfunction’’ theory. Under the malfunction theory, the plaintiff need not prove the existence of a specific defect, if he can show that the product malfunctioned in the absence of abnormal use and reasonable secondary causes. Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir. 1979).
Sears asserts that Sochanski misaligned the tire with the wheel, causing the tube to be pinched and thus explode, relying on the testimony of Goodyear’s expert witness, Robert Hill. The district court held that because Hill’s testimony on the possible mis-alignment showed that the accident might have been caused by a “reasonable secondary cause” and the plaintiff did not negate his mis-alignment theory, that the plaintiff had not met his burden of proof. We do not agree. Sears’ theory on misalignment is based solely on the testimony of Hill. Hill stated that it was his opinion that the tire had been mis-aligned and that he based his conclusion on marks he found on the wheel. He asserted that the marks had been caused in the accident and they showed that the tire had been mis-aligned. During cross-examination Hill, however, admitted that he was not certain of how the marks were made and that they might have been made in the manufacturing process. The jury could have reasonably disregarded this portion of Hill’s testimony because of this challenge.
The district court also relied on evidence which revealed that the inner tube ruptured on the bottom side causing the wheel unit to shoot upward. The court suggested that the rupturing may have been “the sole cause of the accident” and that the plaintiff had not refuted this possible cause. 477 F.Supp. 316, 320 (E.D.Pa.1979). Hill, however, testified that the rupture on the tube merely controlled the direction of the wheel unit and that “beyond that it ha[d] no significance.” Thus, the jury could have concluded that the tube was not the cause of the accident.
Sochanski’s testimony does not suggest that he mis-aligned the tire and it is sufficient to support the jury’s conclusion that he was repairing the tire properly. We note that the district court suggested that Sochanski admitted he did the repair incorrectly, stating, “Plaintiff also decided to take the wheel unit apart again because ‘maybe there will be something else wrong.’ ” Id. at 320 n.7. It is, however, possible that the jury interpreted this statement by Sochanski as a repetition of his earlier comment, “So I figured you know, there is something else wrong with the tire.” (emphasis added). Further, the jury may have been persuaded that the tire was defective because it failed to pull taut against the flange. Sochanski testified that the bead normally would have snapped against the flange after he inflated the tire to fifteen pounds of pressure. Thus, there was evidence from which the jury could have concluded that the plaintiff repaired the tire properly and it could have rejected the evidence on “reasonable secondary causes.”
This evidence is sufficient to meet the burden of proof required by Pennsylvania law. In Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968), the Supreme Court of Pennsylvania held that the testimony of the plaintiff and another witness which established that a beer bottle that had been properly stored had exploded without any apparent causation was enough to make the issue of a defect a jury question. In Bialek the plaintiff had called an expert witness to testify on a possible defect. The court did not find the expert’s testimony critical to its holding. In Agostino v. Rockwell Manufacturing Co., 236 Pa. Super. 434, 345 A.2d 735 (1975), allocatur denied, Nov. 26, 1975, the court held that there was sufficient evidence for the jury to find the existence of a defect in an electric saw solely on the basis of the plaintiff’s testimony that the automatic guard on the saw failed to operate. The court sustained the jury’s verdict for the plaintiff, even though no expert witness had testified. Accord McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) (then District Judge Weis).
In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), on which the district court relied, the plaintiff attempted to proceed under the malfunction theory when he was injured by a malfunctioning crane. Reversing the lower court, the Supreme Court stated:
The questions when and where a defect originated should be left to the finder of fact so long as “reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective condition existed when the [product] was delivered [citations omitted]”. Greco v. Bucciconi Engineering Co., 407 F.2d 87, 90 (3rd Cir. 1969), (applying Pennsylvania law); see also Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969). On the other hand, “the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but . . there must be evidence upon which logically its conclusions may be based [citations omitted]”. Smith v. Bell Telephone Co., 397 Pa. 134, 138, 153 A.2d 477, 479 (1959).
319 A.2d at 922. The basis for the court’s decision in Kuisis was the plaintiff’s failure to prove that the crane had remained substantially unchanged after it left the manufacturer’s hands. The crane was first a shovel, then converted into a dragline, and then into a crane. It was twenty years old and had been subject to “the vicissitudes of over twenty years of rugged use.” Id.
We do not agree that Sochanski’s claim is similarly defective, although Sears argues that the district court’s order may be sustained on that basis. First, Hill testified that the explosion was not caused by either the insertion of the inner tube or any scars present on the tire. He described the tire as close to new and showing very little wear and tear.
Second, the plaintiff presented evidence at trial which showed the cart had not been misused or even put to significant use. Solomon, the owner, testified that the cart had been used only seasonally to transport leaves, grass and firewood and that it had been stored indoors. As the Kuisia court held:
The age of an allegedly defective [condition] must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact.
Id. at 923.
We therefore conclude that Sochanski has met his burden of proof under Pennsylvania law and that the jury’s verdict shoúld not have been disturbed. Because we hold that Sochanski met his burden of proof at trial, we will not reach his second claim that the district court erred by excluding his expert witness.
We will therefore reverse and remand so that the jury’s verdict may be reinstated.
. During the pendency of the appeal, Goodyear reached a settlement with Sochanski: We express no opinion about the effect of the settlement on Sears because neither Sears, Goodyear nor Sochanski has presented the issue to us.
. Sears also asserts that Sochanski did not meet his burden of proof on proximate cause because he did not negate the possibility that the tube was defective. As we have noted, Goodyear’s expert testified that the tube was not a material factor in the accident.
. In Knight v. Otis Elevator, where the trial judge was reversed for preclusion of certain expert testimony, we noted our increasing concern that some trial judges seem to improperly “require an expert in a products liability case to be intimately familiar with all aspects of the total machine rather than the particular part in issue.” 596 F.2d at 88. We repeat again here the words of the late Judge Staley in Trowbridge v. Abrasive Company of Philadelphia, 190 F.2d 825, 829 n.9 (3d Cir. 1951):
If we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be ven' difficult for the plaintiff to obtain the services of an expert currently employed therein, and it might be equally difficult to find someone who was formerly employed in the industry. But the key experts of an industry would normally be available to the defendant.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Candida Merino de WALKER et al., Plaintiffs, Appellees, v. PUEBLO INTERNATIONAL, INC., Defendant and Third-Party Plaintiff, Appellant, v. Angel NEGRON et al., Third-Party Defendants, Appellees.
No. 77-1022.
United States Court of Appeals, First Circuit.
Argued Oct. 6, 1977.
Decided Jan. 27, 1978.
William L. Patton, Boston, Mass., with whom John M. Harrington, Jr., Ropes & Gray, Boston, Mass., David Rive Rivera, and Calderon, Rosa, Silva & Vargas, Hato Rey, P. R., were on brief, for defendant and third-party plaintiff, appellant.
Gabriel Hernandez Rivera, San Juan, P. R., with whom Feldstein, Gelpi, Toro & Hernandez, San Juan, P. R., were on brief, for Candida Merino de Walker, et al., plaintiffs, appellees.
Ernesto F. Rodriguez-Suris, Hato Rey, P. R., with whom Miranda Cardenas & De Corral, Hato Rey, P. R., was on brief, for Market Ins. Co., plaintiff, appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, CRARY, District Judge.
Of the Central District of California, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
The plaintiff-appellee in this diversity case obtained a $25,000 jury verdict for damages suffered when she was falsely accused of shoplifting at one of Pueblo’s stores in San Juan. Her husband received $2,500 for his damages suffered as a consequence of the injury to his wife. The only issue presented in this appeal is whether the district court lacked subject matter jurisdiction, appellant claiming that there was no diversity of citizenship.
Plaintiff and her husband are citizens of Puerto Rico. Defendant Pueblo International, Inc., is incorporated under the laws of Delaware. However, the place of incorporation is not necessarily determinative of citizenship, because corporations for purposes of diversity jurisdiction have dual citizenship:
“[A] corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business”.
28 U.S.C. § 1332(c). The present case turns on whether the district court erred in ruling that Pueblo’s “principal place of business” is other than Puerto Rico.
Defendant moved to dismiss for lack of diversity and the district court decided the issue on the basis of affidavits and documentary materials submitted by both parties. Pueblo’s Executive Vice President averred that Pueblo’s principal place of business was Puerto Rico. In support of this, he stated that all of Pueblo’s operations, including supermarkets, retail stores and a bread factory, were conducted in Puerto Rico. He further claimed that “[m]ore than 90% of the annual gross income and net income of Pueblo, as such corporate entity, in the past and at present, is derived from business [in] Puerto Rico.” The principal officers of Pueblo, including its president, treasurer and executive vice president, had their offices in Puerto Rico and all of the corporation’s fiscal, accounting and operational offices were in Puerto Rico.
Pueblo’s Vice President also stated that Pueblo was a holding company, owning a number of wholly owned subsidiaries, including Hills Supermarkets, Inc., a New York corporation. Hills, it was claimed, has its own board of directors and officers. Furthermore,
“[t]he day to day operating decisions of Hills are taken by its operating Officers at the headquarters and principal office of that corporation located at Brentwood, Long Island, where Hills owns and operates its Distribution Center.”
For accounting and tax purposes, Hills was said to maintain its own separate books and file its own tax returns.
Plaintiff’s attorney filed his own affidavit in opposition which summarized data concerning Pueblo and Hills taken from documents such as Pueblo’s reports to shareholders, minutes of directors’ meetings, and filings with the Securities & Exchange Commission. After Pueblo moved to strike this affidavit, plaintiff’s attorney filed a supplementary affidavit to which were attached copies of the SEC and corporate reports which the prior affidavit had purported to summarize. The district court denied the motion to strike and admitted into the record the affidavits and documents.
The reports relied on by the plaintiff establish that from 1971 through 1975 Pueblo International, Inc., regarded Hills as a “division” of the parent company. Hills was consistently referred to as such. Moreover, in representing Pueblo’s financial picture in its reports, the company routinely included Hills’ figures in its calculations of overall profits, losses, expenses, numbers of employees, real estate, etc. The statistics indicate that, in terms of sales and assets, Hills accounted for about 60% of the consolidated entity’s activities. Pueblo’s minutes of Board of Directors’ meetings reveal that the affairs of Hills were routinely the subject of scrutiny and reports and that the directors participated in such major decisions as the hiring and replacement of Hills’ president.
While the documents thus indicate that Pueblo was ultimately the sole beneficiary and director of Hills’ corporate activities, there is nothing in the record to undermine Pueblo’s claim that the two corporations were separately incorporated, had separate boards of directors, kept separate accounting and tax records, and had separate facilities and operational personnel. And, leaving aside the activities of Hills Supermarkets Inc., there is next to nothing in the record to establish that Pueblo, in its corporate capacity, conducted any business outside Puerto Rico. Pueblo’s annual reports to shareholders list “executive offices” in Carolina, Puerto Rico, and New York City. The directors’ minutes also establish that several meetings were held in the New York executive offices. However, the documents do not reveal who was employed at the New York City office, what corporate affairs other than occasional directors’ meetings were held there, or how much was spent annually in maintaining the office. It is not even possible to draw the inference that New York City was the regular situs of directors’ meetings inasmuch as these meetings were also routinely held in Hills’ headquarters on Long Island, several of Pueblo’s offices in Puerto Rico and in Venezuela. No other evidence in the record, either cited by plaintiff or discovered by us, sheds further light on the character of the New York City “executive offices”.
Three distinct, but not necessarily inconsistent, tests have been developed for determining where a corporation’s “principal place of business” is located. See generally 1 J. Moore, Federal Practice, 10.77[3] (2d ed. 1977). Scot Typewriter Co. v. Under wood Corp., 170 F.Supp. 862, 865 (S.D.N.Y. 1959), established the “nerve center” test, i. e., the center “from which [a multifaceted corporation’s] officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective.” Later cases have suggested that this inquiry should be limited to a “large corporate enterprise with complex and farflung activities” where only the “nerve center” can actually be termed the “principal place of business.” See Epstein v. Guilford Industries, Inc., 218 F.Supp. 286, 288-89 (S.D.N.Y.1963); Anderson v. Southern Bell Telephone & Telegraph Co., 209 F.Supp. 921, 927 (M.D.Ga.1962). Even were we to assume that Pueblo is the type of corporation for which the “nerve center” test would be most appropriate, we could not say that plaintiff has carried her burden of establishing that Pueblo has its nerve center outside Puerto Rico. From the documents which plaintiff submitted, it does appear that two “executive offices” exist, one in Puerto Rico and the other in New York City. But little more can be gleaned about the New York office. In contrast, Pueblo’s Executive Vice Presidents’ affidavit stated that,
“Pueblo, as such corporate entity has its own accounting system, records, operating, purchasing and sales staffs at its [executive offices] at Carolina, Puerto Rico.
“The Minutes Books of Pueblo and of its predecessor corporation are kept at the above said principal offices of the Corporation .
“All stock certificates of Pueblo cancelled as a result of transactions in the trading of its common stock . . . are kept and stored at the principal offices located at Carolina, Puerto Rico.”
The most that can be deduced from this incomplete evidence is that a “nerve center”, if one exists, is located in Puerto Rico. Certainly there is nothing to establish that the “nerve center” is in New York.
However, we need not rest our decision solely on the “nerve center” test, for under the other inquiries recognized for purposes of § 1332(c) jurisdiction, Pueblo’s principal place of business must also be recognized as Puerto Rico. Kelly v. United States Steel Corp., 284 F.2d 850, 854 (3d Cir. 1960), suggested that the “principal place of business” of a corporation is “the center of corporate activity,” i. e., where the corporation’s day-to-day management takes place. A somewhat different test focuses on “the locus of the operations of the corporation.” Inland Rubber Corp. v. Triple A Tire Service, Inc., 220 F.Supp. 490, 496 (S.D.N.Y.1963). The information before the district court all points to Puerto Rico as the place where Pueblo’s day-to-day management and operations occur. Plaintiff suggests, however, that because Hills is the wholly owned subsidiary of Pueblo and because Hills is treated as a “division” of Pueblo, we should ignore the separate corporate identities of Hills and Pueblo. If the two were viewed as a single corporation, it is argued, Pueblo’s “center of corporate activity” or “locus of . operations” would have to be regarded as outside Puerto Rico, since Hills accounts for about 60% of the combined entity’s operations.
We do not agree that the separate corporate identities of Hills and Pueblo may be ignored. In determining whether a parent is “doing business” in a state for purposes of personal jurisdiction, the Supreme Court has held that a separately incorporated subsidiary operating in a state ordinarily may not be considered to be the parent for purposes of determining whether the parent is doing business there:
“Through ownership of the entire capital stock and otherwise, the defendant dominates the [subsidiary] corporation, immediately and completely; and exerts its control both commercially and financially in substantially the same way, and mainly through the same individuals . . . The existence of the [subsidiary] company as a distinct corporate entity is, however, in all respects observed. Its books are kept separate. All transactions between the two corporations are represented by appropriate entries in their respective books in the same way as if the two were wholly independent corporations. .
“In the case at bar, the identity of interest may have been more complete and the exercise of control over the subsidiary more intimate than in the three cases cited, but that fact has, in the absence of an applicable statute, no legal significance. The corporation separation, though perhaps merely formal, was real. It was not pure fiction.”
Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 335, 336-37, 45 S.Ct. 250, 251, 69 L.Ed. 634 (1925) (Brandeis, J.). Later cases have continued to give effect to the separate corporate identities, suggesting that an exception might be made where parent and subsidiary “violated the integrity of the forms they chose or rendered them unreal by any course of conduct shown in the evidence.” Blount v. Peerless Chemicals (P. R.) Inc., 316 F.2d 695, 698 (2d Cir.), cert. denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963). Another case has suggested that the corporate veil may be pierced where the parent/subsidiary distinction is rendered a “subterfuge” or the parent is hiding behind “a sham or dummy corporation.” Echeverry v. Kellogg Switchboard & Supply Co., 175 F.2d 900, 903 (2d Cir. 1949). Another case has stated that the parent may be considered amenable to suit where the subsidiary is doing business where “the corporate separation is fictitious, or . . . the parent has held the subsidiary out as its agent, or . . . the parent had exercised an undue degree of control over the subsidiary.” Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292, 296 (6th Cir. 1964) (citing cases).
A fortiori, the Cudahy Packing line of cases should apply in a § 1332(c) case. See Quaker State Dyeing & Finishing Co. v. ITT Terryphone Corp., 461 F.2d 1140, 1142 (3d Cir. 1972). If the court may not look to the activities of a separately incorporated subsidiary for purposes of determining whether its parent is “doing business” in a state, there is no reason to look to the subsidiary to determine whether the parent has its “principal place of business” in that state. In the present case, if Hills’ activities are put to one side, it is clear that Pueblo’s operations are conducted almost exclusively in Puerto Rico. And there is here no occasion under the standards in Cudahy Packing and its progeny for disregarding or piercing Hills’ separate corporate identity. There is no evidence in the record that the corporate forms were ignored. Hills appears to have remained a distinct entity in all respects with both corporations keeping separate books for accounting and tax purposes. Pueblo’s presentation of consolidated profit, loss and other calculations to its shareholders in some reports does not detract from the otherwise complete fiscal and operational segregation of the two corporations. The fact that Pueblo owned all of Hills’ stock, and the control incident to that ownership, do not justify ignoring the otherwise separate character of the two corporations. We need not go so far as to say that the corporate separation must be shown to be a “sham” or “subterfuge”; here the separation “though perhaps merely formal, was real. It was not pure fiction.” Cudahy Packing Co., supra.
Since plaintiff did not establish that Pueblo’s “nerve center” or any substantial part of its operations was outside Puerto Rico, we conclude that the district court erred in finding that there was diversity of citizenship.
Reversed and remanded with instructions to dismiss the complaint.
. Since we conclude that the district court lacked jurisdiction, it is unnecessary to decide the question presented in Pueblo’s cross appeal, whether the court erred in refusing to join appellee Market Insurance Co. as a third party defendant.
. As our disposition of the case is unaffected by whether or not such materials are received, we need not decide whether plaintiff’s attorney’s affidavit was competent to introduce evidence taken from Pueblo’s files.
In addition to considering the documentary evidence introduced by plaintiff and defendant, the district court relied on the finding of another district judge in another case in which Pueblo was a defendant that Pueblo’s principal place of business was New York. Lazus v. Pueblo International, Inc., Civ. Nos. 113-72, 889-71 (D.P.R. Dec. 23, 1975) (Turk, J.), appeal dismissed sub nom. Agosto Alamo v. Pueblo International, Inc., Misc. No. 76-8026 (1st Cir. Apr. 1, 1976). Different evidence was introduced in the Lazus case than was before the district court in the present case. Moreover, Pueblo was denied permission by this court to bring an interlocutory appeal from that ruling. And no final judgment was apparently entered in any case controlled by Judge Turk’s Lazus ruling until after a final judgment was entered in the present case. In these circumstances, no collaterally binding effect need be given to the Lazus finding in the present case. See Restatement of Judgments, §§ 41, 43 comment a, 69(2). Cf. Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). To be sure, the district court in the present case would be properly concerned to act, insofar as it could, in concert with other district judges so as to avoid undue confusion. But this natural concern can rise no higher than the record in the instant case permits.
. See Lancer Indus., Inc. v. American Ins. Co., 197 F.Supp. 894, 898-99 (W.D.La.1961); Textron Electronics, Inc. v. Unholtz-Dickie Corp., 193 F.Supp. 456, 459 (D.Conn.1961).
. It is plaintiffs burden to prove facts sufficient to support a finding of diversity of citizenship. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942).
. Our holding in this case is not collaterally binding on different litigants in pending or future cases involving Pueblo since they were not parties to this litigation. Were a future plaintiff to come up with new and different facts as to the locus of Pueblo’s operations, it might yet be established consistently with our present holding, that Pueblo’s principal place of business is other than Puerto Rico.
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_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.
TELE-COMMUNICATIONS OF KEY WEST, INC., Appellant v. UNITED STATES of America et al.
No. 84-5008.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 30, 1984.
Decided April 2, 1985.
Jay L. Cohen, Washington, D.C., with whom Fred Israel, Washington, D.C., was on the brief, for appellant. Alan R. Plutzik, Washington, D.C., entered an appearance for appellant.
Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lam-berth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
This is an appeal from a District Court order dismissing, for failure to state a claim, a complaint filed by Tele-Communications of Key West, Inc. (TCI), a purveyor of cable television service. The issue presented is whether the dismissal was, in fact, proper under Federal Rule of Civil Procedure 12(b)(6). As discussed below, we hold that the District Court erroneously dismissed TCI’s First and Fifth Amendment claims but properly dismissed TCI’s statutory antitrust claim. Consequently, we affirm in part and reverse and remand in part.
I. Background
The undisputed facts underlying this case are as follows. For ten years, from 1974 through 1983, TCI (and its predecessor-in-interest) provided cable television service to Homestead Air Force Base in Florida. In June of 1983, however, the Air Force requested bids for cable television service to the base from a variety of parties. After receiving bids, the Air Force awarded an exclusive service contract to another company and ordered TCI to remove its cables and other equipment from the base’s cable television right-of-way by the end of December 31, 1983.
On December 13, 1983, TCI filed an action in the District Court here requesting injunctive and declaratory relief. See Complaint for Declaratory and Injunctive Relief for Injury to First Amendment Rights, Fifth Amendment Rights and Antitrust Violations, Appendix (App.) at B. Specifically, TGI requested an order requiring the Air Force to allow TCI to leave its cable equipment where it was; such an order would have enabled TCI to continue service to the base. See Complaint, supra, at 9. TCI also requested that the court issue a declaratory judgment to the effect that any attempt on the part of the Air Force to prevent TCI from continuing to serve those on the base who desired such service would violate TCI’s First and Fifth Amendment rights and the Sherman Antitrust Act. See id. at 8-9.
The same day TCI also filed a motion for a preliminary injunction, contending that it would be irreparably harmed if it was not granted relief by December 31, 1983. See Motion for Preliminary Injunction. The next day, December 14, 1983, a hearing on this motion was set for December 27, 1983.
On December 23, 1983, the Air Force filed a motion to dismiss TCI’s entire complaint for failure to state a claim or, in the alternative, for summary judgment. TCI, on December 27, 1983, then filed an opposition to the motion to dismiss and a motion to strike the Air Force’s motion for summary judgment or, in the alternative, for a discovery and briefing schedule for cross-motions for summary judgment. In these responses TCI asserted that the standard for dismissal had not been met and that the standard and procedures for summary judgment had not been complied with. See Opposition to Defendants’ Motion to Dismiss Under Rule 12(b)(6); Plaintiff’s Motion and Memorandum of Points and Authorities to Strike Defendants’ Motion for Summary Judgment or, in the Alternative, for a Discovery and Briefing Schedule for Cross-Motions for Summary Judgment.
On December 27,1983, the District Court heard oral argument on TCI’s motion for a preliminary injunction and on the Air Force’s motion to dismiss. At that time the court observed that it would not dispose of the case on summary judgment because to do so would be unfair. See Excerpt of Proceedings at 3, App.L. The next day, December 28, 1983, the District Court issued an order and memorandum opinion dismissing the complaint and denying the request for a preliminary injunction. See Tele-Communications of Key West, Inc. v. United States, 580 F.Supp. 11 (D.D.C.1983).
TCI now appeals from the dismissal of its claims for permanent injunctive and declaratory relief, asserting that that dismissal was erroneous under the Rule 12 standards or as a summary judgment. The Air Force, on the contrary, defends the District Court’s decision as procedurally proper and substantively correct. After determining the correct standard of review and evaluating the propriety of the District Court’s decision, we will examine the District Court’s disposition of each of TCI’s claims.
II. The Standard for Our Review of the District Court’s Decision
TCI’s first contention on appeal is that reversal is required because the District Court erroneously considered materials outside the pleadings in considering the motion to dismiss. The Air Force does not disagree with the proposition that the District Court had such external materials before it at the time it was contemplating the motion to dismiss; the Air Force explains this phenomenon by noting that TCI’s request for a preliminary injunction was before the court at the same time and that the Air Force presented extra-pleading materials in opposing that motion. See brief for appellees at 5 n. 3. The Air Force apparently contends, however, that the District Court did in fact, in its review of the motion to dismiss, take all the facts alleged in TCI’s complaint as true. See id. at 5. Based on this interpretation of the District Court’s decision, the Air Force disagrees with TCI’s contention that reversal is mandated. The Air Force also contends in the alternative that if the District Court did consider materials outside of TCI’s complaint, the District Court’s decision should be affirmed as a summary judgment. See id. at 5 n. 3.
We conclude that, in the circumstances of this case, the dismissal cannot properly be treated as a summary judgment, even if materials outside of TCI’s complaint were considered by the District Court. We also conclude, however, that although consideration of external materials is improper under a Rule 12(b)(6) motion to dismiss, reversal based on such consideration alone would serve no useful purpose. Where such consideration has occurred, rather, normal 12(b)(6) review will be in order.
A. Potential for Reviewing the District Court Decision as a Summary Judgment
The normal course of action when materials outside the complaint are considered is for a nominal motion to dismiss to be treated as a motion for summary judgment. As Rule 12(b) states, “If, on a [Rule 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” See also Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam), Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 949 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
There are constraints on a court’s ability to thus transform a motion to dismiss, however. Specifically, Rule 12(b) provides further that, if a motion to dismiss is converted to a motion for summary judgment, “all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” See also Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982). Under Rule 56 such materials include affidavits and documentary evidence that would show that a genuine issue of material fact existed. Rule 56 contains a similar but more explicit constraint: “The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing [on the motion].” Rule 56(c).
Thus a reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.
Here, treatment of the dismissal as a summary judgment would not be appropriate. The motion was served on TCI on December 23, 1983, and argument was heard on December 27, 1983 — a mere four days later. This scheduling complies with neither the explicit 10-day requirement of Rule 56(c) nor the reasonable-period-for-response requirement of Rule 12(b). (The four-day period, as TCI notes in its brief, spanned a weekend and included Christmas and Christmas Eve.) Consequently, the motion cannot properly be recast as a motion for summary judgment, and the District Court’s decision must stand or fall as a pure Rule 12(b)(6) dismissal.
B. Review of the District Court Decision as a Dismissal under Rule 12(b)(6)
As recently reaffirmed by this court, “Dismissal for failure to state a claim for relief is proper only when ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ All factual doubts must be resolved and all inferences made in favor of the plaintiff[ ].” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C.Cir. 1984) (en banc) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (emphasis added by the Ramirez court; footnotes omitted)). Further, as implied by the summary judgment discussion above, a Rule 12(b)(6) disposition must be made on the face of the complaint alone.
Consideration of external materials, which would normally initiate conversion of the motion to one for summary judgment, cannot properly take place under a dismissal for failure to state a claim. This limitation cannot be avoided simply because the party against whom the dismissal was granted desired an expeditious disposition of a concurrent motion for a preliminary injunction. Such reasoning would allow circumvention of the Rule 12/Rule 56 constraints whenever a claim was joined with a request for preliminary relief. This is not a result allowable under the Federal Rules.
As noted above, TCI contends that any action by the District Court that was inconsistent with the Rule 12 requirements makes that court’s dismissal automatically reversible. Thus TCI apparently would have us reverse and remand if the District Court failed to take the facts as alleged in TCI’s complaint and considered materials outside of its pleading. We do not believe that this course would serve the interests of justice or of judicial economy. Although it is clearly improper for a District Court to fail to comply with the technical and substantive requirements of the applicable federal rules, we do not see what purpose would be served by remanding a case to the District Court for a purely legal determination that we are fully competent to make ourselves. We note that this is proper only where no factual determinations need be made, that is, where the question is entirely one of law. Such is the case with a motion to dismiss for failure to state a claim. Consequently, where we determine that the District Court has.improperly failed to follow the strictures of Rule 12, we will determine whether the dismissal was appropriate in any case under Rule 12 as properly applied rather than remand for such a determination in the District Court.
In reality, therefore, our review in a case in which the District Court improperly considered materials outside of the complaint is similar to normal review of Rule 12(b)(6) dismissals: For this court to affirm such a dismissal, it must be self-evident from the face of the complaint, resolving all doubts and drawing all inferences in favor of the plaintiff, that the plaintiff is not entitled to any relief. Our review will differ only in that we must be especially careful to scrupulously avoid making factual assumptions which appear reasonable or even obvious from the record but which cannot properly be drawn from the plaintiff’s complaint. With this in mind, we turn to the specific claims raised by TCI and dismissed by the District Court.
III. Review of the Dismissal of TCI’s Claims
A. First Amendment Claim
In its complaint TCI alleged that “defendants have dedicated certain rights-of-way, poles, support structures and land for use in the provision of cable television services and programming to the servicemen and their families residing at Homestead Air Force Base. Those facilities are essential to the conduct of a cable television enterprise at Homestead Air Force Base.” Complaint, supra, 11 8, App. B. TCI further alleged that it was in the business of providing cable television service and that the defendants, through a solicitation process, had determined that TCI could no longer operate on the base, that is, use the facilities essential to operating on the base. See id. at 1T1f 2, 13-14, 17-19. TCI also alleged that “[t]here are no legal or practical reasons why two companies cannot compete directly to provide cable television services to customers at Homestead Air Force Base.” Id. at 1120. Finally, TCI alleged that, given these facts, the Air Force’s planned exclusion of TCI from the base violated TCI’s First Amendment right to disseminate “inter alia, news, entertainment and information to residents of Homestead Air Force Base * * Id. at 1123.
In comparison with TCI’s factual allegations, the District Court, in its memorandum opinion accompanying its dismissal of TCI’s claim, noted that “[pjlaintiff seeks access to a military installation dedicated to military use.” 580 F.Supp. at 14. The District Court also stated that “granting access to multiple cable television companies would involve significant burdens on the military installation and its mission, and would negate legitimate advantages the Air Force enjoys as a result of limiting access to a single such cable television firm.” Id. (The District Court noted in a footnote that it was obliged to consider the effects of multiple cable companies rather than two because eight companies had bid for the contract. Id. n. 2.) The District Court went on to explicate precisely what those advantages enjoyed by the Air Force were: “In the Air Force’s view, permitting multiple cable operators onto the base rather than soliciting competitive bids for the rights to an exclusive franchise would also raise costs to individual subscribers, thus implicating the military’s interest in the morale of those in its service. It is apparent, then, that the government’s restriction on access to the base is grounded on legitimate and rational military objectives.” Id. Using these factual assumptions, the District Court concluded that, although TCI does “enjoy[] the protections of the First Amendment,” id. at 13, “[ijnasmuch as the challenged denial of access involves a forum traditionally not open to public communication, rationally furthers a legitimate government interest, and is content neutral, it does not violate plaintiff’s First Amendment rights.” Id. at 15.
The facts relied upon by the District Court in reaching this conclusion, however, appear nowhere in TCI’s complaint. In fact, they are exactly the opposite factual assumptions from those a court would make if it, as required, took the assertions in the complaint as given and then resolved all factual doubts and inferences in favor of the pleader. TCI alleged that the rights-of-way necessary to conduct cable television services had been dedicated to such use; the District Court found that the entire military installation was dedicated to military use (presumably with no exceptions). TCI alleged that no legal or practical burdens would accrue from two cable television companies competing and in no way indicated that more than two companies might end up competing; the District Court assumed that eight companies might compete and that this would constitute a significant burden. Thus the District Court’s factual assumptions cannot serve as the basis for an affirmable Rule 12(b)(6) dismissal of TCI’s First Amendment claim.
Thus we must consider whether, applying the correct standard and using TCI’s factual allegations only, TCI’s complaint did in fact state a First Amendment claim. First, we must decide the question whether TCI’s enterprise is protected by the First Amendment at all. If it is, we must then consider whether TCI has stated a valid First Amendment claim, taking as true the factual allegations in its complaint and applying the applicable law.
The District Court found that, under this court’s decision in Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-51 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977), TCI’s activity of providing cable television service was entitled to some First Amendment protection. See 580 F.Supp. at 13. With this step of the District Court’s analysis, we agree entirely. See also Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404 (9th Cir.1985); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1054 & n. 70 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Whether or not TCI produces any original programming of its own, its activities of transmitting and packaging programming mandate that it receive First Amendment protection. See Omega Satellite Products, supra, 694 F.2d at 127; Weaver v. Jordan, 64 Cal.2d 235, 49 Cal. Rptr. 537, 411 P.2d 289, cert. denied, 385 U.S. 844, 87 S.Ct. 49, 17 L.Ed.2d 75 (1966); cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (applying First Amendment to sale and distribution of publications). Thus we turn to the subsequent question whether TCI has adequately alleged that its First Amendment rights were violated in the instant situation.
The next step, therefore, is to determine whether, under the applicable First Amendment law, the particular factual allegations made by TCI state a viable claim. This determination self-evidently depends upon the contours of the applicable First Amendment law. Unfortunately, describing the contours of that law is difficult because of a lack of direct precedent on the question.
As noted by the parties, however, there is a substantial body of Supreme Court case law that confronts the general problem of allowing access to government-owned property for the purpose of exercising First Amendment rights; this is the body of'cases that comprise'the public forum doctrine jurisprudence. The public forum docixinfí, as described by these cases, defines situations in which the government cannot close government-owned property to parties who desire to use that property as a forum for exercising their First Amendment rights. Specifically, these cases appear to provide for three categories of government-owned property — two types of public forums and one “nonforum” category. See generally Perry Education Ass ’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-956, 74 L.Ed.2d 794 (1983) (summarizing the three categories discussed below).
First, property that historically has been both open to the public and available to anyone for use as a forum for the exercise of the First Amendment right of free speech constitutes an unconditional public forum. Such forums include facilities like streets and parks. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (public sidewalks). Second, property that has not been traditionally open for speech but that has been opened by the government as a forum for speech, often for a particular type of speech, also constitutes a public forum. Such property as municipal theaters, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), and school classrooms that are held open for student use, see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), falls into this second category of public forums. See also Lebron v. WMATA, 749 F.2d 893 (D.C.Cir.1984) (subway display space). In contrast, property that has been neither historically open to the public nor specifically opened by the government for use as a forum for speech does not constitute a public forum. Property such as military bases with restricted access, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and intra-school mailboxes, see Perry, supra, has been held to fall into this third “nonforum” category.
The designation of property as a public forum or as a “nonforum” carries with it substantive effects regarding the extent and type of restrictions that the government may place upon the speech by the general public that may occur there. Government restrictions on speech in public forums of either the first or second type are subject to strict requirements. In public forums the government may restrict speech only (1) by enforcing time, place, and manner restrictions if those restrictions are content-neutral and narrowly tailored to serve a significant government interest, or (2) by imposing content-based exclusions if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Perry, supra, 460 U.S. at 45-46, 103 S.Ct. at 954-956. With respect to nonforums, however, the government may “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. at 955; see also U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 131 n. 7, 101 S.Ct. 2676, 2686 n. 7, 69 L.Ed.2d 517 (1981).
Applying this public forum jurisprudence to the factual allegations in TCI’s complaint, we find that TCI has adequately alleged a First Amendment cause of action. TCI alleged in its complaint that there were no reasons, practical or legal, why two cable television companies could not simultaneously use the cable rights-of-way on Homestead Air Force Base. This allegation, if taken as true, would mean that TCI’s First Amendment rights had been infringed if the right-of-way was a public forum of either kind or if it was a nonforum: If the property is a public forum, the government may restrict speech only to serve significant (if content-neutral) or compelling (if not content-neutral) interests; if the property is a nonforum, the government may restrict speech only if such restriction is reasonable. An allegation that there were no reasons for restricting speech thus states a claim under either analysis. (It does appear, however, that TCI also adequately alleged that the right-of-way was a public forum by its allegation that the Air Force had dedicated the right-of-way for cable television use.) Thus we hold that TCI did state a First Amendment claim upon which relief could be granted. Consequently, we reverse and remand to the District Court.
Because of the relative novelty of TCI’s claim, we add an observation on the effect of our holding. We note first that two of the three circuits that have previously considered the issue of cable television’s right of access to government-owned property for the purpose of communicating to viewers have not used the public forum doctrine in their analysis. These two circuits, rather, seemed instead simply to balance the competing interests involved. See Community Communications, supra, 660 F.2d at 1375-1380 (balancing the competing interests of the cable television company’s desire to communicate and the municipality’s need to preserve certain public resources that might be burdened by the provision of cable television service); see also Omega Satellite Products, supra, 694 F.2d at 127-128 (balancing interests of cable company with burden on public resources and assumed fact that cable television represents a natural monopoly). The third circuit to address this issue did note the potential relevance of the public forum doctrine but did not hold that the public forum doctrine governed without alteration in this context; it seemed to use the doctrine merely as additional support for a conclusion already reached on other grounds. See Preferred Communications, Inc., supra, 754 F.2d at 1407-1409.
We note also that the Supreme Court has often stated that “[ejach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, although historical First Amendment jurisprudence signals the analytic approach to be used in determining the First Amendment protection due a new medium, a court describing that protection must be careful to adapt that jurisprudence to the new context.
In light of these observations, we wish to make clear that our holding that TCI has stated a First Amendment claim under public forum jurisprudence is not a holding that a different and perhaps more appropriate First Amendment analysis may not properly be developed during the proceedings on remand.
B. Fifth Amendment Claim
The same allegations in TCI’s complaint that preclude a Rule 12(b)(6) dismissal of its First Amendment claim also preclude such a dismissal of its Fifth Amendment claim. As noted above, the District Court found that the Air Force had legitimate government interests in denying access to TCI. The District Court went on to note that “[n]o due process violation has occurred since plaintiff’s First Amendment rights have not been infringed and there is no dispute over the conduct of the bid process itself.” 580 F.Supp. at 15. Having determined that TCI’s complaint did in fact state a First Amendment claim, we must now reexamine the dismissal of the Fifth Amendment claim as well, bearing in mind that none of the District Court’s subsidiary factual conclusions can be adopted unless they are clearly alleged in the complaint.
From the complaint we glean three factual assumptions that must be made in this Rule 12(b)(6) determination: First, that the Air Force had dedicated the necessary property to cable television transmission; second, that TCI had been denied access to this property; and third, that there were no reasons for not allowing two cable companies to use that property. See Complaint, supra, at if 118, 17-18, 20. Using these factual allegations, we now apply Fifth Amendment law to determine whether a claim was stated by TCI.
The Due Process Clause of the Fifth Amendment has been held to include an equal protection provision. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under equal protection doctrine, differential treatment of parties is constitutional only if adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972).
As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement if it is not rationally related to a legitimate governmental interest. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959. TCI’s allegation states that the government has no reasons, legitimate or compelling, for excluding one television station and not another. Consequently, although the ultimate merit of such a claim may be extremely doubtful unless TCI’s First Amendment rights have in fact been burdened, dismissal is not appropriate. The complaint states a claim and, regardless of the likelihood of success, if the complaint states a claim it must withstand the Rule 12(b)(6) motion to dismiss. Thus the District Court’s dismissal of TCI’s Fifth Amendment claim was incorrect and must be reversed.
TCI’s brief also presents an argument that centers around the statutory easement provision which authorizes the type of easement at issue here to be granted by the Air Force. See 16 U.S.C. § 420 (1982); 43 U.S.C. § 961 (1982). Although the content of this argument is not entirely clear, it appears to break down into one purely statutory claim — that the Air Force, by granting an easement to one party, granted an easement to any party desiring one — and one statutorily-rooted constitutional claim — that this statute created a property right in TCI that was then unconstitutionally taken by the Air Force. Although these arguments were not specifically raised in TCI’s complaint (the complaint contains no reference to the statutory provisions in question or to any easement as such), the District Court, apparently responding to TCI’s raising of it in a brief filed after its complaint, made specific findings on the issues. The District Court found that (1) the statute did not automatically provide that, where an easement is granted to one party for a particular purpose, any other party is also automatically entitled to an easement for that purpose, and (2) TCI’s easement, effective until 11:59 P.M. on December 31, 1983, expired automatically at that time so that TCI had no continuing property interest that might be unlawfully abrogated by the Air Force. See 580 F.Supp. at 15.
With respect to the first finding, we believe the District Court correctly decided the issue. (Consequently, we need not decide whether the complaint adequately alleged it.) The statute here specifically states that the governmental body with jurisdiction over the lands in question “is authorized and empowered * * * to grant an easement for rights-of-way * * * to any citizen, association, or corporation of the United States * * The plain language of this statute indicates that the government body can grant the easement to one party if it wishes. It does not follow that once an easement is granted any party may use that easement.
The District Court’s handling of the second question is more troublesome. The District Court found that, as the Air Force alleged, the easement given to TCI simply expired at the end of 1983. This, however, is a factual assumption which was not alleged in the complaint. What TCI alleged in its complaint was that the Air Force had dedicated certain property to transmission of cable television and that TCI was not being allowed to use that property. The question, therefore, is whether this allegation stated a claim beyond those discussed above. We conclude that it did not. As the District Court noted, no allegations of improper bid procedures appeared in the complaint. Thus no procedural due process claim was stated. Further, no allegation appeared that TCI had a property interest in the right-of-way. Consequently, no takings claim was stated. Therefore, we find only that TCI has stated an equal protection Fifth Amendment claim.
C. Sherman Antitrust Act Claim
TCI, in its complaint, also alleged that the government, acting as a common agent for the service people stationed at Homestead Air Force Base, acted in such a way as to establish a monopoly in service of cable television to the base. See Complaint, supra, at f 42. TCI further alleged, however, that access was also allowed for the purpose of “furnishing * * * cable television services to Air Force facilities at Homestead Air Force Base including but not limited to the hospital and to various duty rooms, day rooms, and recreational areas.” Id. at 1113.
In its brief, TCI admits that United States governmental entities generally are exempt from the antitrust laws, but argues that this case should be distinguished because the Air Force was acting as a representative for the individual service people on the base. This argument, however, is not sufficient to build this into a viable claim, even if our holding in Sea-Land Service, Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982) (“Congress did not place the United States or its instrumentalities under the governance of the Sherman Act”), would allow such a result. TCI itself stated in its complaint that the Air Force was also acting to ensure service to common areas. Thus it was not acting solely as a representative for the individuals on the base. In sum, the District Court was correct in dismissing TCI’s antitrust claim, and we affirm it on that point.
IV. Conclusion
The District Court’s dismissal of TCI’s First and Fifth Amendment claims is reversed and remanded. The dismissal of TCI’s antitrust claim, however, is affirmed. For clarity’s sake, we note additionally that the reversal with respect to the First and Fifth Amendment claims applies only to the District Court’s dismissal of these claims under Rule 12(b)(6): Although the District Court decision at issue here was not appropriate as a summary judgment, our decision does not preclude the possibility of summary judgment on
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_appel2_4_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 second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Your task is to determine which specific substate government agency best describes this litigant.
NEWBURG AREA COUNCIL, INC., et al., and John F. Haycraft, et al., Plaintiffs-Petitioners, v. Honorable James F. GORDON, United States District Judge, Western District of Kentucky, Respondent, Board of Education of Jefferson County, Kentucky, et al., All Parties to the Actions in the Trial Court.
No. 75-1737.
United States Court of Appeals, Sixth Circuit.
July 17, 1975.
Robert A. Sedler, Lexington, Ky., Thomas L. Hogan, John G. O’Mara, Galen Martin, Louisville, Ky., for plaintiffs-petitioners.
George J. Long, U. S. Atty., Louisville, Ky., for respondent.
Before PHILLIPS, Chief Judge, and McCREE and MILLER, Circuit Judges.
PER CURIAM.
The petitioners have filed with this Court a petition, pursuant to Rule 21 of the Federal Rules of Appellate Procedure, for a writ of mandamus directed to the respondent and to the parties to the consolidated civil actions pending in the trial court, to direct the respondent (1) to issue an order providing for full and complete desegregation of the Jefferson County school district to take effect at the beginning of the 1975-76 school year regardless of the pendency of any appeals from said order; and (2) to hold a hearing on pending plans for desegregation of said school district on July 14, 1975, instead of August 4, 1975.
In Newburg Area Council, Inc., et al. v. Board of Education of Jefferson County, Kentucky, et al., 489 F.2d 925 (1973), we held that where there are separate school districts in a given county and the districts are not unitary systems, a federal district court may fashion an appropriate remedy without being constrained by school district lines created by state law.
It was found that there were remaining vestiges of state-imposed segregation in both the Jefferson County school district and the Louisville school district. The actions were remanded to the district court to formulate desegregation plans for all school districts in Jefferson County, Kentucky, including the Jefferson County school district, the Louisville school district, and the Anchorage Independent school district. It was held that state-created school district lines would impose no barrier to accomplish the purpose of eliminating within the school districts of the county all vestiges of state-imposed segregation. The judgments of the district court were accordingly reversed and the case was remanded to the district court for proceedings to formulate an appropriate desegregation plan for all school districts within Jefferson County. The court was specifically authorized to join all parties, including the previously dismissed Anchorage Independent school district.
Thereafter, the Supreme Court, having granted certiorari to review our ruling, remanded the actions to us for reconsideration in light of the Supreme Court’s ruling in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974) [the remand order to this Court is reported at 418 U.S. 918, 94 S.Ct. 3208, 41 L.Ed.2d 1160 (1974)].
Pursuant to the mandate of the Supreme Court, this Court reconsidered its prior ruling in Newburg Area Council, Inc., et al. v. Board of Education of Jefferson County, et al., 510 F.2d 1358 (1974), in which it was concluded that the Milliken ruling, for various reasons set forth in our per curiam opinion, 510 F.2d 1358 (1974), did not require on the facts of the Newburg case a reversal of our prior ruling that the district court in formulating a desegregation plan for Jefferson County, Kentucky, would not be precluded from disregarding state-created school district lines within a single county in Kentucky. Accordingly, after a full reconsideration, as directed by the Supreme Court, our former 1973 opinion was reinstated with the sole modifications “(1) that the district court shall join the Anchorage Independent school district as a party defendant, if deemed necessary to provide an adequate remedy; (2) that the effectiveness of any order entered by the district court on remand which may provide for an inter-district remedy shall be postponed until all appeals in connection with such order have been exhausted; and (3) that in no event should any plan of desegregation ordered by the district court take effect before the beginning of the 1975-76 academic year.”
The actions accordingly were again remanded to the district court. Following such remand, the district court directed the parties to submit plans of desegregation; directed that the Anchorage Independent school district be made a party to the action; and fixed August 4, 1975, as the date for a hearing on any plans of desegregation with the proviso that the hearing would be held on July 14, 1975, in the event this Court should direct that total implementation of the final plan for desegregation of the schools of the county should take effect at the beginning of the 1975 — 76 school year.
Also, after such second remand, it appears that the Jefferson County and Louisville school districts were merged under the provisions of state law, thus leaving only two school districts in the county — the old Anchorage Independent School District, and the new Jefferson County school district replacing the former Jefferson County and Louisville school districts.
Upon consideration, we are of the opinion that a writ of mandamus should be granted to require the respondent, following such hearings as may be necessary, to approve a plan to eliminate all remaining vestiges of state-imposed segregation from the new Jefferson County school district, such plan to take effect at the beginning of the 1975-76 academic year, and to include the Anchorage Independent school district if deemed necessary and appropriate by the district judge to accomplish the objectives of the plan. We are of the opinion, however, that this Court should not undertake at this time to direct that any plan of desegregation approved by the district court should remain in effect regardless of the pendency of any appeal or appeals which may be taken from any such order of approval. Whether any such order of approval should be stayed pending any appeal therefrom is a matter which should be determined by an appropriate court only after the order is entered.
That portion of our per curiam opinion of December 11, 1974, 510 F.2d 1358, which stated: “That the effectiveness of any order entered by the district court on remand which may provide for an inter-district remedy shall be postponed until all appeals in connection with such order have been exhausted . . . .” does not apply to any order which the district court may enter following the second remand for the reason that the former Jefferson County school district and the Louisville school district since the second remand were legally merged, without any order from the district court, into one Jefferson County school district under the applicable provisions of state law, thus making it unnecessary to cross the line between the two former school districts to eliminate all remaining vestiges of state-imposed segregation from the newly created Jefferson County school district. An additional reason why any such desegregation order of the district court which may include the Anchorage district in any desegregation plan should not be postponed pending an appeal therefrom is that the Anchorage district includes only a single school having an all-white enrollment of about 350 students, whereas the new Jefferson County school district includes approximately 26,000 black students alone, and approximately 150,000 students of all races. If the district court should enter an order requiring the crossing of the Anchorage Independent school district line, the question whether the inclusion of the Anchorage district should be stayed pending any appeal should be dealt with, as any stay pending appeal, under Rule 62 of the F.R.Civ.P. and Rule 8 of the F.R.A.P.
Our per curiam opinion of December 11, 1974, should not be construed as having the effect of staying any order of desegregation entered by the district court pending any appeal which may be taken solely because it may include the Anchorage Independent school district.
The district court in its response to the petition for mandamus, as well as in certain orders and opinions, refers to the possibility that the Equal Educational Opportunity Act of 1974 may require a postponement of the effectiveness of any desegregation order pending exhaustion of appeals therefrom. 20 U.S.C. § 1701 et seq. Thus the issue is presented whether the said Act constitutes a legal barrier to our issuance of the writ of mandamus to require the district court to order any plan of desegregation approved by it to take effect at the beginning of the 1975-76 school year. Upon consideration, we find that the Act does not create a barrier to implementation of a desegregation plan at the beginning of the next academic year. This is true for the reason that the Act by its own terms provides that “the provisions of this [Act] are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States.” 20 U.S.C. § 1702(b). See also Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972) (Powell, J.) and our opinion in N.A.A.C.P., Lansing Branch v. Lansing Board of Education, 485 F.2d 569, 570 (6th Cir. 1973), and our more recent opinion in Brinkman, et al. v. Gilligan, et al., 518 F.2d 853 (1975). Our first opinion holding that there were remaining vestiges of state-imposed segregation in the Jefferson County and Louisville school districts was rendered on December 28, 1973. This holding is the law of the present case. To delay or postpone for an additional year the realization by thousands of black students of their established constitutional rights would be to perpetuate a manifest injustice, violative of the Fourteenth Amendment.
Once the district judge has approved an appropriate plan to remove all vestiges of state-imposed segregation from the Jefferson County school district, the question of whether the Anchorage Independent school should be included within such plan should not be permitted to delay the implementation of the plan with respect to the newly-created Jefferson County school district at the beginning of the next academic year, 1975-76. To avoid the possibility of such a delay, the district judge shall retain jurisdiction of the case, including the right at a later date to modify the plan of desegregation of Jefferson County so as to include the Anchorage district if it is found to be necessary.
It is therefore ordered and adjudged as follows:
That a writ of mandamus issue directing the respondent to approve a plan for the desegregation, of the newly-created Jefferson County, Kentucky, school district to the end that all remaining vestiges of state-imposed segregation shall be removed from the said school district (formerly the Jefferson County and Louisville school districts). The said order of approval of such plan shall specifically provide that the plan shall take effect at the beginning of the 1975-76 academic year. Any further hearings which the district judge may find to be necessary shall be fixed on such dates as he shall deem proper, but in no event shall such hearing or hearings be permitted to delay the implementation of the court-approved desegregation plan beyond the beginning of the next ensuing school year.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Which specific substate government agency best describes this litigant?
A. City of, county of, etc. - in corporate capacity - criminal case
B. city of, county of, etc. - in corporate capacity - civil case
C. Other sub-state activity
D. not ascertained
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TYPOGRAPHICAL UNION NO. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, Respondents.
No. 14246.
United States Court of Appeals Sixth Circuit.
June 4, 1960.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Thomas A. Roumell, 7th Regional Director, N.L.R.B., Detroit, Mich., for petitioner.
Zwerdling & Zwerdling, Detroit, Mich., Van Arkel & Kaiser, Washington, D. C., for respondent.
PER CURIAM.
This cause came on to be heard upon the petition of the National Labor Relations Board for the enforcement of a certain order issued by it against Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns on April 4, 1960, in a proceeding before the said Board numbered 7-CC-106, 7-CC-112, 7-CC-113, 7-CC-114 and 7-CB-623; upon the transcript of the record in said proceeding, certified and filed in this Court, and upon a stipulation providing for the entry of a consent decree of this Court enforcing the order.
On consideration whereof, it is ordered, adjudged and decreed by the United States Court of Appeals for the Sixth Circuit, that the said order of the National Labor Relations Board be, and the same is hereby enforced; and that Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns abide by and perform the directions of the Board in said order contained.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_r_fiduc
|
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 "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.
In the Matter of MUSKEGON MOTOR SPECIALTIES, Debtor. MUSKEGON MOTOR STOCKHOLDERS PROTECTIVE COMMITTEE, Appellant, v. Louis F. DAVIS, Trustee, Appellee.
No. 16492.
United States Court of Appeals Sixth Circuit.
Sept. 29, 1966.
John R. Starrs, Detroit, Mich. (Wurzer, Higgins & Starrs, Detroit, Mich., on the brief), for appellant.
David Ferber, Washington, D. C. (Thomas B. Hart, Adm., J. Kirk Windle, Sp. Counsel, Grant Guthrie, Atty., Chicago Regional Office, S. E. C., Chicago, 111., Philip A. Loomis, Jr., Gen. Counsel, David Ferber, Sol., Richard Nathan, Atty., S. E. C., Washington, D. C., on the brief), for Securities and Exchange Commission.
Joseph S. Radom, Detroit, Mich. (Leonard Meldman, Detroit, Mich., on the brief), for appellee.
Maxwell F. Badgley, Jackson, Mich. (Clifford H. Domke, Jackson, Mich., of counsel), for prospective purchasers of stock.
John A. Ziegler, Jr., Detroit, Mich. (Dickinson, Wright, McKean & Cudlip, Robert E. McKean, Detroit, Mich., of counsel), for Wyman-Gordon Company, Unsecured Creditors.
Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges.
WEICK, Chief Judge.
This is an appeal by a stockholders’ committee representing preferred stockholders of the Muskegon Motor Specialties Company, a Delaware corporation, (hereinafter referred to as Muskegon) from an order of the District Court approving a plan of reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676 (1965) Muskegon has owned and operated the Jackson Crankshaft Division, which machines and processes crankshafts for the motor truck industry, since 1930. Since 1955, it has also owned all of the shares of stock of its subsidiary, the Detroit Brick & Block Company, which produces sand-lime bricks for residential and commercial construction in the metropolitan Detroit area. Other diversified divisions of Muskegon, acquired at various stages of its corporate life, have been sold off during the pendency of the Chapter X proceedings.
The District Court held a hearing on a plan of reorganization submitted by the Creditors Committee in December, 1964, more than three and one-half years after the commencement of the proceedings, which plan provided for exchanging shares of stock for creditors’ claims, and evidence was then adduced to the effect that Muskegon was insolvent. The creditors’ plan was dropped and the Trustee submitted an amended plan of reorganization. Hearings on the Trustee’s amended plan were held in January, 1965, at which time additional expert testimony as to the insolvency of Muskegon and the future prospects for the reorganized Jackson Crankshaft Division (Detroit Brick & Block not being insolvent) was adduced by the Creditors Committee and the Trustee in support of the amended plan. No evidence was offered at that time by the preferred shareholders or the Securities and Exchange Commission, and the District Court entered an order finding Muskegon insolvent and approved the amended plan on January 25, 1965. Later, after the required consent of the creditors had been received, the Court confirmed the plan on March 1, 1965.
Because of the appeal from the order of January 25 by the newly-formed Stockholders Protective Committee, no steps were taken to implement the amended plan. The Committee represents holders of the Class A preferred stock of Muskegon, it being generally agreed that the common stock and Class B preferred have no interest remaining in the corporation. In June 1965, SEC moved to vacate the orders approving and confirming the amended plan because of an alleged significant change in the financial outlook of the Jackson Crankshaft Division. The District Court granted this motion on June 23,1965. The proponents of the plan moved for a rehearing of SEC’s motion to vacate. On the rehearing, which was permitted by this Court pending the appeal, additional expert testimony on the issue of solvency of Muskegon was presented in the District Court both by the Creditors Committee and, for the first time, by the Stockholders Committee. On October 25,1965, the District Court filed an opinion and order confirming its original finding of insolvency, vacating the order of June 23, 1965, and denying the motion of SEC to vacate the orders of January 25 and March 1, 1965, approving and confirming the amended plan. SEC, by statute , is given no right of appeal, but it submitted briefs supporting the appeal of the Stockholders Committee and participated in the oral argument.
The Trustee’s amended plan of reorganization which engendered this lengthy and complex dispute provides for the payment in full of all costs and expenses of administration, taxes, wage liabilities, claims incurred during the Trustee’s operation of Jackson Crankshaft, and of all secured creditors. General unsecured creditors are given the choice of accepting 45% of the face amount of their claims in cash or 33 and % % in stock of the new corporation. The interests of the old shareholders, both common and preferred, are eliminated because of the finding of insolvency. Instead, a group of local businessmen has agreed to subscribe for 20,000 of the new shares of common stock of the reorganized corporation and has placed the purchase price of $200,000 in escrow for this purpose. The remaining 12,500 new shares will be taken by the largest unsecured creditor and four smaller creditors in lieu of a cash settlement of their claims. In addition, the new group has arranged a bank loan in the amount of $400,000, secured by mortgage, to finance the payments to the creditors who elected to take cash.
Before the District Court can confirm a plan of reorganization under Chapter X, even one accepted in good faith by the required percentage of creditors, it must be satisfied that the plan is “fair, equitable, and feasible,” 11 U.S.C. § 621. This standard, developed through the years from the prior practices of the federal courts in equity receiverships, must be applied through the exercise of independent judgment of the District Court. As a prerequisite to such a finding, the court must test the plan by the rule of absolute priority; that is, the plan must preserve for each set of interests the priority which it held before the reorganization. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913); Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939), rehearing denied, 308 U.S. 637, 60 S.Ct. 258, 84 L.Ed. 529 (1939). See also Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., 317 U.S. 78, 63 S.Ct. 93, 87 L.Ed. 64 (1942). In most cases this means that the shareholders of the debtor corporation have no right to participate in the new corporation until all the claims of creditors have been satisfied in cash or by some other method agreeable to them. Thus, if the corporation is insolvent, if the total of its assets is less than its liabilities, then there is no room in the new corporation for the old shareholders unless they contribute fresh capital. Otherwise, they benefit at the expense of creditors who have not been satisfied commensurate with their pre-existing priorities over the shareholders.
In order to measure the fairness of a plan as between creditors and shareholders, some valuation of the debt- or corporation must be made to determine the issue of solvency or insolvency and so provide a guide for the apportionment of interests in the new reorganized business. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 524, 61 S.Ct. 675, 85 L.Ed. 982 (1941). Although property may be valued in several ways, the courts have long held that earning capacity, the capitalization of future profits, is the appropriate method of valuation in connection with Chapter X proceedings. Consolidated Rock Products Co. v. Du Bois, supra at 526, 61 S.Ct. 675. This is because the very purpose of Chapter X is to preserve the going concern value of a business through the continuation of operations, and so avoid the uneconomic expedient of a forced sale of the assets.
The sole issue that emerges here from the welter of charts, projections, audits, appraisals, expert opinion, and other evidence is the propriety of the District Court’s determination that Muskegon was insolvent. Insolvency was a question of fact to be determined by the District Court from all of the evidence. We do not hear this case de novo. Our function is only to determine whether the order of the District Court finding Muskegon insolvent is supported by substantial evidence. We have no right to disturb it unless we find it to be clearly erroneous, Rule 52(a) Fed.RuIes Civ. Proc.; nor need we pass upon the fairness of the plan with respect to creditors, since they have approved it and it was not questioned either in the District Court or here. The problem involved in determining the issue of solvency is emphasized by the judgmental character of valuation by future earning capacity and the divergent assumptions and conclusions expressed not only by the opposing parties, but also among various experts who testified in the case. We hold that, on the record before us, the District Court’s determination of insolvency, in his carefully prepared opinion, was supported by substantial evidence and is not clearly erroneous.
In bankruptcy, a finding of insolvency is arrived at by a comparison of the assets (here being the capitalized value of future earnings) with liabilities. The calculation of either of these factors will thus affect the final determination. In its turn, each of these elements is a function of other calculations and projections which in this ease were the subjects of extensive expert testimony and are not the outcome of mere mathematical calculation.
The capitalized value of the business is a function of its estimated average annual future earnings and the rate of capitalization, or “multiplier”. The earnings base is itself determined by two factors: projected future sales and the estimated profit margin on those sales. The plan proponents presented several witnesses with various appraisals of Jackson Crankshaft. Chief among these were Dr. DeSpelder and Mr. Welling. The shareholders presented the testimony of Mr. Taylor. Mr. Taylor was the only witness who ever found the company to be solvent — Welling, DeSpelder, and other witnesses offered by the proponents of the plan found insolvency, though to different degrees. Muskegon was also insolvent by a wide margin in the two appraisals ordered by the Court. As on all other relevant factors, these witnesses differed, and it is instructive to examine and compare their findings and opinions.
Both Welling and Taylor used the same projected sales figures in ascertaining average pre-tax earnings for the next five years in the crankshaft business. Their results differed solely because Welling adopted an average profit rate of 6% of sales, while Taylor allowed a 7.7% rate of profit on those same sales. As the District Court pointed out, Welling’s figure seems more realistic in view of the past history of the company. Moreover, Mr. Taylor arrived at his figure by dropping the high and low profit years from the period 1961-65 and averaging the remaining three years. In so doing, he eliminated the very low (1.4%) figure for the year 1964. This omission is. particularly significant since the low profits of 1964 were the result of a risk inherent in Muskegon’s crankshaft business. In fact, it sustained heavy losses imposed on it that year due to unexpected demands for added production by the Ford Motor Company, a customer which accounts for 50% of Muskegon’s crankshaft business. Because of the need to satisfy Ford on short notice in order to retain its business, unskilled workers had to be hired and inefficient plant operation was required, with resulting high costs and low profits. (It should also be noted that Mr. Taylor contended for a very high multiplier, which again disregards the risk stemming from Muskegon’s heavy dependence on the Ford business^ — thus, in effect, twice eliminating this important factor from his appraisal.)
Dr. DeSpelder estimated an average net profit over the next five years of $280,000, more than double Mr. Welling’s estimate of $136,980 and more than 50% above Mr. Taylor’s figure of $175,451. He differed with Taylor and Welling in applying a projected sales rate of approximately $500,000 more per year and in using a profit rate of 7% for the crankshaft business. It is illuminating to note that if Dr. DeSpelder’s assumed net pretax profit is applied to the sales figures used by Mr. Taylor, the resulting estimate of profit rates differs by only 0.1%, yet Dr. DeSpelder found insolvency while Mr. Taylor found solvency.
The chief controversy in this case, however, does not center on the varying estimates of projected earnings, divergent as they may be. Rather, it focuses on the rate of capitalizing those earnings, the so-called “multiplier”. This figure is a rough estimate of the risk figure inherent in a particular business. All of the witnesses presented by the plan’s proponents agreed that a figure of 5 or less was the appropriate multiplier for the crankshaft business, indicating an expected return of 20% on investment. Mr. Taylor, however, applied a multiplier of 9.1 to his estimated earnings base and this was the main factor in his high valuation of the Jackson Crankshaft Division.
The proponents’ witnesses arrived at a multiplier of 5 through an independent analysis of the risks in the character of the crankshaft business and the particular situation of Muskegon. Some of the factors on which they relied were the cyclical nature of the truck industry in general; the fact that Muskegon supplied only labor for one product and had no other ; the fact that it had only about seven customers; the dependence of Muskegon on one large customer which might decide to begin producing its own crankshafts or otherwise disrupt Muskegon’s profits as in 1964; the age and condition of the plant and equipment; and possible uncertainties in management, expenses and operations. Mr. Taylor, on the other hand, arrived at his 9.1 estimate of appropriate capitalization by mere mathematical calculation of the price-earnings ratios of a group of selected auto parts manufacturers listed on the stock exchange. The District Court rejected this sole dependence on stock market data, and we agree.
Two factors lead to this rejection. First, of the 36 companies used by Mr. Taylor in his computations, few if any can be considered comparable to Muskegon. None had sales in 1964 of less than four times Muskegon’s sales of that year and some had more than 100 times its sales. Certainly a simple, unqualified or unadjusted calculation made from these figures cannot be accepted at face value. Second, we cannot sanction the direct application of ratios derived solely from the stock market in the valuation of a small, unlisted company with no market for its shares. While the price-earnings ratios of the larger companies in the same industrial grouping may be considered as relevant evidence to some extent, they cannot serve as a sole guide to value under the guise of infallible “market judgments”. As the District Court rightly emphasized, the stock market is daily influenced by factors of a speculative or emotional nature that do not necessarily enter into a realistic evaluation of long-run economic values. The pressure of fads and rumors often causes distortions in price ratios which should not be considered in a careful long-term valuation. Thus, even though Mr. Taylor could have referred in part to stock market figures, they cannot be accepted as the sole determinant of value here.
Further, if Dr. DeSpelder’s figures are once again adjusted for comparison with Mr. Taylor’s, we find there is less difference than appears on the surface. Thus, if DeSpelder’s total valuation of $1,400,000 is superimposed on Taylor’s earnings base of $175,451, it appears that a multiplier of 8 results. This means that if DeSpelder had used the same earnings base as Taylor, he would have chosen a multiplier very close to Taylor’s. Since risk estimates are inherent both in the earnings base estimates (as to projected sales and profit rates) and in the calculation of the multiplier, as we noted in regard to the 1964 Ford order, it is apparent that in their overall appraisals of the risks and value of the Jackson Crankshaft Division, Taylor and DeSpelder differed very little. This is demonstrated by the proximity of their total appraised values: DeSpelder — $1,400,000; Taylor —$1,596,604.
The other main appraisal, that of Mr. Welling, differed substantially from either of these two. Mr. Welling found a going concern value for the Jackson Division of only $684,900. This was the natural result of his use of lower sales, profit, and multiplier figures all in the same estimate. There is no correspondingly high counter-appraisal to balance Mr. Welling’s figures. Thus, the District Court would have the right to decide that although Taylor and DeSpelder were in substantial agreement on the value of the crankshaft business, DeSpelder’s appraisal was the more reliable. If Taylor had used Welling’s lower profit rate and earnings base, thus accounting for the Ford risk factor illustrated in 1964, as a counterbalance to his high mutliplier, his valuation would actually fall below that of Dr. DeSpelder — $1,246,518.
Before turning to the other element of the Muskegon valuation, the going-concern appraisal of the wholly-owned Detroit Brick subsidiary, it may be helpful to focus on the other factor in the finding of insolvency, the liabilities. A miscalculation of liabilities can be as damaging as an error in valuation of assets. However, here, despite appellants’ contention, the District Court correctly found that the debtor corporation’s liabilities totalled $1,350,000 exclusive of accrued interest and administrative expenses. This figure is in substantial agreement with that contended for in the brief of SEC and appears both in the order confirming the plan on March 1, 1965, and in the opinion on the motion for rehearing dated October 8, 1965. The expenses of the Chapter X administration since 1961 will total approximately $200,000, as all the parties agree. Since the determination of liabilities is being made with the continuation of the business in mind, the statutory interest accruing on the creditors’ claims must also be considered as a liability before any interest is allocated to the stockholders. Otherwise, the creditors would be denied their “absolute priority”. A finding of solvency would necessitate the payment of interest at the statutory rate, so that accrued amount must be considered in determining solvency. Ruskin v. Griffiths, 269 F.2d 827 (2d Cir. 1959) cert. denied 361 U.S. 947, 80 S.Ct. 402, 4 L.Ed.2d 381 (1960). This accrual totals at least $300,000 and makes the total liabilities of Muskegon at least $1,850,000 exclusive of a contested tax claim of more than $42,000. The SEC estimated liabilities on July 1,1965 at $1,923,294.
Thus, with liabilities of between $1,-850,000 and $1,900,000 the District Court would have had to find a value of at least $450,000 for the Detroit Brick & Block Company subsidiary in order to find solvency using Dr. DeSpelder’s estimate of the Jackson Crankshaft Division ($1,400,000) or, using Mr. Taylor’s valuation ($1,596,604), at least $253,396. According to Mr. Welling’s estimate, solvency would be almost impossible to find, since Detroit Brick would have to be worth more than the Jackson Division in order for their total value to equal or exceed the liabilities.
It is apparent that on the key issue of solvency the valuation of Detroit Brick & Block assumes special importance. Dr. DeSpelder, using an earnings base of $77,700 and a multiplier of 4, found a going-concern value of $310,800. Mr. Taylor, however, arrived at a figure of $521,820, based on an estimated earnings base of $44,600 and a multiplier of 11.7. If Mr. Taylor’s earnings projection is used for both totals, thus focusing all risk and economic judgments on the choice of the multiplier or rate of capitalization, it will be seen that Dr. DeSpelder would have used a multiplier of almost 7, rather than 4.
The main difference between DeSpelder and Taylor here is the high multiplier applied by Taylor. He testified that it was calculated by computing the price-earnings ratios of two comparable brick supply companies. However, it is clear that this mathematical operation alone cannot justify the use of such a high rate of capitalization, especially in the face of other evidence and the testimony of other equally qualified experts. First, there is some evidence that offers of $175,000 and $200,000 have been tendered for the purchase of the brick company in the recent past. Although these are by no means conclusive of full value, they are at least some evidence of what it would bring on the market. Second, the earnings records of Detroit Brick & Block show that over the past 18 years, it has sustained substantial losses in eight years and earned a profit in only ten. The net average annual pre-tax profit for the company was only $14,341, far below even Mr. Taylor’s low projection of $44,600 after taxes. Finally, the brick company is tied to its customers in the construction industry and shares their fortunes in that volatile and cyclical business, a factor which hardly justifies assigning it a multiplier higher than that used for Jackson Crankshaft in the auto parts industry. Considering all these factors, it cannot be said that the District Court’s failure to accept and adopt Mr. Taylor’s valuation in boto was wrong.
This extensive review of the complex and conflicting evidence presented during the course of the hearings on solvency reveals one fundamental fact: the District Court would have had to accept each and every contention of the appellants at full face value in order even to approach a finding of solvency. The District Judge saw and heard the testimony of all of the expert witnesses and was in a much better position to pass upon their credibility than we are. He was familiar with the proceedings and the affairs of Muskegon. If any weight whatever is given to the voluminous evidence presented by the proponents of the plan of reorganization, then substantial support for the finding of insolvency is provided. In such a situation, the finding of insolvency can in no way be deemed clearly erroneous under Rule 52(a). Dudley v. Mealey, 147 F.2d 268 (2d Cir. 1945) cert. denied 325 U.S. 873, 65 S.Ct. 1415, 89 L.E.d. 1991 (1945); In re Plankinton Building Co., 148 F.2d 119 (7 Cir. 1945) cert. denied Harvey v. Grossman, 326 U.S. 729, 66 S.Ct. 36, 90 L.Ed. 483 (1945). The valuation of a business remains an art based on the use of informed, careful judgment (including that of the court), and it cannot be expected to yield mathematically precise results. Consolidated Rock Products Co. v. Du Bois, supra, 312 U.S. at 526, 61 S.Ct. 675.
The unsecured creditors, most of whom elected to take cash, have already been delayed for more than five years in realizing on their claims. These creditors are satisfied with and have approved the plan of reorganization and are resisting the efforts of the preferred shareholders to share in the assets and further delay the closing of the estate.
Although the unsecured creditors are not being made whole either in cash or stock and could not be so compensated in the reasonable future, the preferred shareholders still think that some provision should have been made in the plan for them to share in the assets of the debtor. They all had the opportunity to participate in the reorganized company by putting up some new money, but they declined to contribute anything to its capital. Instead, the preferred shareholders are complaining about the alleged unconscionable bargain the group of local businessmen will receive for their $200,000 investment, even though the shareholders declined to invest in the reorganized company. The shareholders paint a rosy picture about the prospects of the reorganized company over the next five years, but this fails to take into account that the investors could lose their money in the event of a business recession, strikes and labor stoppages in the reorganized company or in the plants of their customers, or other adverse conditions. The shareholders ought not to be permitted to gamble on the future of the reorganized company with the money owing to creditors that is so long past due.
For these reasons, the judgment of the District Court is affirmed.
. The proceedings were originated under Chapter XI on April 12, 1961, and thereafter, on motion of the Securities and Exchange Commission, were transferred to Chapter X.
. 11 U.S.C. § 608.
. The names of these four creditors and the amounts of their claims are not shown in the record filed in this Court.
. The proponents of the amended plan presented several other witnesses in addition to DeSpelder and Welling. In general, witnesses Sanders and Wade, both CPA’s, corroborated Dr. DeSpelder’s opinion on the going concern value of the Jackson Crankshaft Division. Mr. Nicholson, an investment banker, used multipliers similar to those of DeSpelder, Sanders, and Wade, but projected a much lower earnings base ($112,000) and so found a value of only $448,000 for the crankshaft business. Finally, Mr. Zick, who testified at the summer hearings along with Mr. Welling, used a multiplier of 5 and found a value of only $389,000 for Jackson Crankshaft. Thus, every witness called by the proponents found Muskegon to be insolvent.
The District Court appointed two appraisers to value the physical assets, based on a premise of liquidation rather than reorganization. These witnesses, Legg and Horton, together found a valuation of $634,980 at forced sale and $805,044 at fair market for the land, buildings, machinery and equipment of Jackson Crankshaft Division. Apparently, no discount factor was applied to the value of the accounts receivable in the Trustee’s balance sheets, despite the fact that they, too, might decline drastically in value if the company were to be liquidated rather than reorganized and continued. Although a liquidation valuation is not the proper method for determining solvency in reorganization hearings, and was not so used here,' the high degree of insolvency that these figures reveal makes the need for an equitable reorganization all the more clear so as to avoid further damage to the interested parties.
. An additional risk factor, probably accounted for in the witnesses’ earnings projections, rather than the multiplier factor, is the necessity of funding Muskegon’s large deficiency in contributions to its employees’ pension funds. In order to make up these deficiencies, maintain current payments, and meet future increases that may be negotiated by the unions, Muskegon will experience a heavy drain on its income for many years to come. This is virtually a fixed cost as far as the amortization of past deficiencies is concerned and constitutes one of the major risks being assumed by the new owners.
. See footnote 4, supra.
. The figure which appears in paragraph 4 of the order of March 1, 1965, is actually $1,260,150.78. However, this is exclusive of secured debts then owing.
. If $31,019 of liabilities of the defunct Ridge Sales subsidiary is also included, the Court’s finding almost exactly matches that of the SEC.
. Of the other witnesses, Mr. Nicholson found a going-concern value for Detroit Brick of approximately $200,000 and Mr. Zick estimated a liquidation value of $230,000 after finding a going-concern value of only $74,635. The Legg-Horton liquidation appraisal of the physical assets of Detroit Brick showed $191,974 at fair market value and $152,525 at forced sale.
. If post-tax figures were used for the average annual profit 1948-65, thus making a more accurate comparison, the difference between Taylor’s projection and the actual earnings history would be even greater.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Jose Adrian BARRAL and Gabriela Giralt, Appellants, v. UNITED STATES of America, Appellee.
No. 19723.
United States Court of Appeals Fifth Circuit.
Feb. 19, 1964.
Jack L. King, Miami, Fla., for appellants.
Daniel S. Pearson, Edward A. Kaufman, Asst. U. S. Attys., Miami, Fla., William A. Meadows, Jr., U. S. Atty., •S. D. of Fla., Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.
PER CURIAM.
Each of the several questions raised on this appeal by the appellants is answered contrary to their contentions by well-settled principles of law. No error is shown and the judgment of the district court is
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "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:
|
sc_respondentstate
|
60
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CHEFF v. SCHNACKENBERG, U. S. CIRCUIT JUDGE, et al.
No. 67.
Argued March 3, 1966.
Decided June 6, 1966.
Joseph E. Casey argued the cause for petitioner. With him on the brief was Thomas B. Scott.
Nathan Lewin argued the cause for respondents. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg, Sidney M. Glazer, E. K. Elkins and Miles J. Brown.
Mr. Justice Clark
announced the judgment of the Court and delivered an opinion in which The Chief Justice, Mr. Justice Brennan and Mr. Justice Fortas join.
This is a companion case to No. 412, Shillitani v. United States, and No. 442, Pappadio v. United States, ante, p. 364. Unlike those cases, this is a criminal contempt proceeding.
Upon petition of the Federal Trade Commission, Cheff was charged, along with Holland Furnace Company and 10 other of its officers, with criminal contempt of the Court of Appeals for the Seventh Circuit. The alleged contemnors were tried before a panel of three judges of the Court of Appeals without a jury. The corporation and three of its officers, including Cheff, were found guilty of violating a previous order of that court. Cheff, a former president and chairman of the board of Hollánd, was sentenced to six months’ imprisonment; the other two officers were fined $500 each; and the corporation was fined $100,000. The remaining eight individuals were acquitted. 341 F. 2d 548. Cheff and Holland petitioned for certiorari. We denied Holland’s petition, 381 U. S. 924, and granted Cheff’s, limited to a review of the question whether, after a denial of a demand for a jury, a sentence of imprisonment of six months is constitutionally permissible under Article III and the Sixth Amendment. 382 U. S. 917. We hold that Cheff was not entitled to a jury trial and affirm the judgment.
I.
The case had its inception in proceedings before the Federal Trade Commission where, in 1954, complaints were issued against Holland charging it with unfair methods of competition and deceptive trade practices in connection with the sale of its products. After extensive hearings, the Commission issued a cease-and-desist order against Holland “and its officers, agents, representatives and employees” prohibiting the continuance of practices the Commission found illegal. In the Matter of Holland Furnace Co., 55 F. T. C. 55 (1958).
Holland petitioned the Court of Appeals to review and set aside the order of the Commission. Soon thereafter the Commission, claiming that Holland was continuing to violate its order, moved the Court of Appeals for a pendente lite order requiring compliance. On August 5, 1959, the court issued an order commanding Holland to “obey and comply with the order to cease and desist . . . unless and until said order shall be set aside upon review by this Court or by the Supreme Court of the United States . . . .” This order forms the basis of this criminal contempt proceeding. Meanwhile, Holland’s petition for review was decided adversely to the corporation. In separate opinions, the Court of Appeals upheld the jurisdiction of the Commission, to enter its cease-and-desist order, 269 F. 2d 203 (1959), and affirmed on the merits, 295 F. 2d 302 (1961).
In March 1962 the Commission petitioned the Court of Appeals to enter a show cause order against Holland for contempt of its pendente lite order. A rule was issued and attorneys appointed to prosecute on behalf of the court. Thereafter, in April 1963, rules were issued against Cheff and the other officers, as individuals, to show cause why they should not be held in criminal contempt “by reason of having knowingly, wilfully and intentionally caused, and aided and abetted in causing, respondent Holland Furnace Company to violate and disobey, and fail and refuse to comply with” the order of August 5, 1959. Cheff demanded a jury trial, which was denied, and following A full hearing extending over a 10-day period the court found him guilty. As we have stated, a sentence of six months was imposed. In accordance with the limited grant of certiorari, there is no issue here as to the sufficiency of the hearing, excepting the absence of a jury.
II.
Cheff first contends that contempt proceedings in the Court of Appeals which stem from administrative law enforcement proceedings are civil, rather than criminal, in nature. This may be true where the purpose of the proceeding is remedial. Cf. Shillitani v. United States, ante, p. 364. Within the context of the question before us, however, the contention is irrelevant, for a jury trial is not required in civil contempt proceedings, as we specifically reaffirm in Shillitani, supra. In any event, the contention is without merit. The purpose of the proceedings against Cheff could not have been remedial for he had severed all connections with Holland in 1962, long before the contempt proceedings were instituted against him. He had no control whatever over the corporation and could no longer require any compliance with the order of the Commission. Moreover, as Cheff himself points out, the corporation “had completely withdrawn from the business of replacement of furnaces, which is the area in which the violation is alleged.” There was, therefore, an “absence of any necessity of assuring future compliance” which made the six-month sentence “entirely punitive.” Brief for Petitioner, p. 16.
There can be no doubt that the courts of appeals have the power to punish for contempt. 18 U. S. C. §401 (1964 ed.). See, e. g., cases cited in United States v. Barnett, 376 U. S. 681, 694, n. 12 (1964). And it matters not that the contempt arises indirectly from proceedings of an administrative agency. Cheff was found in contempt of the Court of Appeals, not of the Commission. The sole ground for the contempt proceedings is stated in the initial order served on Cheff and the other parties to show cause why they should not be adjudged in criminal contempt of that court, for violations of that court’s pendente lite order. Indeed, Cheff’s answer itself verified that he had not violated, disobeyed, and failed and refused to comply with “an order of the United States Court of Appeals for the Seventh Circuit entered on August 5, 1959 . . . (Italics added.) In addition, the Court of Appeals itself was quite specific in limiting the contempt charges to “cover the period from August 5, 1959 to the entry of the final judgment [in October 1961] by this court.” 341 F. 2d, at 550. As the court clearly had the authority to enter its interlocutory order, Federal Trade Commission Act, § 5, 38 Stat. 719, as amended, 15 U. S. C. § 45 (c) (1964 ed.), it follows that the court has the power to punish for contempt any disobedience of that order.
Cheff’s next and chief contention is that criminal contempt proceedings are criminal actions falling within the requirements of Article III and the Sixth Amendment of the Constitution. Only two Terms ago we held to the contrary in United States v. Barnett, supra; however, some members of the Court were of the view there that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses. 376 U. S., at 694, n. 12. Cheff, however, would have us hold that the right to jury trial attaches in all criminal contempts and not merely in those which are outside the category of “petty offenses.”
Cheff’s argument is unavailing, for we are constrained to view the proceedings here as equivalent to a procedure to prosecute a petty offense, which under our decisions does not require a jury trial. Over 75 years ago in Callan v. Wilson, 127 U. S. 540, 557 (1888), this Court stated that “in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose,” a jury trial is not required. And as late as 1937 the Court reiterated in District of Columbia v. Clawans, 300 U. S. 617, 624, that: “It is settled by the decisions of this Court . . . that the right of trial by jury . . . does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as 'petty,’ which were tried summarily without a jury . . . .” See also Natal v. Louisiana, 139 U. S. 621 (1891); Lawton v. Steele, 152 U. S. 133, 141-142 (1894); Schick v. United States, 195 U. S. 65, 68-72 (1904); District of Columbia v. Colts, 282 U. S. 63, 72-73 (1930). Indeed, Mr. Justice Goldberg, joined by The Chief Justice and Mr. Justice Douglas, took the position in his dissenting opinion in United States v. Barnett, supra, at 751, that “at the time of the Constitution all types of 'petty’ offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts.”
According to 18 U. S. C. § 1 (1964 ed.), “[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months” is a “petty offense.” Since Cheff received a sentence of six months’ imprisonment (see District of Columbia v. Clawans, supra, at 627-628), and since the nature of criminal contempt, an offense sui generis, does not, of itself, warrant treatment otherwise (cf. District of Columbia v. Colts, supra), Cheff’s offense can be treated only as “petty” in the eyes of the statute and our prior decisions. We conclude therefore that Cheff was properly convicted without a jury. At the same time, we recognize that by limiting our opinion to those cases where a sentence not exceeding six months is imposed we leave the federal courts at sea in instances involving greater sentences. Effective administration compels us to express a view on that point. Therefore, in the exercise of the Court’s supervisory power and under the peculiar power of the federal courts to revise sentences in contempt cases, we rule further that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof. Nothing we have said, however, restricts the power of a reviewing court, in appropriate circumstances, to revise sentences in contempt cases tried with or without juries.
The judgment in this case is
Affirmed.
Mr. Justice Stewart, joining Part I of Mr. Justice Harlan’s separate opinion, concurs in the result.
Mr. Justice White took no part in the decision of this case.
Mr. Justice Harlan, concurring in the result in No. 67 and dissenting in Nos. 412 and 442.
By the opinions in these cases, two new limitations on the use of the federal contempt power are inaugurated. In Cheff, it is announced that prison sentences for criminal contempt in a federal court must be limited to six months unless the defendant is afforded a trial by jury. In Shillitani and Pappadio, an automatic “purge” clause and related indicia are found to convert a criminal sentence into a civil sanction which cannot survive the grand jury’s expiration. I believe these limitations are erroneous in reasoning and result alike.
I.
The decision to extend the right to jury trial to criminal contempts ending in sentences greater than six months is the product of the views of four Justices who rest that conclusion on the Court’s supervisory power and those of two others who believe that jury trials are constitutionally required in all but “petty” criminal contempts. The four Justices who rely on the supervisory power also find the constitutional question a “difficult” one. Ante, at 365. However, as recently as 1958, this Court in Green v. United States, 356 U. S. 165, unequivocally declared that the prosecution of criminal contempts was not subject to the grand and petit jury requirements of Art. Ill, § 2, of the Constitution and the Fifth and Sixth Amendments. This doctrine, which was accepted by federal judges in the early days of the Republic and has been steadfastly adhered to in case after case in this Court, should be recognized now as a definitive answer to petitioners’ constitutional claims in each of the cases before us.
The prevailing opinion’s new supervisory-power rule seems to me equally infirm. The few sentences devoted to this dictum give no reason why a six-month limitation is desirable. Nor is there anything about the sentences actually imposed in these instances that warrants reappraisal of the present practice in contempt sentencing. In Cheff itself the sentence was for six months. Shillitani and Pappadio involved two-year sentences but each was moderated by a purge clause and seemingly in neither case were there disputed facts suitable for a jury. Among the prominent shortcomings of the new rule, which are simply disregarded, is the difficulty it may generate for federal courts seeking to implement locally unpopular decrees. Another problem is in administration: to decide whether to proffer a jury trial, the judge must now look ahead to the sentence, which itself depends on the precise facts the trial is to reveal.
In my view, before this Court improvises a rule necessarily based on pure policy that largely shrugs off history, a far more persuasive showing can properly be expected.
II.
No less remarkable is the Court’s upsetting of the sentences in Shillitani and Pappadio on the ground that the jailings were really for civil contempt which cannot endure beyond the grand jury’s term. It can hardly be suggested that the lower courts did not intend to invoke the criminal contempt power to keep the petitioners in jail after the grand jury expired; the contrary is demonstrated by the entire record. Instead, the Court attempts to characterize the proceedings by a supposed primary or essential “purpose” and then lops off so much of the sentences as do not conform to that purpose. What the Court fails to do is to give any reason in policy, precedent, statute law, or the Constitution for its unspoken premise that a sentencing judge cannot combine two purposes into a single sentence of the type here imposed.
Without arguing about which purpose was primary, obviously a fixed sentence with a purge clause can be said to embody elements of both criminal and civil contempt. However, so far as the safeguards of criminal contempt proceedings may be superior to civil, the petitioners have not been disadvantaged in this regard, nor do they claim otherwise. Adding a purge clause to a fixed sentence is a benefit for the petitioners, not a reason for complaint. Similarly the public interest is served by exerting strong pressure to obtain answers while tailoring the length of imprisonment so that it may punish the defendant only for his period of recalcitrance and no more. I see no reason why a fixed sentence with an automatic purge clause should be deemed impermissible.
For the foregoing reasons, I would affirm the judgments in all three cases on the basis of Green and leave the authority of that case unimpaired.
The relevant portions of these provisions declare:
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” Art. Ill, § 2.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Sixth Amendment.
E. g., Ex parte Burr, 4 Fed. Cas. 791, 797 (No. 2,186) (C. C. D. C. 1823) (Cranch, C. J.):
“[C]ases of contempt of court have never been considered as crimes within the meaning and intention of the second section of the third article of the constitution of the United States; nor have attachments for contempt ever been considered as criminal prosecutions within the sixth amendment. . . . Many members of the [constitutional] convention were members of the first congress, and it cannot be believed that they would have silently acquiesced in so palpable a violation of the then recent constitution, as would have been contained in the seventeenth section of the judiciary act of 1789 (1 Stat. 73), — which authorizes all the courts of the United States ‘to punish by fine and imprisonment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same,’ — if their construction of the constitution had been that which has, in this case, been contended for at the bar.”
See Ex parte Terry, 128 U. S. 289, 313 (1888) (Harlan, J.); Savin, Petitioner, 131 U. S. 267, 278 (1889) (Harlan, J.); Eilenbecker v. Plymouth County, 134 U. S. 31, 36 (1890) (Miller, J.); Interstate Commerce Comm’n v. Brimson, 154 U. S. 447, 489 (1894) (Harlan, J.); Bessette v. W. B. Conkey Co., 194 U. S. 324, 336-337 (1904) (Brewer, J.); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450 (1911) (Lamar, J.); Gompers v. United States, 233 U. S. 604, 610-611 (1914) (Holmes, J.); Ex parte Hudgings, 249 U. S. 378, 383 (1919) (White, C. J.); Myers v. United States, 264 U. S. 95, 104-105 (1924) (McReynolds, J.); Michaelson v. United States, 266 U. S. 42, 67 (1924) (Sutherland, J. ); Ex parte Grossman, 267 U. S. 87, 117-118 (1925) (Taft, C. J.); Fisher v. Pace, 336 U. S. 155, 159-160 (1949) (Reed, J.); Offutt v. United States, 348 U. S. 11, 14 (1954) (Frankfurter, J.).
This question was never raised in Pappadio nor encompassed by the limited grant of certiorari in that case, see 382 U. S. 916; in Shillitani, where the issue is properly before the Court, petitioner filed a certiorari petition discussing the point but tendered no brief on the merits on any phase of the case.
For example, in each case the Judgment and Commitment states that “the defendant is guilty of criminal contempt” and orders him committed “for a period of Two (2) Years, or until further order of this Court,” should the questions be answered within that period before the grand jury expires.
The two-year sentences imposed on Shillitani and Pappadio do not call for the exercise of this Court’s corrective power over contempt sentences, see Green, 356 U. S., at 187-189; as has been noted, both sentences carried purge clauses.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_usc1sect
|
265
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Augustus J. FABENS, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 75-1057.
United States Court of Appeals, First Circuit.
Argued May 5, 1975.
Decided June 30, 1975.
James Sawyer, Great Neck, N. Y., with whom Charles R. Van De Walle, Great Neck, N. Y., was on brief, for appellant.
Arthur L. Bailey, Atty., Tax Div., Dept. of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, and Jonathan S. Cohen, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief, for appellee.
Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
The parties stipulated that from 1953 to 1969 taxpayer Fabens maintained in a trust account municipal bonds, the income from which was tax-exempt, and other securities the income from which was taxable. The trust also realized capital gains and losses from transactions involving its holdings. Upon termination the fair market value of the trust assets included a considerable amount of unrealized capital appreciation which was reflected in the fiduciary fees paid on termination and computed under local law as a percentage of current market value. Taxpayer deducted the full amount of these commissions as expenses for the production of income under Int.Rev.Code § 212. The Commissioner disallowed a portion of this deduction pursuant to Int.Rev.Code § 265(1) prohibiting the deduction of expenses directly or indirectly allocable to the production of tax-exempt income. The fees were disallowed in the ratio of tax-exempt income over the life of the trust to total income (including net capital gains) realized during that period.
In the Tax Court taxpayer argued that this formula was not reasonable in the light of all the facts and circumstances, Treas.Reg. § 1.265-l(c), because it did not reflect the unrealized appreciation of the trust assets. The court upheld the Commissioner’s allocation and taxpayer appeals.
The Commissioner argues there was no evidence that the trust assets were actually managed for. capital appreciation; and that to the extent they were so managed, the Commissioner’s inclusion in his allocation formula of net capital gains realized over the life of the trust would reasonably reflect this fact. We disagree on both counts. As an initial matter even if achieving appreciation were not a prime goal of the trustee’s management, it would remain unclear how fees created solely because of a rise in the value of taxable investments could be considered “allocable” within the statute to the production of tax exempt income. At any rate, while there is no specific evidence as to the trustee’s investment objectives, that appreciation was such an objective is inferable from the facts that the trustee apparently insisted on compensation for appreciation when the trust was established, and that appreciation under the trustee’s management comprised more than half of the corpus value at termination. As to the second point, since the trustee’s decision to sell securities (thereby realizing capital appreciation) is dictated by considerations other than that of the trust’s termination date, there is no necessary reason to suppose that the net capital gains realized over the life of the trust and included in the Commissioner’s formula will fairly reflect the trustee’s division of labor between exempt and taxable income-production activities in administering the trust. Since the value of the property comprising corpus generates the fee, an allocation measure like taxpayer’s which somehow reflects that value will seemingly result in a fairer apportionment. See M. Ferguson, J. Free-land & R. Stephens, Federal Income Taxation of Estates and Beneficiaries 492-93, 644 n. 115 (1970). The Tax Court characterized the appreciation as “ephemeral,” but the commissions it produced represented an outlay very tangible indeed.
It is clear as a general matter that expenditures aimed at the production of future capital gains are deductible under Treas.Reg. § 1.212-l(b). It is also clear as a general matter that in the application of § 265, an allocation based on realized income is not mandatory, Rev.Rul. 63-27, and this was true as regards trustees’ fees too, at least under the 1939 Code. Edward Mallinckrodt, Jr., 2 T.C. 1128, 1148 (1943). The Commissioner argues, however, that where a trust is involved, the concept of distribu-, table net income, see Int.Rev.Code § 643(a), and the special system of taxation in subchapter J (dealing with trusts and estates) are important components of “all the facts and circumstances” mentioned in Treas.Reg. § 1.265-l(c). Manufacturers Hanover Trust Co. v. United States, 312 F.2d 785, 795, 160 Ct.Cl. 582 (1963). Trusts are taxable entities which compute their deductions basically as do individuals, though in order to effectuate the “flow-through” scheme of taxation of subchapter J they are allowed a special deduction for distributions to beneficiaries. Int.Rev.Code § 641(b); Treas.Reg. § 1.641(b)-l. This distribution deduction is limited by distributable net income, Int.Rev.Code § 661(a). The statute contemplates that items of deduction like fiduciary fees be allocated exclusively among items of distributable net income. Int.Rev.Code § 661(b); Treas.Reg. § 1.652(b)-3(b). Thus, in Manufacturers Hanover Trust v. United States, supra, and Tucker v. Commissioner, 322 F.2d 86 (2d Cir. 1963), the courts upheld the Commissioner’s excluding from the allocation base realized capital gains allocable to corpus not required to be distributed in the current year, hence excluded from distributable net income. Int.Rev.Code § 643(a)(3). Since capital appreciation is never included in distributable net income, the Commissioner contends, it may never be. included in the base for allocating commissions between exempt and taxable income.
The Commissioner himself acknowledges that the allocation of termination fees like those involved here may not be subject to the strictures of the distributable net income concept, conceding that the deductions may instead pass to beneficiaries under the general allocation provisions and the excess deduction provisions of § 642(h)(2). We think this is in fact the case. Distributable net income is an annual concept. Int.Rev.Code § 643(a). Manufacturers Hanover Trust and Tucker involved annual commissions and income beneficiaries. Since income beneficiaries would not be taxed for capital gains (which were allocated to corpus under the trust instrument), the Court of Claims saw no reason to give them the added advantage of a deduction for expenses which would be inflated if it included fees based on such gains — gains which would eventually be a tax burden to another (the remainder-man). 312 F.2d at 796. In the present case taxpayer will receive the benefit of the appreciation if anyone does. There is no authority in the Code for computing, as the Commissioner in effect wishes, a second, analogous distributable net income based on figures from the entire duration of the trust. Thus the court in Whittemore v. United States, 383 F.2d 824 (8th Cir. 1967), facing the identical issue as we are, seemingly did not feel constrained by Treas.Reg. § 1.652(b)-3 in applying § 642(h)(2).
In sum, we agree that the Commissioner’s allocation was proper as to the annual fees but conclude it was not reasonable in light of all the facts and circumstances, including taxpayer’s proposed allocation, insofar as the termination fees were concerned.
Affirmed in part and reversed in part. Remanded for further proceedings consistent with this opinion.
. The stipulation as to these amounts is summarized in the following table:
Applicable to Applicable to Total municipal non-municipal bond holdings bond holdings
Income due to dividends and interest realized over the life of the trust, 4/9/53-6/16/69 ................. $211,443 $ 503,641 $ 715,084
Capital gain income realized over the life of the trust as a result of sales, liquidations, distributions or un-collectibility of principal, 4/9/53-6/16/69 .......... ($127,340) $ 152,349 $ 25,009
Unrealized appreciation during period 4/9/53-6/16/69 —0— $1,476,023 $1,476,023
Ordinary income realized by the trust for the calendar year 1969 ............... $ 9,028 $ 15,715 $ 24,743
. Upon termination of the trust on June 16, 1969, taxpayer paid trustee the following fiduciary commissions:
A. Receiving and Paying Commissions:
(a) Receiving Commissions:
(i) Receiving commission based on capital appreciation of assets sold, redeemed and collected ................$ 717.31
(ii) Receiving commission based on capital increase of assets distributed ____ 18,401.12 $19,118.43
(b) Paying Commissions:
(i) Paying commission based on market value at date of distribution, administrative expenses and assets remaining on hand ................................ 31,576.30
TOTAL Receiving and Paying Commissions: ...... $50,694.73
B. Trustee’s annual principal commission (based on the then current market value of the fund) ...................... 1,279.42
C. Trustee’s annual income commission (based on income collected for period 5/3/68-6/1/69) ....................... 1,920,52
TOTAL fiduciary commissions due and paid Bankers Trust Company upon termination of Trust Agreement in June 1969 .................................................. $53,894.67
. In allocating a portion of these expenses to the tax-exempt income, the Commissioner first determined the total amount of tax-exempt income earned by the trust between 1953 and 1969 ($211,443), and then computed the total income of the trust for this period ($740,093), which included taxable interest and dividends and capital gains, plus the tax-exempt income. Tax-exempt income was then expressed as a percentage of total income ($740,093 ($211443 = 28,57 Percent)> and this Percentage was applied to the total amount of receiving and paying commissions incurred upon termination of the trust ($50,695) to determine the amount of the termination commissions ($14,484) allocable to tax-exempt income. The Commissioner made a separate allocation with respect to the annual commissions (income and principal commissions) for 1969 in the total amount of $3,241. The Commissioner allocated this commission by computing the total income (taxable and tax exempt) of the trust for 1969 ($24,743), and computing tax-exempt income for 1969 ($9,028), as a percentage of total ($ 9,028 income = 36.49 percent). The percentage was applied to the total annual commissions ($3,241) for 1969 to determine the amount ($1,183) allocable to tax-exempt income for that year. The total amount ($15,667) allocable to tax-exempt income ($14,484 of the termination charges, plus $1,183 of the annual commissions) was disallowed as a deduction pursuant to the provisions of Section 265 of the Code. ' The Commissioner allowed the remaining amounts ($38,269) as deductions for 1969.
. Here the unrealized appreciation exceeded the net capital gain included in the Commissioner’s ratio by a factor of 60. It is not wholly unrealistic to conceive of a trust owning common stock, which experiences enormous appreciation during the trust’s existence while paying little or nothing in dividends as growth stocks often do, along with a single municipal bond paying a steady coupon interest. In such a situation the Commissioner’s formula would obviously result in a distorted apportionment of termination fees paid for the whole job of administering the trust. See In re Gilder-sleeve’s Estate, 75 Misc.2d 207, 347 N.Y.S.2d 96 (Sur.Ct.1973).
. This may be a special “fact and circumstance’’ to be considered in making the allocation under Treas.Reg. § 1.265-1 (c). M. Ferguson, J. Freeland & R. Stephens, Federal Income Taxation of Estates and Beneficiaries 493 (1970).
. The court in Manufacturers Hanover Trust twice noted, 312 F.2d at 794, 796 & nn. 13, 15, that the case would “present different problems” if the allowable deductions exceeded distributable net income as the Tax Court found was the case here.
. Though the allocation fashioned by the court in that case was the one adopted by the Commissioner here, the possibility of considering capital appreciation was not before the court there. The problem it perceived in allocating on the basis of corpus value — that part of the value of the exempt securities represented appreciation which would be taxable when realized even though the income from these securities was not — is absent here where the exempt securities actually depreciated.
. The Commissioner totalled these commissions at $3,241. Our addition, indicates that the total should be $3,200 ($1,279.42 + $1,920.52).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer:
|
songer_civproc1
|
52
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
D’ORSAY EQUIPMENT CO., Inc., Plaintiff, Appellant, v. UNITED STATES RUBBER COMPANY, Defendant, Appellee.
No. 5935.
United States Court of Appeals First Circuit.
Heard April 3, 1962.
Decided May 22, 1962.
Bernard P. Rome, Boston, Mass., with whom Julius Thannhauser and Wasserman & Salter, Boston, Mass., were on brief, for appellant.
Blair L. Perry, Boston, Mass., with whom Edmund Burke, Boston, Mass., Walter Barthold, New York City, Hale & Dorr, Boston, Mass., and Arthur, Dry, Kalish, Taylor & Wood, New York City, were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH. Circuit Judges.
HARTIGAN, Circuit Judge.
The plaintiff-appellant, D’Orsay Equipment Co., Inc., a Massachusetts corporation, appeals from an adverse judgment of the United States District Court for the District of Massachusetts, sitting without a jury, in a contract action to recover some $11,248.88 from the defendant-appellee, United States Rubber Company, a New Jersey corporation. This money represented payments made in advance to the defendant, under an alleged mistake of fact, for a quantity of rubber milk dispensing tubes which plaintiff had ordered from the defendant but subsequently refused to accept because of asserted defects in prior installments.
Plaintiff is a distributor of dairy machinery and equipment, with a principal place of business in Malden, Massachusetts. On December 8, 1955, the defendant sent a written quotation to plaintiff' in which defendant offered to sell the plaintiff a lot of 100,000 rubber milk-dispenser tubes at a price of $81.50 per thousand. This quotation contained specifications concerning the size of the tubes, the material from which the tubes were to be made and information relative to their packaging. In its “terms” section the quotation made provision for a two per cent discount if payment was made within 10 days. It also provided that shipments were F. O. B. Passaic, New Jersey. Immediately following the above-cited provision, the quotation contained the following language: “Except to the extent specified above, all quotations, orders, sales and deliveries, as to this or any other merchandise are subject to the conditions of sale printed on the reverse side hereof. United States Rubber Company.”
There then followed on the reverse side of the quotation eight conditions. Of special relevance is Condition #4—a disclaimer of warranty—couched in the following language:
“4. The Seller’s products are not guaranteed for any specific length of time or measure of service but are warranted only to be free from defects in workmanship and material, and all goods shall be subject to Seller’s normal manufacturing tolerances. Only those warranties herein set forth shall be deemed to have been made by the Seller, or relied upon by the Buyer. All previous communications, whether in the form of engineering recommendations or otherwise, are effective only to the extent therein contained.
“The Seller’s liability for breach of the above warranty is limited to refunding the purchase price of the merchandise, or, at the Seller’s option, to replacement upon its return. Under no circumstances shall the Seller be responsible for consequential damages.
“No claim for any breach of warranty herein will be considered unless delivered in writing to the Seller within thirty (30) days after date of delivery of the first shipment with respect to which claim is made,”
Following receipt of this quotation, plaintiff placed an order for 100,000 tubes on or about January 17, 1956. The order was filled and the plaintiff thereafter distributed the tubes to its customers. This shipment of tubes proved to be completely satisfactory.
On May 11, 1956 plaintiff placed an additional order for more tubes with defendant. This order for 250,000 tubes contained the following language: “Please enter our order for the following, subject to the terms and conditions hereon. Quantity-—250 M. Description—Dispenser tubes—To be released as ordered in lots of 25 M. Price 81/50/M.” (Pltff. Ex. 3) At the bottom of the order the following language appeared: “Please acknowledge receipt of this order immediately giving a definite shipping date. If prices are higher than shown hereon or last quoted, notify us at once before filling this order.”
On May 15, 1956 the above order was accepted by the defendant in the following terms: “We wish to acknowledge and thank you for your order No. 03227 for 250,000 Dispenser Tubes. We wish to advise that this material will be made up and held at our warehouse for your release in lots of 25,000 pieces.” (Pltff. Ex. 4)
Plaintiff contends that a substantial number of the tubes delivered incident to the order of May 11, 1956 were not of a merchantable quality. Consequently, on July 24, 1958 it brought the instant action seeking to rescind the contract and obtain the return of the purchase price of the tubes by virtue of the statutory warranties of the Uniform Sales Act which was in effect in both Massachusetts and New Jersey at all pertinent periods.
As noted previously, this case was tried to the court sitting without a jury and, consequently, invokes the familiar rule that “the findings of fact by a court 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.” A. Belanger & Sons, Inc. v. United States, 275 F.2d 372, 375 (1 Cir. 1960), Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.A.
After considering the testimony and observing the witnesses, the trial judge, in two critical areas of proof, made findings of fact adverse to plaintiff’s position. Our review of the record satisfies us that the court’s findings are not clearly erroneous.
Initially, plaintiff maintains that the disclaimer of warranty contained in the quotation of December 8, 1955 should not be considered as part of the contract involving the tubes which plaintiff ordered in May 1956. Rather it maintains that the sole contractual indicia of this latter order should be regarded as plaintiff’s Exhibits 3 and 4, e. g., Purchase Oi'der No. 03227 of May 11, 1956 and the letter of the United States Rubber Company dated May 15, 1956, acknowledging receipt of the order.
In rejecting this contention and ruling that the disclaimer of warranty must be read as part of the May 1956 transaction, the district judge stated in language with which we agree:
“I rule that the contentions of the plaintiff that the December 8, 1955 quotation is not a part of the contract are totally untenable. I find that both subsequent to the execution of the contract and as late as the date of filing of plaintiff’s memorandum of law, plaintiff at all material times took the position that defendant was required to individually wrap and pack the tubes. This obligation is mentioned only in the quotation of December 8, 1955. The quotation itself expressly states that it applies to the sale contemplated therein and to all subsequent sales of other merchandise to the same party, and plaintiff’s order blank refers back to the last quotation in the printed legend cited above. I find and rule that Plaintiff’s Exhibits 3 and 4 taken alone are inadequate to spell out an enforceable contract, since these two documents do not indicate what kind of tubes were the subject of sale, nor do they provide adequately for either payment or delivery.”
The trial court’s second finding, again, which cannot be said to be clearly erroneous, goes to the heart of plaintiff’s case. In the words of the court:
“Plaintiff has failed to carry its burden of proof on the issue of the number of defective tubes sold to it by defendant under the contract. While I am satisfied from the evidence that plaintiff did receive complaints from its customers, I feel that there has been a failure of proof on the part of plaintiff to show that a material number of these tubes were in fact defective.”
In his opinion, the trial judge noted and the record confirms that the plaintiff’s evidence on the extent of the complaints which it received over the relevant period was “inconclusive and contradictory.” Moreover, there was evidence that in 1956, when a large number of the alleged complaints were alleged to have been received, the plaintiff had purchased a substantial number of rubber tubes from another supplier. Plaintiff’s witnesses, in the trial judge’s view, did not always establish that the tubes which were the subject of complaints were actually manufactured by the defendant. Moreover, despite the plaintiff’s contention of substantial defects in the tubes, its records were virtually totally basren of any documentary evidence indicating defects or replacements. Plaintiff produced witnesses from several of the companies to which it had shipped the assertedly defective tubes. Although these witnesses testified that they had registered complaints with the plaintiff, again, there was a total lack of corroborating l'ecords either as to defects or replacements.
Moreover, although plaintiff complained to defendant of having “lost practically all our tube business,” as a result of the asserted defects, its own records introduced at the trial showed that its sale of milk-dispenser tubes increased significantly throughout the period at issue from 165,000 tubes sold in 1956 to 367,828 tubes in 1957, and increased again to 411,019 in 1958.
Undoubtedly this is a case where if the cause had been tried to -a jury, plaintiff’s evidence was sufficient to entitle it to go to the jury. However, here, as in a jury case, the trial judge was not compelled to credit all the testimony and had the prerogative to disbelieve the testimony even if uneontradicted of any witness. Wynne v. Boone, 88 U.S.App.D.C. 363, 191 F.2d 220, 222 (1951).
Thus viewed and, as noted above, a careful review of the entire record convinces us that the district court’s finding that plaintiff has failed to show that a sufficient number of the tubes were defective to give it the right to treat the contract as breached cannot be said to be clearly erroneous.
Under Condition #4, set forth above, where defects occurred in particular tubes, plaintiff, “at the seller’s option” was limited to a replacement of the defective tubes or a refund. Defendant had clearly indicated to the plaintiff that it elected to “replace” any defective tubes and had actually done so on several occasions during the contract and, indeed, stood ready to do so even to the time that plaintiff instituted the present suit. Consequently, on the record plaintiff had no right to refuse to accept the goods here at issue.
A judgment will be entered affirming the judgment of the district court.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
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).
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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_respondentstate
|
51
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
Robert Mitchell JENNINGS, Petitioner
v.
William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division.
No. 13-7211.
Supreme Court of the United States
Argued Oct. 15, 2014.
Decided Jan. 14, 2015.
Randolph L. Schaffer, Jr., Houston, TX, for Petitioner.
Andrew S. Oldham, Austin, TX, for Respondent.
Jeffrey T. Green, Erika L. Maley, Paul J. Sampson, Sidley Austin LLP, Washington, DC, Randolph L. Schaffer, Jr., Counsel of Record, Houston, TX, for Petitioner.
Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, Jonathan F. Mitchell, Solicitor General, Andrew S. Oldham, Deputy Solicitor General, Counsel of Record, Arthur C. D'Andrea, Alex Potapov, Assistant Solicitors General, Office of the Attorney General, Austin, TX, for Respondent.
Opinion
Justice SCALIAdelivered the opinion of the Court.
Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability.
I
In July 1988, petitioner Robert Mitchell Jennings entered an adult bookstore to commit a robbery. Officer Elston Howard, by unhappy coincidence, was at the same establishment to arrest the store's clerk. Undeterred, Jennings shot Howard four times, robbed the store, and escaped. Howard died from his wounds.
Howard was merely the most recent victim of Jennings' criminality. The State adjudicated Jennings a delinquent at 14, convicted him of aggravated robbery at 17, and of additional aggravated robberies at 20. He murdered Officer Howard only two months after his most recent release from prison.
Jennings was arrested, tried, and convicted of capital murder, and the State sought the death penalty. During the punishment phase, the State introduced evidence of Jennings' lengthy and violent criminal history. Jennings' attorney called only the prison chaplain, who testified about Jennings' improvement and that Jennings was not "incorrigible." Jennings' attorney acknowledged the difficulty of his sentencing defense in his closing remarks, commenting that he could not "quarrel with" a death sentence, but was nonetheless pleading for mercy for his client. The jury returned a special verdict, consistent with Texas law, that Jennings acted deliberately in the murder and that he would present a continuing threat to society. The trial court sentenced Jennings to death. Texas courts affirmed Jennings' conviction and sentence and denied postconviction relief. Jennings v. State, No. AP-70911 (Tex.Crim.App., Jan. 20, 1993); Ex parte Jennings,2008 WL 5049911 (Tex.Crim.App., Nov. 26, 2008).
Jennings applied for federal habeas corpus relief, asserting, as relevant here, three theories of ineffective assistance of counsel in the punishment phase of his trial. Jennings first claimed trial counsel was ineffective for failing to present evidence of his disadvantaged background, including that his conception was the product of his mother's rape, that his mother was only 17 when he was born, and that he grew up in poverty. Jennings offered his mother and sister as witnesses.
Jennings next argued that trial counsel was ineffective for failure to investigate and to present evidence of Jennings' low intelligence and organic brain damage. His trial attorney admitted in affidavit that he failed to review the case files from Jennings' prior convictions, which contained a report suggesting Jennings suffered from mild mental retardationand mild organic brain dysfunction. (The report also suggested that Jennings malingered, feigning mental illness in order to delay proceedings.) Jennings argued that trial counsel should have examined Jennings' prior case files, investigated Jennings' mental health problems, and presented evidence of mental impairmentin the punishment phase.
Finally, Jennings argued that counsel was constitutionally ineffective for stating that he could not "quarrel with" a death sentence. According to Jennings, this remark expressed resignation to-even the propriety of-a death sentence.
Jennings cited our decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), as establishing constitutional ineffectiveness when counsel fails to investigate or to introduce substantial mitigating evidence in a sentencing proceeding. Though he did not cite our decision in Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010), he also argued that counsel's closing remarks amounted to constitutional ineffectiveness. The parties referred to these alleged errors as the "Wigginserrors" and the "Spisakerror"; we use the same terminology.
The federal habeas court granted Jennings relief on both of his Wigginstheories, but denied relief on his Spisaktheory. Jennings v. Thaler, 2012 WL 1440387 (S.D.Tex., Apr. 23, 2012). The court ordered that the State "shall release Jennings from custody unless, within 120 days, the State of Texas grants Jennings a new sentencing hearing or resentences him to a term of imprisonment as provided by Texas law at the time of Jennings['] crime." Id.,at *7.
The State appealed, attacking both Wigginstheories (viz., trial counsel's failure to present evidence of a deprived background and failure to investigate evidence of mental impairment). Jennings argued before the Fifth Circuit that the District Court correctly found constitutional ineffectiveness on both Wigginstheories, and argued again that trial counsel performed ineffectively under his Spisaktheory. The Fifth Circuit reversed the grant of habeas corpus under the two Wigginstheories and rendered judgment for the State. 537 Fed.Appx. 326, 334-335 (2013). The court determined that it lacked jurisdiction over Jennings' Spisaktheory. Id., at 338-339. Implicitly concluding that raising this argument required taking a cross-appeal, the panel noted that Jennings failed to file a timely notice of appeal, see Fed. Rule App. Proc. 4(a)(1)(A), and failed to obtain a certificate of appealability as required by 28 U.S.C. § 2253(c). Section 2253(c)provides, as relevant here, that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from... the final order in a habeas corpus proceeding."
We granted certiorari, 572 U.S. ----, 134 S.Ct. 1539, 188 L.Ed.2d 556 (2014), to decide whether Jennings was required to file a notice of cross-appeal and seek a certificate of appealability to pursue his Spisaktheory.
II
The rules governing the argumentation permissible for appellees urging the affirmance of judgment are familiar, though this case shows that familiarity and clarity do not go hand-in-hand.
A
An appellee who does not take a cross-appeal may "urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court." United States v. American Railway Express Co.,265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). But an appellee who does not cross-appeal may not "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." Ibid.Since Jennings did not cross-appeal the denial of his Spisaktheory, we must determine whether urging that theory sought to enlarge his rights or lessen the State's under the District Court's judgment granting habeas relief.
The District Court's opinion, in its section labeled "Order," commanded the State to "release Jennings from custody unless, within 120 days, the State of Texas grants Jennings a new sentencing hearing or resentences him to a term of imprisonment as provided by Texas law at the time of Jennings['] crime." 2012 WL 1440387, at *7. The District Court's corresponding entry of judgment contained similar language. App. 35. The intuitive answer to the question whether Jennings' new theory expands these rights is straightforward: Jennings' rights under the judgment were what the judgment provided-release, resentencing, or commutation within a fixed time, at the State's option; the Spisaktheory would give him the same. Similarly, the State's rights under the judgment were to retain Jennings in custody pending resentencing or to commute his sentence; the Spisaktheory would allow no less.
The State objects to this straightforward result. A conditional writ of habeas corpus, it argues, does not merely entitle a successful petitioner to retrial (or resentencing), but it entitles him to retrial (or resentencing) without the challenged errors. Because each basis for habeas relief imposes an additional implied obligation on the State (not to repeat that error), each basis asserted by a successful petitioner seeks to lessen the State's rights at retrial, and therefore each additional basis requires a cross-appeal.
This is an unusual position, and one contrary to the manner in which courts ordinarily behave. Courts reduce their opinions and verdicts to judgments precisely to define the rights and liabilities of the parties. Parties seeking to enforce a foreign court's decree do not attempt to domesticate an opinion; they domesticate a judgment. Restatement (Third) of Foreign Relations Law of the United States §§ 481-482 (1987). A prevailing party seeks to enforce not a district court's reasoning, but the court's judgment. Rogers v. Hill, 289 U.S. 582, 587, 53 S.Ct. 731, 77 L.Ed. 1385 (1933). This Court, like all federal appellate courts, does not review lower courts' opinions, but their judgments. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And so a rule that contravenes this structure, that makes the opinion part of the judgment, is peculiar-especially when it is applied to impose extrajudgment obligations on a sovereign State.
The State's argument might have force in a case where a district court explicitlyimposes (or the appellee asks the appellate court explicitly to impose) a condition governing the details of the retrial. But that case is not before us. The implications of the State's position make clear why such orders are atypical, and why we should not infer such conditions from silence. Construing every federal grant of habeas corpus as carrying an attendant list of unstated acts (or omissions) that the state court must perform (or not perform) would substantially transform conditional habeas corpus relief from an opportunity "to replace an invalid judgment with a valid one,"Wilkinson v. Dotson,544 U.S. 74, 87, 125 S.Ct. 1242, 161 L.Ed.2d 253(SCALIA, J., concurring), to a general grant of supervisory authority over state trial courts.
In a variation on the same theme, the dissent posits that, apart from implied terms, a habeas petitioner who successfully defends a judgment on an alternative ground hasexpanded his rights under the judgment, because he has changed the judgment's issue-preclusive effects. This theory confuses a party's rights under a judgment-here, the right to release, resentencing, or commutation, at the State's option-with preclusive effects that the judgment might have in future proceedings. That makes nonsense of American Railway. Wheneveran appellee successfully defends a judgment on an alternative ground, he changes what would otherwise be the judgment's issue-preclusive effects. Thereafter, issue preclusion no longer attaches to the ground on which the trial court decided the case, and instead attaches to the alternative ground on which the appellate court affirmed the judgment. Restatement (Second) of Judgments § 27 (1982). Thus, making alteration of issue-preclusive effects the touchstone of necessity for cross-appeal would require cross-appeal for everydefense of a judgment on alternative grounds. That is, of course, the polar opposite of the rule we established in American Railway.
Under the habeas court's judgment, Jennings was entitled, at the State's option, to either release, resentencing, or commutation of his sentence. Any potential claim that would have entitled Jennings to a new sentencing proceeding could have been advanced to "urge... support" of the judgment within the meaning of American Railway.265 U.S., at 435, 44 S.Ct. 560. The dissent and the State contend that applying American Railwayin this fashion will lead to a proliferation of frivolous appellate defenses in habeas cases. If so, that is a problem that can only be solved by Congress. Until it does so, we think it appropriate to adhere to the usual law of appeals.
We think, however, that the danger is exaggerated. To begin with, not all defenses will qualify. A habeas applicant who has won resentencing would be required to take a cross-appeal in order to raise a rejected claim that would result in a new trial. Similarly, even if a habeas applicant has won retrial below, a claim that his conduct was constitutionally beyond the power of the State to punish would require cross-appeal. And even a successful applicant doing no more than defending his judgment on appeal is confined to those alternative grounds present in the record: he may not simply argue anyalternative basis, regardless of its origin. Ibid.
Moreover, successful habeas applicants have an incentive to defend their habeas grants effectively, an objective that is not furthered by diverting an appellate court's attention from a meritorious defense to a frivolous one. The dissent gives two examples of habeas petitioners who raised numerous ostensibly frivolous claims. Post,at 807. They prove nothing except the dissent's inability to substantiate its claim that our holding will foster the presentation of frivolous alternative grounds for affirmance. For both examples involved habeas petitioners who lost before the magistrate and were casting about for any basis that might justify a writ. We are talking here about habeas petitioners who have won before the district court. The notion that they can often be expected to dilute their defense of the (by-definition-nonfrivolous) basis for their victory by dragging in frivolous alternative grounds to support it is thoroughly implausible. Indeed, as the State and Jennings agree, it is rare that a habeas petitioner successful in the district court will even be called upon to defend his writ on appeal.
And finally, we doubt that any more judicial time will be wasted in rejection of frivolous claims made in defense of judgment on an appeal already taken than would be wasted in rejection of similar claims made in (what the State and dissent would require) a separate proceeding for a certificate of appealability. To be sure, as the dissent points out, post,at 807, the certificate ruling will be made by just one judge rather than three; but that judge will always be required to consider and rule on the alternative grounds, whereas the three-judge court entertaining the government's habeas appeal will not reach the alternative grounds unless it rejects the ground relied on by the lower court. Not to mention the fact that in an already-pending appeal the court can give the back of its hand to frivolous claims en passant,whereas the certificate process requires the opening and disposition of a separate proceeding.
In the end, the dissent tries to evade American Railwayby asserting that habeas corpus is "unique." Post,at 805 - 806. There are undoubtedly some differences between writs of habeas corpus and other judgments-most notably, that habeas proceedings traditionally ignored the claim-preclusive effect of earlier adjudications.
But the reality that some thingsabout habeas are different does not mean that everythingabout habeas is different. The dissent must justify why the particular distinction it urges here-abandonment of the usual American Railwayrule-is an appropriate one. It cannot.
B
The State also advances what could be termed a corollary to the American Railwayrule. Citing Helvering v. Pfeiffer,302 U.S. 247, 58 S.Ct. 159, 82 L.Ed. 231 (1937), and Alexander v. Cosden Pipe Line Co.,290 U.S. 484, 54 S.Ct. 292, 78 L.Ed. 452 (1934), the State insists that a cross-appeal is necessary not only for Jennings to enlarge his rights under the District Court's judgment, but also to attack the District Court's ruling rejecting his Spisaktheory, even if Jennings' rights under the court's judgment would remain undisturbed.
The view of Pfeifferand Alexanderadvanced by the State would put these cases in considerable tension with our oft-reaffirmed holding in American Railway. And it is not the correct view. Both Pfeifferand Alexanderarose from disputes between the Commissioner of the Internal Revenue Service and taxpayers regarding multiple discrete federal tax liabilities. Pfeiffer, supra,at 248, 58 S.Ct. 159; Alexander, supra,at 486, 54 S.Ct. 292. In Pfeiffer,the Commissioner prevailed before the Board of Tax Appeals on his contention that a dividend was taxable, but lost a similar claim against a cash payment. Only the taxpayer sought the Second Circuit's review, and the taxpayer prevailed on the dividend liability. 302 U.S., at 249, 58 S.Ct. 159. In Alexander, the taxpayer sought refund of four tax liabilities; the taxpayer won on all four. Only the Commissioner appealed to the Tenth Circuit, and that court affirmed two of the refunds, eliminated a third, and reduced a fourth. Pfeiffer, supra,at 248-249, 58 S.Ct. 159; Alexander, supra,at 486, 54 S.Ct. 292. The Commissioner sought our review in both cases; we refused to entertain the Commissioner's arguments regarding the cash payment in Pfeiffer,or the taxpayer's regarding the eliminated and reduced claims in Alexander, citing American Railway.
The State argues that these holdings expanded the need for cross-appeal, beyond merely those arguments that would enlarge rights under the judgment, to those arguments that revisit a lower court's disposition of an issue on which a judgment rests. For, the State argues, the rejected arguments would not necessarilyhave expanded the Commissioner's or the taxpayer's rights; if some of the points on which the respective appellee won below were rejected on appeal, his new arguments might do no more than preserve the amount assessed.
But this view of Pfeifferand Alexanderdistorts American Railway.American Railwaydoes not merely require a cross-appeal where a party, if fully successful on his new arguments, would certainly obtain greater relief than provided below; it requires cross-appeal if the party's arguments are presented "with a vieweither to enlarging his own rights thereunder or of lessening the rights of his adversary." 265 U.S., at 435, 44 S.Ct. 560. In Pfeifferand Alexanderthe assertion of additional tax liabilities or defenses, respectively, necessarily sought to enlarge or to reduce the Commissioner's rights, even if, under some combination of issues affirmed and reversed, one possibility would have produced no more than the same tax obligations pronounced by the judgment below.
Once we have rejected the State's-and dissent's-theories of implied terms in conditional writs, Jennings' Spisaktheory sought the same relief awarded under his Wigginstheories: a new sentencing hearing. Whether prevailing on a single theory or all three, Jennings sought the same, indivisible relief. This occurred in neither Pfeiffernor Alexander, and we decline to view those cases as contradicting our " 'inveterate and certain' " rule in American Railway. Greenlaw v. United States,554 U.S. 237, 245, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008).
C
Finally, the State urges that even if Jennings was not required to take a cross-appeal by American Railway,Pfeiffer,and Alexander, he was required to obtain a certificate of appealability. We disagree.
Section 2253(c) of Title 28provides that "an appeal may not be taken to the court of appeals" without a certificate of appealability, which itself requires "a substantial showing of the denial of a constitutional right." It is unclear whether this requirement applies to a habeas petitioner seeking to cross-appeal in a case that is already before a court of appeals. Section 2253(c)performs an important gate-keeping function, but once a State has properly noticed an appeal of the grant of habeas relief, the court of appeals must hear the case, and "there are no remaining gates to be guarded." Szabo v. Walls,313 F.3d 392, 398 (C.A.7 2002)(Easterbrook, J.).
But we need not decide that question now, since it is clear that § 2253(c)applies only when "an appeal" is "taken to the court of appeals." Whether or not this embraces a cross-appeal, it assuredly does not embrace the defense of a judgment on alternative grounds. Congress enacted § 2253(c)against the well-known, if not entirely sharp, distinction between defending a judgment on appeal and taking a cross-appeal. Nothing in the statute justifies ignoring that distinction.
The dissent laments that this result frustrates AEDPA's purpose of preventing "frivolous appeals." Post, at 806. It can indulge that lament only by insisting that the defense of an appealed judgment on alternative grounds is itself an appeal. The two are not the same. The statutory text at issue here addresses the "tak[ing]" of an appeal, not "the making of arguments in defense of a judgment from which appeal has been taken." Extending the certificate of appealability requirement from the former to the latter is beyond the power of the courts.
* * *
Because Jennings' Spisaktheory would neither have enlarged his rights nor diminished the State's rights under the District Court's judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings' Spisakclaim.
It is so ordered.
Justice THOMAS, with whom Justice KENNEDYand Justice ALITOjoin, dissenting.
The Court holds today that a prisoner who obtains an order for his release unless the State grants him a new sentencing proceeding may, as an appellee, raise any alternative argument rejected below that could have resulted in a similar order. In doing so, the majority mistakenly equates a judgment granting a conditional-release order with an ordinary civil judgment. I respectfully dissent.
I
Title 28 U.S.C. § 2253(c)(1)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides in relevant part: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." Further, "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right," and the certificate must "indicate which specific issue or issues satisfy [that] showing." §§ 2253(c)(2),(3). Because Jennings did not obtain a certificate of appealability (COA), we must consider whether, by raising his "cross-point," he took an appeal within the meaning of AEDPA.
I agree with the majority that if a habeas petitioner takes what is, in substance or in form, a cross-appeal to the Court of Appeals, then he must obtain a COA. The failure to obtain a COA is a jurisdictional bar to review. See Gonzalez v. Thaler,565 U.S. ----, ----, 132 S.Ct. 641, 649-650, 181 L.Ed.2d 619 (2012). The critical question the Court faces is whether Jennings' "cross-point" was in fact a cross-appeal.
II
A
The majority correctly identifies the rule we apply to determine whether a party has taken a cross-appeal, United States v. American Railway Express Co.,265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924), but then fails to apply it in accordance with the history of the writ of habeas corpus, our precedents concerning conditional-release orders, and traditional principles governing equitable relief. Each of these guides supports the conclusion that a prisoner who obtains a conditional-release order allowing the State to resentence him in a new proceeding is entitled, if the State elects that option, to a new sentencing proceeding free of the specific constitutional violation identified by the district court. Because a conditional-release order embodies this specific right, an appellee's attempt to add additional errors is an attempt to modify or expand his rights under the judgment.
For most of its existence, the writ of habeas corpus was understood far more narrowly than it is today. See Wright v. West,505 U.S. 277, 285-287, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)(opinion of THOMAS, J.). Originally, it played only a procedural role: It issued as of right when a prisoner showed probable cause to believe he was being held illegally-that is, without a conviction entered by a court of competent jurisdiction over the prisoner-and obligated the warden to file a "return" identifying the grounds of imprisonment. W. Church, A Treatise on the Writ of Habeas Corpus §§ 94, 122 (rev. 2d ed. 1893) (hereinafter Church). The "grant of the writ decided nothing except that there was a case calling for an answer by the gaoler." Goddard, A Note on Habeas Corpus, 65 L.Q. Rev. 30, 34 (1949). And the court's ultimate decision on the matter was limited to confirming the legality of the prisoner's confinement or ordering his immediate discharge. See Church §§ 130, 131.
The writ today, by contrast, is invoked to justify broad federal review of state criminal proceedings for constitutional violations. And, when a district court issues the writ, it usually enters a conditional-release order, offering the State a choice between immediate release or a retrial (or resentencing) within a defined period of time. See Wilkinson v. Dotson,544 U.S. 74, 86-87, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)(SCALIA, J., concurring).
The purpose of a conditional-release order is to afford the State an opportunity to remedy the specific constitutional violation identified by the district court. Since its inception over a century ago, we have treated a conditional-release order as entitling a habeas petitioner not just to a new proceeding, but to a new proceeding that cures the specific defect identified by the district court. One of our earliest precedents contemplating such an order is In re Bonner,151 U.S. 242, 259-260, 14 S.Ct. 323, 38 L.Ed. 149 (1894). That case involved a prisoner who had been lawfully convicted, but unlawfully ordered to serve his federal sentence in a state penitentiary. Id.,at 254-255, 260, 14 S.Ct. 323. Invoking its "power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus," the Court ordered the delay of discharge to allow the prisoner to be "taken before the court where the judgment was rendered, that the defectsfor want of jurisdiction which are the subject of complaintin that judgment may be corrected." Id.,at 261, 14 S.Ct. 323(emphasis added); see also Magwood v. Patterson,561 U.S. 320, 347, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010)(KENNEDY, J., joined by, inter alios,ALITO, J., dissenting) ("[A] conditional grant of relief... allows the state court to correct an error that occurred at the original sentencing"). That understanding of habeas judgments has prevailed in an unbroken line of precedent. See Richmond v. Lewis,506 U.S. 40, 52, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992); Hilton v. Braunskill,481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); Dowd v. United States ex rel. Cook,340 U.S. 206, 209-210, 71 S.Ct. 262, 95 L.Ed. 215 (1951); Mahler v. Eby,264 U.S. 32, 46, 44 S.Ct. 283, 68 L.Ed. 549 (1924). Cf. Dotson, supra,at 86, 125 S.Ct. 1242(SCALIA, J., concurring) ("[T]he conditional writ serves only to 'delay the release... in order to provide the State an opportunity to correct the constitutional violation' " (quoting Braunskill,supra,at 775, 107 S.Ct. 2113)).
When the State fails to cure the specific constitutional violation identified by the district court, the habeas petitioner is entitled to release. That is because the prevailing habeas petitioner has shown that his conviction or sentencing proceeding was unconstitutional and that he is therefore "actually entitled to release." Dotson,544 U.S., at 86, 125 S.Ct. 1242(SCALIA, J., concurring). "Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one, and the consequence when they fail to do so is always release."Id.,at 87, 125 S.Ct. 1242. But that entitlement to release is tied to the constitutional violation identified by the Court. A State committing a new constitutional violation during the new sentencing proceeding will not be required to release the habeas petitioner under the old order. Cf. Magwood, supra,at 339, 130 S.Ct. 2788(explaining that a habeas petitioner who obtains a new sentencing proceeding on the basis of one error may subsequently raise, in a first habeas application, other errors repeated in that proceeding).
A habeas petitioner's rights under the conditional-release order are thus defined by the violation that justified its entry, not by the wording of the order. Pitchess v. Davis,421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975)(per curiam), makes that clear. Davisinvolved a prisoner who had obtained habeas relief because the prosecutor had failed to disclose a material and exculpatory laboratory report, in violation of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 421 U.S., at 483, 95 S.Ct. 1748. When the State moved to retry him, the prisoner discovered that the State had destroyed some of the physical evidence used against him at his initial trial.
Id.,at 484, 95 S.Ct. 1748. The District Court granted the prisoner's motion to convert its initial conditional-release order into an unconditional order. Id.,at 485, 95 S.Ct. 1748. After the Court of Appeals affirmed that decision, this Court granted certiorari and reversed. Id.,at 486, 490, 95 S.Ct. 1748. Although the conditional-release order provided only that the prisoner should be released unless the State moved to retry him within 60 days, Davis v. Pitchess,388 F.Supp. 105, 114 (C.D.Cal.1974), the Court read that conditional-release order to require the State to "provid[e] respondent with the laboratory report," in addition to moving to retry him within 60 days, Davis,421 U.S., at 483, 95 S.Ct. 1748(emphasis added). Because the order did not address the separate issue of the physical evidence, the Court refused to allow the District Court to use its destruction as a basis for converting the conditional-release order to an unconditional order.
That decision makes sense when considered in light of traditional principles of equitable relief. "This Court has frequently rested its habeas decisions on equitable principles." Withrow v. Williams,507 U.S. 680, 717, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)(SCALIA, J., concurring in part and dissenting in part). (Such principles remain relevant after AEDPA's enactment when they are consistent with the statutory scheme Congress adopted. See, e.g., McQuiggin v. Perkins,569 U.S. ----, ---- - ----, 133 S.Ct. 1924, 1928-1929, 185 L.Ed.2d 1019 (2013)(SCALIA, J., dissenting).) And the Court has frequently recognized that an equitable "remedy must... be limited to the inadequacy that produced" the asserted injury. Lewis v. Casey,518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Thus, a conditional-release order will not "permit a federal habeas court to maintain a continuing supervision over a retrial conducted pursuant to a conditional writ granted by the habeas court." Davis,421 U.S., at 490, 95 S.Ct. 1748. But neither will a conditional-release order permit a State to hold a prisoner under a new judgment infected by the same constitutional violation that justified the order's entry in the first place. See Dotson,supra,at 87, 125 S.Ct. 1242(SCALIA, J., concurring); Harvest v. Castro,531 F.3d 737, 750 (C.A.9 2008); Phifer v. Warden,53 F.3d 859, 864-865 (C.A.7 1995). Such an interpretation of habeas judgments would render the writ hollow.
The history of the writ of habeas corpus, the treatment of conditional-release orders, and traditional principles of equitable relief resolve the dispute at issue here. A habeas petitioner awarded a conditional-release order based on an error at his sentencing proceeding is entitled, under that order, to a new proceeding without the specific constitutional violation identified by the district court. Raising any other constitutional violation on appeal would be an attempt to modify the prisoner's rights flowing from that order.
B
Given these principles, the judgment of the Court of Appeals should be affirmed. Jennings prevailed in the District Court on two theories of ineffective assistance of counsel and lost on another. The District Court entered a conditional-release order instructing the State to release Jennings unless it granted Jennings a new sentencing hearing within 120 days or commuted his sentence. Ante, at 798 - 799. Under this Court's precedents, that general order embodies a specific instruction to the State with respect to a new sentencing proceeding: resentence Jennings without the two identified Wigginserrors. See ante,at 797 - 798 (citing Wiggins v. Smith,539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The State's failure to comply with that order would justify Jennings' release.
Jennings attempted, through his cross-point, to expand his rights under the judgment when he attempted to alter the instruction to the State-adding an additional instruction about a Spisakerror-and, accordingly, the grounds upon which he could obtain immediate release. See ante,at 797 - 798 (citing Smith v. Spisak,558 U.S. 139, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010)). Jennings' cross-point was in substance a cross-appeal for which he needed to obtain a COA.
III
A
The majority makes no attempt to reconcile its decision with
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_appel1_8_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
Merle BARTNICK, as Trustee for the Heirs and next of kin of Earl Prinsen, Deceased, Plaintiff-Appellant, v. READER COMPANY, INC., a Minnesota Corporation, et al., Defendants-Appellees.
Nos. 73-1461, 73-1622.
United States Court of Appeals, Eighth Circuit.
Dec. 3, 1973.
Timothy J. McCoy, Minneapolis, Minn., filed appendix and brief for appellant.
John C. DeMoss, Minneapolis, Minn., filed brief for appellees, Reader Company, Inc., and Robert D. Sargent.
Phillip A. Cole, Minneapolis, Minn., filed brief for appellee, Phillips Drill Co., Inc.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
This appeal raises an issue of jurisdiction, which issue we deem appropriate for summary resolution under Rule 9(a) of the Rules of this Court. The record discloses that Merle Bartnick, a citizen of South Dakota, sues as trustee in a representative capacity for a widow and children, all citizens of Minnesota, and next of kin of Earl Prinsen, deceased, and seeks damages for the alleged wrongful death of decedent-Earl Prinsen. Plaintiff alleges jurisdiction resting on diversity of citizenship between the South Dakota trustee and the defendants, one of whom resides in Minnesota.
Here the trustee serves as a representative of living persons, i.e., the widow and next of kin of Earl Prinsen, deceased. See Minn.Stat.Ann. § 573.02 (Supp.1973). Under these circumstances, an appointment solely to create diversity jurisdiction will not be recognized by federal courts. The district court properly dismissed the action. This case is controlled by the principles enunciated in Rogers v. Bates, 431 F.2d 16, 18-22 (8th Cir. 1970). Cf. O’Brien v. Stover, 443 F.2d 1013, 1015-1016 (8th Cir. 1971).
(a) On The Motion Of The Court. The court may at any time, on its own motion and without notice, dispose of an appeal summarily, except that notice must be given if the appeal is in forma pauperis, a certificate of probable cause has been issued, and briefs have not been filed. The court may dismiss an appeal that is not within the jurisdiction of the court or that it finds to be frivolous and entirely without merit, or may affirm or reverse when the questions presented do not require further argument.
Affirmed.
. Rule 9(a) reads:
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_state
|
54
|
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".
Vance L. WOOD, Appellant, v. UNITED STATES of America, Appellee.
No. 21496.
United States Court of Appeals District of Columbia Circuit.
Jan. 19, 1968.
Mr. Verginald L. Dolphin, Washington, D. C. (appointed by the District Court)' was on the brief for appellant.
Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief for appellee.
Before Burger, Leventhal and Robinson, Circuit Judges, in Chambers.
PER CURIAM:
Appellant was indicted for housebreaking, assault with a dangerous weapon, and robbery, and is awaiting trial on these charges. A judge of the Court of General Sessions, acting on a Bail Agency report and recommendation, denied release on personal recognizance and set bail at $10,000. That order was reviewed pursuant to 18 U.S.C. § 3146(d) (Supp. II, 1965-66) by another General Sessions judge, the first being unavailable, and the $10,000 bail requirement was kept. The following reasons were given:
“Well, this is a very serious matter; robbery at gun point. I don’t think there is sufficient showing here for me to reduce the bond in this case, the defendant being a user of narcotics for a period of fifteen years. I think it’s been my experience that narcotics users are not too reliable, not too credible. I know he has several convictions of narcotics: in 1963 he was convicted of the Harrison Narcotics Act and received four years. He is not employed, he has lived on and off for a period of one year with his mother, father and two brothers, which doesn’t give him too much stability. Based on his past record and insufficient community ties, and the fact that he is a narcotics user, I’ll not change the conditions of release.”
Following the proper statutory procedure, appellant then moved the District Court to exercise its discretion to amend the conditions of release, and to grant release on personal recognizance. This the District Judge declined to do, although he did lower bail from $10,000 to $5,000. Appellant appeals that order, as he is totally without funds and cannot raise that amount any more than he can $10,000.
The Government urges that the District Judge’s order is not .ripe for review by this court pursuant to 18 U.S.C. § 3147(b) (Supp. II, 1965-66), contending that appellant must first avail himself of the opportunity of review under 18 U.S.C. § 3146(d) (Supp. II, 1965-66), giving the District Judge who amended the order opportunity to give written reasons for so doing, and for continuing the denial of release on personal recognizance. We think this contention plainly foreclosed by the language of 18 U.S.C. § 3147(b) (Supp. II, 1965-66). Subsection (b) grants a right of appeal to persons detained after either “(1) a court denies a motion under subsection (a) to amend an order imposing conditions of release,” (in which case twenty-four hour review is required in accordance with the language of § 3147 (a), or “(2) conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged * * Appellant comes within (b) (2), and no requirement exists that written reasons be sought prior to appellate review.
Turning to the merits, the Government contends that the District Judge’s order is “supported by the proceedings below,” and should be affirmed. On the state of the record before us we believe it appropriate, in the interest of justice and in view of the recent bail law, to remand the case for further consideration.
The Bail Reform Act creates a strong policy in favor of release on personal recognizance, and it is only if “such a release would not reasonably assure the appearance of the person as required” that other conditions of release may be imposed. Even then, the statute in 18 U.S.C. § 3146 creates a hierarchy of conditions, one of the least favored of which is a requirement of bail bond. In considering what, if any, conditions shall be imposed the judge shall consider various factors relevant to the probability of flight, and one factor is “his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.” While we are informed by counsel that appellant has always appeared in connection with prior criminal proceedings against him, and there have been at least twelve over the past thirteen years, the record is silent as to whether appellant was on conditional release and appeared voluntarily in those proceedings. It is that silence which troubles us.
We do not think that under the Bail Reform Act a determination that money bail is required is appropriate unless the court at least ascertains the conduct of defendant when previously released on conditions, and whether the defendant previously abided by conditions imposed on him in prior proceedings. Consistent appearance when flight is possible is an important indicator of whether a defendant is likely to appear once again. Here, the General Sessions judge gave as his reason for denying recognizance and maintaining bail, a belief, no doubt amply justified by experience, that narcotic users are generally untrustworthy. But'in matters of bail, “each accused is entitled to any benefits due to his good record,” Stack v. Boyle, 342 U.S. 1, 9, 72 S.Ct. 1, 6, 96 L.Ed. 3 (1951) (Opinion of Jackson, J.). While appellant’s record is by no means felicitous, it may be that he personally poses little risk of flight. We see no reason why there should not be included in the record before the court, as a matter of course, information concerning any prior conditional releases and subsequent appearance, information we think is clearly contemplated by the statute. If it is not possible to obtain any such information, one way or the other, that should be set forth.
This is by no means a ruling that release on personal recognizance must be allowed if a defendant, or the appellant before us, has consistently adhered to the terms of past releases. Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck. Here there were many considerations arguing against release on recognizance — the offense is serious, appellant is unemployed, has no stable family life, and is a narcotics user with a criminal record. However, while imposition of bail might well be properly ordered after our remand, we think any such decision will be based on an approach more in keeping with the statutory mandate.
Remanded.
. The Government suggests that this appeal might not be timely because it was not taken within ten days, as required by Rule 37 of the F.R.Crim.P. We need not consider the applicability of Buie 37, or any related problems of finality in this case. The same District Judge whose order is appealed herein granted appellant petition for leave to appeal in forma pauperis. As 18 U.S.C. § 3146(e) provides that the Judicial Officer imposing conditions of release may at any time amend Ms own order, the Judge’s granting of an appeal can be taken as a reaffirmance of his prior order, and, in that event, under any standard, appeal is timely.
. 18 U.S.C. § 3147(a) (Supp. II, 1965-66).
. Shackleford v. United States, 127 U.S.App.D.C. 285, 383 F.2d 212 (1967).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_amicus
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine or not there was any amicus participation before the court of appeals.
In re William B. SHAMBLIN; Grace G. Shamblin, Debtors. PHOENIX BOND & INDEMNITY COMPANY; Stanford D. Marks; Debois Investment Group, Inc., Appellants, v. William B. SHAMBLIN; Grace Shamblin, Appellees.
No. 88-5840.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 6, 1989.
Decided June 30, 1989.
As Amended on Denial of Rehearing and Rehearing En Banc Nov. 22, 1989.
Russell H. Rapoport, Encino, Cal., for appellants.
Gerard C. Heldrich, Jr., Chicago, Ill., for appellees.
Before WRIGHT and FARRIS, Circuit Judges, and SMITH, District Judge.
The Honorable Fern M. Smith, United States District Judge for the Northern District of Cali; fornia, sitting by designation.
EUGENE A. WRIGHT, Circuit Judge.
Phoenix Bond & Indemnity Company, Stanford D. Marks, and DeBois Investment Group, Inc., appeal the decision of the Bankruptcy Appellate Panel. The panel reversed the bankruptcy court’s refusal to set aside the tax sale of Grace Shamblin’s real property. The panel also granted the tax sale purchaser a lien on the property to the extent of present equivalent value given. We reverse the panel’s grant of a lien to the tax sale purchaser. We affirm the panel’s decision in all other respects.
FACTS
Grace and William Shamblin filed a voluntary Chapter 11 bankruptcy petition in California on February 2, 1982. When the Shamblins filed for bankruptcy, Grace Shamblin owned an apartment building in Cook County, Illinois, on which she owed back taxes. The Shamblins failed to notify the Cook County Recorder’s Office of their bankruptcy, although they later amended their bankruptcy schedule to include the Cook County Assessor as a creditor.
Stanford D. Marks is principal shareholder and principal operating officer of Phoenix Bond & Indemnity. Marks is also the managing officer and a director of DeBois Investment Group, Inc. The two firms share office space.
On February 22, 1982, the Circuit Court of Cook County entered judgment against Grace Shamblin’s apartment building for back taxes. The Cook County Treasurer conducted a tax sale on May 19, 1982. Phoenix Bond & Indemnity paid $24,430.85 in back taxes, interest, and costs and received a Certificate of Purchase. Neither the Cook County officials nor Phoenix knew of the Shamblins’ bankruptcy at that time.
A Phoenix employee received notice of the Shamblins’ bankruptcy no later than May 22, 1984. Illinois law provides a two year redemption period for property sold at tax sales. This period expired on May 21, 1984. On May 22, 1984, Phoenix assigned its Certificate of Purchase to Debois. After discovering the pending bankruptcy, the Cook County state’s attorney demanded that DeBois return the Certificate of Purchase. DeBois refused. On May 30, 1984, Phoenix, through Stanford Marks, filed an application for an order directing the county clerk to issue a tax deed. Although it is unclear exactly when Marks personally received notice of the bankruptcy, he knew unequivocally of the Shamb-lins’ bankruptcy by June 25, 1984, when he received the Shamblins’ complaint in their bankruptcy court action to set aside the tax sale. Nevertheless, on July 3, 1984, when Marks argued on behalf of the Phoenix/De-bois tax deed in Cook County Circuit Court, he informed the court of the Shamblins’ possible bankruptcy, but said he was speaking from “second-hand information.” The tax deed was issued to DeBois on July 6, 1984.
The Shamblins filed this action in bankruptcy court on June 13, 1984 requesting that the court set aside the tax sale. Phoenix and Marks filed a joint answer on July 18, 1984. The bankruptcy court refused to set the sale aside, holding that the Shamb-lins’ action was untimely under 11 U.S.C. § 549(d)(1). The court held also that even though the sale violated the automatic stay of 11 U.S.C. § 362, the sale was voidable only during the two year redemption period for tax sales under Illinois law. The bankruptcy appellate panel reversed, holding that both the tax sale and the tax deed violated the automatic stay and were therefore void. Finding that Phoenix was a good faith purchaser for value, however, the panel granted Debois, Phoenix’s successor in interest, an 11 U.S.C. § 549(c) lien against the property.
I. Mootness
Phoenix, Marks, and DeBois argue that the Shamblins’ failure to obtain a stay pending appeal from the bankruptcy court order makes the appeal moot. “Bankruptcy’s mootness rule applies when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets.” In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir.1988). However, the rule operates only when a purchaser bought an asset in good faith. Id. at 1173. Lack of good faith includes fraudulent behavior or an attempt to take unfair advantage. See id.; In re Suchy, 786 F.2d 900, 902 (9th Cir.1985).
The tax deed was not obtained in good faith. Phoenix, Marks, and DeBois all had notice of the bankruptcy before the tax deed proceeding. They refused to return the Certificate of Purchase to Cook County authorities, they did not attempt to resolve the possible violation of the bankruptcy stay until after the deed was issued, and they made misleading statements to the court to obtain the order to issue the deed. The mootness rule does not apply.
II. Section 362 Automatic Stay
A. The May Tax Sale
The BAP held correctly that the tax sale was void from the outset. 11 U.S.C. § 362 provides that a petition in bankruptcy operates as a stay on any act to create, perfect, or enforce any lien against property of the bankruptcy estate. Judicial proceedings in violation of this automatic stay are void. In re Stringer, 847 F.2d 549, 551 (9th Cir.1988). In Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940), several mortgagees sought to confirm a sheriff’s sale of a farm owned by persons with petitions pending in bankruptcy court. The Court stated:
Because that State court had been deprived of all jurisdiction or power to proceed with the foreclosure, the confirmation of sale, the execution of the sheriff’s deed, the writ of assistance, and the ejection of appellants from their property— to the extent based upon the court’s actions — were all without authority of law.
308 U.S. at 443, 60 S.Ct. at 348. We decline to depart from this well established rule.
Numerous federal courts have followed Kalb and held tax and foreclosure sales in violation of the automatic stay to be void. See Richard v. City of Chicago, 80 B.R. 451, 453 (N.D.Ill.1987) (Illinois tax sale); In re Greer, 89 B.R. 757, 759 (Bankr.S.D.Ill.1988) (Illinois tax sale); In re Young, 14 B.R. 809, 811 (Bankr.N.D.Ill.1981) (Illinois tax sale); cf. In re Dennis, 14 B.R. 125, 126-27 (Bankr.E.D.Pa.1981) (sheriff’s sale under Pennsylvania law). We agree.
Appellants Phoenix, Marks and DeBois argue that the bankruptcy court retroactively annulled the stay, thereby validating the tax sale. The bankruptcy court judgment discusses annulling the automatic stay, but the court’s decision appears to rest on 11 U.S.C. § 549(d)(1) and the lapse of the two-year redemption period.
Even if the bankruptcy court had annulled the stay retroactively, the BAP correctly held that the court would have abused its discretion by doing so. We need not decide whether equitable principles may, in a proper case, justify retroactive annulment of the automatic stay. In this case, equity favors enforcement rather than annulment of the stay. Any equitable exception to the automatic stay should be narrow and applied only in extreme circumstances. See, e.g., Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (refusing, due to laches, to nullify a nearly three-year-old state court order declaring the validity of a land sale contract).
The appellants’ behavior regarding the tax deed proceeding borders on bad faith. The equities therefore favor the Shamblins. Appellants claim that the stay should be annulled retroactively for purposes of the tax sale alone, which they claim was accomplished in good faith. However, issuance of the tax deed was inextricably intertwined with the tax sale proceeding. We decline to view separately the behavior surrounding these two events.
B. The Tax Deed Proceeding
The BAP correctly held that the tax deed proceeding was void due to the invalid tax sale. We agree with the analysis of this issue in Richard v. City of Chicago, 80 B.R. at 452-53. The facts in Richard were similar to this case and, like this case, Richard involved Illinois law. In Richard the purchaser argued that the tax sale was a voidable act ratified when the debtor let the two-year statutory redemption period lapse. The court rejected this argument, holding the tax sale void. Id. at 453. It further held invalid the tax deed issued because of the void tax sale. Id. at 455; see also In re Young, 14 B.R. at 812 (enjoining purchaser at tax sale from seeking issuance of tax deed because sale, conducted in violation of automatic stay, was null and void); cf. In re Wheeler, 5 B.R. 600, 603-04 (Bankr.N.D.Ga.1980) (holding delivery of deed, acceptance of check, and recording of deed all void actions and without legal effect) (Georgia law).
The decisions cited by Phoenix, Marks, and DeBois and relied on by the bankruptcy court involve facts different from this case. All involve situations where the bankruptcy petition was filed during the statutory redemption period. See, e.g., In re Tynan, 773 F.2d 177, 179 (7th Cir.1985) (Wright, J.); In re Martinson, 731 F.2d 543, 544 (8th Cir.1984); Johnson v. First Nat’l Bank, 719 F.2d 270, 272 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); In re Tabor Enters., Inc., 65 B.R. 42, 44 (Bankr.N.D. Ohio 1986) (under Illinois law). The Shamblins filed their petition well before the tax sale occurred.
The equities surrounding the tax deed proceeding also weigh against the appellants. They could have sought relief from the automatic stay before committing acts that violated it. See Richard, 80 B.R. at 453 n. 2, 455. Instead, they refused to return the Certificate of Purchase, continued with the tax deed proceeding, and misled the court regarding the bankruptcy.
III. Section 5^9
Appellants claim that, under 11 U.S.C. § 549, the tax sale should be allowed to stand despite violation of the automatic stay. 11 U.S.C. § 549(a) states a general rule permitting the trustee in bankruptcy (or debtor-in-possession) to avoid certain transactions. It provides: Postpetition transactions.
(a) Except as provided in subsection (b) and (c) of this section, the trustee may avoid a transfer of property of the estate:
(1) that occurs after the commencement of the case; and ...
(2) ... that is not authorized under this title or by the court.
(emphasis added). The remaining subsections provide exceptions to the general rule that unauthorized transfers of property may be avoided. Appellants claim the tax sale falls within the exceptions in § 549(c) and (d). Subsection (c) provides an exception for certain good faith purchasers. When the good faith purchaser has paid less than present fair equivalent value for the property, subsection (c) grants the purchaser a lien on the property to the extent of present equivalent value given. Subsection (d) precludes the commencement of § 549 actions beyond the earlier of two years after the date of the transfer sought to be avoided and the time the case is closed or dismissed.
Section 549 does not apply. The tax sale as conducted under Illinois law was not a “transfer of property of the estate” under § 549. See Richard, 80 B.R. at 454-55 (tax sale does not transfer property, but a claim against the property); In re Young, 14 B.R. at 812 (tax sale transfers only a chose in action) (both cases eonstru-ing Illinois law). Because an Illinois tax sale gives the purchaser only a lien on the property, see Cook County Collector v. ABA Gen. Contractors & Businesses, Inc., 135 Ill.App.3d 901, 90 Ill.Dec. 542, 547, 482 N.E.2d 361, 366 (1985), the purchaser does not obtain a transfer of property of the estate, but obtains only a claim against it. Because the tax sale was not a “transfer of property of the estate” under subsection (a), none of the provisions of § 549 apply. The exceptions to § 549, including the provision granting a lien to certain good faith purchasers, cannot, therefore, apply. CONCLUSION
The tax sale and subsequent tax deed violated the automatic stay and are void. Section 549 does not apply to the tax sale because it is not a “transfer of property of the estate” under subsection (a). Because we conclude that § 549 does not apply, we REVERSE the BAP’s determination that DeBois has a lien on the subject property under § 549(c). We AFFIRM the panel’s decision in all other respects.
. The mootness rule also does not apply to the May tax sale because of a two-year redemption period under Illinois law. See In re Onouli-Kona Land Co., 846 F.2d at 1173 ("To the extent that a sale is subject to rights of redemption, the sale is not truly final.").
. The case arose under the predecessor statute to 11 U.S.C. § 362(a).
. Whether the bankruptcy court may annul the automatic stay retroactively is an open question in this circuit. Compare In re Mellor, 734 F.2d 1396, 1402 (9th Cir.1984) ("[W]e do not reach the serious question which is presented where a bankruptcy court purports to annul an automatic stay in order to attempt retroactively to validate a void state court judgment.") with Alger-an, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1425 (9th Cir.1985) ("Algeran's position that an automatic stay cannot be lifted so as to validate a sale made while the stay was enforced, is without merit.”).
. Mrs. Shamblin, a debtor-in-possession, is regarded as a trustee for § 549(a) purposes. See In re Dant & Russell, Inc., 853 F.2d 700, 703 n. 2 (9th Cir.1988).
. The Shamblins argue that § 549 should not apply because the tax sale and tax deed issuance are void for violating the automatic stay. Because we decide that § 549 does not apply for other reasons, we need not resolve that difficult question. Cf. In re Brooks, 871 F.2d 89, 90 n. 1 (9th Cir.1989). We also do not address whether a party may use § 549 as a defense where the trustee or debtor-in-possession has not raised that section as a basis for avoiding a post-petition transaction.
. The Code in effect at the time of this case defined "transfer” as:
every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest, (emphasis supplied)
.This court has consistently treated the creation of liens on the debtor’s property as a transfer. See, e.g., In re Wind Power Systems, Inc., 841 F.2d 288, 291-92 (9th Cir.1988); Bass v. Stodd, 357 F.2d 458, 464-65 (9th Cir.1966). These cases, however, define "transfer” in the context of pre -petition, as opposed to post -petition, transactions. The Shamblins and their creditors were fully protected against the post-petition creation of a lien under § 362(a)(4). “Transfer" under § 549, therefore, need not include the lien created by the Illinois tax sale.
Question: Was there any amicus participation before the court of appeals?
A. no amicus participation on either side
B. 1 separate amicus brief was filed
C. 2 separate amicus briefs were filed
D. 3 separate amicus briefs were filed
E. 4 separate amicus briefs were filed
F. 5 separate amicus briefs were filed
G. 6 separate amicus briefs were filed
H. 7 separate amicus briefs were filed
I. 8 or more separate amicus briefs were filed
J. not ascertained
Answer:
|
sc_lcdisagreement
|
B
|
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.
PLUMBERS, STEAMFITTERS, REFRIGERATION, PETROLEUM FITTERS, AND APPRENTICES OF LOCAL 298, A. F. OF L., et al. v. COUNTY OF DOOR et al.
No. 396.
Argued March 26, 1959.
Decided May 4, 1959.
David Previant argued the cause for petitioners. .With him on the brief were Martin P. O’Donoghue and William J. Duffy.
Donald J. Howe argued the cause for respondents. With him on the brief were George E. Frederick and John H. Wessel.
Solicitor General Rankin, Jerome D. Fenton, Thomas J. McDermott and Dominick L. Manoli filed a brief for the National Labor Relations Board, as amicus curiae.
Opinion of the Court by
MR. Justice Black,
announced by Mr. Justice Douglas.
. Respondent, County of Door, Wisconsin, is a municipal corporation; petitioners are a Plumbers’ Union Local and a Council of Trade Unions. The County hired respondent Oudenhoveri to do the general contracting work on an addition to the Door County Courthouse. At the same time some eight contracts covering specific items of construction were entered, into by. the County with various other firms. Among the contractors was respondent Zahn who had successfully bid for the plumbing work in the project. Unlike the other successful bidders, however, Zahn employed nonunion labor. This disturbed the Plumbers’ Union which attempted to induce him to sign a union agreement. After Zahn refused, a picket was assigned to walk around the courthouse carrying a placard which stated that nonunion workers were employed on the project. The picketing, though peaceful, effectively' stopped all the work since union members employed -by other contractors refused to cross the picket line.
To end the interruption respondents Door County, Zahn, and Oudenhoven sought an injunction in the local Circuit Court. ‘ Petitioners defended by claiming, among other things, that under the National Labor Relations Act the state courts had no jurisdiction and that the controversy was exclusively subject to National Labor Relations Board control. The trial court, believing that interstate commerce was not affected by the dispute, denied that the Board had jurisdiction and held that state power existed.. It found that state law had been violated by the picketing and issued an injunction. On appeal, the Wisconsin Supreme Court affirmed. - 4 Wis. 2d 142, 89 N. W. 2d 920. It apparently disagreed with the basis of the lower court’s holding and assumed that the dispute did affect interstate commerce, but held that the N. L. R. B. had no jurisdiction because Door County, a governmental subdivision, was among those seeking relief. Since the N. L. R; B. had no power, the court ruled, state laws were not pre-empted and the injunction could stand. Under similar circumstances both the National Labor Relations Board and the. United States Court of Appeals for the Third Circuit have concluded that the N. L. R. B. has jurisdiction. We granted certiorari to resolve this conflict. 358 U. S'. 878.
There can be no doubt that were Door County not a party to the litigation state courts would have no power over the dispute. The stipulated facts show that the total cost of the project was about $450,000. Roughly half of this was the cost of materials brought from outside Wisconsin. On similar facts this Court has often found a sufficient effect on commerce to give the N. L. R. B. jurisdiction. See, e. g., Labor Board v. Denver Bldg. & Constr. Trades Council, 341 U. S. 675, 683-684. We see no reason to deviate from those holdings. It is also admitted that the dispute here involved is the kind over which the Labor Board normally has exclusive power. Respondents allege an attempt to force Zahn and the County to stop doing business with each other or, alternatively, to coerce Zahn into making his employees organize á union shop. Both of these allegations, if proved, would constitute unfair labor practices under § 8 (b) (4) of the National Labor Relations Act. If the charges are not proved the conduct might well.be “protected” under .§ 7 of the Labor Act. In either case this Court has held that the determination must be made by the N. L. R. B. and. that “state [courts] must decline jurisdiction in deference to the tribunal which Congress has selected. . . .”
It is claimed, however, that the presence of Door County somehow deprives the Board of jurisdiction and re-establishes state power. This contention is based on the fact that political subdivisions are expressly excluded from the definition of “employer” in the Labor Relations Act and therefore are not subject to many of its provisions. To allow the County to file a complaint against the union would, it has been argued, give the County the advantages of the Labor Relations Act without subjecting it to the correlative responsibilities the statute imposes.
In Local 25, Int’l Bro. of Teamsters v. New York. N. H. & H. R. Co., 350. U. S. 155, we decided that a railroad could seek relief before the Board although railroads, like political subdivisions, are' expressly excluded from the term “employer” in the Act. Our opinion pointed out that “the N. L. R. B. is empowered to issue complaints whenever ‘it is charged’ that' any person subject to the Act is engaged in any proscribed unfair labor practice,” and that Board regulations allow such a charge to be filed by “any person” as defined in the Act, 350 U. S., at 160. “Since railroads are not excluded from the Act’s definition of ‘person’ ...” we held that “they are entitled to Board protection from the kind of unfair labor practice proscribed by' § 8 (b)(4)(A),” reasoning that this result would best effectuate congressional policies of uniform control over labor abuses and protection of the parties injured by such practices. Ibid. .
The position of a county and á railroad would seem to be identical under, the Act, and the policy considerations which guided us in Local 25, like the statutory language there construed, would seem to apply equally here. Respondents attempt to distinguish the case by claiming that a political subdivision must be expressly included in a statute if it is to be considered within the law’s coverage and that essential state functions will be impaired if the county is subjected to N. L. R. B. coverage. But this Court has many times held that, government bodies not expressly included in a federal statute may, nevertheless, be subject to the law. And Board jurisdiction to grant relief, far from interfering with county functions, serves to safeguard the interests of such political subdivisions. Accordingly, we find neither of respondents’ contentions convincing.
We do not, of course, attempt to decide whether the Union’s conduct in this dispute violates §8 (b) (4), is protected by § 7, or is covered by neither provision of the Labor Act. Those are questions for the Board to determine in a proper proceeding brought before it. See, e. g., Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 481. We merely hold that the Board has jurisdiction in this case and that, therefore, it was error for the Wisconsin courts to exercise jurisdiction.
The judgment of the Supreme Court of Wisconsin is reversed and the cause is remanded to that court for action not inconsistent with this opinion.
Reversed and remanded.
61 Stat. 136,, as amended, 29 U. S. C. §§ 151-168.
Labor Board v. Local 313, Int’l Bro. of Elect. Workers, 254 F. 2d 221, affirming Peter D. Furness, 117 N. L. R. B. 437. See also New Mexico Bldg. Branch, Assoc. Gen. Contractors, CCH 1957-1958 Labor L. Rep. (4th ed.) ¶ 55,304; Freeman Constr. Co., CCH 1957-1958 Labor L. Rep. (4th ed.) ¶ 55,353.
Section 8 (b)£4) provides in part: “It shall be an unfair labor practice for a lafc'or organization or its agents ... to engage in, or to induce or encourage the employees of any employer to engage in . . . a strike . . . where an-object thereof is: (A) forcing or requiring . . . any employer or. other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor,.-or manufacturer, or ,to cease doing business with any other-person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been .certified as the representative of such employees . . . .” 61 Stat. 141, 29 U, S. C. §158 (b) (4).
Section 7 reads: “Employees shall have the right to self-organization, to form,.join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage im other concerted activities for the purpose of collective bargaining .or other mutual aid or protection . . . .” 61 Stat. 140, 29 U. S. C. § 157.
Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 481. There is in this case no question of violence or of the power of state courts to award damages. See generally, San Diego Bldg. Trades Council v. Garmon, ante, p. 236.
“The term ‘employer’ . . . shall not include the United States or any wholly owned Government corporation,, or any Federal Reserve Bank, or any State or political subdivision thereof.” 61 Stat. 137,29 U. S. C. § 152 (2).
“The term ‘employer’ .". . shall not include . . . any person subject to' the Railway Labor Act ....’’ 61 Stat. 137, 29 U. S. C. § 152 (2). See 44 Stat. 577, as amended, 45 U. S.'C. §' 151.
29 CFR, 1958 Cum;‘Supp., §102.9, states “A charge that any person has engaged in or is engaging in any unfair labor practice affecting commerce máy be made by any. person. . . .” The definition of “person” in the regulations is the same as that in the Act itself. )29 .CFR, 1958 Cum. Supp., § 102.1. ' -
As defined in the Act, “The term ‘person’ includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” 61 Stat. 137, 29 U. S. C. § 152 (1). (Italics added.).
Significantly, before this Court’s decision in Local 25, Int’l Bro. of Teamsters v. New York, N. H. & H. R. Co., 350 U. S. 155, the. N. L. R. B. agreed with respondents that political subdivisions were not “persons” under the Labor Act, but shortly after Local 25 the Board reversed itself since it felt the basis of its prior rulings had been completely undercut by Local 25. Compare Al J. Schneider Co., 87 N. L. R. B. 99; 89 N. L. R. B. 221; Victor M. Sprys, 104 N. L. R. B. 1128, with Peter D. Furness, 117 N. L. R. B. 437; New Mexico Bldg. Branch, Assoc. Gen. Contractors, CCH 1957-1958 Labor L. Rep. (4th ed.) ¶ 55,304.
See, e. g., Ohio v. Helvering, 292 U. S. 360, 370-371 (a State is a “person” within the meaning of a federal law taxing persons engaged in the sale of liquor); United States v. California, 297 U. S. 175, 186 (a .federal statute regulating common carriers by rail applies’ to. a State); Georgia v. Evans, 316 U. S. 159 (a'State is a “person” within the meaning of the Sherman Act, and may seek relief under that statute).
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:
|
songer_usc2
|
21
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 5. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
CREAM WIPT FOOD PRODUCTS CO. v. FEDERAL SECURITY ADMINISTRATOR.
No. 10330.
United States Court of Appeals Third Circuit.
Argued Feb. 6, 1951.
Decided March 21, 1951.
Joseph G. Denny, Jr., Philadelphia, Pa., for petitioner.
John T. Grigsby, Washington, D. C. (James M. Mclnerney, Asst. Atty. Gen., Gerald A. Gleeson, U. S. Atty., Philadelphia, Pa., Frederick W. Becker, Attorney, Department of Justice, Lester R. Uretz, Attorney, Federal Security Agency, Washington, D. C., on the brief), for respondent.
Before KALODNER, STALEY, and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
We are concerned here with the propriety of an order of the Federal Security Administrator which establishes a standard of identity for salad dressing pursuant to Section 401 of the Federal Food, Drug and Cosmetic Act. Petitioner seeks to have the order set aside because the standard does not include the option which it requested of using cream and milk in substitution for part of the water normally present in the starchy paste base of salad dressing. It claims that there was “no substantial evidence of record at the hearing” before the Administrator justifying this exclusion.
Section 401 of the Act provides : “Whenever in the judgment of the Administrator such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and stánd-ard of identity, a reasonable standard of quality, and/or reasonable standards of fill of container * * *.
“In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the Administrator shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. * * * ”
It is further provided in Section 701 (e) that: “ * * * The Administrator shall base his order only on substantial evidence of record at the hearing and shall set forth as part of the order detailed findings of fact on which the order is based. * * * ” Also applicable is the requirement of Section 7 (c) of the Administrative Procedure Act that “ * * * no sanction shall he imposed or rule or order * * * issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. * * * ”
The scope of judicial review of the Administrator’s orders in this court is defined both by Section 701(f) (3) of the Federal Food, Drug & Cosmetic Act and Section 10(e) of the Administrative Procedure Act. Section 701(f) (3) provides:
“The court shall have jurisdiction to affirm the order, or to set it aside in whole or in part, temporarily or permanently. If the order of the Administrator refuses to issue, amend, or repeal a regulation and such order is not in accordance with law the court shall by its judgment order the Administrator to take action, with respect to such regulation, in accordance with law. The findings of the Administrator as to the facts, if supported by substantial evidence, shall be conclusive.”
Section 10(e) of the Administrative Procedure Act affirmatively provides for vacation of agency action which is unsupported by “substantial evidence” and adds that “in making the foregoing determinations the court shall review the whole record * *
The two statutes provide essentially the same scope for judicial review. Since the argument of this appeal, the Supreme Court has described the scope of judicial review under the provisions of the Administrative Procedure Act which are applicable to this case. It is the teaching and admonition of Universal Camera Corporation v. National Labor Relations Board, U.S., 71 S.Ct. 456, 465, (1) “that substantiality be determined in the light of all that the record relevantly presents”, (2) that administrative findings must be set aside “when the record before a Court of Appeals clearly precludes the * * * [administrative] decision from being justified by a fair estimate of the worth of the testimony of witnesses or * * * [the agency’s] informed judgment on matters within its special competence or both”, and (3) that “reviewing courts must he influenced by a feeling that they are not to abdicate the conventional judicial function”.
Thus guided, we examine the record.
The order complained of defines salad dressing as an emulsified semi-solid food prepared from edible vegetable oils, certain acidifying ingredients and a cooked or partly cooked starchy paste prepared from certain flours, in the preparation of which starchy paste, water may be added. Petitioner sought to have included in the standard an alternative authorization to use cream, milk, milk solids, or non-fat dry milk solids as a substitute for part of the water.
For many years, petitioner had marketed a product so composed as a salad dressing under the name “Cream Wipt”. It is not disputed that salad dressing containing water and small quantities of cream and milk is at least as nutritious and tasty as the product made with water alone. Beyond that, there was adequate basis for the Administrator’s finding, made on conflicting evidence, that such small amounts of cream and milk as petitioner employed in its salad dressing do not substantially improve food value or taste of salad dressing.
The exclusion of milk and cream as optional ingredients was predicated and deemed reasonable solely on a finding of the Administrator that to permit their use- “* * * would provide a basis for labeling and advertising claims as to the virtues, of these ingredients in the abstract. A truthful statement on a label that cream, milk, or nonfat dry milk solids had been added as an ingredient of salad dressing would be misleading when applied to salad' dressing containing only four percent of' nonfat dry milk solids because it would’, not furnish the pertinent information that: the small amounts added were insufficient: to affect the taste and insignificant from a. nutritional standpoint. Thus, to permit: the dairy ingredients as optional for use-in salad dressing would promote misleading labeling claims with no accompanying-consumer benefits in terms of product-improvement.”
The only testimony of record which tended in any way to support the finding was that of Henry A. Lepper, a chemist, who was chief of the Dairy and Cereals Section of the Food Division of the Food and Drug Administration. Although he made the point several times, Lepper stated no more in substance than that a purchaser of salad dressing containing five percent or less milk or cream which was labeled as containing milk or cream without indicating the amount of milk or cream contained therein would be misled even though the statement was truthful. No basis whatever was offered for this opinion.
Although Lepper was identified as “a government chemist with 37 years of experience in food law enforcement”, nothing appears to show expertise in customer reactions to salad dressings or to the presence of cream or milk therein. It does not appear upon what basis the witness concluded, as his testimony necessarily implies, that consumers purchasing salad dressing are influenced substantially by notions of the relative nutritive values of competitive products. Certainly, common experience leaves reason for question—not answered in this record—whether consumers may not select these savory sauces as they do condiments rather than nutrients. Moreover, the record and findings indicate that rapidity of spoilage prevents the use of large quantities of cream or milk in commercial salad dressings. The question suggests itself and remains unanswered whether this characteristic is well known to householders and whether it serves to offset any assumption they might otherwise make that a salad dressing advertised as made with cream or milk contains these constituents in large quantities or is a superior product.
Thus, the unexplained opinion of Lepper provides very slight support for a conclusion that customers would give enough attention or attach such importance to the supposed effect of cream or milk truthfully advertised as a component of salad dressing to be misled as to the virtue of the product.
Whether this evidence would suffice to support a conclusion as to customer reaction where there existed no useful record of past performance in like or similar circumstances we need not decide. In some situations it may be necessary to rely upon opinions without demonstrated basis in experience. But here petitioner had marketed products in this field containing small quantities of cream and milk for some sixteen years. The very mixture in question has a commercial history. Whatever that record would reveal as to advertising and customer reaction, such evidence is obviously of so much greater probative value than one man’s prediction of future customer reaction offered without stated basis as further to emphasize how scant is the basis of the critical findings of fact in this case. Considered alone, the evidence was of small probative value. In relation to the type of evidence reasonably anticipated in the circumstances of the case, that very slight proof must be characterized as unsubstantial.
Useful comparison may be made of Federal Security Administrator v. Quaker Oats Company, 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724, decided by the Supreme Court in 1943. There the Administrator’s order promulgating a standard for farina and enriched farina was based on confusion allegedly suffered by consumers who desired to purchase vitamin-enriched food products from the presence of large numbers of variantly enriched products. Evidence of nutritionists was introduced that consumers generally lacked knowledge of the relative value of such ingredients and combinations of them. Similar testimony was also given by “representatives of consumer organizations which had made special studies of the problems of food standardization” who, in addition testified as to consumer confusion. The court squarely held that there was substantial evidence to support the finding of consumer confusion. We are not laying a measuring rod. But the proof in the Quaker Oats case at least suggests how much more evidentiary basis findings in this field ordinarily have than was supplied here.
We have considered the whole record, the circumstances of the litigation, and the nature of the matter in controversy. In that context, we have exercised “the conventional judicial function” in an effort fairly to ascribe value to the testimony on the contested issue. Our conclusion is that the probative value of the testimony is insufficient to support the finding which depends upon it. It follows that the findings of the Administrator concerning the employment of cream, milk, and milk products in salad dressing will be set aside and the proceeding remanded to the Administrator for rehearing on this issue and reconsideration whether the optional ingredients proposed by petitioner should be allowed as alternative constituents in fixing standards of identity for salad dressing.
. 52 Stat. 1046 (1938), 21 U.S.C.A. § 341.
. 60 Stat. 237-244, 5 U.S.C.A. §§ 1001-1011.
. It is conceded that under Section 401, if the substitution of milk or cream were permitted, the Administrator would be without authority to require that the percentage of milk or cream be included in advertisement of its presence.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 5. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WILKS v. UNITED STATES.
No. 391.
Circuit Court of Appeals, Second Circuit.
June 27, 1933.
George Z. Medalie, U. S. Atty., of New York City (George B. Sehoonmaker, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Abraham J. Rosenblum, of New York City, for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
This suit was commenced in May, 1929, to recover upon a policy of war risk insurance issued to the plaintiff during his enlistment in the United States Army. He enlisted in September, 1918, served in the Field Artillery at Camp Zachary Taylor, Ky., and was honorably discharged in January, 1919. He allowed his insurance to lapse with his discharge, but he contends that he became totally and permanently disabled while the pol-iey was still in force. This the defendant denied. The issue was submitted to a jury which, after twice reporting that it was unable to agree, finally brought in a verdict for the plaintiff. At 'the conclusion of the evidence the defendant moved for a directed verdict, and the principal question presented by this appeal is whether that motion should have been granted.
There is evidence from which the jury might well have found that, when the plaintiff left the army, he had the dread disease known as multiple sclerosis. This disease first attacks the lower part of the spinal cord and ultimately invades the brain. It is usually of very slow development, but is always progressive and always incurable. It manifests itself in an impairment of control of the leg muscles, at first shown only by a slight stiffness of gait, and gradually progresses until its unfortunate victim loses all use of his legs, then of his hands, and finally the brain itself becomes involved. Dr. Hammond, a well-known neurologist, first examined the plaintiff in May, 1920. He testified that 'he then diagnosed the ease as multiple sclerosis and that he could say with reasonable certainty that it had been present from nine months to a year. Dr. MeKendree, another neurological specialist, saw the plaintiff in the autumn of 1S25. He was then “practically incapacitated.” Answering a hypothetical question based on the testimony of the plaintiff’s father that within a week after his discharge from service his son had complained of inability to use his legs and had stopped to rest in the course of a short walk, the doctor expressed the opinion that the disease was in existence at that time. Both doctors testified that the disease sometimes follows, and is thought to be caused by, some infectious disease, such as influenza. The plaintiff had had an attack of influenza at Camp Zachary Taylor in November, 1918, which confined him to quarters for three days, during which he had a fever. It is possible that this caused the multiple sclerosis with which he was later afflicted, but whether or not his disease was connected with his army service is wholly immaterial to recovery upon his policy of insurance.
To establish his right to recover, he must prove that he was totally and permanently disabled while his policy was in force. Granted that when discharged from the army he had a disease which was certain to incapacitate him in the future, partially at first and totally in time, such proof is insufficient. A condition of both total and permanent disability must exist before his policy lapsed. Eggen v. United States, 58 F.(2d) 616; 618 (C. C. A. 8); Nicolay v. United States, 51 F.(2d) 170, 172 (C. C. A. 10); United States v. McGrory, 63 F.(2d) 697, 698 (C. C. A. 1); United States v. Lumbra, 63 F.(2d) 796, 797 (C. C. A. 2). The matter chiefly in dispute is whether there was evidence from which the jury could properly find that the plaintiff was totally disabled in January, 19191. For the sixteen days immediately preceding his discharge he took part in target practice with his battery and was able to perform in his turn each assignment from gunner to battery commander, experiencing no trouble of any kind. His enlistment record reports his physical condition as good at the time of his discharge. He then returned to Columbia University to resume a course of premedieal studies. He apparently continued his studies for about a year and then withdrew. He testified that he was unable to keep up with his studies because he had difficulty with his legs. He “could stand on them but could not get around.” For a year and a half, from July, 1920, to January 31, 1922, he worked as a bookkeeper at the Chelsea Exchange Bank, receiving a salary of $75 per month. The testimony shows that, without detriment to his health, he was able to do work of this character, which permitted him to be seated most of the day. When Dr. Hammond first saw him in May, 1920, he was able to walk without using a cane, and the tremor in his right hand did not develop until more than a year thereafter. The plaintiff testified that after withdrawing from Columbia University he took an examination to teach music and held a position as a high school music teacher for a couple of years. The record does not clearly disclose the years during which he was able to do this work. He said he stopped teaching about 1925 or 1923; but probably he was confused as to the dates. He was “practically incapacitated” when Dr. Mc-Kendree saw him in 1925, and the defendant conceded that for purposes of awarding compensation he was considered totally disabled from 1924 on.
Upon this record we do not think the jury can be permitted to find that he was totally disabled in January, 1919. The regulations have defined total disability as “any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation.” By “continuously” is meant with reasonable regularity. While the difficulty with his legs developed shortly after his discharge, he was not obliged to use a cane until more than a year later, and he was able to work as a bookkeeper at least until January, 31, 1922. So far as appears, he lost no time whatever; that is, he pursued this work with reasonable regularity. Such work was not dangerous to his health and did not accelerate the progress of the disease. During this same period, or later, he also held a position as a high school music teacher. The gallant effort of this young man to continue as long as possible in remunerative employment must necessarily stir one’s admiration and sympathy, but it cannot be allowed to blind us to the conclusion that during this period he was not totally disabled. He was but partially and permanently disabled, even though total permanent disability was certain to come thereafter. He did not prove that the contingency insured against occurred while the policy was in force. Consequently the defendant’s motion for a directed verdict should have been granted. See Gregory v. United States, 62 F.(2d) 345 (C. C. A. 4); United States v. Diehl, 62 F.(2d) 343 (C. C. A. 4); United States v. Seattle Trust Co., 53 F.(2d) 435 (C. C. A. 9) ; United States v. McLaughlin, 53 F.(2d) 450 (C. C. A. 8); and cases supra.
The other errors assigned by the appellant may be disposed of very briefly. Complaint is made that the plaintiff’s father was allowed to recite certain statements made by the plaintiff in the course of a short walk during which he stopped and leaned against a gate for support. They were challenged as hearsay. Some of the statements represented spontaneous expressions of mental or physical condition accompanying the occurrence, and so were within a recognized exception to the hearsay rule. See Proechel v. United States, 59 F.(2d) 648, 650 (C. C. A. 8); United States v. O’Brien, 51 F.(2d) 37, 41 (C. C. A. 4); Wigmore, Evidence (2d Ed.) §§ 1714-18. One or two appear to be narrative responses to the father’s questions. They might better have been excluded, but they added so little to the spontaneous exclamations that no prejudicial error is apparent. Nor do we see anything seriously prejudicial in the form of the charge respecting preponderance of the evidence and the finding of a verdict for the plaintiff even though the jury entertained considerable doubt. But for the error first discussed the judgment must be reversed and the cause remanded for a new trial. -
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_post_trl
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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".
BOOMHOWER, Inc., Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY and Dennis J. Kane, Appellees.
No. 13821.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 9, 1957.
Decided Jan. 9, 1958.
Mr. Thaddeus G. Benton, Washington, D. C., with whom Mr. Russell Hardy, Jr., Washington, D. C., was on the brief, for appellant.
Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee American Automobile Insurance Co.
Mr. Edward A. White, Washington, D. C., entered an appearance for appellee Kane.
Before Wilbur K. Miller, Washington and Danaher, Circuit Judges.
PER CURIAM.
This is a sequel to Boomhower, Inc. v. American Automobile Insurance Company, 95 U.S.App.D.C. 124, 220 F.2d 488, certiorari denied, 1955, 350 U.S. 833, 76 S.Ct. 67, 100 L.Ed. 743. Appeal is now taken from an order of the District Court in that case denying plaintiff-appellant’s motion for a new trial under Rule 60(b), Fed.R.Civ.P., 28 U.S.C.A., which alleged newly-discovered evidence. The District Court concluded that while this evidence - — which appellant argues shows perjury - — was of a character tending to impeach the testimony of a witness at the trial, it was not likely to lead to a change in the result reached.
We think the District Court did not abuse its discretion. The evidence can only doubtfully be described as newly-discovered : plaintiff-appellant could have taken the witness’ deposition or otherwise made timely discovery. Certainly the matter offered does not reach the gravity contemplated by the “any other reason justifying relief” provision of Rule 60(b) (6), even assuming that provision to be applicable here. Cf. Klapprott v. United States, 1949, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266; 3 Freeman, Judgments, § 1241 (5th ed. 1925); 7 Moore, Federal Practice, pars. 60.24, 60.-27 (1955).
Affirmed.
. See also Boomhower, Inc., v. Boomhower, 1957, 100 U.S.App.D.C. 148, 243 F.2d 254.
. This motion was filed twenty-two months after the District Court’s dismissal of the original complaint, and fifteen months after our affirmance of that dismissal.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_8_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
Colon SHOWS, (Margaret P. Shows, Administratrix of the estate of appellee Colon Shows, for substitution in the place and stead of appellee Colon Shows, deceased), Plaintiff-Appellee, v. JAMISON BEDDING, INC. and Mallon Dobbins, Defendants-Appellants.
No. 80-3517.
United States Court of Appeals, Fifth Circuit.
April 2, 1982.
Aultman & Aultman, Lawrence C. Gunn, Jr,, Hattiesburg, Miss., for defendants-appellants.
Pickering & McKenzie, Charles W. Pickering, R. Kelton Pickering, Franklin C. McKenzie, Jr., Laurel, Miss., for plaintiffappellee.
Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.
WISDOM, Circuit Judge:
This negligence case arises from a traffic accident in Mississippi. The case was tried to a jury, which returned a verdict for the defendants. On motion of the plaintiff, the district court granted a new trial. At the second trial, the jury returned a verdict of $600,000 for the plaintiff. The defendants now appeal from the judgment on the second verdict, requesting reinstatement of the first jury verdict or, alternatively, a new trial on the question of damages or a remittitur. We affirm the district court.
I. Facts and Proceedings Below
The accident occurred at about 7:30 a.m. on April 19, 1976 on the 1-59 highway in Laurel, Mississippi. The pickup truck in which Colon Shows was riding entered the highway from a cloverleaf ramp just north of the point where 1-59 forms a bridge over Highway 84. The pickup headed south along 1-59, remaining in the merging lane for 40-45 feet before moving leftward into the righthand freeway lane. At this time it was going less than the 30 m.p.h. required on freeway lanes in Mississippi, Miss.Code Ann. § 63-3-509. Shortly after entering the freeway lane, the pickup was struck from behind by an 18-wheel tractor-trailer owned by Jamison Bedding and driven by its employee, Mallon Dobbins. The pickup was thrown from the road and down an embankment.
After the accident, Shows was treated for a broken left arm, a fractured and dislocated right wrist, a broken rib, a concussion, and a deep scalp wound. A few months later he was hospitalized again for a bone graft in his left arm. He was rehospitalized a few days later, when he developed an infection in the hip from which the bone for the graft had been taken. He was hospitalized a fourth time, several months later, for surgery on his right wrist. He spent a total of about 30 days in the hospital and was off work for about two years.
Before the accident, Shows was a “working foreman” earning $14,685 a year. Afterwards, he stopped doing physical work and earned $21,091 a year as a foreman. His total lost wages were $32,704.96. Medical expenses were $11,235.33, and total special damages were thus $43,940.29.
Shows sued Jamison Bedding and Mallon Dobbins in the United States District Court for the Southern District of Mississippi. His complaint alleged that the defendants were negligent, Dobbins directly and Jamison Bedding vicariously, in that Dobbins was exceeding the speed limit and failed to keep a reasonable lookout, to have the vehicle under reasonable control, or to cut to the left or right to avoid the collision. The main issue at the first trial was the precise location of the collision. If the trucks collided on the bridge itself, immediately after the pickup entered the freeway lane, then the jury might have concluded that the pickup driver’s negligence per se in driving below the statutory minimum was the sole cause of the accident, or that he negligently shot out in front of the tractor-trailer. If they collided later, when the pickup was south of the bridge, then the pickup would have increased its speed to the legal level, and it would be highly improbable that the defendants were not at least partly responsible for the accident. The parties also disputed whether, at the time of the collision, there was another vehicle to the left of the tractor-trailer, preventing Dobbins from avoiding the collision.
The jury returned a verdict for the defendants. Upon motion by the plaintiff, the judge set aside the verdict and ordered a new trial on the grounds that the verdict was “against the clear, great, and overwhelming weight of the evidence” and so contrary to the evidence as to evince bias, passion, and prejudice on the part of the jury, and that the testimony of the defendant, Dobbins, was so contradictory of his previous statements and deposition, and so contrary to physical laws and facts, as to be incredible.
At the second trial the jury returned a verdict for the plaintiff and awarded him $600,000 in damages. The defendants moved for judgment notwithstanding the verdict, or in the alternative for a new trial or a remittitur. The court denied the motions, and the defendants appealed, requesting reinstatement of the initial jury verdict in their favor or, alternatively, a new trial on the question of damages or a remittitur.
II. The New Trial Order
A. The Legal Standard
The decision to grant or deny a motion for a new trial is generally within the sound discretion of the trial court, and reversible only for an abuse of that discretion. 6A Moore’s Federal Practice ¶ 59.-08[5] at 59-156 to 163; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2812 at 118-19 (1973). This deferential standard of review has largely arisen from the consideration of cases in which motions for new trials have been denied. See Taylor v. Washington Terminal Co., D.C.Cir. 1969, 409 F.2d 145, 148 (Wright, J.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85. When the trial judge has refused to disturb a jury verdict, all the factors that govern our review of his decision favor affirmance. Deference to the trial judge, who has had an opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, operates in harmony with deference to the jury’s determination of the weight of the evidence and the constitutional allocation to the jury of questions of fact. Id.; Massey v. Gulf Oil Corp., 5 Cir. 1975, 508 F.2d 92, 94-95, cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57. When the trial judge sets aside a jury verdict and orders a new trial, however, our deference to him is in opposition to the deference due the jury. Consequently, in this circuit as in several others, we apply a broader review to orders granting new trials than to orders denying them. Conway v. Chemical Leaman Tank Lines, Inc., 5 Cir. 1980, 610 F.2d 360, 362 (per curiam). And where a new trial is granted on the ground that the verdict is against the weight of the evidence, we exercise particularly close scrutiny, to protect the litigants’ right to a jury trial. Massey, 508 F.2d at 95.
In a further effort to prevent the trial judge from simply substituting his judgment for that of the jury, we require that new trials should not be granted on evidentiary grounds “unless, at a minimum, the verdict is against the great — not merely the greater — weight of the evidence”. Conway, 610 F.2d at 363 (citing Spurlin v. General Motors Corp., 5 Cir. 1976, 528 F.2d 612, 620). This standard, of course, is lower than that for a directed verdict or a judgment notwithstanding the verdict. United States ex rel. Weyerhaeuser v. Bucon Construction Co., 5 Cir. 1970, 430 F.2d 420, 423. A verdict can be against the “great weight of the evidence”, and thus justify a new trial, even if there is substantial evidence to support it. Id.; see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 at 43 (1973). The trial court in passing on a motion for a new trial need not take the view of the evidence most favorable to the verdict winner, but may weigh the evidence. Bazile v. Bisso Marine Co., Inc., 5 Cir. 1979, 606 F.2d 101, 105, cert. denied, 1980, 449 U.S. 829, 101 S.Ct. 94, 66 L.Ed.2d 33; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 at 44-45 (1973). This does not mean that a judge may order a new trial, simply because he disagrees with the jury verdict. He must be convinced that the verdict is against the great weight of the evidence.
On appeal, we review the evidence closely to ensure that this standard has been met. We have also considered three factors that militate against new trials and require a particularly searching review of the evidence: simplicity of the issues; the extent to which the evidence is in dispute, and the absence of any pernicious or undesirable occurrence at trial. Conway, 610 F.2d at 363; Spurlin, 528 F.2d at 620. When all three factors are present, our deference to the jury is reinforced by our confidence in its ability to understand the issues, to evaluate credibility and sort through conflicting testimony, and to act reasonably and fairly in the absence of prejudicial influences. In this situation there is little, if any, need to defer to the judge as against the jury, and we will not affirm an order granting a new trial unless on review we are satisfied, independently, that the jury verdict was against the great weight of the evidence. When one or more of these factors are absent, however, our “great deference to the court’s firsthand experience of the witnesses, their demean- or, and the context of the trial”, King v. Exxon Co., 5 Cir. 1980, 618 F.2d 1111, 1116, takes on special importance, and we will affirm a new trial order even if on our own review of the “cold record” we are not convinced that the jury verdict was against the great weight of the evidence. It is enough in this situation that, in view of possible considerations not apparent from the written record, we can perceive a sound basis for the trial judge’s finding the verdict against the great weight of the evidence. See 13 Stan.L.Rev. 383, 386 (1961).
The “great weight of the evidence” standard is not easily met. And our standard of review on appeal in cases of this type is also a strict one, whether or not the three factors referred to above are present. Still, even when all three factors are present, the standard is not impossible to meet, and we have frequently affirmed orders granting new trials on purely evidentiary grounds. See, e.g., United States v. Horton, 5 Cir. 1980, 622 F.2d 144 (per curiam); Bazile; Massey; Weyerhaeuser. In the present case, the plaintiff urges us to find that the issues in the case were complex, that the evidence was hotly disputed, and that the trial was tainted with “pernicious occurrences”. Agreement with the plaintiff on any of these points, of course, would lead us to review the district court’s action under something less than the strictest standard described above. On our own review of the evidence, however, we agree with the district court that the verdict at the first trial was against the great weight of the evidence, and we therefore need not decide the plaintiff’s contentions.
. B. Thp Evidence
On the issue of liability at the first trial, the plaintiff introduced physical evidence and the testimony of four witnesses. The physical evidence consisted of plats of the accident scene and photographs of both the scene and the pickup. The plats showed that the distance from the entrance ramp where the pickup entered the highway to the north end of the bridge is 167 feet and that the bridge is 125 feet long. The photographs of the scene showed skid marks south of the bridge but none on the bridge itself. The photographs of the pickup showed a dent on the left side of the rear of the truck.
James Creel was the driver of the pickup in which the plaintiff was riding. He testified that when he reached the top of the cloverleaf ramp, he saw the defendants’ truck 900 to 1,000 feet to the north, heading south. Tr. II, 168. He remained in the merging lane for about 15 yards and then entered the righthand freeway lane, at about 15 m.p.h. II, 168-69, 192. He testified that there was only one collision and that it occurred about 159 feet south of the bridge. II, 195-196. At the time of the collision he was going about 35 m.p.h. II, 200. Creel observed no other vehicle in the immediate vicinity of the defendant. II, 172.
Don Alan Sumrall, a patrolman with the Mississippi Highway Patrol, was driving north on 1-59 when the accident occurred. He testified that he passed the pickup in which the plaintiff was riding as he crossed the bridge. II, 83. At this time the defendants’ truck, according to Sumrall, was 1,000 feet away. II, 104. His radar subsequently picked up a speeding alarm from the defendants’ truck, which it showed to be going 68 m.p.h. II, 88. After passing the defendants’ truck, Sumrall was stopped by Kenneth Ishee, one of the plaintiff’s other witnesses, who reported the accident. Sumrall returned to the scene, where he found the pickup about 60 feet off the side of the road, 30 feet down an embankment. II, 91. He also found skid marks and debris south of the bridge, but none on the bridge. I, 94, 98. The defendants’ truck was pulled over to the side of the road 600 feet south of where the pickup left the highway. II, 99.
Kenneth Ishee was a high-school student, on his way to school when the accident occurred. He had entered 1-59 northbound from the cloverleaf ramp and saw the pickup at the south end of the bridge, going 40-50 m.p.h. II, 142-44. He testified that the defendants’ truck entered the bridge from the north at about the same time as he entered it from the south. II, 143. The tractor-trailer was going about 70 m.p.h. II, 146. As he proceeded northward, he saw the collision behind him, 200-300 feet south of the bridge. He observed no other vehicle in the immediate vicinity of the collision. II, 147. Ishee caught up with Officer Sum-rail and reported the collision.
Percy Young, a member of the Laurel Police Force, was the investigating officer. When he arrived at the scene he found skid marks and debris south of the bridge. II, 130. He paced off the distance from the south end of the bridge to the beginning of the skid marks, which Dobbins identified as having been left by his truck, and found the distance to be about 140 feet. II, 121. He measured the skid marks, and they were 119 feet long. II, 120. He also found scuff marks beginning at about the middle of the skid marks. II, 129, 131. Young questioned both drivers, and Dobbins told him that he had hit the pickup at about the middle of the skid marks (or 200 feet south of the bridge). II, 130. Dobbins also told Young that the pickup had just stopped in front of him, and that another vehicle on his left made it impossible to avoid colliding. Id.
The defendants introduced three witnesses on the question of liability: Dobbins, the driver-defendant; Ron Cheatham, a USM football coach who was driving behind Dobbins at the time of the collision; and Donis Collins, a Laurel policeman, who assisted Patrolman Young in investigating the accident.
Dobbins testified that he was crossing the bridge at about 54-55 m.p.h., when the pickup shot out in front of him, about midway across the bridge, and they collided. Ill, 436, 437, 439. He stated that he tried to swerve to the left but was unable because a car was passing him in the lefthand lane. Ill, 437. After straightening out his rig, he applied his brakes but was unable to avoid the collision. Ill, 438. According to Dobbins, he could not apply his brakes while trying to swerve, because this would have caused his rig, which had separate brakes for the tractor and the trailer, to jackknife. Id. He also testified that it is common, in view of the way tractor-trailer brakes function, for a truck not to begin skidding for some distance after the brakes are initially applied, and that he had not begun to skid when he hit the pickup. Ill, 442-43.
Dobbins stated that he hit the pickup squarely from behind. Ill, 439, and that the pickup’s taillights then went on, as Creel tried to brake. Ill, 443. Dobbins then slid into the pickup, hitting it on the left rear side. Id. At the time of this second impact, Dobbins had begun to skid.
Ronald Cheatham was driving south on 1-59 when the collision occurred. Ill, 469. The Jamison truck had passed him north of the bridge and was driving- ahead of him. Ill, 470. According to Cheatham, the truck collided “as soon as [the pickup] got in the interstate”. Ill, 471. The collision was “on the bridge” or “pretty close to the bridge”. Ill, 473. Cheatham saw no vehicle in the vicinity of the Jamison truck that would have prevented it from moving to the left. Ill, 477.
Officer Collins testified that he found electrical parts, bolts, wires, and clamps from the pickup lying on the road “three or four joints” in the highway asphalt south of the bridge. Ill, 466. This would place the debris about 60 feet south of the bridge, further north than the plaintiff’s version would place the collision, but further south than the defendants’ would. Collins did not pace off the distance from the bridge to the debris. Ill, 467.
Significant problems with the defendants’ evidence support the trial judge’s grant of a new trial. The defendants’ main witness on liability was the driver, Dobbins. Yet his testimony was so riddled with inconsistencies as to be barely credible, if credible at all. Moreover, neither of the defendants’ other liability witnesses fully supported Dobbins’s account.
Dobbins’s testimony that he hit the pickup twice is inconsistent with his statement at the scene of the accident that there was only a single impact, south of the bridge. See II, 130. Both statements contradict his statement at deposition that there was a single impact, on the bridge. Dep. 10, 38; II, 45. And his testimony that he initially hit the pickup “straight on”, at highway speeds, while the pickup was either stopped or moving slowly, is inconsistent with his testimony that the pickup’s tail-lights subsequently came on, and with the damage to the pickup, which was dented only on the left side. In the light of these and other contradictions, and the fact that Dobbins is a defendant in the case, we must agree with the district court that Dobbins’s testimony could not be the basis of a verdict for the defendants.
The defendants argue, in their reply brief, that Dobbins’s testimony can be “completely ignored”, and Cheatham’s testimony alone can support the first jury verdict. Although Cheatham testified that the collision occurred on, or near, the bridge, however, he saw no vehicle preventing Dobbins from avoiding the collision. More important, even if Cheatham’s testimony, taken in isolation, constituted substantial evidence favoring the defendants, this would not warrant reversal here. For present purposes, Cheatham’s testimony must be seen against the background of all the evidence together. And the “great weight” of the evidence contradicts Cheatham’s account.
The defendants point to several problems and inconsistencies in the plaintiff’s evidence, but none rises to the level of seriously impairing the witnesses’ credibility. Ishee, who was driving north, had passed both trucks before the collision occurred, and could thus see the collision itself only by looking over his shoulder, or into his mirror. He had passed the pickup as it was leaving the bridge, however, and could clearly see that the collision had not yet occurred. The defendants also note several contradictions between the testimony of Sumrall and Ishee concerning the distance between them, and the distance between each of them and the trucks involved in the collision. But the distances cited by Ishee and Sumrall must be taken as rough estimates made by persons who were themselves in motion at the time. Moreover, these precise distances are not critical to the plaintiff’s case. Far more important are the rough intervals at which the various vehicles passed over the bridge. Finally, the defendants point out that one of the photographs in evidence shows skid-marks closer to the bridge than the plaintiff’s witness placed them. But even this photograph does not place skid marks on the bridge, and does not support the defendants’ account of the collision.
In summary, we recognize that there may be, in Cheatham’s testimony, substantial evidence to support the first jury verdict in this case. If we were considering a directed verdict or a judgment notwithstanding the verdict, we might be required to reverse. But we agree with the district court that the testimony of Ishee, Sumrall, and Young, along with the photographs of the scene, constituted the “great weight of the evidence”, and justified the granting of a new trial.
III. The Damage Award
This court has firmly established in previous cases that it will not reverse a jury verdict for excessiveness except on “the strongest of showings”. Bridges v. Groendyke Transport, Inc., 5 Cir. 1977, 553 F.2d 877, 880. The size of the award a plaintiff is entitled to is generally a question of fact, and the reviewing court should be “exceedingly hesitant” to overturn the decision of the jury — the primary factfinder — and the trial judge who concurred with its verdict. Id. Thus, we have upheld the denial of a new trial on the question of damages even when we have disagreed with the award. See id. at 881 & n.2. We will reverse an award as excessive only when it “clearly exceeds that amount that any reasonable man could feel the claimant is entitled to”. Id. at 880 (emphasis in original). See also Bailey v. Southern Pacific Transport Co., 5 Cir. 1980, 613 F.2d 1385, cert. denied, 1980, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42. The defendants here have not satisfied this strict standard.
The dispute over the measure of damages concerns the plaintiff’s pain and suffering and, specifically, the psychological effect on him of the accident. The plaintiff introduced the testimony of his wife, daughter, family physician, and fellow workers, as well as a psychiatrist and an orthopaedic surgeon. A second orthopaedic surgeon, who examined the plaintiff at the request of the defendants’ counsel and on order of the court, also testified. The plaintiff’s evidence tended to establish that he experienced much pain during his recovery; that his disposition had changed from robust and outgoing to sullen; that he would be disabled from doing physical labor for the rest of his life; that he would have permanent pain and headaches as a result of an aggravated spinal arthritic condition; that he had become impotent, though possibly only partially; that further surgery on his wrist might be necessary, at a cost of $3000; and that he suffered a total physical impairment of 45%.
The defendants seek to discredit the plaintiff’s evidence by pointing out that some of it is nonspecific and that the psychiatrist’s testimony — the only medical testimony on impotence — was given at a deposition more than a year before the trial. But these arguments do not sufficiently discredit the plaintiff’s evidence to warrant finding that the jury was unreasonable in accepting it. We must therefore consider whether, in view of the injuries established by the plaintiff, the award of $600,000 “clearly exceeds that amount that any reasonable man could feel [he] is entitled to”.
To show that this standard is satisfied, the defendants refer us to several Mississippi cases involving smaller awards for purportedly comparable injuries. In most of these cases, however, the jury verdicts were uphold, and they thus shed no light on how high an award must be to be “excessive”. See McNair Transport, Inc. v. Crosby, Miss. 1979, 375 So.2d 985 (additur reversed); Walton v. Scott, Miss.1978, 365 So.2d 630; Swaggart v. Haney, Miss.1978, 363 So.2d 251; Arrow Food Distributors, Inc. v. Love, Miss.1978, 361 So.2d 324, cert. denied, 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39; Louisville & Nashville RR. v. Hasty, Miss. 1978, 360 So.2d 925, cert. denied, 439 U.S. 1003, 99 S.Ct. 614, 58 L.Ed.2d 679. Those cases that did disapprove awards do not support the defendants’ position. In Warner v. City of Bay St. Louis, 5 Cir. 1977, 552 F.2d 583 (per curiam), this court reduced an award because of comparative negligence, not because it was excessive in view of the injuries. In MFC Services v. Lott, Miss. 1975, 323 So.2d 81, the reviewing court granted a remittitur because the initial award was “palpably against the preponderance of the evidence”, obviously an easier standard for the defendant to meet than the one we apply. And in James Reeves Contractors, Inc. v. Chain, Miss.1977, 343 So.2d 1229, where an award of $150,000 was reduced to $100,000, the plaintiff’s special damages were about one-fourth those of the present plaintiff.
If the authority the defendants rely on were more compelling than it is, we would still not have grounds to reverse the award in this case as excessive. As the plaintiff points out, courts have frequently upheld verdicts in which pain and suffering, both mental and physical, have resulted in awards ranging from $500,000 to over $1,000,000. See, e.g., Bevevino v. Saydjari, 2 Cir. 1978, 574 F.2d 676; Frankel v. Heym, 3 Cir. 1972, 466 F.2d 1226; Garzilli v. Howard Johnson’s Motor Lodges, Inc., E.D.N.Y. 1976, 419 F.Supp. 1210; Anderson v. Sears, Roebuck & Co., E.D.La.1974, 377 F.Supp. 136. Even if we were convinced that the cases cited by the defendants were more comparable to the present case than those the plaintiff cites, our deference to the jury as the finder of fact in individual cases would make us exceedingly hesitant to reverse on this ground alone. We must conclude that the award in this case is not so excessive as to require reversal.
IV. Conclusion
Although the verdict in the first trial might have been supported by substantial evidence, we agree with the district court that it was against the great weight of the evidence and hold that it was not error to order a new trial. For the reasons discussed above, we also hold that the verdict at the second trial was not excessive and that the district court did not err in denying the defendants’ motion for a new trial or a remittitur. The judgment of the district court is therefore AFFIRMED.
. Since the plaintiff was not driving the pickup, there is no question of negligence on his part diminishing his recovery, see Miss.Code Ann. § 11-7-15. Even if the driver of the pickup was negligent, and his negligence contributed to the injury, the defendants are liable for the entire damages if their negligence contributed at all. State ex rel. Richardson v. Edgeworth, Miss. 1968, 214 So.2d 579, 588; Westerfield v. Shell Petroleum Corp., 1932, 161 Miss. 833, 138 So. 561, 562.
. The appropriate time to seek appellate review of an order granting a new trial is on appeal from a final, judgment after the second trial. See Massey v. Gulf Oil Corp., 5 Cir. 1975, 508 F.2d 92, 99, cert. denied, 1975, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57.
. Dobbins’s testimony on direct examination occupies 11 pages of the trial transcript, as compared with 7 pages for the direct testimony of both other defense witnesses together. Dobbins’s total testimony occupies 95 pages, as compared with 15 pages for the other defense witnesses. See II, i-ii.
. Since Dobbins’s statement to Officer Young was not hearsay, Fed.R.Evid. 801(d)(2), it not only impeaches his credibility, but may be taken to support the plaintiffs version of the facts.
. The plaintiffs brief alleges several other inconsistencies in Dobbins’s testimony. Although many of these allegations have merit, we need not discuss them in detail, since we find that those discussed in the text sufficiently establish Dobbins’s lack of credibility.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_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.
The OHIO CASUALTY INSURANCE CO., Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
No. 73-1435.
United States Court of Appeals, Sixth Circuit.
Submitted Dec. 7, 1974.
Decided Aug. 23, 1974.
Paul C. Weick, Circuit Judge, dissented and filed opinion.
Charles N. Myers, Jr., Hamilton, Kramer, Myers & Summers, Columbus, Ohio, on brief, for plaintiff-appellant.
Vorys, Sater, Seymour & Pease, Edgar A. Strause, Columbus, Ohio, on brief, for defendant-appellee.
Before WEICK, McCREE, and MILLER, Circuit Judges.
McCREE, Circuit Judge.
This appeal requires us to decide whether, under Ohio law, the six-year statute of limitations, governing actions upon contracts, express or implied, or the two-year statute of limitations, governing actions for bodily injury or injury to personal property, applies in an action for indemnification against an automobile manufacturer brought by an insurance company, subrogated to the rights of its insured, who was compelled to respond to third persons for personal injury and property damage allegedly caused by a defect in one of the manufacturer’s vehicles. The district court held that the two-year statute of limitations applied and dismissed the complaint on defendant’s motion. We determine that the six-year statute of limitations is applicable and reverse.
Under Ohio decisional law, which is applicable in this diversity case, “The period of limitation within which an action must be commenced is determined from the nature of the demand and the ground of the action as set out in the pleadings.” State ex rel. Lien v. House, 144 Ohio St. 238, 58 N. E.2d 675 (1944). See also Ohio Casualty Insurance Co. v. Capolino, 44 O.L. Abs. 564, 65 N.E.2d 287, 289 (1945).
The complaint alleged that the brakes on the insured’s truck failed ■ because of a defect, and that the truck went out of control and caused extensive personal injury and property damage to third persons; that Ford Motor Company, the manufacturer, was “primarily liable” for all damages; and that appellant is entitled to indemnification for payments it made in settlement of damage claims when Ford failed to act after having been given notice and an opportunity to defend.
All the settlement payments were made more than two years before the complaint was filed, but, with one exception, all were made within six years of the commencement of the action. Although the parties disagree about which statute of limitations applies, they agree that the applicable statute began to run when each payment was made. Appellant’s Brief at 6; Appellee’s Brief at 24. See 28 O.Jur.2d, Indemnity § 2. See generally 20 A.L.R. 2d 925. Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had paid the claims and sued appellee for indemnification. 50 O.Jur.2d, Subrogation § 26.
The “ground of the action pleaded,” see State ex rel. Lien v. House, supra, is “[if] one secondarily liable for a wrongful injury is compelled to respond in damages to the injured person, he may recoup his loss, upon an implied contract of indemnity, from the one who actually created the danger or perpetrated the wrong.” 28 O.Jur.2d Indemnity § 12 (emphasis added). This rule applies not only when a formal judgment is rendered, Maryland Casualty Co. v. Frederick, 142 Ohio St. 605, 53 N.E.2d 795 (1944), but also when the party vicariously or secondarily liable is compelled to settle a claim, after giving notice and an opportunity to defend to the party primarily liable. Globe Indemnity v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). And an action for indemnification based upon primary and secondary liability may be brought in Ohio whether or not there exists in fact a contractual relationship between the parties. Burns v. Pennsylvania Rubber & Supply Co., 117 Ohio App. 12, 189 N. E.2d 645, 22 Ohio Op.2d 451 (1961). See also Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568 (1952).
The cause of action for indemnification based on primary and secondary liability is considered to be an action arising under an “implied contract.” Maryland Casualty Co. v. Frederick, supra; 28 O.Jur.2d Indemnity § 12. And the Ohio courts have held that an action arising under an “implied contract” for indemnification is governed by the six-year statute of limitations. Poe v. Dixon, 60 Ohio St. 124, 54 N.E. 86 (1899); Ohio Casualty Insurance Co. v. Capolino, 44 O.L.Abs. 564, 65 N.E.2d 287 (1945); 28 O.Jur.2d Indemnity § 19, p. 326. We conclude that these authorities require reversal of the district court’s decision.
We are not persuaded by appellee’s argument that this action is governed by the two-year statute of limitations because the “real purpose” of the action is to recover for personal injury and property damage. See, e. g., Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951); Mahalsky v. The Salem Tool Company, 461 F.2d 581 (6th Cir. 1972); Tomle v. New York Central Railroad, 234 F.Supp. 101 (N. D.Ohio 1964). These cases were actions to gain compensation for personal injury or property damage. Here, the “real purpose” of the action is not to recover compensation for damage incurred in the automobile accident but, instead, to obtain indemnification for monies paid to the injured third persons who suffered the damage. This difference is dispositive. In Ohio Casualty Insurance Co. v. Capolino, supra, for example, the plaintiff insurer agreed to indemnify an employer for any loss caused by the negligence of his employees acting in the scope of their employment. Following a motor vehicle accident involving the negligence of employee Capolino, the insurance company paid a damage claim to an injured third person and then proceeded to bring an action against Capolino for indemnification on the theory that he was primarily liable. The court held the action was governed by the six-year statute of limitations for implied contracts and was not barred by the two-year limitations period governing actions for personal injury or property damage. See also Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). As in this case, the underlying basis for the implied contract of indemnification was the payment of a tort claim for personal injury and property damage arising from an automobile accident.
We reject appellee’s argument that the six-year statute of limitations governs an action for indemnification only when there is contractual privity between the parties. Although the court in Capolino mentioned the contractual relations between the negligent employee and the insured employer as one basis for the “implied contract” of indemnification, the court also relied upon the broader rule that “A person who, without fault, has become subject to tort liability for the unauthorized act and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.” Ohio Casualty Insurance Co. v. Capolino, supra 65 N.E.2d at 289 ,quoting Restatement of Restitution, p. 418. We have found nothing in Ohio law indicating that, for purposes of determining the applicable statute of limitations in indemnification actions based on primary and secondary liability, a distinction should be drawn between eases involving parties in privity of contract and those where the parties in fact have no contractual relationship. In either case, the reason for recognizing an “implied contract” of indemnification is not that an agreement to indemnify is implied in fact but, instead, that equitable principles of fairness require the party primarily liable to compensate a party only secondarily or vicariously liable who has been compelled to pay damages that the former should in equity bear. In either case, the existence or non-existence of privity of contract is immaterial in determining the applicable statute of limitations. Cf. Perry County v. Newark S. & R. Co., 43 Ohio St. 451, 2 N.E. 854 (1885); Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695 (1964).
Accordingly, we hold that under Ohio law, the six-year statute of limitations applies to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable, even if the parties are not in fact in privity of contract.
Reversed and remanded for proceedings not inconsistent with this opinion.
. Ohio Revised Code § 2305.07.
. Ohio Revised Code § 2305.10.
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_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.
George W. KRUMPELMAN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
No. 84-6512.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 1985.
Decided July 29, 1985.
John Ohanian, John Ohanian, Inc., Los Angeles, Cal., for plaintiff-appellant.
Dennis J. Mulshine, San Francisco, Cal., for defendant-appellee.
Before WALLACE, TANG and WIGGINS, Circuit Judges.
TANG, Circuit Judge.
Krumpelman brought suit in district court for review of a decision of Secretary Heckler denying disability insurance benefits. He alleged jurisdiction under 42 U.S.C. § 405(g). We affirm the district court’s grant of summary judgment in favor of the Secretary.
FACTS
On May 2, 1980, plaintiff George W. Krumpelman, a 42-year old stage technician, was injured in an accident while working with co-workers in moving heavy trees. On July 28, 1980, Krumpelman filed an application for disability insurance benefits for head, back, and neck injuries commencing on May 3, 1980. The application was denied, and on December 7, 1980, it was again denied upon reconsideration notice. Krumpelman did not seek an administrative hearing nor an appeal on this application.
On May 8,1981, Krumpelman filed a new application for disability benefits. This application again alleged the disability period commencing on May 3, 1980, and again alleged head, back, and neck injuries. This application was initially denied. On December 21, 1981, Krumpelman requested reconsideration, and indicated that he had commenced work on October 6, 1981, and therefore his application was for a closed period of disability from May 3, 1980 through October 6, 1981.
On June 8, 1983, Krumpelman appeared with counsel at an administrative hearing before AU Mallory C. Walker. The AU’s decision was adopted as a final decision of the Secretary. The AU’s decision reviews in detail the additional exhibits submitted by Krumpelman’s counsel and Krumpelman’s testimony at the June 8 hearing. The AU then lists 11 findings. These findings break down into the resolution of two major issues.
First, the AU concluded that the Secretary’s denial of the disability application of July 28, 1980, was a final decision regarding disability for the period of May 3, 1980 through the December 7,1980 date of denial. The AU concluded that because Krumpelman did not pursue administrative review of that December 7, 1980 decision, it was final, binding, and after his review of the submitted evidence found that good cause did not exist for reopening that claim.
The second grouping of findings relate to the issue of whether plaintiff proved disability from January 1981 through October 6, 1981. The AU found that Krumpelman’s impairments did not prevent all substantial gainful work activity for a continuous period of not less than twelve months. Although the AU made findings regarding the credibility of Krumpelman’s testimony and the impact of the medical evidence, it is clear from the findings and additional language in the decision that the AU found that Krumpelman could not prevail because the period of January 1981 through October 1981 failed the 12 month continuous period requirement. 42 U.S.C. § 423(d)(1)(A).
On cross-motions for summary judgment, the district court adopted a magistrate’s report and granted the Secretary’s motion for summary judgment. The Magistrate’s Report found jurisdiction improper under § 405(g), and that the period for which the prior determination was not conclusive did not meet the 12 month requirement of 42 U.S.C. § 423(d)(1)(A). Krumpelman asserts on appeal that this court has jurisdiction to review the AU’s decision, and that the AU denied him disability benefits on findings not supported by substantial evidence.
DISCUSSION
The district court has jurisdiction to review “final decisionfs]” of the Secretary under 42 U.S.C. § 405(g). “[T]he Secretary’s decision not to re-open a previously adjudicated claim for social security benefits” is purely discretionary and is therefore not considered a “final” decision within the meaning of § 405(g). Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir.1982). See Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977). District courts, therefore, have no jurisdiction to review a refusal to re-open a claim for disability benefits or a determination that such a claim is res judicata. Davis v. Schweiker, 665 F.2d at 935. Krumpelman appeals from the decision which, in part, is a refusal to re-open the prior final determination that Krumpelman was not disabled during the period of May 3, 1980 to December 7, 1980. The district court therefore correctly concluded that it lacked jurisdiction to review this determination, and that the Secretary’s prior decision was res judicata for this period. Id.
Krumpelman challenges the district court’s conclusion of lack of jurisdiction based on exceptions to the rule of Califano v. Sanders, as discussed in Thompson v. Schweiker, 665 F.2d 936 (9th Cir.1982), and McGowen v. Harris, 666 F.2d 60 (4th Cir. 1981). In Thompson v. Schweiker, this Circuit recognized that res judicata principles should not be so rigidly applied as to “contravene an overriding public policy or result in manifest injustice.” 665 F.2d at 940-41, quoting Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir.1971)). The court further held that
... [wjhere the record is patently inadequate to support the findings the AU made, application of res judicata is tantamount to a denial of due process.
Id. at 941.
The allegations and facts in the present case do not rise to the level of those in the Thompson case. Here, Krumpelman’s allegations of manifest unfairness can be summarized as follows:
(1) The AU did not notify Krumpelman that his claim might be dismissed.on the basis of res judicata.
(2) Krumpelman was denied the opportunity to rebut “adverse hearsay evidence” allegedly considered by the AU.
(3) The AU’s conclusions were not supported by the record.
The Secretary points out persuasively that Krumpelman’s claim as to lack of notification of res judicata fails because Krumpelman does not show any prejudice from the alleged failure to give notice. Second, the challenged hearsay evidence is not identified. Additionally, plaintiff’s counsel was afforded an opportunity to comment on all of the evidence in the record after the hearing. Krumpelman’s brief itself also states that the AU held two hearings and issued two decisions “fully considering every aspect of his claim based upon all the available evidence.”
Unlike in Thompson, Krumpelman was represented by counsel at the challenged hearing. There is no allegation that the AU improperly questioned Krumpelman. As stated in Davis v. Schweiker, 665 F.2d at 936, Krumpelman’s constitutional allegation is “purely conclusory, unsupported by facts, and is insufficient to withstand summary judgment.”
Krumpelman’s reliance on McGowen v. Harris, is also unavailing. In McGowen, the Fourth Circuit established a two prong inquiry for reviewing the Secretary’s dismissal of a claim on res judicata principles. First, the district court has the jurisdiction to determine, and should determine, whether the claim precluded is the same as the claim previously determined. 666 F.2d at 66. In the present case, it is clear that both claims of disability included the period of May 3, 1980 through December 7, 1980; therefore the claims were indeed the same.
The second inquiry in McGowen is whether or not the Secretary in fact reopened the claim in its consideration of the res judicata determination. Id. Only if such a re-opening occurred, could the district court have jurisdiction to review the merits of the Secretary’s determination. The McGowen court stressed that in determining whether a claim is in fact the same claim, the Secretary:
... must in fairness look far enough into the proffered factual and legal support to determine whether it is the same claim, and if so, whether it should nevertheless be re-opened as a discretionary matter.
Id. at 67. The McGowen court concluded that where the discussion of the merits is followed by a specific conclusion that the claim is denied on res judicata grounds, the decision should not be interpreted as reopening the claim and is therefore not reviewable. Id. at 68. Cf. Taylor for Peck v. Heckler, 738 F.2d 1112, 1115 (10th Cir. 1984) (holding the ALT re-opened the case because of extent of review of evidence and evidentiary hearing, and explicitly relying on lack of specific ruling on the basis of res judicata and no specific decimation to reopen the decision in the record).
This case is clearly distinguishable from the situations in McGowen and Taylor. Here, the AU explicitly found the evidence was insufficient to warrant the re-opening of the claim of disability from May 3, 1980 to December 8,1980, and explicitly declined to re-open the claim. Krumpelman has not shown a persuasive reason for diverging from the rule of Califano v. Sanders; the district court therefore did not have jurisdiction to review the AU’s decision.
Finally, Krumpelman claims “disability” for a period commencing after May 8, 1980. 42 U.S.C. § 423(d)(1)(A) defines “disability” as:
... inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months.
(emphasis added). The only period claimed by Krumpelman is from December 1980 through October 1981. This period does not meet the 12 month minimum requirement for a “disability” under § 423(d)(1)(A). The district court, therefore, did not err in granting summary judgment in favor of the Secretary on this issue.
The judgment of the district court is therefore AFFIRMED.
. AU Walker had conducted a hearing on the same petition a year earlier on June 2, 1982, at which Krumpelman appeared pro se. AU Walker had denied the application after that hearing, but the Appeals Counsel vacated Judge Walker’s decision because the wrong files and application were reviewed. The appeals counsel remanded Krumpelman’s application for further proceedings.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
GRANVILLE-SMITH v. GRANVILLE-SMITH.
No. 261.
Argued February 3-4, 1955.
Decided April 11, 1955.
Abe Fortas argued the cause for petitioner. With him on the brief were George H. T. Dudley and Milton V. Freeman.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This case concerns § 9 (a) of the divorce law of the Virgin Islands:
“Notwithstanding the provisions of sections 8 and 9 hereof, [] if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.”
The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of “irreconcilable incompatibility” in the District Court of the Virgin Islands on March 16, 1953. The complaint alleged that she had been a “resident and inhabitant” of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel — authorized by a power of attorney executed in New York — respondent entered an appearance, waived personal service, denied petitioner’s allegations, and filed a “Waiver and Consent” to “hearing of this cause as if by default” and to “such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.”
Solely on the basis of petitioner’s testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recommended that she be granted a divorce. On petitioner’s motion to confirm the Commissioner’s recommendation, the District Court inquired of petitioner’s counsel whether he had “any more evidence to offer on the question of domicile.” Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F. Supp. 878, dismissed the complaint for want of jurisdiction over petitioner.
The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F. 2d 820, on the basis of its decision in the Alton case, 207 F. 2d 667. In that case, the Court of Appeals, likewise sitting en ba’nc and three judges dissenting, held § 9 (a) in violation of “due process” guaranteed by the Fifth Amendment and the Virgin Islands Organic Act. This Court had granted certiorari in the Alton case, 347 U. S. 911, but intervening mootness aborted disposition on the merits. 347 U. S. 610. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U. S. 810. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel “to appear and present oral argument, as amicus curiae, in support of the judgment below.” 348 U. S. 885.
We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9 (a).
Article IV, § 3 of the Constitution gives the Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” Accordingly, Congress has from time to time established governments in the various territories that have come under federal control. Territorial government in the continental United States was customarily viewed as a transition step to statehood, and statehood in fact resulted. The Spanish-American War opened a new chapter. Beginning with the Treaty of Paris, the United States acquired by conquest, treaty or purchase outlying territories for which statehood was not contemplated. The position of these territories in our national scheme gave rise to lively political controversy. Answers to some of the constitutional issues that arose were unfolded in a series of decisions best formulated, perhaps, in opinions by Mr. Chief Justice White and Mr. Chief Justice Taft.
A vital distinction was made between “incorporated” and “unincorporated” territories. The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an “incorporated” territory. See, e. g., Rassmussen v. United States, 197 U. S. 516. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e. g., Balzac v. Porto Rico, 258 U. S. 298. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e. g., Balzac v. Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e. g., Downes v. Bidwell, 182 U. S. 244.
The legislative power of territories has customarily been expressed as extending to “all rightful subjects of legislation” not inconsistent with the Constitution or laws of the United States. This conventional phrasing was altered to subjects of “local application,” or “not locally inapplicable,” in the case of unincorporated territories such as pre-Commonwealth Puerto Rico, the Virgin Islands, and Guam.
The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e. g., Porto Rico v. Rosaly y Castillo, 227 U. S. 270; (2) those in which conflict was claimed with the United States Constitution or laws, e. g., Puerto Rico v. Shell Co., 302 U. S. 253; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the “rightful” nature of particular territorial legislation was assailed, e. g., Tiaco v. Forbes, 228 U. S. 549; People v. Daniels, 6 Utah 288, 22 P. 159. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e. g., Christianson v. King County, 239 U. S. 356. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U. S. 190, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces. It is significant, however, that while the litigation was in progress Congress forbade territories to pass “local” or “special” divorce laws. 24 Stat. 170, now 48 U. S. C. § 1471.
The United States acquired the Virgin Islands by purchase from Denmark in 1917, but it was not until the Organic Act of 1936 that Congress provided a complete government — including a Legislative Assembly. The Organic Act: (1) labeled the Islands an “insular possession” of the United States, 49 Stat. 1807, 48 U. S. C. § 1405a; (2) endowed the Legislative Assembly (consisting of the two pre-existing municipal councils in joint session) with power to enact laws on “all subjects of local application not inconsistent with . . . this title or the laws of the United States made applicable to said islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty entered into by the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents,” 49 Stat. 1811, 48 U. S. C. § 1405r; (3) enacted a due process clause for the Islands, 49 Stat. 1815, 48 U. S. C. § 1406g; and (4) gave the District Court jurisdiction over “[a]ll cases of divorce,” 49 Stat. 1814, 48 U. S. C. § 1406 (4).
The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the President an absolute veto over legislation. Congress had the customary reserved power to annul legislation. 49 Stat. 1810, 48 U. S. C. § 1405o.
By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks’ “residence” by an “inhabitant” sufficient for divorce jurisdiction. In 1952, the Court of Appeals for the Third Circuit construed “inhabitant” and “residence” to imply “domiciliary” and “domicile.” Burch v. Burch, 195 F. 2d 799. The legislature thereupon provided that six weeks’ “physical presence” was adequate as a basis for divorce. The Governor vetoed this amendment. To overcome the veto, § 9 (a) was enacted. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497, 48 U. S. C. A. § 1541 et seq. Previous to the legislation, this Court, on June 1, had dismissed Alton v. Alton, supra, for mootness. Though the judgment below was vacated, the Court of Appeals had expressed its views on the constitutionality of § 9 (a). Certainly no inference favorable to its validity can be drawn from the revised Organic Act.
In giving content to the power to pass legislation having “local application,” two considerations at once obtrude. The phrase most liberally interpreted can be no broader than “all rightful subjects of legislation.” Yet in the Organic Acts of the “incorporated” territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years. 37 Stat. 514, 48 U. S. C. § 45 (Alaska); 31 Stat. 150, 48 U. S. C. § 519 (Hawaii). It is hardly reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the “unincorporated” possession of the Virgin Islands, so temptingly near the mainland, and that it intended to give them unrestricted freedom in this sensitive field of legislation. The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska. See Compiled Laws of the Territory of Alaska (1913) §§ 1293-1306; cf. Terrill v. Terrill, 2 Alaska 475; Wilson v. Wilson, 10 Alaska 616. Secondly, “local application” obviously implies limitation to subjects having relevant ties within the territory, to laws growing out of the needs of the Islands and governing relations within them. An example is provided by Puerto Rico v. Shell Co., supra, which involved the validity of a territorial antitrust law. “It requires no argument to demonstrate that a conspiracy in restraint of trade within the borders of Puerto Rico is clearly a local matter, and that it falls within the precise terms of the power granted . . . .” 302 U. S., at 261. And in upholding the power of the Philippine Legislature to deport dangerous aliens, Mr. Justice Holmes, for the Court, observed that “the local government has all civil and judicial power necessary to govern the Islands. . . . It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the spot.” Tiaco v. Forbes, 228 U. S., at 557.
In such light the decisive question is: was § 9 (a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export? For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point. The Virgin Islanders could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 195 F. 2d 799. They would have no difficulty in making the appropriate showing of connection with the forum. Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands. Cf. Berger v. Berger, 210 F. 2d 403 (C. A. 3d Cir.). It hardly needs proof to read this statute as one designed for people outside the Virgin Islands. The Virgin Islands Legislative Assembly stated the purpose of § 9 (a) with disarming frankness. It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: “All others can see and understand this. How can we properly shut our minds to it?” Child Labor Tax Case, 259 U. S. 20, 37. But it sometimes helps to prove, as well as to see, the obvious.
In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census, estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreover, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during which the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce.
In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954.
The extraordinary rate of divorce and the disproportion between marriages and divorces raise controlling doubts of the “local” application of § 9 (a), especially in the context of its legislative history. Such doubts are confirmed by further inquiry. The 1950 Census reveals that only 416 widowed or divorced men and 1,105 widowed or divorced women resided in the Islands. Thus the number of divorces in 1951 nearly equalled the total widowed or divorced male population of the Islands. Remarriage can serve only as a partial explanation. Petitioner’s brief reveals a second surprising disproportion. Although the two components of the Islands (the Municipality of St. Croix and the Municipality of St. Thomas and St. John) are nearly equal in population, and although in 1940 St. Croix granted 18 divorces and St. Thomas and St. John 16, by 1952 St. Croix had increased only to 33, whereas St. Thomas and St. John had gone up nearly 2,000% to 310. It is not inappropriate to take judicial notice of the considerably greater tourist facilities on the Islands of St. Thomas and St. John.
We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction occurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance — which strips the court of its power to inquire further into domicile — but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and legal sources and the rapid drop in divorces following the initial decision of unconstitutionality, is to provide a convenient forum for prosperous persons with substantial connections to the mainland, who desire to sever their marital ties while vacationing. The Commissioner in the case at bar did not even ask petitioner where she lived in the Virgin Islands.
The Legislative Assembly is much less liberal toward would-be voters. One-year domicile is required. Further, a personal property or income tax on persons physically present for six weeks but with no stronger link to the Islands would no doubt be strongly challenged and of questionable validity.
In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so.
Affirmed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Section 8 deals with annulment and is not here relevant. Section 9 reads as follows: “In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose.” Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
Section 9 (a) was added by amendment in 1953. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Section 7 (8), Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
Beginning with Downes v. Bidwell, 182 U. S. 244, 287-344; see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Col. L. Rev. 823.
In Balzac v. Porto Rico, 258 U. S. 298.
Both were distinguished from States. “A state, except as the Federal Constitution otherwise requires, is supreme and independent. ... A dependency [here the Philippines] has no government but that of the United States, except in so far as the United States may permit. . . . [0]ver such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible.” Cincinnati Soap Co. v. United States, 301 U. S. 308, 317.
E. g., 37 Stat. 514, 48 U. S. C. § 77 (Alaska).
39 Stat. 964, 48 U. S. C. § 821 (Puerto Rico); 68 Stat. 500, 48 U. S. C. A. § 1574 (a) (Virgin Islands); 64 Stat. 387, 48 U. S. C. § 1423a (Guam).
“. . . the granting of divorces was a rightful subject of legislation according to the prevailing judicial opinion of the country, and the understanding of the profession, at the time the organic act of Oregon was passed by Congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature.” 125 U. S., at 209.
The local law as it had existed under Danish rule was continued in effect, 39 Stat. 1132, 48 U. S. C. § 1392, subject to change by the two Colonial Councils, the instruments of municipal government for the two districts of the Islands. Presidential approval of any change in this body of law was required. Ibid. Each Colonial Council subsequently passed a divorce law, verbally drawn from that of Alaska. Burch v. Burch, 195 F. 2d 799, 805-806.
See note 1, supra.
His objection was that the amendment made physical presence sufficient in both ex parte and contested actions.
For the first time, the legislation explicitly characterized the Virgin Islands an “unincorporated territory.”
The Senate Report spoke as follows: “S. 3378 declares the Virgin Islands to be ‘an unincorporated territory of the United States of America.’ Thus, their legal status would be distinct and wholly different from that of Hawaii and Alaska, which are Incorporated Territories. . . . [S]tatehood has unvaryingly been the destiny of all Incorporated Territories. ... On the other hand, there is no precedent ... for statehood for a political, geographic, and economic unit such as the Virgin Islands would become under S. 3378. . . . A still higher degree of self-government and autonomy is, of course, possible within that framework — such as an elective governor when the people are ready for it.” S. Rep. No. 1271, 83d Cong., 2d Sess. 8. Congressman Powell, on the other hand, criticized “. . . the unwarranted failure of the bill to provide for any advance whatsoever toward increased self-government.” 100 Cong. Rec. 8664.
See note 12, supra. The Senate Report on the 1936 Organic Act gives some idea of the legislative purpose: . . the inhabitants of the Virgin Islands ... are capable of managing their local affairs. Unfortunately, the islands are not yet economically self-supporting. Hence it has been necessary to provide for an amount of Federal control over local affairs commensurate with continuing expenditures of Federal funds to subsidize the local government. . . . Matters of purely local concern are placed within local legislative power. The leyying of local taxes and the expenditure of local revenue are authorized. It has not been deemed wise to give the local government power to incur bonded indebtedness so long as local revenue is insufficient to pay the entire cost of local government. Locally enacted bills may be vetoed by the Governor.” S. Rep. No. 1974, 74th Cong., 2d Sess. 2.
For the history of the Alaskan provision, see 48 Cong. Rec. 5267-5270, 5293, 5297-5298.
Of course a suit for damages brought by a resident of the Virgin Islands for an injury occurring on the mainland, or a suit against a defendant served in the Virgin Islands arising out of a commercial transaction connecting both the Virgin Islands and the mainland, would clearly contain a relevant tie amply affording jurisdiction to the courts of the Virgin Islands.
We are dealing here with the bearing of the statute on consensual divorces. So far as these are concerned § 9 (a) is an entirety, for in its application the first part of the section accomplishes precisely the same thing as the second. Under our system of law a judge is not charged with the role of an adversary party, and as such called upon to assume responsibility for rebutting a statutory presumption.
Cf. People v. Daniels, 6 Utah 288, 293, 22 P. 159, 160, “. . . as to the extent to which the legislature may act on a rightful subject, when the limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. To illustrate:
. . . Divorce is also a rightful subject of legislation, but a law giving any married person who might apply to the court a right to a divorce without cause would be invalid.”
Three members of the Legislative Assembly addressed themselves to the reasons for changing the result of the Court of Appeals in Burch v. Burch, see p. 8, supra.
Mr. Rohlsen spoke with authority as member in charge of tlje bill: “The divorce business in the Virgin Islands is quite a thriving business. I understand that this business provides quite an income for the municipalities since it is estimated that over $300,000 a year is spent within the Virgin Islands by persons who have been using the facilities of our divorce law to put their homes in order. Unfortunately, because of an error in the draft of original law . . . and because of the Governor’s attitude ... it now becomes necessary for us to consider another amendment which is designed to enhance this u-coming [sic] business in the islands .... I am not trying to speak for or against the moral ethics of divorce because, as far as I am concerned, those issues were denied when the statute was encted [sic] making it possible for people to come here for divorces. ... I consider this matter as a means of enhancing the economy of our islands . . . .”
“The people of the Virgin Islands have enjoyed great financial benefits by an influx of people to these islands for the purpose of getting divorced. ... I recommend to my colleagues this piece of legislation for their favorable consideration inasmuch as they can see the disadvantage in which the municipalities have been placed by not having the divorce court functioning at the present time.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953, pp. 46-47, 66-67.
Moving adoption of the earlier version of § 9 (a), which the Governor vetoed but which does not, so far as concerns our problem, differ from § 9 (a), Mr. Richards stated: “. . . personally I do not see why this Assembly should be deliberating so extensively on this amendment. Only about 2% of the divorces heard and the decisions rendered in the District Courts affect the residents of the Virgin Islands. I should conclude that this law was enacted not to facilitate the bona fide residents of the Virgin Islands but in order to provide as it were source of economic asset to the islands by which people are brought to our shores and contribute to the general economic welfare of the islands. ... I feel proud to see that only a possible of 2 or three resident[s] of the Virgin Islands are involved in divorce cases a year.” Proceedings and Debates, 17th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1953, p. 10.
Mr. Hey wood, in discussing the earlier amendment, observed: “This bill No. 54 before us today appears to be in my opinion, a devise [sic] aimed primarily at transients in the islands. ... I am very well aware of the volume of divorce business being carried on in these islands. ... I have heard that there is anticipated a half a million dollars-business in this current year which will be distributed among lawyers, hotel bills, taxi cabs and other business ventures in the Community.” Id., at p. 8.
The statistics which follow are derived from these sources: United States Bureau of the Census, Statistical Abstract of the United States: 1954, pp. 9, 63, 85, 940, 942; United States Department of Health, Education, and Welfare, Summary of Marriage and Divorce Statistics, United States, 1952, pp. 45, 52-53; United States Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Vol. 3, No. 12, Feb. 15, 1955, p. 7; Brief for Petitioner,
United States Bureau of the Census, Statistical Abstract of the United States: 1954, p.939.
Brief for Petitioner, p. 53.
See Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 125-127; VIII Virgin Islands Magazine (Special Edition 1954) 7 et seq.; Murray, The Complete Handbook of the Virgin Islands (1951), 12-100.
The St. Croix Chamber of Commerce Newsletter for Feb. 1, 1954, cited the “change in the divorce situation” as one reason for the tourist slump during the previous season. District Judge Moore, who decided both Alton v. Alton, supra, and this case, wrote the Senate Committee on Interior and Insular Affairs: “. . . the present court is not unsympathetic to the fact that the failure to grant these divorces has affected the economic status of both lawyers and guesthouse keepers . . . .” Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 4, 54.
“(b) For the purpose of this law 'residents of the Virgin Islands’ shall be persons who have maintained legal residence in the Virgin Islands for a period of one year next preceding the date of the election, and in the district in which they desire to vote for a period of sixty days next preceding the election. In all cases of doubt as to legal residence, the Board shall request the registrant to submit substantial and satisfactory proof that the said registrant has fulfilled the legal residence requirement. The domicile, which is the registrant’s legal residence, shall be determined in accordance with the following rules:
“1) Every person has a domicile.
“2) There can be but one domicile.
“3) Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work or for some other temporary purpose and to which such person returns in season for rest.
“4) Legal domicile or residence may be changed by joinder of act and intent.
“5) A domicile cannot be lost until a new one has been acquired.
“This subsection shall be strictly enforced by the Board.” Bill No. 86, 18th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1954, c. II, § 1.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
In the Matter of Robert W. HOWAT, Bankrupt.
No. 12849.
United States Court of Appeals Seventh Circuit.
May 26,1960.
Philip Conley, Chicago, 111., for appellant.
Alex H. Rosenbaum, Lester E. Williams, Chicago, 111., for appellee.
Before HASTINGS, Chief Judge, ENOCH, Circuit Judge, and PLATT, District Judge.
PLATT, District Judge.
The referee in bankruptcy granted the bankrupt his discharge in the face of the objections by a creditor, Dana Campbell, who alleged that the bankrupt made two false financial statements, one to General Finance Company and the other to Household Finance Corporation, to obtain a loan from each. The objector filed a petition for review and the referee in bankruptcy certified the petition for review to the district court in accordance with § 39, sub. a(8) of the Bankruptcy Act, 11 U.S.C.A. § 67, sub. a(8). The district court entered an order affirming the order of discharge without hearing further evidence. The objecting creditor has appealed from this order and maintains that the referee’s findings were not supported by the evidence.
The pertinent statute, section 14, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 32, sub. c provides in part as follows:
“The court shall grant the discharge unless satisfied that the bankrupt has * * * (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making * * * a materially false statement in writing respecting his financial condition; * * *»
This section has been interpreted by this court to mean that “if a bankrupt obtains credit based on a materially false statement in writing respecting his financial condition, knowingly made with intent to deceive, that statement being relied upon by the person extending the credit, then upon proper objection by the creditor the court may refuse to grant a discharge * * Schweizer v. City Loan Co., 7 Cir., 1959, 271 F.2d 95, 97.
The referee in bankruptcy found from all the evidence in substance:
(1) That the bankrupt failed to disclose all of his debts correctly in the two financial statements;
(2) That the bankrupt did not wilfully intend to defraud the loan companies by these statements; and
(3) That neither of the loan companies relied upon the false statement given to them by the bankrupt.
The district court was bound by General Order of Bankruptcy 47, 11 U.S. C.A. following section 53, which requires the district judge to accept the referee's findings of fact unless clearly erroneous. This court must also accept the findings of the referee, affirmed by the district judge, unless the findings of fact are clearly erroneous. Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. In re Garden City Brewery, 7 Cir., 1953, 208 F.2d 377; Porterfield v. Gerstel, 5 Cir., 1957, 249 F.2d 634. Thus the issue presented is whether the referee’s findings are clearly erroneous.
To determine this issue the evidence must be examined. The two financial statements to the loan companies were offered and accepted in evidence. The bankrupt testified that he was an advertising copywriter, kept no record of his liabilities, and was unable to recall all of his debts; that he had obtained previous loans from both companies; that he discussed his financial problems with an agent of the company and disclosed other debts not mentioned in the statements; that he did not list the indebtedness to Dana Campbell, the objecting creditor, because he was of the opinion that he was not indebted to her; that he did not intend to defraud the loan companies; that he did not intentionally make a false statement; and that he made payments on these loans up to the filing of the petition in bankruptcy; that he did list the indebtedness to Household Finance Corporation on the statement to General Finance Company, and also listed the indebtedness to General Finance Company on the statement to Household Finance Corporation.
Mr. Alvin W. Olson, General Manager of General Finance Company, testified in part, that when he made the loan in question to the bankrupt, he considered the payment of prior loans by the bankrupt, and the amount of his salary.
There was other testimony which conflicted with the foregoing evidence. Since the referee heard and saw the witnesses, he was in a position to determine the issues of fact. It was his duty to make findings of fact. General Order of Bankruptcy 47, 11 U.S.C.A. following section 53. From the evidence set forth the referee was justified in finding:
(1) That the bankrupt did not wilfully make the statements to the loan companies, to obtain credit, with the intent to deceive them; and
(2) That the loan companies did not rely on these statements when they granted the bankrupt the loans.
Findings of the referee in bankruptcy are not clearly erroneous. For the reasons stated the order granting the discharge is
Affirmed.
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_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.
The DETROIT EDISON COMPANY, Petitioner, Public Service Co. of Indiana, Inc., Intervenor, National Association of Regulatory Utility Commissioners, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.
Nos. 78-3187, 78-3196.
United States Court of Appeals, Sixth Circuit.
Argued June 17, 1980.
Decided Sept. 5, 1980.
Rehearing and Rehearing En Banc Denied Oct. 22, 1980.
Harry H. Voigt, Michael F. McBride, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., for petitioner in No. 78-3187 and for intervenor.
Charles W. Campbell, Plainfield, Ind., for intervenor in No. 8-3187.
Peter A. Marquardt, Detroit, Mich., for petitioner in No. 78-3187.
Stephen S. Ostrach, Sheldon L. Trubatch, U. S. Nuclear Regulatory Comm., Washington, D. C., for respondents in Nos. 78-3187 and 78-3196.
Paul Rodgers, William R. Nusbaum, Nat. Ass’n of Regulatory Utility Commissioners, Charles Gray, Washington, D. C., for petitioner in No. 78-3196.
Stephen F. Eilperin, U. S. Nuclear Regulatory Comm., Washington, D. C., Griffin B. Bell, Atty. Gen. of U. S. Dept, of Justice, James W. Moorman, Edward Shawaker, Anne S. Almy, Washington, D. C., for respondents.
Before BROWN, MARTIN, and JONES, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This care requires us to rule on the Nuclear Regulatory Commission’s present practice of regulating the location of electric transmission lines constructed in connection with proposed nuclear power facilities. We must determine whether or not the Commission’s policy of conditioning approval of license applications on environmentally acceptable routing of transmission lines exceeds the agency’s authority under the Atomic Energy Act, 42 U.S.C. § 2011 et seq. and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA).
The Commission’s position on transmission line regulation has evolved over the past decade. Prior to the 1969 enactment of NEPA, the Commission perceived its duties under the Atomic Energy Act primarily in terms of protecting the public from radiation hazards. NEPA, however, made “environmental protection a part of the mandate of every federal agency and department . . . [The Commission] is not only permitted, but compelled, to take environmental values into account” in carrying out its regular functions. Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109, 1112 (D.C.Cir. 1971). Under NEPA, federal agencies must “use all practicable means” to avoid environmental “degradation” to the extent consistent with “other essential considerations of national policy.” 42 U.S.C. § 4331(b). Thus, in the early 1970’s the Commission began to consider the environmental implications of proposed nuclear facilities.
By 1974, the Commission had adopted an aggressive approach to its environmental responsibilities in the context of transmission line siting. In that year, the Commission’s Atomic Safety and Licensing Appeal Board ruled that the Commission could, as a condition of licensure, insist that off-site transmission lines built solely to serve a nuclear facility be designed to minimize environmental disturbance. Detroit Edison (Greenwood Energy Center, Units 2 and 3) ALAB-247, 8 A.E.C. 936 (Greenwood).
The response to Greenwood among utility companies and local utility regulatory bodies was immediate. Public Service Company of Indiana and Detroit Edison Company filed a petition for rule-making pursuant to Section 2.802 of the Commission’s Rules of Practice. The proposed rule would have amended 10 C.F.R., Part 50, “Licensing of Production and Utilization Facilities,” by excluding transmission lines and other off-site construction from the Commission’s regulatory ambit. Under the proposal, the Commission could continue to “consider” the probable environmental effects of transmission lines, but could no longer compel the use of an alternative route as a condition of licensure. When notice of Detroit Edison’s petition appeared in the Federal Register, eleven parties, including the National Association of Regulatory Utility Commissioners, filed comments in support of the proposal. The Commission nonetheless denied the petition for rulemaking on February 23, 1978, and Detroit Edison filed a petition for review in this court.
The legal issue before us is essentially jurisdictional. Does the Commission have statutory authority to use its licensing power as a means of mitigating the adverse environmental effects of off-site transmission line construction? If so, what is the source of that authority-the Atomic Energy Act, NEPA, or both?
Petitioners insist that neither the Atomic Energy Act nor NEPA empowers the Commission to regulate off-site transmission lines. They contend, first that the Atomic Energy Act limits the Commission’s regulatory jurisdiction to matters of nuclear safety significance, national defense and security, and certain antitrust questions. In the absence of a showing that electric power lines fall into any of these categories, petitioners conclude that the Commission has exceeded its statutory authority. In support of this argument, they cite Sections 271 and 274(k) of the statute as evidence that Congress intended to reserve the power to regulate transmission lines to state and local agencies. Second, petitioners contend that NEPA confers no substantive jurisdiction on federal agencies. They acknowledge that NEPA permits agencies to “consider” environmental values as part of the decision-making process; they deny, however, that it authorizes active “regulation” beyond the confines of the agencies’ organic statutes.
The Commission, on the other hand, argues that the Atomic Energy Act and NEPA represent independent sources of authority to regulate transmission lines. According to this interpretation, Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, permits the Commission to assert jurisdiction over transmission lines as “important component parts” of a nuclear “utilization facility.” Furthermore, the Commission claims, NEPA itself requires federal agencies to use whatever power they possess to implement national environmental policy. A congressional directive to “consider” environmental factors is meaningless unless agencies can also act to minimize the environmental damage attributable to their licensees.
For the reasons discussed below, we find: 1) that the regulation of off-site transmission lines is within the Commission’s authority under Section 101 of the Atomic Energy Act; and 2) that nothing in the Atomic Energy Act precludes the Commission from implementing, through the issuance of conditional licenses, NEPA’s environmental mandate. We need not, and do not, decide whether NEPA is an independent source.of substantive jurisdiction.
In Public Service Company of New Hampshire v. United States Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978), the petitioners challenged a Commission order to reroute transmission lines tying the proposed Seabrook Nuclear Power Station to an existing transmission grid. The rerouting order was based on the Commission’s decision to preserve a natural area of forest and marshland. In a thoughtful and persuasive opinion, the First Circuit denied the petition for review, basing its conclusion on a finding that the Commission’s order was a proper exercise of jurisdiction under the Atomic Energy Act.
Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, authorizes the Commission to license and regulate the use of a nuclear “utilization facility.” 42 U.S.C. § 2014 defines “utilization facility” in part as “. . . (2) any important component part especially designed for such equipment or device as determined by the Commission.” (emphasis added). Thus, Congress delegated broad authority to the Commission to define, on the basis of its own experience and expertise, the phrase “component parts” of a “utilization facility.” Public Service Co., supra, at 82-83. This assertion of jurisdiction is entitled to judicial deference. Power Reactor Co. v. Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
Petitioners’ arguments that the Commission has overreached its authority consist largely of citations from the Atomic Energy Act’s legislative history and subsequent judicial comments on the statute generally. The message, apparently, is that the Commission’s primary function is to protect the public from radiological hazards. Beyond this, petitioners offer only the unsupported assertion that transmission lines are unrelated to nuclear safety. On that evidence alone, without further development of either the legal or factual bases of their argument, petitioners ask us to hold that a longstanding regulatory policy is “so contrary to the purposes of the . . . statute as to warrant intervention and correction by this court.” Public Service Co., supra, at 83.
The disputed exercise of jurisdiction is based on the Commission’s interpretation of a statute which is “virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir. 1968). The Commission’s policy has been approved by at least two federal appellate courts-explicitly in Public Service Co., supra, and implicitly in Culpepper League for Environmental Protection v. NRC, 574 F.2d 633 (D.C.Cir. 1978). Finally, we read with approval the First Circuit’s discussion of the eloquence of congressional silence in matters concerning the Commission. Public Service Co., supra, at 83-84. Against the weight of this authority, we have only the petitioners’ unsupported statement that transmission lines are so irrelevant to the Atomic Energy Act that their regulation constitutes an abuse of agency discretion. We are simply unpersuaded by that argument.
We turn now to petitioners’ claim that Sections 271 and 274(k) of the Atomic Energy Act prohibit the Commission from assuming jurisdiction over off-site transmission lines. Petitioners interpret those provisions to mean that Congress has reserved exclusive control over transmission lines to state and local agencies. We disagree. The statutory language merely ensures that the authority of other agencies will continue, unimpaired by the provisions of the Atomic Energy Act. Nowhere does it suggest that the regulatory field is completely closed to the Commission. The First Circuit in Public Service Co., supra, at 84-85, analyzed the legislative history of Section 271 and concluded that the provision is merely a “garden variety nonpreemption clause.” Our study of the record here convinces us that the same description applies to Section 274(k).
Finally, in light of our previous findings, we uphold the Commission’s practice of conditioning licenses on the use of a Commission-approved transmission route. “The directive to agencies to minimize all unnecessary adverse environmental impact . [remains] except when specifically excluded by, statute or when existing law makes compliance with NEPA impossible.” Public Service Co., supra, at 81; Calvert Cliffs Coordinating Committee, supra, at 1115; Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, at 787-788, 96 S.Ct. 2430, at 2437, 2438, 49 L.Ed.2d 205 (1976). In this case, we have found no statutory conflict which might prevent the Commission from complying fully with both the Atomic Energy Act and NEPA. The Commission is empowered by its organic statute to regulate off-site transmission lines; in the exercise of that power it must pursue the objectives of the Atomic Energy Act and NEPA simultaneously. Under the Atomic Energy Act, the Commission can issue conditional licenses for regulatory purposes. There can be no objection to its use of the same means to achieve environmental ends as well. Public Service Co., supra, at 85-86.
The petition for review is dismissed.
. In 1974, licensing and related regulatory functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission. See Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. References in this opinion to “the Commission” may therefore indicate either agency.
. We are concerned throughout this opinion with “off-site” transmission lines, defined as that section of line between the plant site boundary and the first point of connection with an existing or planned high voltage system.
. See 10 C.F.R. 50.10(e)(1)(iv), 37 Fed.Reg. 5745 (March 21, 1972); Tennessee Valley Authority (Brown’s Ferry Nuclear Plant, Units 1, 2, 3) 6 A.E.C. 3 (January 22, 1973).
. Petitioners’ proposed rule reads:
The provisions of paragraphs (c) and (d) of this section shall not be deemed to prohibit any off- site construction activities including, but not limited to, construction of transmission lines. Further, paragraph (e) of this section shall not be deemed to authorize the Director of Nuclear Reactor Regulation to either authorize or prohibit any such off-site construction activities.
. In Culpepper League the court decided the substantive issue-whether the Commission erred in failing to direct an applicant to use an alternative transmission route-without questioning the Commission’s authority to order such a change.
. Section 271 reads:
Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the' generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission.
42 U.S.C. § 2018.
Section 274(k) reads:
Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.
42 U.S.C. § 202 l(k).
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_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
ILLINOIS v. VITALE
No. 78-1845.
Argued January 8, 1980
Decided June 19, 1980
White, J., delivered the opinion of the Court, in which Burger, C. J., and BlacKMUN, Powell, and Rehnquist, JL, joined. Stevens, J., filed a dissenting opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 421.
James S. Veldman argued the cause for petitioner. With him on the briefs were William J. Scott, Attorney General of Illinois, Donald B. MacKay and Melbourne A. Noel, Jr., Assistant Attorneys General, Bernard Carey, and Marcia B. Orr.
Lawrence G. Dirksen argued the cause and filed a brief for respondent.
Mr. Justice White
delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment prohibits the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an automobile involved in a fatal accident, who previously has been convicted for failing to reduce speed to avoid the collision.
I
On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two small children. One of the children died almost immediately; the other died the following day. A police officer at the scene of the accident issued a trafile citation charging Vitale with failing to reduce speed to avoid an accident in violation of § 11-601 (a) of the Illinois Vehicle Code. Ill. Rev. Stat., ch. 951-2, § 11-601 (a) (1979). This statute provides in part that “[s]peed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”
On December 23, 1974, Vitale appeared in the Circuit Court of Cook County, Ill., and entered a plea of not guilty to the charge of failing to reduce speed. After a trial without a jury, Vitale was convicted and sentenced to pay a fine of $15.
On the following day, December 24, 1974, a petition for adjudication of wardship was filed in the juvenile division of the Circuit Court of Cook County, charging Vitale with two counts of involuntary manslaughter. The petition, which was signed by the police officer who issued the traffic citation, alleged that Vitale “without lawful justification while recklessly driving a motor vehicle caused the death of” the two children killed in the November 20, 1974, accident. App. 2-4.
Vitale’s counsel filed a motion to dismiss on the grounds, among others, that the manslaughter prosecution was “viola-tive of statutory and/or constitutional double jeopardy,” id., at 7, because of Vitale’s previous conviction for failing to reduce speed to avoid the accident. The juvenile court found it unnecessary to reach a constitutional question because it held that the manslaughter prosecution was barred by Illinois statutes requiring, with certain nonpertinent exceptions, that all offenses based on the same conduct be prosecuted in a single -prosecution. Ill. Rev. Stat., eh. 38, §§ 3-3 and 3-4 (b)(1) (1979). The juvenile court dismissed the petition for adjudication of wardship and the State appealed. The Appellate Court of Illinois, First District, In re Vitale, 44 Ill. App. 3d 1030, 358 N. E. 2d 1288 (1976), affirmed the holding that the manslaughter prosecution was barred by the state compulsory joinder statutes. Ill. Rev. Stat., ch. 38, §§ 3-3 and 3-4 (b)(1) (1979).
The Supreme Court of Illinois, with two justices dissenting, affirmed on other grounds. In re Vitale, 71 Ill. 2d 229, 375 N. E. 2d 87 (1978). The court did not reach the state statutory question for it found “a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter”: the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment. After analyzing the elements of each offense, the court held that because “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter, ... for purposes of the double jeopardy clause, the greater offense is by definition the 'same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91. Thus the court concluded that the manslaughter prosecution was barred by the Double Jeopardy Clause.
The dissenting justices argued that the manslaughter prosecution was not barred by the Double Jeopardy Clause because the homicide charge could be proved by showing one or more reckless acts other than the failure to reduce speed. Id., at 242, 251-253, 375 N. E. 2d, at 93, 96-97 (Underwood, J., joined by Ryan, J., dissenting).
On November 27, 1978, we granted the State’s petition for certiorari, vacated the judgment, and remanded the case to the Supreme Court of Illinois to consider whether its judgment was based upon federal or state constitutional-grounds. 439 U. S. 974 (1978). After the Supreme Court of Illinois, on remand, certified that its judgment was based upon federal constitutional grounds, we again granted a writ of certiorari. 444 U.S. 823 (1979).
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional guarantee is applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), and it applies not only in traditional criminal proceedings but also in the kind of juvenile proceedings Vitale faced. Breed v. Jones, 421 U. S. 519 (1975).
The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal. [(2) I] t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Because Vitale asserts that his former conviction for failing to reduce speed bars his manslaughter prosecution, we are concerned with only the second of these three guarantees in the instant case. The sole question before us is whether the offense of failing to reduce speed to avoid an accident is the “same offense” for double jeopardy purposes as the manslaughter charges brought against Vitale.
In Brown v. Ohio, 432 U. S. 161 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successsive prosecutions. Quoting from Blockburger v. United States, 284 U. S. 299, 304 (1932), which in turn relied on Gavieres v. United States, 220 U. S. 338, 342-343 (1911), we held that
“‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” 432 TJ. S., at 166.
We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if “ ‘each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871),” the offenses are not the same under the Blockburger test. 432 U. S., at 166 (emphasis supplied); Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975).
III
We accept, as we must, the Supreme Court of Illinois’ identification of the elements of the offenses involved here. Under Illinois law, involuntary manslaughter with a motor vehicle involves a homicide by the “reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm.” In re Vitale, 71 Ill. 2d, at 239, 375 N. E. 2d, .at 91. The charge of failing to reduce speed on which respondent was convicted requires proof “that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person.” Id., at 238, 375 N. E. 2d, at 91. The Illinois court, after specifying these elements, then stated that “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter” and concluded, as a matter of federal law, that “the greater offense is by definition the 'same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91.
The Illinois court relied upon our holding in Brown v. Ohio, supra, that a conviction for a lesser-included offense precludes later prosecution for the greater offense. There, Brown was first convicted of joyriding in violation of an Ohio statute under which it was a crime to “take, operate, or keep any motor vehicle without the consent of its owner.” He was then convicted under another statute of stealing the same motor vehicle. The Ohio courts had held that every element of the joyriding “is also an element of the crime of auto theft,” and that to prove auto theft one need prove in addition to joyriding only the intent permanently to deprive the owner of possession. Holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that “the prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft.” Id., at 167. But we also noted that “the prosecutor who has established auto theft necessarily has established joyriding as well.” Id., at 168.
Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner — if proof of the auto theft had not necessarily involved proof of joyriding — the successive prosecutions would not have been for the “same offense” within the meaning of the Double Jeopardy Clause.
Vitale does not dispute this proposition, but insists that the Illinois court fully satisfied Brown when it held that the lesser offense of failure to reduce speed “requires no proof beyond that which is necessary for a conviction of the greater, involuntary manslaughter.” It is clear enough from the opinion below that manslaughter by motor vehicle could be proved against Vitale by showing a death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving manslaughter in this way would also prove careless failure to slow; nothing more would be needed to prove the latter offense, an offense for which Vitale has already been convicted.
The State, however, does not concede that its manslaughter charge will or must rest on proof of a reckless failure to slow; it insists that manslaughter by automobile need not involve any element of failing to reduce speed. The petition for wardship charging manslaughter alleged only that Vitale “without lawful justification, while recklessly driving a motor vehicle, caused [two] death [s]” in violation of the manslaughter statute. Further, the dissenting justices relied upon the absence of any showing that the manslaughter charge on which respondent had not been tried, would rest upon his reckless failure to reduce speed. Nor could it be known, in their view, what particular reckless acts might be relied upon to prove the homicide charge. The State agrees, and submits that because it is not necessary to prove a failure to slow to establish manslaughter, the rule of Brown v. Ohio does not bar its homicide case against Vitale.
The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.
Of course, any collision between two automobiles or between an automobile and a person involves a moving automobile and in that sense a “failure” to slow sufficiently to avoid the accident. But such a “failure” may not be reckless or even careless, if, when the danger arose, slowing as much as reasonably possible would not alone have avoided the accident. Yet, reckless driving causing death might still be proved if, for example, a driver who had not been paying attention could have avoided the accident at the last second, had he been paying attention, by simply swerving his car. The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the “same” under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.
IV
If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the “same” under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio. In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977).
In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution. But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indicted was in fact the underlying felony, all elements of which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U. S. 176 (1889), a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense — an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense.
By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.
V
Because of our doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, we vacate the judgment of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.
So ordered.
Section 11-601 (a) of the Illinois Vehicle Code, Ill. Rev. Stat., ch. 95%, §11-601 (a) (1979), provides:
“No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”
With respect to the traffic offense, the record contains a copy of the complaint, which charged that respondent on “Wednesday, November 20, 1974, 12:29 p. m., did then and there operate a certain motor vehicle upon a public highway of this State, to wit 170th and Ingleside in Thornton, situated in Cook County, Illinois, and did then and there violate section 11-601 (a) of the Illinois Vehicle Code by failure to reduce speed to avoid an accident.” (Record 66-67.) Notations on the back of thé complaint indicate that Vitale pleaded not guilty, waived a jury trial, was found guilty, and fined.
Failing to reduce speed to avoid an accident is punishable by no more than 30 days in jail or by a fine of no more than $500. Ill. Rev. Stat., ch. 95%, § 16-104 (a) (1975), and ch. 38, §§1005-9-1 and 1005-8-3 (1979).
At the time Vitale was prosecuted, § 9-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 9-3 (1973), provided:
“(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, (b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.”
Section 3-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 3-3 (1979), provides:
“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense, (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.”
Section 3-4 (b) of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, §3-4 (b) (1979), provides in pertinent part:
“A prosecution is barred if the defendant was formerly prosecuted for a different offense, ... if such former prosecution: (1) Resulted in either a conviction or an acquittal, and the subsequent prosecution . . . was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge). . .
The juvenile court held that because the prosecution knew at the time the traffic offense was prosecuted that the automobile accident had resulted in the deaths that were the basis of the manslaughter charges, § 3-3 required that the traffic offense and the manslaughter charges be prosecuted in a single prosecution. The court therefore concluded that the manslaughter prosecution was barred by § 3-4 (b) (1).
In Iannelli v. United States, 420 U. S., at 785, n. 17, we stated: “[T]he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.”
“The petition for wardship may have been based on Vitale’s acts in permitting his attention to be diverted while driving at a high rate of speed, failing to appropriately maintain the vehicle’s braking system, failing to note the seven school zone and speed warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard. While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it would rely solely upon Vitale’s failure to reduce speed to the exclusion of his other misconduct.” In re Vitale, 71 Ill. 2d 229, 251, 375 N. E. 2d 87, 97 (1978) (Underwood, J., dissenting).
The police report concerning Vitale’s accident noted that the brakes on the automobile were defective and that there had been a school crossing guard and a stop sign at the intersection where the accident occurred. (Record 29, 30.)
We recognized in Brown v. Ohio, 432 U. S., at 169, n. 7 that “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” This exception is not applicable here because the trial court found that the prosecution was aware that Vitale’s accident had resulted in two deaths at the time he was prosecuted for failing to reduce speed.
The Oklahoma felony-murder statute under which Harris was convicted, Okla. Stat., Tit. 21, § 701 (3) (1971), provided that homicide is murder “[w]hen perpetrated without any design to elfect death by a person engaged in the commission of any felony.”
We note also that the Illinois Supreme Court did not reach the question whether the lower Illinois courts were correct in dismissing the manslaughter case under the State’s compulsory joinder statute.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_casetyp1_7-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Ad Hoc Committee on Liquid Dielectrics of the Electronic Industries Association, et al., Joy Manufacturing Co., Edison Electric Institute, et al., Aluminum Company of America, et al., Intervenors.
No. 79-1580.
United States Court of Appeals, District of Columbia Circuit.
Feb. 5, 1982.
See, also, D.C.Cir., 636 F.2d 1267.
Jacqueline M. Warren, David J. Lennett, Washington, D. C., Bingham Kennedy, McLean, Va., and Barry J. Trilling, Washington, D. C., were on the brief for petitioner.
Ellen Siegler, Atty., U. S. Environmental Protection Agency, and Donald W. Stever, Atty., U. S. Dept. of Justice, Washington, D. C., were on the brief for respondent.
Steven S. Rosenthal, Washington, D. C., was on the brief for intervenors, AC Paper & Film Capacitor Section of the Electronic Industries Ass’n and National Electrical Mfgrs. Ass’n.
Before ROBINSON, Chief Judge, EDWARDS, Circuit Judge, and HOWARD F. CORCORAN, United States Senior District Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
For the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 294(d).
TABLE OF CONTENTS
Page
I. The Chronology op Events Pertaining to EDF’s Motion for Attorneys’ Fees............................................. 46
II. The Applicable Statutory Standard for an Award of Attorneys’ Fees Under TSCA........................ —.............. 47
III. The EDF Claims for Attorneys’ Fees......................... 50
A. Time Claimed For Work On The Case-In-Chief________________ 50
B. The Decision in Copeland v. Marshall________________________ 51
C. EPA’s Opposition To The Claim For Attorneys’ Fees----------- 52
IV. An Evaluation and Judgment Concerning the “Hours Reasonably Expended,” the “Reasonable Hourly Rate,” and “Adjustments to the ‘Lodestar”’............... 53
A. Documentation_________________________________________ 54
B. Hours Reasonably Expended_______________________________ 55
1. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Upon Which EDF Did Not Prevail_____ 55
2. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Raised By Industry Intervenors_______ 55
3. EPA’s Request To Reduce Hours In Connection With Work Performed During Post-Decision Negotiations_____________ 56
C. The Reasonable Hourly Rates______________________________ 58
D. Calculation Of The “Lodestar” Fee_________________________ 59
E. Adjustments To The “Lodestar"____________________________ 59
V. The Award of Attorneys’ Fees on the Case-in-Chief........... 61
VI. Timeliness of EDF’s Request for Attorneys’ Fees.............. 61
Page
VII. The Attorneys’ Fee Claim Pertaining to the Supplemental Fee Application of EDF for the Services of Trilling & Kennedy_____ 61
A. EDF Entitlement To An Award Oí Attorney’ Fees For Time Spent In Preparing The Application For Fees_________________ 62
B. Documentation_________________________________________ 63
C. Hours Reasonably Expended_______________________________ 63
D. Reasonable Hourly Rates_________________________________ 63
E. Adjustments To The “Lodestar”____________________________ 63
VIII. The Award of Attorneys’ Fees for the Work Done by Trilling & Kennedy__________________________________________________ 04
IX. Conclusion _______________________________________________ 04
HARRY T. EDWARDS, Circuit Judge:
On June 7, 1979, the Environmental Defense Fund (EDF) petitioned for review of regulations, issued by the Environmental Protection Agency (EPA), implementing Section 6(e) of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976). Section 6(e) of TSCA provides broad rules governing the disposal, marking, manufacture, processing, distribution, and use of a class of chemicals called polychlorinated biphenyls (PCBs). EDF sought review of three aspects of the EPA regulations. First, it challenged the determination by EPA that certain commercial uses of PCBs are “totally enclosed,” a designation that exempts those uses from regulation under the Act. Second, it claimed that the EPA acted contrary to law when it limited the applicability of the regulations to materials containing concentrations of PCBs greater than 50 parts per million (ppm). Third, EDF challenged the decision by EPA to authorize the continued use of 11 non-totally enclosed uses of PCBs.
The oral argument in this case was held on June 6, 1980, and an opinion for the court was issued on October 30, 1980, in which it was held that:
(1) no substantial evidence supported the administrative determination by EPA to classify certain polychlorinated biphenyl uses as “totally enclosed” and therefore exempt;
(2) no substantial evidence supported the administrative decision by EPA to exclude from regulation all materials containing concentrations of PCBs below 50 ppm; but
(3) substantial evidence supported the administrative determination by EPA to allow the continued use of 11 non-totally enclosed uses.
Environmental Defense Fund v. EPA, 636 F.2d 1267 (D.C.Cir.1980). As a result of this decision by the court, the parties agreed upon and the court approved a series of new rulemaking proceedings designed to develop the factual bases for an improved approach toward the regulation of PCBs.
On August 24, 1981, EDF moved for an award of $156,600.00 in attorneys’ fees for its participation in the case. This figure was later amended to $156,248.00. In addition, EDF requested $13,992.00 for the hours devoted by the law firm of Trilling & Kennedy for the preparation of a reply memorandum on the issue of attorneys’ fees.
I. THE CHRONOLOGY OF EVENTS PERTAINING TO EDF’S MOTION FOR ATTORNEYS’ FEES
The following list details the sequence of events pertaining to EDF’s motion for attorneys’ fees:
Aug. 24, 1981 — Motion of Petitioner EDF for attorneys’ fees (hereinafter “EDF Motion”)
Sept. 15,1981 — Opposition of AC Paper & Film Capacitor Section of the Electronic Industries Association to the EDF’s Motions for Attorneys’ Fees (hereinafter “AC Paper Opposition")
Sept. 15, 1981 — Response of EPA to EDF’s Motion (hereinafter “EPA Response”)
Sept. 15, 1981 — Statement of National Electrical Mfgrs.
Oct. 23, 1981 — Motion by EDF for leave to supplement motion for attorneys’ fees
Oct. 23, 1981 — Supplementary declarations in support of EDF’s motion for attorneys’ fees (hereinafter “EDF Supplementary Motion”)
Oct. 23, 1981 — Motion of EDF for leave to file its motion for attorneys’ fees out of time
Oct. 26, 1981 — “Corrected” reply memorandum of EDF to EPA’s and Intervenor EIA’s responses in opposition to motion for attorneys’ fees (hereinafter “EDF Reply”)
Oct. 29, 1981 — Respondent’s motion for enlargement of time in which to respond to petitioner’s motion for leave to supplement motion for attorneys’ fees
Nov. 9, 1981 — Order granting enlargement of time requested by EPA
Nov. 10, 1981 — EPA’s response in opposition to EDF’s motion for leave to supplement motion for attorneys’ fees (hereinafter “EPA Response to Supplementary Motion”)
Nov. 20, 1981 — Reply of EDF to EPA’s Opposition to petitioner’s motion for leave to supplement motion for attorneys’ fees (hereinafter “EDF Reply on Supplementary Motion”)
The opposition filed by intervenor AC Paper raises three issues. First, it is contended that the 837 hours of experienced lawyer time claimed by EDF appears to be an excessive expenditure of time for this case. Second, it is argued that there is no basis for EDF’s request that its “lodestar” fee be adjusted upward by 100%. Finally, it is urged that Petitioner’s Motion should be dismissed because EDF’s request for fees is over nine months out of time. The EPA, although opposing EDF’s motion for fees on several grounds, has not contended that the motion is untimely. EDF, not surprisingly, rejects the claim that its Motion is untimely; however, in an abundance of caution, EDF has filed a “Motion For Leave To File Its Motion for Attorneys’ Fees Out of Time.”
The EPA Response to the EDF Motion does not seriously contest the claim for attorneys’ fees. Rather, EPA makes the following principal arguments:
(1) The court should strictly scrutinize EDF’s claims for attorneys’ fees. EPA Response at 6-9.
(2) EDF’s estimated “lodestar” fee is substantially exaggerated, both in terms of the “number of hours reasonably expended” and the “reasonableness of the hourly rate.” Id. at 12-21.
(3) No upward adjustment to the “lodestar” is warranted. Id. at 21-26.
These arguments duplicate those raised by AC Paper except with respect to the timeliness issue.
II. THE APPLICABLE STATUTORY STANDARD FOR AN AWARD OF ATTORNEYS’ FEES UNDER TSCA
Section 19(d), of TSCA, 15 U.S.C. § 2618(d), authorizes awards of attorneys’ fees in cases involving petitions for review of regulations brought, as was the instant case, pursuant to section 19(a):
The decision of the court in an action commenced under subsection (a), or of the Supreme Court of the United States on review of such decision, may include an award of costs of suit and reasonable attorneys’ fees for attorneys and expert witnesses if the court determines such an award is appropriate.
As was noted in Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982), a case involving a comparable attorneys’ fee provision under the Clean Air Act:
On its face, the statutory provision clearly permits the court to award attorneys’ fees to prevailing, substantially prevailing, or non-prevailing parties in “appropriate” cases.
Id. at 34. The same may be said of the relevant statutory provision in section 19(d) of TSCA.
The significance of the attorneys’ fee provision of TSCA may be highlighted by comparison to other statutory fee provisions. For example, 5 U.S.C. § 552(a)(4)(E) provides that attorneys’ fees under the Freedom of Information Act are available only to a complainant who has “substantially prevailed.” Likewise, 28 U.S.C. § 2412(b), covering awards of fees against the United States, provides that:
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys... to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity....
(emphasis added). In enacting a provision allowing for an award of attorneys’ fees whenever a court finds that such “an award is appropriate,” it seems plain that Congress intended to give the courts greater latitude than is allowed under statutes such as FOIA (“substantially prevailing”) and 28 U.S.C. § 2412 (“prevailing party”).
Albeit sparse, the legislative history surrounding the attorneys’ fee provision of TSCA confirms this reading and offers some guidance in identifying “appropriate” cases. Section 19 in the original Senate and House bills, i.e., the bills that preceded the passage of TSCA in its final form, each contained provisions allowing the courts to award “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” See S. 3149, 94th Cong., 2d Sess. § 19(c)(3) (1976); H.R. 14032, 94th Cong., 2d Sess. § 19(c)(3) (1976), reprinted in Legislative History of the Toxic Substances Control Act, at 136, 384 (1976) (hereinafter “Legislative History”). Although minor modifications were made to section 19 in the conference between the Senate and House Managers of the TSCA bills, the Conference Committee ultimately retained intact the provision allowing for awards of “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” Id. at 709.
The only significant discussion of the attorneys’ fee provision apparently occurred on September 28, 1976, during the Senate’s consideration of the Conference Report. Id. at 721, 727-30. During this discussion, Senator Magnuson, who was the ranking Senate Manager on the Conference Committee, made it clear that the attorneys’ fee provision “is not restricted to plaintiffs or to successful parties." Legislative History at 729 (emphasis added). However, Senator Magnuson made a point of indicating that the attorneys’ fee provision was not without limits:
It is not the intention of these provisions to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding.
Id. at 729.
In addition to his own remarks, Senator Magnuson sought and received consent to print the remarks of Senator Tunney (which had appeared in the Congressional Record of March 26, 1976), as part of the legislative history of section 19. Id. at 727. In his printed comments, Senator Tunney first stated that
[the attorneys’ fee] provision [of TSCA] would allow an award of fees and costs to any party when “appropriate,” a word which should [be] liberally construed to effectuate the purposes of this act.
Id. (emphasis added). Following this initial comment, Senator Tunney added that:
[I]n typical circumstances, the court should follow prevailing case law which holds that a successful plaintiff “should ordinarily recover in [sic] attorneys’ fee unless special circumstances would render such an award unjust.”... “Plaintiff” in the [sic] sense is used to mean the parties seeking to enforce the rights granted by this section and can include an intervenor, or a defendant in some cases....
Where plaintiff’s proceeding is brought in good faith or on the advice of component [sic] counsel, fees and costs would ordinarily be denied to a prevailing defendant.... The standard for awarding fees and costs to a prevailing defendant is not the same as for a plaintiff because, if it were, the risk to the average citizen of bringing suit under this section would be so great it would discourage such suits.
Fees and costs would be awarded to a “successful plaintiff” under this provision where there was a final court order granting the relief requested by plaintiffs, or as a matter of interim relief pending the outcome of the case. The provision does not require the entry of a final order before fees or costs may be recovered.... Such awards are especially important where a party has prevailed on an important matter in the course of the litigation even where he does not ultimately prevail on all the issues. For purposes of the award of fees and costs, it is “appropriate” to make awards when the parties have [1] vindicated rights through consent judgment or [2] without formally obtaining relief, or [3] where such award is in the public interest without regard to the outcome of the litigation.
Id. at 727-28 (emphasis added) (citations omitted). Although Senator Tunney occasionally referred to “prevailing” or “successful” plaintiffs, these references — when read in context — cannot be seen to be inconsistent with his initial view that the attorneys’ fee provision should be “liberally construed.” Id. at 727. Nor do his remarks appear to be inconsistent with Senator Magnuson’s view that the attorneys’ fee provision “is not restricted to... successful parties.” Id. at 729. This latter point is confirmed by Senator Tunney’s observation that attorneys’ fees may be “appropriate” “where the award is in the public interest without regard to the outcome of the litigation.” Id. at 728.
The remaining remarks offered by Senator Tunney pertained to the appropriate measure of attorneys’ fees. On this final point, he commented as follows:
By specifying a general rule for the amount of fees to be awarded, this provision requires the method of calculating fees be no different than that now being utilized in other fields of law as, for example antitrust and securities regulation litigation. The “actual time” spent is that reasonably calculated to advance the client’s interest. The Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974), and the amount can be adjusted for factors including inter alia, the centingent [sic] nature of the success or the quality of the work performed. Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973), on remand, 382 F.Supp. 999 (E.D.Pa.1974), or benefits to the public from the suit. Davis v. County of Los Angeles, 8 E.P.D. 9444 (C.D.Cal.1974). Fees should not be reduced merely because the attorneys are salaried employees of public interest and or foundations-funded law firms.
Legislative History at 728.
With these general legislative standards in mind, we may now turn to the specific claims being advanced by EDF for attorneys’ fees in this case.
III. THE EDF CLAIMS FOR ATTORNEYS’ FEES
A. Time Claimed For Work On The Case-In-Chief
The EDF Motion claims a total of 837.4 hours for the three attorneys who were assigned to and worked on the litigation in EDF v. EPA, broken down as follows:
William Butler, Esq. — 190.4 hours
Jacqueline M. Warren — 617.0 hours
David J. Lennett — 30.0 hours
See EDF Motion, EDF Supplementary Motion and EDF Reply. In an “Affidavit of Jacqueline M. Warren,” accompanying the EDF Motion, it is indicated that Ms. Warren was a senior staff attorney at EDF, where she worked from June of 1973 until November of 1980. She graduated from Smith College in 1963 and from George Washington University National Law Center in 1972, where she ranked third in her class. At EDF, she was the principal staff attorney for the Toxic Chemicals Program, and participated in “many administrative and judicial proceedings concerning toxic chemicals.” Id. at 1, 7-8.
William A. Butler was General Counsel of EDF when he participated in this case. He obtained a B.A. degree from Stanford University in 1963, a Master’s degree from Oxford University in 1965, a J.D. degree from Yale University in 1969 and a Ph.D. from Harvard University in 1971. Mr. Butler was employed at EDF from 1970 until 1981 and, during that time, he “initiated, prepared and ultimately supervised the considerable amount of environmental litigation undertaken by EDF in federal district court and in courts of appeals.” Id. at 9.
David J. Lennett graduated from George Washington University National Law Center in 1979, and has been employed as a staff counsel at EDF ever since then. Prior to his graduation, Mr. Lennett worked part time at EDF and assisted with environmental litigation. Following graduation, he became the principal EDF attorney on hazardous waste matters. Id. at 10.
In the extensive descriptions of the work performed by these three EDF attorneys, their hours on EDF v. EPA are broken down as follows:
Category of Legal Work Hours
W. Butler J. Warren D. Lennett
Analysis of Final Regulation; Identification of Issues for Judicial Review; and Preparation of Petition for Review 42
Preparation of Motion to Defer Filing of Appendix; Review of Motions for Leave to Intervene and Consideration of Response 12
Preparation of Response to ALCOA Motion for Stay of Proceedings 7
Analysis of Record; Preparation of EDF Brief 226
Preparation of EDF Reply Brief; Preparation of Joint Appendix; and Preparation for Oral Argument 330
Monitoring of Post-Decision Petitions for Rehearing 16
Preparation for and Attendance at Negotiations w/Respondent and Industry Regarding Stay of Decision Pending Further Rulemaking; Participation in Joint Petitions for Stay of Mandate
Preparation of Materials to Request Attorneys' Fees
TOTAL 190.4 617 30
See EDF Motion (“Memorandum of Points”) at 4, EDF Supplementary Motion, and EDF Reply. The EDF Supplementary Motion (which contains a lengthy document entitled “Supplementary Declarations In Support of Petitioner EDF’s Motion For Attorneys’ Fees”) sets forth in great detail the attorneys’ time logs and narrative descriptions of all legal work done by each attorney.
Following the guidelines set forth in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc), discussed infra in section III-B, EDF has made the following claim for attorneys’ fees:
Attorney Experience Hours Rate/Hr. Total
William A. Butler 11 yrs. 190.4 $110 $ 20,944.00
Jacqueline M. Warren 9 yrs. 617 $ 90 $ 55,530.00
David J. Lennett 2 yrs. 30 $ 55 $ 1,650.00
"Lodestar" = $ 78,124.00
"Lodestar” Amplification = $156,248.00
B. The Decision In Copeland v. Marshall
In submitting a claim of $156,248.00 for attorneys’ fees for work done on the case in chief, EDF relies heavily on the decision in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc). Under Copeland, the attorneys’ fee is computed by first determining the “lodestar,” i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. The “lodestar” fee may then be adjusted up or down to reflect the quality of representation and the contingent nature of success. Id. at 891-94.
As to the factor of “hours reasonably expended,” Copeland states that:
Compiling raw totals of hours spent... does not complete the inquiry. It does not follow that the amount of time actually expended is the amount of time reasonably expended.... Thus, no compensation is due for nonproductive time. For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time....
The reasonable hourly rate is that prevailing in the community for similar work.... [A] reasonable hourly rate is the product of a multiplicity of faetors[:]... the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case. It follows that there may be more than one reasonable hourly rate for each of the attorneys, and for each of the kinds of work, involved in the litigation.
641 F.2d at 891-92 (emphasis in original) (citations omitted).
Concerning adjustments to the “lodestar” attributable to “the contingent nature of success,” 641 F.2d at 892, the decision in Copeland observes that:
Under statutes like Title VII, only the prevailing party is eligible for a court-awarded fee. An attorney contemplating representation of a Title VII plaintiff must recognize that no fee will be forthcoming unless the litigation is successful. An adjustment in the lodestar, therefore, may be appropriate to compensate for the risk that the lawsuit would be unsuccessful and that no fee at all would be obtained.
It is important to recognize that the contingency adjustment is designed solely to compensate for the possibility at the outset that the litigation would be unsuccessful and that no fee would be obtained.
641 F.2d at 892-93. Since, as has already been indicated, attorneys’ fees may be awarded to “prevailing,” “substantially prevailing” or “non-prevailing” parties under TSCA, this portion of the “contingent nature of success” factor discussed in Copeland is irrelevant in this case.
The court in Copeland also included a factor of “delay” under the heading of “contingent nature of success.” On this point, Copeland states:
The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.
Id. at 893.
Finally, regarding adjustments to the “lodestar” for “quality of representation,” Copeland holds that:
A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the “lodestar.” In other words,
the court must recognize that a consideration of “quality” inheres in the “lodestar” award: counsel who possess or who are reputed to possess more experience, knowledge and legal talent generally command hour rates superior to those who are less endowed. Thus, the quality of an attorney’s work in general is a component of the reasonable] hourly rate; this aspect of “quality” is reflected in the “lodestar” and should not be utilized to augment or diminish the basic award under the rubric of “the quality of an attorney’s work.”
Lindy I, then permits an adjustment to the “lodestar” — up or down — based on the all-around performance of counsel in the specific case: “Any increase or decrease in fees to adjust for the quality of work is designed to take account of an unusual degree of skill, be it unusually poor or unusually good.” 487 F.2d at 168....
Lindy II, 540 F.2d at 117-18 (emphasis in original).
Until now the calculations have entirely ignored the results of the litigation. Success was a threshold inquiry relevant to the entitlement vel non to a fee, but the amount or nature of recovery was not considered in setting the “lodestar.” These latter factors should be considered now, under the rubric of “quality of representation.”
Where exceptional results are obtained — taking into account the hourly rate commanded and number of hours expended — an increase in fee is justifiable....
Quality adjustments may be upward or downward. Thus, if a high-priced attorney performs in a competent but undistinguished manner, a decrease in the “lodestar” may be necessary under the “quality of representation” rubric because the hourly rate used to calculate the “lodestar” proved to be overly generous.
641 F.2d at 893-94.
In considering the relevance of Copeland, there is one point that must be emphasized. As noted above, Copeland involved a claim for fees under Title VII, a statute under which the “prevailing party” may seek “a reasonable attorney’s fee as a part of costs.” 42 U.S.C. § 2000e-5(k) (1976). TSCA, on the other hand, allows for “reasonable attorneys’ fees” “if the court determines such an award is appropriate.” 15 U.S.C. § 2618(d). The legislative history of this provision indicates that the attorneys’ fee provision in TSCA “is not restricted to... successful parties,” and that an award of attorneys’ fees may be “appropriate” “where such award is in the public interest without regard to the outcome of the litigation.” Legislative History at 728-29. Thus, while “success” in litigation may be a factor in determining whether an adjustment to the “lodestar” is due, it is not determinative of the question of whether any fee is due. Excluding this point, we believe that Copeland is a controlling precedent that must be followed in this case.
C. EPA’s Opposition To The Claim For Attorneys' Fees
As noted at the outset of this opinion, EPA principally argues that EDF’s claim should be strictly scrutinized, that the estimated “lodestar” fee is exaggerated, and that no upward adjustment to the “lodestar” is warranted. There is no serious claim that EDF is not entitled to some amount of attorneys’ fees.
Specifically, EPA has raised the following issues:
(1) “[A] substantial portion of Ms. Warren’s hours must be deemed as “unproductive” time because it was devoted to pursuit of 2 of 4 claims upon which EDF did not prevail.” EPA Response at 14.
(2) “Ms. Warren’s and Mr. Butler’s hours should be discounted because portions of both were devoted to EDF efforts relating to issues raised by the industry intervenors.” Id.
(3) EPA should not be “taxed with attorneys’ fees relating to post-decision negotiations.” Id. at 17.
(4) “Should the Court disagree that Mr. Butler’s hours for participating in settlement negotiations be entirely disallowed, it should still substantially reduce the total of these 176 hours as being unnecessary to a fair pursuit of the matter.” Id. at 18.
As an alternative proposal to EDF’s claim on hours, EPA suggests that the following time should be excluded from the “lodestar:”
(1) 75% of 12 hours claimed by Ms. Warren for preparation of the motion to defer filing of appendix and to review motions to intervene.
(2) All 7 of the hours claimed by Ms. Warren for preparation of responses to Alcoa’s Motion to Stay.
(3) 25% of 330 hours for preparation of reply brief and oral argument.
(4) All 16 hours spent by Mr. Butler to monitor intervenors’ petitions for rehearing.
(5) 50% of Ms. Warren’s remaining time because EDF prevailed on only two of four claims.
(6) At least 50% of the 176 hours claimed by Mr. Butler for post-decision settlement negotiations.
In sum, EPA argues that the number of “hours reasonably expended” for each attorney should be adjusted as follows:
Attorney EDF Claim EPA Proposal
Mr. Butler 190.4 0-88
Ms. Warren 617 260
Mr. Lennett 30 30
TOTAL'837.4 290-378
In addition, EPA argues that “EDF’s suggested rates should be reduced to reflect the fact that much of the time consumed by its three counsel appears to have included neither ‘in-court’ time, nor other core litigation activity, such as brief writing.” EPA Response at 20. EPA thus urges that the rates for EDF attorneys should be adjusted downwards as follows:
Attorney EDF Claim EPA Proposal
Mr. Butler $110.00 $82.50
Ms. Warren 90.00 75.00
Mr. Lennett 55.00 55.00
EPA Response at 21.
Finally, EPA contends that there should be no upward adjustment in the “lodestar” because (1) “the efforts of EDF’s counsel were substantially within the range of skill normally expected of attorneys receiving the rates that they suggest,” id. at 22; (2) “the burden faced by EDF... is the standard burden of any litigant in an administrative agency case,” id. at 25; and (3) “no contingency adjustment would be warranted here for delay in renumeration [because] EDF has only recently submitted its requests for fees” and because “the hourly rates they suggest are derived from other recent decisions and, therefore, reflect current market values.” Id. at 25.
IV. AN EVALUATION AND JUDGMENT CONCERNING THE “HOURS REASONABLY EXPENDED,” THE “REASONABLE HOURLY RATE,” AND “ADJUSTMENTS TO THE ‘LODESTAR’ ”
Having outlined the applicable statutory standard, the controlling judicial precedents (as set forth in Copeland) and the contentions of the parties, we now may proceed to determine' the merits of EDF’s claim for attorneys’ fees.
A. Documentation
EPA initially argues that EDF’s claim should be rejected for “lack of adequate documentation.” See note 2 supra. For the reasons hereafter enumerated, we reject this contention as wholly untenable on the record before us.
In Copeland, this court stated that, with respect to “documentation” of attorneys’ fee claims, the party seeking a fee should submit information that will allow the reviewing court to “segregate into categories the kinds of work performed by each participating attorney.” 641 F.2d at 891. The court added that:
It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought.
Copeland, 641 F.2d at 891 (quoting from Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973)).
The documentation furnished by EDF in this case is more than enough to satisfy the test set forth in Copeland. Here, petitioner has submitted
(1) daily time sheets for attorneys Warren and Butler;
(2) written declarations from attorneys Warren, Butler and Lennett describing in detail the precise nature of the work performed by them, the hours attributed to each category of work, the approximate numbers of hours discounted as potentially “duplicate” or “nonproductive” and the approximate dates when each category of work was performed;
. (3) an affidavit from Jacqueline Warren describing the history of the litigation, the litigation goals and strategies of EDF, and the qualifications of each of the participating attorneys; and
(4) citations to authorities to justify the reasonableness of the hourly rates claimed for each attorney.
See EDF Motion (including “Memorandum of Points” and “Affidavit of Jacqueline M. Warren”), EDF Supplementary Motion (including “Supplementary Declarations”), and EDF Reply. We have considered this information with care and we find it sufficient to allow us to judge the reasonableness of the hours expended. Indeed, we believe that petitioners in this case have furnished more detailed information than was required by this court in Copeland. (See discussion at 641 F.2d 902 for a review of the documentation considered in Copeland.)
We agree with EPA that, as an appellate court (without the benefit of pre-trial motions, discovery supervision, and extended courtroom hearings comparable to what a district judge might experience), we should scrutinize an attorneys’ fee claim with particular care. We also note, however, as did the court in Copeland, that “[ojther circuit courts of appeals have observed that appellate judges are themselves experts in assessing the reasonableness of an attorney’s fee award, and that the appellate court... may independently review the record, or itself set the fee.” 641 F.2d at 902 (footnotes omitted). Since, under TSCA, we are obliged to “independently review the record” and “set the fee,” we have undertaken this responsibility and pursued the task with care. We have no doubt that, had it been necessary, we could have requested further documentation from the parties or scheduled hearings before designated members of the panel. In this case, however, since the documentation furnished by EDF is more than adequate, we are confident that we have enough information to complete the task before us.
B. Hours Reasonably Expended
1. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Upon Which EDF Did Not Prevail
EPA asserts that, under Copeland, EDF should not receive attorneys’ fees for time spent litigating claims upon which petitioners did not prevail. For the reasons already given at the conclusion of section III-B supra, we reject this contention.
First, to reiterate, attorneys’ fees under TSCA are not restricted to “successful parties.” Legislative History at 729. Furthermore, because we find that the litigation in EDF v. EPA involved critically important and difficult issues of first impression, and that the outcome of the litigation greatly served the public interest, we hold that there should be no discount in the fees awarded simply because EDF failed to prevail on one of three closely-related issues. At the conclusion of a 41-page slip opinion in EDF v. EPA, the court highlighted the significance of the litigation with the following observation:
We feel constrained to add one final note to emphasize our concern in
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_caseoriginstate
|
25
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
BOOTH v. MARYLAND
No. 86-5020.
Argued March 24, 1987
Decided June 15, 1987
Powell, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined, post, p. 515. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and O’Connor, JJ., joined, post, p. 519.
George E. Burns, Jr., argued the cause for petitioner. With him on the brief were Alan H. Murrell and Julia Doyle Bernhardt.
Charles O. Monk II, Deputy Attorney General of Maryland, argued the cause for respondent. With him on the brief were J. Joseph Curran, Jr., Attorney General, and Valerie V. Cloutier, Assistant Attorney General.
Julius L. Chambers, James M. Nabrit III, John Charles Boger, Vivian Berger, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Louis J. DiTrani filed a brief for the Stephanie Roper Foundation, Inc., as amicus curiae urging affirmance.
Justice Powell
delivered the opinion of the Court.
The question presented is whether the Constitution prohibits a jury from considering a “victim impact statement” during the sentencing phase of a capital murder trial.
I — I
In 1983, Irvin Bronstein, 78, and his wife Rose, 75, were robbed and murdered in their West Baltimore home. The murderers, John Booth and Willie Reid, entered the victims’ home for the apparent purpose of stealing money to buy heroin. Booth, a neighbor of the Bronsteins, knew that the elderly couple could identify him. The victims were bound and gagged, and then stabbed repeatedly in the chest with a kitchen knife. The bodies were discovered two days later by the Bronsteins’ son.
A jury found Booth guilty of two counts of first-degree murder, two counts of robbery, and conspiracy to commit robbery. The prosecution requested the death penalty, and Booth elected to have his sentence determined by the jury instead of the judge. See Md. Ann. Code, Art. 27, § 413(b) (1982). Before the sentencing phase began, the State Division of Parole and Probation (DPP) compiled a presentence report that described Booth’s background, education and employment history, and criminal record. Under a Maryland statute, the presentence report in all felony cases also must include a victim impact statement (VIS), describing the effect of the crime on the victim and his family. Md. Ann. Code, Art. 41, § 4-609(c) (1986). Specifically, the report shall:
“(i) Identify the victim of the offense;
“(ii) Itemize any economic loss suffered by the victim as a result of the offense;
“(iii) Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;
“(iv) Describe any change in the victim’s personal welfare or familial relationships as a result of the offense;
“(v) Identity any request for psychological services initiated by the victim or the victim’s family as a result of the offense; and
“(vi) Contain any other information related to the impact of the offense upon the victim or the victim’s family that the trial court requires.” §4-609(c)(3).
Although the VIS is compiled by the DPP, the information is supplied by the victim or the victim’s family. See §§ 4— 609(c)(4), (d). The VIS may be read to the jury during the sentencing phase, or the family members may be called to testify as to the information.
The VIS in Booth’s case was based on interviews with the Bronsteins’ son, daughter, son-in-law, and granddaughter. Many of their comments emphasized the victims’ outstanding personal qualities, and noted how deeply the Bronsteins would be missed. Other parts of the VIS described the emotional and personal problems the family members have faced as a result of the crimes. The son, for example, said that he suffers from lack of sleep and depression, and is “fearful for the first time in his life.” App. 61. He said that in his opinion, his parents were “butchered like animals.” Ibid. The daughter said she also suffers from lack of sleep, and that since the murders she has become withdrawn and distrustful. She stated that she can no longer watch violent movies or look at kitchen knives without being reminded of the murders. The daughter concluded that she could not forgive the murderer, and that such a person could “[n]ever be rehabilitated.” Id., at 62. Finally, the granddaughter described how the deaths had ruined the wedding of another close family member that took place a few days after the bodies were discovered. Both the ceremony and the reception were sad affairs, and instead of leaving for her honeymoon, the bride attended the victims’ funeral. The VIS also noted that the granddaughter had received counseling for several months after the incident, but eventually had stopped because she concluded that “no one could help her.” Id., at 63.
The DPP official who conducted the interviews concluded the VIS by writing:
“It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them.” Id., at 63-64.
Defense counsel moved to suppress the VIS on the ground that this information was both irrelevant and unduly inflammatory, and that therefore its use in a capital case violated the Eighth Amendment of the Federal Constitution. The Maryland trial court denied the motion, ruling that the jury was entitled to consider “any and all evidence which would bear on the [sentencing decision].” Id., at 6. Booth’s lawyer then requested that the prosecutor simply read the VIS to the jury rather than call the family members to testify before the jury. Defense counsel was concerned that the use of live witnesses would increase the inflammatory effect of the information. The prosecutor agreed to this arrangement.
The jury sentenced Booth to death for the murder of Mr. Bronstein and to life imprisonment for the murder of Mrs. Bronstein. On automatic appeal, the Maryland Court of Appeals affirmed the conviction and the sentences. 306 Md. 172, 507 A. 2d 1098 (1986). The court rejected Booth’s claim that the VIS injected an arbitrary factor into the sentencing decision. The court noted that it had considered this argument in Lodowski v. State, 302 Md. 691, 490 A. 2d 1228 (1985), vacated on other grounds, 475 U. S. 1078 (1986), and concluded that a VIS serves an important interest by informing the sentencer of the full measure of harm caused by the crime. The Court of Appeals then examined the VIS in Booth’s case, and concluded that it is a “relatively straightforward and factual description of the effects of these murders on members of the Bronstein family.” 306 Md., at 223, 507 A. 2d, at 1124. It held that the death sentence had not been imposed under the influence of passion, prejudice, or other arbitrary factors. See Md. Ann. Code, Art. 27, § 414(e)(1) (1982).
We granted certiorari to decide whether the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence. 479 U. S. 882 (1986). We conclude that it does, and now reverse.
i — I I — I
It is well settled that a jury’s discretion to impose the death sentence must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); California v. Ramos, 463 U. S. 992, 999 (1983). Although this Court normally will defer to a state legislature’s determination of what factors are relevant to the sentencing decision, the Constitution places some limits on this discretion. See, e. g., id., at 1000-1001. Specifically, we have said that a jury must make an “individualized determination” whether the defendant in question should be executed, based on “the character of the individual and the circumstances of the crime.” Zant v. Stephens, 462 U. S. 862, 879 (1983) (emphasis in original). See also Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). And while this Court has never said that the defendant’s record, characteristics, and the circumstances of the crime are the only permissible sentencing considerations, a state statute that requires consideration of other factors must be scrutinized to ensure that the evidence has some bearing on the defendant’s “personal responsibility and moral guilt.” Enmund v. Florida, 458 U. S. 782, 801 (1982). To do otherwise would create the risk that a death sentence will be based on considerations that are “constitutionally impermissible or totally irrelevant to the sentencing process.” See Zant v. Stephens, supra, at 885.
The VIS in this case provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members’ opinions and characterizations of the crimes and the defendant. For the reasons stated below, we- find that this information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.
A
The greater part of the VIS is devoted to a description of the emotional trauma suffered by the family and the personal characteristics of the victims. The State claims that this evidence should be considered a “circumstance” of the crime because it reveals the full extent of the harm caused by Booth’s actions. In the State’s view, there is a direct, foreseeable nexus between the murders and the harm to the family, and thus it is not “arbitrary” for the jury to consider these consequences in deciding whether to impose the death penalty. Although “victim impact” is not an aggravating factor under Maryland law, the State claims that by knowing the extent of the impact upon and the severity of the loss to the family, the jury was better able to assess the “ ‘gravity or aggravating quality’ ” of the offense. Brief for Respondent 21 (quoting Lodowski v. State, 302 Md., at 741-742, 490 A. 2d, at 1254).
While the full range of foreseeable consequences of a defendant’s actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstance of a capital sentencing hearing. In such a case, it is the function of the sentencing jury to “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968). When carrying out this task the jury is required to focus on the defendant as a “uniquely individual human bein[g].” Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.). The focus of a VIS, however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and therefore will have no knowledge about the existence or characteristics of the victim’s family. Moreover, defendants rarely select their victims based on whether the murder will have an effect on anyone other than the person murdered. Allowing the jury to rely on a VIS therefore could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury’s attention away from the defendant’s background and record, and the circumstances of the crime.
It is true that in certain cases some of the information contained in a VIS will have been known to the defendant before he committed the offense. As we have recognized, a defendant’s degree of knowledge of the probable consequences of his actions may increase his moral culpability in a constitutionally significant manner. See Tison v. Arizona, 481 U. S. 137, 157-158 (1987). We nevertheless find that because of the nature of the information contained in a VIS, it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.
As evidenced by the full text of the VIS in this case, see Appendix to this opinion, the family members were articulate and persuasive in expressing their grief and the extent of their loss. But in some cases the victim will not leave behind a family, or the family members may be less articulate in describing their feelings even though their sense of loss is equally severe. The fact that the imposition of the death sentence may turn on such distinctions illustrates the danger of allowing juries to consider this information. Certainly the degree to which a family is willing and able to express its grief is irrelevant to the decision whether a defendant, who may merit the death penalty, should live or die. See 306 Md., at 233, 507 A. 2d, at 1129 (Cole, J., concurring in part and dissenting in part) (concluding that it is arbitrary to make capital sentencing decisions based on a VIS, “which vary greatly from case to case depending upon the ability of the family member to express his grief”).
Nor is there any justification for permitting such a decision to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character. This type of information does not provide a “principled way to distinguish [cases] in which the death penalty was imposed, from the many cases in which it was not.” Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (opinion of Stewart, J.). See also Skipper v. South Carolina, 476 U. S. 1, 14-15 (1986) (Powell, J., concurring in judgment).
We also note that it would be difficult — if not impossible— to provide a fair opportunity to rebut such evidence without shifting the focus of the sentencing hearing away from the defendant. A threshold problem is that victim impact information is not easily susceptible to rebuttal. Presumably the defendant would have the right to cross-examine the de-clarants, but he rarely would be able to show that the family members have exaggerated the degree of sleeplessness, depression, or emotional trauma suffered. Moreover, if the state is permitted to introduce evidence of the victim’s personal qualities, it cannot be doubted that the defendant also must be given the chance to rebut this evidence. See Gardner v. Florida, 430 U. S. 349, 362 (1977) (opinion of Stevens, J.) (due process requires that defendant be given a chance to rebut presentence report). See also Md. Ann. Code, Art. 27, § 413(c)(v) (1982). Putting aside the strategic risks of attacking the victim’s character before the jury, in appropriate cases the defendant presumably would be permitted to put on evidence that the victim was of dubious moral character, was unpopular, or was ostracized from his family. The prospect of a “mini-trial” on the victim’s character is more than simply unappealing; it could well distract the sentencing jury from its constitutionally required task— determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime. We thus reject the contention that the presence or absence of emotional distress of the victim’s family, or the victim’s personal characteristics, are proper sentencing considerations in a capital case.
B
The second type of information presented to the jury in the VIS was the family members’ opinions and characterizations of the crimes. The Bronsteins’ son, for example, stated that his parents were “butchered like animals,” and that he “doesn’t think anyone should be able to do something like that and get away with it.” App. 61. The VIS also noted that the Bronstein’s daughter
“could never forgive anyone for killing [her parents] that way. She can’t believe that anybody could do that to someone. The victims’ daughter states that animals wouldn’t do this. [The perpetrators] didn’t have to kill because there was no one to stop them from looting.... The murders show the viciousness of the killers’ anger. She doesn’t feel that the people who did this could ever be rehabilitated and she doesn’t want them to be able to do this again or put another family through this.” Id., at 62.
One can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As we have noted, any decision to impose the death sentence must “be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, supra, at 358 (opinion of Stevens, J.). The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.
Ill
We conclude that the introduction of a VIS at the sentencing phase of a capital murder trial violates the Eighth Amendment, and therefore the Maryland statute is invalid to the extent it requires consideration of this information. The decision of the Maryland Court of Appeals is vacated to the extent that it affirmed the capital sentence. The case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
‘VICTIM IMPACT STATEMENT
[The Victim Impact Statement in this case was prepared by the Maryland Division of Parole and Probation. See n. 2, supra. ]
“Mr. and Mrs. Bronstein’s son, daughter, son-in-law, and granddaughter were interviewed for purposes of the Victim Impact Statement. There are also four other grandchildren in the family. The victims’ son reports that his parents had been married for fifty-three years and enjoyed a very close relationship, spending each day together. He states that his father had worked hard all his life and had been retired for eight years. He describes his mother as a woman who was young at heart and never seemed like an old lady. She taught herself to play bridge when she was in her seventies. The victims’ son relates that his parents were amazing people who attended the senior citizens’ center and made many devout friends. He indicates that he was very close to his parents, and that he talked to them every day. The victims’ daughter also spent lots of time with them.
“The victims’ son saw his parents alive for the last time on May 18th. They were having their lawn manicured and were excited by the onset of spring. He called them on the phone that evening and received no answer. He had made arrangements to pick Mr. Bronstein up on May 20th. They were both to be ushers in a granddaughter’s wedding and were going to pick up their tuxedos. When he arrived at the house on May 20th he noticed that his parents’ car wasn’t there. A neighbor told him that he hadn’t seen the car in several days and he knew something was wrong. He went to his parents’ house and found them murdered. He called his sister crying and told her to come right over because something terrible had happened and their parents were both dead.
“The victims’ daughter recalls that when she arrived at her parents’ house, there were police officers and television crews everywhere. She felt numb and cold. She was not allowed to go into the house and so she went to a neighbor’s home. There were people and reporters everywhere and all she could feel was cold. She called her older daughter and told her what had happened. She told her daughter to get her husband and then tell her younger daughter what had happened. The younger daughter was to be married two days later.
“The victims’ granddaughter reports that just before she received the call from her mother she had telephoned her grandparents and received no answer. After her mother told her what happened she turned on the television and heard the news reports about it. The victims’ son reports that his children first learned about their grandparents death from the television reports.
“Since the Jewish religion dictates that birth and marriage are more important than death, the granddaughter’s wedding had to proceed on May 22nd. She had been looking forward to it eagerly, but it was a sad occasion with people crying. The reception, which normally would have lasted for hours, was very brief. The next day, instead of going on her honeymoon, she attended her grandparents’ funerals. The victims’ son, who was an usher at the wedding, cannot remember being there or coming and going from his parents’ funeral the next day. The victims’ granddaughter, on the other hand, vividly remembers every detail of the days following her grandparents’ death. Perhaps she described the impact of the tragedy most eloquently when she stated that it was a completely devastating and life altering experience.
“The victims’ son states that he can only think of his parents in the context of how he found them that day, and he can feel their fear and horror. It was 4:00 p.m. when he discovered their bodies and this stands out in his mind. He is always aware of when 4:00 p.m. comes each day, even when he is not near a clock. He also wakes up at 4:00 a.m. each morning. The victims’ son states that he suffers from lack of sleep. He is unable to drive on the streets that pass near his parents’ home. He also avoids driving past his father’s favorite restaurant, the supermarket where his parents shopped, etc. He is constantly reminded of his parents. He sees his father coming out of synagogues, sees his parents’ car, and feels very sad whenever he sees old people. The victims’ son feels that his parents were not killed, but were butchered like animals. He doesn’t think anyone should be able to do something like that and get away with it. He is very angry and wishes he could sleep and not feel so depressed all the time. He is fearful for the first time in his life, putting all the lights on and checking the locks frequently. His children are scared for him and concerned for his health. They phone him several times a day. At the same time he takes a fearful approach to the whereabouts of his children. He also calls his sister every day. He states that he is frightened by his own reaction of what he would do if someone hurt him or a family member. He doesn’t know if he’ll ever be the same again.
“The victims’ daughter and her husband didn’t eat dinner for three days following the discovery of Mr. and Mrs. Bron-stein’s bodies. They cried together every day for four months and she still cries every day. She states that she doesn’t sleep through a single night and thinks a part of her died too when her parents were killed. She reports that she doesn’t find much joy in anything and her powers of concentration aren’t good. She feels as if her brain is on overload. The victims’ daughter relates that she had to clean out her parents’ house and it took several weeks. She saw the bloody carpet, knowing that her parents had been there, and she felt like getting down on the rug and holding her mother. She wonders how this could have happened to her family because they’re just ordinary people. The victims’ daughter reports that she had become noticeably withdrawn and depressed at work and is now making an effort to be more outgoing. She notes that she is so emotionally tired because she doesn’t sleep at night, that she has a tendency to fall asleep when she attends social events such as dinner parties or the symphony. The victims’ daughter states that wherever she goes she sees and hears her parents. This happens every day. She cannot look at kitchen knives without being reminded of the murders and she is never away from it. She states that she can’t watch movies with bodies or stabbings in it. She can’t tolerate any reminder of violence. The victims’ daughter relates that she used to be very trusting, but is not any longer. When the doorbell rings she tells her husband not to answer it. She is very suspicious of people and was never that way before.
“The victims’ daughter attended the defendant’s trial and that of the co-defendant because she felt someone should be there to represent her parents. She had never been told the exact details of her parents’ death and had to listen to the medical examiner’s report. After a certain point, her mind blocked out and she stopped hearing. She states that her parents were stabbed repeatedly with viciousness and she could never forgive anyone for killing them that way. She can’t believe that anybody could do that to someone. The victims’ daughter states that animals wouldn’t do this. They didn’t have to kill because there was no one to stop them from looting. Her father would have given them anything. The murders show the viciousness of the killers’ anger. She doesn’t feel that the people who did this could ever be rehabilitated and she doesn’t want them to be able to do this again or put another family through this. She feels that the lives of her family members will never be the same again.
“The victims’ granddaughter states that unless you experience something like this you can’t understand how it feels. You are in a state of shock for several months and then a terrible depression sets in. You are so angry and feel such rage. She states that she only dwells on the image of their death when thinking of her grandparents. For a time she would become hysterical whenever she saw dead animals on the road. She is not able to drive near her grandparents’ house and will never be able to go into their neighborhood again. The victims’ granddaughter also has a tendency to turn on all the lights in her house. She goes into a panic if her husband is late coming home from work. She used to be an avid reader of murder mysteries, but will never be able to read them again. She has to turn off the radio or T.V. when reports of violence come on because they hit too close to home. When she gets a newspaper she reads the comics and throws the rest away. She states that it is the small everyday things that haunt her constantly and always will. She saw a counselor for several months but stopped because she felt that no one could help her.
“The victims’ granddaughter states that the whole thing has been very hard on her sister too. Her wedding anniversary will always be bittersweet and tainted by the memory of what happened to her grandparents. This year on her anniversary she and her husband quietly went out of town. The victims’ granddaughter finds that she is unable to look at her sister’s wedding pictures. She also has a picture of her grandparents, but had to put it away because it was too painful to look at it.
“The victims’ family members note that the trials of the suspects charged with these offenses have been delayed for over a year and the postponements have been very hard on the family emotionally. The victims’ son notes that he keeps seeing news reports about his parents’ murder which show their house and the police removing their bodies. This is a constant reminder to him. The family wants the whole thing to be over with and they would like to see swift and just punishment.
“As described by their family members, the Bronsteins were loving parents and grandparents whose family was most important to them. Their funeral was the largest in the history of the Levinson Funeral Home and the family received over one thousand sympathy cards, some from total strangers. They attempted to answer each card personally. The family states that Mr. and Mrs. Bronstein were extremely good people who wouldn’t hurt a fly. Because of their loss, a terrible void has been put into their lives and every day is still a strain just to get through. It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them.” App. 59-64.
Booth’s accomplice, Willie Reid, was convicted and sentenced to death as a principal in the first degree to the murder of Mrs. Bronstein. His conviction was affirmed and his sentence is currently under review. See Reid v. State, 305 Md. 9, 501 A. 2d 436 (1985).
When the statute was enacted it was unclear whether a VIS was admissible in a capital case. See § 4-609(c)(2)(i) (1986) (VIS required if victim suffered injury, whereas for a misdemeanor, VIS required if victim suffers injury or death); Lodowski v. State, 302 Md. 691, 761, 490 A. 2d 1228, 1264 (1985) (Cole, J., concurring), vacated on other grounds, 475 U. S. 1078 (1986). In 1983, the Maryland General Assembly amended the VIS provision to provide that:
“In any ease in which the death penalty is requested... a presen-tence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is con-ducted_” §4-609(d) (1986).
The VIS stated:
“[T]he victims’ son reports that his parents had been married for fifty-three years and enjoyed a very close relationship, spending each day together. He states that his father had worked hard all his life and had been retired for eight years. He describes his mother as a woman who was young at heart and never seemed like an old lady. She taught herself to play bridge when she was in her seventies. The victims’ son relates that his parents were amazing people who attended the senior citizens’ center and made many devout friends.” App. 69.
“As described by their family members, the Bronsteins were loving parents and grandparents whose family was most important to them. Their funeral was the largest in the history of the Levinson Funeral Home and the family received over one thousand sympathy cards, some from total strangers.” Id,., at 63.
The complete VIS is reprinted in the Appendix to this opinion.
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions of the Eighth Amendment apply to the States through the Due Process Clause of the Fourteenth Amendment. See Robinson v. California, 370 U. S. 660, 666 (1962).
Before the jury may impose a capital sentence, it must find that at least one of the following aggravating circumstances are present:
“(1) The victim was a law enforcement officer who was murdered while in the performance of his duties.
“(2) The defendant committed the murder at a time when he was confined in any correctional institution.
“(3) The defendant committed the murder in furtherance of an escape or an attempt to escape from or to evade the lawful custody, arrest, or detention of or by an officer or guard of a correctional institution or by a law enforcement officer.
“(4) The victim.was taken or attempted to be taken in the course of a kidnapping or abduction, or an attempt to kidnap or abduct.
“(5) The victim was a child abducted in violation of § 2 of this article.
“(6) The defendant committed the murder pursuant to an agreement or contract for remuneration or the promise of remuneration to commit the murder.
“(7) The defendant engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration.
“(8) At the time of the murder the defendant was under sentence of death or imprisonment for life.
“(9) The defendant committed more than one offense of murder in the first degree arising out of the same incident.
“(10) The defendant committed the murder while committing or attempting to commit a robbery, arson, or rape, or sexual offense in the first degree.” See Md. Ann. Code, Art. 27, § 413(d) (1982 and Supp. 1986). Because the impact of the crime on the victim is not a statutorily defined aggravating circumstance, it would not be sufficient, standing alone, to support a capital sentence. § 413(f).
As one state court has noted:
“We think it obvious that a defendant’s level of culpability depends not on fortuitous circumstances such as the composition of his victim’s family, but on circumstances over which he has control. A defendant may choose, or decline, to premeditate, to act callously, to attack a vulnerable victim, to commit a crime while on probation, or to amass a record of offenses.... In contrast, the fact that a victim’s family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of homicide in the first place. Such bereavement is relevant to damages in a civil action, but it has no relationship to the proper purposes of sentencing in a criminal case.” People v. Levitt, 156 Cal. App. 3d 500, 516-517, 203 Cal. Rptr. 276, 287-288 (1984).
We are troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Of course, our system of justice does not tolerate such distinctions. Cf. Furman v. Georgia, 408 U. S. 238, 242 (1972) (Douglas, J., concurring).
See n. 3, supra. The Maryland sentencing statute does not expressly permit evidence of the victim’s character and community status to be included in the VIS. The Maryland Court of Appeals, however, apparently has determined that the statute only establishes the minimum amount of information that must be provided. Consideration of other information in the VIS is subject to the trial judge’s discretion. See Reid v. State, 302 Md. 811, 820-821, 490 A. 2d 1289, 1294 (1985).
This type of information is not unique to the VIS in Booth’s case. In Lodowski v. State, the trial court admitted a VIS based on an interview with the victim’s wife that said in part:
“[The victim] was the perfect family person, he was totally devoted to his family. It was like a miracle to find a man like him — we had something very special. We had created a love that could withstand anything in life. We were not only husband and wife, but best friends.” 302 Md., at 766, 490 A. 2d, at 1266 (Cole, J., concurring)
The court in Lodowski found that VIS evidence in general is not constitutionally proscribed, and is relevant to a capital sentencing determination. Id., at 751, 752, 490 A. 2d, at 1259.
Our disapproval of victim impact statements at the sentencing phase of a capital case does not mean, however, that this type of information will never be relevant in any context. Similar types of information may well be admissible because they relate directly to the circumstances of the crime. Facts about the victim and family also may be relevant in a non-capital criminal trial. Moreover, there may be times that the victim’s personal characteristics are relevant to rebut an argument offered by the defendant. See, e. g., Fed. Rule Evid. 404(a)(2) (prosecution may show peaceable nature of victim to rebut charge that victim was aggressor). The trial judge, of course, continues to have the primary responsibility for deciding when this information is sufficiently relevant to some legitimate consideration to be admissible, and when its probative value outweighs any prejudicial effect. Cf. Fed. Rule Evid. 403.
The same problem is presented by the VIS summary written by the DPP that might be viewed by the jury as representing the views of the State. As noted supra, at 500, the
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_usc1sect
|
666
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 43. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
PEOPLE OF THE STATE OF CALIFORNIA, Appellant, v. UNITED STATES of America, Appellee. SANTA MARGARITA MUTUAL WATER COMPANY, Appellant, v. UNITED STATES of America, Appellee.
No. 14049.
United States Court of Appeals Ninth Circuit.
March 30, 1956.
Edmund G. Brown, Atty. Gen., George G. Grover, Dep. Atty. Gen., Henry Hol-singer, Principal Attorney, Division of Water Resources, Gavin M. Craig, Senior Attorney, Division of Water Resources, State of California, Sacramento, Cal., for appellant, State of California.
W. B. Dennis, for Santa Margarita Mut. Water Co., Fallbrook, Cal.
J. Lee Rankin, Asst. Atty. Gen., William H. Yeeder, Sp. Asst, to Atty. Gen., for appellee.
Swing, Scharnikow & Staniforth, Phil D. Swing, San Diego, Cal., for Fallbrook Public Utility Dist., amicus curiae.
Before STEPHENS, ORR and FEE, Circuit Judges.
JAMES ALGER FEE, Circuit Judge.
The United States brought an action against some three thousand (3,000) defendants to quiet title to water rights claimed to be appurtenant to lands acquired in 1941-1943 and used for various purposes of the army and navy and which, collectively, with additions from the public domain, will be referred to as “Pendleton.”
The history of this litigation appears in United States v. Fallbrook Public Utility Dist., D. C., 101 F.Supp. 298, 108 F.Supp. 72, 109 F.Supp. 28 and 110 F. Supp. 767.
The State of California was served as a defendant and appeared as intervenor.
On motion of the government, separate trial was held as to Santa Margarita and People of the State of California. Thereafter, the trial court entered a judgment in favor of the government and against these two, the appellants, Santa Margarita and the State alone, from which these appeals are taken.
The judgment which was rendered contained recitals of certain declarations purporting to be based upon findings of fact, and adjudged that the Santa Margarita Mutual Water Company and the State of California, and each of them, “are forever barred from any and all claim of right, title or interest in and to those rights to the use of water” which the court found vested in the United States. The judgment was made final July 1, 1953.
During the years 1941, 1942 and 1943, the United States, by three separate transactions, acquired by condemnation and purchase most of the Rancho Santa Margarita and by executive order added thereto from the adjoining public domain 1574.61 acres more and established thereon the United States Naval Ammunition Depot at Fallbrook, the United States Naval Hospital and Camp Joseph H. Pendleton. All of this land, with the exception of the lands added from the public domain, had been in private ownership long before California joined the Union. This military reservation as a whole has an area of 135,000 acres. The Santa Margarita River is a coastal stream which drains a watershed in San Diego and Riverside Counties and flows through Pendleton for 21 miles and thereupon enters the ocean.
The United States brought into the trial court all of the other claimants of the river system, praying that its title to water right as the landowner at the mouth be quieted against each.and all. By final judgment, the District Court is empowered to grant complete relief as to all claimants and the United States, adjudicate the water rights, set up control systems and require physical solutions of specific problems, equitably charging the expense thereof to the claimant of surplus so created.
The cardinal fact in the case is that in 1941 the State of California ceded to the United States general sovereignty over the territory, land and water, embraced in the enclave.
Among the factors extraneous to the merits, which seem to have affected the trial of this case, was the standing and good faith of Santa Margarita and its supporters. This Court has spoken as to the efforts of interested parties to prevent the trial of this case by the able District Judge. There also was improper interference legislatively to prevent a hearing in one of the courts of the nation. The trial court found that Santa Margarita had “not made any diversion” and the State had issued no permits for diversion or storage. In other words, here was a paper application.
It can apparently be gleaned from the record that this stream and its tributaries are upon lands over which the United States did not have sovereignty before the cession by the State of California. None of these creeks are navigable. There is no problem of the use of these waters for power or navigation. Flood control is necessary only to conserve water and create a surplus. There are thus no complicating factors. Before the acquisition by the government, the problem was one of settlement of rights of individual landowners under California law.
The law of California, by stipulation here and by the federal Constitution, controls the water rights within its boundaries. The most strict application of the doctrine of riparian rights adapted from the common law between proprietors on a stream, both as to normal flow and flood waters, was enforced by the courts of the state. Even the constitutional amendment of the fundamental law of the state, although limiting the scope of applicability of the established doctrine by the concept of beneficial use, is given close scrutiny in order not to interfere with vested rights.
Here the United States “claims only such rights to the use of water as it acquired when it purchased Rancho Santa Margarita, together with any rights which it may have gained by prescription or use or both since” that time. Inasmuch as the rights at the date of ac-quisition depend upon the law of the state, this Court defers to the interpretation of the able trial judge, himself a lawyer of the state of long standing, acquainted with the imponderables and implications inherent in the pronouncement of the courts of the state. This Court will not reject any such interpretation unless convinced that it be manifestly contrary to the holdings of the local tribunals.
On the other hand, decision of problems of national law and process and procedure of federal courts are familiar ground to the judges of this Court. It is incumbent upon federal appellate judges also to maintain the delicate balance between the sharers of dual sovereignty in this area, the United States of Amer-ica and the State of California. The problem has intriguing scholastic aspects. But it is earthily practical. These are therein deep rooted implications of the structure of government.
If the partial judgment in this case had only gone to the extent of declaring under the laws of California one who has filed an application for appropriation of water, which had not been acted upon by the state authorities and under which no diversion had been made, acquired no privileges which should conflict with the vested real property rights of riparian owners and established appropriators, no appeal would probably have been taken. But this judgment, above summarized, apparently cuts off (a) the right of the State of California, as sovereign over the landowners and appropriators on the watershed, other than the federal government, to resolve the water rights outside the enclave between such parties and also the rights of the State of California, as landowner and proprietor of water rights on parcels in the watershed above the enclave; (b) the right of Santa Margarita, by perfecting its application, to rank ahead of subsequent applicants for appropriations, including the Navy, and to utilize surplus water, if any, which developed now or in the future. And finally (c) in a suit where there are many other parties, the partial judgment attempts to fix positive rights of ownership of water in the government “by prescription” or “use” which rights would not only be valid against the State of California and Santa Margarita, but against all the other litigants and the world.
The government apparently desired to try Santa Margarita because it was obviously in the weakest position of any prospective user on the stream. This was, of course, perfectly proper, and this Court has affirmed the trial judge in the exercise of his discretion. But no license was accorded thereby to enter judgment in such sweeping terms. It is demonstrable that some of the declarations, conclusions and findings are improper as to each, Santa Margarita and the State of California. If Santa Margarita had any right, even inchoate, under the laws of California, then that right, whatever its value, must be protected. The State of California should not be denied the power of granting a permit to Santa Margarita valid against all private landowners. It would, of course, only be valid for surplus waters, if any, now or in the future. Diversion of water not surplus by an appropriator is a trespass. While there might be a final judgment in this case declaring the future needs and settlements of the United States, such a judgment should not cut off rights to use the water which is presently surplus, if any.
These errors in the breadth of the partial judgment may have been caused by a misconception of (a) “military necessity,” (b) “sovereign rights” of the United States, or (c) the effect of a judgment in the state court between Rancho and Vail and a stipulation between the government attorneys and Vail.
One factor is handled only to be immediately discarded. The government brief blares out like a trumpet the “military necessity” in the use of Pendleton against the “aggressors.” “It was on the postulate that the United States of America could utilize water in the State of California successfully to wage war that the case was tried.” This reasoning seems to have had effect on the findings of the trial court. The crisis existing when this land was acquired still exists. It may exist beyond the lives of any now living. New developments may require the taking of more land. For that, the government will pay just compensation. If more water rights than those presently appurtenant to the holdings are necessary, the government can acquire these also by paying just compensation. But the principles of property law should not be warped in order to provide for contingencies yet to come. The stipulation above quoted measures the right of the government. The theory of the government agents seems to be that, if a military post be established upon the mouth of a stream and the State voluntarily cedes sovereignty of the area, on the ground of military purposes and future military necessities, the government obtains the right to use all of the water which in the state of nature flowed there, even if the land and water is located in a state where the United States had no sovereignty except by the admission of the state to the Union. It is true, the decision here does not approach the limits of the theory proposed, but the findings and declaration seem to have been influenced thereby.
As noted, the United States had no original sovereignty over the territory included in the present boundaries of the State of California. This is a unique situation, although not entirely unprecedented. No sovereign rights over this land existed in the United States except as provided by the dual system until the State of California ceded exclusive jurisdiction over the tracts of land acquired by condemnation. By federal law, thereafter, United States held paramount and exclusive control and jurisdiction over the land and water which at any time is upon the land within the limits of this enclave. The process of the state courts could not run therein unless by consent. The executive and administrative bodies and regulations had no control therein. State law, substantive and procedural, had no force over persons or objects within the boundaries.
The question of “sovereign rights” of the United States pervades this entire case and has done so from the beginning. Not only that, but the steady beating of the war drums in the government’s brief by references to “military necessity” tends to deflect full consideration from the property rights of ordinary citizens.
It is true enough that, at the time of the establishment of Camp Pendleton in 1942, military necessity was a prime consideration. There are elaborate disclaimers by the government attorneys of any appeal to the doctrine of sovereignty in settling this case. These appear likewise in the opinions and findings of the trial court. On the surface, it is agreed by all that the law of the State of California should be applied. For all that, the sovereign rights of the United States seem to have had a controlling effect upon the findings and judgment.
Now it must be conceded by all parties that the United States had sovereign rights in the enclave. The rules governing the use of that property were properly set by the Executive under the Constitution. Its rights within the borders were sovereign, paramount and supreme. This principle applied to the use of water appurtenant to the land. The United States could store the water which came to the land or use it on a different watershed than that of the Santa Margarita without interference from anyone. The Water Master of the State of California had no authority in the enclave and could not object. Santa Margarita could not object or prevent the United States from using the water which came onto the land in any way its officers chose. This sovereign authority was essential and was granted by the Constitution.
But the physical possession of the corpus of the water after it enters the enclave and the ability and legal right then to use it for whatever purposes are not evidentiary of a water right, for the right to use water is a property right and is appurtenant to particular parcels of land. We must not fall into the fallacy of believing that, because the United States, by its sovereignty, made use of the corpus of water which entered the enclave as it chose, it thereby acquired property rights in the flow against upper riparians or appropriators under municipal law.
This principle has important effects. The findings of the trial court that there was no surplus either now or in the future were vitally affected. Since neither appropriators, riparians nor anyone else could object or prevent such use of water by the United States in the enclave, such use was not adverse to their interests.
These parties could not be estopped by “use” of the corpus of the water with which none of them by any possibility could interfere. To hold that the “use” of the corpus of the water coming onto the enclave for any purposes the government agents required, whether beneficial or not, and that the “needs”, present and future, claimed by government attorneys were the measure of vested property rights, would be to adjudge that California not only ceded the sovereignty over the enclave, but thereby bargained, sold and delivered a vested water right adverse to all other claimants in all the flow of the stream at that time. But California did not own such a water right and could not grant it.
The government, as regards all claimants to water outside the enclave, is not in the position of sovereign, but in the position of a lower riparian which is compelled to make beneficial use within the watershed and for other than proper riparian uses must show an appropriation according to law.
This case must be remanded because of the apparent misconceptions of the law of the enclave by the trial court and the application of the theory of sovereignty to the subversion of vested and inchoate private rights.
Declarations, findings and conclusions, hereinafter criticized, eventually may be found in substance to be well founded upon the entry of final judgment in the action. In remanding, this Court is not attempting to find fact or express any opinion as to fact situation, but rather to indicate that many of the declarations, findings and conclusions are not well founded on the present record, are premature and may tend, if allowed to stand, to be given undue weight in the final judgment, owing to the erroneous influence of factors herein considered.
The two declarations of the judgment are manifestly erroneous:
“12. If the correlative rights of the two chief riparian owners (the United States of America and the Vail Estate) are considered, there was not at the time of the filing of the appropriation notices by the Santa Margarita Mutual Water Company in 1946 and 1947, any surplus water supply to appropriate.
“13. There is no surplus water supply at the present time subject to appropriation.” 110 F.Supp. 767, 788.
as is Finding 115:
“There is no surplus water at the present time available for appropriation from the Santa Margarita River system; there was no surplus so available in the year 1946; there was no surplus so available when Camp Pendleton was placed in operation as a military installation in 1942.” 110 F.Supp. 767, 783.
If these are findings of fact, they are clearly erroneous; and, if conclusions of law, they are wrong.
There are no facts found by the court anywhere which justify this declaration. In essence, it appears to be based upon prior litigation between the Vails and predecessor of the United States and the acceptance by the latter of that decree as a basis in this case. Also, the agreements and stipulations between the United States and Vail seem to have been given weight. None of these considerations was proper, since Vail was not a party to this present judgment and the rights of Santa Margarita against it wrere reserved. Similarly, the State of California had other lands in the watershed which it excepts specifically because this declaration eliminates consideration of the water rights of these lands by a spurious merger of the rights of Vail and the United States. This merger was an attempt to tie the landowner uppermost on the watershed to the lowermost owner, which could not be done against those having intervening rights on the stream except by the application of the principles of sovereignty.
Appellants make the point in the assignments of error that the Vail Estate is not a party to the instant judgment. The trial court specifically said, as a ground for entering the partial judgment against appellants, that the rights of Santa Margarita against Vail and all other defendants in the main suit would be reserved. There had been a lawsuit wherein the water rights of Rancho Santa Margarita, a private owner, predecessor of the government, on a part of this land against the Vails were determined. But this stipulated judgment between two litigants is contractual in character between the principals to the agreement and is not binding upon the Water District or the State. Thus the correlative rights between the Vail Estate and the government have been settled by agreement. Such a correlation does not bind appellants. But a key declaration is based upon the assumption that it does. There is connected therewith another finding which comes within the same assignment of error. The court found the United States was entitled to 3 cubic feet of water per second at the upper end of Temecula gorge, which was released to it by the Vail Estate as against the Santa Margarita.
The stipulation that it is necessary for Vail to release these 3 cubic feet was and is, of course, binding upon the parties thereto. But the release at that point is obviously not a delivery to the United States. It only means that Vail was not entitled to any use of water unless and until there had been such a quantity released. It must be assumed that the rights of the intervening landowners and appropriators between the point of release and the boundary of the Rancho must have been considered. In any event, neither the state court nor Rancho and Vail had power to bind such parties or the State of California. This feature must be considered since it was given so much weight by the trial court in determining there was no surplus.
If the Vail Estate could not use this water above the filling of the Water Company, there would be a question of fact between them as to whether Vail could sell this water to the United States. Furthermore, the question concerns all other riparians and appropriators between Vail and Camp Pendleton.
None of these factors could be considered in making a decree that, on account of them, there was no surplus in the Santa Margarita watershed.
All the findings of fact relating to the Vail Estate and the litigation with the previous owner of the lands now held by the government would be pertinent in litigation between Vail and the government, but neither that nor the adoption of the decree by the government helps it against either the Santa Margarita or the State of California.
As will be hereafter noted, the trial court distinctly states this is not a final judgment as to Santa Margarita, but its rights in connection with the other defendants (including Vail) must be hereafter determined. The court was therefore in error in using the supposed rights of Vail as against Santa Margarita.
The declaration (No. 13) that there is no surplus at the present time is invalid. Here the misconception is apparent. If the corpus of the water coming onto the land in a dry year be considered, there might not be sufficient to satisfy the legitimate needs of the United States upon riparian land in that particular year. But that circumstance would not diminish its “water right” appurtenant to the land. Nor would it increase the incorporeal water right. In a future flood year, the United States would have the right to insist that only such water enter the reservation which a private owner could have used beneficially upon riparian land. It is improper to average the use, demand or supply of water over a series of years in the attempt to determine whether or not there is a present surplus.
The defects made manifest in the discussion of paragraph 12 enter into this consideration also and likewise vitiate this declaration.
The declaration that “there is no surplus water supply at the present time subject to appropriation” is clearly erroneous. This “finding” is in truth a conclusion. As such, there is a begging of the question at issue. The trial court assumes that “the demands of the United States of America of 15,300 acre-feet a year as recognized by the Trial Court” are valid and established. But that is the very point at issue. Instead of reasoning back from postulated “demands” of the government to find whether a present surplus exists, the trial court should have found in second feet or some other appropriate measure what water was at the designated time applied beneficially and not prodigally to riparian lands. The conclusion involves many facets of conflict. First, do the sovereign rights of the United States within the enclave change its relative position in respect to other private riparian owners and appropriators? Second, are the correlative rights of the two chief appropriators, the Vail Estate and the United States of America, which have been settled by agreement between them and which depend upon the final adjudication binding upon intervening riparians and appropriators to claimed surplus water?
Finding No. 115, that there was no surplus water at the time the United States acquired the lands is a pure deduction related back from the finding that there is no surplus at present time. No precise finding as to the amount of water used on each tract beneficially at that time has been made in this proceeding. This finding has no basis in the testimony or record. It is shown clearly erroneous by the fact that other findings show that flood water wasted into the ocean in various years when the land was in private ownership.
We are not therefore prepared to say, upon the bases of the findings of the trial court and the record in this case, that the uses to which the water was put by the United States were valid as compared with the inchoate appropri-ative right of Santa Margarita. Every water right in private ownership in California and each use or diversion thereof as appurtenant to land is subject to the limitations and prohibitions of the Constitutional amendment. Peabody v. City of Vallejo, 2 Cal.2d 351, 367, 40 P.2d 486. It is certain from the evidence in the case that in some years there is surplus water which flows clear through the watershed and wastes into the sea. No attempt is made by this Court to determine here what rights Santa Margarita might receive under a permit with relation to the United States and other ripa-rians and other appropriators. But it was error for the trial court to enter a final judgment as regards Santa Margarita without determining these questions.
Finally, the trial court found that there were 4535.3 acres of lands in the lower basin and that “the natural forage in this area is dependent upon the supply of water in the underground basin.” There were no definite findings as to how much water had been used at any time for that purpose. There was no finding that allowing the floodwaters to plunge over these lands was a reasonable method of application and use. There was no finding that no physical solution could be found for the problem, charging the cost to those claiming the surplus thereby created. There was no finding that the water stored in Lake O’Neill could not have been applied to this agricultural use, besides delighting the eye of the beholder. There was no finding that the Rancho and the government agents were not depleting this basin themselves by pumping water outside the watershed. If the latter were true, it might be possibly claimed as a “substituted use,” but surely the other parties above would not be required to allow water to flow down for the original use and for the substituted use in addition thereto. Yet this is within the scope of the declaratory judgment.
The adequacy of the findings, conclusions and declarations as to surplus which have just been discussed directly bear upon the rights of the State of California and Santa Margarita. There are pronouncements as to purported rights of the government not riparian in character, which enter into the declaration as to present surplus and also affect these litigants, but, since these are stated as vested property rights acquired by prescription and use, positively affect all the other parties in the main case filed in the name of the United States and all the world.
These pronouncements are summarized in the margin.
We now take up a consideration of the supposed positive rights of the government declared in this suit to exist by prescription and use as the foundation of a partial judgment in an action brought against all the owners in a watershed: (1) Storage of water in equalizing reservoirs or in Lake O’Neill; (2) uses of water outside the watershed; (3) military uses and the use of water in townsites or barracks not riparian. Such uses may indeed be beneficial.
Suffice it to say, the findings do not support the existence of any water right in Rancho or the government by either of these methods of acquisition. Although the question was argued, this Court does not presently decide whether a lower owner in California can acquire title to water rights by prescription or use against upper riparians or appropriators. “Use” of water can mean nothing more than appropriation and application to some purpose. Since no estoppel could be raised against other landowners and appropriators, the phrase used in the stipulation must mean “prescription” or “appropriation.” Because of this, the theory underlying the judgment, however, is that Rancho acquired a water right for such purposes above enumerated by “prescription or use.”
Apparently, under the law of California since 1913, a valid water right by appropriation can be acquired only by filing an application with the state authorities and pursuing it through the steps required by law. There is no finding that Rancho or the government agents made or pursued such an application.
At a late date after the filing of Santa Margarita, the agents of the government have made a filing, ostensibly for the Navy, upon the stream. If its lawyers and agents had obeyed the injunction of the reclamation statute when Camp Pendleton was first acquired and had filed for the surplus waters of the stream, another question would have arisen. But because they were not foresighted enough to do that is no reason to allow them to act as if they had. The Santa Margarita rights, if these have any value, may be purchased. If these have no value, they may be disregarded. In no event can they be appropriated by fiat.
Appropriated water must be appurtenant to a particular parcel of land and a particular beneficial use, and the initiation must be fixed at a positive date. Title to a water right by prescription must be founded on like essentials, and it must be further found that the use of a specified quantity on a given parcel continued through the period. There is no prescriptive right in gross. There can be no acquisition of such a right for a purpose not beneficial. But findings to support the acquisition of a title by either method in Rancho are conspicuously absent. The trial court seems also to have laid emphasis upon the proposition that the use by Rancho was adverse because in violation of the Vail decree. It would seem that, if thus adverse, it was only adverse as to Vail, and, if in violation of the terms of judgment, it could not be “under claim of right.” We do not pass upon this point, but designate the inadequacy of the findings.
The findings were not sufficient to support any prescriptive water right either in Rancho or the government. In order to be valid, such findings must specify a particular period not less than five years, during all of which a quantity of water (miners’ inches, cubic feet per second, acre feet) was continuously applied to a particular beneficial use, under claim of right, hostile and adverse to the property rights of all others interested.
There is also an attempt in the findings, conclusions and declarations to cure this defect and to cumulate the time when Rancho made use of water for purposes not riparian with that time when agents of the government made nonriparian uses of a different character and for different purposes. This attempt is fallacious. As soon as the United States took sovereignty of the enclave, as we have heretofore noted, its agents had the right to use the corpus of any water on any part of the area for any purpose. The State of California could not object or interfere. Its officers and agents could not even enter Pendleton without permission. The Bureau of Water Resources had no power or authority within these limits, as above noted. The trial court so held, and the holding is correct. The private landowners and appropriates could not object to any use of water by the government agents. Indeed, the former might well have been kept in complete ignorance of what was going on. In any event, no one could resist by self-help the use by the agents of the government in whatever use they wished to make. An action for damages or for injunction by landowners or appropriates above would necessarily have been dismissed.
Since no one had the right to interfere, the government could not acquire originally or by tacking onto some previous use a property right in waters which had not yet come onto the land. The use of water in the enclave by the government was of sovereign right and was not and could not be adverse to any other holder or claimant above. The doctrine of prescription envisions a party, whose rights are being openly and notoriously violated by another, and who has the power to intervene and prevent the violation from becoming an adverse property right by self-help or by bringing an action or obtaining an injunction before the period of prescription runs. But, when the United States was in possession as sovereign, the water which came into the enclave could be used without let or hinderance in any way which the agents of the government chose.
The implication apparently is that upper riparians or future appropriates must during the period have dammed up the water and prevented the flow of floodwaters from reaching the enclave and wasting into the ocean. There is no foundation for this assumption. For it is paradoxical to say the government agents had the right to use the corpus as they did and still say such use of waters, admittedly surplus at the time, founded right not only against an upper riparian such as the State of California, but against the world, to have all surplus water flow in perpetuity until it reached the boundaries of the enclave. But, if sufficient findings were not made to support the judgment in this respect, the declarations and findings as to the existence of a present surplus fail also.
The implication that the government agents had the right to use water outside the watershed is another apparent application and extension of the right of sovereignty outside the boundaries of the enclave to the prejudice of owners of vested and inchoate rights under the laws of the State of California,
There is no finding sufficient to support an existing property right at the time of acquisition by the government to use water off the watershed. Insofar as there is a claim for pumping privileges, the law limits the use of water so obtained to the watershed and the rights of the overlying owners must be equaled with those of other riparians and established appropriated. There is no uncontrolled right to use pumped water wastefully or in another watershed. There are no findings of an appropriation by the agents of the government or any previous owner of pumped water which developed into a perfected water right. Neither do the findings show a specific completed prescriptive right.
The findings to establish either an ap-propriative or a prescriptive right or a right to use water off the watershed are entirely inadequate.
The key question in this case is who had the right to store these floodwaters for future disposition, Vail, Santa Margarita, Fallbrook or the United States, or perhaps some other owner intermediate on the stream? Or perhaps some physical solution by or control under court decree could permit participation by all in the conservation of all flow of the watershed for beneficial use so that no drop would waste uselessly into the Pacific?
The findings, declarations and conclusions are not sufficient to establish ttle right to the nonriparian use of the flow of floodwater by storage in any of the three participants to this partial judgment. The trial court at no place defines the rights which an applicant for a permit to appropriate for storage acquires under California law in relation to other owners and users. There are no adequate findings as to the right of the owners previous to the government to hold water in Lake O’Neill. There are no findings upon which use of an “equalizing reservoir” or any other reservoir for riparian or nonriparian land had been acquired by the predecessors of the government.
As to “military use” and particularly the use of water in barracks an(j quarters of service personnel off the watershed, as a substitute use for portions of the flow previously used off the watershed for agricultural purposes, the difficulties have been suggested above, Certainly, the findings are inadequate to. show that part of the water now used or vaguely intended to be so used in the future is not presently surplus. Surely the uses are not riparian to the lands in the watershed. The use in barracks is analogous to municipal use. Undoubtedly, the agents of the government could use-for such purpose any water lawfully comjng onto the enclave by virtue of a water right owned by Rancho. But the findings do not show Rancho owned such a property right.
it will be noted that this Court has. carefully avoided suggesting that Santa Margarita has any rights or even inchoate privileges, either as a matter of fact or law. It may well be that a state administrative board might never grant a permit. If a permit were granted and Santa Margarita diverted water not at that time surplus, a trespass would! have been committed by the diversion upon the owner of the water right, whether the United States or another. Further, this Court does not attempt to say whether there is a present surplus in the water-shu-
It is here directly decided that entry of a partial judgment in declaratory form containing an absolute pronouncement that neither Santa Margarita nor the State of California had any rights against the agents of the government in the flow in this watershed-was premature. The attorneys for the government had brought all the parties into court and final judgment could in-elude physical solutions and a supervisory system of control, if that be deemed advisable.
The only proper method of adjudicating the rights on a stream, whether riparian or appropriative or mixed, is to have all owners of lands on the watershed and all appropriators who use water from the stream involved in another watershed in court at the same time.
The trial court violated this principle by issuing a declaratory judgment as to the right of the United States as against one claimant whose rights were junior, which had the effect of preventing a trial of the other water rights involved without giving a hearing as to the individual owners.
Under the rule of waters adopted, the State originally was strictly riparian and must be recognized as such. Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607. The Constitutional amendment has been noted as a limitation on that right, which is strictly construed, as the trial court correctly notes. But everyone must admit that the purpose of the constitutional amendment was to vest with a public interest the use of all the waters of the state, so that no part of the precious supply should flow uselessly into the sea or otherwise go to waste. This characterization applies to flood waters as well as the normal flow. But there is no right to an unreasonable use or unreasonable method of use. United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231. In providing for the United States, the trial court apparently held that the flood waters must be permitted to flow into the sea in order to protect the lower land of its holding from intrusion of salt water. There is no express finding that this is a beneficial use. But it is clear from the facts found that in certain years tremendous quantities of water do flow uselessly into the ocean. It is entirely improper for the government to show that, on the average of a series of years, it would not obtain its quota. The right to floodwater, in order to be claimed as appurtenant to the land, must be used in the year when it occurs.
As a result of the considerations which have been suggested above, we are of opinion this case must be reversed due to the entry of the partial judgment in this cause. The assignment of no damage by the entry of such a judgment was an abuse of discretion. It is, in fact, somewhat shocking in litigation where a whole stream system with various types of ownership of land and use of water, appurtenant and in gross, vested and inchoate, overlying, riparian by appropriation and by permit, that the court should attempt to adjudicate matters which affect the whole collection of rights and all the defendants in a proceeding which directly involves three litigants only. Most prominent in this adjudication is the finding and declaration that the government has certain water rights by prescription. A right by prescription is binding upon all the world
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 43? Answer with a number.
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Marcus B. HARRIS, Plaintiff-Appellant, v. Manuel MENENDEZ, Mr. Hermida, State Attorney, C.N. Pisano, Sheriff, Defendants-Appellees.
No. 86-3777
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
May 27, 1987.
Before FAY, ANDERSON and EDMONDSON, Circuit Judges.
EDMONDSON, Circuit Judge:
Marcus Harris appeals the district court’s dismissal of his pro se civil rights complaint. We affirm that dismissal.
Harris was charged in a state court proceeding with violating two conditions of his probation. During the hearing on those two charges, which are not otherwise relevant here, the state notified the court of two new charges of uttering forged instruments, although no affidavit of the violation had been filed. The judge continued the revocation hearing so that the state could determine what it wished to do with the new charges.
Judge Manuel Menendez presided over the second revocation hearing. Although Harris’ pleadings and appellate brief are not clear on this point, Mr. Hermida was apparently the state attorney who charged Harris. According to testimony at the hearing, Deputy Sheriff Carmen Pisano arrested Harris on the forgery charges after an alleged accomplice implicated and identified Harris. At the end of the hearing, Judge Menendez found, no violations concerning the two original charges, but revoked Harris’ probation based on the forged check charges.
Harris appealed that decision, arguing that the forged check charges could not be used to revoke probation because they were not charged in the affidavit of probation violation. The Florida District Court of Appeals agreed and reversed the probation revocation.
Harris then filed a 42 U.S.C. sec. 1983 complaint in the United States District Court for the Middle District of Florida, alleging that Judge Menendez, Mr. Hermida and Deputy Sheriff Pisano violated his constitutional rights by perjuring themselves and conspiring to have his probation improperly revoked. Harris also alleged that Pisano arrested him without probable cause.
Harris filed the complaint pro se, along with an application to proceed in forma pauperis. Before service of Harris’ complaint, the district court dismissed the complaint as frivolous under 28 U.S.C. sec. 1915(d). Harris, currently incarcerated in the Hillsborough County Jail for reasons unknown to this court, appeals that decision.
Federal courts are facing a barrage of civil rights petitions filed by prisoners. The number of such suits has risen from 218 in 1966 to 18,034 in 1984 and to 20,842 last year. One of the reasons for this surge in prisoner litigation is the authorization under 28 U.S.C.A. sec. 1915(a) to sue in forma pauperis (IFP) without prepayment of fees. An important adjunct of that license is the discretion afforded the district courts under section 1915(d) to sua sponte dismiss IFP proceedings if the suit is “frivolous or malicious.”
The reasons for granting broader discretion in IFP suits than in ordinary civil actions are compelling. Persons proceeding IFP do not face the same financial obstacles as other litigants. IFP petitioners not only are exempt from customary court costs, but because of their poverty are practically immune from the financial deterrents to filing frivolous lawsuits, such as assignment of costs of the suit and tort liability for abuse of process. This immunity increases the temptation to file complaints which are factually unprovable or legally questionable. Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir. Unit B 1981); see also, Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir.1984). No one should be allowed to misuse the courts with impunity. Certainly, nothing in section 1915 requires taxpayers to subsidize misuse of the courts.
Prisoners possess several advantages over even the ordinary pro se litigant. Not only do prisoners have time to draft multiple and prolonged pleadings, but the state must provide free materials such as pen and paper and free services such as legal information and mailing privileges. Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.1986) (en banc). Prisoners are also more tempted to file meritless complaints. In the words of Justice Rehnquist, “Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.” Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (Rehnquist, J., dissenting). Importantly, “meritless actions offer inmates an unrestricted method of harassing prison and law enforcement officials.” Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984).
These frivolous claims impose a heavy cost on the justice system. The federal courts have limited resources. Every resource expended on a frivolous petition is one less resource available for the just adjudication of a valid petition. The sheer volume of frivolous civil rights complaints threatens to obscure the violations that actually need redress by the federal courts. As the number of these lawsuits rises, so does the probability that a federal judge will be unable to marshall the resources needed to rectify bona fide constitutional violations, or that a judge, worn-out and weary of worthless claims, will prematurely dismiss a valid petition.
Accordingly, the principle that every truly abused prisoner deserves judicial attention requires that district courts dispose as quickly and expeditiously as possible of petitions by prisoners who are merely discontented, malicious, or bored. The Federal Rules of Civil Procedure, designed as they were for litigants facing the economic barriers inherent in the American legal system, do not offer district courts much help in this task.
For example, a district court judge considering whether to dismiss a petition under Fed.R.Civ.P. 12(b)(6) for failure to state a claim must accept the allegations in the petition as true. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1734, 12 L.Ed.2d 1030 (1964). Thus, a “reasonably intelligent prisoner with a willingness to misrepresent facts can often avoid both 12(b) dismissal and summary judgment, although he actually has no chance of eventual success in his suit.” Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd for reasons stated in district court order, 480 F.2d 805 (5th Cir.1973).
A district court judge, however, is not confined to the Federal Rules of Civil Procedure in IFP cases. When it enacted those rules, Congress left intact the broad mandate of 28 U.S.C. sec. 1915(d), which allows a judge to dismiss “frivolous or malicious” IFP claims. Observing that a frivolous appeal under sec. 1915(d) is one “without arguable merit,” we have explained that in an IFP civil rights action, a trial court should determine whether there is “a factual and legal basis, of constitutional dimension, for the asserted wrong.” Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976).
We note that some circuits have overlooked the reasons for the liberal grant of discretion in IFP cases and have held that the standard for determining when a suit is “frivolous” is the same as that for dismissal of a case under Fed.R.Civ.P. 12(b)(6). See, e.g., Boyce v. Alizaduh, 595 F.2d 948, 951-52 (4th Cir.1979). This circuit, however, has not merged the two standards, specifically holding that a court’s authority to dismiss a complaint as frivolous under section 1915(d) is broader than dismissal under Fed.R.Civ.P. 12. Montana v. Commissioner’s Court, 659 F.2d 19, 21 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982).
It is true that some precedent of this circuit might be interpreted as holding that the standard for dismissal under sec. 1915(d) is the same as that for dismissal under Rule 12(b)(6). In those cases, however, the issue was whether the IFP petition was legally sufficient or failed to state a claim. See, e.g., Lee v. Evans, 789 F.2d 885 (11th Cir.1986) (implied); Neary v. Dugger, 766 F.2d 456 (11th Cir.1985); Harmon v. Berry, 728 F.2d 1407 (11th Cir.1984) (implied); Green v. City of Montezuma, 650 F.2d 648 (5th Cir. Unit B 1981); Bruce v. Wade, 537 F.2d 850, 852 n. 2 (5th Cir.1976). When the question is the legal sufficiency of an IFP complaint, the inquiry seems the same under either sec. 1915(d) or Rule 12(b)(6). Green v. City of Montezuma, 650 F.2d at 651; Montana v. Commissioners Court, 659 F.2d at 21.
The fact that the two standards may coincide when the sufficiency of a complaint is specifically at issue, however, in no way signifies that a court may dismiss a claim as frivolous under sec. 1915(d) only when it is legally insufficient under Rule 12(b)(6). Watson v. Ault, 525 F.2d 886 (5th Cir.1976); cf. Boag v. MacDougall, 454 U.S. 364, 365 n. *, 102 S.Ct. 700, 701 n. *, 70 L.Ed.2d 551 (1982) (refusing to decide whether legally sufficient complaint was frivolous under sec. 1915(d)). In fact, the precedent of this circuit compels the opposite conclusion.
In 1973, this circuit’s predecessor, the former Fifth Circuit, affirmed the opinion in Jones v. Bales, 58 F.R.D. 453 (N.D.Ga. 1972), for the reasons and authorities cited by the district court. Jones v. Bales, 480 F.2d 805 (5th Cir.1973). By doing so, the former Fifth Circuit effectively adopted and republished as an appellate opinion the district court’s opinion in Jones. In that opinion, the district court allowed the plaintiff prisoner to proceed IFP. After months of discovery and other proceedings, the district court noted that the plaintiff’s allegations “simply strain credulity” and dismissed the action under sec. 1915(d) as “frivolous and perhaps malicious.” Id. at 461. In affirming that opinion, the Fifth Circuit approved the principle that an IFP complaint that states a claim under Rule 12(b)(6) may nevertheless be dismissed under sec. 1915(d) as soon as the court becomes convinced that it is frivolous, that is, that “the plaintiff’s realistic chances of ultimate success are slight.” Id. at 464.
Succeeding cases might have used language that confused the issue, but none has eroded the principle that a legally sufficient IFP complaint may still be dismissed as frivolous. Of course, a district court must conduct a sufficient inquiry into the matter to be certain both legally and factually that the plaintiff has little or no chance of success. Ibarra v. Olivarri, 587 F.2d 677, 677 (5th Cir.1979); Taylor v. Gibson, 529 F.2d 709, 715-16 (5th Cir.1976). What inquiry is sufficient depends upon the circumstances of the case. In making that inquiry, however, the district court is not bound by the strictures of Rule 12(b)(6). See generally Taylor v. Gibson, 529 F.2d at 717 (giving examples of 1915(d) dismissals of complaints that are both legally and facially sufficient). Thus, for instance, a court may require the plaintiff to particularize his allegations prior to service of process, Watson v. Ault, 525 F.2d at 892, and may “ascertain whether there is a factual basis for the petitioner’s suit.” Id. at 891 (citing Jones v. Bales). Cf. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (error to dismiss complaint on Rule 12(b)(6) grounds before service); Williams v. Rhoden, 629 F.2d 1099, 1101 (5th Cir.1980) (when district court refuses to allow plaintiff to proceed IFP, court may not dismiss under sec. 1915(d)).
Section 1915(d) is a broad grant of discretion to the courts regarding management of IFP actions. Consequently, when reviewing a sec. 1915(d) dismissal, our inquiry is limited to whether the dismissal was an abuse of discretion. See Camp v. Oliver, 798 F.2d 434, 437 (11th Cir.1986). In Harris’ case, the district court dismissed his petition upon determining that two of the defendants would be immune from liability. The record amply supports the district court’s conclusion.
Judge Menendez was clearly acting within his jurisdiction in ruling on Harris’ probation revocation; therefore, he is absolutely immune from a suit for damages. Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). State attorney Hermida is also immune from a suit for damages for prosecuting Harris. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir.1980). Harris alleges that Sheriff Pisano violated his constitutional rights by arresting him without probable cause. We find nothing in either Harris’ brief or the record to support this assertion.
Finally, Harris claims that the three defendants conspired to prosecute him through the use of a “phantom affidavit.” The district court apparently construed this phrase to mean a false affidavit. The record reveals that the only irregularity associated with the second revocation hearing was the absence of an affidavit. Furthermore, as the district court noted, “but for the technical violation of Harris’ rights there was ample evidence supporting the revocation of his parole.”
If, on the other hand, Harris meant the term “phantom affidavit” to describe the absence of an affidavit, his claim still must fall. Harris gives no other basis for his claim of conspiracy, and a naked assertion of conspiracy is an insufficient foundation for a section 1983 claim. Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984). Furthermore, Harris has a history of filing numerous pro se, IFP petitions. Even if the complaint in this case is facially sufficient pursuant to Rule 12(b)(6), we agree that plaintiff’s realistic chances of ultimate success are slight and that the action is frivolous.
A district court may, as it did in the present case, dismiss an I.F.P. lawsuit prior to service of process. Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir.1984). One of the purposes of section 1915(d) is to spare defendants the inconvenience and expense of answering a frivolous complaint. Woodall v. Foti, 648 F.2d 268 (5th Cir.1981). See also Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980) (recommending that courts determine frivolity of IFP petitions before issuing process to protect defendants from the burden of answering a frivolous petition).
In light of these facts and conclusions, we find no abuse of discretion in the district court’s dismissal of Harris’ petition and AFFIRM.
. The Florida appellate court noted that there was an indication that the trial court had before it an amended affidavit, but none was in the record.
. Annual Report of the Director of the Administrative Office of the United States Courts for the Twelve Month Period Ended June 30, 1984, at 142-43; Annual Report of the Director of Administrative Office of the United States Courts for the Twelve Month Period ended June 30, 1986, Appendix I at 21.
. In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit Court of Appeals adopted as precedent all decisions of Unit B of the former Fifth Circuit.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981.
. There is no inconsistency between the Watson v. Ault statement that a "frivolous” claim is one "without arguable merit" and the definition of "frivolous" action accepted by this circuit in Jones v. Bales, that is, an action in which “the plaintiff’s realistic chances of ultimate success are slight.” Arguable means capable of being convincingly argued. Webster’s Ninth New Collegiate Dictionary 102 (1986). An action or claim in which "the plaintiff’s realistic chances of ultimate success are slight" is not one capable of being convincingly argued. If there were any inconsistency, Jones v. Bales, which is soundly reasoned and is the earliest binding precedent defining the term “frivolous” under section 1915(d), would control over subsequent contrary cases. Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir.1986) (earlier of conflicting cases to be followed); Dorse v. Armstrong World Industries, Inc., 798 F.2d 1372, 1378 (11th Cir.1986) (follow case most consistent with common sense and reason).
. Our review of the court records of the United States District Court for the Middle District of Florida, see ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n. 2 (5th Cir. Unit B 1981) (court may take judicial notice of its own records and records of lower courts), reveals that Harris has filed nine pro se IFP petitions since January 1, 1985. Of those petitions, none has yet reached the stage of trial on the merits; five were disposed of adversely to Harris. See generally, Jones v. Bales, 587 F.R.D. at 465 n. 4 (past lack of success relevant to consideration of chances of ultimate success), aff’d 480 F.2d 805 (5th Cir.1973).
. The concurring opinion argues that there is no need to reach the question of the scope of a district court’s power to dismiss an IFP action as frivolous pursuant to section 1915(d), because the complaint fails to state a claim under Fed.R.Civ.P. 12(b)(6) in any event. The district court in this case, however, did not dismiss pursuant to Rule 12(b)(6). The district court’s judgment and order of dismissal do not mention in any way failure to state a claim or Rule 12(b)(6). Rather, the district court dismissed the action as frivolous pursuant to section 1915(d). Therefore, this case squarely presents the question of a district court’s power to dismiss a lawsuit as frivolous under section 1915(d).
Harris’ complaint probably does not state a claim upon which relief can be granted; there is some doubt about this conclusion, however. Harris’ pro se complaint and attached documents, when liberally construed, allege that Sheriff Pisano arrested Harris without a warrant or probable cause, knowing that the information incriminating Harris was false. These allegations are not otherwise supported by the materials plaintiff attached to the complaint and are probably so conclusory as to fail to state a cause of action. Nonetheless, whether or not Harris' complaint actually states a cause of action in this respect is a hard question that neither the district court nor this court need decide. Section 1915(d) enables a district court to dismiss a lawsuit as frivolous without making the sometimes difficult and delicate determination of whether a complaint actually states a cause of action.
. "I must say, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.” J. Frank, Courts on Trial 40 (1950) (quoting Judge Learned Hand).
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_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
FIRST UNION TRUST & SAVINGS BANK v. UNITED STATES.
No. 4843.
Circuit Court of Appeals, Seventh Circuit.
April 4, 1933.
Edward N. D’Ancona, A. J. Pflaum, Edward C. Kohlsaat, and Cohort EtsIIokin, all of Chicago, Ill., and Harold R. Small and Edward H. Miller, both of St. Louis, Mo., for appellant.
Dwight H. Green, U. S. Atty., and Thomas Dodd Healy, Asst. U. S. Atty., both of Chicago, Ill.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a judgment for $902.-55, with interest, awarded the government against appellant. Jury was waived, and the facts appear by stipulation.
One Tobin held United States Liberty bonds aggregating $2,500 registered in his name. He left these bonds for safe-keeping with the Northwestern Bank of Missouri. The cashier of that bank forged Tobin’s name to an assignment upon the bonds, and thereupon the bank sold the bonds to the Federal Commerce Trust Company of St. Louis, receiving unto itself and using in its business the proceeds of the sale. The two bonds here in -issue, one for $1,000 and one for $500, were sold by Federal Commerce Trust Company to- appellant. Appellant thereupon presented the bonds to the government for exchange for coupon bonds, which were then issued to appellant, and the registered bonds were canceled. All this occurred in 1925, neither the Federal Commerce Trust Company, the government nor appellant having notice of the forgery.
In May, 1926, the Northwestern Bank, be ing insolvent, went into liquidation under the banking laws of Missouri. Thereafter the government, learning of the forgery, prosecuted the forger to conviction, and Tobin, first learning of the forgery after insolvency, 'on October 15, 1906, exhibited his demand against the insolvent estate of the bank as a preferred claim. While the claim was pending, the government issued to Tobin its registered bonds of same face value as those which had been forged, and Tobin gave to the government an assignment of his claim against the estate of the insolvent bank. The government, as assignee, prosecuted the claim to allowance, and received thereon as a preferred claim applicable to these two bonds the sum of $597.45, which was applied as a credit upon the government’s claim against appellant, and thereupon the suit against appellant was begun. The assets of the insolvent bank were insufficient to pay in full the preferred claims, and nothing was realized on the general claims.
In the stipulation it was stated:
“That the defense is: That- Tobin and plaintiff as his assignee in the Missouri insolvency proceedings made claim to the money paid by Federal Commerce Trust Company to the Northwestern Bank of Missouri, and had this claim for such money sustained as a preference claim and thereby unquestionably ratified the payment in exchange for the bonds.
“That after having ratified such transfer it cannot now recall such ratification in order to secure further moneys from defendant.”
The single issue here is as to the effect of the filing, by Tobin, of the claim for a preference in the assets of the insolvent bank, and the acceptance of assignment by the government and its prosecution of the claim.
Appellant contends that the effect was a ratification by Tobin, and by the government, of the sale and transfer of the bonds by the Northwestern Bank, and that, having so ratified the sale, the government was not entitled to proceed against appellant to recover the balance not covered by the realization upon the claim filed against the insolvent bank.
We do not think that such doctrine has place under the indicated circumstances Apart from any question arising upon the presentation of the claim against the insolvent bank, the government would have been entitled to recover against appellant, since appellant presented to the government for exchange bonds to which, because of the forgery, appellant had no title.
When the loss accrued to the government by exchanging the forged bonds and also paying the registered holder of those bonds, it was the duty of the government to take such steps as it reasonably might to minimize the loss, so that others upon whom liability therefor might ultimately rest would be exonerated to the extent that the government’s loss was lessened. • \
If, upon ascertainment of the forgery, a general claim against the estate of the insolvent bank had been filed, nothing would have been realized to apply on this loss, and in all likelihood the defense to this suit would then have been the failure of Tobin and the government to file the claim as one preferred.
The government chose to prosecute the claim in the manner 'which might reasonably be expected to be of some avail, as in fact it proved to be. We do not believe that, having chosen to prosecute the claim in the only way that could yield, and did yield, a substantial amount, the government should now be penalized for having by its well-directed exertions exonerated appellant to the extent of what the claim realized — something over one-third of the face of the bonds in question.
We are satisfied that the judgment of the District Court is right, and it is therefore affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_circuit
|
D
|
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.
Sharon TEMKIN; Bruce M. Temkin, Plaintiffs-Appellants, v. FREDERICK COUNTY COMMISSIONERS; Glen Marion Selby, Jr., Defendants-Appellees.
No. 90-1070.
United States Court of Appeals, Fourth Circuit.
Argued June 5, 1991.
Decided Sept. 12, 1991.
Philip Bogart Allen, Coale, Kananack & Murgatroyd, Los Angeles, Cal., argued (John P. Coale, on brief), for plaintiffs-appellants.
John Michael Quinn, Quinn & McAuliffe, Rockville, Md., argued (Michael J. McAu-liffe, on brief), for defendants-appellees.
Before PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges.
OPINION
MURNAGHAN, Circuit Judge:
Appellant Sharon Temkin was severely injured when the car she was driving was struck by the vehicles of a fleeing misde-meanant and the police officer pursuing him. Temkin and her husband (the Tem-kins) subsequently brought an action pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Maryland, against both the driver of the police car, appellee Deputy Sheriff Glen Selby (Selby), and the appellee Frederick County Commissioners (the Commissioners). The complaint also alleged pendent state claims for negligent operation of a motor vehicle, negligent supervision, and loss of consortium.
After considerable, discovery, the County moved for summary judgment on the section 1983 counts. The Temkins filed an affidavit in opposition to the summary judgment motion pursuant to Federal Rule of Civil Procedure 56(f), claiming that summary judgment would be inappropriate until the Temkins had conducted further discovery. Nevertheless, the district court granted the County’s motion and entered summary judgment in their favor on the section 1983 counts, then dismissed the state claims, declining to retain pendent jurisdiction over them.
The Temkins then moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) together with an extension of time within which to file a memorandum in support of the motion to alter or amend. The district court denied both motions. The Temkins appeal from both the entry of summary judgment in the County’s favor and from the denial of their motion to alter or amend the judgment.
I.
The facts, taken in the light most favorable to the Temkins, are as follows. At approximately 10:00 p.m. on July 14, 1987, Selby, a Frederick County Deputy Sheriff, observed a car spinning its wheels as it left a Texaco gas station on Route 85 in Frederick County. Selby gave chase with his lights and siren activated. Both cars proceeded along Maryland Route 355 at a high rate of speed. While the chase was in progress, an attendant at the Texaco gas station called 911 to report that approximately $17.00 worth of gas had been stolen. The information was relayed to Selby over his radio.
Both vehicles continued along Route 355 at speeds ranging from 65 to 105 miles per hour. Route 355 is a narrow, two-lane highway traversing an area of varying population. At the time of the chase, a carnival was taking place in the area and cars were parked along both sides of the road. At some point, the pursued vehicle failed to navigate a curve in the road, lost control, crossed over the double yellow line, and struck the car in which Sharon Temkin was driving, causing it to spin in a clockwise direction. Selby immediately “stood on the brakes” in an attempt to stop, which resulted in Selby’s car skidding out of control, crossing the double yellow line, and hitting Temkin’s car broadside on the driver’s side. At the moment of impact, Selby’s vehicle was traveling at approximately 60 miles per hour.' As a result of the collision with Selby’s cruiser, Temkin suffered severe and permanent injuries.
At the time the chase took place, the Frederick County Sheriff’s Department had in force General Order #204, which governed the conduct of officers engaged in pursuits. The order required the “onduty supervisor” to monitor all pursuits and granted him the authority to halt any pursuit “if warranted.” At the time the chase began, the onduty supervisor was responding to another call. He could not monitor Selby’s pursuit because his own radio was inoperative; although he could have monitored the pursuit from the car of the officer accompanying him, he chose not to do so.
On appeal, the Temkins have urged that neither Selby nor the Commissioners were entitled to judgment as a matter of law, and that the district court’s entry was premature in light of the Temkins’ Rule 56(f) affidavit opposing summary judgment on the ground that further discovery was necessary.
II.
We review a district court’s grant of summary judgment de novo, employing the same standards applied by the district court. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.1987). With Federal Rule of Civil Procedure 56 as our guidepost, we will affirm a grant of summary judgment if, after reviewing the pleadings, depositions, interrogatories, and affidavits, we are satisfied that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). The party moving for summary judgment bears the initial burden of pointing to the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact. Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.1987). Summary judgment may only be entered after “adequate time for discovery.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
Turning first to the question of whether Selby was entitled to judgment as a matter of law, Temkin’s assertion of error on the point focuses upon the standard of care applied by the district court in determining whether a section 1983 constitutional deprivation on the basis of the “substantive due process” aspects of the Fourteenth Amendment was made out.
The district court below adopted the standard of care set out in Smith v. Bernier, 701 F.Supp. 1171 (D.Md.1988), in which then district Judge Niemeyer wrote that a section 1983 claim alleging a violation of substantive due process can be made out only when the conduct alleged “shock[s] the judicial conscience,” id. at 1177, language taken directly from the Supreme Court’s opinion in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The Temkins have asserted that the district court erred in adopting the “shocks the conscience” standard. We disagree.
It is axiomatic that “in any § 1983 action the initial inquiry must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981).
When the constitutional deprivation concerns governmental misconduct implicating the guarantees of life, liberty, and property under the Due Process Clause of the Fourteenth Amendment, additional elements come into play. In Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 (1986), the Supreme Court held that such a deprivation must flow from conduct amounting to more than mere negligence, but reserved the question as to what types of conduct short of intentional acts rose to the level of a constitutional deprivation. Id. at 334 n. 3, 106 S.Ct. at 666 n. 3. Daniels overruled that part of Parratt v. Taylor which had suggested that mere negligence was sufficient to make out a claim under section 1983 and the Due Process Clause. The part of Par-ratt that survived Daniels, however, continues to set forth an additional consideration: where a claim is made alleging negligent deprivation of property, and where an adequate post-deprivation remedy exists in state law, the requirements of due process are satisfied. Parratt, 451 U.S. at 544, 101 S.Ct. at 1917.
The Parratt Court defined “adequacy” by balancing the costs associated with imposing additional procedural safeguards as a constitutional requirement against the probability that the safeguards would reduce significantly the abuse of official power at issue. Id. at 542-43, 101 S.Ct. at 1916-17 (citing Ingraham v. Wright, 430 U.S. 651, 682, 97 S.Ct. 1401, 1418, 51 L.Ed.2d 711 (1977)).
Because Parratt concerned only conduct characterized as “mere negligence,” one troubling question its holding left unanswered was whether the Court had concluded that due process analysis of any official misconduct resulting in a deprivation, no matter what the character of the conduct, was henceforth to be effected in a “strictly procedural” context. Justice Powell in particular was concerned that the majority’s analysis had “avoid[ed] entirely the question of whether the Due Process Clause may place substantive limitations on this form of governmental conduct.” Id. at 553, 101 S.Ct. at 1922 (Powell, J., concurring).
Such concerns appear to have been substantially alleviated in Daniels. Indeed, a fair reading of Daniels and its companion case, Davidson v. Gannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), renders as highly doubtful the position that Parratt can be read so broadly as to hold that even intentional or malicious abuses of governmental power do not rise to the level of a violation of due process so long as some adequate state post-deprivation remedy exists. Indeed, the Court later noted there, after citing a long line of cases which “reflects the traditional and common-sense notion that the Due Process Clause, like its forbear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government,’ ” id. at 331, 106 S.Ct. at 665 (citations omitted), that “by barring certain government actions regardless of the fairness of the procedures used to implement them, [the Due Process Clause] serves to prevent governmental power from being ‘used for purposes of oppression.’ ” 474 U.S. 327, 331-32, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (citations omitted). Stated another way, some abuses of governmental power may be so egregious or outrageous that no state post-deprivation remedy can adequately serve to preserve a person’s constitutional guarantees of freedom from such conduct. Thus, conduct which “shocks the conscience,” Rochin, 342 U.S. at 172, 72 S.Ct. at 209, or conduct which “amount[s] to a brutal and inhumane abuse of official power literally shocking to the conscience,” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980), violates the substantive guarantees of the Due Process Clause independent of the absence or presence of post-deprivation remedies available through state tort law. See Daniels, 474 U.S. at 338, 106 S.Ct. at 678 (Stevens, J., concurring).
Thus, the question squarely before us is whether Deputy Selby’s or the Commissioners' conduct in the instant case so shocks the conscience as to constitute an abuse of governmental power violative of Sharon Temkin’s constitutional liberty interests despite the existence of state tort laws under which that conduct is otherwise clearly actionable.
Although the jurisprudence of the Fourth Circuit has not heretofore, in definitive fashion, adopted the “shocks the conscience” standard, we have, in addition to Tawney, embraced that formulation of the standard in another context. In Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990), a father had brought a section 1983 action against an agency which had removed his son from the parental home. Judge Chapman wrote that the father had failed to make out a substantive due process claim because, in part, “[i]t does not shock the conscience to hear that defendants removed a child in emergency action from the custody of a parent suspected of abusing him, based upon some evidence of child abuse.” Id. at 391 (footnote omitted).
By way of comparison, in Martin v. Gentile, 849 F.2d 863 (4th Cir.1988), we examined the substantive due process claim of a pretrial detainee by noting that
a pretrial detainee makes out a due process violation if he shows “deliberate indifference to serious medical needs.”
Id. at 871 (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). While the Temkins might urge that we should adopt the “deliberate indifference” standard, the examination of the standard of care owed in the context of incarceration is of limited value for our purposes here. In Smith v. Bernier, Judge Niemeyer pointed out that
“many of the case[s] permitting recovery on a substantive due process ground for personal injury or death involve a person in state custody or under the state’s control. Such persons are clearly subject to abuses of the government’s significant power over them. By contrast, where a member of the public is harmed as a result of a governmental official’s failure to act, a constitutional violation is not generally found ... unless the government conduct is ‘sufficiently severe, sufficiently disproportionate to the need presented and so deliberate and unjustified a use of [authority] as to transcend the bounds of ordinary tort law and establish a deprivation of constitutional rights.’ ”
701 F.Supp. at 1177 (quoting McClary v. O’Hare, 786 F.2d 83, 88 (2d Cir.1986) (citation omitted)). Indeed, the district court below relied on the McClary language in adopting the “shocks the conscience” standard, reasoning we find entirely consistent with our analysis of Parratt and Daniels.
A review of rulings by other circuits which have examined the substantive due process issue in the context of police driving misconduct only leaves us further convinced of the correctness of the “shocks the conscience” standard. In Roach v. City of Fredericktown, 882 F.2d 294 (8th Cir.1989), plaintiffs who had been seriously injured when their car was struck by both a fleeing suspect’s car and the pursuing policeman’s car brought a section 1983 claim against the policeman and the city, claiming that the policeman’s actions “shocked the conscience.” The district court dismissed the action for failure to state a claim. On appeal, the Eighth Circuit ruled that negligent or “grossly negligent” conduct did not state a claim under section 1983 and that the policeman's conduct, not rising to the level of “gross negligence,” “most certainly [did] not rise to the level of conduct which would sustain a claim under section 1983.” Id. at 297.
The Eleventh Circuit came to a similar conclusion in Cannon v. Taylor, 782 F.2d 947 (11th Cir.1986). There a police officer, responding to an emergency call, drove his vehicle within the city limits of Columbus, Georgia at 46 miles per hour in a 30-mile-per-hour zone. Georgia law permitted police vehicles to exceed posted speed limits when responding to emergency calls, but only if the officer used the vehicle’s flashing lights and siren. The defendant in Taylor was using neither, and struck the left side of the plaintiff’s automobile as she was driving through an intersection. Nevertheless, the Eleventh Circuit held that
a person injured in an automobile accident caused by the negligent, or even grossly negligent, operation of a motor vehicle by a policeman acting in the line of duty has no section 1983 cause of action for violation of a federal right.
Id. at 950. The Taylor court’s reasoning is particularly persuasive because of its citation to two Supreme Court cases, one of which we have already discussed at length, which held, albeit in dicta, that a finding of section 1983 liability for persons involved in nothing more than an automobile accident with a state official would render the Fourteenth Amendment “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); see also Parratt, 451 U.S. at 544, 101 S.Ct. at 1917.
Although the Sixth Circuit adopted a standard perhaps slightly less stringent— “gross negligence and outrageous conduct” — in Jones v. Sherrill, 827 F.2d 1102 (6th Cir.1987), the district court’s dismissal of a section 1983 claim brought by a plaintiff whose husband had been killed when his automobile collided with a car which had crossed the centerline in a high-speed police chase was affirmed. In her complaint, the plaintiff alleged that in the course of the pursuit, the vehicles were driven at speeds of 120-125 miles per hour in traffic and within the city limits, that the chasing police cars were following in a manner too close for safety, that the police chief was in radio contact with the officers and was following them in his own vehicle, and that as a result of the “grossly negligent” pursuit, the fleeing driver’s car crossed the centerline and collided with the plaintiff’s husband’s car, killing him.
The Sherrill court defined “gross negligence” in a section 1983 context by stating that
“a person may be said to act in such a way as to trigger a section 1983 claim if he intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow;”
id. at 1106 (quoting Nishiyama v. Dickson County, 814 F.2d 277, 282 (6th Cir.1987) (en banc); adding that
[t]he facts alleged in support of the legal conclusion of gross negligence must be sufficient to charge the government officials with outrageous conduct or arbitrary use of government power.
Id. (emphasis added). Finding the facts (facts quite similar to those presented here) not to meet such a standard, the Sixth Circuit affirmed dismissal.
Finally, in Walton v. Salter, 547 F.2d 824 (1976), the Fifth Circuit affirmed the dismissal of a section 1983 complaint brought by a widow whose husband had been struck by a police car responding to an armed robbery. The court held that an isolated act of negligence, even if willful and wanton, failed to state a section 1983 claim. Id. at 825.
As all of the parties, and the district court as well, point out, our sister circuits have adopted standards of care ranging from “gross negligence” to “deliberate indifference” to “recklessness” for section 1983 substantive due process claims involving conduct other than the driving of official vehicles. See e.g., Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.1990) (officers’ decision to shoot toward hijacked vehicle did not demonstrate reckless or callous indifference); Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990) (impounded vehicle passenger’s allegations that state trooper acted with deliberate indifference to passenger’s interest in personal safety by leaving passenger by the side of the road at night in high-crime area, resulting in passenger’s accepting ride with stranger and being raped, stated claim under section 1983); Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988) {en banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989) (fire department dispatcher’s refusal to send rescue squad after two requests by telephone was not reckless in the constitutional sense so as to support a section 1983 action); Harris v. Maynard, 843 F.2d 414, 416 (10th Cir.1988) (wanton or obdurate disregard of, or deliberate indifference to, prisoner’s right to life as a condition of confinement is a substantive constitutional deprivation under the Fourteenth Amendment); Morales v. Department of Corrections, 842 F.2d 27, 30 (2d Cir.1988) (inmate’s allegation that corrections officer on duty in dormitory stood by and allowed attack on inmate by fellow inmate to occur was sufficient to state federal rights claim for deliberate indifference under due process clause); Metzger v. Osbeck, 841 F.2d 518, 520 n. 1 (3d Cir.1988) (finding that school teacher’s conduct in disciplining student amounted to reckless indifference or gross negligence would be sufficient to support section 1983 claim); Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir.1987) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989) (child involuntarily placed in foster home may bring section 1983 action for violation of Fourteenth Amendment rights arising out of state officials’ deliberate indifference to welfare of child in placing child in foster home); Lopez v. Houston Indep. School Dist., 817 F.2d 351, 355 (5th Cir.1987) (supervisors of school bus driver were not grossly negligent or deliberately indifferent to constitutional rights of students riding bus and were thus not liable under section 1983).
In the abstract, the weight of such authority might counsel for our own adoption of some similar standard. Yet, when the “chase eases” involving the police — Roach, Taylor, Sherrill, and Walton — are considered together with the “shock the conscience standard” derived from Bochin, Parratt, and Daniels and alluded to if not indeed embraced in two Fourth Circuit opinions, Weller and Tawney, and are considered in light of the “stricter standard” rationale discussed in McClary, we can only conclude that the standard of care applicable to the instant facts is the “shocks the conscience” standard.
Turning to the instant facts, and reserving for the moment consideration of any additional facts which may have developed had further discovery been permitted; see part III, infra; the Temkins have called our attention to five specific facts which they have contended would demonstrate that Selby’s conduct was violative of the applicable standard of care: 1) the chase continued for a significant period of time over a ten mile area; 2) the chase continued at a very high rate of speed; 3) the chase was initiated because of a minor violation; 4) the police already had, at a minimum, a partial identification of the license plate of the suspect vehicle; and 5) the chase violated General Order # 204 because Selby failed to maintain radio contact with his supervisor throughout. To those five facts we would add the expert deposition testimony of Dr. Geoffrey Alpert that Selby’s conduct was “reckless,” “totally irresponsible,” and “wanton.”
With the exception of the fact that the instant chase took place at night, the facts here are almost indistinguishable from those found in Roach, Taylor, Sherrill, and Walton. Indeed, some of the facts in those four cases involved conduct more egregious than that present here. We are thus of the opinion that Selby’s conduct, while disturbing and lacking in judgment, falls short of the “shocks the conscience” standard we adopt today. The district court properly held that Selby’s conduct did not rise to the level of a violation of substantive due process cognizable under a section 1983 claim.
As to the Frederick County Commissioners, count two of the Temkins’ complaint alleges that the Commissioners had failed to adopt adequate policies governing the training and supervision of officers engaged in high-speed pursuits. Such failure, the complaint continues, “made it inevitable that life-threatening collisions would occur, and amounted to a deliberate indifference to the rights of those using the public highways.” In addition, the complaint avers that “[o]ther highspeed chases have been undertaken by deputies of the Frederick County Sheriffs Department with such frequency and with such little provocation that it can be fairly concluded that the Defendant Commissioners have a custom and practice of encouraging such chases for the sake of apprehending suspects, however minor the violation, at the expense of the safety and well-being of the innocent public.” The Temkins have now contended on appeal that the district court erred in entering summary judgment in favor of the Commissioners.
We need not linger long on the point. A claim of inadequate training under section 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation on the part of the person being supervised. Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir.1990); Roach, 882 F.2d at 298. Because of a lack of section 1983 liability on Selby’s part, the entry of summary judgment in the Commissioners’ favor was proper.
III.
The Temkins have raised as a final point of error the district court’s entry of summary judgment in the County’s favor even in light of an affidavit filed in opposition to summary judgment pursuant to Federal Rule of Civil Procedure 56(f), urging that further discovery was required and that such discovery would present genuine issues of material fact rendering summary judgment inappropriate. Specifically, the affidavit averred that
Plaintiffs desire to take the depositions of one of the Frederick County Commissioners and of Lt. Gary Wood of the Frederick County Sheriffs Department. The deposition of the Frederick County Commissioner will establish that Frederick County owned the police vehicle in question (although this has been admitted in answers to interrogatories[) ]. The deposition will further establish that the Frederick County Commissioners had no policy regarding police pursuits and that the Frederick County Commissioners, in fact, abrogated that responsibility completely. Finally, the deposition will establish facts relating to the relationship between the Commissioners and the Sheriffs Department.
The deposition of Lt. Gary Wood, who was the training officer for the Frederick County Sheriffs Department, will establish the absence of training by the Frederick County Sheriffs Department in the procedures under General Order # 204.
The document is undated and does not appear on the district court’s docket sheet, but it is apparent from the face of the affidavit that it was filed before the court granted the County’s motion for summary judgment.
After the entry of summary judgment, the Temkins filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). That motion was denied. Presumably, the motion had been filed to permit the discovery alluded to in the Rule 56(f) affidavit to go forward, because the Temkins have stated in their brief that in light of the fact that discovery was not concluded, the district court “should have deferred ruling or granted Plaintiffs’ motion to reconsider.”
We review denials of Rule 59(e) motions under an abuse of discretion standard. Boryan v. United States, 884 F.2d 767, 771 (4th Cir.1989). The primary question raised by the district court’s entry of summary judgment in the face of the Temkins’ Rule 56(f) motion and its subsequent denial of the Rule 59(e) motion is whether the evidence produced by further discovery would have created a genuine issue of material fact or would have led the court to conclude that, viewing the evidence in a light most favorable to the Temkins, a jury might reasonably conclude that Deputy Sheriff Selby’s conduct met the “shocks the conscience” standard.
The Supreme Court has noted that once a plaintiff “has named a witness to support her claim, summary judgment should not be granted without ... somehow showing that the named witness’ possible testimony raises no genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 328, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (White J., concurring). Yet because, as discussed in part II, supra, the necessary predicate for a finding of liability on the part of the Commissioners is absent, any further evidence developed through the depositions the Temkins sought to include in the record would have been immaterial to the court’s judgment, because it would not have shed any additional light on Selby’s liability. Cf. Miltier v. Beorn, 896 F.2d 848, 852-53 (4th Cir.1990) (inferences drawn from depositions of experts created genuine issue of material fact as to whether standard of care had been met, rendering summary judgment improper). It would seem clear, then, that the district court did not abuse its discretion in denying the Temkins’ Rule 59(e) motion.
For all of the foregoing reasons, the judgment of the district court is
AFFIRMED.
. Selby and the Commissioners shall be collectively referred to as "the County” except where clarity necessitates a reference to each individually.
. The Temkins have argued in passing that the district court usurped the role of the fact-finder by making, on a summary judgment motion, credibility determinations, by weighing evidence, and by drawing inferences from the facts in a light unfavorable to the non-moving party, with the result of accepting the County’s testimony at face value. See, e.g., Paroline v. Unisys Corp., 879 F.2d 100, 109 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990) (where conflict in inferences to be drawn from a given set of facts exists, summary judgment is inappropriate). Here the Temkins seem to have argued that there existed genuine issues of material fact standing in the way of summary judgment, but they have failed utterly to discuss in their brief what any of those disputed facts are. Our only recourse, then, is to review the record de novo, mindful that
[t]he facts and inferences to be drawn from the facts must be viewed in the light most favorable to the non moving party, and [that] this party is entitled "to have the credibility of [their] evidence as forecast assumed, [their] version of all that is in dispute accepted, [and] all internal conflicts in it resolved favorably to [them]."
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). As we shall discuss further, infra, the only "fact” over which there may exist a dispute was testimony by one of the Temkins’ experts to the effect that Selby’s conduct during the chase rose to the level of recklessness. Yet under the applicable standard of care, such a "fact” would not be "material.”
. Such a rule of law forms one of two branches of the reemergence of substantive due process. The branch at issue here is to be distinguished from a line of cases forming the branch described by Justice Harlan in Poe v. Ullman, in which he noted,
Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals nevertheless destroy the enjoyment of all three.
367 U.S. 497, 541, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) (emphasis added). See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).
. As Justice Stevens suggested in his concurring opinion in Daniels, any section 1983 claimant not raising a claim under another fundamental right incorporated through the Fourteenth Amendment, or under the theory of substantive due process set out in Rochin, may only attack the adequacy of the procedure at issue. 474 U.S. at 337-39, 106 S.Ct. at 677-79 (Stevens, J., concurring). Notably, the Temkins have not asserted that the state process is inadequate. Indeed, they timely filed a state action against the County in a Maryland court, trial having been held in abeyance pending resolution of the instant case in its assertion of section 1983 claims. Assuming, arguendo, that Justice Stevens' view is not the current posture of a majority of the Court, and some fourth possibility exists in which no state remedy is available, but a substantive due process claim may still be made out on the basis of a deprivation caused by conduct greater than merely negligent, such as “gross negligence” or recklessness, we need not today concern ourselves with such a possibility, because in the presence of a colorable state remedy, Temkin’s only available cause of action lies along the line of cases comprising, inter alia, Rochin and Tawney.
. In so holding, we do not today address the question of whether the same standard applies in those cases, such as incarceration or involuntary foster care, where governmental control over the claimant is intentional and direct. See, e.g., Martin, 849 F.2d at 871; Ledbetter, 818 F.2d at 797.
. No mention is made of Dr. Alpert’s testimony in the district court’s memorandum opinion.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, et al. v. CENTRAL AIRLINES, INC.
No. 61.
Argued February 19-20, 1963.
Decided April 15, 1963.
Charles J. Morris and Bernard Dunau argued the cause for petitioners. With them on the briefs was Plato E. Papps.
Luther Hudson argued the cause and filed a brief for respondent.
Samuel J. Cohen filed a brief for the Air Line Pilots Association, as amicus curiae, urging reversal.
Mr. Justice White
delivered the opinion of the Court.
The respondent airline discharged the six individual petitioners in April 1958 after they refused to attend disciplinary hearings without having a union representative present. The petitioning union and the employees initiated grievances over these discharges, which were not settled between the parties and which were presented to the system board of adjustment, established by agreement between the union and the airline according to the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. §§ 151-188. The four-man board of adjustment deadlocked, a neutral referee was appointed by the National Mediation Board, and an award was then rendered ordering the individual petitioners reinstated without loss of seniority and with back pay. Central refused to comply and petitioners filed this suit in the United States District Court for the Northern District of Texas for enforcement of the award.
The complaint recited the certification of the union as the collective bargaining agent by the National Mediation Board pursuant to an election held under the Railway Labor Act, disclosed the execution of a collective bargaining contract with the company, and attached as an exhibit a copy of another contract with Central establishing a system board of adjustment. This contract stated, “In compliance with Section 204, Title II of the Railway Labor Act, as amended, there is hereby established a system board of adjustment for the purpose of adjusting and deciding disputes . . . Under the express terms of the contract, “decisions of the Board in all cases properly referable to it shall be final and binding upon the parties” and, when a neutral referee is sitting with the board, “a majority vote of the Board shall be final, binding, and conclusive between the Company and the Association and anyone they may represent- having an interest in the dispute.” The complaint set out in some detail the action and decision of the system board and a copy of its award was attached. Alleging that Central had refused to comply with the terms of the award and that the suit “arises under the laws of the United States, specifically under the Railway Labor Act as set out more particularly hereinabove,” petitioners requested the “enforcement of the aforesaid System Board Award . . . and that judgment be entered ordering defendant to comply with said award . . . .”
Although the gist of the complaint was that Central was obliged to comply with the award by reason of the Railway Labor Act, the District Court granted Central’s motion to dismiss for lack of jurisdiction, concluding that there was no diversity of citizenship (which was not disputed) and that the case did not arise under the laws of the United States as required by 28 U. S. C. § 1331. The Court of Appeals for the Fifth Circuit affirmed on the authority of its previous decision in Metcalf v. National Airlines, 271 F. 2d 817, ruling that the complaint did not disclose “affirmatively a federally-created cause of action” and that “this suit is nothing more than a state-created action to construe a contract.” 295 F. 2d 209. Certiorari was granted to consider the important question of whether a suit to enforce an award of an airline system board of adjustment is a suit arising under the laws of the United States under 28 U. S. C. § 1331 or a suit arising under a law regulating commerce under 28 U. S. C. § 1337. 369 U. S. 802. We have concluded that this question must be answered in the affirmative and that the District Court has jurisdiction to proceed with the suit.
I.
In 1936, Congress extended the Railway Labor Act to cover the then small-but-growing air transportation industry. 49 Stat. 1189, 45 U. S. C. §§ 181-188. Its general aim was to extend to air carriers and their employees the same benefits and obligations available and applicable in the railroad industry. But there was to be a significant variation. The 1936 amendments made applicable to the airlines all of the provisions of the Railway Labor Act, excepting § 3, 45 U. S. C. § 153, dealing with the National Railroad Adjustment Board; but including § 1, 45 U. S. C.. § 151, containing definitions; § 2, 45 U. S. C. § 151a, the Act’s statement of purposes; §§ 4 and 5, 45 U. S. C. §§ 154-155, relative to the National Mediation Board and its functions; and §§ 7, 8 and 9, 45 U. S. C. §§ 157-159, relating to voluntary arbitration and emergency boards. § 202, 45 U. S. C. § 182. In the place of § 3, Congress provided in § 205, 45 U. S. C. § 185, that the creation of a National Air Transport Board would be postponed until “in the judgment of the National Mediation Board, it shall be necessary to have a permanent national board of adjustment Until the establishment of the national board for the airlines industry, § 204, 45 U. S. C. § 184, required the formation of system, group, or regional boards of adjustment:
“It shall be the duty of every carrier and of its employees, acting through their representatives, selected in accordance with the provisions of sections 181-188 of this title, to establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system, group, or regional boards of adjustment, under the authority of section 153 of this title.”
The duty imposed upon the parties to create adjustment boards to settle grievances was more than a casual suggestion to the air industry. The original version of S. 2496, which, as amended, became law, provided for voluntary boards of adjustment as in the case of the railroads and extended the jurisdiction of the National Mediation Board to minor as well as major disputes. But upon the suggestion of the National Mediation Board, its jurisdiction was not expanded, and the law as finally passed made compulsory the establishment of the adjustment boards. Until and unless the National Mediation Board determined to create a national board, the parties were placed under the statutory duty of establishing and utilizing system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes arising under existing contracts.
The obligation which § 204 fastened upon the carriers and their employees cannot be read in isolation. Its true significance must be drawn from its context as part of the Railway Labor Act which itself draws meaning from its history. See Romero v. International Term. Co., 358 U. S. 354, 360.
Congress has long concerned itself with minimizing interruptions in the Nation’s transportation services by strikes and labor disputes and has made successive attempts to establish effective machinery to resolve disputes not only as to wages, hours, and working conditions, the so-called major disputes connected with a negotiation of contracts or alterations in them, but also as to the interpretation and application of existing contracts, the minor disputes of the type involved in this case. In 1920, the latter category was dealt with by providing that the parties “may” create boards of adjustment to handle these grievances which, however, if unresolved by these boards were to be referred to the Railway Labor Board whose decisions were not legally enforceable. The results were highly unsatisfactory, and in 1926 Congress required that “boards of adjustment shall be created by agreement.” The boards were to be composed of an equal number of employee and employer representatives and their decisions were to “be final and binding on both parties to the dispute; and it shall be the duty of both to abide by such decisions.”
In spite of the mandate of the 1926 Act, creation of adjustment boards did not automatically follow. Furthermore, there was no provision in the Act for breaking deadlocks of the board, which were frequent and which resulted in a myriad of minor disputes going unresolved. As a result, see Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 725-726, in 1934 the Act was amended to create the National Railroad Adjustment Board, the divisions of which were to hear disputes referred by either party and “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” § 3, 45 U. S. C. § 153 First (i). In the event of deadlocks in a division, the National Mediation Board was required to name a neutral referee to sit with the appropriate division of the Board to determine the case. § 3 First (1). It was provided in § 3 First (m) that “the awards of the several divisions of the Adjustment Board shall be stated in writing . . . and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award. . . .” Section 3 First (p) provided for a suit in the United States District Courts to enforce certain awards.
While thus establishing a National Adjustment Board with power to make final awards with the help of neutral persons where necessary, Congress also provided in § 3 Second for voluntary system boards:
“Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers and any class or classes of its or their employees, all acting through their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified in this section. In the event that either party to such a system, group, or regional board of adjustment is dissatisfied with such arrangement, it may upon ninety days’ notice to the other party elect to come under the jurisdiction of the Adjustment Board.” 45 U. S. C. § 153 Second.
This machinery was designed to serve the stated purposes of the Act which were, among others: “To avoid any interruption to commerce or to the operation of any carrier engaged therein” and “to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” § 2, 45 U. S. C. § 151a. Implementing such goals, § 2 First, 45 U. S. C. § 152 First, made it “the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements . . . and to settle all disputes, whether arising out of the application of such agreements, or otherwise, in order to avoid any interruption to commerce.” The statute directed that minor disputes be handled on the property in the usual manner, but failing adjustment either party could take the matter to the adjustment board, which was to hear and decide it. This provision is applicable both to rail (§3 Second) and air (§ 204) carriers.
II.
In view of the clearly stated purposes of the Act and of its history, reflecting as it does a steady congressional intent to move toward a reliable and effective system for the settlement of grievances, we believe Congress intended no hiatus in the statutory scheme when it postponed the establishment of a National Air Transport Adjustment Board and instead provided for compulsory system, group, or regional boards. Although the system boards were expected to be temporary arrangements, we cannot believe that Congress intended an interim period of confusion and chaos or meant to leave the establishment of the Boards to the whim of the parties. Instead, it intended the statutory command to be legally enforceable in the courts and the boards to be organized and operated consistent with the purposes of the Act.
We have held other duties imposed upon the carriers and their employees by the Railway Labor Act binding and their breach redressable in the federal courts, such as the duty to bargain, Virginian R. Co. v. System Federation, 300 U. S. 515, 545, and the duty of a certified bargaining representative to represent all members of the craft without discrimination, Steele v. Louisville & N. R. Co., 323 U. S. 192. We take a similar view of the duty to establish adjustment boards under §204; and as the Court said in Tunstall v. Brotherhood of Locomotive Enginemen, 323 U. S. 210, 213, quoting from Deitrick v. Greaney, 309 U. S. 190, 200-201, “the extent and nature of the legal consequences” of this duty “though left by the statute to judicial determination, are nevertheless to be derived from it and the federal policy which it has adopted.”
It is therefore the statute and the federal law which must determine whether the contractual arrangements made by the parties are sufficient to discharge the mandate of § 204 and are consistent with the Act and its purposes. It is federal law which would determine whether a § 204 contract is valid and enforceable according to its terms. If these contracts are to serve this function under § 204, their validity, interpretation, and enforceability cannot be left to the laws of the many States, for it would be fatal to the goals of the Act if a contractual provision contrary to the federal command were nevertheless enforced under state law or if a contract were struck down even though in furtherance of the federal scheme. The needs of the subject matter manifestly call for uniformity. Compare Teamsters Union v. Lucas Flour Co., 369 U. S. 95, 103-104.
The contracts and the adjustment boards for which they provide are creations of federal law and bound to the statute and its policy. If any provision contained in a § 204 contract is enforceable, it is because of congressional sanction: “[T]he federal statute is the source of the power and authority .... The enactment of the federal statute ... is the governmental action . . . though it takes a private agreement to invoke the federal sanction. ... A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimatur of the federal law upon it . . . .” Railway Dept. v. Hanson, 351 U. S. 225, 232. That is, the § 204 contract, like the Labor Management Relations Act § 301 contract, is a federal contract and is therefore governed and enforceable by federal law, in the federal courts. The situation presented here is analogous to that in American Surety Co. v. Shulz, 237 U. S. 159, a suit on a supersedeas bond in an appeal from a District Court to the Court of Appeals. When the judgment against the appellant was affirmed and he failed to pay it, the appellee sued the surety in the District Court. This Court held that there was “arising under” jurisdiction, since the bond had been given pursuant to the federal statute requiring one when appeals were taken; the construction of the bond and the extent of the surety company’s liability under it were said to be federal questions which the federal courts had jurisdiction to determine.
More specifically, the provisions of a § 204 contract, such as those governing the composition of the adjustment board, the procedures to be employed as to notice and hearing or for breaking deadlocks, or the finality to be accorded board awards, are to be judged against the Act and its purposes and enforced or invalidated in a fashion consistent with the statutory scheme. There may be, for example, any number of provisions with regard to the finality of an award that would satisfy the requirements of § 204 but we are quite sure that some such provision is requisite to a § 204 contract and that the federal law would look with favor upon contractual provisions affording some degree of finality to system board awards. Congress has long since abandoned the approach of the completely unenforceable award which was used in the 1920 Act. Elgin, J. & E. R. Co. v. Burley, supra. Adjustment board decisions were expressly made final and binding in the 1926 Act, the National Railroad Adjustment Board awards were made enforceable in the federal courts by the 1934 amendments, and the awards under voluntary arbitration agreements were likewise made expressly enforceable by the statute. There is no reason to believe that in 1936 Congress discarded for an entire industry an element essential to a reliable system of settling disputes under existing contracts or that it contemplated awards by adjustment boards the enforceability of which depended entirely upon the desires of the parties or upon state statutes or court decisions. Quite the contrary, the Act, its history, and its purposes lead us to conclude that when Congress ordered the establishment of system boards to hear and decide airline contract disputes, it “intended the Board to be and to act as a public agency, not as a private go-between; its awards to have legal effect, not merely that of private advice.” Bower v. Eastern Airlines, 214 F. 2d 623, 626 (C. A. 3d Cir.); Washington Term. Co. v. Boswell, 75 U. S. App. D.. C. 1, 10, 124 F. 2d 235, 244.
III.
The contract of the parties here was executed under § 204 and declares a system board award to be final, binding, and conclusive. The claim stated in the complaint is based upon the award and demands that it be enforced. Whether Central must comply with the award or whether, instead, it is impeachable, are questions controlled by federal law and are to be answered with due regard for the statutory scheme and purpose. To the extent that the contract imposes a duty consistent with the Act to comply with the awards, that duty is a federal requirement. If Central must comply, it is because federal law requires its compliance.
In the circumstances we have here, we are not dealing with a suit involving an aspect of federal law which is only collateral or remote or a case where state and federal laws are so blended as to present a serious question of the scope of the arising-under provision of § 1331 or § 1337. See Smith v. Kansas City Title & Trust Co., 255 U. S. 180; Gully v. First Nat. Bank, 299 U. S. 109; Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667; Romero v. International Term. Co., 358 U. S. 354, 393, n. 4 (dissenting and concurring opinion). In our view the complaint in this case, for jurisdictional purposes, presented a substantial claim having its source in and arising under the Railway Labor Act and the District Court therefore has jurisdiction under 28 U. S. C. § 1331 if the jurisdictional amount is satisfied and in any case under § 1337. Romero v. International Term. Co., 358 U. S. 354; Montana-Dakota Co. v. Northwestern P. S. Co., 341 U. S. 246, 249; American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260.
Reversed and remanded.
28 U. S. C. §1331:
“(a) 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.
“(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interests and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.”
28 U. S. C. § 1337:
“The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.”
Petitioners’ complaint mentioned only § 1331, but reliance has subsequently been placed on § 1337 as well, since there is a dispute concerning the existence of the jurisdictional amount required by § 1331. This is permissible. American Federation of Labor v. Watson, 327 U. S. 582, 589-591.
See Hearings on S. 2496 before a Subcommittee of the Senate Committee on Interstate Commerce, 74th Cong., 1st Sess. 26-27.
Id., at 1-2.
Id., at 11.
See generally Virginian R. Co. v. System Federation, 300 U. S. 515; Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548; Garrison, The National Railroad Adjustment Board, 46 Yale L. J. 567; Note, 72 Yale L. J. 803.
The Court has many times reviewed the history of the railway labor laws. For example, see Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711; Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239; Brotherhood of Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30; Union Pac. R. Co. v. Price, 360 U. S. 601; Machinists v. Street, 367 U. S. 740.
41 Stat. 469, 474.
Pennsylvania Federation v. Pennsylvania R. Co., 267 U. S. 203. See Pennsylvania R. Co. v. Labor Board, 261 U. S. 72.
See Brotherhood of Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30.
44 Stat. 578.
§ 3 First (e), id,., at 579.
The absence of a specific statute conferring jurisdiction, in addition to §§ 1331 and 1337, was of no moment in such cases. See Tunstall v. Brotherhood of Locomotive Enginemen, 323 U. S. 210, 213; Leedom v. Kyne, 358 U. S. 184, 189-190. These cases, and the one at bar, are unlike such cases as Switchmen’s Union v. National Mediation Board, 320 U. S. 297, and General Committee v. M.-K.-T. B. Co., 320 U. S. 323, where Congress intended no judicial review and its denial impaired no federal rights.
See also Switchmen’s Union v. National Mediation Board, 320 U. S. 297; General Committee v. M.-K.-T. R. Co., 320 U. S. 323; General Committee v. Southern Pac. Co., 320 U. S. 338; Brotherhood of Clerks v. United Transport Service Employees, 320 U. S. 715, 816; Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548; Virginian R. Co. v. System Federation, 300 U. S. 515.
As the dissenting judge below remarked, 295 F. 2d, at 221-222: “. . . Congress in 1936 could not . . . have thought that stability and continuity to interstate air commerce would come from the undulating policies ... of the legislatures and courts (or both) of 48 states in the enforcement of anything thought so essential to industrial peace as this system of governmentally compelled arbitration.” The dissenting opinion also points out the difficult conflict of laws problems which applying state law would raise, 295 F. 2d, at 223:
“Not the least of the absurdities is that an airplane flies from state to state. What state is to be the forum? What state was the parent of this creature — the consensual contract containing the agreement to arbitrate? May any or all of the states beneath the route or routes traveled by the airline be resorted to? Is the continuity of essential air traffic to be at the plaintiff’s choice of forum? What is to happen when several plaintiffs bring several suits in several states ? Is effective federal control of an operational activity deemed so essential to national welfare to be precariously dependent upon the accident of diversity of citizenship?”
To be sure, different airlines may use different contracts, and any one may have different agreements for different crafts, but such lack of uniformity represents a minimal burden on commerce. The lack of uniformity created by dividing everything by 50 (or however many States the system spans) would multiply the burden by a substantial factor and aggravate the problem to an intolerable degree.
The Shulz case followed a line of authority involving suits on bonds given by federal officers to ensure their faithful performance of their federal duties, in which the .Court had held that there was federal jurisdiction for suits by an aggrieved party seeking to collect from the surety. Bock v. Perkins, 139 U. S. 628 (suit for tort of U. S. marshal committed in performance of duty); Sonnentheil v. Moerlein Co., 172 U. S. 401 (same); see Feibelman v. Packard, 109 U. S. 421 (same, removal case); Howard v. United States, 184 U. S. 676 (suit against surety of clerk of court brought ex rel. United States to recover for clerk’s appropriation of money paid into federal court). The same rule that federal law applies to federal contracts has been applied, in a choice of substantive law rather than jurisdictional context, in cases involving rights and obligations arising on commercial paper issued by the United States. See, e. g., Metropolitan Bank v. United States, 323 U. S. 454; Clearfield Trust Co. v. United States, 318 U. S. 363, 366. See also Royal Indem. Co. v. United States, 313 U. S. 289, 296 (general law rather than local law governs whether Government may collect interest on surety bond given to secure collection of taxes); American Pipe & Steel Corp. v. Firestone Co., 292 F. 2d 640, 643-644 (C. A. 9th Cir.) (construction of subcontract governed by federal law in suit between prime and sub on government contract); Girard Trust Co. v. United States, 149 F. 2d 872 (C. A. 3d Cir.) (federal law governs rights of parties in lease where Government is lessee, Tucker Act suit); Woodward v. United States, 167 F. 2d 774 (C. A. 8th Cir.) (federal law governs interpretation of National Service Life Insurance policy, suit against Government on policy). Although these decisions did not involve federal jurisdiction as such, since jurisdiction was conferred by specific statutes and recourse to the “arising under” statute was unnecessary, they are suggestive since they hold federal law determinative of the merits of the claim. Also highly suggestive, for the same reason, is this Court’s language in Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173, 176, a case involving both federal patent-antitrust policies and. conflicting state contract law policies of estoppel:
“[T]he doctrine of that case [Erie] is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.”
Thus in cases involving adjustment board procedures or awards, the federal courts have applied federal substantive law to the determination of the validity of the award and the procedures for securing it, irrespective of whether the case was brought into the federal court system on the basis of diversity. See International Assn. of Machinists v. Northwest Airlines, 304 F. 2d 206 (C. A. 8th Cir.) ; Flight Engineers v. American Airlines, 303 F. 2d 5 (C. A. 5th Cir.) ; Woolley v. Eastern Air Lines, 250 F. 2d 86, 90-91 (C. A. 5th Cir.); Sigfred v. Pan American World Airways, 230 F. 2d 13 (C. A. 5th Cir.); Bower v. Eastern Airlines, 214 F. 2d 623, 625-627 (C. A. 3d Cir.); Pan American World Airways, Inc., v. Division of Labor Law Enforcement, 203 F. Supp. 324 (N. D. Cal.); Edwards v. Capital Airlines, 84 U. S. App. D. C. 346, 176 F. 2d 755; Crusen v. United Air Lines, 141 F. Supp. 347 (D. Colo.), aff’d, per curiam, 239 F. 2d 863 (C. A. 10th Cir.); Farris v. Alaska Airlines, 113 F. Supp. 907 (W. D. Wash.); American Airlines v. Air Line Pilots Assn., 91 F. Supp. 629 (E. D. N. Y.); United Automobile Workers v. Delta Air Lines, 83 F. Supp. 63 (N. D. Ga.).
See also Brotherhood of Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, brought under 28 U. S. C. §§ 1331, 1337. (R. 4, 47.)
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Xenia GREEN, Petitioner-Appellant, v. Robert ABRAMS, Attorney General of the State of New York, N.Y. County District Attorney’s Office, Commissioner of Corrections, County of New York, Respondents-Appellees.
No. 610, Docket 92-2553.
United States Court of Appeals, Second Circuit.
Argued Oct. 30, 1992.
Decided Jan. 12, 1993.
Eleanor Jackson Piel, New York City, for petitioner-appellant.
Mitchell G. Krapes, Asst. Dist. Atty., New York County (Robert M. Morgenthau, Dist. Atty. for New York County, Alan Gadlin, Asst. Dist. Atty., New York County, New York City, of counsel), for respondents-appellees.
Before: MESKILL, Chief Judge, WINTER, Circuit Judge, and RESTANI, Judge . ,
Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
RESTANI, Judge:
Xenia Green was convicted of criminally negligent homicide on December 16, 1987. After exhausting her remedies in the New York state court system, Green petitioned for a writ of habeas corpus from the United States District Court for the Southern District of New York. The district court, Sweet, J., denied Green’s petition, but certified the issue for appeal. We affirm the district court’s denial of a writ of habeas corpus and we decline to appoint counsel for petitioner.
On March 1, 1986, a sixty-year old man was found dead at the Salon Colonique, a business establishment owned and operated by petitioner, Xenia (also known as “Sophie” or “Sophia”) Green. The Salon Colo-nique offered a form of colonic wash to its customers, using a device invented, by Green. The device consisted of a metal speculum, an inflow tube connected to a water faucet, and an outflow tube. To operate the device, Green or the customer would insert the speculum, attach the tubes and turn on the water faucet.
The pressure in the faucets at the Salon Colonique was between 40 and 50 pounds per square inch. Green encouraged her customers to crimp the outflow tube in order to increase the pressure and thus supposedly the effectiveness of the device. Most procedures of this type deliver water into the colon at a rate of less than one pound per square inch. The government’s expert testified that Green’s variation from the normal procedure was dangerous and without medical justification.
An article co-authored by Green acknowledged the danger of high pressure colonics which “force water into the colon.” Xenia Green & Dan Firth, Welcoming the Water Angel: An Introduction to Colonics 8-9. The same article claimed that Green’s establishment administered a safe treatment to its customers because the water tank on the roof of the building, which fed the faucets, acted exactly like a water bag used in a traditional enema. It never mentioned the fact that the pressure in the faucets exceeded the pressure from a water bag by more than- forty times. See id.
. The decedent often visited Green’s establishment. Green testified that on the night of his death, the decedent administered an enema to himself at 9:00 p.m. on February 28 and a second enema at 2:30 or 3:00 a.m. the morning of March 1. At 4:00 a.m. on March 1, Green called 911 to report that her client had stopped breathing. When the police arrived, Green’s client was found dead, naked and seated on the commode. Both the body and the rooms were spotless.
An autopsy determined that death occurred between 11:30 p.m. on February 28 and 3:30 a.m. on March 1 from a rupture of the colon. The examining doctor discovered a half-inch tear in the wall of the cecum, the upper portion of the colon. The intestinal cavity was filled with water and waste material which had leaked through the wall of the colon. Death resulted from infection and inflammation of the abdominal organs. The examining doctor concluded that the pressure from Green’s device caused the rupture of decedent’s colon, already weakened by age and previous enemas. .
According to the autopsy report, the rupture occurred between two and six hours before death. Although an expert in the field testified that hydrocolon therapists should constantly attend to the client during the colonic, Green was not with her client during the procedure or at the time of death. A perforated cecum is not immediately fatal and, if detected in time, need not result in death.
Based on the evidence recited above, on December 16, 1987 a New York state jury found Green guilty of criminally negligent homicide. Three months later, on March 3, 1988, she was sentenced to five years probation and fined $5,000.00. Neither the oral statements of the sentencing judge nor his written order specified a date for payment of the fine. During the probation period, Green made one attempt to pay $10.
The Department of Probation moved to revoke Green’s probation on the ground that she had not made a good faith attempt to obtain resources to pay the fine. A hearing was held at which the state court judge found that Green had failed to make “any bonafide [sic] efforts to acquire the financial resources necessary to pay the fine that’s been imposed.” He therefore found that she had violated the conditions of her probation and revoked her sentence.
Subsequently, a resentencing hearing was held on June 21, 1991, and the state court resentenced Green to a one-year prison term for failing to make good faith efforts to pay the fine. The court rejected Green’s offer, made during the resentenc-ing hearing, to pay a lump sum of $300 immediately and $100 per month in the future. After the state appellate court affirmed her resentencing, petitioner offered to pay the entire fine out of funds provided by her friends, but the trial court refused. On May 27, 1992, Green petitioned for a writ of habeas corpus. The United States District Court for the Southern District of New York denied her petition in an opinion issued on July 8, 1992. This appeal followed.
STANDARD OF REVIEW
A writ of habeas corpus may be granted to á person being held “in custody in violation of the Constitution or laws ... of the United States.” 28 U.S.C. § 2241(c)(3) (1988). The Supreme Court has determined that the due process clause of the Fourteenth Amendment is violated when a person is convicted without “sufficient proof.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). There is sufficient proof of guilt if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789.
DISCUSSION
Green relies primarily on two arguments: 1) that there' was insufficient evidence to convict her under New York state law, and 2) that revoking her probation for failure to pay the finé violated her due process rights.
A. Sufficiency of the Evidence
In considering a petition for writ of habeás corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to détermine the elements of the crime. Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16. New York state law provides: “[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” N.Y. Penal Law § 125.10 (McKinney 1987). Criminal negligence is defined as “failpng] to perceive a substantial and unjustifiable risk” and thereby engaging in “a gross deviation from the standard of care that a reasonable person would observe in the situation.” N.Y. Penal Law § 15.05(4) (McKinney 1987).
Under New York state law, a defendant’s actions constitute a “sufficiently direct cause of death” if “the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” People v. Kibbe, 35 N.Y.2d 407, 412, 321 N.E.2d 773, 776, 362 N.Y.S.2d 848, 851-52 (1974). In Kibbe, the court found that defendants’ act of robbing, partially undressing, and then abandoning a severely intoxicated man on the side of the road would foreseeably lead to death. The victim died when a driver accidentally collided with him. The court found that the driver’s act did not constitute a superseding and intervening cause which would relieve defendants of liability for murder. Id. at 413, 321 N.E.2d at 776, 362 N.Y.S.2d at 852.
Green argues that the fact that she had administered almost 3,000 colonic treatments without problems until the demise of decedent shows that his death was not foreseeable. The government counters with a quote from an article written by Green, saying “[p]ersons interested in co-lonics should especially avoid colonic methods that use a high pressure pump to force water into the colon.” Green denies that her device was a high pressure system. Forty pounds per square inch, however, is clearly a high level of water pressure. Green’s experience renders any denial of knowledge on this point incredible. Given the extreme force provided by Green’s device and her own statements regarding the danger of high pressure systems, a jury could have reasonably concluded that Green should have been aware of a risk of death to her customers.
Green also argues that the decedent was in complete control of the procedure and therefore his acts constituted a superseding and intervening cause sufficient to relieve her of liability. Green’s argument is not persuasive. Green not only provided her client with the instruments of his death but she also encouraged him and other customers to crimp the outflow tube to increase the pressure, thereby heightening the likelihood of death. See Duffy, 584 N.Y.S.2d at 741, 595 N.E.2d at 816, 79 N.Y.2d at 616. Thus, the record contains sufficient evidence of both foreseeability and causation.
The record also contains evidence of the appropriate standard of care and Green’s violation of it. One medical expert described Green’s device and her recommended method of use as dangerous and without medical justification. An expert in hydrocolon therapy testified that a client receiving a colonic should be under constant supervision. Green ■ admittedly did not remain with her client throughout the whole procedure, nor did she witness his decline and death. A jury could rationally conclude that during the two to six hours between the rupture of the client’s colon and his death, a reasonable person, especially one knowledgeable about colonics, would have investigated. There is sufficient evidence that Green’s conduct in providing the decedent with the colonic device, in advising him to use it in a dangerous manner and in failing to supervise the procedure constituted a gross violation of the relevant standard of care.
B. Revocation of Probation for Failure to Pay Fine
As the Supreme Court has stated, “the full panoply of rights due a defendant ... does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In particular, “[i]f the probationer willfully refused to pay [a fine imposed by the court] or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment.” Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983). Only if the probationer has made good faith efforts to pay a fine and has failed must the court consider alternatives to imprisonment. Id.
In this case, the sentencing judge made a specific finding of Green’s “willful refusal” to pay the fine imposed by the court. Peo-pie v. Green, Indictment No. 8700/86, at 8 (N.Y.Sup.Ct. June 21, 1991) (transcript of bench order). Although the probation officer constantly reminded Green of her duty to pay the fine, Green said she wanted to pay her appellate attorney first. When told of her obligation to seek employment in order to obtain- the necessary funds, defendant responded that God was her source and she would survive with the help. of her friends.
Green raises two arguments against the revocation of her probation, but neither has merit. First, she contends that, in declining to find indigency, the sentencing court impermissibly relied on petitioner’s change of address to a “high-rent district”. Second, she claims that she did not receive adequate notice that her probation could be revoked for failure to pay the fine before the end of the probationary period.
During resentencing, the district court noted that petitioner changed her address to 108 East 38th Street without informing the probation office. The judge characterized East 38th Street as a high-rent district, but he did not rely solely on this fact in finding a willful refusal to pay the fine. Green v. Abrams, 798 F.Supp. 149, 154-155 (S.D.N.Y.1992). There was more than adequate evidence of plaintiff’s willfulness and lack of effort with regard to payment of the fine. We perceive no constitutional violation on this ground.
Green further contends that the written conditions of probation were so vague as to deprive her of due process. The written order did not designate a particular time for payment, but it clearly conditioned the continuation of probation on payment of the fine. According to a statement signed by her, Green understood that the court could revoke probation if she violated a condition. Id. at 154. The probation officer’s constant urging to pay the fine should have put Green on notice that immediate attempts at payment were included in the conditions of probation.
In conclusion, the state court did not violate Green’s due process rights when it revoked her probation for failure to pay the fine imposed on her. The sentencing court properly found that Green willfully refused to pay the fine based on her grudging response to her probation officer’s frequent reminders to pay and her professed intention to pay her appellate attorney first. The state court violated no constitutional provision in rejecting Green’s attempt to arrange periodic payments to pay the fine. This offer was made only after a probation violation had been found and her sentence had been revoked. If anything, the offer underlined the prior lack of good faith effort. In addition, the written conditions of probation gave Green sufficient notice of possible revocation despite their failure to specify a particular date for payment. Accordingly, the district court’s denial of a writ of habeas corpus is affirmed.
C. Appointment of Counsel
As to petitioner’s motion to appoint the person of her choosing as counsel, it is well settled in the Second Circuit and elsewhere that “there is no constitutional right to representation by counsel in habe-as corpus proceedings.” United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir.1960); LeFave & Israel, 3 Criminal Procedure § 27.8, at 392-93 (1984). Moreover, an indigent defendant has no right to choose the particular counsel appointed to represent her. See, e.g., Pizarro v. Bartlett, 776 F.Supp. 815, 819 (S.D.N.Y.1991). Finally, this record does not sustain a finding of indigency. Green’s motion to appoint counsel is denied.
CONCLUSION
In short, we affirm the district court’s denial of a writ of habeas corpus and we deny petitioner’s motion to appoint counsel. Petitioner’s motion for clarification of the bail order issued by this court is rendered moot by this decision.
. The Appellate Division of the Supreme Court affirmed Green's conviction and the revocation of probation on May 19, 1992. Leave to appeal to the New York Court of Appeals was denied on May 27, 1992.
. An appeal from a denial of a writ of habeas corpus may not proceed in the absence of a certificate of probable cause issued by a district or a circuit judge. Fed.R.App.P. 22(b). The district judge who denied the writ in this case issued a "certificate of reasonable doubt” on August 12, 1992. It seems apparent from context that the judge intended to issue a certificate of probable cause. Neither party argues otherwise.
. A common indication of rupture is an intense, knife-like pain felt within seconds. Although the cecum contains nerves which sense pressure only, the nerves in the abdominal wall may translate this pressure into pain. Therefore, while the patient may not sense a colon about to burst, he will normally notice the rupture as it occurs.
The only evidence that decedent noticed the rupture of his colon is the testimony of another customer who heard a man call out "Sophie” from either the reception area or the treatment room several times during the evening. The speaker did not indicate that he was in pain and the voice was never positively identified as belonging to the decedent.
. See also Wright v. West, - U.S. -, - -, 112 S.Ct. 2482, 2485-86, 120 L.Ed.2d 225 (1992) (reaffirming the standard set forth in Jackson v. Virginia).
. See also People v. Duffy, 79 N.Y.2d 611, 616, 595 N.E.2d 814, 816, 584 N.Y.S.2d 739, 741 (1992) (suicide is not a superseding and intervening cause of death that relieves defendant of liability for giving decedent bullets and a gun after decedent expressed suicidal impulses); but cf. People v. Pinckney, 38 A.D.2d 217, 219, 328 N.Y.S.2d 550, 552 (1972) (a person who sells heroin and a syringe to someone who dies after injecting the drug is not guilty of criminally negligent homicide because "[ajlthough it is a matter of common knowledge that the use of heroin can result in death, it is also a known fact that an injection of heroin into the body does not generally cause death”), aff’d, 32 N.Y.2d 749, 297 N.E.2d 523, 344 N.Y.S.2d 643 (1973). Pinckney is distinguishable because the New York state legislature, knowing the possible results of heroin use, chose specific penalties for the sale of heroin. Id. at 220-21, 328 N.Y.S.2d at 553-54.
. Green & Firth, Welcoming the Water Angel 8-9.
. Green argues that all the evidence adduced at trial was circumstantial and that the judge’s failure to instruct the jury to that effect violated her due process rights. The record, however, reflects direct as well as circumstantial evidence. Green admitted that she knew high-pressure colonics were dangerous, that she designed the device, and that she gave it to decedent for his use. It is uncontroverted that decedent’s use of the device killed him.
. The district court allowed Green to proceed in forma pauperis in the habeas corpus action to permit her to preserve her argument as to indi-gency. Green v. Abrams, No. 92 Civ. 3819, at 1, 1992 WL 230182 (S.D.N.Y. August 27, 1992) (memorandum opinion). That determination, standing alone, does not suggest that indigency rather than bad faith was the reason for her failure to pay the fine.
. Green also argues that the court violated the New York Criminal Procedure Law by failing to specify the date of payment. Procedural errors, however, are not appropriate bases for a writ of habeas corpus. See Estelle v. McGuire, - U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991).
.An alternative basis for the judge’s decision to revoke probation could have been Green's change of address without notifying the probation office. United States v. Brown, 899 F.2d 189, 193 (2d Cir.1990) ("the probationer who fails to keep his probation officer informed of his residence may be found no longer to merit probation”).
. Neither the probation officer nor Green was aware of an exact deadline, but "on each visit" the probation officer informed Green that "this money had to be paid.” J.A. at 94.
. We also note that Green was able to obtain representation without any promise of payment by this court. As we have stated in the past, the law requires "that the indigent be unable to obtain counsel before appointment will even be considered.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986), cert. denied sub nom., Hodge v. Colon, — U.S. -, 112 S.Ct. 596, 116 L.Ed.2d 620 (1991); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir.1989) (quoting Hodge).
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_majvotes
|
3
|
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.
Samuel Jennings JOHNSON, Appellant, v. Fred T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
No. 18246.
United States Court of Appeals Fifth Circuit.
June 20, 1960.
Rehearing Denied July 29, 1960.
Samuel J. Johnson, in pro. per. William C. O’Kelley, E. Ralph Ivey, Asst. U. S. Attys., Charles D. Read, Jr., U. S. Atty., Atlanta, Ga., for appellee.
Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.
PER CURIAM.
Petitioner, by a writ of habeas corpus, seeks release from the federal penitentiary in Atlanta on the ground that he has served his sentence in full. He was convicted for interstate transportation of stolen vehicles and sentenced on February 5, 1951, to six years and six days in prison. With 852 days remaining on this sentence, he was paroled. While on parole, he committed a second federal offense for which he was arrested in January 1955, convicted, sentenced, and imprisoned in a federal penitentiary in Virginia. Also, because of this offense and other conduct, the Parole Board issued a warrant for his arrest as a parole violator in January 1955 (which petitioner asserts was then served). On June 4, 1957, after serving his sentence for the second crime, he was served with the parole violator’s warrant (the Government says the one originally issued in January 1955) confining him for the 852 days remaining on the original sentence. Petitioner contends that the time served for the second offense should be credited on his first offense as it was federal custody subsequent to revocation of his parole. On the pleadings and affidavits and a full response showing the record of his confinement, releases, etc., but without a hearing, the District Judge denied the writ of habeas corpus. We affirm.
The confinement in the federal prison in Virginia was pursuant to the conviction and sentence for the federal crime committed while on parole from the original sentence. Petitioner is not entitled to credit on the original sentence for the time spent serving the sentence for the subsequent crime committed while he was on parole from the original sentence. Zerbst v. Kidwell, 1938, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. The District Court found that the parole violator’s warrant was not served until June 14, 1957 at the end of the second sentence. Even assuming that a warrant for the arrest of petitioner was served by a deputy Marshal in January 1955 as petitioner •claims, he was not at that time returned to the custody of the Attorney General under that warrant. He remained under the same confinement until he was arraigned and pleaded guilty to the second offense and commenced service of that sentence in April 1955. The service of the warrant, if made then as claimed, would not have transmuted that custody into custody under the parole violator warrant. That would have been accomplished only by the Marshal’s carrying out the command of the warrant. Jenkins v. Madigan, 7 Cir., 1954, 211 F.2d 904. This was not done until two years later in June 1957. Until then the unexpired term on the original sentence had not begun to run. 18 U.S.C.A. § 4205.
As all the facts either appeared on the face of the record or the one “disputed” fact was immaterial, the District Court could properly dispose of the petition without holding a hearing. Rea v. McDonald, 5 Cir., 1946, 153 F.2d 190.
Affirmed.
. Petitioner would have been out of prison a long time ago but for a sequel to the events recited above. He was paroled a second time and again broke his parole for which he was returned to serve the remaining time (then 727 days) on his original conviction.
. The parole violator’s warrant, directed to any federal officer authorized to serve criminal process, provides:
“NOW, THEREFORE, this is to command you to execute this warrant by taking the said Samuel J. Johnson [petitioner], wherever found in the United States, and Mm safely return to the institution designated according to law.”
. 18 U.S.O.A. § 4205:
“Retaking parole violator under warrant; time to serve undiminished
“A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
LIBERTY NATIONAL BANK AND TRUST COMPANY, Trustee of Oharco Liquidating Trust, Plaintiff-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellant.
No. 79-1891.
United States Court of Appeals, Tenth Circuit.
June 10, 1981.
Peter B. Bradford, Oklahoma City, Okl. (Judson S. Woodruff, Frank D. Hill, and Terry R. Hanna of McAfee, Taft, Mark, Bond, Rucks & Woodruff, a Professional Corp., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.
Michael L. Paup, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Jonathan S. Cohen, and Helen A. Buckley, Tax Division, Dept, of Justice, Washington, D. C., with him on the brief), for defendant-appellant.
Before McWILLIAMS and McKAY, Circuit Judges, and WEST, District Judge.
Honorable Lee R. West, United States District Judge of the Western District of Oklahoma, sitting by designation.
McWILLIAMS, Circuit Judge.
The only issue on appeal is whether the Tax Court erred in holding that a corporation, after electing to liquidate under the provisions of Internal Revenue Code (I.R.C.) § 337 (1954), is entitled to recognize a loss because it accepts less than face value as the sale price for its trade accounts and notes receivable. We conclude that the Tax Court did not err in so ruling.
The essential facts are not in dispute and were stipulated to in the Tax Court. They are fully set forth in the Tax Court’s Memorandum Opinion and will not be repeated here. See Liberty National Bank and Trust Co. v. Commissioner, 38 T.C.M. (CCH) 314 (1979).
I.R.C. § 336 states the general rule that, except as provided in I.R.C. § 453(d) relating to the disposition of installment obligations, no gain or loss shall be recognized to a corporation on the distribution of property in partial or complete liquidation. I.R.C. § 337(a) provides that no gain or loss is recognized to a corporation from the sale or exchange of “property” within a twelvemonth period beginning with the adoption of a plan of complete liquidation, if the corporation distributes all of its assets, not counting those retained to meet claims, during the twelve-month period.
The term “property” is not defined in section 337. However, section 337(b)(1) excludes certain items from the nonrecognition provision of 337(a). Section 337(b)(1) states that, for the purposes of 337(a), the term “property” does not include the following: (1) the stock in trade of the corporation held primarily for sale to customers; (2) installment obligations acquired in the sale of stock in trade, regardless of whether the sale was before or after the adoption of a plan of liquidation; and (3) installment obligations acquired in the sale of all classes of property other than stock in trade where such sale was made prior to the adoption of a plan of liquidation.
In the instant case, after adopting its liquidation plan, the taxpayer sold its accounts receivable for $50,000 less than their face or book value. These accounts were generated from the sale of the taxpayer’s stock in trade to customers in the ordinary course of its business. The accounts originated prior to taxpayer’s adoption of its plan of liquidation.
The Commissioner does not dispute the fact that the taxpayer realized a loss of $50,000 in the sale of its trade accounts and notes receivable. The Commissioner contends, however, that the loss is not recognizable under the provisions of section 337(a), which, as indicated, provides that no gain or loss shall be recognized from the sale or exchange of property by a corporation in the process of complete liquidation. The taxpayer contends that the loss realized must be recognized notwithstanding the provisions of section 337(a), since accounts receivable are a type of installment obligation, which, under section 337(b)(1)(B), are specifically excluded from the nonrecognition provision of section 337(a).
As earlier mentioned, the Tax Court held that the loss was recognizable since, under section 337(b)(1)(B), installment obligations acquired in the sale of stock in trade do not constitute “property” as that term is used in the nonrecognition provision of section 337(a). Specifically, the Tax Court found that the “sale of accounts receivable qualifies for recognition under the exception in section 337(b)(1)(B) as an installment obligation.” 38 T.C.M. at 317.
We agree with the result reached by the Tax Court. Since we are in general accord with the Tax Court’s rationale, such will not be repeated in any detail here.
In this Court the Commissioner’s main argument is that the term “installment obligation” is a term of art, and is limited to obligations received in connection with sales made on the installment plan, /. e., periodic payments spread out over a period of time, and reported in the manner permitted by section 453. The taxpayer in the instant case did not report its non-cash sales in the manner permitted by section 453, and, from this fact, the Commissioner argues that taxpayer’s trade accounts and notes receivable cannot therefore be deemed to be “installment obligations” under section 337(b)(1)(B). We do not agree.
The term “installment obligation” is not defined in the Code. Section 453 merely prescribes a method by which a taxpayer “who regularly sells or otherwise disposes of property on the installment plan” may report such income. The wording of section 453 suggests that there may be income from installment obligations which will not be reported in the manner permitted by that section. Hence, the fact that a taxpayer elects not to use the method of reporting permitted by section 453 does not necessarily mean that obligations in the form of trade accounts and notes receivable are not “installment obligations” as that term is used in section 337(b)(1)(B).
Our disposition of the present matter finds support in Coast Coil Co. v. Commissioner, 50 T.C. 528 (1968), aff’d, 422 F.2d 402 (9th Cir. 1970), and Family Record Plan, Inc. v. Commissioner, 36 T.C. 305 (1961), aff’d on other grounds, 309 F.2d 208 (9th Cir. 1962), cert. denied, 373 U.S. 910, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963).
In Coast Coil, the Tax Court rejected the argument made here by the Commissioner that “installment obligations,” as that term is used in section 337(b)(1)(B), means only those obligations resulting from the sale of property which the seller has elected to report under the installment method provided in section 453. In so holding, the Tax Court- was of the view that the intent of section 337(b)(1)(B) “is much broader than the ground covered by section 453 . .. and is designed to embrace accounts receivable arising under the sale of stock in trade by an accrual basis corporation as well.” The Tax Court noted that,- as is true in'the instant case, the taxpayer had previously reported and paid income taxes on its sales and then suffered a loss when it sold those accounts. 50 T.C. at 533-34. As indicated, on appeal Coast Coil was affirmed by the Ninth Circuit in a 2-1 decision.
In Family Record, there was a gain, not a loss, realized in the sale of accounts receivable, and in that situation the Commissioner’s position was that the gain was taxable, and did not come within the nonrecognition provision of section 337(a). In other words, it was the taxpayer in Family Record who advanced the argument made here by the Commissioner that failure to report under section 453 precludes a finding that the obligations were “installment obligations” under section 337(b)(1)(B). In Family Record, the Tax Court rejected the taxpayer’s argument and upheld the Commissioner’s position that gain realized on the sale of the accounts receivable was taxable.
On appeal in Family Record, the Ninth Circuit affirmed, using an anticipatory assignment of income theory. In thus holding, however, the Ninth Circuit did not disapprove of the reasoning of the Tax Court. And, of course, in Coast Coil, the Ninth Circuit approved of the Tax Court’s holding that accounts receivable are included within the broader term “installment obligations.”
Judgment affirmed.
. There were two issues in the Tax Court. The issue of whether the taxpayer may deduct a loss as a result of a settlement of a lawsuit involving a sale of trade accounts and notes receivable is not before this Court on appeal. The Tax Court also decided that issue in favor of the taxpayer.
We note at the outset that section 337 was passed in response to two Supreme Court decisions, Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945), and United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950), cases in which the Court appeared to adopt conflicting rules. There is a good exploration of the history of section 337, including a discussion of the holdings in these two cases, in Central Tablet Mfg. Co. v. United States, 417 U.S. 673, 677-83, 94 S.Ct. 2516, 2519-22, 41 L.Ed.2d 398 (1974).
. I.R.C. § 337 provides in pertinent part:
§ 337. Gain or loss on sales or exchanges in connection with certain liquidations
(a) General rule. — If, within the 12-month period beginning on the date on which a corporation adopts a plan of complete liquidation, 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.
(b) Property defined.—
(1) In general. — For purposes of subsection (a), the term “property” does not include—
(A) stock in trade of the corporation, or other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year, and property held by the corporation primarily for sale to customers in the ordinary course of its trade or business,
(B) installment obligations acquired in respect of the sale or exchange (without regard to whether such sale or exchange occurred before, on, or after the date of the adoption of the plan referred to in subsection (a)) of stock in trade or other property described in subparagraph (A) of this paragraph...
(C) installment obligations acquired in respect of property (other than property described in subparagraph (A)) sold or exchanged before the date of the adoption of such plan of liquidation.
. The taxpayer, Liberty Bank and Trust Co., a national banking association with its principal place of business in Oklahoma City, Oklahoma, is the liquidating trustee pursuant to a 1974 liquidating trust agreement between Liberty and Oharco Liquidating Co. (Oharco). An Oklahoma company headquartered in Oklahoma City, Oharco is the successor to Oklahoma Hardware Co., v/hich was incorporated in 1900 and was in the wholesale hardware business.
. Section 453 appears not to be definitional in nature. Rather, it merely describes one permitted method of accounting or reporting income. While some sections of the I.R.C. refer to section 453, the statute which is at issue, i. e., section 337, does not contain such a reference. This appears to be an indication that the term “installment obligations” in section 337(b)(1)(B) should not be limited by the terms of section 453.
. The Commissioner recognizes that the opinion in Coast Coil is contrary to the result for which he argues. He cites the dissenting opinion in Coast Coil, apparently urging this Court to adopt the position of the dissent. We decline to do so.
. The Commissioner recognizes that his position here is exactly the opposite of his position in Family Record. He states, however, that this policy change was made subsequent to Family Record, decided by the Tax Court in 1961, and was his position in Coast Coil, decided in 1970.
. A similar argument was made and rejected in Commissioner v. Kuckenberg, 309 F.2d 202 (9th Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1296, 10 L.Ed.2d 411 (1963), in which the Ninth Circuit found taxable a gain on a sale of contracts by a liquidating taxpayer which reported on the cash accounting basis.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
ALEXANDER v. LOUISIANA
No. 70-5026.
Argued December 6-7, 1971
Decided April 3, 1972
White, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, Marshall, and BlackmuN, JJ., joined, and in Part I of which Douglas, J., joined. Douglas, J., filed a concurring opinion, post, p. 634. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.
Charles Stephen Ralston argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, Margrett Ford, and Charles Finley.
Bertrand DeBlanc argued the cause for respondent. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, Harry Howard, Assistant Attorney General, and Charles R. Sonnier.
Birch Bayh filed a brief for the National Federation of Business and Professional Women's Clubs, Inc., as amicus curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
After a jury trial in the District Court for the Fifteenth Judicial District of Lafayette Parish, Louisiana, petitioner, a Negro, was convicted of rape and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court, and this Court granted certiorari. Prior to trial, petitioner had moved to quash the indictment because (1) Negro citizens were included on the grand jury list and venire in only token numbers, and (2) female citizens were systematically excluded from the grand jury list, venire, and impaneled grand jury.. Petitioner therefore argued that the indictment against him was invalid because it was returned by a grand jury impaneled from a venire made up contrary to the requirements of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Petitioner’s motions were denied.
According to 1960 U. S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service; of this total, 9,473 persons (21.06%) were Negro. At the hearing on petitioner’s motions to quash the indictment, the evidence revealed that the Lafayette Parish jury commission consisted of five members, all of whom were white, who had been appointed by the court. The commission compiled a list of names from various sources (telephone directory, city directory, voter registration rolls, lists prepared by the school board, and by the jury commissioners themselves) and sent questionnaires to the persons on this list to determine those qualified for grand jury service. The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.76,%') were from Negroes, and the jury commissioners attached to each questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, ostensibly on the ground that these persons were not qualified for grand jury service or were exempted under state law. The remaining 2,000 sets of papers were placed on a table, and the papers of 400 persons were selected, purportedly at random, and placed in a box from which the grand jury panels of 20 for Lafayette Parish were drawn. Twenty-seven of the persons thus selected were Negro (6.75%). On petitioner’s grand jury venire, one of the 20 persons drawn was Negro (5%), but none of the 12 persons on the grand jury that indicted him, drawn from this 20, was Negro.
I
For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U. S. 303 (1880); Neal v. Delaware, 103 U. S. 370 (1881). Although a defendant has no right to demand that members of his race be included on the grand jury that indicts him, Virginia v. Rives, 100 U. S. 313 (1880), he is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice. Ex parte Virginia, 100 U. S. 339 (1880); Gibson v. Mississippi, 162 U. S. 565 (1896). Cf. Hernandez v. Texas, 347 U. S. 475 (1954). It is only the application of these settled principles that is at issue here.
This is not a case where it is claimed that there have been no Negroes called for service within the last 30 years, Patton v. Mississippi, 332 U. S. 463, 464 (1947); only one Negro chosen within the last 40 years, Pierre v. Louisiana, 306 U. S. 354, 359 (1939); or no Negroes selected “within the memory of witnesses who had lived [in the area] all their lives,” Norris v. Alabama, 294 U. S. 587, 591 (1935). Rather, petitioner argues that, in his case, there has been a consistent process of progressive and disproportionate reduction of the number of Negroes eligible to serve on the grand jury at each stage of the selection process until ultimately an all-white grand jury was selected to indict him.
In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro — a further reduction by one-half. The percentage dropped to 5% on petitioner’s grand jury venire and to zero on the grand jury that actually indicted him. Against this background, petitioner argues that the substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population raises a strong inference that racial discrimination and not chance has produced this result because elementary principles of probability make it extremely unlikely that a random selection process would, at each stage, have so consistently reduced the number of Negroes.
This Court has never announced mathematical standards for the demonstration of “systematic” exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situation here is thus similar to Avery v. Georgia, 345 U. S. 559 (1953), where the Court sustained a challenge to an array of petit jurors in which the names of prospective jurors had been selected from segregated tax lists. Juror cards were prepared from these lists, yellow cards being used for Negro citizens and white cards for whites. Cards were drawn by a judge, and there was no evidence of specific discrimination. The Court held that such evidence was unnecessary, however, given the fact that no Negroes had appeared on the final jury: “Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate.” 345 U. S., at 562. Again, in Whitus v. Georgia, 385 U. S. 545 (1967), the Court reversed the conviction of a defendant who had been tried before an all-white petit jury. Jurors had been selected from a one-volume tax digest divided into separate sections of Negroes and whites; black taxpayers also had a “(c)” after their names as required by Georgia law at the time. The jury commissioners testified that they were not aware of the “(c)” appearing after the names of the Negro taxpayers; that they had never included or excluded anyone because of race; that they had placed on the jury list only those persons whom they knew personally; and that the jury list they compiled had had no designation of race on it. The county from which jury selection was made was 42%' Negro, and 27% of the county’s taxpayers were Negro. Of the 33 persons drawn for tjie grand jury panel, three (9%) were Negro, while on the 19-member grand jury only one was Negro; on the 90-man venire from which the petit jury was selected, there were seven Negroes (8%), but no Negroes appeared on the actual jury that tried petitioner. The Court held that this combination of factors constituted a prima facie case of discrimination, and a similar conclusion is mandated in the present case.
Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U. S. 346, 361 (1970); Eubanks v. Louisiana, 356 U. S. 584, 587 (1958). The State has not carried this burden in this case; it has not adequately explained the elimination of Negroes during the process of selecting the grand jury that indicted petitioner. As in Whitus v. Georgia, supra, the clerk of the court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. App. 34. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. Turner v. Fouche, supra, at 361; Jones v. Georgia, 389 U. S. 24, 25 (1967); Sims v. Georgia, 389 U. S. 404, 407 (1967). “The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.” Hernandez v. Texas, 347 U. S., at 482. See also Norris v. Alabama, 294 U. S., at 598. The clerk’s testimony that the mailing list for questionnaires was compiled from nonracial sources is not, in itself, adequate to meet the State’s burden of proof, for the opportunity to discriminate was presented at later stages in the process. The commissioners, in any event, had a duty “not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds.” Hill v. Texas, 316 U. S. 400, 404 (1942). See also Smith v. Texas, 311 U. S. 128, 130 (1940). Cf. Carter v. Jury Commission, 396 U. S. 320, 330 (1970). We conclude, therefore, that “the opportunity for discrimination was present and [that it cannot be said] on this record that it was not resorted to by the commissioners.” Whitus v. Georgia, supra, at 552.
II
Petitioner also challenges the Louisiana statutory-exemption of women who do not volunteer for grand jury service. Article 402, La. Code Crim. Proc. This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. Also, those groups arbitrarily excluded from grand or petit jury service are themselves afforded an appropriate remedy. Cf. Carter v. Jury Commission, supra. But there is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service. Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment’s provision for presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U. S. 145 (1968), the Court held that because trial by jury in criminal cases under the Sixth Amendment is “fundamental to the American scheme of justice,” id., at 149, such a right was guaranteed to defendants in state courts by the Fourteenth Amendment, but the Court has never held that federal concepts of a “grand jury,” binding on the federal courts under the Fifth Amendment, are obligatory for the States. Hurtado v. California, 110 U. S. 516, 538 (1884).
Against this background and because petitioner’s conviction has been set aside on other grounds, we follow our usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us. Burton v. United States, 196 U. S. 283, 295 (1905). See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). The State may or may not recharge petitioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again. See Ballard v. United States, 329 U. S. 187, 196 (1946).
Reversed.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
255 La. 941, 233 So. 2d 891 (1970). Petitioner was indicted for aggravated rape, and a 12-member jury unanimously returned a verdict of “Guilty without Capital Punishment.”
401 U. S. 936 (1971).
Petitioner does not here challenge the composition of the petit jury that convicted him. The principles that apply to the systematic exclusion of potential jurors on the ground of race are essentially the same for grand juries and for petit juries, however. Pierre v. Louisiana, 306 U. S. 354, 358 (1939). See generally Neal v. Delaware, 103 U. S. 370 (1881).
The general qualifications for’jurors set by Louisiana law are that a person must be a citizen of the United States and of Louisiana who has resided in the parish for at least a year prior to jury service, be at least 21 years old,, be able to read, write, and speak the English language, “[n]ot be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity,” and “ [n] ot be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.” La. Code Crim. Proc., Art. 401 (1967).
Testimony at the hearing on the motion to quash the indictment also revealed that there were 40,896 registered voters in the parish. Of this total, 17,803 were white males, and 16,483 were white females; 3,573 were Negro males, and 3,037 were Negro females. App. 38.
One hundred and eighty-nine questionnaires had no racial designation. App. 15.
There are some inconsistencies in the record as to the total number of Negroes in this group. The State introduced a certification by the clerk of the court stating that there were 25 Negroes and four persons with no race shown. App. 15. A count of the actual list of jurors, however, shows 27 Negroes and five persons with no race shown. App. 16-24.
Section 4 of the 1875 Civil Rights Act, 18 Stat. 336, now codified as 18 U. S. C. § 243, affirms and reinforces this constitutional right: “No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not'more than $5,000.”
We take note, as we did in Whitus v. Georgia, 385 U. S. 545, 552 n. 2 (1967), of petitioner’s demonstration that under one statistical technique of calculating probability, the chances that 27 Negroes would have been selected at random for the 400-member final jury list, when 1,015 out of the 7,374 questionnaires returned were from Negroes, are one in 20,000. Brief for Petitioner 18 n. 18.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_subevid
|
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 civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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".
Jose E. CARRILLO MARIN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 84-1443.
United States Court of Appeals, First Circuit.
Submitted Dec. 7, 1984.
Decided March 28, 1985.
Ramon Morales and Juan A. Hernandez Rivera, Hato Rey, P.R., on brief, for plaintiff, appellant.
Julie Simpson, Office of the Gen. Counsel, Social Sec. Div., Baltimore, Md., Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., Donald A. Gonya, Asst. Gen. Counsel, Randolph W. Gaines, Deputy Asst. Gen. Counsel for Litigation, and A. George Lowe, Chief, Disability Litigation Branch, Baltimore, Md., on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.
PER CURIAM.
Appellant Jose E. Carrillo Marin brought this action in the United States District Court for the District of Puerto Rico seeking judicial review of the final decision of the Secretary of Health and Human Services denying his claim of entitlement to disability benefits. The district court affirmed the decision of the Secretary, finding that there was substantial evidence in the record to support the Secretary’s determination that appellant was not under a disability as defined by the Social Security Act. We reverse and remand for further proceedings.
Appellant filed a claim for benefits in September 1982 claiming an inability to work since August of 1980 when he quit the job he had held for ten years as a refrigeration and air conditioning technician due to an alleged exacerbation of his mental illness. Although there is some conflict in the record on the point, it appears that his insured status lapsed in September 1981. Compare, Tr. 15, 47 and 110 with Tr. 11 and 14. The question before the AU was, therefore, whether or not claimant was disabled between 1980 and 1981 within the meaning of the Social Security Act.
The medical evidence submitted by claimant consisted of (1) a discharge summary from his first psychiatric hospitalization in 1970 at which time he was diagnosed as having a “schizophrenic reaction, undifferentiated type with paranoid features” (Tr. 123); (2) a discharge summary from his second psychiatric hospitalization from June through August of 1982 at which time he was given the diagnosis of “schizophrenic disorder, paranoid type” and was described as oriented in all spheres and cooperative although suffering from ideas of reference and persecution with loosened and accelerated associations, impaired insight and judgment, superficial memory and blunted affect (Tr. 120); (3) a report from Dr. Julio Frank, who was apparently involved in Mr. Carrillo’s treatment during his 1982 hospitalization, in which he described claimant as disorganized, with episodes of agitation, hallucinations, reference ideas and very superficial contact with reality and a diagnosis of “undifferentiated type of schizophrenia” (Tr. 117); and (4) two reports from claimant’s treating psychiatrist, Dr. Quintero, dated September 2 and 20, 1982, who certified that he had been caring for claimant since 1969 and diagnosed him as “schizophrenic, paranoid type, moderately severe, chronic” with a poor prognosis. He found claimant to be suffering from paranoid delusions with accompanying impaired judgment, some depression related to exaggerated religious preoccupation, greatly diminished attention and concentration ^nd very poor ability to interact with strangers. Additionally Dr. Quintero stated that from 1980 to 1982 claimant’s periods of serious psychiatric decompensation had been more prolonged resulting in his second hospitalization. (Tr. 125 and 127).
Both claimant and his treating psychiatrist testified at the hearing in January 1983 before the AU. Claimant stated that he stopped working in 1980 because he “felt ill ... hear[d] voices and ... was feeling nervous.” (Tr. 27). He claimed he could not work because his mind “goes” and he starts to think about one thought constantly. He occupies himself by staying at home and thinking about his wife. (Tr. 30 and 35). Although he does wash, dress and feed himself, he testified that he does no housework, does not watch TV, listen to the radio nor read newspapers and does not visit with others (Tr. 31-32).
Dr. Quintero testified (Tr. 35-49) that while claimant’s symptoms vary in intensity he is always paranoic and that hospitalization is necessary when the medications do not work and there are threats of physical aggression. In his opinion there is a constant residual of symptomatology despite remissions and exacerbations. He also testified that in his opinion claimant’s condition has gotten worse over his ten-year or so course of treatment, with the periods of disorganization becoming longer and more frequent. In regard to claimant’s work history Dr. Quintero testified that Mr. Carrillo had worked only erratically and inefficiently between 1970 and 1982, with a pattern of developing paranoid suspicions about his co-workers within a few weeks of starting a new job. According to Dr. Quintero, “... as soon as there are more demands he starts disorganizing himself and he starts having delusions about people or work.” (Tr. 22-23). When asked by the AU whether he believed claimant could not work, he replied, “No, no. If that has taken such a long time, what was tried and was tried initially was to try to reintegrate him in the functioning of work. What I believe is that he has not be (sic) able to establish a relationship in a job of security and permanency. Because he begins to disorganize himself easily. I believe that has been progressing. The strength that he has to tolerate some incidents, I believe is less...” (T. 48-49).
The AU reviewed this evidence and concluded that while claimant suffered from a “moderate mental condition” he did not have a severe impairment which significantly limited his ability to work. Tracking the language for a “listed” functional psychotic disorder, see 20 C.F.R. Appendix 1 § 12.03, the AU noted in his opinion accompanying his findings that there was no evidence of a marked restriction of activities, constriction of interests, deterioration in personal habits or seriously impaired ability to relate to other people. Rather, he found claimant to be friendly, cooperative, oriented, coherent and alert. The district court affirmed in a brief order citing Dr. Quintero’s testimony quoted above concerning claimant’s inability to establish himself in a job with any permanence. On appeal claimant contends that (1) the AU erred in disregarding uncontroverted medical evidence and in basing his decision on his own observations and (2) that if the Secretary was in doubt she should have ordered a consultative examination pursuant to 20 C.F.R. § 404.1517(a).
Although the Act does not define “severe impairment,” the regulations indicate that it comprehends a disorder that “significantly limit[s] ... physical or mental abilities to do basic work activities.” 20 C.F.R. § 404.1520(c). See also 20 C.F.R. § 404.1521(a). Basic work activities are the abilities and aptitude necessary to do most jobs. 20 C.F.R. § 404.1521(b). For one such as Mr. Carrillo, who suffers a mental disorder, the regulations suggest as prerequisite to working the ability to understand, carry out and remember simple instructions, to use sound judgment, to respond appropriately to supervision, coworkers and usual work situations and to deal with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(2)-(6).
Dr. Quintero’s testimony suggests that claimant indeed was significantly limited in these areas although the record is practically devoid of any direct evidence for the specific relevant time period of 1980-1981. Dr. Quintero testified that claimant is chronically paranoic and prone to physical aggression, and that this condition has worsened in general since 1969 when treatment began and specifically over the two years prior to the hearing. He further indicated that claimant’s attempts at employment were characterized by paranoid reactions to his co-workers. While this evidence lacks precision and focus in light of the narrow relevant time period, it nevertheless was the only medical evidence before the AU on this point. And, as we have said before, see Suarez v. Secretary of Health and Human Services, 740 F.2d 1 (1st Cir.1984), the AU is simply not at liberty to substitute his own impression of an individual’s health for uncontroverted medical opinion. Nor do we think that Dr. Quintero’s ambiguous statement concerning claimant’s potential employability, relied on by the District Court, constitutes substantial evidence upon which to conclude that Mr. Carrillo had the capacity in 1980 or 1981 to continue in his field of employment, let alone to support the conclusion drawn by the AU that he was not severely impaired. See Currier v. Secretary of Health, Education & Welfare, 612 F.2d 594, 597 (1st Cir.1980). See generally, Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion). Given claimant’s unchallenged diagnosis of chronic schizophrenia coupled with the uncontradicted testimony concerning his degeneration in recent years and the evidence of gross interference with his interpersonal relations, the AU’s finding of no severe impairment is not supported by substantial evidence. We thus hold that the Secretary erred in reaching this conclusion and remand the case for a continuation of the disability evaluation as set out in 20 C.F.R. § 404.1520. See Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982). On remand the Secretary may admit as much additional evidence as is necessary to arrive at a reasonable determination of the extent of claimant’s impairment. As claimant suggests in his brief, if the Secretary is doubtful as to the severity of his disorder the appropriate course is to request a consultative evaluation, see 20 C.F.R. § 404.1517, not to rely on the lay impressions of the ALJ. While claimant of course bears the burden of proof on the issue of disability, Small v. Califano, 565 F.2d 797, 800 (1st Cir.1977), the Secretary nonetheless retains a certain obligation to develop an adequate record from which a reasonable conclusion can be drawn. See Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975). The failure to do so in this instance constitutes the requisite “good cause” for remand pursuant to 42 U.S.C. § 405(g).
The judgment of the district court is reversed and the case is remanded with instructions to remand to the Secretary for further proceedings.
. Although claimant does not raise the issue, we note that the language used by the ALJ in the opinion accompanying his findings suggests that he may have erroneously applied the "Listed” standard for functional psychotic disorder rather than the more commodious severity test. Compare 20 C.F.R. Appendix I § 12.03 with 20 C.F.R. § 404.1521. See Arroyo v. Secretary of Health and Human Services, 558 F.Supp. 482 (D.P.R.1983).
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_1-3-1
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Claude HIGH, Defendant-Appellant.
No. 90-1734.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 3, 1990.
Decided Dec. 27, 1990.
William Y. Gallo, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Rick Halprin and Susan Shatz, Chicago, Ill., for defendant-appellant.
Before WOOD, Jr., CUDAHY and MANION, Circuit Judges.
MANION, Circuit Judge.
Claude High appeals from his conviction for possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1). Specifically, High challenges, the order of the district court denying his motion to suppress the introduction of the cocaine found in his baggage as evidence against him on the ground that the police officers obtained it through a search and seizure violative of the fourth amendment. We affirm.
I.
On August 23, 1988, Claude High and a companion, Kevin Caldwell, arrived at Chicago’s Union Station on an Amtrak train from Los Angeles, California, a source city for narcotics. Detectives George Mays and George Graham and Sergeant Jerry Robinson, drug enforcement officers, monitored the passengers as they detrained. Among the first passengers to detrain were High and Caldwell who alighted quickly. High was carrying a light green, Samsonite suitcase and clutching a brown carry-on bag tightly under his arm. Detectives Mays and Graham testified at the suppression hearing that High made eye contact with them, then looked back at Caldwell, who was a pace behind him, and the two began to walk a little faster. Graham also noted that High eyed his waist and surmised that High was looking for a weapon or beeper which would have indicated that he was a police officer. The agents followed High and Caldwell, lost sight of them, but then caught up with them near the baggage and waiting area. After again making eye contact with the agents, High tapped Caldwell on the shoulder, and the two then headed for an exit.
Mays and Graham approached High and Caldwell and, walking alongside, displayed their badges and identification and asked if they could speak to them. The officers were wearing plainclothes. High and Caldwell stopped walking and agreed to speak to the agents. Sergeant Robinson in the meantime hung back several paces. Graham asked High and Caldwell if he could see some identification, and the two men produced valid Michigan driver’s licenses. Graham returned the licenses and then asked to see their train tickets. High retrieved both his and Caldwell’s ticket from the brown carry-on bag, which he continued to clutch tightly. After examining them, Graham returned the tickets. The tickets were one-way and purchased with cash one day before departure. Graham then informed High and Caldwell that he was conducting a narcotics investigation, that they were not under arrest, and that they were free to leave at any time. High then asked if there was a problem. High became very nervous and began to peer around the station, looking toward the exit. In response, Graham reiterated that he was conducting a narcotics investigation and asked if High or Caldwell had any narcotics on them or in their bags. Both replied, “No.” Graham then asked if he could search their baggage and told them that they could refuse him permission to search and that he needed their permission. High and Caldwell consented to the search. Mays searched Caldwell’s bag, but found nothing. As Graham searched High’s brown carry-on bag, he felt a kilogram-sized package, looked up at Robinson who was standing a few. feet behind High and nodded to him. High then bolted toward the exit, and Mays and Robinson gave chase. High got away. High was later arrested at his home in Michigan.
High was charged by way of indictment with one count of knowingly and intentionally possessing with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). High filed a motion to suppress the cocaine seized by the drug enforcement officers, and the district court denied the motion. The court stated that the officers did not need to have an articulable suspicion to approach High and Caldwell, and alternatively found that if the officers needed an articulable suspicion, that they certainly had it. The court found that the officers’ actions were not intimidating, and that they did not block High’s path or movement.
A jury found High guilty, and the district court sentenced him to ninety-seven months of imprisonment. High appeals, challenging the denial of the motion to suppress.
II.
The district court, after hearing the testimony of Detectives Mays and Graham, found that High felt free to leave and that the encounter was consensual. High did not testify.
We must uphold the district court’s denial of the motion to suppress unless the denial was clearly erroneous. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990). “ ‘Our inquiry is factually based and requires that we give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses.’ ” Id. (quoting United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990)).
As this court discussed in Johnson, the Supreme Court has developed three categories of police-citizen encounters in the context of the fourth amendment: (1) an arrest, requiring the police to have probable cause; (2) an investigatory stop, requiring the police to have specific and artic-ulable facts to give rise to a reasonable suspicion; and (3) a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all. See id. This court’s threshold inquiry must be to determine whether there was a seizure, that is, whether a reasonable person in High’s situation would have felt free to leave. If a reasonable person would have felt free to leave, the encounter was consensual, and the fourth amendment is not implicated. High does not address this third category of police-citizen encounters, but simply jumps to a discussion of whether the officers had a reasonable suspicion to stop him. High contends that when a police officer approaches a citizen and asks to see identification and his train tickets without first informing him that he need not comply, no reasonable person in this position would feel free to disregard the officer or to leave. This court has previously rejected such an argument, holding that “the practice of DEA agents in accosting and attempting to question suspected narcotics violators was not coercive per se and the accosted individual would not be deemed to have been seized within the meaning of the Fourth Amendment unless a reasonable person in his position would have believed he was not free to ignore the agents and continue on his way.” United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (citing United States v. Black, 675 F.2d 129, 134-35 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983)). “The police ‘do not violate the fourth amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ ” Johnson, 910 F.2d at 1508 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality opinion)).
Although we reject the argument that such encounters are coercive per se, our concern in these drug surveillance cases is this: in deciding whether to approach someone, the police rely on a subtle combination of characteristics and actions, many of which could be attributed to any traveler who detrains or deplanes in an unfamiliar terminal. Often, these observations alone are not sufficiently specific and articulable to establish reasonable suspicion to support an investigatory stop. Although we think that this can be attributed to a well-trained eye and good police work, it cannot override the fourth amendment just because it gets good results. Consent then becomes crucial in such situations. We suggest that the better procedure might be for the officers to preface their questions with a statement that the encounter is consensual and that the citizen need not answer and is free to go. We do not intend, however, that this suggestion be taken as a requirement that the officers recite any prefatory warning in a Miranda-like fashion. We merely want to emphasize that the police cannot act to intimidate the person or inhibit his or her freedom to leave and not to answer questions.
In this case, however, not only was the fourth amendment not violated, but it was not implicated because High voluntarily consented to the initial encounter and subsequent questioning. The record supports the district court’s finding that High felt free to leave. There is no indication that High’s consent was induced by coercive police conduct. Detectives Mays and Graham approached High and Caldwell from the side. As the district court found, the officers “displayed] [their] badges in a very non-intimidating way, with open hands, not unlike the Allstate Insurance commercials, and in a very low-keyed manner, ask[ed] the defendant, ... ‘May we speak with you?’ ” See Notorianni, 729 F.2d at 522 (that officers identified themselves as law-enforcement officers is not coercive per se, nor is officer’s statement to defendant that he is conducting narcotics investigation). High and Caldwell came to a stop first and agreed to speak with the officers. Nothing the officers did restrained High’s liberty. Although the officers were physically larger than High, the record reveals that they did not use their size to intimidate High or to block his path. The district court found nothing coercive or intimidating in the officers’ behavior. The officers spoke in conversational tones and asked for limited information. Their questioning was not repetitive, intense or threatening. Nothing about the officers’ conduct indicates that High’s consent was other than voluntarily given.
High was not alone, but had Caldwell’s company when the officers approached him. Consequently, even if High was cognizant of Robinson’s presence, making it a three-on-two encounter, we do not think that this was so intimidating that High would not have felt free to leave since the agents did not surround High and Caldwell or otherwise position themselves to impede High’s movement.
Nor were the physical surroundings isolating or restraining. The encounter took place in a busy area of Union Station in the middle of one to two hundred travelers. The district court’s finding that a reasonable person in High’s position would have felt unrestrained and free to disregard the officers was not clearly erroneous. Because in a consensual police-citizen encounter, “the degree of suspicion that is required is zero,” United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988), we need not address the question of whether the officers had reasonable suspicion to approach High and Caldwell.
III.
Accordingly, we affirm the order of the district court denying High’s motion to suppress and the judgment of conviction.
Affirmed.
. The transcript of the district court’s findings are as follows:
[T]he motion to suppress the stop, as well as the fruits thereof, and the search will be denied. I don't believe that a police officer needs to have an articulable suspicion in order to stop an individual for purposes of questioning. A police officer may stop a citizen for a number of reasons, one to ask assistance, as well as to interview or question the person stopped.
In this situation, though, if the law was such that there was a requirement that there be articulable suspicion, I believe that Detective Graham certainly had it, as he testified here.
The eye contact between the officers and Mr. High at least raised the suspicion of the officers. That, in and of itself, probably would not be enough.
The manner in which the defendant was clutching the bag that ultimately turned out to be the narcotics-carrying vessel also was a factor to be considered by the officer.
The scanning by the defendant of the officer's waist area to see if there was a weapon or beeper, at least as the officer observed it, in other words, the defendant basically checking out the individual he made eye contact with, Officer Graham, to see if the officer was a policeman, or at least according to what the officer believed, I think also raised a sufficient suspicion, certainly for the purpose of allowing the officer, Officer Graham, to walk alongside, display his badge in a very noninti-midating way, with open hands, not unlike the Allstate Insurance commercials, and in a very low-keyed manner, asking the defendant, “May I speak with you?”, or, "May we speak with you?” It seems to me that at that point Mr. High was not intimidated, despite the fact that Officer Graham is six, three, 220 pounds, and Officer Mays, according to Officer Graham's testimony is about the same height, maybe a little lighter. It seems to me that the physical size should not be considered in connection with intimidation or as an intimidating weapon if it's not used to block the view, passage or means of movement of the defendant. It wasn't here. The officers, when they asked the initial question, were walking alongside, a few feet away, not in front, did not stop or stand in front and block the passage of the defendant or his companion. According to Officer Mays, the defendant started looking nervous, or appeared to be nervous, when the defendant was told that the officers were conducting a narcotics investigation. The fact that the defendant felt free to leave is amply displayed by the fact that the defendant did, in fact, leave when the search was being conducted of the narcotics-carrying bag.
Taking into account all of these factors, I do not believe that any constitutional rights were violated, or any of the defendant’s constitutional rights were violated, or that the police acted in any way improper in this initial stop, questioning, and obtaining of consent, so, consequently, as I indicated earlier, the motion to suppress will be denied.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_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.
Carol TAYLOR, Petitioner-Appellant, v. Phyllis CURRY, Respondent-Appellee.
Nos. 1024, 1187, Dockets 82-2193, 81-2098.
United States Court of Appeals, Second Circuit.
Argued March 15, 1983.
Decided June 7, 1983.
Darrell K. Fennell, The Legal Aid Society, Federal Defender Services Unit, New York City, for petitioner-appellant.
Susan L. Yarbrough, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., State of N.Y., Gerald J. Ryan, Asst. Atty. Gen., State of N.Y., New York City, of counsel), for respondent-appellee.
Before MANSFIELD, MESKILL and NEWMAN, Circuit Judges.
MESKILL, Circuit Judge:
Carol Taylor appeals from judgments of Judge Duffy dated January 9, 1981 and Chief Judge Motley dated March 19, 1982, both Judges of the United States District Court for the Southern District of New York, dismissing Taylor’s petitions for habe-as corpus relief. Petitioner claims that the state trial court violated her Sixth and Fourteenth Amendment right to present a full defense by ordering, on grounds of attorney-client privilege, that a draft separation agreement be excluded from evidence at her second criminal trial. Although we find error in this evidentiary ruling, petitioner was not deprived thereby of a fair trial. Accordingly, we affirm the judgments of the district court dismissing the petitions for habeas corpus relief.
BACKGROUND
On the evening of March 13, 1976, Herbert Taylor was murdered in his Far Rocka-way, New York, bungalow. After several months of investigation, Taylor’s wife Carol was arrested by local authorities and was charged with second degree murder, criminal solicitation and conspiracy to murder her husband. At trial, the prosecution suggested three possible motives for the murder. The first motive emerged from a classic “lover’s triangle,” focusing on the existence and intensity of a lesbian relationship between petitioner and her lover, one Elizabeth Taylor (not a relative of Herbert and not the actress). According to the state, Carol Taylor arranged for the murder of her husband to liberate herself from an unhappy marriage and to pursue more fully a lesbian relationship with Elizabeth.
The second motive advanced by the state was petitioner’s fear that her husband would use the homosexual relationship as leverage to gain custody of the couple’s two children. Testimony at trial revealed that the decedent apparently was aware of his wife’s lesbian affair and that Carol was visibly upset at his discovery. Finally, the state posited a financial motive — Carol was the sole beneficiary of life insurance policies totalling $134,700.
The state offered the testimony of petitioner’s brother, Robert Rozell, who stated that approximately one week before the killing Carol offered him $10,000 to arrange for Herbert’s demise. Rozell also testified that two or three days before the murder he overheard Carol ask their sister Barbara to accompany her to the Far Rockaway bungalow to determine if Herbert had been killed. Finally, Rozell testified that seven months after the murder, in October 1976, Carol stated that “[w]ell, if everybody keeps their mouth shut there will be $10,000 in it for everybody.” Trial Tr. at 1827. Barbara Rozell, petitioner’s sister, substantially corroborated her brother’s testimony. Barbara also related that two or three days before Herbert’s death, she overheard a phone conversation between Carol and Elizabeth Taylor in which they discussed the murder scheme.
Additional damaging testimony was elicited from Anthony and Theresa Pasquarelli, friends of Carol Taylor. The Pasquarellis each testified that on or about March 1, 1976, approximately two weeks prior to Herbert’s death, Carol visited their New York home. They stated that Carol was distraught when she arrived and, during a conversation in their kitchen, she related that Herbert was aware of the lesbian relationship and that she was fearful he would use this homosexual affair as leverage to gain custody of their children. The Pas-quarellis testified that after voicing her concerns, Carol offered Anthony Pasquarel-li $10,000 to arrange for the murder of her husband. According to the Pasquarellis, Carol proposed to make partial payment before Herbert’s death and to tender the balance after she had received the insurance proceeds. Wendy Condoleo, a friend of Theresa Pasquarelli, who apparently was babysitting for the Pasquarelli children that night and was present in the kitchen during this conversation, substantially corroborated the Pasquarellis’ testimony.
Petitioner’s first trial ended in a mistrial after the court learned that the prosecution had solicited an informant, Barbara Rozell, to obtain uncounseled incriminating evidence from her sister after Carol had been arrested. The court found Barbara Rozell to be an agent of the state and declared a mistrial after ruling that petitioner’s Fifth Amendment rights had been violated by the state’s surreptitious conduct.
At the second trial petitioner defended principally on the theory that the Pasquar-ellis, the Rozells and Wendy Condoleo were lying in an effort to protect Anthony Pas-quarelli and Robert Rozell from complicity in the murder. The jury was not persuaded — petitioner was convicted on each of three counts and sentenced to concurrent prison terms of twenty five years to life on the murder charge, eight and one-third to fifteen years for conspiracy, and two and one-third to seven years for the criminal solicitation charge. The conviction was unanimously affirmed by the Appellate Division on April 28, 1980, People v. Taylor, 74 A.D.2d 177, 427 N.Y.S.2d 439 (2d Dep’t 1980). Leave to appeal to the New York Court of Appeals was denied on June 20, 1980. People v. Taylor, 50 N.Y.2d 1005, 431 N.Y.S.2d 1044, 409 N.E.2d 1013 (1980). These habeas petitions followed.
DISCUSSION
At the outset, we note that petitioner has satisfied the exhaustion requirements of the federal habeas statute, 28 U.S.C. § 2254 (1976), because she has limited her appeal to an issue that had been raised and rejected by the appropriate state courts. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 1203-04, 71 L.Ed.2d 379 (1982). We proceed to consider that sole claim.
Petitioner asserts that the state trial judge violated her Sixth and Fourteenth Amendment right to present a full defense when he excluded the draft separation agreement from evidence at the second trial. This document, prepared by Herbert’s attorney in March 1976 after consultation with both spouses, contained a provision that Carol would retain custody of the children and that Herbert would be permitted reasonable visitation rights. See App. for Petitioner at 29, 34-35.
The prosecution had introduced the draft separation agreement into evidence at petitioner’s first .trial, ostensibly to support the theory that Taylor killed her husband out of fear that she would be removed as sole beneficiary of his life insurance policies after the couple’s separation and divorce. After the mistrial, the prosecution shifted its litigation strategy and decided not to introduce the separation agreement.
After the state presented its ease at the second trial, defense counsel sought to introduce the draft agreement as relevant to the question of motive. The state promptly objected, asserting that the document was inadmissible under New York’s attorney-client privilege because the decedent never waived his right to preserve the confidentiality of the draft agreement. The trial judge agreed and accordingly ordered the draft agreement excluded from petitioner’s second trial.
Taylor argues in her habeas petition that the separation agreement would have substantially undermined the state’s theory of the case. According to petitioner, two major motives advanced by the prosecution— the intensity of her love for Elizabeth and the fear that her husband would use the lesbian relationship to gain custody of their children — were effectively refuted by the separation agreement. She points out that the draft agreement showed that Herbert was amenable to their separation and that he was willing to relinquish custody of their children. Hence, Taylor asserts that there was no compelling reason to kill Herbert because the separation agreement permitted her to maintain custody of the children and liberated her to pursue the lesbian love affair. Petitioner maintains that had the jury known these facts the testimony of the Pasquarellis, the Rozells and Wendy Condo-leo would have been substantially discredited.
The state concedes on appeal that it was “disingenuous” for the prosecutor to introduce the draft agreement at the first trial and then to object when defense counsel sought to admit the document at the subsequent trial. We agree. The prosecutor is charged with a dual responsibility — he must vigorously represent the interests of his client, the state, but he must also act zealously to ensure that justice is done. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Berry, 627 F.2d 193, 198 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). A prosecutor does a disservice to the state and to his profession when he makes “disingenuous” objections to the admission of probative evidence.
The trial court’s decision to exclude the draft agreement from evidence at the second trial was error. Although the State of New York has an important interest in preserving the confidentiality of attorney-client communications, see N.Y.C.P.L.R. § 4503(a) (McKinney Supp.1982), that interest dissipated when the agreement was introduced at the first trial and became part of the public record. See Lanza v. New York State Joint Legislative Committee On Governmental Operations, 3 N.Y.2d 92, 98, 164 N.Y.S.2d 9, 13, 143 N.E.2d 772, 775, cert. denied, 355 U.S. 856, 78 S.Ct. 85, 2 L.Ed.2d 64 (1957). The draft agreement was relevant to refute the state’s theory of motive and should have been admitted at the second trial.
The finding of error does not, however, determine the outcome of this appeal. Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial. See Chambers v. Mississippi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Lipinski v. People, 557 F.2d 289, 292 (2d Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978); see also Nettles v. Wainwright, 677 F.2d 410, 415 (5th Cir.1982); Gale v. Harris, 580 F.2d 52, 54 (2d Cir.1978) (per curiam), cert. denied, 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).
The concept of “fundamental fairness” is sometimes an elusive one. Where an erroneous evidentiary ruling is made, and relevant evidence is thereby excluded, the reviewing court’s duty is to determine whether the excluded evidence was material to the presentation of the defense:
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1976) (emphasis added) (footnotes omitted).
After reviewing the state trial record, we are satisfied that admission into evidence of the draft separation agreement at the second trial would not have “create[d] a reasonable doubt [regarding petitioner’s guilt] that did not otherwise exist.” Id. Although we are troubled by the prosecutor’s conduct, we are satisfied that petitioner was afforded a fundamentally fair trial.
The state did emphasize at the second trial that Taylor’s fear of losing custody of her children was a prime motive for the murder. In fact, in his summation the prosecutor improperly argued that there was no agreement on custody. App. for Petitioner at 89-90. To be sure, the draft separation agreement would have been relevant to refute this theory. However, the attorney who drafted this document, Mr. Anderson, did testify at the second trial and indicated that he met with Mr. and Mrs. Taylor in early March 1976 to discuss their impending separation. He further testified that the question of custody was discussed at this meeting and that “[i]t was suggested that the wife would have custody.” App. for Petitioner at 66. Anderson also testified that he prepared a draft separation agreement at the behest of his client, Mr. Taylor, shortly after the March meeting. The trial judge granted counsel’s request to mark the draft agreement for identification but refused to allow the document into evidence,
Although the draft agreement may have been better evidence, the clear import of Anderson’s testimony was that Carol Taylor would retain custody of her children during the separation period. Elizabeth Taylor strengthened this inference when she testified about the substance of a conversation she had with Carol shortly before Herbert’s death. According to Elizabeth, Carol indicated that she had met with Herbert and his attorney to consider a separation agreement and that the couple agreed that she (Carol) would retain custody of the children. Therefore, the draft agreement itself would add little to refute the theory that Carol killed Herbert to ensure that she would retain custody of the children. Furthermore, the agreement was not signed by the parties and hence could be changed. Additionally, the existence of the separation agreement would not prevent Herbert from using the lesbian relationship at some later time to seek custody of the children. Although Carol arguably was “safe” for the moment, Herbert’s knowledge of her homosexual affinity was a constant reminder of her precarious parental status. When viewed against the totality of the evidence presented, see United States v. Agurs, 427 U.S. at 112, 96 S.Ct. at 2401, we are satisfied that the jury would not have harbored a reasonable doubt about petitioner’s guilt had the draft separation agreement been admitted into evidence at the second trial.
Defense counsel argues that the testimony of the Pasquarellis, the Rozells and Wendy Condoleo would have been substantially discredited if the jury was permitted to examine the draft agreement. We are not persuaded. As noted earlier, the testimony at trial clearly pointed to the existence of a draft agreement and to the conclusion that Carol would retain custody of the children. The jury observed first hand the testimony of the Pasquarellis, the Rozells and Wendy Condoleo and found these witnesses to be credible. We are not free to second-guess these credibility judgments.
Our analysis finds support in Grochulski v. Henderson, 637 F.2d 50 (2d Cir.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1383, 67 L.Ed.2d 358 (1981), where we were asked to decide whether petitioner was denied a fair trial when the state judge, relying on N.Y. Crim.Proc.Law § 60.35 (McKinney 1981), ruled that the defense could not impeach its witness through use of a prior inconsistent statement. Defense counsel sought to introduce a transcribed statement given by the witness to a county prosecutor which contradicted testimony introduced by the prosecution and which substantially discredited the witness’ testimony.
On appeal, we reviewed the disputed statement and concluded that:
[T]he trial court’s refusal to allow the ... statement to be used for impeachment purposes [did not] by itself deprive[] Grochulski of a fair trial, because Chambers and Welcome [v. Vincent, 549 F.2d 853 (2nd Cir.1977) ] do not countenance the setting aside of a state evidentiary rule such as N.Y.Crim. Proc.Law § 60.35 simply because it seems fairer to the defendant to abrogate the rule. As explained above, Chambers and Welcome require such a result only under limited circumstances not present here. See Lipinski v. New York, 557 F.2d 289 (2d Cir.1977). Our review of the totality of the evidence and the circumstances of the trial court’s rulings leave us with the conviction that ... Grochulski received a fair trial.
Id. at 56 (footnote omitted); see Lipinski v. People, 557 F.2d at 292.
Petitioner urges that the facts of this case are more analogous to Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), and Klein v. Harris, 667 F.2d 274, 289 (2d Cir.1981), where convictions were set aside due to erroneous evi-dentiary rulings by the state court. We are not persuaded. Careful review of those decisions reveals that the evidence excluded was manifestly more probative than the draft agreement at issue here.
In Davis, the prosecution obtained “crucial” testimony from a seventeen year old male who at the time of trial was on probation by juvenile court order after having been adjudicated a delinquent for burglarizing two cabins. Prior to trial, the prosecutor moved, pursuant to Alaska Rule of Children’s Procedure 23 and Alaska Statutes § 47.10.080(g) (1971), for a protective order to prevent reference during cross-examination to the witness’ juvenile record. Defense counsel vehemently objected, arguing that the juvenile adjudication seriously undermined the -witness’ credibility. According to the defense, by limiting cross-examination in this manner the defendant would be effectively foreclosed from exposing a strong motive for the witness to testify falsely, i.e., to shift the focus of the criminal investigation from himself to the defendant.
The state trial court, consistent with Alaska’s public policy against disclosure of juvenile adjudications, granted the prosecution’s motion for a protective order. After granting certiorari, the Supreme Court ruled that petitioner’s Sixth and Fourteenth Amendment right of confrontation outweighed the state’s interest in preserving the confidentiality of juvenile records. In reaching its conclusion, the Court noted that the accuracy and truthfulness of the witness’ testimony were “key elements in the State’s ease against petitioner.” Id. at 317. Carol Taylor’s right of confrontation was not diminished by the evidentiary ruling here.
Our decision in Klein v. Harris, 667 F.2d 274 (2d Cir.1981), another case relied on by petitioner, provides another example of a situation where habeas corpus relief is warranted on constitutional grounds. In Klein, the witness who implicated petitioner in a felony murder indicated to defense counsel after testifying that he had lied on the stand due to pressure from the assistant district attorney. Id. at 279. When defense counsel recalled the witness and sought to elicit this testimony, the witness refused on Fifth Amendment grounds to answer any questions relating to his conversation with defense counsel. Over the objection of counsel, the state trial judge upheld the witness’. exercise of his Fifth Amendment privilege and further ruled that prior testimony of the witness would not be stricken from the trial record notwithstanding the witness’ refusal to answer additional questions.
The petition for habeas corpus was granted and on appeal to this Court, we affirmed, holding that the state trial judge either should have directed the witness to testify to the substance of his conversation with defense counsel or should have stricken the entire testimony of the witness. The Court further found this error to be of constitutional dimension, implicating petitioner’s Sixth Amendment right of confrontation, and determined that a new trial was warranted given the importance of the witness’ testimony.
The draft separation agreement does not remotely approach in probative value the evidence excluded in Davis and Klein. Here, five witnesses implicated Taylor in the criminal conspiracy. The clear import of Attorney Anderson’s testimony was that a separation agreement had been drafted and that the parties had tentatively agreed that petitioner would have custody of the Taylor children. The unsigned draft agreement, while probative, was cumulative in nature and its admission into evidence would not have created “a reasonable doubt that did not otherwise exist” concerning petitioner’s guilt.
The judgments of the district court are affirmed.
. Judge Duffy’s judgment was entered on January 9, 1981. While an appeal was pending, petitioner moved to withdraw her appeal in order to file an expanded habeas corpus petition. A stipulation of withdrawal without prejudice was signed by the parties and approved by this Court on June 25, 1981, see App. for Petitioner at 99, and reinstatement was subsequently allowed (Order of Sept. 15, 1982). Petitioner filed a subsequent expanded habeas petition later in 1981. Chief Judge Motley denied the second petition on March 19, 1982. Taylor appeals from both adverse rulings.
. Elizabeth Taylor, petitioner’s alleged paramour, was also indicted and tried as a co-defendant in connection with Herbert Taylor’s murder. Elizabeth was convicted and sentenced to concurrent terms of twenty five years to life on the murder charge, zero to twenty five years on the conspiracy count and zero to seven years on the solicitation charge. In this habeas petition we are concerned only with the claim of Carol Taylor.
. Petitioner has withdrawn several additional claims that were raised in her two habeas petitions before Chief Judge Motley and Judge Duffy, some of which were not exhausted in the state courts. The exhaustion requirements of 28 U.S.C. § 2254 (1976) are satisfied when the petitioner withdraws unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
. The Supreme Court highlighted this dual responsibility in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Id. at 88, 55 S.Ct. at 633.
. Section 4503(a) provides:
(a) Confidential communication privileged; non-judicial proceedings. Unless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services.
N.Y.C.P.L.R. § 4503(a) (McKinney Supp.1982).
. Our task is to determine whether the exclusion of evidence was an error of constitutional dimension, not the more narrow inquiry whether a constitutional error has been shown to have been harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).
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_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
COMMISSIONER OF INTERNAL REVENUE v. ESTATE OF STERNBERGER, CHASE NATIONAL BANK OF NEW YORK, EXECUTOR.
No. 24.
Argued October 19-20, 1954.
Decided January 10, 1955.
Melva M. Graney argued the cause for petitioner. With her on the brief were Solicitor General SobelojJ, Assistant Attorney General Holland, Ellis N. Slack and Robert N. Anderson.
Edward S. Greenbaum argued the cause for respondent. With him on the brief were Maurice C. Greenbaum and Charles E. Homing.
Mr. Justice Burton
delivered the opinion of the Court.
The issue here is whether, in determining a net estate for federal estate tax purposes, a deduction may be made on account of a charitable bequest that is to take effect only if decedent’s childless 27-year-old daughter dies without descendants surviving her and her mother. For the reasons hereafter stated, we hold that it may not.
Louis Sternberger died testate June 25, 1947. His federal estate tax return discloses a gross estate of $2,406,541.71 and, for the additional estate tax, a net estate of $2,064,346.55. It includes assets owned by him at his death and others held by the Chase National Bank, respondent herein, under a revocable trust created by him. As the revocable trust makes provisions for charity that are, for our purposes, identical with those in the will, this opinion applies to both dispositions.
The will places the residuary estate in trust during the joint lives of decedent’s wife and daughter and for the life of the survivor of them. Upon the death of such survivor, the principal of the trust fund is payable to the then living descendants of the daughter. However, if there are no such descendants, one-half of the residue goes to certain collateral relatives of decedent and the other half to certain charitable corporations. If none of the designated relatives are living, the entire residue goes to the charitable corporations.
At decedent’s death, his wife and daughter survived him. His wife was then 62 and his daughter 27. The latter married in 1942, was divorced in 1944, had not remarried and had not had a child.
In the estate tax return, decedent’s executor, respondent herein, deducted $179,154.19 from the gross estate as the present value of the conditional bequest to charity of one-half of the residue. Respondent claimed no deduction for the more remote charitable bequest of the other half of the residue. The Commissioner of Internal Revenue disallowed the deduction and determined a tax deficiency on that ground. The Tax Court reversed the Commissioner. 18 T. C. 836. The Court of Appeals for the Second Circuit affirmed the Tax Court, 207 F. 2d 600, on the authority of Meierhof v. Higgins, 129 F. 2d 1002. To resolve the resulting conflict with the Court of Appeals for the First Circuit in Newton Trust Co. v. Commissioner, 160 F. 2d 176, we granted certiorari, 347 U. S. 932.
The controlling provisions of the Revenue Code are in substantially the same terms as when they were first enacted in 1919 and are as follows:
“SEC. 812. NET ESTATE.
“For the purpose of the tax the value of the net estate shall be determined ... by deducting from the value of the gross estate—
“(d) Transfers for Public, Charitable, and Religious Uses. — The amount of all bequests, legacies, devises, or transfers ... to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes . . . .” I. R. C.
The Commissioner concedes that the corporations named in the will qualify as charitable corporations under the statute. There is no doubt, therefore, that if the bequest to them had been immediate and unconditional, its value would be deductible. The question before us is what, if any, charitable deduction may be made despite (1) the deferment of the effective date of the charitable bequest until the deaths of both decedent’s wife and daughter and (2) the conditioning of the bequest upon a lack of descendants of decedent’s daughter surviving at that time. We find the answer in the Treasury Regulations, which are of long standing and strengthened by reenactments of I. R. C., § 812 (d), since their promulgation.
1. Section 81.Jf.Jf. of Treasury Regulations 105 would permit the deduction of the present value of the bequest if it were an outright bequest, merely deferred until the deaths of decedent’s wife and daughter.
In their earliest form, the predecessors of these regulations, in 1919, recognized, in plain language, the propriety of the deduction of the present value of a deferred, but assured, bequest to charity. Section 81.44 (d) of Treasury Regulations 105 does so with inescapable specificity:
Ҥ 81.44 Transfers for public, charitable, religious, etc., uses. . . .
“(d) If a trust is created for both a charitable and a private purpose, deduction may be taken of the value of the beneficial interest in favor of the former only insofar as such interest is presently ascertainable, and hence severable from the interest in favor of the private use. § 81.10 indicates the principles to be applied in the computation of the present worth of deferred uses, but such computation will not be made by the Commissioner on behalf of the executor. Thus, if money or property is placed in trust to pay the income to an individual during his life, or for a term of years, and then to pay or deliver the principal to the charitable corporation, or to apply it to a charitable purpose, the present value of the remainder is deductible. To determine the present value of such remainder, use the appropriate factor in column 3 of Table A or B of § 81.10. If the present worth of a remainder bequeathed for a charitable use is dependent upon the termination of more than one life, or in any other manner rendering inapplicable Table A or B of § 81.10, the claim for the deduction must be supported by a full statement, in duplicate, of the computation of the present worth made, in accordance with the principle set forth in 181.10, by one skilled in actuarial computations.” (Emphasis supplied.) 26 CFR.
The very explicitness of the above provisions emphasizes their restriction to “the computation of the present worth” of assured bequests such as are the subject of each of the illustrations and cross references in the section. The statute restricts charitable deductions to bequests to corporations “organized and operated exclusively for . . . charitable . . . purposes.” (Emphasis supplied.) Likewise, the above section of the regulations requires that the deductible value of “the beneficial interest in favor of” the designated charitable purpose be “severable from the interest in favor of the private use.” There is no suggestion in the statute or in § 81.44 of a deduction of funds other than those later to be used exclusively for charitable purposes.
2. Section 81.46 of Treasury Regulations 105 permits no deduction for a conditional bequest to charity “unless the possibility that charity will not take is so remote as to be negligible.”
Here, also, the regulations in their earliest form, in 1919, were unequivocally restrictive. It was only after court decisions had demonstrated the need for doing so that the restrictions were restated so as expressly to permit deductions of bequests assured in fact but conditional in form.
Section 81.46 now provides expressly that no deduction is allowable for a conditional bequest to charity “unless the possibility that charity will not take is so remote as to be negligible.” The whole section is significant:
“§ 81.46 Conditional bequests, (a) If as of the date of decedent’s death the transfer to charity is dependent upon the performance of some act or the happening of a precedent event in order that it might become effective, no deduction is allowable unless the possibility that charity will not take is so remote as to be negligible. If an estate or interest has passed to or is vested in charity at the time of decedent’s death and such right or interest would be defeated by the performance of some act or the happening of some event which appeared to have been highly improbable at the time of decedent’s death, the deduction is allowable.
“(b) If the legatee, devisee, donee, or trustee is empowered to divert the property or fund, in whole or in part, to a use or purpose which would have rendered it, to the extent that it is subject to such power, not deductible had it been directly so bequeathed, devised, or given by the decedent, deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of such power.” (Emphasis supplied.) 26 CFR.
Sections 81.44 and 81.46 fully implement § 812 (d) of the code. In their early forms they were obviously mutually exclusive and easily reconcilable. The predecessor of § 81.46 confined charitable deductions to outright, unconditional bequests to charity. It expressly excluded deductions for charitable bequests that were subject to conditions, either precedent or subsequent. While it encouraged assured bequests to charity, it offered no deductions for bequests that might never reach charity. Subsequent amendments have clarified and not changed that principle. Section 81.46 (a) today yields to no condition unless the possibility that charity will not take is “negligible” or “highly improbable.” Section 81.46 (b) is equally strict. It relates to provisions whereby funds may be diverted in whole or in part to non-charitable uses, and it limits the tax deduction to that portion of each fund that cannot be so diverted. Where the principal of a bequest to charity thus may be invaded for private purposes, it is only the ascertainable and assured balance of the bequest to charity that is recognized for a tax deduction.
Respondent concedes that the chance that charity will not take is much more than negligible. Therefore, if § 81.46 (a) applies to the instant case, no charitable deduction is permissible.
Respondent claims, however, that § 81.44 covers this case. In doing so, it reads §§ 81.44 and 81.46 together and, instead of confining them to their mutually exclusive subjects, makes them overlap. It applies § 81.44 to some deferred conditional bequests. It does so in any case where it can compute, on approved actuarial standards, the degree of possibility that charity will receive the conditional bequest. Respondent then computes the present value of a corresponding percentage of the entire deferred bequest. In short, respondent claims an immediate tax deduction equal to the present value of whatever fraction of the bequest corresponds, actuarially, to the chance that charity may benefit from it.
This Court considered a somewhat comparable proposal in 1928. In Humes v. United States, 276 U. S. 487, a taxpayer sought a charitable deduction based on a bequest to charity that was conditional upon the death of decedent’s 15-year-old niece, without issue, before reaching the age of 40. To sustain the proposal, the taxpayer sought to establish actuarially a measure of the chance that charity would receive the bequest and to find authority in the Revenue Code for the deduction of the present value of a corresponding percentage of the bequest. Speaking through Mr. Justice Brandéis, this Court found the actuarial computation inadequate. It, however, did not drop the matter there. It made the following statement:
“One may guess, or gamble on, or even insure against, any future event. The Solicitor General tells us that Lloyds of London will insure against having twins. But the fundamental question in the case at bar, is not whether this contingent interest can be insured against or its value guessed at, but what construction shall be given to a statute. Did Congress in providing for the determination of the net estate taxable, intend that a deduction should be made for a contingency, the actual value of which cannot be determined from any known data? Neither taxpayer, nor revenue officer — even if equipped with all the aid which the actuarial art can supply — could do more than guess at the value of this contingency. It is clear that Congress did not intend that a deduction should he made for a contingent gift of that character.” (Emphasis supplied.) Id., at 494.
Since the above was written, there have been advances in the actuarial art. Today, actuarial estimates are employed more widely than they were then. The computations now before us illustrate that advance. They do not, however, lessen the necessity for statutory authorization for such a tax deduction. The scope of the authority required by respondent can best be appreciated if examined in the revealing light of the specific circumstances of the present case.
The Tax Court and the Court of Appeals have approved respondent’s actuarial computations as fairly reflecting the present value of one-half of a two-million-dollar residue, reduced in proportion to the chance that charity will receive it. In making this estimate, respondent has computed the present value of the deferred bequest on the basis of 4% interest compounded annually and has used the following actuarial tables:
1. To determine the joint life expectancy of decedent’s wife and daughter, the Combined Experience Mortality Table prescribed in § 81.10 of the estate tax regulations.
2. To estimate the probability of remarriage of the daughter, the American Remarriage Table, published by the Casualty Actuarial Society.
3. To estimate the chance of a first child being born to decedent’s daughter, a specially devised table which has been found by the Tax Court to have been prepared in accordance with accepted actuarial principles upon data derived from statistics published by the Bureau of the Census.
On the basis of these tables, the Tax Court finds that the present value of the charitable remainder at the death of decedent is .18384 on the dollar if computed solely on the chances of his daughter’s remarriage; .24094 on the dollar if computed on the chance that a legitimate descendant of his daughter will survive her; and .24058 on the dollar if computed on the chance that any legitimate or illegitimate descendant of his daughter will survive her. It is this last estimate that respondent seeks to apply here.
If respondent is successful, it means the allowance of an immediate and irrevocable deduction of over $175,000 from the gross estate of decedent, although respondent admits there is a real possibility that charity will receive nothing. The bequest, in fact, offers to the daughter an inducement of about $2,000,000 to remarry and leave a descendant. To the extent that this inducement reduces the actuarially computed average probability that charity will receive this bequest, it further demonstrates the inappropriateness of authorizing charitable tax deductions based upon highly conditional bequests to charity.
An even clearer illustration of the effect of respondent’s interpretation of the code readily suggests itself. If decedent had here conditioned his bequest to charity solely on the death of his daughter before remarriage, the Remarriage Table would then fix the present value of the charitable remainder at .18384 on the dollar. The taxpayer would at once receive a substantial charitable deduction on that basis. The daughter, however, would have a $2,000,000 inducement to remarry. If she did so, her action would cancel the possibility that charity would receive anything from the bequest, but it would not cancel the tax deduction already allowed to the estate. To whatever extent any person can defeat the fulfillment of any condition upon which a benefit to charity depends, to that extent the actuarial estimate that such benefit will reach charity is less dependable. The allowance of such a tax reduction as is here sought would open a door to easy abuse. The result might well be not so much to encourage gifts inuring to the benefit of charity as to encourage the writing of conditions into bequests which would assure charitable tax deductions without assuring benefits to charity.
We find no suggestion of authority for such a deduction in § 812(d). That section remains substantially the same as it was when Humes v. United States, supra, 276 U. S. 487, was decided. We also find no authorization for the deduction either in § 81.46 or § 81.44 of the regulations, as thus far discussed. This relegates respondent to the following words now in § 81.44 (d):
“If the present worth of a remainder bequeathed for a charitable use is dependent upon the termination of more than one life, or in any other manner rendering inapplicable Table A or B of § 81.10, the claim for the deduction must be supported by a full statement, in duplicate, of the computation of the present worth made, in accordance with the principle set forth in § 81.10, by one skilled in actuarial computations.” (Emphasis supplied.)
In view of the statutory emphasis upon outright bequests and the long-standing exclusion of conditional bequests by § 81.46 of the regulations (and its predecessors), we do not regard the above sentence as now invading the domain of § 81.46 by extending the deduction to conditional bequests in a manner readily open to abuse. We regard the sentence as restricted to computations of deferred, but assured, bequests. Section 81.10 (i) now deals at length with the valuation of remainders and reversionary interests and gives many examples of such computations. Every example, however, is one of the valuation of an assured bequest. The additional language in § 81.44 (d), quoted above, does not authorize the deduction, and § 81.46 prohibits it. Such specific and established administrative interpretation of the statute is valid and “should not be overruled except for weighty reasons.” Commissioner v. South Texas Co., 333 U. S. 496, 501.
This Court has not specifically faced the issue now before us since Humes v. United States, supra, but we see no reason to retreat from the views there stated. This Court finds no statutory authority for the deduction from a gross estate of any percentage of a conditional bequest to charity where there is no assurance that charity will receive the bequest or some determinable part of it. Where the amount of a bequest to charity has not been determinable, the deduction properly has been denied. Henslee v. Union Planters Bank, 335 U. S. 595, 598-600; Merchants Bank v. Commissioner, 320 U. S. 256, 259-263; and see Robinette v. Helvering, 318 U. S. 184, 189. Where the amount has been determinable, the deduction has, with equal propriety, been allowed where the designated charity has been sure to benefit from it. United States v. Provident Trust Co., 291 U. S. 272; Ithaca Trust Co. v. United States, 279 U. S. 151.
Some of the lower courts have squarely met the instant problem and denied the deduction. For example, the deduction was denied in the First Circuit where the court found that “it is not certain that the charity will take 50% of the corpus; only that it has a 50-50 chance of getting all or nothing." Newton Trust Co. v. Commissioner, 160 F. 2d 175, 181. See also, Graff v. Smith, 100 F. Supp. 42; Hoagland v. Kavanagh, 36 F. Supp. 875; Wood v. United States, 20 F. Supp. 197. The administrative practice, as evidenced here by the action of the Commissioner, has been to deny the deduction. See further, Paul, Federal Estate and Gift Taxation (1946 Supp.), 426-427.
The judgment of the Court of Appeals, accordingly, is reversed and the cause remanded for action in conformity with this opinion.
Reversed.
These provisions appear more fully in Estate of Sternberger v. Commissioner, 18 T. C. 836, 837-838.
Originally § 403 (a) (3) of the Revenue Act of 1918, 40 Stat. 1098. See also, Griswold, Cases and Materials on Federal Taxation (3d ed.), 679 et seq.; 1 Paul, Federal Estate and Gift Taxation, 638 et seq.
Its latest reenactment is in § 2055 (a) of the Internal Revenue Code of 1954, 68A Stat. 390. The purpose of the deduction is to encourage gifts to the named uses. Edwards v. Slocum, 264 U. S. 61, 63; 13 Geo. Wash. L. Rev. 198, 201; 28 Va. L. Rev. 387-388. Like other tax deductions, however, it must rest on more than a doubt or ambiguity. See United States v. Stewart, 311 U. S. 60, 71, and also Commissioner v. Jacobson, 336 U. S. 28, 49.
Section 408 (a) of the Revenue Act of 1942, 56 Stat. 949, added to I. R. C., § 812(d), the so-called “disclaimer provision,” whereby, under certain conditions, the renunciation of a private bequest which effectuates a gift to charity earns a charitable deduction from the decedent's gross estate.
"Art. 53. Public, charitable, and similar bequests. — . . . It does not prevent deduction . . . that the property placed in trust is also subject to another trust for a private purpose. Thus, where money or property is placed in trust to pay the income to an individual during life, and then to pay or deliver the same to a charitable corporation, or apply the principal to a charitable purpose, the charitable bequest or devise forms the basis for a deduction. The amount of the deduction, in such case, is the value, at the date of the decedent’s death, of the remainder interest in the money or property which is devised or bequeathed to charity. For the manner of determining the value of such remainder interest, see Article 20.” 21 T. D. 783-784.
Article 20 prescribed methods of determining the present worth of a remainder subject to a single life interest.
Congressional insistence upon the actual use of the funds exclusively for charitable purposes appears in the following provisions describing the bequests that are deductible:
“The amount of all bequests ... to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes ... no part of the net earnings of which inures to the benefit of any private stockholder or individual ... or to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used . . . exclusively for religious, charitable, scientific, literary, or educational purposes . . . .” (Emphasis supplied.) I. R. C., §812 (d).
“Art. 56. Conditional bequests. — Where the bequest, legacy, devise, or gift is dependent upon the performance of some act, or the happening of some event, in order to become effective it is necessary that the performance of the act or the occurrence of the event shall have taken place before the deduction can be allowed. Where, by the terms of the bequest, devise or gift, it is subject to be defeated by a subsequent act or event, no deduction will be allowed.” 21 T. D. 785.
United States v. Provident Trust Co., 291 U. S. 272. See also, Hoagland v. Kavanagh, 36 F. Supp. 875; Ninth Bank & Trust Co. v. United States, 15 F. Supp. 951.
Despite the conclusions of the Tax Court and the Court of Appeals to the contrary, the Government contends here that the proposed actuarial value of the conditional remainder to charity does not support the deduction. We do not reach that issue, but the facts material to it are as follows: The Remarriage Table is based on a study of American experience conducted by a Committee of the Casualty Actuarial Society, 19 Proceedings of the Casualty Actuarial Society (1933), 279-349. The table is based solely upon the remarriage experience of widows who, through the deaths of their husbands, become beneficiaries under workmen's compensation laws in states where they lose compensation benefits upon remarriage. The reports relied upon cover experience for policy years 1921 to 1929, inclusive. See id., at 286-288, 298. See also, Myers, Further Remarriage Experience, 36 Proceedings of the Casualty Actuarial Society (1949), 73 et seq. The specially devised table as to the probability of issue is based upon statistics, for white women in 47 states and the District of Columbia, indicating the degree of probability that such women, after they are 27 years old, will marry and have first-born children. See the following Bureau of the Census publications for 1940; Vital Statistics of the United States, Pt. II, 89; Nativity and Parentage of the White Population — General Characteristics 110; Types of Families 9. The instant computation assumes that such a child will survive its mother. 18 T. C. 836, 837-838.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Franklin M. MASSEY, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
No. 11131.
United States Court of Appeals Fourth Circuit.
Argued May 30, 1967.
Decided June 1, 1967.
Franklin W. Kern, Charleston, W. Va., for appellant.
Jack H. Weiner, Attorney, Department of Justice (Barefoot Sanders, Asst. Atty. Gen., Kathryn H. Baldwin, Attorney, Department of Justice, and Milton J. Ferguson, U. S. Atty., on brief), for ap-pellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
PER CURIAM.
The order settling the fee of the lawyer in this social security case is vacated and the cause remanded for further consideration in light of Redden v. Celebrezze, 4 Cir,, 370 F.2d 373, and McKittrick v. Gardner, 4 Cir., 378 F.2d 872 (decided May 30, 1967).
Vacated and remanded.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
HADDON HOUSE FOOD PRODUCTS, INC. and Flavor Delight, Inc., Petitioners in No. 84-3445, v. NATIONAL LABOR RELATIONS BOARD, Petitioner in No. 84-3537, and Teamsters Local Union No. 115 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor, and United Food and Commercial Workers International Union, AFL-CIO, Local 80, Intervenor.
Nos. 84-3445, 84-3537.
United States Court of Appeals, Third Circuit.
Argued April 30, 1985.
Decided June 12, 1985.
Rehearing and Rehearing In Banc Denied Aug. 22,1985.
Jonathan G. Axelrod (Argued), Beins, Axelrod & Osborne, P.C., Washington, D.C., Norton Brainard, Teamsters Local Union No. 115, Philadelphia, Pa., for inter-venor, Teamsters Local Union No. 115.
Nicholas W. Clark (Argued), Edward P. Wendel, Asst. Gen. Counsel, United Food and Commercial Workers Union, Washington, D.C., for intervenor, Local 80.
Julius M. Steiner (Argued), Howard K. Trubman, Larry Besnoff, Pechner, Dorf-man, Wolffe, Rounick & Cabot, Philadelphia, Pa., for Haddon House Food Products, Inc. and Flavor Delight, Inc.
David A. Fleischer (Argued), N.L.R.B., Washington, D.C., Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, for N.L.R.B.
Before GIBBONS and HIGGIN-BOTHAM, Circuit Judges and NEWCOMER, District Judge.
Hon. Clarence C. Newcomer, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Haddon House Food Products, Inc. and Flavor Delight, Inc. (the employers) petition pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f) (1982), to review an unfair labor practice order issued by the National Labor Relations Board, reported at 269 NLRB No. 338 (1984). The Board has filed a cross-application for enforcement both against the employers and against Local 80, Food and Allied Service Workers, chartered by United Food and Commercial Workers, AFL-CIO (Local 80). Local 80 has intervened, as has the charging party before the Board, Local Union No. 115, International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America (Local 115). We enforce the Board’s order.
I.
The 1975 Proceedings
The employers are engaged in the manufacture, sale, and distribution of food products at premises in Medford, New Jersey. They have common management and unified labor relations policies, and comprise a single employer for purposes of the National Labor Relations Act. In November of 1975, Local 115 obtained a substantial number, although not a majority, of union authorization cards from employees in the Medford bargaining unit. On November 19, 1975, Local 115 filed a petition for a representation election. On November 21, 1975, Local 115 filed unfair labor practice charges against the employers. The election petition was held in abeyance by the Board pending resolution of the unfair labor practice charges.
On June 12, 1979, the Board resolved the unfair labor practice charges against the employers. The Board found that the employers had responded to Local 115’s organizational campaign by engaging in numerous violations of section 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1) and (3) (1982). These violations included discharging eight employees for engaging in union activities, the refusal to reinstate fourteen unfair labor practice strikers, and widespread threats of discharge for engaging in protected activities. The Board ordered the employers to cease and desist from engaging in the unfair labor practices it found, and from in any other manner interfering with, restraining, or coercing their employees in the exercise of their statutory rights. It ordered the employer to offer reinstatement with back pay to the eight discharged employees and the fourteen unreinstated strikers.
The Board also ordered the usual notice posting, and directed the employers to grant Local 115 and its representatives access to employer bulletin boards, and to nonwork areas in the plant during employees’ nonwork time. It ordered the employers to permit Local 115’s representatives the opportunity to deliver a thirty minute speech to employees during working hours at least forty-eight hours but not less than ten working days before any Board representation election in which Local 115 participated. These access remedies were ordered to dissipate the atmosphere of fear created by the employers’ unlawful conduct, and in lieu of a bargaining order. A bargaining order was not ordered because Local 115, while obtaining a sufficient number of authorization card signatures for a representation election, had not obtained a card majority. The Board’s order, reported at 242 NLRB 1057 (1979), was substantially enforced by the Court of Appeals for the District of Columbia Circuit. Teamsters Local 115 v. NLRB, 640 F.2d 392 (D.C.Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981). That court rejected both Local 115’s contention that a bargaining order should have been entered, and the employers’ contention that access remedies were inappropriate. The judgment enforcing the Board’s order was issued on November 4, 1981. The order had not, in the meantime, been fully complied with.
II.
The 1981 Proceedings
Following the decision of the Court of Appeals enforcing the Board’s order, but while a petition for certiorari seeking Supreme Court review of that decision was pending, Local 80, about June 15, 1981, commenced an organizing campaign by leafletting employees at the Medford plant. On June 29, Local 80 demanded recognition. The American Arbitration Association conducted a union authorization card check and certified to the employers that a majority of employees in the bargaining unit had signed Local 80 cards. Local 115 was not notified of the card check, and the American Arbitration Association was not notified of Local 115’s pending representation election petition, or of the prior unfair labor practices. On July 8, the employers recognized Local 80, and on July 24, entered into separate collective bargaining agreements, one covering production employees, and one covering warehouse employees. Both Local 80 contracts contain union-security clauses requiring all covered employees to become members of that local.
By the time the employers recognized Local 80 and entered into collective bargaining agreements with it, they had offered reinstatement to all of the eight dis-chargees, and to eleven of the fourteen unfair labor practice strikers. They had not complied, however, with any of the Board’s remedial notice and access requirements. Indeed they did so thereafter only when the Board instituted contempt proceedings.
The Board found that the employers violated sections 8(a)(2) and (1) of the Act, 29 U.S.C. § 158(a)(2) and (1) (1982), when they entered into collective bargaining agreements with Local 80 at a time when it did not represent an uneoerced majority in the bargaining units, while Local 115’s representation petition was pending, and while the 1975 unfair labor practices remained unremedied. The Board also found that Local 80 violated section 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A), by accepting such recognition. Moreover, the Board found that the employers violated section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), and that Local 80 violated section 8(b)(2) of the Act, 29 U.S.C. § 158(b)(2), by entering into collective bargaining agreements containing union-security clauses at a time when Local 80 was not entitled to recognition.
To remedy these violations the Board ordered the employers and Local 80 to cease and desist from the unfair labor practices found, and to refrain from interfering with, restraining, or coercing employees in any way in the exercise of their statutory rights. The Board also ordered that the employers withdraw recognition from Local 80 unless it is certified by the Board after an election, and ordered the employers and Local 80 to reimburse employees for all initiation fees, dues, assessments or other payments made pursuant to the unlawful union-security clause. Finally, the Board reaffirmed most of the access remedies ordered for the benefit of Local 115 in the 1975 proceedings since the record did not show that there had been compliance.
III.
Recognition of Local 80 Violated the Act
The Board’s holding that the employers violated the Act by recognizing Local 80 rests on two alternative grounds: that a real question concerning recognition existed at the time of such recognition, and that Local 80 did not represent an uncoerced majority. Both grounds, either of which would justify the order to withdraw recognition, are challenged by the employers and Local 80. We address them separately.
A. The Real Question Concerning Representation
In Midwest Piping and Supply Company, 63 NLRB 1060 (1945), the Board held that an employer rendered unlawful assistance when it entered into a collective bargaining agreement with one of two rival unions at a time when a genuine question existed as to which union represented a majority of its employees. That basic principle is not in dispute. What the employers and Local 80 do dispute, however, is the Board’s application of the Midwest Piping rule to this case. They rely on a series of cases in this court in which we refused to enforce Board orders requiring withdrawal of recognition of unions holding card majorities. Suburban Transit Corporation v. NLRB, 499 F.2d 78 (3d Cir.1974); NLRB v. Air Master Corporation, 339 F.2d 553 (3d Cir.1964); NLRB v. Swift and Company, 294 F.2d 285 (3d Cir.1961). These cases can be fairly read as disapproving a tendency in the Board to read Midwest Piping so broadly as to prohibit a neutral employer from ever recognizing one of two rival unions absent a Board certification. They do not cast doubt, however, on the soundness of the basic rule. “To recognize one of two competing unions while the employees’ choice between them is demonstrably in doubt, is an unfair labor practice under what the courts have accepted as the normal and proper application of the Midwest Piping doctrine.” NLRB v. Air Master Corp., 339 F.2d at 557. We simply have refused to find a genuine question concerning representation when one union is an incumbent, even though the rival has filed a representation petition, or has unequivocally demonstrated that it has the support of an uncoerced majority.
In an effort to clarify the circumstances in which neutral employers should refrain from recognizing one of two rival unions, the Board, in 1982, reconsidered the Midwest Piping doctrine. In RCA Del Caribe, Inc., 262 NLRB 963, 965 (1982), the Board held that “the mere filing of a representation petition by an outside, challenging union will no longer require or permit an employer to withdraw from bargaining or executing a contract with an incumbent union.” The Board explained that if there was an existing collective bargaining relationship an employer could not maintain the neutral posture required by the Midwest Piping rule since a refusal to bargain with an incumbent union might be perceived as favoring the challenger. Thus, employer neutrality was best approximated by maintaining the status quo pending certification of a challenger union. On the same day the Board considered a case in which two unions were seeking initial recognition. In Bruckner Nursing Home, 262 NLRB 955, 957 (1982), the Board, taking note of the expressed preference of this court and others for a rule which permits employers to contract with a union holding cards from an uncoerced majority, held that it would no longer find a section 8(a)(2) violation, when two unrecognized unions are competing and when the employer recognizes the union that represents an un-coerced, unassisted majority. At the same time, however, the Board reaffirmed its position that “once notified of a valid petition, an employer must refrain from recognizing any of the rival [non-incumbent] unions.” 262 NLRB at 957.
The Board’s decision and order in this case is an application of the Bruckner qualification of the Midwest Piping doctrine. The effect of the Bruckner rule is that when faced with two rival non-incumbent unions an employer is free to recognize that union that is authorized by an uncoerced majority at any time until the filing of a valid representation petition. A valid representation petition is defined as one which would entitle the petitioning union to an election. An election will not be held unless the petitioner has at least 30% support. NLRB Statement of Procedure, Sec. 101.18(a), 29 CFR 101.18(a). See NLRB v. J.I. Case Co., 201 F.2d 597, 598-99 (9th Cir.1953). Thus, the Board’s present position is that an employer may always bargain with an incumbent union until a new union is certified, and that if there is no incumbent an employer may recognize a union holding cards from an uncoerced majority until a representation petition is filed by a rival union authorized by at least 30% of the unit employees.
The employers and Local 80 contend that the Bruckner rule is inconsistent with Hedstrom Company v. NLRB, 558 F.2d 1137 (3d Cir.1977), in that it amounts to an application of the “continuing demand” concept, under which an employer might be guilty of an unfair labor practice by failing to recognize a union that obtains majority status some time after an initial demand for recognition. Hedstrom is not on point. The Board did not obligate the employers to recognize either local union, and did not find an unfair labor practice in the employers’ failure to bargain with Local 115. There is no “continuing demand” issue in this case.
The employees and Local 80 also contend that the Bruckner qualification of the Midwest Piping doctrine is in effect a non-acquiscence by the Board in our holding in Suburban Transit, Air Master and Swift. See Allegheny General Hospital v. NLRB, 608 F.2d 965 (3d Cir.1979). We disagree. The Board makes clear in Bruckner that it has in good faith accommodated its rule on determining questions concerning representation to the concerns this court expressed in those cases. The Bruckner rule is a satisfactory accommodation of the sometimes conflicting policies of prompt recognition of majority collective bargaining representatives and of uncoerced free choice in the selection of such representatives. Authorization cards are not a totally reliable indication of employee free choice, for when competing unions solicit, many employees may sign cards for both. When the rival union has cards for 30%, there is a real possibility of such duplication. Drawing the line at the point at which one of two unrecognized rivals files a representation petition on behalf of 30% of the employees in the bargaining unit has the additional advantage of providing clear guidance to employers. Thus, we hold that the Board did not err when it applied the Bruckner test in this case. Local 115 had on file a valid representation petition known to the employers when they recognized Local 80. Thus, the employers violated section 8(a)(2). Local 80 violated 8(b)(1)(A) by accepting such recognition even if, as it asserted before the Board, it was unaware of Local 115’s pending representation petition. See International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 738-39, 81 S.Ct. 1603, 1607-1608, 6 L.Ed.2d 762 (1961). Moreover a collective bargaining agreement with an unlawfully recognized union containing a union-security clause violates sections 8(a)(3) and 8(b)(2). NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 138, 142 (3d Cir.1976).
B. The Uncoerced Majority
Our approval of the Board’s application, in this case, of the Bruckner rule is dispositive of the petitions for review insofar as they challenge the order to withdraw recognition from Local 80. The Board also relied alternatively upon the ongoing effects of the unfair labor practices still unremedied which it found in the 1975 proceedings. The employers and Local 80 challenge this reliance principally because of the passage of time. Throughout most of that time, however, the employers and Local 115 were engaged in protracted litigation. The Board’s finding that the effects of the 1975 unfair labor practices made unfettered employee free choice unlikely while those practices remained unremedied is supported by substantial evidence in the record as a whole. The Board did not err in holding that recognition of a union which lacks uncoerced majority support violates section 8(a)(2) of the Act. Paul M. O’Neill International Detective Agency, Inc. v. NLRB, 280 F.2d 936, 938 n. 2, 939-46 (3d Cir.1960).
IY.
The Board’s Remedy is Not an Abuse of Discretion
The employers contend that the Board abused its discretion in providing, in the 1981 proceedings, access remedies substantially similar to those provided in the 1975 proceedings. Local 80 contends that the Board abused its discretion in ordering reimbursement of dues. Neither contention has merit.
The employers’ unlawful recognition of Local 80 effectively nullified the access provisions of the prior proceeding. By the time access was permitted for Local 115, Local 80 had already recognized and entered into collective bargaining agreements with its rival. The unlawful recognition compounded the effects of the prior unfair labor practices, which were egregious and pervasive. We find no abuse of discretion in the order providing access remedies to Local 115 so that the effects of those unfair labor practices might be nullified.
As to the dues reimbursement remedy, we are taught by the Supreme Court that such an order “should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Company v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1942). No such showing can be made here. Indeed the reimbursement of dues remedy appears particularly appropriate for restoration of a climate of neutrality in which a free choice may be made among the unions competing for representation, or even for no union.
V.
Conclusion
The Board’s application of its Bruckner qualification to Midwest Piping is consistent with the policies of the Act. The remedies imposed are not an abuse of discretion. The Board’s order will, therefore, be enforced in full and the petitions for review will be denied.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
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.
BLAIR et al. v. UNITED STATES for Use and Benefit of GREGORY-HOGAN et al. UNITED STATES for Use and Benefit of GREGORY-HOGAN et al. v. BLAIR et al.
Nos. 12871, 12875.
Circuit Court of Appeals, Eighth Circuit.
July 24, 1945.
For former opinion, see 147 F.2d 840.
J. W. Barron, of Little Rock, Ark. (Ernest P. Rogers, of Atlanta, Ga., on the brief), for appellants and cross-appellees.
Henry Donham, of Little Rock, Ark. (Martin K. Fulk and Pat Mehaffy, both of Little Rock, Ark., on the brief), for appellees and cross-appellants.
Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
On the first hearing of this case we approved the finding by the trial court of a breach by defendant Blair of his asphalt contract with the plaintiff Gregory-Hogan alleged in paragraph 11 of the complaint. A judgment for damages in favor of Gregory-Hogan resulting from this breach of contract was affirmed after reduction in the amount allowed by the trial court. We reversed the judgment of the lower court in favor of Gregory-Hogan on its claim allowed by the trial court under paragraph 6 of the complaint, in which it alleged liability on the part of defendant Blair for additional expenses incurred by Gregory-Hogan under the so-called speedup agreement between the parties. The contracts referred to are set out with sufficient particularity in our original opinion (8 Cir., 147 F.2d 840) and need not be restated here. In petitions for rehearing both parties assert error in respect to the matters stated.
Defendant Blair contends that, conceding that the evidence was sufficient to establish the breach by him of the asphalt contract, it nevertheless conclusively establishes the fact that the plaintiff Gregory-Hogan sustained no damage as the result of the breach.
The substance of paragraph 11 of the complaint is that the plaintiff was obligated under its asphalt contract to produce approximately 50,000 tons of asphalt for paving within the time specified in the contract; that, in order to comply with this requirement of the contract, it was necessary for plaintiff to rent and ship to the place of performance an asphalt plant capable of producing 500 tons of asphalt a day; that after the execution of the contract and after plaintiff had incurred the expense of installing the asphalt plant capable of doing the work, the defendant, without notice to or the consent of the plaintiff, caused the required amount of asphalt to be reduced from approximately 50,-000 tons to approximately 20,000 tons, with the result that the plaintiff did not need and could not economically use the large equipment and installation which the original contract required. As damages for this breach of contract plaintiff sought to recover expenses incurred in shipping the large asphalt plant to the place of performance of the work, in installing and equipping the plant for the production of 50,000 tons of asphalt and in dismantling and returning the plant to the point from which it was shipped. Plaintiff offered evidence tending to show that it owned a smaller plant fully capable of furnishing the reduced quantity of asphalt within 150 days. The smaller plant was located at Fort Smith, Arkansas, very near the place of performance of the contract, whereas the larger plant was brought from Mississippi. Included in plaintiff’s alleged out-of-pocket expense was the rental value of the larger plant, presumably for the time it was not needed. In support of this item of expense, plaintiff offered proof to show the fair rental value of the plant and that it could have been rented to other contractors, if the asphalt contract, as originally executed, had not required its use in its performance.
The majority of the court were of the opinion that the charges for rent, included in the plaintiff’s alleged out-of-pocket expense, could not be allowed under the evidence in this case. We allowed a recovery in favor of the plaintiff on this claim in the sum of $16,981.74, representing plaintiff’s out-of-pocket expense in shipping, installing, and dismantling'an asphalt plant larger than was necessary for the performance of its contract. On reconsideration, we conclude that this recovery is not supported by any evidence in the record.
The so-called asphalt contract was executed on September 20, 1941. Within a very few days after the execution of the contract plaintiff learned that the Government had decided to reduce the amount of asphalt required under the contract by approximately the number of tons of reduction alleged in the complaint. This information came to the plaintiff before September 25, 1941, because on that date plaintiff advised the defendant of its receipt; and, on the contention that the reduction in the amount of asphalt contemplated under the contract would increase the unit cost in the performance of the contract, requested the defendant to ask the Government for an increase in the unit prices allowed on the work. On September 30, 1941, defendant Blair replied to plaintiff’s letter of September 25, 1941, confirming plaintiff’s information concerning the reduction in the amount of asphalt required under the contract and promising to submit to the proper officials of the Government plaintiff’s request for increased unit prices. Defendant’s letter of September 30, 1941, was acknowledged on October 22, 1941. Plaintiff signified its intention of proceeding with the performance of the contract as changed, and expressed confidence that defendant would adequately present to the Government plaintiff’s request for an increase in unit prices for the work under the contract.
There is nothing in the record to show when plaintiff began shipment of the large asphalt plant to the place of performance of the contract. In view of the fact that the plaintiff’s evidence establishes that it received knowledge of the reduction in the amount of asphalt required under the contract almost contemporaneously with its execution, it is hardly reasonable to suppose that the large asphalt plant had been dismantled at its location in Mississippi and shipped to a point near Fort Smith, Arkansas, where the work was to be done, and there assembled, before plaintiff had notice of the fact, if its testimony is to be accepted, that a plant of such capacity would not be required for the work to be done by it.
On January 12, 1942, defendant wrote to plaintiff, saying that he had received from the Government a change order providing for the changes in the original contract which resulted in the reduction of the asphalt required. In this letter defendant stated:
“You were advised sometime ago that the asphalt surfacing in the Motor Park Areas would be omitted, and this Change Order makes the omission a definite fact.
“This information is given to you so that you can plan your equipment arrangements accordingly.”
In view of the preceding correspondence between the parties, plaintiff’s testimony that the letter of January 12, 1942, was the first decisive information that there would be a change in the requirements concerning the amount of asphalt needed in performing the contract, and that up to January 12, 1942, it had to hold itself in readiness to produce 50,000 tons of asphalt, does not seem entirely reasonable. But even so, accepting January 12, 1942, as the date of the breach of the asphalt contract, plaintiff’s own evidence shows that it was advised as early as November 4, 1941, that no asphalt work would be done before March 1, 1942. The contract, as originally written, required the work to be finished by March 25, 1942, but the date for completion was later extended to April 12, 1942. Plaintiff did not begin setting up its large asphalt plant until some time in the middle of February, 1942, after the receipt of decisive information, if its testimony is to be accepted, that the plant would not be required. The asphalt work was begun about March 1, 1942, but, although it is admitted that nothing occurred to delay the work, it was not completed until June 3, 1942. The large asphalt plant which plaintiff now claims was not needed in the performance of work which the contract required to begin on March 1, 1942, and to be completed on April 12, 1942, was actually needed and used from March 1, 1942, until June 3, 1942. The testimony of Mr. Hogan, of the Gregory-Hogan organization, shows that plaintiff could not have completed its asphalt work with the smaller Fort Smith plant within less than five months and that from three to four months were required with the larger plant. The contract allowed less than two months for the asphalt work. In view of this evidence, plaintiff’s claim that, because of the reduction in the amount of asphalt required in its original contract, it incurred expense in furnishing a plant larger than the work actually done required is not sustained.
The fundamental basis for an award of damages for breach of contract is just compensation for losses necessarily flowing from the breach. Michelson, Inc., v. Nebraska Tire & Rubber Co., 8 Cir., 63 F.2d 597, 601; 5 Williston on Contracts, Rev.Ed., § 1338; Restatement of the Law of Contracts, § 329. And while the breach of contract gives rise to a right of action, it is nevertheless possible for a breach to occur without causing damage. Restatement of the Law of Contracts, § 328a. As pointed out in the original opinion, a party whose contract has been breached is not entitled to be placed in a better position because of the breach than he would have been in had the contract been performed. Plaintiff in this case did not seek recovery of profits which it may have made had the contract been performed as originally written. It seeks only the recovery of out-of-pockets expense claimed to have been caused by the breach. The evidence fails completely to establish the loss which plaintiff has asserted. Accordingly, the original opinion in this case is modified by limiting the recovery under paragraph 11 of the complaint to $1 as nominal damages.
In its petition for rehearing plaintiff asserts that this court erred in denying the plaintiff the right to recover the sum of $9,709.94, representing the expense incurred by plaintiff in providing an additional gravel pit, the recovery of which was allowed by the District Court as an expense necessarily incurred by the plaintiff under the supplemental contract known as the speed-up agreement. We denied recovery of this item on the ground that under the so-called speed-up agreement the defendant became obligated to pay the plaintiff for such items of expense as the plaintiff incurred as the result of the speedup only as and when plaintiff’s claims therefor were allowed by the Government and . paid to defendant. The record shows that while defendant Blair presented to the Government plaintiff’s claim for the cost of opening the gravel pit and is still pressing the claim, the Government had declined to allow or pay it. In its petition for rehearing plaintiff now asserts that defendant became obligated for this expense under a separate written contract between plaintiff and defendant, and that defendant was obligated to pay this expense whether or not approved and paid by the Government. The claim of a separate written contract is based upon a letter written by defendant Blair to plaintiff Gregory-Hogan, under date of July 28, 1942. In this letter defendant stated: “I am enclosing herewith original and yellow copy of my Formal Order increasing your contract price in the sum of $9,709.94, said amount being that allowed your firm to cover additional gravel pit.”
The enclosed formal order provides: “This formal order hereby increases your contract price relative above project in the sum of $9,709.94.”
The evidence discloses, however, that the letter and formal order mentioned were written by defendant on the faith of a preliminary allowance by the Government of the claim for the expense of providing the gravel pit, and that subsequently the Government reversed its position and declined to pay the claim. We think it clear that the letter relied on falls far short, in view of the undisputed evidence concerning it, of establishing an absolute agreement on the part of defendant to pay for the cost of opening the gravel pit. Plaintiff’s petition for rehearing on this point is accordingly denied.
Plaintiff further alleges that we overlooked in our original opinion an item of interest in the sum of $2,787.54, representing the amount of interest accrued at six per cent per annum on the sum of $34,-843.96, which, as noted in the original opinion, the defendant had paid on the judgment entered by the District Court in favor of the plaintiff. Defendant concedes the correctness of this claim on the part of plaintiff, and, accordingly, it is allowed.
It follows from what we have said that the judgment appealed from must be modified so as to permit a recovery by the plaintiff of three items, $10,360.76, $2,-570.75, and $2,787.54, plus $1 as nominal damages for breach of the asphalt contract, amounting in the aggregate to $15,720.05, with interest upon the first two items at six per cent per annum from September 3, 1942. This cause is remanded to the lower court with directions to modify the judgment accordingly. Neither of the parties shall recover costs on these appeals.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.