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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
WARD v. DEAVERS et al. YOUNG et al. v. WARD.
Nos. 11070, 11312.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 22, 1952.
Decided March 26, 1953.
Mr. Emory H. Guy, Washington, D. C., for appellant Ellen M. Ward in case No. 11070 and for appellee Ellen M. Ward in case No. 11312.
Mr. Byron N. Scott, Washington, D. C., for appellees C. J. Young and Lane Pastor in case No. 11070 and for appellants C. J. Young and Lane Pastor in case No. 11312.
Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee The Aetna Casualty & Surety Company in case No. 11070.
Mr. Jo V. Morgan, Jr., Washington, D. C., with whom Messrs. John J. Wilson and Harry L. Ryan, Jr., Washington, D. C., were on the brief, for appellee Maryland Casualty Company in case No. 11070.
Before EDGERTON, WILBUR K. MILLER and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
These appeals grow out of a suit brought by Mrs. Ellen Ward, to rescind certain transactions whereby she acquired a rooming-house business.
One Deavers was the principal owner of the business in question, which was conducted in leased premises. Under the lease, Deavers could be required to quit the premises within 60 days, if the owner should at any time sell the property. In April 1945, Deavers contracted to sell the business to defendant Belew. Belew took over the business and served as its manager under a “Manager’s Operating Agreement” with Deavers. He did not acquire title to the business, but by February 1946 he had a $3,400 equity in it.
In October 1945 the business was offered for sale for $11,000 through defendants-appellants Young and Pastor, partners in a business-chance brokerage firm licensed in the District of Columbia. Plaintiff Ward, who had previously bought a similar — and entirely satisfactory — business through these brokers, investigated the proposal with the-aid of one of their employees. Shortly thereafter she put up $1,000, and offered to buy the business. Belew accepted the offer as “owner.” The sale hung in suspense, for various reasons, until mid-February of 1946, when Pastor, with whom plaintiff had been dealing for the most part, renewed his efforts to complete it. On February 14, Mrs. Ward raised her deposit to $2,500 and signed a new sales contract with Belew as owner. The next day she signed a “Manager’s Operating Agreement” offered by Deavers and similar to that he had given Belew, in lieu of a bill of sale. By its terms she was to pay Deavers part of the purchase price in installments during the remaining 13months of the lease on the premises, thereby acquiring the right to purchase the assets and good will of the business at the expiration of the lease for a nominal sum. At the same time, plaintiff gave Deavers a note for $4,000, covering the installments and final payment due him, and another note for $3,400 which he immediately indorsed to Belew “without recourse,” evidently to cover Belew’s equity in the business. She also executed a note for the balance of the purchase price — $1,100—to Young and Pastor, covering their commission on the transaction. Plaintiff entered into possession immediately. Within three months the premises were sold and within seven months the new owner demanded possession. Approximately ten months after she bought the business, plaintiff surrendered the premises in which it was conducted.
After the new owner’s demand for possession, plaintiff brought this action in the United States District Court for the District of Columbia. Her complaint was entitle “Complaint for Rescission of Business Sales Contract; the Cancellation of a Certain Manager’s Operating Contract, and of Certain Promissory Notes Representing Part of Consideration of said Business Sales Contract.” The prayer for relief asked that these contracts and notes be surrendered to the court "by [for?] cancellation,” that plaintiff’s total cash investment in the business be returned, that the court “ascertain the expenses and damages suffered by plaintiff” and enter judgment therefor, and that further just and proper relief be granted. Plaintiff named as defendants, and served, Pastor and his statutory surety, Young and his statutory surety, and Belew. Other named defendants, among them Deavers, were never validly served with process, and the action proceeded without them. The court, after trial without a jury, entered a Memorandum Opinion in which it made findings of fraud, concealment and damage, and concluded “as a matter of law, that the plaintiff is entitled to rescind and she is to have judgment to that effect.” Then, seeking to restore the status quo ante, it entered money judgments against Pastor, Young and Belew, and decreed that “all notes * * * executed by plaintiff and arising out of this transaction, are herewith can-celled.” Neither contract was specifically rescinded in the judgment. Plaintiff, dissatisfied with the sums awarded and the court’s dismissal of the action “without prejudice” as to the two defendant sureties, appealed. Defendants Young and Pastor, dissatisfied with any finding for the plaintiff, filed a counter-appeal.
In their counter-appeal, the brokers contend that Deavers was an indispensable party and that by reason of his absence the trial court “was without jurisdiction to hear the case.” The issue thus presented requires resolution at the outset. It is settled that “Rescission of a contract, or declaration of its invalidity, as to some of the parties, but not as to others, is not generally permitted.” Roos v. Texas Co., 2 Cir., 1927, 23 F.2d 171, 172. In this case there were two writings' — the sales contract of February 14 signed by the parties Ward and Belew, and the Manager’s Agreement of February 15 signed by Mrs. Ward and by Deavers, who was not a party to this suit. It seems reasonably clear that the sales contract of February 14 became a nullity on February 15 by merger in the Manager’s Agreement. But even if it did not, we think it was not severable from the rest of the transaction for separate rescission, though the formal parties to it were before the court. Nor could the remainder of the transaction—the Manager’s Agreement, signed by Deavers—be rescinded in the absence of Deavers. “[T]here is a general rule that where rights sued upon arise from a contract all parties to it must be joined.” Gauss v. Kirk, 1952, 91 U.S.App.D.C. 80, 198 F.2d 83, 84. Under the agreement, Deavers was entitled, inter alia, to prompt monthly payment of $250 for 13% months, or, failing this, restoration of the premises “with all of the equipment, furnishings, stock in trade, or other chattels therein contained * * unencumbered and in good condition. He was an indispensable party because a final decree rescinding the agreement could hardly be made without “affecting” his interest, Shields v. Barrow, 1854, 17 How. 130, 136, 15 L.Ed. 158. Because the transaction could not be rescinded as to Deavers, it could not be rescinded at all. Roos v. Texas Co., supra.
Although the District Court lacked jurisdiction to rescind, it did not therefore lack jurisdiction “to hear the case,” as Young and Pastor contend. Since the complaint alleged that “the entire transaction was fraudulent,” and that others beside Deavers were implicated, the court should have considered whether relief other than rescission should not be granted, despite Deavers’ absence, against parties actually before the court. Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., requires that the court’s final judgment “grant the relief to which the party in' whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Such a situation may present an occasion for application of Rule 19(b) of the Federal Rules of Civil Procedure. See Gauss v. Kirk, supra, 91 U.S. App.D.C. 80, 198 F.2d at page 86. On the other hand, if the court finds that plaintiff was entitled to tort damages against persons actually served Deavers’ presence before the court is neither indispensable nor necessary.
We turn now to the merits of the case. The trial court’s ultimate finding that fraud was committed by the brokers and by Belew appears to be based on its findings (1) that “all of the defendants concealed from the plaintiff the fact that Belew was not the owner of the property in question,” and (2) that there were “outstanding two other sales agreements of the same property.” (Memorandum Opinion.)
We find no adequate support in the record for the first of these basic findings. Plaintiff knew that both Deavers and Belew were interested in the business (Complaint, par. 7; Tr. 72, 75). She knew that neither one was owner of the real estate itself (Complaint, par. 7). She dealt with both men, and clearly knew she was buying up their respective interests in the business. We find no evidence of misrepresentation as to Belew’s interest, much less any misrepresentation in that regard on which plaintiff relied and acted with consequent injury. Cf. Imperial Assurance Co. of N. Y. v. Joseph Supornick & Son, 8 Cir., 1950, 184 F.2d 930, 934.
Again, we think the “two other sales agreements of the same property” afford no basis for the relief attempted. The court no doubt refers to the 1945 agreement-between Deavers- and Belew and to a contract made in 1946 between Deavers and a Mrs. Restine. The first of these was superseded by the plaintiff’s purchase of the business. Belew joined in the transfer to her, and effectively parted with his interest. As to the contract between Deavers and Mrs. Restine entered into in January 1946: there is nothing to indicate that it was ever made the basis of any claim against Mrs. Ward or anyone else, or that any injury was caused plaintiff by it, or that any misrepresentation in connection with it was ever made to her.
If the trial court's general finding of fraud is to be sustained, it must be on other grounds, not specified iby the court. We have reviewed the entire transcript of testimony, but find nothing in it which so decisively points to fraud as to dispense with the need for specific findings. We have considered whether to reverse outright, under the doctrine that fraud must be clearly and convincingly shown. Public Motor Service v. Standard Oil Company of New Jersey, 1938, 69 App.D.C. 89, 91, 99 F.2d 124, 126. But we recognize that the evidence here on many points is conflicting, and that the trial court, which heard the witnesses, is in a much better position than we to reach a conclusion on the question of fraud. Cf. Wynne v. Boone, 1951, 88 U.S. App.D.C. 363, 191 F.2d 220. Accordingly, we think the case should be remanded. Plaintiff must, of course, show fraud committed by or imputable to the defendants who are actually before the court, in order to justify relief as against them. And she must show that the fraud caused the injury of which she complains: damages therefor must be measured by the usual tests of causality rather than by ah effort to restore the status quo ante. Cf. Draisner v. Lowenstein, 1952, 91 U.S.App.D.C. 98, 198 F.2d 295. Here, again, new findings are called for. Upon remand, the court should also reexamine its dismissal of the action, without prejudice, as to the statutory sureties of Young and Pastor. Absent good reason for declining to decide it, we think the issue of the sureties’ liability should be settled finally in the present action. No such reason appears in the record before us.
For the foregoing reasons, the judgment will be
Reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
. The $3,400 note indorsed to Belew and the $1,100 note to Young and Pastor were at first issued in the form of a $4,500 note payable directly to Belew. The latter note was destroyed when the two replacements for it were executed.
. Young’s surety as a licensed broker was Maryland Casualty Company; Pastor’s was Aetna Casualty , Surety Company. Their bonds were written pursuant to Section 45-1405 of the D.C.Code (1951).
. Later designated in its judgment to serve as its Findings of Fact and Conclusions of Law.
. That rule provides: “When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance o.r if, though they are subject to its jurisdiction, their join-der would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein does not affect the rights or liabilities of absent persons.”
. “Tort feasors are not indispensable or necessary to an action against one of their number, because ■ their liability is both joint and several.” 3 Moore’s Federal Practice, par. 19.07; Wells v. Universal Pictures Co., 2 Cir., 1948, 166 F.2d 690; Carl Gutmann & Co. v. Rohrer Knitting Mills, D.C., 1949, 86 F.Supp. 506, Id., 9 F.R.D. 67.
. See supra note 1.
. Certainly, under the circumstances, there was no fraud in Belew’s signing as “owner,” when Deavers also became obligated.
. The contract was apparently abandoned when Mrs. Restine committed suicide a few days after signing ■ it, and before Mrs. Ward’s second offer on the business.
. If, upon the remand, the court proceeds to an award of damages against any defendant properly served who remains in possession of notes arising from this transaction, cancellation thereof by physical destruction as an offset to the award may then bo within the range of proper relief. See Annotation, 109 A.L.R. 1032.
. See supra note 2.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
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sc_casedisposition
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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.
HARDIN, MAYOR OF TAZEWELL, et al. v. KENTUCKY UTILITIES CO.
No. 40.
Argued December 13, 1967.
Decided January 16, 1968.
William R. Stanifer argued the cause for petitioners in Nos. 40 and 50. With him on the brief for petitioners in No. 40 was Philip P. Ardery. Clyde Y. Cridlin was on the brief for petitioner in No. 50. Robert H. Marquis argued the cause for petitioner in No. 51. With him on the brief were Acting Solicitor General Spritzer, Richard A. Posner, Charles J. McCarthy and Thomas A. Pedersen.
Malcolm Y. Marshall argued the cause for respondent in all three cases. With him on the brief were Squire R. Ogden and James S. Welch.
Together with No. 50, Powell Valley Electric Cooperative v. Kentucky Utilities Co., and No. 51, Tennessee Valley Authority v. Kentucky Utilities Co., also on certiorari to the same court.
Mr. Justice Black
delivered the opinion of the Court.
The question for decision in these cases is whether Congress has prohibited the Tennessee Valley Authority from competing in the sale of electricity with respondent, the Kentucky Utilities Company, in two small villages in Claiborne County, Tennessee, and in a narrow corridor between the two villages and the Tennessee-Kentucky state boundary 16 miles away. By § 15d of the Tennessee Valley Authority Act of 1933, as added by the 1959 amendments to that Act, Congress barred the TVA from expanding its sales outside “the area for which the Corporation [TVA] or its distributors were the primary source of power supply on July , 1957/’1 and our problem is therefore the narrow one of deciding whether these villages and the narrow corridor are part of an “area” for which TYA was the primary source of power on the crucial date. The difficulty lies in determining the location and extent of the “area” to which the statute refers. In June 1957, TVA supplied 62% of the power used in all of Claiborne County, and therefore if the entire county is an “area” within the meaning of the statute, TVA would have been the “primary” source of power, and its expansion into the two villages would be permissible. On the other hand, in the villages themselves, TVA supplied only 6% of the power in June 1957, while respondent supplied 94%; thus if the two villages either alone or with the corridor constitute an “area,” TVA would not have been the primary source of power, and it would be barred by § 15d from expanding into that area.
The question of statutory interpretation now before us arose in this way. TVA is the major supplier of electric power in Tennessee and in many adjoining areas- of Alabama, Mississippi, Georgia, Virginia, and Kentucky. Respondent, whose service area is centered in Kentucky, has long served customers in Tazewell and New Tazewell, the two villages within 16 miles of the Kentucky border in Claiborne County, Tennessee. The power lines of TVA distributors also crisscross Claiborne County, and TVA has therefore been- able to serve a small number of customers in the two villages, even though respondent was the predominant source of power. Because Kentucky Utilities’ retail rates for electricity in the two villages were approximately 2y2 times higher for typical consumers than the rates for TVA power, the value of residential and commercial properties served by TVA was substantially and uniformly higher than the value of similar properties served by respondent. This rate disparity created a seething discontent among residential and industrial consumers in the villages. Pointing out that they lived in the very heart of the TVA watershed and in immediate proximity to TVA’s large Norris Lake, these citizens contended that it was wholly unjust and inequitable to deny them the benefits and advantages of cheap TVA power. After complaints, planning, and consultations over a period of more than three years, the local governments engaged a contractor to build the facilities necessary to establish a municipal system linked to TVA’s cheap power. Kentucky Utilities’ customers immediately began to discontinue their service and become customers of the municipal system.
Kentucky Utilities then filed this suit against TVA, the mayors of the twb Tazewells, and the Powell Valley Electric Cooperative, a TVA distributor, charging them with conspiracy to destroy its Tazewell business and asking the court to enjoin TVA from supplying power to the new municipal system in alleged violation of § 15d. The District Court upheld the determination of the TVA Board of Directors that the two Tazewells were within TVA’s primary service “area” and dismissed the case, 237 F. Supp. 502 (1964), but the Court of Appeals reversed, holding that the two villages plus the corridor constituted an “area” and that TVA accordingly was barred from extending its service in the Tazewells. 375 F. 2d 403 (1966). We granted certiorari, 386 U. S. 980 (1967), to resolve this important question in the administration of the TVA Act. We reverse and agree with the District Court that the TVA Board properly determined the relevant service “area” to extend beyond the two Taze-wells and to include the entire county. TVA, as the primary power source within this area, could therefore properly make its low-cost power available to consumers in this entire county area including the two villages.
I.
Before discussing the merits, we shall briefly consider petitioners’ contention that the Kentucky Utilities Company lacks standing to challenge the legality of TVA’s activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, ■confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938); Tennessee Power Co. v. TVA, 306 U. S. 118 (1939); Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U. S. 15, 19 (1942); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83 (1958).
Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TYA competition. This is evident from the provision itself and is amply supported by its legislative history. The provision grew out of TVA’s efforts to find some way to meet the cost of new facilities without dependence upon annual appropriations from Congress. In 1955 TVA began to seek authority to issue bonds to finance these expenditures. Although TVA spokesmen assured Congress that the objective was not territorial expansion but only improvement of facilities in TVA’s existing service area, many members of Congress were apprehensive and thought that if congressional budgetary control was to be weakened, some substitute to prevent territorial expansion should be found. A series of bills to give TVA borrowing power failed to pass. Several bills were then introduced combining the grant of borrowing power with various provisions to prohibit territorial expansion, and one of these bills was eventually-enacted as the TYA amendments of 1959. Although discussions of the territorial limitation mentioned a number of policy reasons for the restriction, it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the limitation. Since respondent is thus in the class which § 15d is designed to protect, it has standing under familiar judicial principles to bring this suit, see Stark v. Wickard, 321 U. S. 288, 309 (1944); cf. United States v. ICC, 337 U. S. 426, 433-434 (1949), and no explicit statutory provision is necessary to confer standing.
II.
Basic to our consideration of the merits of these cases is an appraisal of the significance of the TVA Board’s determination that all of Claiborne County, including the two Tazewells, constituted a single “area” in which TYA is the primary source of power. Petitioners argue that the Court of Appeals gave no weight whatever to this determination and urge that the finding should instead have been treated like an administrative interpretation by an agency or executive officer, to be set aside only if it is not properly related to the purposes of the statute. The opinion of the Court of Appeals is not altogether clear in dealing with this question, however, and respondent has not attempted to argue here that the Court of Appeals could have decided the matter entirely on its own, without any consideration of the TVA Board’s finding. Rather, respondent appears to agree with petitioners that the determination of the TVA Board is entitled to acceptance unless it lies outside the range of permissible choices contemplated by the statute, and we think this is the proper rule. The initial determination as to the extent of the “area” under § 15d must be made by the TVA Board in every case, since TVA is required under the Act to make power available to public bodies and cooperatives within the permissible area. In making this determination as to the most appropriate boundaries for its service area, the TYA Board will normally evaluate the economic and engineering aspects of providing its service to the customers in question, especially in relation to the particular topography of the affected region. Given the innate and inevitable vagueness of the “area” concept and the complexity of the factors relevant to decision in this matter, we think it is more efficient, and thus more in line with the overall purposes of the Act, for the courts to take the TVA’s “area” determinations as their starting points and to set these determinations aside only when they lack reasonable support in relation to the statutory purpose of controlling, but not altogether prohibiting, territorial expansion. Cf. SEC v. New England Electric, 384 U. S. 176, 185 (1966); Bates & Guild Co. v. Payne, 194 U. S. 106, 109-110 (1904).
III.
Tested by this standard, we think the determination of the TVA Board with respect to Claiborne County should have been upheld by the court below. Neither the language of § 15d, its legislative history, nor any of the economic and technical circumstances of this particular locality suggest that the TVA Board’s determination here exceeded the outer boundaries of choice contemplated in the Act.
Certainly nothing in the language of § 15d (a) itself forecloses the TVA’s present decision. The second paragraph of that section reads:
“Nothing in this subsection shall prevent the Corporation or its distributors from, supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.”
In light of this provision, respondent argues that even within its “area,” TVA may not extend its services to new customers previously served by a private company. Literally, of course, this language does not establish such a rule. It simply states that when a customer is served by a private utility in this area of generally established service, an area perhaps broader than the “area” of primary service which is controlling under the first paragraph of § 15d (a), the Act may prevent TVA from supplying the customer; other parts of the subsection must be looked to for the actual prohibition. This literal reading, moreover, is the only' appropriate one in light of other provisions of the statute. The first paragraph of § 15d (a) authorizes TVA to provide power not only within its “area” but also within an additional region “extending not more than five miles around the periphery of such area.” This is followed by a proviso denying TVA the right to serve within this additional region any “municipality receiving electric service from another source on or after July 1, 1957.” Since the Act makes the existence of a private supplier an explicit bar to TVA expansion only within the additional region, we cannot read the statute as also making the existence of a private supplier, in and of itself, an automatic bar to expansion in the primary service “area.”
The parties have also called our attention to numerous incidents in the legislative history suggesting that Congress may have regarded the very villages involved in this case as either inside or outside of TVA’s service area. Petitioners note that maps placed before the congressional committees showed the Tazewells as within TVA’s primary service area. Respondent counters that one map submitted to the House Public Works Committee showed the Tazewells as within respondent’s service area. In addition, respondent notes that a “gentlemen’s agreement” between TVA and neighboring private utilities had placed the Tazewells within respondent’s area, and respondent refers to a number of statements indicating that various sponsors of the territorial limitations intended to enact the “gentlemen’s agreement” into law.
We do not find any of this information particularly helpful in resolving the question before us. The maps on which petitioners rely were large-scale representations of TYA’s entire multistate system, and they were submitted to various committees for general reference. Even if all these maps had placed the Tazewells in the same area, it would be artificial in the extreme to assume that Congress actually entertained any specific intention with respect to these small villages in one tiny portion of the county, the State and the map. With respect to the “gentlemen’s agreement,” it is undeniable that many members of Congress did hope to freeze completely the existing situation by enactment of the territorial limitation. Others, the majority of the Senate Public Works Committee in particular, undoubtedly sought to include language that would authorize adjustments and permit a certain amount of elasticity in the availability of TYA service. We think it is sufficient to note, without tracing all the changes in the wording of the territorial limitation, that the language of the Act in its final form is a compromise and that the views of those who sought the most restrictive wording cannot control interpretation of the compromise version.
Finally, we think that apart from the structure of the Act and its legislative history, the facts of the situation in Claiborne County, in Tennessee, and in Kentucky support rather than undercut the TVA Board’s determination. The parties place great stress on the question whether respondent’s service area should be characterized as a “peninsula” attached to its main region of service or as a mere “island” surrounded by TVA territory and therefore more properly subject to TVA intrusion. But we can attribute no controlling significance to such characterizations. The most isolated area of private service will necessarily be connected to the private company’s main area by at least one power fine such as the one present here, and the company may even, as here, serve scattered customers along the line — if indeed the region contains any customers to serve. At the same time a broad area served almost entirely by a private company and contiguous with its main service area may be crisscrossed by the lines of TVA distributors and TVA may even have scattered customers along these lines; the fact that the private company was thus surrounded by TVA might not under this statute justify TVA expansion into the “peninsula” or “island,” whatever it may be, served by private power. In the present cases respondent did serve a substantial number of customers in the corridor between the Tazewells and its main service area in Kentucky, but if a “peninsula,” it was at best a very narrow and tiny one in relation to the possible patterns of power distribution. TVA, on the other hand, served most of the rural areas in Claiborne County and had a substantial minority of the customers in the Tazewells themselves. Under these circumstances, the TVA Board could properly have concluded that the pattern of electric power distribution would be more sensible and efficient if TVA competed in the entire Tazewell municipal area as well as serving the relatively unprofitable rural customers, many of whom were rather close to respondent’s transmission line into the Tazewells. In addition, the Board could have considered the existence of its significant, though not primary, service in the Tazewells themselves as a compelling reason for including these villages in its “area,” since the factors supporting inclusion were in any event significant and since the great disparity of rates in the villages had resulted in significant economic dislocations.
Under all these circumstances we cannot say that the conclusion of the TYA Board in the present cases is incompatible with the “area” concept formulated in the Act. We therefore reverse the judgment of the Court of Appeals and affirm that of the District Court.
It is so ordered.
Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of these cases.
Tennessee Valley Authority Act of 1933, § 15d (a), 73 Stat. 280, as amended, 73 Stat. 338, 16 U. S. C. §831n-4 (a). The full text of the relevant portion of § 15d (a) is as follows:
“Unless otherwise specifically authorized by Act of Congress the Corporation shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area: Provided, however, That such additional area shall not in any event increase by more than 2% per centum (or two thousand square miles, whichever is the lesser) the area for which the Corporation and its distributors were the primary source of power supply on July 1, 1957: And provided further, That no part of such additional area may be in a State not now served by the Corporation or its distributors or in a municipality receiving electric service from another source on or after July 1, 1957, and no more than five hundred square miles of such additional area may be in any one State now served by the Corporation or its distributors.
“Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.”
For the owner of an electrically heated home, TVA power might cost $30.50 for a winter month as against $75.53 for the identical amount of power supplied by respondent.
S. 2373, 84th Cong., 1st Sess. (1955); H. R. 4266, 85th Cong., 1st Sess. (1957).
S. 1855, S. 1869, S. 1986, S. 2145, 85th Cong., 1st Sess. (1957); S. 931, H. R. 3460, 86th Cong., 1st Sess. (1959).
One of the Senators active in framing the territorial limitation expressed concern over TVA’s powerful bargaining position with respect to its purchase of coal. See S. Rep. No. 470, 86th Cong., 1st Sess., 54 (1959) (supplemental views of Senator Randolph).
See, e. g., id., at 9 (majority report); id., at 54-55 (supplemental views of Senator Randolph); 105 Cong. Rec. 13053 (July 9, 1959) (remarks of Senator Cooper); id., at 13054 (remarks of Senator Holland); id., at 13055 (remarks of Senator Kerr); id., at 13060-13061 (remarks of Senator Randolph); id., at 13061 (remarks of Senator Byrd); hearings on H. R. 3460 before House Committee on Public Works, March 10-11, 1959, 86th Cong., 1st Sess., 110, 115 (testimony of Representative Vinson); id., at 122 (testimony of Representative Boykin).
Petitioners’ reliance on Kansas City Power & Light Co. v. McKay, 96 U. S. App. D. C. 273, 225 F. 2d 924, cert. denied, 350 U. S. 884 (1955), is thus misplaced. The Court in McKay ruled that an explicit statutory provision was necessary to confer standing because of the “long established rule” that an injured competitor cannot sue to enforce statutory requirements not designed to protect competitors. In the case of statutes concerned with protecting competitive interests, the “long established rule” is of course precisely the opposite.
The Court of Appeals stated at one point:
“But, TVA argues, the 1959 Act must be read as committing to its Board of Directors authority to determine 'the area’ in which it was the primary source of power on that date. We find no words in the Act which directly or impliedly delegated to TVA’s Board such authority.” 375 F. 2d, at 412.
Later in its opinion, however, the court suggests that this statement was not intended to deny any role to the Board’s determination:
“We hold that the resolution of the TVA Board did not foreclose the testing of its validity by the District Judge or by this Court on this appeal.” 375 F. 2d, at 415.
See § 12 of the Tennessee Valley Authority Act, 48 Stat. 65, 16 U. S. C. § 831k.
It should be noted that the agency determination upon which the Court places so much weight was reached at a “special meeting” of the Board of Directors on August 26, 1964, more than eight months after respondent filed its complaint, and only three weeks before trial. One of the staff memoranda upon which the determination was based refers specifically to this litigation. One might have supposed that a determination which was made post litem, motam warranted at least cautious treatment.
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_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents.
No. 84-5387.
United States Court of Appeals, Sixth Circuit.
Argued April 4, 1985.
Decided Sept. 17, 1985.
Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner.
Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents.
Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
COHN, District Judge.
The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence.
For the reasons stated below, we enforce the order only in part.
I. HISTORY
On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974.
Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election.
The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980).
Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court.
When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point.
In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson.
II. ISSUE PRECLUSION
We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).
Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16.
While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding.
“ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted)
Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979).
Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages.
The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct.
“[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.”
Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966).
In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding.
III. SECTION 8(a)(5) VIOLATIONS
This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned:
“Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.”
Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act.
Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted).
Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976).
The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3).
Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254.
In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial.
The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees.
Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees.
Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced.
IV. WILLIE SPENCER AND MARGIE WILSON
Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974.
When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985):
“[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage.
Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Id. at 1130 (citations omitted).
A. Willie Spencer
Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion.
B. Margie Wilson
Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable.
Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130.
V. SUMMARY
The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement.
. These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus.
. Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980).
. Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975.
. Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams.
. Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra.
. This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.”
. Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion:
“The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____
This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding.
. Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980).
. The record does not contain the date when Spencer was laid off from his day job.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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songer_applfrom
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Johnny OVERSTREET, Administrator of the Estate of David Wilkey, Deceased, Plaintiff-Appellant, v. KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 90-2217.
United States Court of Appeals, Fourth Circuit.
Argued April 11, 1991.
Decided Dec. 4, 1991.
S.D. Roberts Moore, Gentry, Locke, Rakes & Moore, Roanoke, Va., argued (Tod Wright Holliday, on brief), for plaintiff-appellant.
William Beverly Poff, Woods, Rogers & Hazlegrove, Roanoke, Va., argued (Frank K. Friedman, Leslie Edwin Hagie, on brief), for defendant-appellee.
Before BUTZNER and CHAPMAN, Senior Circuit Judges, and WILLIAMS, District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
BUTZNER, Senior Circuit Judge:
Johnny Overstreet, administrator of the estate of David Wilkey, appeals a summary judgment in favor of Kentucky Central Life Insurance Company in a diversity action alleging wrongful death, entitlement to policy proceeds under the North Carolina Slayer Statute, and unjust enrichment. The suit was brought after David Fisher, beneficiary on a policy insuring Wil-key’s life, was convicted of procuring Wil-key’s murder. The district court held that the company was not estopped from pleading the statute of limitations, that Fisher’s fraud voided the policy, that the company was absolved from liability because it entered into a good faith settlement with Fisher, and that the company was not unjustly enriched. See Overstreet v. Kentucky Cent. Life Ins. Co., 747 F.Supp. 1195 (W.D.Va.1990).
Because the record discloses genuine issues of material fact, we vacate the summary judgment on the wrongful death and Slayer Statute claims. Finding no unjust enrichment, we affirm the judgment dismissing this claim.
I
Kentucky Central asserts that it cannot be equitably estopped from relying on the limitation applicable to the Virginia wrongful death act, Va.Code Ann. § 8.01-244 (Michie 1984), because the limitation is substantive. The district court did not adopt this theory, but the company may seek affirmance on an issue addressed in the record even though it is not the basis of the court’s judgment. Schweiker v. Hogan, 457 U.S. 569, 585 & n. 24, 102 S.Ct. 2597, 2607 & n. 24, 73 L.Ed.2d 227 (1982).
The common law provided no cause of action for wrongful death, and this omission was remedied only by the passage of Lord Campbell’s Act in 1846. The first Virginia wrongful death statute, passed in 1871, was modeled on Lord Campbell’s Act. Wilson v. Whittaker, 207 Va. 1032, 1035, 154 S.E.2d 124, 127 (1967). Under this and successor statutes, “a new right of action is given decedent’s personal representative only through the grace of legislative enactment.” 207 Va. at 1036, 154 S.E.2d at 127. When the legislature creates a right of action that did not exist at common law, the limitations specified in the statute operate as a substantive limit on the right to recover. Continental Casualty Co. v. The Benny Skou, 200 F.2d 246, 248 (4th Cir.1952); Dowell v. Cox, 108 Va. 460, 465, 62 S.E. 272, 273 (1908). This distinction—often called that between a remedial or procedural statute of limitations and a substantive statute—is easier to state than to justify in the context of estop-pel. Some authorities have held that a substantive limitation extinguishes the plaintiff’s right to sue at the expiration of the specified time regardless of any equitable considerations, see 2 Stuart M. Speiser, Recovery for Wrongful Death 2d § 11:24 (2d ed. 1975 & Supp.1990), but this text also notes that equitable estoppel is a valid defense to the plea of the statute of limitations in Virginia, § 11:24 at 147 (2d ed. Supp.1990). Moreover, the mechanistic distinction between the types of limitations has been falling into disfavor for at least 50 years. In Scarborough v. Atlantic Coast Line R.R. Co., 178 F.2d 253 (4th Cir.1949), we held that the distinction should not bar an action under the Federal Employers’ Liability Act where the plaintiff had been induced by fraud to permit the limitations period to expire:
We cannot see a distinction and a difference, so clear and so real, between the two classes of statutes of limitations— the remedial and the substantive—as to justify the courts in fully giving effect to fraud in tolling the statute of one type (remedial) and then flatly denying that effect to fraud in the other type (substantive). The ancient maxim that no one should profit by his own conscious wrong is too deeply embedded in the framework of our law to be set aside by a legalistic distinction between the closely related types of statutes of limitations.
178 F.2d at 259.
The United States Supreme Court has held that a “substantive” statute of limitations is nonetheless tolled by the principle of equitable estoppel, which it noted was “older than the country itself.” Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 234, 79 S.Ct. 760, 763, 3 L.Ed.2d 770 (1959). The Supreme Court noted elsewhere:
[T]he fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled. Thus, the “substantive”-“procedural” distinction would seem to be of little help in deciding questions of extending the limitations period.
Burnett v. New York Central R.R. Co., 380 U.S. 424, 427 n. 2, 85 S.Ct. 1050, 1054 n. 2, 13 L.Ed.2d 941 (1965). More than 20 years ago, we noted that “[e]ven when the time limitation is fixed by the same statute which creates the cause of action, the modern trend is to extend or toll the period of limitations to avoid injustice.” Belton v. Traynor, 381 F.2d 82, 86 (4th Cir.1967). See also 4 Fowler & Harper, et al., The Law of Torts § 24.7 at 483-84 (Oscar S. Gray ed. 1986).
In 1926, the Virginia Supreme Court applied equitable tolling to the state’s Workmen’s Compensation Act, even though the statute contained a substantive limitations clause. The court rejected the distinction between types of statutes as precluding tolling:
Independently of statutes of limitation, or of jurisdiction as determined by statutes fixing the time within which applications for hearing shall be filed, in a court of equity, when one by his acts, or by his silence or through culpable negligence induces another to believe certain facts to exist, and such other rightfully relies and acts upon such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts, es-toppel arises.
American Mut. Liab. Ins. Co. v. Hamilton, 145 Va. 391, 403, 135 S.E. 21, 24 (1926).
The District Court for the Eastern District of Virginia applied these principles to the Virginia wrongful death statute and held that equitable estoppel would toll that statute. Beverage v. Harvey, 456 F.Supp. 1044, 1046 (E.D.Va.1978), aff'd on other grounds, 602 F.2d 657 (4th Cir.1979).
Kentucky Central mistakenly relies on Dodson v. Potomac Mack Sales & Service, Inc., 241 Va. 89, 400 S.E.2d 178 (1991), for the proposition that the wrongful death limitation cannot be tolled. Dodson dealt with the conflict between the general tolling statute for nonsuits and the specific tolling statute for the abatement of a wrongful death action, holding that the general statute did not apply to wrongful death actions. 241 Va. at 95, 400 S.E.2d at 180-81. Dodson had nothing to do with equitable estoppel or fraudulent concealment, and its language cannot be read out of context to bar equitable tolling.
In American Mutual, the Virginia Supreme Court rejected an argument similar to Kentucky Central’s, saying that an earlier opinion describing the wrongful death limitations as substantive and consequently subject to demurrer was not authority for denying the tolling of a similar substantive limitation in the Workmen’s Compensation Act. The Court aptly observed that the earlier wrongful death case did not “deal with the question of legal fraud and estop-pel.” 145 Va. at 404, 135 S.E. at 25.
The rule of American Mutual and Beverage applies here, and we hold that the limitations provision of the Virginia Wrongful Death Act is subject to tolling by equitable estoppel or fraudulent concealment. To deny tolling would lead to unjust results. For example, denial would enable a murderer to escape civil liability by concealing his identity or the nature of his crime until the expiration of the period of limitations.
II
An insurance company has “the duty to use reasonable care not to issue a policy of life insurance in favor of a beneficiary who has no interest in the continuation of the life of the insured.” Liberty Nat’l Life Ins. Co. v. Weldon, 267 Ala. 171, 185, 100 So.2d 696, 708 (1957). Breach of the duty is the proximate cause of the death of the insured if the trier of fact finds that this result was reasonably foreseeable. Weldon, 267 Ala. at 188-89, 100 So.2d at 709-11; accord Ramey v. Carolina Life Ins. Co., 244 S.C. 16, 26-27, 135 S.E.2d 362, 367-68 (1964). The same principles apply to a change of beneficiary. Bacon v. Federal Kemper Life Assurance Co., 400 Mass. 850, 855, 512 N.E.2d 941, 944 (1987) (dictum).
On September 14,1983, David Fisher met with Kenneth Tietsort, a Charlotte insurance agent who represented Kentucky Central, to procure insurance on the life of David Wilkey, Fisher’s 18-year-old employee. Fisher applied for a $50,000 life insurance policy on Wilkey, with provision for an additional $50,000 in coverage in case of accidental death. Tietsort, in violation of company policy, accepted the application even though he knew Fisher had no insurable interest in Wilkey’s life. Tietsort certified that he had witnessed Wilkey’s signature on the application, that he had known Wilkey for a month, and that Fisher was Wilkey’s guardian.
On September 22, Kentucky Central disapproved the application because of Fisher’s lack of an insurable interest. Tietsort, however, suggested to Fisher that Wilkey’s estate could be named as beneficiary for purposes of approval and that Fisher could be designated as beneficiary after the policy was approved. Once again, Tietsort signed as having witnessed Wilkey’s signature on the amended application. On September 27, Kentucky Central issued the policy, naming Fisher as the owner of the policy and Wilkey’s estate as beneficiary. Fisher and Tietsort promptly began the process of designating Fisher as the beneficiary, and the change was approved on October 24. Whether Tietsort truthfully certified that he witnessed Wilkey’s signatures is questionable because of Tietsort’s conflicting statements.
On November 21, Fisher lured Wilkey to rural Bedford County, Virginia, on the pretext of a hunting trip, where Robert Mulligan, another employee of Fisher’s shot him in the back, killing him. The death was reported as a hunting accident.
On January 9, 1984, Fisher filed a claim for $100,000. Tietsort first told the independent investigator whom the company had hired that he saw Wilkey when the applications were signed. Later he changed his statement, admitting that he had not seen Wilkey then. He later testified, however, that he saw Wilkey when the form for the change of beneficiary was signed. He described the man he saw, but Wilkey’s mother averred that this description does not fit Wilkey. The company’s investigator, after conducting a follow-up investigation of Tietsort, reported to the company: “I would like to stress that your agent, Kenneth Darren Tietsort, has not ever seen David William Wilkey.” The investigator repudiated his report when he testified, stating that he meant that Tiet-sort had not seen Wilkey when Fisher applied for the insurance.
The company ignored two letters from Wilkey’s mother, who requested information about the policy and furnished evidence about Fisher's actions after Wilkey's death. Despite a written request, the company declined to furnish documentary information from its file to the Commonwealth’s Attorney of Bedford County. On May 18, 1984, it settled with Fisher for $25,000.
In 1986, the Federal Bureau of Investigation learned that Fisher had revealed to an informant his role in Wilkey’s death. The FBI then obtained the company’s file. As a result, Fisher was convicted of the murder in 1987 and sentenced to death. See Fisher v. Commonwealth, 236 Va. 403, 418, 374 S.E.2d 46, 55 (1988).
Within two years after Fisher’s conviction, Wilkey’s administrator brought this action against Kentucky Central. Wilkey died on November 21, 1983. Fisher was indicted on November 5, 1986, and convicted on July 15, 1987. The administrator brought this action on August 3, 1988. Thus, nothing else appearing, the wrongful death action would unquestionably be time barred by Virginia’s two-year statute.
Ill
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact_” Fed.R.Civ.P. 56(c). It is not appropriate if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), nor is it appropriate “even where there is no dispute as to the evidentiary facts but only as to the conclusions to be drawn therefrom.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). Where the party opposing summary judgment would have the burden of proof at trial, that party is entitled
to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered.
Charbonnages, 597 F.2d at 414. Where states of mind are decisive as elements of a claim or defense, summary judgment ordinarily will not lie. Charbonnages, 597 F.2d at 414. Summary judgment is appropriate if the nonmoving parly fails to make a showing sufficient to establish the elements necessary to his or her case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A party seeking summary judgment has the initial burden of showing the information that it believes demonstrates absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. We review the summary judgment de novo, applying the same standard as that applied by the district court. Felty v. GravesHumphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.1987).
The elements of equitable estoppel in Virginia are: (1) misrepresentation or concealment of a material fact, (2) made with knowledge of the true state of facts (3) to a party ignorant of the truth of the matter misrepresented or concealed and (4) with the intention that the other party should act in reliance upon it, and (5) which does induce the other party to act on it, (6) to the injury of the relying party. Beverage v. Harvey, 602 F.2d 657, 659-60 (4th Cir.1979); American Mut. Liab. Ins. Co. v. Hamilton, 145 Va. 391, 407-08, 135 S.E. 21, 25-26 (1926). Equitable estoppel and fraudulent concealment are similar, although equitable estoppel does not require proof of fraud. Barry v. Donnelly, 781 F.2d 1040, 1042-43 (4th Cir.1986). Wilkey’s administrator has the burden of proving equitable estoppel by “clear, precise and unequivocal evidence.” Employers Commercial Union Ins. Co. v. Great Am. Ins. Co., 214 Va. 410, 415, 200 S.E.2d 560, 564 (1973). In Employers, this burden was satisfied by evidence that an insurance company through its silence and inaction led its insured to believe he had coverage. 214 Va. at 415, 200 S.E.2d at 564.
IV
The crux of this controversy is the dual role the company’s agent played. Tiet-sort’s conduct in issuing the policy and facilitating the change of beneficiary exposed Kentucky Central to liability for negligently changing the beneficiary. Tietsort knew Fisher was paying half the premiums. But by naming Fisher the policy owner, Tietsort enabled Fisher to change the beneficiary without Wilkey’s knowledge or consent. Tietsort’s conduct also furnished a motive for Fisher by enabling him to profit from Wilkey’s murder. The company was well aware of the dual aspect of its agent’s activity, which officers of the company described as a “dilemma” — divulging information about Fisher’s motive would result in subjecting the company to liability to Wilkey’s estate. A memorandum disclosed a company officer’s analysis of the situation as follows:
We have a dilemma in this death claim in which the company could be forced to pay the $100,000 claim to the beneficiary, and still be exposed to liability in the millions for wrongful issue of the policy.
******
The local prosecutor has just recently reopened a criminal investigation upon learning of the life insurance, and has asked for a copy of our file. While his subpoena powers do not reach us here in Kentucky, he might obtain the file from our investigator who happened to have it in hand while looking into the case in Roanoke, or the insurance departments of either Virginia or North Carolina could force us to produce it. The dilemma arises in that while we might like to prove that Fisher had the insured killed (thereby disqualifying him from recovery) the insured’s father and mother would then have a good tort claim against the company. Unless we could have the policy declared void for fraud, we would still have to pay the insured’s estate the policy benefits.
Consequently the company purposely withheld the information it alone possessed about the policy.
To establish estoppel, Wilkey’s administrator points to three actions by Kentucky Central: its silence when Wilkey’s mother sought information, its temporizing response to the Commonwealth’s Attorney, and its payment of $25,000 to Fisher in settlement of a claim it had cause to suspect was false and felonious. Proof at trial that any one of these actions was taken to conceal facts of which the company was aware, coupled with proof of the other elements of estoppel, would be sufficient to estop Kentucky Central from relying on the statute of limitations.
In rebuttal, Kentucky Central argues that it owed no duty to speak to Wilkey’s mother or the Commonwealth’s Attorney. It argues that under the circumstances “mere silence” cannot be the basis for equitable estoppel or fraudulent concealment. It asserts that its settlement with Fisher was appropriate and was made in good faith.
A
The company’s argument that as a matter of law it owed no duty to Wilkey’s mother rests on the premise that she had no interest in the policy. But this premise can only be validated by resolving all disputed facts and inferences in favor of the company, contrary to the principles governing summary judgment. Tietsort claims Wilkey gave his consent to naming Fisher the beneficiary. But according to an affidavit Wilkey’s mother filed, the man Tietsort described as Wilkey did not look like Wilkey. If Tietsort’s certifications to the company were truthful, and if the man described by Tietsort when the change of beneficiary was made was not Wilkey, Wil-key’s mother would have an interest in the policy. But these disputed facts cannot be resolved in favor of the company at this stage of the proceedings. If Wilkey’s mother had an interest in a valid policy issued to Wilkey’s estate, her interest could not be defeated by a fraudulent change of beneficiary in which the company’s agent knowingly participated. If the trier of fact resolves the facts and inferences drawn from them in favor of Wilkey’s mother, she had an interest in the policy on her son’s life and the company owed her the duty to respond to her questions about her son’s signature and Fisher’s claims.
At least one Virginia case, by implication, recognized an insurance company’s duty to inform an insured about the status of his policy. Breach of the duty by silence and inaction estopped the company from relying on its insured’s false answers to deny him coverage. See Employers Commercial Union Ins. Co. v. Great Am. Ins. Co., 214 Va. 410, 200 S.E.2d 560 (1973). As a practical matter, after the death of an insured, a potential beneficiary has an interest in the policy as significant as that of the insured in Employers. Relying by analogy on Employers, we conclude that a company has a duty to furnish information about a policy to a potential beneficiary unless the company has reasonable grounds for withholding the information. The reasonableness of Kentucky Central’s refusal to respond to Wilkey’s mother raises a question for the jury.
Contrary to Kentucky Central’s position, Virginia has long recognized that “even silence” can trigger estoppel. See Chesapeake & O. Ry. Co. v. Walker, 100 Va. 69, 91, 40 S.E. 633, 641 (1902). In Cantrell v. Booher, 201 Va. 649, 112 S.E.2d 883 (1960), the court quoted with approval the following principle of law:
In general, a person is required to speak only when common honesty or fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or is about to act as he would not otherwise.
201 Va. at 645, 112 S.E.2d at 887. Whether Kentucky Central’s intent and knowledge entitle the administrator to the benefit of this principle presents a question for the jury. See Charbonnages, 597 F.2d at 414.
Further, we believe there is a jury question whether the company owed a duty to Wilkey’s mother, as a potential beneficiary or distributee of the proceeds of the policy, to apprise her of the facts necessary to perfect her claim. It is true that at the time the company declined to furnish Wilkey’s mother the information she sought, Fisher had not been convicted. But the Slayer Statute did not extinguish the principles of the common law in North Carolina. When proof by a preponderance of the evidence discloses that a beneficiary caused the death of an insured, the common law bars the beneficiary from recovering the proceeds even in the absence of a conviction. Jones v. All Am. Life Ins. Co., 312 N.C. 725, 728, 325 S.E.2d 237, 239 (1985). A beneficiary can be barred from receiving the proceeds upon proof of culpable negligence that caused the death of the insured. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975). When a beneficiary is barred from receiving proceeds by reason of involvement in the death of the insured, the proceeds by common law become payable to the administrator of the insured’s estate unless the policy provides otherwise. Bullock v. Expressmen’s Mut. Life Ins. Co., 234 N.C. 254, 258, 67 S.E.2d 71, 75 (1951). See also Restatement of Restitution § 189 cmt. a (1937). Cases in other jurisdictions have described this situation as imposing a trust on the insurer for the benefit of the insured’s estate. National Life Ins. Co. v. Hood’s Adm’r, 264 Ky. 516, 522, 94 S.W.2d 1022, 1025 (1936). Accord Johnston v. Metropolitan Life Ins. Co., 85 W.Va. 70, 73, 100 S.E. 865, 867 (1919).
An insurer faced with potential conflicting claims by a possible slayer and the insured’s estate may absolve itself of excess liability by paying the proceeds into the registry of the court and filing an action in interpleader to determine the proper recipient. See, e.g., Prudential Ins. Co. v. Tull, 690 F.2d 848, 849 (4th Cir.1982). In these circumstances, we believe that a jury might conclude that, at the time the company received Wilkey’s mother’s letter, it had sufficient facts in its possession to alert it to its duty to preserve the proceeds of the policy and cooperate with her to establish its proper liability under the contract. Under these circumstances, the company’s silence would constitute an act of concealment.
Wilkey’s mother stated in an affidavit that she did not learn about the payment to Fisher until his criminal trial. Had she known about the payment and the other facts relevant to the issuance of the policy and change of beneficiary disclosing Fisher’s motive, she would have brought this lawsuit many years before. At this stage of the proceedings, we must credit her affidavit.
B
Kentucky Central was not content to rely on silence when the Commonwealth’s Attorney sought information well within the limitations period. Instead, the company told the Commonwealth’s Attorney that “privacy laws” prohibited it from furnishing him the information he sought. The company has cited no privacy laws to which it referred, and the administrator asserts that none exist. The company’s explanation that it had a good faith belief that it should protect Fisher’s privacy, and the administrator’s charge that the excuse of “privacy laws” was a ploy to divert the Commonwealth’s Attorney’s inquiry, raise a genuine issue of material fact. This is readily apparent from a note written by a company officer observing that the Commonwealth’s Attorney did not understand that “the more we implicate Fisher in the killing, the more we could be liable to heirs for tort based on improper issue of the policy.” If the facts as developed at trial show that Kentucky Central’s claim of privacy laws was not its real reason for withholding information, the company committed an affirmative act. Affirmative acts in the context of estoppel take many forms. See Chesapeake & O. Ry. Co. v. Walker, 100 Va. 69, 91, 40 S.E. 633, 641 (1902). An affirmative act done to prevent another from learning of a fact constitutes concealment amounting to misrepresentation. See Restatement (Second) of Contracts § 160 (1979). Assertion of the existence of a fact constitutes “a misrepresentation if the fact does not exist.” Restatement (Second) of Torts § 525(b) (1976). In short, Kentucky Central, having elected to speak to the Commonwealth’s Attorney, was required not to mislead him. See W. Page Keeton, et al., Prosser & Keeton on the Law of Torts 737-38 (5th ed. 1984).
The Commonwealth’s Attorney stated in an affidavit that because of the company’s refusal to cooperate he was unable to proceed further in 1984 with his investigation of Wilkey’s death. He also stated that the information that had been suppressed by the company was ultimately very important in obtaining Fisher’s conviction. The Supreme Court of Virginia took note of this situation, saying: “In 1984, the Commonwealth’s Attorney of Bedford County had undertaken an investigation of the killing, but had been unable to proceed further because of the insurance company’s refusal to cooperate.” Fisher v. Commonwealth, 236 Va. 403, 409 n. 1, 374 S.E.2d 46, 50 n. 1 (1988).
Given the credence to which it is entitled at this stage of the proceedings, the affidavit of the Commonwealth’s Attorney establishes that Kentucky Central’s concealment of information induced him to take no action, to his detriment and that of the public and Wilkey’s estate. “[W]hen one has lulled another into inaction to his detriment, the latter may invoke estoppel against the former.” Lataif v. Commercial Industr. Constr., Inc., 223 Va. 59, 64, 286 S.E.2d 159, 161 (1982).
C
The district court characterized Kentucky Central’s settlement with Fisher as “a good-faith settlement payment to the beneficiary of record.” 747 F.Supp. at 1199. The company argues that it paid the settlement because “it was unable to uncover any evidence which would allow it to deny Fisher’s claim on the theory that Wil-key was murdered.” Br. of Appellee at 28. Wilkey’s administrator characterizes the payment as “in effect, ‘hush money.’ ” Br. of Appellant at 33.
Fisher threatened to sue the company or take his complaint to the insurance commissioner, and the company resolved to settle his claim. It engaged an outside attorney to evaluate the claim and conduct settlement negotiations. A company official stated in a memo that the attorney “strongly feels” that Fisher had Wilkey murdered. The attorney recommended that the company settle with Wilkey’s parents and then “cooperate 100%” with the Commonwealth’s Attorney to “nail Fisher and Mulligan.” The attorney also said that he had consulted with attorneys at Pilot Life Insurance Company, where he formerly had been general counsel, and that they agreed.
The company rejected its attorney’s advice and directed him to settle with Fisher by a payment of not more than $25,000. The attorney confronted Fisher with facts that indicated murder, and Fisher accepted $25,000 in full settlement, stating that he would deposit the money in a bank account under another person’s name.
We cannot agree with the district court that as a matter of law the settlement with Fisher was made in good faith. If, as the administrator contends, the settlement was made to conceal information from Wilkey’s mother and the Commonwealth’s Attorney about the issuance of the policy and change of beneficiary, it was an affirmative act of concealment.
A case in point is Thompson v. Continental Assurance Co., 99 Ill.App.3d 303, 55 Ill.Dec. 217, 426 N.E.2d 1 (1981), which concerned an insurance company that paid policy proceeds to a beneficiary whom it knew police suspected of murdering the insured. The Illinois Court of Appeals held that such payment did not amount to bad faith as a matter of law. 99 Ill.App.3d at 305, 55 Ill.Dec. at 218-219, 426 N.E.2d at 2-3. Bad faith, which could be shown if “prudent investigation would have uncovered facts which would have defeated the beneficiary’s claim,” remained an “open question” for the jury despite the company’s plea that it had paid the proceeds to the named beneficiary. If the payment was made in bad faith, the court held, the company would remain liable to the victim’s heirs for the full policy amount. 99 Ill.App.3d at 305, 55 Ill.Dec. at 219, 426 N.E.2d at 3. Here, too, it is properly a jury question whether Kentucky Central acted in good faith when it settled with Fisher.
D
There remains the issue whether Wilkey’s estate, and particularly Wilkey’s mother, as a matter of law failed to pursue their claim with due diligence. Due diligence has been defined as:
“Such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.”... Whether such due diligence has been exercised must be ascertained by an examination of the facts and circumstances unique to each case.
STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 144-45, 393 S.E.2d 394, 397 (1990) (citation omitted). Plaintiffs will not be held wanting in diligence where defendants’ “conduct concealed the true nature of their fraudulent acts.” 240 Va. at 145, 393 S.E.2d at 397. However, due diligence is not shown by “[m]ere ‘informal contacts’ ” with governmental authorities if the information is readily available through “routine methods,” Dennis v. Jones, 240 Va. 12, 19, 393 S.E.2d 390, 393-94 (1990), nor by an “unpursued inquiry,” Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 219 (4th Cir.1987).
We must take into account the circumstances of Wilkey’s mother in the months following his murder. She had little information and few financial resources, and she lived far from the scene of the murder and the offices of Kentucky Central. Nonetheless, she wrote twice to the company asking for relevant information. She gathered highly suggestive evidence in the form of a letter from Wilkey’s girlfriend and made it available to the company. She convinced the local prosecutor to reopen his investigation into the hunting “accident.” Through no fault of hers, the Commonwealth’s Attorney was frustrated by the company’s response to his request for help. Wilkey’s administrator brought suit in timely fashion after Fisher’s trial revealed the facts giving rise to this claim.
It is no simple task to investigate either a murder or the acts of an insurance agent who changed a policy on the insured’s life under questionable circumstances to name the murderer the beneficiary. The task is exceedingly difficult when the person charged with using diligence lives far away with limited resources. A mother whose son has been killed may of necessity and common sense seek assistance from the company that insured her son’s life and the public official charged with the investigation and prosecution of crime. Whether Wilkey’s mother acted prudently and reasonably is a question for the jury.
In sum, we conclude that Wilkey’s administrator presented a triable claim of es-toppel. See Charbonnages, 597 F.2d at 414.
V
Wilkey’s administrator also asserts a claim to the proceeds of the insurance policy pursuant to the North Carolina Slayer Statute, N.C.Gen.Stat. § 31A-11 (1984). North Carolina law is applicable because the policy was issued there. The parties are in agreement, and the district court held, that the proceeds of an insurance policy on the life of the victim that the slayer would have received are payable to the victim’s estate.
Kentucky Central asserts that the claim is barred by the three-year statute of limitations applicable to contracts and that this limitation is not tolled by the Slayer Statute.
The district court granted summary judgment, ruling that North Carolina’s three-year statute of limitations applicable to contracts barred Wilkey’s administrator from recovering the proceeds. It also ruled that the policy was procured by fraud and that the company’s good faith settlement with Fisher absolved the company from further liability on the policy. 747 F.Supp. at 1201-02.
For reasons stated in the discussion of estoppel with respect to the action for wrongful
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_appfiduc
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BEMIS BROS. BAG CO. v. UNITED STATES.
No. 9415.
Circuit Court of Appeals, Eighth Circuit.
Aug. 29, 1932.
Rehearing Denied Sept. 30, 1932.
Abraham Lowenhaupt, of St. Louis, Mo. (Spencer M. Thomas and Lowenhaupt & Waite, all of St. Louis, Mo., on the brief), for appellant.
Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C, (Louis H. Breuer, IT. S. Atty., of Rolla, Mo., Claude M. Crooks, Asst. U. S. Atty., of St. Louis, Mo., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellee.
Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.
NORDBYE, District Judge.
This action was brought to recover income and excess profits taxes paid by appellant for the years 1918 and 1919. The collector to whom the taxes were paid having gone out of office, the action was brought directly against the United States. The action was tried to the court without a jury on an agreed statement of facts. The only question presented to the lower court was whether or not the plaintiff in its claim for refund, at any time before the running of the statute of .limitations, stated the facts or grounds upon which it asserted its right to a refund.
Paragraph 18 of the stipulation provides as follows:
'■'!£ the appellant within the time provided by law, filed claims for refund for the years 1918 and 1919 respectively, which under the law were sufficient to be the required preliminary for the maintenance of this action on that ground, above stated, then appellant may he entitled to judgment for the year 1918 in the amount of $14,054.18, with interest, and for the year 1919 in the amount of $9,073.15, with interest.
“If the elaims for refund filed by the appellant for the years 1918 and 1919 respectively, were not sufficient under the law to be the required preliminary for the maintenance of this action on that ground, the appellee will be entitled to judgment dismissing this action.”
The appellant on February 2-9, 1924, filed its claim for refund for 1918 of $1,270,907.97, and on December 12, 1924, its claim for refund for 1919 in the sum of $606,546.13. These elaims for refund were based on the contention that the excess profits tax and war profits tax should be assessed under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40' Stat. 1.093). These sections are relief statutes enacted for the purpose of relieving' a taxpayer from an excessive tax. Provision is made in section 327 for eases where the Commissioner is unable to determine the invested capital of the taxpayer, and in section 328 it is provided that “in the cases specified in section 327 the tax shall be the amount which bears the same ratio to the net income of the taxpayer (in excess of the specific exemption of $3,000) for the taxable year, as the average tax of representative corporations engaged in a like or similar trade or business, bears to their average net income (in excess of the specific exemption of $3,000) for such year.”
In filing its elaims for refund for the years 1918 and 1919, reference was made to a brief theretofore filed in support of the claim for refund for the 1917 taxes, and an additional brief was filed in support of the elaims for refund for the years 1918 and 1919. The claim for refund for the year 1918 stated the following:
“Deponent verily believes that this application should be allowed for the following reasons: The Excess Profits Tax and War Profits Tax against this company for the year 1918 should he assessed under the provisions of sections 327 and 328 of the Revenue Act of 1918.
“The facts and argument in support of this claim are contained in a brief, duly verified, which has been filed with the Commissioner of Internal Revenue, in support of a claim for refund made in connection with the company’s return for 1917 and the tax paid thereon. The facts and circumstances which entitle the company to assessment under said sections for 1917 obtained also in 1918. In order to simplify matter and avoid repetition, the brief filed with the claim for refund for 1917 (a copy of which brief is attached hereto) by reference thereto is made a part of this claim.”
The brief attached to the claim for refund and by reference made a part of it states as follows:
“In Re: Claim of Bemis Bro. Bag Company for Refund of Taxes for the Year 1917 Based Upon Right to Special Assessment.
“To the honorable Commissioner of Internal Revenue, Washington, D. C.:
“Bemis Bro. Bag Company has heretofore filed its claim for refund of taxes for the year 1917, based upon the right to assessment of its Excess Profits Taxes under section 210 of the Reverme Act of 1917. It now desires to elaborate and present in detail the reasons why its Excess Profits Tax for said year should be so determined.
“Statement. — The facts are hereafter stated in the order and under the subdivision above written.
“I. Reasons Why the Tax Should be so Determined and the Facts Upon which Such Reasons Are Based.
“V. Relief Sought.
“Relying upon the sufficiency of the facts above recited to entitle it to the assessment of its Excess Profits Tax liability under the provisions of section 210 of the Revenue Act of 1917,’Bemis Bro. Bag Company has heretofore presented a claim for refund for the year 1917.”
A similar statement and a. similar reference to the 1917 brief was used in filing the claim for refund for the year 1919.
The appellant in filing its claim for refund for the years in question, in the brief above referred to, attempted to set forth in substantiation of its claim, the fact that injustice would be done if it were not permitted to receive the benefit of the special assessment provided in sections 327 and 328 of the 1918 Revenue Act. It proceeded to set forth in detail the various phases of its business which made it difficult to determine the values of the several classes of property that were paid in for* stock. It is quite apparent that the appellant was concerned over the large tax it was required to pay to the government, and felt that t}ie relation of its income to its invested capital was strikingly abnormal. It set out a large number of reasons why it was entitled to a tax based on a comparison with representative corporations engaged in a like or similar business. Instances were cited of the accounting policy of the company in previous years where expenditures were charged to expense or profit and loss, when good accountancy would have justified the capitalization thereof. As an example of the conservative methods employed by the company, reference was made to certain printing plates which are used for the purpose of printing the various brands on the bags that are manufactured by the appellant. That is, the appellant is equipped to print upon the bags manufactured, the user’s brands. During the years it has been in business, it has accumulated a large amount of printing sets for the printing of user’s brands, which it contended were reasonably worth $851,375.50. The value was according to the taxpayer something more than the mere consideration of bare labor and material that went into the manufacture of the printing set. It represented the results of alert business solicitation and advertising with years of service that has been rendered by it to its customers; consequently, it contended in this presentation to the Commissioner, that the printing equipment represented an accumulation of years of good will, and although expense had been eharg'ed from year to year for the actual outlay for labor and material, no portion of this value had ever been added to the invested capital.
The facts concerning the original incorporation of the company and the early history of the corporation were presented to substantiate the failure! on the part of the company to capitalize its good will in the proper amount. New’plants, it was contended, had been obtained from time to time, and no good will value was set up on the books for the different properties that were acquired in the long period of time that it had been engaged in the manufacturing business. Failure to properly capitalize certain patent rights was also set forth in the taxpayer’s brief. Not ail the various items which were incapable of proper valuation and which should have gone into capital were set forth. It was merely the intention of the taxpayer* as disclosed by its brief, to throw some light upon what appeared to be abnormal profits upon which it was assessed; and it was contended by the taxpayer that the showing made entitled it to the special assessment that it requested. In other words, the various phases of the business of the taxpayer were set forth in order that the Commissioner would be convinced that the large taxes that had been assessed arose on account of under-capitalization, rather than excessive profits.
Section 156, title 26, USCA provides that: “No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of, any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof. * * * ”
The statute of limitations applicable fixes the time for filing such claim at four years after the payment of any part of the taxes. The claims filed on February 29, 1924, and December 32, 3924, were timely, and were duly considered by the Commissioner on,their merits. On October 30, 1926, a communication was sent by the Treasury Department to the taxpayer, a portion of which reads as follows:
“You are advised that after careful consideration and review your application under the provisions of section; 327 of the Revenue Act of 1918 has been denied for the reason that the evidence presented fails to establish that your invested capital or net income is affected by abnormal conditions which would justify the Bureau in computing your tax under the provisions of section 328 of the above mentioned Act.
“In accordance with the above conclusions, your claim for refund; will be rejected in full.”
On November 27, 3.926, a second communication was sent by the Treasury Department to the taxpayer, a portion of which reads as follows:
“After careful consideration and review, your application under provisions of sections 210 and 327 of the Revenue Acts of 1917 and 1918 for assessment of your profits tax as prescribed in sections 210 and 328 of the above mentioned Acts has been denied, inasmuch as the audit disclosed no exceptional hardship evidenced by gross disproportion between the tax computed by reference to representative concerns specified in sections 210 and 328.
“In accordance with the above conclusions, your claims for refund of $1,770,104.23 and $35,355.79 for 1917 and $1,270,907.97 for 1918 will bo rejected in full.”
It is clear that the claim for special assessment for the years 193 8 and 1919 wa,s re jeeted by those letters. On' December 13, 1926, after the statute of limitations had run on these claims, tho appellant sent to the Commissioner a communication referring to tho rejection, and among other things said:
“We protest against the rejection of said claims for refund for the following reasons:
“(a) The excess profits tax against tho Company for the year 193.7 should ho determined under section 239 of the Revenue Act of 1917 and the excess profits and war profits taxes for the years 1918 and 19.19 should bo determined under section 328 of the Revenue Act of 1918. The denial of said right must be based upon the use of improper comparatives as representative.
“(b) If the assessment of the excess profits taxes against the Company in the manner claimed in the above subdivision is denied, then tho items heretofore presented which have been improperly eliminated from invested capital should ho restored to invested capital and tho excess profits tax recalculated on that basis.”
Uui ther communication was sent by the taxpayer under date of April 12, 1927. Under date of December 17, 1927, the Commissioner wrote advising that the claims for the years 3917, 1918, and 1919' had been reconsidered in connection with the taxpayer’s protest, and the entire matter was then reviewed by the Commissioner, and the following is a portion of the communication so sent:
“In view of the above, your claim for the refund of $35,355.79, income and profits taxes for 3917, will be allowed for $32,675.42 and your claim for the refunding of $1,770,-.104.23 for 19.17 will be rejected in full, in the next schedule to be approved by the Commissioner.
“Inasmuch as computation of your tax li-sbi lity for 1918 and 3 919 under the provisions of sections 327 and 328¡ of the Revenue Act of 1918 (provision for special assessment) is denied and your claim for tho refunding of $1,270,907.97 for 1918 is confined to that point, it will be rejected in full in the next schedule to be approved by the Commissioner.
“Your claim for the computation of your tax liability for 1919 under the provisions of sections 327 and 328 has already been rejected.
“Tho over-assessments indicated for 1918 and 19.1.9 not being covered by proper claims are barred by the Statute of Limitations and cannot be allowed.”
In the review that was made by the Commissioner, the printing equipment items were considered, and it was determined by the Commissioner that the stereo metal used in producing the patterns and plates should be capitalized at cost in that it had a life of some years. The following is quoted from tho Commissioner’s letter of December 17, 1927: “Your contention for the restoration of printing equipment charged to expense in tho amount of $851,375.50, has been given careful consideration and it is found that all labor costs and material costs for patterns, plates, type and mats are charged directly to expense accounts in the current taxable years and it is believed such charges are proper. However, the stereo metal used in producing the patterns and plates inasmuch as it has a life of several years should be capitalized at cost. The average cost of such metal from 1905 to 1916, inclusive, is $.0893 per pound. The average cost for a term of years prior to 1917 should be used instead of the average cost subsequent to that date, in determining the value of such metal on hand January 1, 1917.”
The Commissioner then determined that the amount of $129,372.93 should be restored to printing equipment, and that the balance of the $851,375.50, or $722,002.57, should be disallowed for restoration to invested capital on the ground that it had been properly charged to expense. In making his computations, the Commissioner found that, after restoring the amount of $129,372.93 to the printing equipment, there had been an over-assessment of $14,054.18 in the tax paid for the year 1918, and $9,073.15 in the tax paid in the year 1919. The overassessments for the year 1917 were allowed; however, for the years 1918 and 1919 they were disallowed by the Commissioner because he contended that no proper claims had been filed before these claims were barred by the statute of limitations.
The fact that the Commissioner took it upon himself in considering the 1917, 1918, and 1919 taxes,/to reconsider the entire application, would not be of any avail to the appellant if in truth and in fact, the claim for refund sued upon herein was not filed with the Commissioner within the statutory period. It is not seriously contended by the appellant that the Commissioner waived any rights of the government by his communication of December 17,1927., The Commissioner would have no authority to extend the statute of limitations after the expiration thereof. The letter of December 13,1926, from the appellant to the Commissioner was written after the claims filed in 1924 were denied and after the statute of limitations had expired. The only question, therefore, presented to this court is whether or not the claims for refund filed by appellant on February 29,1924, and December 12,1924, were sufficient, under the law, to be the required preliminary for the maintenance of this action, whieh is based on overpayment of its taxes for 1918 and 1919 on the grounds that its invested capital is a larger amount than was set forth in its return for those years. The trial court held that the original application asked for a special assessment, and, in its application for special assessment, there was no indication that the taxpayer contended that it was entitled to a reduction of its taxes on the ground that there waá certain printing material that should have been added to its invested capital. In other words, the trial court held that this action is based upon a new and inconsistent ground compared to the original application for tax refund, and that for the reason that the original claim for refund did not state the grounds which are the basis for this suit, that no recovery can be had herein.
In the case of Tucker v. Alexander (C. C. A.) 15 F.(2d) 356, 357, the court stated: “Therefore, we think it is a required precedent or limitation that the action shall be upon the same grounds and only such as are presented in the claim. As no ground in this petition is stated in the claim for refund, we think this petition has no standing under the issues tendered by the petition.”
In the case of Red Wing Malting Co. v. Willcuts (C. C. A.) 15 F.(2d) 626, 634, 49 A. L. R. 459, the court stated: “The precise ground upon whieh the refund is demanded must be stated in the application to the Commissioner, and we think, if that is not done, a party cannot base a recovery in the court upon an entirely different and distinct ground from that presented to the Commissioner.”
In the case of United States v. Felt & Tarrant Manufacturing Company, 283 U. S. 269, 51 S. Ct. 376, 75 L. Ed. 1025, the Supreme Court had a very similar question presented to it. In that ease,-the taxpayer filed a claim for refund asking for special assessment as in the instant ease. This was denied and it brought suit on the basis that its gross income should be decreased by items of exhaustion or obsolescence of patents. The Supreme Court said on page 271 of 283 U. S., 51 S. Ct. 376, 377, 75 L. Ed. 1025:
“That section provides for a special method of assessment of excess profits taxes in any case where the Secretary of the Treasury is unable satisfactorily to determine the invested capital of the taxpayer. It has no relation to deductions from gross income on account of exhaustion or obsolescence of patents. In support of its claim, which was ultimately allowed in part, respondent prepared and filed a brief, and an oral argument was held in the officq of the Commissioner; but neither in its claim for refund, its brief, nor at the hearing, was mention made of the deduction now claimed.
“The filing of a claim or demand as a prerequisite to a suit to recover taxes paid is a familiar provision of the revenue laws, compliance with whieh may be insisted upon by the defendant, whether the collector or the United States. Tucker v. Alexander, 275 U. S. 228, 48 S. Ct. 45, 72 L. Ed. 253; Maryland Casualty Co. v. United States, 251 U. S. 342, 353, 354, 40 S. Ct. 155, 64 L. Ed. 297; Kings County Savings Institution v. Blair, 116 U. S. 200, 6 S. Ct. 353, 29 L. Ed. 657; Nichols v. United States, 7 Wall. 122, 130, 19 L. Ed. 125.
“One object of such requirements is to advise the appropriate officials of the demands or claims intended to he asserted, so as to insure an orderly administration of the revenue, Nichols v. United States, supra, page 130 of 7 Wall. [19 L. Ed. 125], a purpose not accomplished with respect to the present demand by the bare declaration in respondent’s claim that it was filed ‘to protect all possible legal rights of the taxpayer.’ The claim for refund which section 1338 [26 USCA § 156] makes prerequisite to suit, obviously relates to the claim which may he asserted by the suit. Hence, quite apart from the provisions of the Regulation, the statute is not satisfied by the filing of a paper which gives no notice of the amount or nature of the elaim for which tho suit is brought, and refera to no facts upon which it may be founded.
“The Court of Claims, in allowing recovery, relied upon Tucker v. Alexander, supra, and upon the fact that, at the time when respondent filed its return and its claim for refund, the Treasury had consistently refused to allow deductions from gross income for exhaustion of patents. Consequently it held that the filing of a demand which was certain to he refused was a futile and unnecessary act. But in Tucker v. Alexander the right of tho government to insist upon compliance with the statutory requirement was emphasized. Only because that right was recognized was it necessary to decide whether it could bo waived. Tho Court held that it could, and that in that ease it had bean waived by the stipulation of the collector filed in court. Here there was no compliance with the statute, nor was there a waiver of its condition, since the Commissioner had no knowledge of the claim and took no action with respect to it.
“The necessity for filing a claim such as tho statute requires is not dispensed with because the elaim may he rejected. It is the rejection which makes the suit necessary. An anticipated rejection of the elaim, which the statute contemplates, is not a ground for suspending its operation. Even though formal, the condition upon which tho consent to suit is given is defined by the words of tho statute, and ‘they mark the conditions of the claimant’s light.’ Rock Island [A. & L.] R. R. Co. v. United States, 254 U. S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188. Compliance may bo dispensed with by waiver, as an administrative act, Tucker v. Alexander, supra; but it is not within the judicial province to read out of: the statute the requirement of its words, Rand v. United States, 249 U. S. 503, 510, 39 S. Ct. 359, 63 L. Ed. 731.”
The appellant takes the position that in its original claim for refund, the Commissioner had called to his attention all the facts necessary to justify a reduction in its taxes on the basis of increased capital. However, it seems clear that the reference to the printing equipment presented in the original claim for refund was merely used as an illustration of the inability to determine the values of the invested capital in order to substantiate the right of the claimant to have its taxes assessed under sections 32.7 and 328 of the Revenue Act of 1918. It was merely incidental. There is no particular similarity between a elaim for refund based on ai right of special assessment and a elaim for refund based on the right to have the invested capital increased. In fact, the appellant took the position, when its claim for refund was originally presented, that the facts regarding its invested capital and value of property paid in for its stock, could not be determined, and for that reason, it insisted that its tax should he assessed as the average tax of representative corporations engaged in a like or similar trade or business. It may he that there is some confusion between the terms “facts” and “grounds” as used with reference to claims for tax refund. But the purpose in setting out facts is to advise the Commissioner of tho grounds for tax reduction, and the: original claim was predicated solely upon the right of special assessment. Any reference in the elaim to the status of its printing equipment was merely referred to in support of the taxpayer’s right to special assessment. At least, one object of the requirement to set forth the facts in substantiation of tho elaim for refund is to advise the Commissioner so that there may he an orderly administration of tho Revenue Department. United States v. Pelt & Tarrant Mfg. Co., supra. If tho appellant had in mind that it was entitled to a tax reduction on account of increased invested capital, there would have been no difficulty whatsoever in setting forth such a statement and asking for a reduction on such specific ground. The only purpose evidenced by appellant in filing its claims was to obtain a special assessment in view of certain abnormal conditions and circumstances set forth in considerable detail in its brief in support of its claim. The Commission was asked to allow a special assessment. In view of these circumstances, no other claim was presented. The Commission’s attention, before the claim was barred by the statute of limitations, was mot called to any other claim for refund.
The court, in the case of Mutual Life Ins. Co. of New York v. United States, 49 F.(2d) 662, 72 Ct. Cl. 204, seems to have had substantially this same question before it. On page 664 of 49 F.(2d), 72 Ct. Cl. 204, it said: “Although the claim of August 2 stated certain facts with reference to the reserve funds at the beginning and end of the taxable year from which the 4 per cent, of the mean of these reserve funds could be determined, they were stated, considered, and acted upon by the commissioner for an entirely different purpose than that upon which the plaintiff now relies. No claim for refund of the nature asserted in this suit was ever made to the commissioner until the application for reconsideration long after he had rejected the claim and after the statute of limitation for filing a claim had expired.”
The claim for refund was prepared by the attorneys for appellant with considerable care. Great pains were taken in presenting to the Commissioner a voluminous brief in support of its contention tjhat it was entitled to a special assessment. The Commissioner considered appellant’s application for some two years, and then formally denied it. If appellant intended to press a claim for refund before the statute of limitations expired on the grounds that its invested capital should be increased by certain printing equipment, there was no indication of any such intention prior to December 13,1926. The target at which appellant was aiming was the consent of the Commissioner to have its tax assessed according to sections 327 and 328 of the Revenue Act of 1918. The fact that, in aid of that objective, certain facts appeared that might .furnish grounds for a partial refund on an entirely different and inconsistent claim, could hardly be considered a preliminary requirement to a suit for such partial refund. Connell v. Hopkins (D. C.) 43 F.(2d) 773; Lucas v. Pilliod Lumber Co., 281 U. S. 245, 50 S. Ct. 297, 74 L. Ed. 829, 67 A. L. R. 1350; Maas & Waldstein Co. v. United States, 283 U. S. 583, 51 S. Ct. 606, 75 L. Ed. 1285.
In accordance with the views herein expressed, the judgment of the lower court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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songer_adminrev
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O
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
Robert E. MINEHART, Plaintiff-Appellant, v. LOUISVILLE & NASHVILLE RAILROAD CO., Defendant-Appellee.
No. 83-5194.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 20, 1984.
Decided April 6, 1984.
Michael D. Cucullu, Houston, Tex., for plaintiff-appellant.
David Monohan (argued), Fielden Woodward, Louisville, Ky., for defendant-appel-lee.
Before KENNEDY and WELLFORD, Circuit Judges, and RUBIN, District Judge:
The Honorable Carl B. Rubin, Chief Judge, United States District Court for the Southern District of Ohio, sitting by designation.
PER CURIAM.
Plaintiff, Robert E. Minehart, appeals from the district court order dismissing his action against his former employer, Louisville and Nashville Railroad Company (L & N), for alleged retaliatory discharge. Minehart sued L & N in district court seeking damages for personal injuries sustained during the course of his employment. The district court permitted Minehart to supplement his original complaint to allege retaliatory discharge after L & N discharged Minehart on its assertion that he had falsified his employment application by failing to reveal previous “back trouble.”
The district court’s dismissal of the retaliatory discharge claim was premised on the conclusion that his claim was a “minor dispute” under the Railway Labor Act, 45 U.S.C. § 153, and therefore required the filing of a grievance pursuant to the exclusive remedies of that Act. Minehart concedes that he had filed such a grievance which was then and is now presently before the Railroad Adjustment Board.
The pertinent provisions of the Railway Labor Act (RLA) which are applicable in this case, provide:
(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.
(m) The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute. In case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute.
(q) If any employee or group of employees, or any carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award or by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employee or group of employees or carrier may file in any United States district court ..., a petition for review of the division’s or-der____ The Adjustment Board shall file in the court the record of the proceedings on which it based its action. The court shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. The judgment of the court shall be subject to review as provided in sections 1291 and 1254 of Title 28.
45 U.S.C. § 153 First, (i), (m), (q) (emphasis added).
Minehart does not contend that these provisions of the RLA are inapplicable to the case at bar, but rather that “he has a right to elect his remedy of either pursuing his appeal through the procedures of the Railway Labor Act or initiating action [in federal court] for a wrongful termination for employment.” See Appellant’s Brief at 6. L & N takes the position that the remedies provided by the RLA are exclusive, and that Minehart may not by-pass the Railway Adjustment Board by proceeding in district court on a claim of retaliatory discharge.
The Supreme Court has addressed the plaintiff’s theory that he has an alternative right to bring suit in federal court to contest his discharge from railroad employment, while at the same time pursuing his RLA administrative remedy against the carrier:
[T]he notion that the grievance and arbitration procedures provided for minor disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was never good history and is no longer good law.
Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322, 92 S.Ct. 1562, 1564, 32 L.Ed.2d 95 (1972).
Other courts have addressed similar issues to those raised here by Minehart in connection with efforts to bring actions in federal court and avoid Railway Adjustment Board jurisdiction over employment terminations by railroads. An association of employees sought to recover damages for loss of work under a contract breach or tort rationale basis in federal court in Railway Labor Executives Ass’n v. Atchison, T. & S.F. Ry. Co., 430 F.2d 994 (9th Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971). This effort was rebuffed, the court holding:
Where, as here, the dispute grows out of the employment relationship and, in the final analysis, involves an attempt to impose a right which is incident to that relationship, the statutory forum is the Adjustment Board, absent a clear expression of legislative policy to the contrary.
430 F.2d at 997. See also (to the same effect) Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978).
In like fashion, a railroad employee’s attempt to forego Railway Adjustment Board procedures by filing suit in federal court was rejected in Dorsey v. Chesapeake & Ohio Ry. Co., 476 F.2d 243 (4th Cir.1973). The court held specifically:
“Dorsey [appellant] acknowledges that Andrews [406 U.S. 320, 92 S.Ct. 1562] requires exhaustion of administrative remedies in cases alleging only a common law breach of contract but contends that Andrews left undecided the question whether a wrongful discharge complaint alleging a constitutional violation should be exempted from the exhaustion re-quirement____ We conclude that Andrews is controlling and that the district court properly found that Dorsey was required to exhaust his remedies with the NRAB before bringing suit in federal court.”
476 F.2d at 254 (footnote omitted). Appellant cites Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir.1981) in support of his contentions, but this is a Jones Act case, inapplicable in the Railway Labor Act context. He also cites Farmer v. United Brotherhood of Carpenters, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) as establishing an exemption to the preemption doctrine upheld in Andrews. In the Farmer case, a union officer’s complaint was for “outrageous conduct” against other union officials in subjecting him to harassment and abuse. The court held that under the circumstances the wrongful conduct of the union was “a merely peripheral concern” and was exempted from preemption under the N.L. R.A. We agree with the decision in Mag-nuson, supra, that the Farmer exemption does not apply in this type of case because, like the Magnuson claim of tortious or wrongful discharge, Minehart’s action is “inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the R.L.A.” 576 F.2d at 1369. See also Beers v. Southern Pacific Transp. Co., 703 F.2d 425 (9th Cir.1983).
Nor does Minehart fall within the bounds of a very narrow exception to the preemption doctrine of exclusive jurisdiction in the Railway Adjustment Board indicated by this court in Kaschak v. Consolidated Rail Corp., 707 F.2d 902 (6th Cir.1983), which dealt with a union’s failure to process the railroad employee’s grievance. This court in Kaschak, however, acknowledged (707 F.2d at 905) the primary rule adopted in this circuit:
[T]he National Railroad Adjustment Board then has primary and exclusive jurisdiction to interpret the parties’ agreement and make a binding award. (A “minor” dispute includes a controversy over the meaning of an existing collective bargaining agreement in a particular fact situation).
McKinney v. International Ass’n of Machinists, 624 F.2d 745, 748 (6th Cir.1980) (citations omitted). See also Local 1477 United Transp. Union v. Baker, 482 F.2d 228 (6th Cir.1973).
We believe that the decision in Andrews makes it clear that Minehart has no option to proceed in federal court while his claim before the Railway Adjustment Board is pending. The Ninth and Fourth circuits, as noted, have held, following Andrews, that the exclusive forum for minor disputes arising out of a railroad employment relationship is the Railway Adjustment Board, not the federal courts prior to exhaustion. We agree with the reasoning of the courts in Magnuson, Beers, and Dorsey in their conclusions in cases analogous to the instant case on appeal. This is clearly a “minor dispute” within the meaning of the Act. Minehart’s counsel at oral argument candidly argued that we ought to allow his suit, despite the contrary authority, because there was an undue delay in the resolution of Railway Labor Board matters. This problem, if it exists, addresses itself to the Congress and not to this court for resolution.
Accordingly, we affirm the action of the district court in dismissing Minehart’s retaliatory discharge assertion.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
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.
Michael W. HURLEY, Plaintiff-Appellant, v. PATAPSCO & BACK RIVERS RAILROAD COMPANY, a body corporate, Defendant-Appellee.
No. 89-2909.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 1, 1989.
Gerald Francis Gay (Herbert J. Arnold, Arnold, Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for plaintiff-appellant.
Rudolph Lee Rose (Robert T. Franklin, P. Matthew Darby, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for defendant-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WIDENER and CHAPMAN, Circuit Judges.
PER CURIAM:
The questions presented are whether the district court erred in granting appellee’s motion for a directed verdict at the end of appellant’s case and in granting appellee’s motion in limine to exclude certain evidence. We find no error, and accordingly affirm.
I.
Appellant Michael W. Hurley has been employed by appellee railroad company since July 7,1974, as an expert machinist in the Locomotive Repair Shop. Prior to this employment, he completed a four year apprenticeship program involving 8,000 hours of training. Appellant is the only employee in the shop who is qualified to operate the Reed-Prentice lathe. As such, appellant manages his own schedule and determines how each lathe job will be set up. He conducts his own inspections of the lathe and is responsible for ensuring that it is safe to operate.
On October 21, 1985, appellant began using the lathe to file down a sheave, a piece of equipment designed to hold multiple fan belts. As was his standard practice, appellant secured the sheave in the lathe with a C-clamp. Because he was cold, he wore a loose-fitting sweater he had brought from home. At approximately 8:50 a.m., he “leaned in to file the burrs off the sheave.” Testimony of Michael W. Hurley, Joint Appendix (“J.A.”) at 67. His sweater was caught on the C-clamp, and appellant was pulled into the lathe. He suffered a collapsed right lung, left rib fractures, and a fractured left scapula.
Appellant brought this action in the District of Maryland pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Prior to trial, the district court granted appellee’s motion in limine and excluded all evidence concerning alternative designs for the lathe, including alternative guarding procedures. Thus, appellant was precluded from presenting evidence that other lathes on appellee’s premises were equipped with guards over the clamp.
The case was tried to a jury on November 30 and December 1, 1988. Appellant’s primary contention at trial was that appel-lee provided inadequate lighting and that this negligence caused appellant’s injuries. The Reed-Prentice lathe receives light from two sources: a series of overhead lucalux lights and daylight through a large bank of windows eight to ten feet from the lathe. Unlike some of the other machines in the shop, the Reed-Prentice lathe did not have an individual fluorescent light.
Appellant testified that the windows were dirty and had not been cleaned for years. Appellant also testified that, as a result of the poor lighting, his body cast a shadow over the lower part of the lathe and that there was no direct illumination at the point where his sweater was pulled into the lathe. He further testified that he had requested individual lighting for the Reed-Prentice lathe four or five years before the accident. He never repeated this request.
At the close of appellant’s case, appellee moved for a directed verdict pursuant to Fed.R.Civ.P. 50(a). During argument on this motion, the district court judge repeatedly asked appellant’s counsel to indicate what evidence there was of negligence by appellee. See J.A. at 133-135, 152, 164. After argument, the court granted appel-lee’s motion. The court emphasized appellant’s status as a highly trained employee with exclusive responsibility for the safe operation of the Reed-Prentice lathe. The court also found that a four or five year old request for direct lighting was not legally sufficient evidence to support an inadequate lighting claim. The court concluded that the evidence left no doubt that appel-lee was not negligent and that appellant was solely responsible for the accident.
II.
An FELA claim must survive a motion for a directed verdict and proceed to the jury if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). But the plaintiff still has the burden of proving some act of negligence by the railroad. See Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959); Ambold v. Seaboard Air Line R.R. Co., 345 F.2d 30, 33 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). Even viewing the facts in the light most favorable to appellant, we cannot find any legally sufficient evidence of appellee’s alleged negligence.
Appellant operated the Reed-Prentice lathe under these lighting conditions without incident for many years before the accident. Although he once requested direct lighting, he did not consider the request important enough to mention again. Appellant was the only employee qualified to operate the Reed-Prentice lathe. Without notice from appellant as to possibly dangerous conditions not evident to a layperson, appellee had no opportunity to correct these conditions and cannot be found negligent. Cf. Inman, supra, 361 U.S. at 140, 80 S.Ct. at 243 (considering the absence of similar accidents in the past and the absence of complaints about the allegedly dangerous conditions probative of an absence of negligence by the railroad).
The only evidence appellant presented in support of his inadequate lighting claim was his own testimony and three photographs taken in the repair shop on October 21, 1985. The district court found that the jury could not discern from the photographs the amount of light in the repair shop generally or at the Reed-Prentice lathe. See J.A. at 165. Even if the amount of light were discernible from the photographs, appellant presented no evidence that the light was inadequate for safe operation of the lathe. He did not, for example, present the testimony of an expert witness regarding the proper lighting conditions for safe operation of a Reed-Prentice lathe. His own conclusory assertions that the lighting was inadequate are not sufficient to survive a motion for a directed verdict. Appellant’s evidence in this case was such that the jury could have reached a verdict in his favor only by speculating. As such, the district court’s granting of appellee’s motion for a directed verdict was proper and must be affirmed. See Kuberski v. New York Central R.R. Co., 359 F.2d 90, 92 (2d Cir.1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967).
Furthermore, appellant never provided an evidentiary link between the allegedly inadequate lighting and his accident. He presented no evidence as to why the lighting in the repair shop made operation of the lathe dangerous or how direct lighting could have prevented this accident. Indeed, appellant testified that he had worked the 3:00 p.m. to 11:00 p.m. shift and had never had a similar accident, in spite of the lack of any natural illumination from the windows after sundown.
Given the evidence presented, the district court properly concluded that plaintiffs negligence was the sole proximate cause of the accident. Appellant was injured because he wore a loose-fitting sweater and “leaned in” too close to the lathe. Absent speculation, no act or omission of appellee can be said to have played any role in causing appellant’s injuries. When an employee’s own negligence is the sole proximate cause of his injuries, the employer cannot be found liable pursuant to FELA. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944); Barnett v. Terminal R.R. Assoc. of St. Louis, 228 F.2d 756 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Thus, the district court properly granted appellee’s motion for a directed verdict.
III.
Appellant contends that the district court erred in excluding testimony by appellant that he observed guards covering the rotating machine chuck on another lathe in another machine shop on appellee’s premises. In support of this contention, appellant notes Eggert v. Norfolk & Western Ry. Co., 538 F.2d 509 (2d Cir.1976). In Eggert, the plaintiff fell and struck his knee on a brake valve lever. The court held that “evidence of the practices of other railroads with respect to brake valve guards is highly relevant since the existence of alternatives would be significant on the issue of whether defendants acted reasonably in the present case.” Id. at 512.
The significance of such evidence, however, is directly related to the similarity between the two situations being compared. In this case, plaintiff was the only employee qualified to operate the Reed-Prentice lathe. That lathe was unlike any other lathe operated on appellee’s premises. Absent some evidence of similarity between the lathe observed with a guard and the Reed-Prentice lathe, evidence with respect to the guarded lathe is irrelevant to the issue of appellee’s negligence. Without additional evidence, appellant would be asking the jury to speculate that, because a different lathe had a guard, appellee should have provided a guard for the Reed-Prentice lathe. The district court properly excluded this unsupported and speculative testimony.
IV.
We think the district court correctly granted appellee’s motion to exclude evidence of guards on other lathes and appel-lee’s motion for a directed verdict at the end of appellant’s case. The judgment of the district court is therefore
AFFIRMED.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Lonny DAVIS, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, Third-Party Plaintiff-Appellee, v. TRAILER TRAIN COMPANY, a corporation, Third-Party Defendant-Appellant.
Nos. 85-2137, 85-2157.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 11, 1986.
Decided April 17, 1986.
Rehearing and Rehearing En Banc Denied July 8,1986.
John B. Gunn, Walker & Williams P.C., Belleville, Ill., Barry L. Kroll, Williams & Montgomery, Ltd., Chicago, Ill., for defendant-appellant, third-party plaintiff-appellee.
Mark E. Goodman, Rosenblum, Golden-hersh, Silverstein & Zafft, Claton, Mo., for plaintiff-appellee.
Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
POSNER, Circuit Judge.
This is a personal injury suit under the diversity jurisdiction; the substantive issues are governed by the tort law of Illinois. The suit arises from an accident that occurred in 1983. The plaintiff, Davis, was 33 years old at the time, an experienced railroad worker who for the past six years had been employed as an inspector of cars by the Trailer Train Company, a lessor of piggyback cars to railroads. He made the inspections in railroad yards, among them Conrail’s marshaling yard in East St. Louis. On the day of the accident, Davis, driving an unmarked van that was the same color as the Conrail vans used in the yard but that lacked the identifying “C” painted on each Conrail van, arrived at the yard and saw a train coming in from east to west. He noticed that several of the cars in the train were Trailer Train cars that he was required to inspect. The train halted, and was decoupled near the front; the locomotive, followed by several cars, pulled away to the west. The remainder of the train was stretched out for three-quarters of a mile to the east; and because it lay on a curved section of the track, its rear end was not visible from the point of decoupling. An employee of Conrail named Lundy saw Davis sitting in his van, didn’t know who he was, thought it was queer he was there, but did nothing.
Shortly afterward Davis began to conduct the inspections. This required him to crawl underneath the cars to look for cracks. One of the cars was the third from the end (that is, from the point where the train had been decoupled). Unbeknownst to Davis, a locomotive had just coupled with the other (eastern) end of the train. It had a crew of four. Two were in the cab of the locomotive. The other two, one of whom was designated as the rear brakeman, were somewhere alongside the train; the record does not show just where, but neither was at the western end of the train, where Davis was. The crew was ordered to move the train several car lengths to the east because it was blocking a switch. The crew made the movement, but without blowing the train's horn or ringing its bell. The only warning Davis had of the impending movement was the sudden rush of air as the air brakes were activated. He tried to scramble to safety before the train started up but his legs were caught beneath the wheels of the car as he crawled out from under it. One leg was severed just below the knee; most of the foot on the other leg was also sliced off. The train had not been “blue flagged.” It is law (49 C.F.R. § 218) as well as custom in the railroad industry that whenever work is being done on a train a blue metal flag be placed at either end to warn employees not to move the train. Though well aware of the custom, Davis had neither blue flagged the train before crawling under it nor asked an employee of Conrail to blue flag it.
Davis brought this suit against Conrail, charging negligence. Conrail impleaded Trailer Train, seeking contribution in the event it had to pay damages to Davis, on the ground that Trailer Train had been negligent in failing to instruct Davis in proper safety procedures. A jury found for Davis, assessed damages at $3 million, but found that Davis’s own negligence had been one-third responsible for the accident, and therefore awarded damages of $2 million. In Conrail’s third-party suit against Trailer Train, which had been tried with the main claim, the jury held that Trailer Train had been one-third responsible for the accident; it therefore ordered Trailer Train to reimburse Conrail for one-third of the $2 million in damages. Conrail and Trailer Train appeal. Conrail argues that it was not negligent at all (which if correct would mean that Davis was entitled to zero damages) but that if it was, still the reduction in its liability of only one-third shows that the jury was carried away by “passion and prejudice,” so that there should be a new trial, or at the least a reduction in Conrail’s share of the damages vis-a-vis Davis. Trailer Train argues that it was not negligent even if Conrail was, and therefore it should not have to pay any part of the damage award.
Neither appellant challenges the $3 million price tag that the jury put on Davis’s injury, although Davis is able to walk with the aid of prosthetic devices, to drive, to work, and in short to lead almost a normal life. Of course the loss of a leg is a terrible disfigurement, especially for a young man, and a substantial award of damages would therefore be entirely justified even without any evidence of pain (and there was evidence of severe though transitory pain) or reduced longevity. But $3 million — only $170,000 of which represents lost earnings and past and future medical expenses — may well be excessive; and although appellate review of the amount of damages awarded by a jury or trial judge is highly deferential, we and the other courts of appeals have not hesitated to cut down grossly excessive damage awards. See, e.g., Joan W v. City of Chicago, 771 F.2d 1020, 1025 (7th Cir.1985); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1144 (7th Cir.1985); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 972-74 (7th Cir.1983); Dixon v. International Harvester Co., 754 F.2d 573, 590 (5th Cir. 1985); Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91-93 (5th Cir.1984); Shaw v. United States, 741 F.2d 1202, 1210 (9th Cir.1984); Stratis v. Eastern Air Lines, Inc., 682 F.2d 406, 415 (2d Cir.1982). But as we have said, the defendants have not asked us to do that here.
The defendants do complain, however, that the jury allocated too small a share of responsibility for the accident to Davis. They ask us to order either a remittitur or a new trial limited to damages, but alternatively they argue that the jury’s allocation shows that the jury was carried away by passion and prejudice, so that a new trial on liability as well as on damages should be ordered. See Douglass v. Hustler Magazine, Inc., supra, 769 F.2d at 1143. This argument has no merit. Although (as will become clear when we discuss the evidence of Conrail’s and Trailer Train’s negligence) the jury probably allotted too little of the blame for the accident to Davis, the error is not of such magnitude as to call into question the rationality of its verdict on whether the defendant was liable. Only in an unusual case will a court order a new trial on liability because of an error in assessing damages or in apportioning them among multiple defendants. This is not an unusual case. The jury may well have underestimated Davis’s relative fault, but it did not so take leave of its senses in dealing with tfiis issue that we are entitled to conclude that it did not use its reason in deciding whether Conrail was negligent at all.
On the question of Conrail’s negligence, Davis presented three theories to the jury. The first was that Conrail’s employee Lun-dy, whose auto was equipped with a two-way radio, should have notified the crew of the train that an unknown person was sitting in a van parked near the tracks. We consider this a rather absurd suggestion. Lundy had no reason to think that the man in the van would climb out and crawl under a railroad car. If he had called the crew and told them there was a man in a van by the tracks, they undoubtedly would have replied, so what? Maybe, since the van resembled the vans used by Conrail employees, it should have occurred to Lundy that the person in the van had business on the tracks. But it is a big jump from recognizing that possibility to thinking that the man was in danger because he might crawl under a car without taking the usual precautions. And any Conrail employee would know better than to crawl under a car on a live track (a track that had not been blue-flagged). In sum, the probability that Davis would crawl under a car without first asking that it be blue flagged was too low, as it reasonably appeared to Lundy, to obligate Lundy to warn Davis or alert the train’s crew.
In the famous negligence formula of Judge Learned Hand, which is recognized to encapsulate the more conventional verbal formulations of the negligence standard, see Prosser and Keeton on the Law of Torts 173 and n. 46 (5th ed. 1984), a defendant is negligent only if B < PL, meaning, only if the burden of precautions is less than the magnitude of the loss if an accident that the precautions would have prevented occurs discounted (multiplied) by the probability of the accident. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947). If P is very low, elaborate precautions are unlikely to be required even if L is large, see United States Fidelity & Guaranty Co. v. Ja-dranska Slobodna Plovidba, 683 F.2d 1022, 1027-28 (7th Cir.1982); and here the necessary precautions would have been elaborate.
Davis’s second theory of Conrail’s negligence is even more fantastic. It is that before the train was moved, a member of the crew should have walked its length, looking under the cars. The probability that someone was under a car was too slight, as it reasonably would have appeared to the crew, to warrant the considerable delay in moving the train that would have been caused by having a crew member walk its entire length and then walk back, a total distance of a mile and a half. It might have taken an hour, since the crew member would have had to look under each one of the train’s 50 cars, and since the cars were only 12 inches off the ground, so that he would have had to get down on all fours to see under them.
Davis’s third theory is more plausible. He argues that it was negligent for the crew to move the train without first blowing its horn (also referred to as the whistle) or ringing its bell. Since no member of the crew was in a position where he could see the train’s western end, which was now its rear end, a reasonable jury could find — we do not say we would have found if we had been the triers of fact— that it was imprudent to move the train without a signal in advance. Although the crew had no reason to think that Davis was under a car, someone — whether an employee of Conrail or some other business invitee to the yard (such as Davis) — might have been standing in or on a car or between cars, for purposes of making repairs or conducting an inspection; and any such person could be severely, even fatally, injured if the train pulled away without any warning or even just moved a few feet. Regarding the application of the Hand formula to such a theory of negligence, not only was B vanishingly small — for what would it cost to blow the train’s horn? — but P was significant, though not large, once all the possible accidents that blowing the horn would have averted are added together. For in determining the benefits of a precaution — and PL, the expected accident costs that the precaution would avert, is a measure of the benefits of the precaution— the trier of fact must consider not only the expected cost of this accident but also the expected cost of any other, similar accidents that the precaution would have prevented. Cf. Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir.1940), rev’d on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed.2d 969 (1941). Blowing the horn would have saved not only an inspector who had crawled under the car (low P), but also an inspector leaning on a car, a railroad employee doing repairs on the top of a car, a brakeman straddling two cars, and anyone else who might have business in or on (as well as under) a car. The train was three-quarters of a mile long. It was not so unlikely that somewhere in that stretch a person was in a position of potential peril to excuse the crew from taking the inexpensive precaution of blowing the train’s horn. Or so at least the jury could conclude without taking leave of its senses.
Against this conclusion Conrail and Trailer Train hurl a number of arguments. One is that precautions would not have been effective; Davis himself testified that he would not have heard the train’s bell. But we do not consider this so damaging a concession as the defendants do. Davis would not have heard the bell, no, but it does not mean that he would not have heard the horn. The horn is deafening, and Conrail’s assertion (for which no evidence was offered) that the horn would have been inaudible at three-quarters of a mile is as implausible as it is unsubstantiated.
A better point is that there is so much traffic in a marshaling yard that sounding the horn every time a train is moved would cause a cacophony that would deprive the horn of its efficacy as a warning. If horns were blowing all the time, Davis would not know, when the horn sounded, whether it was the horn for this train or some other train. Either he would ignore it or he would be spending all his time scrambling out from under and then back under the cars he was inspecting. The problem with this argument is that Conrail put in no evidence on how busy the marshaling yard was either at the time of the accident or at any other time. We know it is a large (four square miles) and busy yard, but we do not know how frequently trains are actually moved in a large and busy yard. Every 15 minutes? Every hour? Conrail could easily have put in evidence on this point, but did not. Moreover, Davis is not contending that due care requires that the horn be blown before every move. Maybe this move was special, because of the length of the train in combination with the curvature of the track and the fact that all of the crew members were at or near the front of the train. Even if the yard is very busy, if the horn were sounded only in the unusual case where there was more than average danger from a sudden movement the danger of cacophony would be diminished.
The defendants’ strongest argument is that Conrail had no duty to warn persons who might be in or on or under the train— given the blue flag rule. There is in general no duty to anticipate and take precautions against the negligence of another person. Such a requirement would tend to induce potential injufers to take excessive safety precautions relative to those taken by potential victims; the cost of safety would rise. Thus, “If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted.” Hession v. Liberty Asphalt Products, Inc., 93 Ill.App.2d 65, 74, 235 N.E.2d 17, 22 (1968). See Kofahl v. Delgado, 63 Ill. App.3d 622, 626, 20 Ill.Dec. 429, 433, 380 N.E.2d 407, 411 (1978); LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 232 U.S. 340, 352, 34 S.Ct. 415, 417, 58 L.Ed. 631 (1914) (separate opinion of Holmes, J.); Phillips v. Croy, 173 Ind.App. 401, 405, 363 N.E.2d 1283, 1285 (1977); Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 451 (7th Cir.1984) (dissenting opinion). It is true that if precautions necessary to prevent an undue risk of injury to persons who are exercising due care are omitted and a careless person is injured as a result, then in a jurisdiction such as Illinois where the complete defense of contributory negligence has given way to the partial defense of comparative negligence the careless victim can recover some damages. But he can do so, in general, only if there was a breach of duty to the careful.
The defendants argue that the rule regarding blue flagging excuses the crew from any duty of care to persons who might be injured by a sudden starting of the train, because all such persons can protect themselves by blue flagging and are careless if they fail to do so. There is some evidence, however, that the rule was honored in the breach. Davis inspected cars at the yard three or four times a week, never posted or requested the posting of a blue flag, and was seen by many employees of Conrail without remonstrance from them. Maybe all these people were careless but maybe the rule of blue flagging is not so universal as the defendants claim. Common sense tells us that there must be times when there are no blue flags handy; and if the railroad thought it could prove that the rule of blue flagging was so steadily observed (though not in this instance) that the probability that someone, not careless, would be working on or in or under a train that had not been blue flagged was so small as to excuse the crew from a duty to sound any warning signal before moving the train, it should have put in evidence to this effect — evidence, for example, of where the flags are stacked.
Of course there was much evidence that Davis was negligent in failing to blue flag the train (or request that it be blue flagged) before crawling under it. When he saw the western end of the train pull away he assumed the train would stay put. Yet as an experienced railroad worker he knew perfectly well that the train could be pulled from either end, and since he couldn’t see the other end from where he was working, he was taking a grave risk that a locomotive would hook on to that end and pull the train east, crushing him beneath it. He may well have been more negligent than the railroad. But we do not think the jury was irrational to find that the railroad was negligent as well. The burden of sounding the horn would have been trivial, and the expected benefits positive; for despite the blue flag rule there was some probability that an employee or invitee was working in or dangerously near the train, reasonably believing that he would receive some warning before the train pulled away. Of course, the horn might have done no good, because Davis might not have known (given his distance from the locomotive) that it was the horn of the train he was under; this possibility qualifies any possible estimate of the benefits. But this was a matter for the jury to consider; a rational jury could have concluded that the horn would have warned him.
Moreover, we were careful to qualify our statement of the rule that a potential injurer is entitled to assume that potential victims will exercise due care, by saying that this was true “in general.” A certain amount of negligence is unavoidable, because the standard of care is set with reference to the average person and some people have below-average ability to take care and so can’t comply with the standard, and because in any event efforts at being careful produce only a probability, not a certainty, of avoiding careless conduct through momentary inattention. Potential injurers may therefore be required to take some care for the protection of the negligent, especially when the probability of negligence is high or the costs of care very low. See Prosser and Keeton on the Law of Torts, supra, § 33, at pp. 198-99. You cannot close your eyes while driving through an intersection, merely because you have a green light. If, as the jury could have found, Conrail could have avoided this accident by the essentially costless step of blowing the train’s horn, it may have been duty-bound to do so even if only a careless person would have been endangered by a sudden movement of the train.
Conrail’s next argument is that the danger to Davis was open and obvious, and that this is a complete defense to liability. We agree with the premise but not the conclusion. The Illinois Supreme Court has held that, as a corollary to the replacement of contributory by comparative negligence, assumption of risk is no longer a complete defense to liability for negligence. Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 119, 73 Ill.Dec. 337, 344, 454 N.E.2d 197, 204 (1983); Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 433-37, 90 Ill.Dec. 237, 241-43, 481 N.E.2d 1037, 1041-43 (1985). This proposition must not be taken too literally. If you agree to engage in a dangerous activity, such as hang gliding or technical rock climbing or riding a high-spirited horse, and one of the known dangers materializes with no negligence by the defendant, you cannot recover damages from him. Clark v. Rogers, 137 Ill.App.3d 591, 92 Ill.Dec. 136, 484 N.E.2d 867 (1985). There is by hypothesis no negligence in such a case and the term “assumption of risk” as used in it merely explains why there is not rather than providing a defense to a prima facie case of negligence. The defense of assumption of risk — the defense that ceased to be a complete defense when contributory negligence ceased to be a complete defense — comes into play if the defendant’s negligence created a danger that was apparent to the plaintiff, who nonetheless decided to risk it, as where a man dashes into a house that is on fire because of the defendant’s negligence, in an attempt to save his battered fedora, and is burned to death in the attempt. And that is conduct that can equally well be described as encountering an open and obvious danger — a defense assumed to be equivalent to assumption of risk in Nordhaus v. Vandalia R. Co., 242 Ill. 166, 173, 89 N.E. 974, 977 (1909). Davis knew there was a chance that the train would pull away without warning, but reckoned the chance small (perhaps counting on the railroad to be more careful than it was), and decided to take it. Such conduct in the face of an obvious danger of negligence is the type of assumption of risk that closely resembles contributory negligence (“secondary” assumption of risk, it is sometimes called) and that has been abolished along with contributory negligence as a complete defense to liability. It does not presuppose the defendant’s lack of negligence. It reduces the injurer’s liability, but not to zero, if the injurer is negligent.
Both appellants argue that the jury should not have found Conrail twice as negligent as Davis. If this is what the jury did, the argument is sound and a remittitur should be ordered, subject to a technical question whether remittitur is proper in a case of malapportionment of damages, as distinct from excessive damages. Strictly speaking it is not, for we have just seen that the decision on apportionment is a decision on liability, and not on the amount of damages. But we think logic ought to give way to practical convenience and to the policy behind the device of remittitur, which is that if the plaintiff is willing to accept a lower amount of damages rather than incur the risks and expense of a new trial, and the defendant cannot complain because that lower amount would have been within the jury’s power to award, it is a just economy to terminate the suit without a retrial. The policy is fully applicable to a case such as this where the defendants are complaining that the jury placed too large a share of the blame on them, as we implicitly held in Davis v. United States, 716 F.2d 418, 430-31 (7th Cir.1983) (additur). See also Schwartz, Comparative Negligence § 18.4, at pp. 306-07 (1974).
Although we thus have the power to cut down Conrail’s share of the damages, we decline to exercise it. Maybe the jury thought Conrail twice as negligent as Davis — an unreasonable allocation — but there is another interpretation of what the jury did which saves its verdict. Although there was only one defendant, Conrail, there were two tortfeasors, Conrail and Trailer Train. They inflicted an indivisible injury and thus were joint tortfeasors, meaning that each was fully liable to the plaintiff for the damages attributable to the other, though the one that was sued had a right to seek contribution from the other. The jury’s decision to shift one-third of the damages it had assessed against Conrail to Trailer Train implies that the jury divided up the $3 million damage assessment as follows: % to Davis, % to Conrail, and % to Trailer Train. Although as an original matter we would think Davis more rather than slightly less blameworthy than Conrail, we are not prepared to say that the allocation of fault is unreasonable.
Trailer Train makes two further arguments. The first, which we shall not consider, is that one of the instructions invited the jury to attribute Davis’s negligence to his employer, Trailer Train, and thus, once the jury had found Davis one-third responsible for the accident, to hold Trailer Train one-third liable for the damages assessed against Conrail in Davis’s claim. The instruction did invite this weird mode of assessment, but Trailer Train did not object to the instruction when given. It first objected in its post-trial motions. That was too late. If plain error is ever a valid basis in a civil case for overlooking an appellant’s failure to have objected to the instruction that he claims was given erroneously before the jury was instructed, it is only so in an exceptional case. Parrett v. City of Connersville, 737 F.2d 690, 698 (7th Cir.1984); Exxon Cory. v. Exxene Cory., 696 F.2d 544, 549 (7th Cir.1982). A case is not exceptional when a substantial corporation, well able to afford effective legal representation, asks us to give it a new trial, merely because its lawyer made a mistake at the first trial. No excuse for the mistake is . offered, though we do not mean to suggest that any excuse would have been adequate. A litigant cannot allow the case to go to the jury on instructions that he knows or should know are incorrect, and if he loses get a new trial. Trailer Train cannot put Conrail to the expense of a new trial because of an error that Trailer Train should have caught when the error could still have been corrected.
Since the jury merely acted in accordance with an instruction to which no objection was made, perhaps no more need be said to reject Trailer Train’s appeal. A jury verdict that is reasonable in light of the instructions given and not objected to cannot be upset by being shown to be unreasonable in light of instructions that were never given. “[I]n a civil case each party must live with the legal theory reflected in instructions to which it does not object.” Will v. Comprehensive Accounting Corp., 776 F.2d 665, 675 (7th Cir.1985). We also think, however, that there was some evidence of Trailer Train’s negligence. The nature of the inspections that Davis’s job for Trailer Train called for him to make required that he crawl under the cars, but Trailer Train never told him how he should protect himself when he did so. It relied on the fact that Davis was an experienced railroad worker who knew all about blue flags and the danger of being under a car when the train started to move. Trailer Train had no safety rules for its employees. This we think is some evidence of negligence. It is true that a firm of electricians is not liable for negligence because it fails to tell its employees that they shouldn’t stick their fingers into sockets without shutting off the power. Some dangers are too obvious to warrant work rules. But Trailer Train’s inspectors do not control their work environment in the same way that an electrician or plumber controls his. Davis could not switch off the power for the train. All he could do was either personally or by requesting a Conrail employee blue flag the train so that the crew would be warned not to move it.
A reasonable jury could find (if barely) that Trailer Train should have made clear to Davis that he was not to inspect any car without insisting on blue flagging and should have prescribed a procedure for implementing this requirement. Since blue flagging takes some time, the absence of a work rule put Davis in a potential dilemma. If he was too meticulous about safety, this might slow down his inspections too much and jeopardize his job. Trailer Train should have dispelled any doubt that safety must come first. It strikes us (and more important must have struck the jury) as unusual that a worker in such a dangerous job should be allowed to go about his work without receiving any instructions with regard to safety. He should have been more careful and if so would have averted this terrible accident. But that just means he was contributorily negligent; it does not completely excuse Trailer Train for relying entirely on his prudence and caution.
Although the evidence of the defendants’ negligence is thin, the instructions were defective, and the damages probably too large both before and after being reduced for Davis’s negligence, some, perhaps all, of these errors were within the power of the defendants’ counsel to prevent. Although not fully satisfied that justice was done, we can find no reversible error.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_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".
William Jerald MYERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 17254.
United States Court of Appeals Sixth Circuit.
April 18, 1967.
Leslie W. Morris, II, Lexington, Ky., for appellant.
James F. Cook, Asst. U. S. Atty., Lexington, Ky. (George I. Cline, U. S. Atty., Lexington, Ky., on the brief), for appel-lee.
Before O’SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.
PER CURIAM.
This appeal is from an order after a hearing overruling appellant’s motion to vacate judgment under 28 U.S.C. § 2255 (1964).
Appellant was charged with transporting a stolen automobile to Kentucky in violation of the Dyer Act, 18 U.S.C. § 2312 (1964). Appellant, after consulting with appointed counsel, pled guilty. The District Judge who took the plea then announced that appellant “should be committed to the custody of the Attorney General for discipline and training under the Youth Corrections Act,” 18 U.S. C. §§ 5005-5024 (1964).
Appellant was sent to a Youth Correction Center at Chillicothe, Ohio, where he remained for two years before being granted a conditional release.
On violation of the terms of that release, appellant was returned to Chilli-cothe. He thereupon filed the instant motion to vacate sentence. His petition recited that he had been informed by the Court that the maximum he could receive if he pleaded guilty was five years and that the Court did not explain the terms of the Youth Corrections. Act to him.
His petition cited and relied on Pil-kington v. United States, 315 F.2d 204 (C.A. 4, 1963).
The District Judge who denied his motion to vacate sentence did so after full evidentiary hearing. He said in part:
“This ease is not the Pilkington case. The Pilkington case is where the judge-made a positive statement which mislead the defendant. This is not the-Williams case. In the Williams case he had no attorney to advise him. In the Pilkington case, the judge made a positive statement to him * *
* * * * * *-
“There is no reason as I can find that this defendant has been in any way misled or has not been fully advised of his rights before he entered his plea. * * *”
The record clearly shows that the sentencing judge did not tell appellant that his plea could only result in a maximum of five year. Cf. Pilkington v. United States, supra. It also clearly shows that he did tell appellant that he was being-sentenced under the Youth Corrections Act. He did not, however, specifically inform him of the total length of incarceration which was possible under the-Youth Corrections Act.
In this appeal the only question of' substance is whether or not the District. Judge in sentencing defendant on a plea, of guilty deprived him of some legal or constitutional right by failing to advise him prior to committing him under the-Youth Corrections Act that this could result in a total of six years of incarceration.
No appeal was taken from the sentence, nor was any effort made to set it aside until after Myers had been released conditionally at the end of about two years, and had violated the terms of the parole and been reincarcerated.
The District Judge, after full hearing, found no legal or constitutional deprivation and held that the appellant was not misled by ignorance of the facts into a plea of guilty which was involuntary.
We cannot hold this finding to be clearly erroneous.
Contrary to the facts in the Pilking-ton case, heavily relied on in this appeal, there is no factual misrepresentation made to appellant by the sentencing judge. Further, here, as contrasted with Pilkington, there has been a full evi-dentiary hearing on appellant’s motion under Section 2255.
Contrary to the facts in the Williams case (Williams v. United States, 231 F.Supp. 382 (E.D.Ky.1964)) appellant’s plea herein was entered after advice of competent counsel.
While not controlling on voluntariness of the plea, we also note that appellant .admits full knowledge of the nature of the Youth Corrections Act (and its potentialities for a maximum of six years’ imprisonment) shortly after his arrival .at the Youth Correction Center at Chil-licothe. No motion for relief was filed then or for a matter of several years thereafter, until appellant had been released on parole under the terms of the Youth Corrections Act.
While we agree with Judge Sobeloff in Pilkington v. United States, .supra, that it is highly advisable for a District Judge in sentencing under the Youth Corrections Act to make an explanation of its purpose and terms, we do not believe that failure to do so (in facts such as these) represented a violation of appellant’s legal or constitutional rights.
Affirmed.
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:
|
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.
D. C. TRANSIT SYSTEM, INC., Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent. Public Service Coordinated Transport, National Association of Motor Bus Owners, Intervenors.
No. 22904.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 22, 1969.
Decided Dec. 9, 1969.
Mr. Manuel J. Davis, Washington, D. C., with whom Mr. Paul M. Cowgill, Jr., Washington, D. C., was on the brief, for petitioner.
Mr. Douglas N. Schneider, Jr., Washington, D. C., for respondent.
Mr. Thomas J. McCluskey, Maplewood, N. J., for intervenor, Public Service Coordinated Transport.
Mr. Robert J. Corber, Washington, D. C., was on the brief for intervenor, National Association of Motor Bus Owners.
Before BAZELON, Chief Judge, and McGOWAN and TAMM, Circuit Judges.
TAMM, Circuit Judge:
The sole question presented by this petition is whether the Washington Metropolitan Area Transit Commission erred in concluding that it lacked jurisdiction to regulate the operation of chartered bus tours originating and terminating outside of the metropolitan area. We find that the Commission correctly interpreted the jurisdictional provisions of the Washington Metropolitan Area Transit Regulation Compact, and thus we affirm.
I. THE PROCEDURAL BACKGROUND
On March 3, 1967, D. C. Transit System, Inc. filed a complaint before the Washington Metropolitan Area Transit Commission, alleging that Public Service Coordinated Transport, a New Jersey corporation, was performing passenger service for hire between points in the Washington metropolitan area without a Commission certificate of public convenience and necessity, as required by the Compact. The National Association of Motor Bus Owners intervened in the action, and the parties entered into a stipulation of facts setting forth the kind of bus service that was the subject of the complaint. According to the stipulation, the typical charter service here in question originated at a point outside of the metropolitan area (in this instance, New Jersey) and lasted for a period of several days. The tour patrons were provided with overnight hotel accommodations in V/ashington, and were taken on sightseeing tours to points of interest in the District of Columbia and neighboring Virginia. All passengers departed from and returned to the same bus at each stop, and no passengers were either added to or subtracted from the original party during the term of the charter. This service was performed pursuant to certificates of convenience and necessity issued by the Interstate Commerce Commission.
After considering the parties’ briefs and oral arguments the Washington Metropolitan Area Transit Commission ruled that this kind of service was not within the scope of its jurisdiction under the Compact as “transportation for hire * * * between any points in the Metropolitan District,” and dismissed the complaint (App. 135). D. C. Transit’s petition for reconsideration was subsequently denied (App. 166), and this petition for review was brought pursuant to Article XII, section 17(a) of the Compact (74 Stat. 1031, 1046 (I960)).
II. THE STATUTORY CONTEXT
The outcome of this controversy depends upon the interpretation of section 1 of Article XII of the Compact, 76 Stat. 764-65 (1962), which provides:
1. (a) This Act shall apply to the transportation for hire by any carrier of persons between any points in the Metropolitan District and to the persons engaged in rendering or performing such transportation service, except—
******
(4) transportation performed in the course of an operation over a regular route, between a point in the Metropolitan District and a point outside the Metropolitan District, including transportation between points on such regular route within the Metropolitan District as to interstate * * * commerce, if authorized by * * * the Interstate Commerce Commission * * •*
Petitioner contends that the bus charter operations here in question include “transportation * * * between any points in the Metropolitan District,” and that the exception contained in subsection (4) is inapplicable because these charter services are not performed over a “regular route.” The Commission rejected this argument and held that the instant charter services do not constitute transportation between points in the District within the meaning of the Compact. The construction put on a statute by the agency charged with administering it is entitled to deference by the courts. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). Since the Commission has interpreted its governing statute in a reasonable manner, consistent with the legislative history and regulatory policies of the statute, we find no basis for overturning the administrative decision. •
When the predecessor of the present jurisdictional section of the Compact was being considered by Congress, the Interstate Commerce Commission objected to the provision on the ground that it would create confusion regarding the division of authority between the Washington Metropolitan Area Transit Commission and the ICC. See generally Hearings on H.J.Res. 402 Before Subcomm. No. 3 of the House Comm, on the Judiciary, 86th Cong., 2d Sess., pt. 2, at 205, 242-243, 257-258, 261 (1960). In response to this concern, the House and Senate Judiciary Committees amended the jurisdictional section of the Compact and issued reports describing the intent underlying the amendment as follows:
The effect of this amendment from the standpoint of division of jurisdiction is to treat the metropolitan district as a State with the consequence that the Washington Metropolitan Area Transit Commission would have jurisdiction over purely intrametropolitan district transportation and the Interstate Commerce Commission would have jurisdiction over transportation crossing the metropolitan district boundaries.
H.R.Rep. No. 1621, 86th Cong., 2d Sess. 22 (1960); S.Rep. No. 1906, 86th Cong., 2d Sess. 25 (1960); see also 106 Cong. Rec. 11,747 (1960). In its opinion dismissing D. C. Transit’s complaint, the Commission took note of this aspect of the legislative history and pointed out that it was unable to find evidence that any state asserts regulatory jurisdiction over interstate carriers similar to that" which petitioners contend is mandated by the Compact (App. 137). Indeed, a state attempt to impose regulation under similar circumstances has been held invalid as an unconstitutional burden on interstate commerce. Commonwealth v. New England Transp. Co., 282 Mass. 429, 185 N.E. 23 (1933).
Thus, the legislative history of the Compact lends support to the Commission’s conclusion that the kind of charter operation here in issue was properly considered as a single continuous journey in fact and in law, and should not be subdivided artificially into component parts. This approach also appears to be consistent with the rationale advanced in Universal Interpretive Shuttle Corp. v. WMATC, 393 U.S. 186, 189, 89 S.Ct. 354, 356, 21 L.Ed.2d 334 (1968), where the Supreme Court stated that the statutes governing mass transit in the metropolitan area should be construed so as to avoid “dual regulatory jurisdiction overlapping on the most fundamental matters.” Clearly, overlapping jurisdiction with all of its deleterious consequences would result from petitioner’s interpretation of the Compact. The Commission took note of one difficulty which would arise if it were compelled to assert jurisdiction in this situation (App. 138):
There are literally thousands of buses and millions of persons who come here under similar circumstances annually. Acceptance of complainant’s position would mean that all those persons would be subjected to the inconvenience and expense of transferring to local carriers for their visits throughout the city while the vehicles that brought them here lay idle.
Intervenor National Association of Motor Bus Owners points out another problem which could result from petitioner’s construction of the Compact: if tourists were forced to use locally certificated carriers like D. C. Transit for sightseeing in the Washington metropolitan area, the interstate carriers on which they traveled here might be vulnerable to the argument that the return portion of the trip was the “origination” of a charter in violation of the certificates issued by the Interstate Commerce Commission. On the other hand, if a substantial number of interstate carriers elected to apply for local certificates, the Washington Metropolitan Area Transit Commission could be overwhelmed with applications, and its ability to discharge more important duties could suffer.
All of these practical difficulties would create expense and delay, and it seems probable that this burden would be passed on to the users of these charter services, making it difficult or impossible for many citizens to visit the Nation’s Capital. At the same time, acceptance of the Commission’s strict construction of the jurisdictional section will not impede performance of the function which is recognized in the legislative history and case law as the primary objective of the Compact: uniform and efficient regulation of mass transportation for commuters within the Washington metropolitan area. The petitioner’s contention that it may be vulnerable to ruinous competition at the hands of interstate carriers which are not subject to the restrictions of local certification was unexplained and unsupported by any proffer of evidence, and we cannot accord substantial weight to such a speculative assertion.' Similar considerations apply to the argument that affirmance of the Commission’s order will frustrate one of the major objectives of the Compact, the alleviation of traffic congestion within the metropolitan area. On the basis of the record now before us, it is not immediately apparent how any substantial incursion on the area’s traffic problems would result from either making tourists transfer to local carriers for sightseeing, or requiring out-of-state carriers to obtain local certification. In any event, neither of these factors has more than tangential relevance to the problem of divining the Congressional intent underlying Article XII, section 1 of the Compact; and we believe that the Commission correctly assessed the available evidence bearing on this question.
Affirmed.
. In the original House Resolution containing the Compact, the relevant provisions of Article XII were as follows:
1. (a) This Act shall apply to the transportation for hire by any carrier of persons between any points in the Metropolitan District and to the persons engaged in rendering or performing such transportation service, except— ******
(4) transportation performed in the course of an operation over a regular route, the major portion of which is outside the Metropolitan District except where a major portion of the passenger traffic begins and ends within the Metropolitan District; ******
(b) No transportation or person, otherwise subject to this Act, shall be exempt by reason of the fact that any part (not a major part as conditionally exempted by paragraph (a) (4) of this section) of the route between points in the Metropolitan District lies outside of the Metropolitan District * * *.
Hearings on H.J.Res. 402 Before Sub-comm. No. 3 of the House Comm, on the Judiciary, 86th Cong., 1st Sess., pt. 1, at 5 (1959). This language was contained in the Compact as enacted, 74 Stat. 1035-1036 (1960), together with the following section (74 Stat. 1051) :
Sec. 5. The consent of Congress is granted upon the condition that, within three years from the date of this enactment, section 1(a) (4) of article XII of the compact be amended as set forth below, and, in the event the compact is not so amended within such specified time, the suspension of the applicability of the laws of the United States * * * shall terminate with respect to the transportation specified below and any carrier whose only transportation over a regular route within the Metropolitan District is such transportation shall not be deemed a carrier subject to the compact * * *.
This provision is followed by the language of the present subsection four, which was enacted in 1962, and which is quoted in pertinent part in the text, supra.
. Article VIII of the Compact, 74 Stat. 1034-1035 (1960), provides that Congressional approval “suspend [s] the applicability of the Interstate Commerce Act * * * and any other laws of the United States, to the persons, companies and activities which are subject to this Act, to the extent that such laws are inconsistent with, or in duplication of, the jurisdiction of the Commission * *
. The conceptual difficulties which would result from severing the local portions of these charter tours for Oommission regulation can be seen in the attempts made by petitioner’s counsel in oral argument before the Commission to distinguish between sightseeing stops in the metropolitan area, which ássertedly should invoke the jurisdiction of the Commission, and equally brief rest or refueling stops, which apparently should not. See App. 218-221.
. The jurisdictional overlap resulting from petitioner’s construction of the Compact might not be as extensive in theory as that which concerned the Supreme Court in Universal Interpretive Shuttle, since the Compact suspends the applicability of inconsistent provisions of the Interstate Commerce Act (see note 2, supra). As noted below, however, the jurisdictional overlap in the present case might well have more serious practical consequences than the regulatory duplication threatened in Universal Interpretive Shuttle because of the large number, economic value, and geographic dispersion of the instant charter operations.
. See, e. g., Hearings on H.J.Res. 402 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 86th Cong., 1st Sess. 55-57 (1959).
. See Universal Interpretive Shuttle Corp. v. WMATC, 393 U.S. 186, 89 S.Ct. 354, 21 L.Ed.2d 334 (1968) ; Alexandria, Barcroft & Wash. Transit Co. v. WMATC, 323 F.2d 777 (4th Cir. 1963).
. A major portion of petitioner’s economic concern seems to arise from the fact that operators of charter services similar to those here in issue are not required to pay licensing fees to the District of Columbia (as they might be under the powers reserved to the signatories by Article VII of the Compact) unless they have operated the vehicle in question within the District for fifteen days out of the year. 47 D.C.Code § 2331(c) (1967). If this is really the thrust of petitioner’s economic anxiety, its complaint is clearly addressed to the wrong forum.
It is true, of course, that D.O. Transit serves the interest of its riders in the District of Columbia when it is zealous to defend its franchise from unauthorized competition. See D.C. Transit System, Inc. v. WMATC, 126 U.S.App.D.C. 210, 376 F.2d 765, cert. denied, 389 U.S. 847, 88 S.Ct. 52, 19 L.Ed.2d 115 (1967). The revenues derived from its sightseeing operations are credited against its total cost of service, and the larger the credit the less the need for fare increases in its regular operations. The difficulty here Is that Congress has determined as a matter of policy that sightseeing operations originating and terminating outside of the area regulated by the Commission may be carried on inside it without the necessity of procuring authority from the Commission.
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:
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songer_typeiss
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
Gordon P. GETTY, Petitioner, v. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, Respondent.
No. 86-1387.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 29, 1986.
Decided Nov. 21, 1986.
Roger W. Mehle, Washington, D.C., for petitioner.
William K. Black, Sr. Associate Gen. Counsel, FSLIC, with whom Harry W. Quil-lian, Gen. Counsel and Colleen B. Bombardier, Atty., FSLIC, Washington, D.C., were on brief for respondent.
Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, Senior District Judge.
Of the United States District Court for the District of Montana, sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).
Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
Petitioner Gordon P. Getty challenges Federal Savings and Loan Insurance Corporation (“FSLIC”) orders awarding National Permanent Bank (“NPB”) to Citi-corp, following a bidding procedure set out in the Emergency Thrift Acquisition provisions of the Garn-St Germain Depository Institutions Act of 1982 (“Act”), 12 U.S.C. § 1730a(m) (1982). We find two legal errors in FSLIC’s orders. First, FSLIC authorized Citicorp to acquire NPB without considering a factor that subsection (3)(B) required FSLIC to consider: the “priorities” of the offerors. Second, FSLIC failed to permit Getty to submit a new offer for NPB in conformity with the requirements of subsection (3)(A). We therefore grant the petition, set aside the orders and remand the case to FSLIC with instructions to solicit new bids from Getty and Citicorp in a manner consistent with this opinion.
I.
NPB was a federally-chartered, FSLIC-insured mutual savings bank (and, as such, a “thrift institution”) located in the District of Columbia. It experienced severe financial difficulties, and in 1985 the institution’s Board of Directors adopted a consent resolution putting NPB under the control of the Federal Home Loan Bank Board (“FHLBB”). As NPB continued to suffer financial setbacks, FSLIC was faced with two options: liquidating the institution and paying out a substantial sum on the insured deposits, or finding an acquirer. Anticipating the financial assistance that FSLIC would have to pay an acquirer would be less expensive to FSLIC than the cost of liquidation, FSLIC chose to solicit bids from several parties — including Getty and Citicorp. Getty is an individual, resident in California, whereas Citicorp, headquartered in New York, is a bank holding company and (as a result of previous acquisitions of troubled savings and loan associations) a savings and loan holding company. Both Getty and Citicorp submitted bids on the deadline, February 28, 1986. On March 6, FSLIC calculated the present value cost to it of Citicorp’s bid at $52 million and Getty’s bid at $124 million. Ci-ticorp’s offer, however, was conditioned on obtaining permission from the FHLBB to convert NPB into a commercial bank if Citicorp were otherwise authorized to obtain a commercial banking operation in the District of Columbia. FSLIC accepted neither offer, but informally invited both Getty and Citicorp to improve their offers.
Getty submitted improved offers twice, on April 14 and again on May 2, although he refused a May 7 request by FSLIC to further improve his offer. FSLIC calculated the cost of Getty’s final offer to be $59 million. On June 5, Citicorp wrote a letter to FSLIC repeating its February 28th offer but dropping the condition that it be allowed to convert NPB into a commercial bank. Aware of Citicorp’s new offer, Getty telephoned FSLIC on June 10 and requested an opportunity to submit a new offer in light of that development. FSLIC refused.
On June 16, finding Citicorp’s offer “substantially more favorable” than any other bid, FSLIC approved the Citicorp June 5th offer. Based on FSLIC’s calculations, Getty’s May 2nd offer would have cost FSLIC 13.5 percent, or $7 million, more than Citi-corp’s. Getty filed a request on June 18 asking FSLIC to reconsider the decision and permit him to submit a new offer pursuant to subsection (3)(A) of the Act. FSLIC, on June 26, denied the request.
The next day, Getty filed a petition asking this court to review FSLIC’s orders. Getty also asked us to grant an immediate stay of FSLIC’s orders, and establish a schedule for expedited consideration of the petition for review. FSLIC opposed the stay, arguing that “such relief would seriously jeopardize the ability of the Bank Board and FSLIC to protect the depositors of National Permanent, to preserve public confidence in the savings and loan industry and to safeguard FSLIC’s insurance fund.” Concluding that the public interest weighed heavily in favor of “expeditious consummation of the agreement,” but without endorsing FSLIC’s position, the court denied Getty’s motion on July 2. By order of July 10, however, the court set an expedited briefing schedule.
Citicorp was required to gain approval of its acquisition of NPB from the Federal Reserve Board as well as FSLIC. The “Fed” approved the transaction on August 1 and refused a request by Getty for a stay on the grounds that it was not the proper forum to challenge FSLIC’s bidding procedures — but, noting Getty’s position before this court, took no position on the merits of Getty’s challenge.
This court has jurisdiction to review FSLIC’s orders by virtue of 12 U.S.C. § 1730a(k). Review is to be had as provided in the Administrative Procedure Act, 5 U.S.C. §§ 701-706, but our remedial power is more explicit: we may “affirm, modify, terminate, or set aside, in whole or in part,” FSLIC’s order. 12 U.S.C. § 1730a(k) (1982). Our review must be “based on the full administrative record that was before [FSLIC] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). Section 1730a (k) provides that FSLIC “shall file in the court the record in the proceeding, as provided in section 2112 of title 28,” which in turn provides: “The record to be filed in the court of appeals in such proceeding shall consist of the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and proceedings before the agency....” 28 U.S.C. § 2112(b) (1982). FSLIC filed with the court a certified index to the complete administrative record, and provided Getty access to some but not all of the indexed documents.
On July 28, Getty filed an emergency motion to compel production to him of all the documents listed in the index. FSLIC’s opposition thereto argued the documents Getty had not been shown were either confidential, or privileged and irrelevant. FSLIC proposed to release the confidential documents (which included several intraag-ency memoranda that influenced FSLIC’s decision) to Getty under a protective order, and to make the other documents available to the court only, under seal. On August 5, the court granted FSLIC’s request with respect to the protective order, but deferred decision regarding the releasibility of the other documents. FSLIC then filed both categories of documents with the court. Immediately prior to oral argument on September 29, the court released to Getty two documents FSLIC had included in the part of the record filed with the court under seal: two intra-agency memo-randa, from Angelo Vigna (a FSLIC Supervisory Agent) and from Dan Kaschmitter (Director of FSLIC’s Mergers and Acquisitions Division), both to William King (of the FHLBB’s Office of General Counsel). We found the memoranda bore directly on an issue in the case, and fell under an exception to the privilege for deliberative intra-agency memoranda, since they were purely factual in nature. See National Courier Association v. Board of Governors of the Federal Reserve System, 516 F.2d 1229, 1241-42 (D.C.Cir.1975).
II.
When FSLIC determines that severe financial conditions threaten the stability of a federally-insured institution, subsection (1) of the Act provides that to lessen the risk to itself, FSLIC “may authorize any company to acquire control” of the institution. 12 U.S.C. § 1730a(m)(1)(A)(i) (1982). The Act creates tension between FSLIC’s two roles: insurer and regulator. As an insurer, FSLIC is responsible for protecting over $500 billion in funds deposited in approximately 95 million savings accounts. H.R.Rep. No. 272, 97th Cong., 1st Sess. 14 (1982). Often required to step in to administer failing insured institutions, FSLIC quite naturally wishes maximum flexibility to choose acquirers whose terms provide the least exposure to FSLIC’s insurance obligations. An out-of-state financial institution that could not otherwise enter the relevant market — because of functional and geographic legal restrictions — might be willing to present FSLIC the best offer, since it would be buying both the failing institution and an “exception” to present legal restrictions on its own expansion. Indeed, prior to passage of the Gam-St Ger-main Act, FSLIC had permitted subsidiaries of out-of-state banks — including Citi-corp — to merge with insured institutions under FSLIC’s supervisory control. FSLIC’s authority as regulator to permit such acquisitions was unclear, and in any event apparently limited to situations where the institution was actually in default and FSLIC had been appointed receiver. 12 U.S.C. § 1729(b) (1976) (amended 1982). Congress, concerned about the stability of the federal deposit insurance funds in light of financial difficulties at a growing number of insured institutions, wished to preserve that option and allow FSLIC to utilize it even when an institution had not yet defaulted. The Act was not intended to provide “ ‘fundamental change in the authority or role of the[e] agencies. Rather, it simply provides the FDIC and FSLIC, under specified conditions, with more flexibility...’” H.R.Rep. No. 272 at 11 (quoting testimony of Paul Volcker, Chairman, Federal Reserve Board) (emphasis added).
Those specified conditions, however, were clearly designed to limit FSLIC’s ability to create exceptions to current restrictions on interstate and inter-industry mergers and acquisitions, as illustrated by this colloquy on the floor of the House of Representatives:
Mr. Perkins: I would like to ask... if we have opened any doors to interstate banking in this bill?
Mr. Stanton: [M]y answer to that question is there is nothing. What it does do... is spell out the procedure for order, where there are institutions in trouble, and it sets up a procedure to follow.
128 Cong.Rec. H8437 (daily ed. Oct. 1, 1982). Similarly, referring to provisions of the Senate bill later incorporated in the Act, Senator Riegle explained on the floor, “[t]hese sections of the bill were very carefully drafted by the committee in order to reflect the concerns expressed by a number of Senators regarding the problems associated with interstate branching and cross-industry mergers.” 128 Cong.Rec. S12214 (daily ed. Sept. 24, 1982) (statement of Sen. Riegle).
Congress recognized that in authorizing acquisition of distressed institutions FSLIC would need absolute discretion in some areas, e.g., determining who is qualified to bid, 12 U.S.C. § 1730a(m)(2), and calculating the cost of the bids, 12 U.S.C. § 1730a(m)(3)(E). But see Hartigan v. Federal Home Loan Bank Board, 746 F.2d 1300, 1310 (7th Cir.1984). However, Congress balanced this flexibility with some requirements of procedural regularity: the Act “provided specific procedures for the agenc[y]... to follow in order to facilitate the acquisition or merger of failed or failing institutions.” H.R.Cong.Rep. No. 641, 97th Cong., 2nd Sess. 85 (1982). Whether FSLIC adhered to those procedures is the subject of this lawsuit.
A. Priorities
The functional and geographic priorities FSLIC must consider when authorizing the acquisition of a failing insured institution are set out in subsection (3)(B) of the Act, which provides:
In considering authorizations under this subsection, [FSLIC] shall give consideration to the need to minimize the cost of financial assistance and to the maintenance of specialized depository institutions. [FSLIC] shall authorize transactions under this subsection considering the following priorities:
(i) First, between depository institutions of the same type within the same State;
(ii) Second, between depository institutions of the same type in different States;
(iii) Third, between depository institutions of different types in the same State; and
(iv) Fourth, between depository institutions of different types in different States.
12 U.S.C. § 1730a(m)(3)(B).
The extent to which Congress would empower FSLIC to authorize emergency interstate and inter-industry acquisitions of troubled savings banks was, as we have indicated, a sensitive issue. Representative Gonzalez expressed a specific fear of some: “The bill will open the way for interstate megabanks. We can already see the outlines of these institutions.... Citibank has already acquired a major savings and loan a continent away from its headquarters.... [T]his bill lays the ground for a vast acceleration of the growing concentration of this Nation’s financial powers.” 128 Cong.Rec. H8434 (daily ed. Oct. 1, 1982) (statement of Rep. Gonzalez). That possibility was of lesser concern to other legislators: “Although I have been told that there are some industry people who would prefer to see an institution close rather than have it run by a different type of institution or one from another state, I know that this attitude is not prevalent in my part of the country.” H.R.Rep. No. 272 at 45 (supplementary views of Rep. McKinney). The final bill reflected a compromise. The following discussion on the House floor, of particular relevance to this issue, demonstrates that the offeror’s priority and the cost of the offer to FSLIC are to be given comparable weight in the determination of who would acquire troubled insured institutions:
Mr. McCollum:... Am I to understand... that the priorities are not to be given any lesser consideration in this bill, in the conference report, than the need to minimize financial loss to the corporation; am I correct in that?
Mr. Stanton:... [T]hat is correct.
Mr. St Germain: I concur in the correctness.
128 Cong.Rec. H8437 (daily ed. Oct. 1, 1982)
When a statute requires agencies to “consider” particular factors, it “imposes upon agencies duties that are ‘essentially procedural’.... [T]he only role for a court is to insure that the agency has considered the [factor].” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). But FSLIC’s entire administrative record contains only two fleeting references to the priorities of subsection (3)(B). The June 16 order awarding NPB to Citicorp contained a boilerplate recitation of the language of subsection (3)(B): “the Bank Board... has given full and due consideration to the need to minimize the cost of financial assistance, the maintenance of specialized depository institutions, and the priorities of [section 1730a(m)].” And a June 16 memorandum by FSLIC’s Acting General Counsel Harry Quillian merely stated, “In reviewing and costing the bids, the Office of the FSLIC adhered to the standards set forth in subsections (3)(A) and (B) of [section 1730a(m) ].”
Stating that a factor was considered, however, is not a substitute for considering it. We must make a “searching and careful” inquiry to determine if FSLIC actually did consider it. Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416, 91 S.Ct. at 823. Beyond FSLIC’s two cryptic assertions, we have searched the extensive administrative record in vain for any showing that FSLIC actually did give the statutorily required consideration to the bidders’ priorities. To be sure, the Act does not require FSLIC to make formal findings. Nor, because FSLIC’s action was an informal adjudication, 5 U.S.C. § 554, does the Administrative Procedure Act require that any particular procedure be followed. Still, even in informal adjudication an agency must provide the court an explanation sufficient to allow us to properly carry out our review. Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 419-20, 91 S.Ct. at 825-26; cf. American Trading Transportation Company, Inc. v. United States, 791 F.2d 942, 950 (D.C.Cir.1986).
We have considerable documentation of FSLIC’s decisionmaking process and it contains no evidence that FSLIC paid any attention to the priorities. During the June 16 FHLBB meeting at which Citi-corp’s offer was approved the following subjects were discussed: the terms of the competing offers, including their costs; Ci-ticorp’s agreement not to deal in securities to an extent not permitted by existing law; Citicorp’s agreement not to convert NPB to a commercial bank; Citicorp’s “integrity” as affected by payments it made to an advisor of District of Columbia Council-member Charlene Jarvis; and Citicorp’s record managing three FSLIC-insured institutions. However, not once during the entire meeting were the bidders’ priorities even mentioned.
The order approving Citicorp’s offer states that the Board considered in particular three memoranda. A June 16 memorandum by Thurman Connell, Acting Director, Office of FSLIC, compares advantages and disadvantages of the offers — but makes no reference to Getty’s and Citi-corp’s priorities. Also referred to is another June 16 memorandum, by Robert Cohrs, a FHLBB Supervisory Agent, which states:
Based on our analysis of the bids received and the institution’s adverse financial condition, the Citicorp proposal requires the least amount of FSLIC assistance and should provide a permanent solution to the problems of National Permanent. Therefore, we recommend that the Bank Board approve Citicorp’s proposal to acquire National Permanent.
Neither this nor the third memorandum noted in the order — the above-mentioned Quillian memorandum, containing an analysis of “significant legal issues” involved in the proposed Citicorp transaction — discusses the priorities.
In response to Getty’s argument that FSLIC failed to consider Getty’s statutory priority vis-a-vis Citicorp, FSLIC asserts that the “entire selection process was structured to give special consideration to the statutory priorities, in particular to finding qualified, financially capable acquirers within the state of the problem institution_ Because no in-state thrift solution was apparent, the FSLIC opened up the solicitation of offers to other potential offerors.” Brief of Respondent at 21 (emphasis added). This argument sidesteps the question of whether FSLIC considered the priorities and suggests that Getty is not entitled to a first priority. Yet FSLIC in effect conceded Getty enjoys a first priority by failing to deny the assertions in Getty’s opening brief that FSLIC’s “consistent practice and interpretation of the statute is to include individual acquirers in the highest priority category,” and that FSLIC representatives had specifically affirmed the practice would be maintained in the case of NPB. Brief of Petitioner at 16 n. 25. Instead, FSLIC’s brief implicitly acknowledges Getty has first priority but makes an abstruse challenge to the weight it should be accorded: “While arguing that he was technically a first priority offeror, Getty... [was] not a paradigm of the in-state thrift association that Congress sought to favor.” Brief of Respondent at 22 (emphasis added). Since an individual investor, such as Getty, who simply puts capital into a troubled thrift implicates none of the interstate or inter-industry considerations that give rise to Congress’ careful delineation of the priorities, it is difficult to understand how he could be regarded as other than a first priority acquirer. In any event, whether or not FSLIC could reasonably interpret the statute to treat individual investors as having less than first priority, FSLIC gave no indication pri- or to litigation that it had changed its practice and applied that interpretation of subsection (3)(B) to this proceeding. Therefore, FSLIC’s position must be rejected for purposes of this case. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
In addition to suggesting that Getty’s first priority status is dubious, FSLIC also contends that Citicorp carries, at minimum, a second priority because it is both an out-of-state savings and loan holding company and an out-of-state bank holding company. This is so, argues FSLIC, because although Citicorp is the nation’s largest bank holding company and owns the nation’s largest bank, it has now been permitted by FSLIC to acquire three failing saving and loan associations and therefore has achieved a double character for purposes of subsection (3)(B). This argument seems somewhat strained. The Garn-St Germain Act legislative history shows that even after it acquired one thrift, Citicorp was the paradigm of the disfavored acquiring institution. It turns the statutory purpose on its head to conclude that a large national bank could improve its disfavored status for acquiring out-of-state thrifts merely by acquiring a thrift, no matter how small, in a different state. Surely Citicorp’s character — the “type” of depository institution it is under subsection (3)(B) — is not altered by additions of small thrifts. Under FSLIC’s interpretation of the statute, certain large banks could achieve, at least for a time, an apparently capricious priority over others. And, as more and more bank holding companies acquire thrifts, and thus a “double character” under subsection (3)(B), the very distinction between depository institutions that the statute seeks to preserve would be obliterated. It ¿is unnecessary to conclusively reject this FSLIC argument, however, since even accepting arguendo FSLIC’s position that Citicorp has second priority, Getty’s priority, as we have determined, is higher for purposes of this case.
In sum, the record does not support FSLIC’s contention that it gave actual consideration to Getty’s and Citicorp’s priorities. The conclusory recitation in the June 16 order, and the even more terse statement in the June 16 Quillian memorandum, fall far short of the “reasoned consideration” Congress clearly intended. American Trading Transportation Company, Inc. v. United States, 791 F.2d at 950 (emphasis added). They contain no indication of which bidders had which priorities, let alone analysis of the priorities and how they influenced FSLIC’s decision. The administrative record does indicate considerations that contributed to FSLIC’s decision; the absence of any references to the priorities (beyond the two conclusory statements), especially when viewed in the light of the extensive documentation before us, leads us to conclude that FSLIC in fact did not consider the priorities. Because the statute required FSLIC to consider this factor, FSLIC’s orders exceeded its statutory authority.
B. Rebidding
• The Act also directs FSLIC to permit some offerors to submit new bids when certain conditions are met. Subsection (3)(A) provides:
If, after receiving offers, the offer presenting the lowest expense to the Corporation that is in a form and with conditions acceptable to the Corporation (hereinafter referred to as the “lowest acceptable offer”), is from an institution that is not an existing in-State insured institution or an in-State savings and loan holding company, the Corporation shall permit each offeror who made an offer the estimated cost of which to the Corporation was within 15 per centum or $15,-000,000, whichever is less, of the initial lowest acceptable offer to submit a new offer.
12 U.S.C. § 1730a(m)(3)(A) (emphasis added).
Getty contends that Citicorp’s June 5th bid was the “initial lowest acceptable offer.” Because Getty had made an offer prior to June 5 that was within 15 percent and $15 million of Citicorp’s offer, on June 10 and again on June 18 he requested an opportunity to rebid, invoking subsection (3)(A). FSLIC denied the request, maintaining that Citicorp’s earlier, February 28th bid — conditioned on obtaining permission to convert NPB into a commercial bank — constituted an “acceptable” offer (even though not accepted). If so, then Getty had no right under subsection (3)(A) to rebid — since Getty’s outstanding offer as of February 28 was more than 15 percent higher than Citicorp’s. Resolution of this issue, therefore, turns on the meaning of “lowest acceptable offer.”
FSLIC first argues that its application of the term “acceptable” is unreviewable because it is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (1982). An action is committed to agency discretion if “there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 410, 91 S.Ct. at 821. This, in turn, depends on whether “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” or whether instead Congress “has indicated an intent to circumscribe agency... discretion, and has provided meaningful standards for defining the limits of that discre-tion_” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 1657, 84 L.Ed.2d 714 (1985).
FSLIC contends its decision regarding whether an offer is “acceptable” is not an appropriate issue for judicial review because Congress provided no standards for making that determination. The statutory term “acceptable,” clearly not referring to what is actually accepted, is said to be a term of unbounded plasticity. If we were to accept this argument, the rebidding procedure of subsection (3)(A) might never be utilized, because FSLIC would have exclusive control over the trigger — receipt of an “acceptable” offer. Put another way, the rebidding procedure of subsection (3)(A) would be effectively rendered optional for FSLIC rather than mandatory. That, however, is the flaw in FSLIC’s argument: Congress made the rebidding procedure mandatory, and thereby deliberately restricted FSLIC’s flexibility. 12 U.S.C. § 1730a(m)(3)(A) (FSLIC “shall” permit a rebid). If “acceptable” meant whatever FSLIC said it meant in any given case, the legislative compromise would be undone. An “acceptable” offer then must carry a meaning that has operational bite — i.e., a meaning that obliges FSLIC to provide a rebidding opportunity once such an offer is received. It follows then, that “acceptable” must carry an interpretation that reflects this statutory purpose, and therefore necessarily is susceptible to judicial review. Moreover, the structure of the Act itself supports our determination that FSLIC’s discretion is limited here. The power to interpret other provisions of the statute is broadly delegated to FSLIC. It has “sole discretion” under subsection (2) to determine which prospective acquirers are “qualified and capable” and therefore able to bid. 12 U.S.C. § 1730a(m)(2). Similarly, subsection (3)(E) makes FSLIC’s calculation of the cost of offers “determinative”— although even that has been held subject to limited judicial review. Hartigan v. Federal Home Loan Bank Board, 746 F.2d 1300, 1310 (7th Cir.1984) (court can review FSLIC’s calculation of the cost of bids to ensure FSLIC acted consistently in the application of the methodology and economic assumptions). The fact that Congress in the same statute expressly committed only certain issues to agency discretion suggests an intention that other issues — including whether an offer is “acceptable” for purposes of subsection (3)(A) — be subject to judicial review. We therefore reject FSLIC’s contention that its application of the statutory term “acceptable” is “committed to agency discretion by law.”
We next turn to the interpretations of the phrase “lowest acceptable offer” advanced by the parties. Getty argues that Citicorp’s February 28th offer could not have been deemed acceptable, because the conversion condition transgressed FSLIC policy and was inconsistent with statutory direction if not command, 12 U.S.C. § 1730a(m)(3)(B) (FSLIC must consider “maintenance of specialized depository institutions”). FSLIC disagrees. Of course, if FSLIC’s interpretation of the phrase was a reasonable one we would be obliged to defer. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The difficulty with FSLIC’s position, however, is that although it disagrees with Getty it did not exactly fix upon its own interpretation — at least until oral argument — perhaps because of its view that its application of the term would be totally unreviewable. To be sure, on June 16 FSLIC announced that the original Citicorp offer was “acceptable” even though not accepted, and thus Getty had no rebidding rights. To the extent that this bald assertion purports to be an interpretation of statutory language, it is insufficiently explained to allow us to review it for reasonableness.
Prompted by Getty’s June 18 request for reconsideration, FSLIC’s acting general counsel wrote a memorandum to the FHLBB stating:
Only the FSLIC can determine whether a condition is “acceptable”.... The FSLIC examines such factors as the qualifications and managerial capacity of the acquirer, the cost of the proposal and the type of capital the acquirer plans to contribute.
The Citicorp offer was the least costly of the four and contained no conditions that were contrary to law or Bank Board policy. The Board found this initial Citicorp offer to be the “initial lowest acceptable offer.”
This analysis simply recites the factors FSLIC would use in determining whether to actually accept an offer; it casts no light on how the word in subsection (3)(A) should be interpreted.
In its brief FSLIC moved only a little closer to embracing a plausible interpretation of the term “acceptable.” FSLIC stated Citicorp’s conversion condition had been acceptable “because, as a general matter, offers for supervisory acquisitions containing such conversions of thrifts to commercial banks are acceptable to the FSLIC both as a matter of law and policy.” Brief of Respondent at 33-34. From this language it might be thought that FSLIC was arguing an offer is “acceptable” under subsection (3)(A) if it is consistent with both law and FSLIC policy. FSLIC’s appellate counsel, however, abandoned that position at oral argument when the court released to Getty an internal FSLIC memorandum, see supra p. 1053, suggesting Citicorp’s conversion condition was under review as a “policy consideration” on May 7 — more than two months after FSLIC received the offer. FSLIC’s counsel then shifted to a new definition of an “acceptable” offer: any offer that FSLIC could legally accept. However, because FSLIC “adopted no expressly articulated position at the administrative level as to the meaning” of the term, Investment Company Institute v. Camp, 401 U.S. 617, 627, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971), we may not accept this post hoc rationalization. To do otherwise would be to substitute counsel’s discretion for that of the agency. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962).
If we were obliged in this case to decide upon a definition, we would find the most natural interpretation of “lowest acceptable offer” to be the offer FSLIC would accept but for the rebidding requirement of subsection (3)(A). Under this construction, FSLIC would be obliged by subsection (3)(A) to stop just prior to accepting an offer from a bidder of less than highest priority, and compare it with offers on the table. If any such offer were within 15 percent and $15 million of the cost of the offer FSLIC would otherwise accept, FSLIC would be required to permit a new offer. We recognize this interpretation causes FSLIC operational difficulty — but the truth is any definition causes FSLIC difficulties.
Even if “acceptable” is given the more objective interpretation FSLIC suggests in its brief (an offer that is merely consistent with law and FSLIC policy), we believe it apparent that FSLIC did not apply that test in a reasonable manner. As of February 1986, FSLIC had never permitted an out-of-state bank to acquire a thrift and convert it to a commercial bank. In fact, as we noted, such a proposal runs counter to a specific factor FSLIC is obliged to consider in approving authorizations: maintenance of “specialized depository institutions.” 12 U.S.C. § 1730a(m)(3)(B). It is, therefore, not surprising that as late as May 7 FSLIC regarded the conversion condition of Citi-corp’s February 28th offer as presenting a “policy consideration for the Board.” See supra note 16. Even at that late date, FSLIC had not yet determined whether the conversion condition of Citicorp’s February 28th offer transgressed its policy. We find nothing in the record showing that FSLIC ever made that determination, until the issue was mooted by Citicorp’s removal of the condition. FSLIC’s action, we reluctantly conclude, indicates not so much an effort to interpret and comply with the statute as a fixed and resolute determination not to utilize subsection (3)(A) — an effort that seems to flout congressional direction.
Had FSLIC adopted its “law and policy” interpretation of “acceptable” reasonably contemporaneously with receipt of Citi-corp’s February 28th offer, and applied it in some fashion at that time, we would be faced with an agency interpretation to which Chevron would apply. But since FSLIC did not in a timely manner adopt an interpretation that would have permitted it to ascribe “initial lowest acceptable offer” status to Citicorp’s February 28th offer, the June 5th offer which FSLIC accepted must have been the “initial lowest acceptable offer.” And because Getty had previously submitted an offer that was within 15 percent and $15 million of that offer, FSLIC was required by subsection (3)(A) to permit Getty to submit a new offer. FSLIC’s order denying Getty permission to submit a new bid was therefore contrary to law.
III.
Getty argues that he alone should be permitted to submit a new offer for NPB — which presumably would then be
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Susie Parker NETTLES and Alvie C. Nettles, Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Limited and Continental Casualty Company, Appellees.
No. 15805.
United States Court of Appeals Fifth Circuit.
May 25, 1956.
Alvin B. Rubin and Huckabay, Seale, Kelton & Hayes, Baton Rouge, La., for appellants.
A. G. Seale, Baton Rouge, La., Breard Snellings, Ralph L. Kaskell, Jr., New Orleans, La., for appellees.
Before BORAH, TUTTLE and BROWN, Circuit Judges.
BORAH, Circuit Judge.
This case involves a collision between two automobiles which occurred at a street intersection in the city of Baton Rouge, Louisiana, on January 4, 1954. On this appeal appellants are seeking the reversal of certain orders and judgments which were entered below in favor of ap-pellees against whom appellants had brought actions to recover damages for personal injuries.
The material facts to the extent that they need here be stated are these: On December 21, 1953, C. O. Fowler purchased a 1951 Plymouth sedan from Big Four Motors, Inc., giving as consideration therefor a cash payment and his promissory note for the balance due, which note was secured by a chattel mortgage on the vehicle. On the following day Fowler signed application for a certificate of title, but on the date of the accident and at which time he was driving his car, the certificate of title to the automobile had not been issued to him. In this connection, it should here be mentioned that Big Four Motors was insured by appellee General Accident Fire and Life Assurance Corporation, Ltd. under a garage keeper’s policy of liability insurance containing an omnibus clause insuring any person driving insured’s vehicles with the insured’s consent. Continental Casualty Company, the other appellee herein, was the insurer of the Chevrolet, owned by Alvie C. Nettles, which vehicle at the time of the accident was being driven by Mrs. F. M Nettles.
Following the accident, three suits were filed in the District Court and were docketed as Civil Actions Nos. 1345, 1357 and 1359. The first of these actions was brought by Mrs. Willie F. Fowler, a resident of Louisiana and a guest in the Fowler automobile, against Continental Casualty Company as insurer of the Nettles vehicle claiming damages for personal injuries in the amount of $10,-000. The second suit by another resident of Louisiana was filed by Alvie C. Nettles, as the administrator of the estate of his minor child, against both of the aforementioned insurance companies. In this suit the claim was that the minor who was a guest in the Nettles vehicle was injured by reason of the negligence of Mrs. Nettles and the gross negligence of Fowler. Damages against defendants, jointly and in solido, in the amount of $25,000 was prayed. The third suit was brought by Mrs. Susie Parker Nettles, a resident of Louisiana and a guest in the Nettles vehicle, against both insurance companies seeking $30,000 damages against the defendants, jointly and in solido, for personal injuries sustained by reason of the negligence of Mrs. Nettles and the gross negligence of Fowler.
Thereafter, Continental Casualty filed an action of interpleader in the Court below, docketed as Civil Action No. 1390 and named as defendants therein each of the plaintiffs in the three above-mentioned civil actions and in addition Mrs. Erin R. Fowler, a resident of Mississippi, who was guardian of Fowler’s children by a prior marriage, and General Accident, a named co-defendant in Civil Actions Nos. 1357 and 1359. In this action the court’s jurisdiction was invoked on the grounds of diversity of citizenship, and the right to interplead the named defendants was set forth in three numbered paragraphs which read as follows:
“10. The demands in the suits already filed by defendants against plaintiff by reason of this one accident aggregate the sum of Sixty-five thousand ($65,000.00) Dollars, and plaintiff is threatened with suits by some of defendants in the federal and state courts which will increase the aggregate demand.
“11. Plaintiff has denied liability in the suits filed by defendants and in future suits will deny liability to the defendant in any sum whatsoever as a result of the alleged losses, but plaintiff fears that if by any possibility judgments should be rendered in separate jurisdictions or in separate suits plaintiff may be deprived of its legal right to have its liability limited to the limits of the liability policy issued by plaintiff, since the aggregate of the demands against plaintiff exceeds the limits of the liability policy.
* * * *
“13. Plaintiff is without an adequate remedy at law and may suffer irreparable injury unless all those asserting claims by reason of the above described accident are required to litigate their claims in this proceeding and are restrained from asserting their claims in separate suits.”
The defendants filed responsive pleadings and after a hearing the court made findings of fact and entered a judgment in which it was ordered:
“1. That Civil Actions Nos. 1345, 1357 and 1359 are hereby consolidated with this action under Civil Action No. 1390;
“2. That defendants are hereby permanently enjoined from instituting or prosecuting any action in any court against plaintiff, plaintiff’s assureds or drivers, to enforce any claim relating to the accident of January 4, 1954, except in this action;
“3. That all claims arising from said accident shall be made herein at least thirty days prior to trial or by January 5, 1955, whichever date occurs first;
“4. That jurisdiction of this action is retained by the court for the determination of the rights of the defendants against the plaintiff by reason of the accident and policy of liability insurance involved herein.”
Following the entry of this order, General Accident moved for summary judgments in its favor in Civil Actions Nos. 1357, 1359, and 1390 on the ground that its policy did not insure the Fowler vehicle. These motions were granted by the trial court in all three causes without assigning reasons therefor. The minute entries in two of the cases, Civil Actions Nos. 1357 and 1359, recite that the motion for summary judgment was granted “and there being no just cause of delay, the Clerk [was] instructed to enter judgment accordingly.” These judgments were entered forthwith, but no appeal was taken therefrom within thirty days after the dates of their entry.
Having dismissed the several actions as to General Accident, the consolidated cases came on for trial pursuant to an order of court that they were to be tried to the jury on the question of liability only. At the close of the evidence in the case all of the parties moved for and were denied a directed verdict and the court, pursuant to Rule 49(a), Federal Rules of Civil Procedure, 28 U.S.C.A., submitted the following interrogatories to the jury: (1) “Was the driver of the Nettles car guilty of negligence proximately contributing to the accident?”, and (2) “Was the driver of the Fowler car guilty of negligence proximately contributing to the accident?”. The jury answered the first interrogatory “no” and the second “yes”, whereupon the court entered judgment on the jury verdict dismissing the claims against Continental Casualty at the cost of the individual defendants in Civil Action No. 1390, and further ordered that Civil Actions Nos. 1345, 1357 and 1359 be dismissed at plaintiffs’ cost. Appellants thereupon moved for judgment n. o. v. and a new trial upon the grounds that the evidence conclusively showed that Mrs. Nettles was guilty of negligence which proximately caused the appellants’ damage, or in any event, that the jury’s findings were so contrary to the preponderance of evidence as to warrant a new trial. These motions were denied.
On this appeal, appellants urged ten specifications of error which we compress and restate as follows: that the court erred (1) in granting summary judgment in favor of General Accident and in ordering appellants to try their cause against Continental Casualty in the absence of the co-defendant General Accident, on the ground that Fowler was not the owner of the Plymouth automobile, but was driving it with the permission of the owner who was General Accident’s insured; (2) in consolidating and trying together the four civil actions, and in ordering all claimants against Continental Casualty to interplead their claims because the court was without jurisdiction to try this action as an interpleader action; (3) in trying the issue of negligence separately from the issue of damages; and (4) in refusing to grant appellants’ motions for a directed verdict, for judgment n. o. v., and for a new trial, and in considering itself bound by the verdict of the jury notwithstanding the action was an equitable interpleader ac? tion not triable of right by a jury.
At the threshold we are met with the motion of appellee, General Accident, to dismiss this appeal on the ground that the notice of appeal, filed June 9, 1955, was not timely inasmuch as summary judgment in Civil Actions Nos. 1357 and 1359 were granted on November 12,1954, and the minutes of the court show that the court specified, pursuant to Rule 54 (b), Federal Rules of Civil Procedure, that such judgments were entered because there was “no just cause of delay.”
We are of opinion that the motion to dismiss the appeal should be denied for the all-sufficient reason that Rule 54(b) is applicable only in instances in which more than one claim for relief is presented. Steiner v. Twentieth Century-Fox Film Corp., 9 Cir., 220 F.2d 105; Gold Seal Co. v. Weeks, 93 U.S. App.D.C. 249, 209 F.2d 802; The present suit against alleged joint tort feasors presents but a single claim and the judgments dismissing General Accident were interlocutory and subject to review only upon the final determination of the cause. Tauzin v. Saint Paul Mercury Indemnity Co., 5 Cir., 195 F.2d 223; Lewis v. E. I. DuPont De Nemours & Co., 5 Cir., 183 F.2d 29, 21 A.L.R.2d 757; Hunteman v. New Orleans Public Service, Inc., 5 Cir., 119 F.2d 465.
We also think it clear that the court correctly granted the motions for summary judgment because the evidence shows that the Fowler automobile had been sold by General Accident's insured, Big Four Motors, Inc. Whether Fowler possessed a merchantable or marketable title to the vehicle is certainly not determinative of whether he was in fact the owner. All of the requisites for perfecting a contract of sale having been accomplished, we hold that Fowler, not Big Four, was the owner of the vehicle. We find no provision in the policy of insurance and there is no provision in the Louisiana Certificate of Title Law which changes the basic law of Louisiana concerning contracts of sale or requires that public liability insurance coverage follow an automobile which has been sold by an insured until such time as its vendee acquires evidence of that ownership, 1. e., a certificate of title.
Appellants’ objection to the trial court’s having consolidated the three civil actions with the interpleader action is also without merit. Consolidation of the several cases involving common questions of law and fact for trial under Rule 42, Federal Rules of Civil Procedure, was in all respects proper. Moreover, in view of the fact that as to the appellants, the judgment of interpleader had only the effect of consolidating the already pending actions against Continental Casualty, it is unnecessary for us to determine whether the interpleader action was properly brought under Rule 22, Federal Rules of Civil Procedure, since appellants were not and could not have been prejudiced by the court’s action.
“On and after December 35, 1950, except as provided in R.S. 32:705 and 32:-712, no person buying a vehicle from the owner thereof, whether such owner be a dealer or otherwise, hereafter shall acquire a marketable title in or to said vehicle until the purchaser shall have obtained a certificate of title to said vehicle.”
Nor do we find any merit in appellants’ contention that the court erred in trying the issue of liability separate from the issue of damages. No prejudice has been shown and we think the court in furtherance of convenience rightly exercised its discretion under Rule 42 (b), Federal Rules of Civil Procedure.
Equally without merit are appellants’ contentions that the trial court erred in refusing to grant their motions for directed verdict, judgment n. o. v., and a new trial. Without setting forth the testimony in detail, we deem it sufficient to say that we agree with the trial court’s conclusion that there was a substantial conflict in the evidence which precluded the direction of a verdict in favor of the appellants at the close of the evidence, as well as granting a judgment n. o. v. Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115. Finally, we are not convinced that the denial of appellants’ motions for a new trial constituted an abuse of discretion. Indeed, appellants do not argue the point and are deemed to have waived this assignment.
Finding no reversible error in the record, the judgment is
Affirmed.
. “Definition of insured. With respect to the insurance under coverages A, B, and D the unqualified word ‘insured’ includes the named insured and also includes * * * (2) any person while using an automobile covered by this policy, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * * ”
. LSA-Ilevised Statutes of 1950, 32:706 provides:
. LSA-Ilevised Statutes of 1950, 32:701 et seq.
. LSA-Civil Code, Art. 2439 provides: “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.” (Italics ours.)
LSA-Civil Code Art. 2456 provides: “The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_r_stid
|
22
|
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.
Alan LEFKOWITZ, Petitioner, Appellant, v. Michael FAIR, Commissioner, Department of Corrections, et al., Respondents, Appellees. Arif HUSSAIN, et al., Petitioners, Appellees, v. Michael FAIR, etc., et al., Respondents, Appellees, Alan Lefkowitz, Petitioner, Appellant.
Nos. 86-1723, 86-1962.
United States Court of Appeals, First Circuit.
Argued March 4, 1987.
Decided April 13, 1987.
Gail S. Strassfeld, Boston, Mass., with whom Silverglate, Gertner, Fine, Good & Mizner, Boston, Mass, was on brief, for petitioner, appellant.
Paula J. DeGiacomo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees.
Before BOWNES and SELYA, Circuit Judges, and PETTINE, Senior District Judge.
Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge.
Alan Lefkowitz, M.D., petitioner-appellant, asks us to review orders of two different judges of the United States District Court for the District of Massachusetts, the net effect of which was to frustrate his belated attempt to have a state conviction screened by means of habeas corpus, 28 U.S.C. §§ 2241-54, for federal constitutional error. Having surveyed the scene, we affirm the judgments entered below.
I.
In June 1981, the appellant, then a thirty year old physician, was convicted, along with two other men, of rape. He was sentenced to imprisonment for a term of three to five years (six months to be served, the balance suspended), together with a period of probation. In the aftermath of this conviction, Lefkowitz’s license to practice medicine in Massachusetts was revoked. He and his codefendants appealed the convictions to the state’s highest tribunal, but without success. See Commonwealth v. Sherry, 386 Mass. 682, 437 N.E.2d 224 (1982). On July 7, 1982, the same day that he began serving his jail term, Lefkowitz filed a petition for writ of habeas corpus in the federal court (Habeas I). On the authority of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district court (Keeton, J.) ruled that the petitioner had failed to exhaust, within the purview of 28 U.S.C. § 2254, one of the two claims upon which his habeas application rested. Accordingly, Lefkowitz was properly confronted with the alternative of amending his petition (to delete the neoteric claim) or revisiting the state courts (to exhaust his remedies fully). See, e.g., Rose, 455 U.S. at 520-21, 102 S.Ct. at 1204. The appellant elected to return to state court and Judge Keeton dismissed his federal habeas petition without prejudice. That dismissal was not appealed.
While Lefkowitz was engaged in the pursuit of his unexhausted claim in the Massachusetts courts, he completed serving his sentence. He was unconditionally released from state custody when his probationary period expired on March 20, 1984. Although the parties trade allegations as to who — if anyone — was responsible for the relative languor which attended the proceedings in federal district court and for the delay in postconviction review in the state judicial system, we deem that wrangling to comprise a nonissue; we will not gratuitously troll in such troubled waters. Suffice it to say that, when the remedial gamut had been run in the Commonwealth’s courts, Lefkowitz filed a new application for habeas relief (Habeas II) in the federal district court on April 18,1986. As a new case, Habeas II was assigned to Judge Skinner through the district’s random lottery. The court summarily dismissed Habeas II on initial perscrutation, see Rule 4, 28 foil. § 2254, finding that it was an original proceeding in which the applicant lacked standing because he was not “in custody” as of the filing date.
Lefkowitz struck back on two fronts at once. He asked Judge Skinner to reconsider the dismissal of Habeas II and also asked Judge Keeton to amend the order dismissing Habeas I to indicate that the court had retained jurisdiction over the proceeding when Habeas I was jettisoned. Neither motion bore fruit. These appeals ensued.
II.
The Great Writ, as habeas corpus has come to be known, is not casually available. In order to interest a federal court in using this power, one who protests his treatment in state criminal proceedings must be “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254. This precondition traces its ancestry on this side of the Atlantic to the very first federal habeas statute, 1 Stat. 82 (1789), and derives from the historic practice in England. For centuries, the essence of the procedure has been to direct the prerogative writ “to him who hath the custody of the body.” Anon., 78 Eng. Rep. 27 (1586). As the Supreme Court has declared, this proviso “is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973). And, if the custody requirement is to continue to be a meaningful one, definition of the term must be constrained by its natural legal boundaries.
To be sure, there has been some subtle shifting since Chief Justice Marshall declared the “great object” of the writ to be “the liberation of those who may be imprisoned without cause,” and likened it to “a writ of error, to examine the legality of the commitment.” Ex parte Watkins, 28 U.S. (3 Peters) 193, 202, 7 L.Ed. 650 (1830). In the intervening years, the meaning of “custody” has been broadened by the courts so that, in the § 2254 context, it is no longer limited to physical custody. See Justices of the Boston Municipal Court v. Lydon, 466 U.S. 294, 301, 104 S.Ct. 1805, 1809, 80 L.Ed.2d 311 (1984) (pretrial release on personal recognizance constitutes custody); Hensley, 411 U.S. at 349-51, 93 S.Ct. at 1573-74 (release on personal recognizance pending execution of sentence constitutes custody); Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 375-77, 9 L.Ed.2d 285 (1963) (parole tantamount to custody). Nevertheless, one constant has not changed over time: he who seeks the succor of habeas corpus must be subject then and there to “restraints not shared by the public generally,” Jones v. Cunningham, 371 U.S. at 240, 83 S.Ct. at 376, and “at the least, to some type of continuing governmental supervision.” Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984). Although a habeas petition does not automatically become moot if custody abates after the case is brought and while it is still pending, Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968), that is not Lefkowitz’s lot. Rather, the appellant, insofar as Habeas II is concerned, runs up against the principle that “a sentence that has been fully served does not satisfy the custody requirement of the habeas statute, despite the collateral consequences that generally attend a criminal conviction.” Tinder, 725 F.2d at 803.
In many respects, this appeal is a fair congener to Tinder; the cases possess important similarities. In Tinder, the appellant, then serving a suspended sentence, filed a habeas corpus petition which was promptly dismissed because he had neglected to explore available state court remedies. After the exhaustion requirement had been fulfilled, the applicant returned to federal court. By then, he had completed serving his sentence. Although Tinder had been in custody when he filed his initial petition, that was not so the second time around. We held, therefore, that he lacked standing to pursue his quest for habeas relief. 725 F.2d at 803-06. Lefkowitz, despite his valiant efforts to separate himself from the rationale of Tinder, cannot split the atom.
Insofar as the appellant urges that “custody” remains attached to a degree sufficient to warrant the exercise of federal habeas jurisdiction even after the expiration of his state sentence, he is whistling past the graveyard. His chief talking point is that the rape conviction led to the revocation of his license to practice medicine. His license remains revoked and, as he sees it, any chance of restoration effectively depends upon having the conviction erased. This concatenation of circumstances, he contends, amounts to a restraint on liberty severe enough to constitute “custody” for habeas purposes. Passing one obvious flaw in Lefkowitz’s argument — it is nowhere clear from the record that vacatur of his conviction will ipso facto insure restoration of his medical license — we must disagree with his basic premise.
Habeas jurisprudence has traditionally been concerned with liberty rather than property, with freedom more than economics. We have regularly held that “some vaguely defined discrimination or some sort of economic duress” resulting from a conviction does not, by itself, confer standing to invoke the remedy of habeas corpus. Matter of Matheisel, 289 F.2d 824 (1st Cir.1961) (per curiam). He who seeks the writ must be incarcerated, or under imminent threat of incarceration, in order to meet the custody requirement of the habeas statute. Tinder, 725 F.2d at 803-04.
As the Court has put it:
Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.
Hensley, 411 U.S. at 351, 93 S.Ct. at 1574. Accord Bailey v. United States Commanding Officer, 496 F.2d 324, 325 (1st Cir.1974).
Viewed from this perspective, the revocation of a medical license by a state agency, although unquestionably a substantial blow to an individual desirous of practicing the healing arts in the Commonwealth, does not constitute the type of grave restraint on liberty or the sort of ongoing governmental supervision which are unavoidable prerequisites of actionable “custody.” Adverse occupational and employment consequences are a frequent aftermath of virtually any felony conviction. Government regulation, in the nature of the imposition of civil disabilities — say, loss of voting rights or disqualification from obtaining a gun permit — often follows a defendant long after his sentence has been served. To hold that the custody requirement is so elastic as to reach such sequellae would be to stretch the concept of custody out of all meaningful proportion, to render it limp and shapeless — in the last analysis, to make habeas corpus routinely available to all who suffer harm emanating from a state conviction, regardless of actual custodial status. We abjure such an expansive rule.
In so holding, we join a consentient line of authority to like effect. There are no magic mirrors: even grievous collateral consequences stemming directly from a conviction cannot, without more, transform the absence of custody into the presence of custody for the purpose of habeas review. E.g., Ginsberg v. Abrams, 702 F.2d 48, 49 (2d Cir.1983) (per curiam) (judge’s removal from the bench, loss of right to practice law, and disqualification from licensure as real estate or insurance agent insufficient to constitute “custody” for habeas purposes); Harvey v. South Dakota, 526 F.2d 840, 841 (8th Cir.1975) (per curiam) (inability to pursue certain professions or to possess firearms, and status of recidivist if another crime committed, do not add up to “custody”), cert. denied, 426 U.S. 911, 96 S.Ct. 2236, 48 L.Ed.2d 837 (1976); Furey v. Hyland, 395 F.Supp. 1356, 1360 (D.N.J.1975) (potential loss of medical license, damage to reputation, and inability to resume public office not “custody,” absent recognized restraints on liberty), aff'd mem,., 532 F.2d 746 (3d Cir.1976).
For these reasons, we conclude that Lefkowitz, who was well past the end of his custody when Habeas II was filed, had no standing to pursue the Great Writ at that time. Thus, Judge Skinner was plainly correct as a matter of law both in summarily dismissing the petition and in declining to reconsider and rescind the dismissal order.
III.
The appellant has a second string to his bow. Notwithstanding the untimeliness of Habeas II, he argues that the district court retained jurisdiction over his case — expressly or by fair implication — when Habeas I was dismissed. Accordingly, he asserts that Judge Keeton should have permitted the reopening of Habeas I in 1986 (after Lefkowitz had at long last fulfilled the exhaustion requirement).
The petitioner’s argument prescinds in the first instance from Tinder, a case where we declined to find retention of jurisdiction “in the absence of an expression of retention in the dismissal order or any request for retention ... at the time the first petition was dismissed.” 725 F.2d at 805. This statement is of scant solace to the petitioner. Lefkowitz admits that no such explicit request was made on his behalf at the time of the original proceedings before Judge Keeton, and we are totally unable to find any expression of a retention of jurisdiction in the district court’s orders. The colloquy to which the appellant points is equally unenlightening. Accordingly, we need not reach — and express no opinion on — the more difficult question of whether a federal district court can retain jurisdiction when it dismisses a habeas petition on exhaustion grounds. See Tinder, 725 F.2d at 805.
The appellant’s contention that there was an express retention of jurisdiction is premised largely on language in the rescript adumbrating the dismissal of Habeas I, where Judge Keeton wrote that “the entire habeas petition will be dismissed without prejudice, leaving petitioner free ... to exhaust state remedies and, if not successful, to petition again in this court.” Lefkowitz now asserts that he relied on this statement as an explicit retention of jurisdiction, governing his subsequent conduct. Fairly viewed, we can best characterize Lefkowitz’s self-styled reliance as an attempt at post hoc rationalization.
The phraseology to which the appellant adverts is, at best, merely a restatement of his rights under the circumstances then extant, not even close to a guarantee or assurance of continuing (special) access to the district court in the face of changing circumstances. Judge Keeton did no more than to point out that, if Lefkowitz was not successful in obtaining redress in the state courts and if the burdens of custody continued to infringe substantially upon his liberty, he could then approach the district court anew, having cleared the exhaustion hurdle. “Free ... to petition again” in the federal court, to us, does not sound the same as “entitled ... to petition again irrespective of custodial status.” To try to read into this forthright statement the interpretative nuances hawked by the appellant would require a set of mental gymnastics far too acrobatic for law and logic. We will not encourage parties to twist the contours of plain meaning. And, if they persist in doing so, we will not rescue them from the predictable consequences of such foolhardiness. Compare Allied International, Inc. v. International Longshoremen’s Ass’n, AFL-CIO, 814 F.2d 32, 36 (1st Cir.1987) (where defendants drew an unsupportable conclusion from the language of a pleading, “they acted without a reasonable basis — and thus, at their peril”).
Lefkowitz cites a series of three Fifth Circuit cases which he tells us hold that similar language in a district court decree constituted an expression that jurisdiction was retained. See Boyer v. City of Orlando, 402 F.2d 966 (5th Cir.1968); Brent v. White, 398 F.2d 503 (5th Cir.1968), cert. denied, 393 U.S. 1123, 89 S.Ct. 998, 22 L.Ed.2d 130 (1969); Peters v. Rutledge, 397 F.2d 731 (5th Cir.1968). We find his reliance to be mislaid. In Boyer, the court retained jurisdiction over the habeas proceedings while the petitioner returned to state court to exhaust his remedies, but it did so by ordering the petitioner released on bail (thus keeping him “in custody”) until the state court completed hearing his case. 402 F.2d at 968. In Brent, where a death sentence hung in the balance, the court expressly retained jurisdiction while the habeas petitioner returned to state court to exhaust his remedies, writing in no uncertain terms: “we will retain jurisdiction in order to continue the stay of execution.” 398 F.2d at 507. In Peters, the court indeed used language to the effect that, after exhausting state court remedies, the applicant could “return to the Federal Court for its inescapably independent judgment on federal issues.” 397 F.2d at 741. Yet, the context in which the statement was made had to do with the question of the propriety of successive state/federal petitions rather than the maintenance of a federal string pending exploration of state remedies. See Pryor v. Beto, 460 F.2d 306 (5th Cir.1972) (per curiam) (citing Peters for the proposition that a subsequent federal petition following exhaustion of state remedies is not barred on res judicata grounds). The Peters court gave no indication that it intended the quoted comment to constitute a retention of jurisdiction.
Lefkowitz makes much of the fact that, at the time Habeas I was dismissed, he was near the temporal end of his sentence. He argues that Judge Keeton understood that the appellant would be unable to re-petition in federal court unless jurisdiction was retained, and thus must perforce have intended that his order constitute a means of holding onto federal jurisdiction. Yet, the record belies this freewheeling assumption. We have carefully examined the nisi prius roll and find absolutely no indication of such knowledge or intent. To the contrary, it seems clear that Lefkowitz never brought the point to the attention of the judge. We have said before that “the district court speaks to us primarily through its decrees____” Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir.1984). In the case at bar, Judge Keeton’s order contained not the slightest ambiguity; it was not only barren of any reference to retaining the case, but it was equally barren of any reference to the chronology of events which Lefkowitz now claims was the cynosure of all eyes. There is no basis for the claim that the court had enjoyed a preview of coming attractions.
If any lingering doubt attended the matter, we can look in this instance to the author’s own statement of his intent. As we have indicated previously, e.g., Advance Financial Corp., 747 F.2d at 26 & n. 10, uncertainty as to the meaning and intendment of a district court order can sometimes best be dispelled by deference to the views of the writing judge. Here, when the petitioner moved in 1986 to reopen Habeas I and/or to clarify the dismissal order therein, Judge Keeton expressly declined the invitation to rewrite the order so as to profess nunc pro tune a retention of jurisdiction. Indeed, the judge noted that, to his mind, retention would have been inconsistent with the “underlying purposes of the exhaustion requirements.” It was, at the least, within Judge Keeton’s discretion, see Tinder, 725 F.2d at 805, to refuse to keep jurisdiction over Habeas I. We find nothing in either the language which he employed at the time or in the record of the original proceeding which buttresses the argument that jurisdiction was retained. No spoor were left for the cognoscenti to mark the trail in that direction. Given the court’s wording and the flow of events as they transpired, the appellant’s claim of express retention smacks of wishful thinking.
As a subset of this exhortation, Lefkowitz asserts that, even if the district court did not expressly retain jurisdiction over Habeas I, retention of jurisdiction should be implied based upon the facts and circumstances of the case. But, this assertion cannot withstand routine scrutiny. It is the law of this circuit that, if a string is to be left intact, “it is advantageous for the courts and the parties to know beforehand [that] jurisdiction over the claim will be retained.” Tinder, 725 F.2d at 805. The district courts, aware of this principle, will likely not mince words if they desire to preserve jurisdiction. Thus, we must be correspondingly cautious in implying retained jurisdiction after the fact.
Assuming without deciding that there may be a rare case which demands such an implication, it is certainly not this one. There is little reason to infer retention in a case where the petitioner, who was represented by seasoned counsel throughout the proceedings, did not timely request that jurisdiction be kept alive. Moreover, no circumstances exist which make this case so extraordinary that the rulebook should be discarded. To imply retention here would be tantamount to holding that a “timely-filed habeas petition automatically gives the district court retained jurisdiction to hear the claim even if custody ends before the petition is refiled provided the original petition was dismissed solely for failure to exhaust state court remedies.” Tinder, 725 F.2d at 805. We rejected precisely that point of view in Tinder. See id.; accord Kravitz v. Pennsylvania, 546 F.2d 1100, 1102-03 (3d Cir.1977). Having done so, recently and for good reason, we see no warrant to reverse ourselves and embrace the postulate for Lefkowitz’s sake. And on this basis, there was likewise no mandatory relation-back when Habeas II was docketed.
Lefkowitz bemoans the fact that the district court, in dismissing his original petition, indicated that the unexhausted claim was “constitutionally compelling.” Unless jurisdiction is implied, he laments, all opportunity to have that claim (or his other claims) heard by a federal court will be lost. This dolorousness points up a fundamental misconception. Federal habeas review is not an academic exercise designed to solve puzzling legal questions. It is a means of emergency relief in straitened situations, a means which ought not to be energized needlessly once the emergency— “custody,” as we have defined it — abates. We cannot forget that “the traditional meaning and purpose of habeas corpus [is] to effect release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S.Ct. 1827, 1834 n. 7, 36 L.Ed.2d 439 (1973). Accord Johnson v. Moran, 812 F.2d 23 (1st Cir.1987) (per curiam); cf. Medley, 134 U.S. 160, 173-74, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890). And in the jurisdictional sense, the appellant is not in custody; he has no existing shackles for us to sever.
The result with which Lefkowitz is now faced, i.e., the inability to present legal arguments anent his guilt or the fairness of his trial to a federal court, is not the sort of hardship that the habeas power was designed to redress. After all,
[W]e must ... attach some meaning to the Congressional limitation on habeas corpus jurisdiction; Congress did not authorize the federal courts to be roving commissions to correct all constitutional errors in state criminal proceedings.
Hanson v. Court of the First Judicial Circuit of Illinois, 591 F.2d 404, 407 (7th Cir.), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979).
The Great Writ is powerful medicine. Congress has prescribed, however, that it should be administered only in cases in which a classic set of symptoms appears. That prescription tracks the historical foundation of habeas corpus. We must be watchful of cases, like the present one, that try to employ the writ, heedless of the conditions under which its remedy may rightfully be dispensed, as a general panacea for whatever ails a given petitioner.
IV.
In summary, we find that, at the time the appellant’s initial petition for habeas corpus was dismissed without prejudice in the district court, jurisdiction was not retained either expressly or impliedly. We further find that Lefkowitz was not in custody when he filed his second application for habeas corpus in the district court.
Given these findings, it is plain that Judge Keeton did not err either in refusing to amend the dismissal order in the first habeas proceeding or in declining to reopen that proceeding. It is equally plain that Judge Skinner correctly dismissed the later habeas petition for want of federal jurisdiction. For the reasons which we have stated, the judgments below are each
Affirmed.
. The appellant’s sentence structure played out in the following manner: on July 7, 1982, he began serving the committed portion of his sentence; with credit for "good time," he was released from the penitentiary in December of that year, and started his probationary term on January 1, 1983. His probation was finished no later than March 1984.
. It is, we think, not without significance that the appellant's able counsel filed an entirely fresh application. The attempt to explain away this tactic is altogether unconvincing. Had Lefkowitz seriously cherished the belief that the district court retained jurisdiction when it dismissed Habeas I, he would doubtless have applied to reopen that proceeding, rather than initiating a new suit.
. To be sure, collateral consequences may be relevant to the question of whether a petition for habeas corpus becomes moot when custody abates while the application is pending. See, e.g., Carafas v. LaVallee, supra; Carter v. Procunier, 755 F.2d 1126, 1129-30 (5th Cir.1985). Inasmuch as Lefkowitz was not in custody when he instituted Habeas 11, however, we have no occasion to march onto the mootness battleground.
. The appellant argues, in the alternative, that Habeas II should be deemed to relate back to the time when he was in prison, i.e., when he filed Habeas I. This is merely another way of framing the same point. Therefore, nothing would be gained by an independent consideration of this alternative. If one’s concern is for vehicular clearance, it is of metaphysical interest only whether the turnpike authority raises the overpass or lowers the roadbed. Similarly, whether we address the problem in terms of the ostensible right to have Habeas I reopened or to have Habeas II relate back, the dimensions of the legal issue remain exactly the same.
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:
|
sc_threejudgefdc
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
TANK TRUCK RENTALS, INC., v. COMMISSIONER OF INTERNAL REVENUE.
No. 109.
Argued January 29-30, 1958.
Decided March 17, 1958.
Leonard Sarner argued the cause for petitioner. With him on the brief was Paul A. Wolkin.
Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Rice, Joseph F. Goetten and Meyer Rothwacks.
Mr. Justice Clark
delivered the opinion of the Court.
In 1951 petitioner Tank Truck Rentals paid several hundred fines imposed on it and its drivers for violations of state maximum weight laws. This case involves the deductibility of those payments as “ordinary and necessary” business expenses under §23 (a)(1)(A) of the Internal Revenue Code of 1939. Prior to 1950 the Commissioner had permitted such deductions, but a change of policy that year caused petitioner’s expenditures to be disallowed. The Tax Court, reasoning that allowance of the deduction would frustrate sharply defined state policy expressed in the maximum weight laws, upheld the Commissioner. 26 T. C. 427. The Court of Appeals affirmed on the same ground, 242 F. 2d 14, and we granted certiorari. 354 U. S. 920 (1957). In our view, the deductions properly were disallowed.
Petitioner, a Pennsylvania corporation, owns a fleet of tank trucks which it leases, with drivers, to motor carriers for transportation of bulk liquids. The lessees operate the trucks throughout Pennsylvania and the surrounding States of New Jersey, Ohio, Delaware, West Virginia, and Maryland, with nearly all the shipments originating or terminating in Pennsylvania. In 1951, the tax year in question, each of these States imposed maximum weight limits for motor vehicles operating on its highways. Pennsylvania restricted truckers to 45,000 pounds, however, while the other States through which petitioner operated allowed maximum weights approximating 60,000 pounds. It is uncontested that trucking operations were so hindered by this situation that neither petitioner nor other bulk liquid truckers could operate profitably and also observe the Pennsylvania law. Petitioner's equipment consisted largely of 4,500- to 5,000-gallon tanks, and the industry rate structure generally was predicated on fully loaded use of equipment of that capacity. Yet only one of the commonly carried liquids weighed little enough that a fully loaded truck could satisfy the Pennsylvania statute. Operation of partially loaded trucks, however, not only would have created safety hazards, but also would have been economically impossible for any carrier so long as the rest of the industry continued capacity loading. And the industry as a whole could not operate on a partial load basis without driving shippers to competing forms of transportation. The only other alternative, use of smaller tanks, also was commercially impracticable, not only because of initial replacement costs but even more so because of reduced revenue and increased operating expense, since the rates charged were based on the number of gallons transported per mile.
Confronted by this dilemma, the industry deliberately operated its trucks overweight in Pennsylvania in the hope, and at the calculated risk, of escaping the notice of the state and local police. This conduct also constituted willful violations in New Jersey, for reciprocity provisions of the New Jersey statute subjected trucks registered in Pennsylvania to Pennsylvania weight restrictions while traveling in New Jersey. In the remainder of the States in which petitioner operated, it suffered overweight fines for several unintentional violations, such as those caused by temperature changes in transit. During the tax year 1951, petitioner paid a total of $41,060.84 in fines and costs for 718 willful and 28 innocent violations. Deduction of that amount in petitioner’s 1951 tax return was disallowed by the Commissioner.
It is clear that the Congress intended the income tax laws “to tax earnings and profits less expenses and losses,” Higgins v. Smith, 308 U. S. 473, 477 (1940), carrying out a broad basic policy of taxing “net, not . . . gross, income . . . .” McDonald v. Commissioner, 323 U. S. 57, 66-67 (1944). Equally well established is the rule that deductibility under § 23 (a)(1) (A) is limited to expenses that are both ordinary and necessary to carrying on the taxpayer’s business. Deputy v. du Pont, 308 U. S. 488, 497 (1940). A finding of “necessity” cannot be made, however, if allowance of the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct, evidenced by some governmental declaration thereof. Commissioner v. Heininger, 320 U. S. 467, 473 (1943); see Lilly v. Commissioner, 343 U. S. 90, 97 (1952). This rule was foreshadowed in Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 (1941), where the Court, finding no congressional intent to the contrary, upheld the validity of an income tax regulation reflecting an administrative distinction “between legitimate business expenses and those arising from that family of contracts to which the law has given no sanction.” 314 U. S., at 339. Significant reference was made in Heininger to the very situation now before us; the Court stated, “Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted a tax deduction for its payment.” 320 U. S., at 473.
Here we are concerned with the policy of several States “evidenced” by penal statutes enacted to protect their highways from damage and to insure the safety of all persons using them. Petitioner and its drivers have violated these laws and have been sentenced to pay the fines here claimed as income tax deductions. It is clear that assessment of the fines was punitive action and not a mere toll for use of the highways: the fines occurred only in the exceptional instance when the overweight run was detected by the police. Petitioner’s failure to comply with the state laws obviously was based on a balancing of the cost of compliance against the chance of detection. Such a course cannot be sanctioned, for judicial deference to state action requires, whenever possible, that a State not be thwarted in its policy. We will not presume that the Congress, in allowing deductions for income tax purposes, intended to encourage a business enterprise to violate the declared policy of a State. To allow the deduction sought here would but encourage continued violations of state law by increasing the odds in favor of noncompliance. This could only tend to destroy the effectiveness of the State’s maximum weight laws.
This is not to say that the rule as to frustration of sharply defined national or state policies is to be viewed or applied in any absolute sense. “It has never been thought . . . that the mere fact that an expenditure bears a remote relation to an illegal act makes it nondeductible.” Commissioner v. Heininger, supra, at 474. Although each case must turn on its own facts, Jerry Rossman Corp. v. Commissioner, 175 F. 2d 711, 713, the test of nondeductibility always is the severity and immediacy of the frustration .resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.
Certainly the frustration of state policy is most complete and direct when the expenditure for which deduction is sought is itself prohibited by statute. See Boyle, Flagg & Seaman, Inc., v. Commissioner, 25 T. C. 43. If the expenditure is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the “sting” of the penalty prescribed by the state legislature.
There is no merit to petitioner’s argument that the fines imposed here were not penalties at all, but merely a revenue toll. It is true that the Pennsylvania statute provides for purchase of a single-trip permit by an over-weighted trucker; that its provision for forcing removal of the excess weight at the discretion of the police authorities apparently was never enforced; and that the fines were devoted by statute to road repair within the municipality or township where the trucker was apprehended. Moreover, the Pennsylvania statute was amended in 1955, raising the maximum weight restriction to 60,000 pounds, making mandatory the removal of the excess, and graduating the amount of the fine by the number of pounds that the truck was overweight. These considerations, however, do not change the fact that the truckers were fined by the State as a penal measure when and if they were apprehended by the police.
Finally, petitioner contends that deduction of the fines at least for the innocent violations will not frustrate state policy. But since the maximum weight statutes make no distinction between innocent and willful violators, state policy is as much thwarted in the one instance as in the other. Petitioner’s reliance on Jerry Rossman Corp. v. Commissioner, supra, is misplaced. Deductions were allowed the taxpayer in that case for amounts inadvertently collected by him as OPA overcharges and then paid over to the Government, but the allowance was based on the fact that the Administrator, in applying the Act, had differentiated between willful and innocent violators. No such differentiation exists here, either in the application or the literal language of the state maximum weight laws.
Affirmed.
“SEC. 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions: “(a) EXPENSES.—
“(1) Trade or business expenses.—
“ (A) In General. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 53 Stat. 12, as amended, 56 Stat. 819.
Letter ruling by Commissioner Helvering, dated September 10, 1942 (IT:P:2-WTL), 5 CCH 1950 Fed. Tax Rep. ¶ 6134.
1951 — 1 Cum. Bull. 15.
Delaware, Del. Laws 1947, c. 86, §2; Maryland, Flack’s Md. Ann. Code, 1939 (1947 Cum. Supp.), Art. 66%, § 254, and Flack’s Md. Ann. Code, 1951, Art. 66%, §278; New Jersey, N. J. Rev. Stat., 1937, 39:3-84; Ohio, Page’s Ohio Gen. Code Ann., 1938 (Cum. Pocket Supp. 1952), § 7248-1; Pennsylvania, Purdon’s Pa. Stat. Ann., 1953, Tit. 75, § 453; West Virginia, W. Va. Code Ann., 1949, § 1546, and 1953 Cum. Supp., § 1721(463).
N. J. Rev. Stat., 1937 (Cum. Supp. 1948-1950), 39:3-84.3.
Because state policy in this case was evidenced by specific legislation, it is unnecessary to decide whether the requisite “governmental declaration” might exist other than in an Act of the Legislature. See Schwartz, Business Expenses Contrary To Public Policy, 8 Tax L. Rev. 241, 248.
Unlike the rest of the States, Pennsylvania imposed the fines on the driver rather than on the owner of the trucks. In each instance, however, the driver was petitioner’s employee, and petitioner paid the fines as a matter of course, being bound to do so by its collective bargaining agreement with the union representing the drivers.
See, e. g., United States v. Jaffray, 97 F. 2d 488, aff'd on other grounds, sub nom. United States v. Bertelsen & Petersen Engineering Co., 306 U. S. 276 (1939); Tunnel R. Co. v. Commissioner, 61 F. 2d 166; Chicago, R. I. & P. R. Co. v. Commissioner, 47 F. 2d 990; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178; Great Northern R. Co. v. Commissioner, 40 F. 2d 372; Davenshire, Inc., v. Commissioner, 12 T. C. 958.
Purdon’s Pa. Stat. Ann., 1953 (1957 Cum. Ann. Pocket Part), Tit, 75, § 453.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
songer_state
|
01
|
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".
THE NAVEMAR. COMPANIA ESPANOLA DE NAVEGACION MARITIMA, S. A., v. CRESPO et al. (DE LOS RIOS, Spanish Ambassador to U. S., Intervener).
No. 208.
Circuit Court of Appeals, Second Circuit.
April 18, 1939.
Bigham, Englar, Jones & Houston, of New York City (James W. Ryan, of New York City, of counsel), for libellant-appellee, for the motion.
Before L. HAND; SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
On March 6, 1939, we filed our opinion in the above cause reversing the decree of the court below, dismissing the libel and ordering that the “Navemar” be released from arrest and attachment and delivered to the Acting Consul General of Spain at New York pursuant to the prayer of the then Spanish Ambassador Fernando de los Rios. 102 F.2d 444. Since that date an order was made by this court in conformity with o.ur opinion. After our decision the United States recognized the new Spanish government. Thereafter a document was filed with this court, of which the following is a copy:
“To the Honorable the Judges of the United States Circuit Court of Appeals for the Second Circuit:
“The Spanish Government does not desire to appear as a party to the" cause pending in your court under the title:
“Compañía Española de Navegación Marítima, S. A., owner of the Spanish Steamship ‘Navemar’, Libellant-Appellee, against Spanish Steamship ‘Navemar’, her engines, etc., and Rafael Crespo, Jose Arana, Manuel Freire, Gaspar Lopez and Antonio Sanchez, Respondents, Fernando de los Rios, Spanish Ambassador to the United States of America, Appellant.
“Neither it nor I in my capacity as its Charge d’Affaires in the United States have authorized any lawyer to • represent the Spanish Government in any way in this case.
“In accordance with specific instructions from my Government with respect to the above-named cause I am authorized to say that the Spanish Government has no objection to the dismissal of the appeal therein nor to the delivery by the court at the earliest possible moment of the Navemar to Messrs. Garcia & Diaz, 17 Battery Place, New York City, agents of the libellant-appellee herein. On Monday last on my instructions the Acting Consul General of Spain in New York appeared personally in your court and made a statement to the above effect.
“I note in the caption of the suit the name of Fernando de los Rios, who no longer represents the Spanish Government, as clearly indicated by the Certificate of the Secretary of State of the United States, No. 1892, dated April 3, 1939, and filed in the above .cause.
“April 12, 1939
“Jaun F2 de Cardenas
“Charge d’Affaires of Spain to the United States of America.
“[Seal of Embajada de España en Washington]”
The document was accompanied by the certificate of the Secretary of State of the United States under the seal of the Department of State which certified that Señor Don Juan Francisco de Cardenas, whose name-was subscribed to the document, was Charge d’Affaires of Spain at Washington.
Proctors for the libellant-appellee have moved in this court for an order dismissing this appeal. In aid of this motion they have submitted the certificate of the Secretary of State and the above accompanying document signed by the Charge d’Affaires of Spain, a letter signed by the said Charge d’Affaires and the affidavit of Manuel Diaz praying that an order be entered dismissing the appeal and directing that the Spanish Steamship Navemar be delivered to Garcia & Diaz as agents of the libellant Compania Española de Navegación Marítima, S. A.
In Ex parte Muir, 254 U.S. 522, 41 S. Ct. 185, 65 L.Ed. 383, the Supreme Court held that a foreign government might appear in a suit, propound its claim to a vessel and raise the question as to the jurisdiction of the court, or that its accredited and recognized representative might thus appear and take the same steps in its interest. It was likewise stated in Ex parte Muir that if there was objection on the part of the foreign government to appearing as a suitor in a foreign court it was open to it to make the asserted public status and immunity of the vtessel the subject of diplomatic representations to the end, that if the claim was recognized by the Executive Department of this government, it might he set forth and supported in an appropriate suggestion to the court by the Attorney General.
It is evident from the documents that have been presented that the Spanish government has not appeared or authorized its Charge d’Affaires to appear in the cause. In fact it has declined to take this step. Accordingly the motion is denied, with leave, however, to renew upon papers in which the Charge d’Affaires asks leave to intervene and prays upon such intervention to have the order reversing the decree of the court below vacated and the appeal to this court dismissed.
On the suggestion dated April 21, 1939, filed in the above cause by the United States Attorney for the Eastern District of New York, and on the representation of the Attorney General and of the Secretary of State to the Circuit Court of Appeals for the Second Circuit, likewise filed therein, and on the diplomatic representation or request of Juan Francisco de Cardenas, Charge d’Affaires of Spain to the United States, dated April 20, 1939, and annexed as part of the representation of the Secretary of State, the Circuit Court of Appeals ordered that its decree filed on March 31, 1939, be vacated and that the appeal taken by Fernando de los Rios, former Ambassador of the Republic of Spain, from the District Court for the Eastern District of New York be dismissed and that the cause be remanded with instructions to direct the United States Marshal for the Eastern District of New York to deliver the Navemar to Messrs. Garcia & Diaz, agents for the libellant-appellee, as requested and represented in the above mentioned representations and suggestion of the Secretary of State, the Attorney General and the United States Attorney for the Eastern District of New York.
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_casetyp1_7-3-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
LAURO v. UNITED STATES.
No. 90, Docket 20140.
Circuit Court of Appeals, Second Circuit.
May 22, 1947
Raymond Parmer, of New York City (T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y., and Kirlin, Campbell, Hiekox & Keating and Vernon Sims Jones, all of New York City, on the brief), for the United States.
Jacob Rassner, of New York City, for ap-pellee.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
CLARK, Circuit Judge.
In previous consideration of this case, we certified to the Supreme Court of the United States, Lauro v. United States, 2 Cir., 157 F.2d 416, the question whether a libel for damages for wrongful death will lie under the Public Vessels Act of 1925, 46 U.S.C.A. § 781 et seq. The Supreme Court answered affirmatively, American Stevedores, Inc., v. Porello et al., 330 U.S. 446, 67 S.Ct. 847, and the case is now before us for disposition of its remaining issues.
Libelant’s intestate, Lauro, was a longshoreman in the employ of a stevedore who, pursuant to contract, was loading a ship owned by the United States of America, the respondent to this libel. Immediately before the accident Lauro was engaged in giving signals to winchmen who were lowering a 17-ton road grader into a partly open hatch. Because a great deal of dunnage was piled on deck, Lauro was obliged to go atop the covered part of the hatch to do his signalling. While he was walking on the hatch cover, Lauro’s foot slipped toward the hatch opening and he fell head first into the hold and was killed. Very soon after the accident two of his fellow workers examined the area of the hatch cover from which Lauro had fallen. On it they observed a patch of oil about 2% feet square. In this patch they saw a skid mark about two feet long. As they testified, the mark ended at a defective handle on the hatch cover close to the edge of the hatch aperture. In proper repair the edges of this handle were sunk into the hatch cover and its top was flush with the surface of the hatch cover. When they examined it, one end of it was protruding from two to three inches above the hatch cover. This testimony as to the condition of the handle was sharply controverted by respondent.
The District Court assessed liability against respondent for failure to provide Lauro with a safe place to work. Respondent’s liability may be rested, however, on the perhaps somewhat broader duty to maintain the ship in a seaworthy condition. This duty has long been recognized as devolving upon shipowners in favor of members of their ships’ crews Recently the Supreme Court declared that it existed also in favor of longshoremen loading and unloading ships — work which in earlier maritime history was performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Where the ship remains under the control of the shipowner, this duty is absolute and continuous. The shipowner may not discharge it solely by furnishing a sound ship and making suitable equipment available. For if officers of the ship use unsuitable equipment the shipowner is liable for damage resulting therefrom, even though suitable equipment was available. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. But when the owner surrenders control of any part of his ship to a stevedore in charge of loading and unloading, his duty of seaworthiness as to the part surrendered extends only up to the time the stevedore assumes control. Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, 129, certiorari denied 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444. If therefore the agents of the stevedore, while he is in such control, create an unsafe condition where none existed before, the shipowner is not liable for accidents resulting therefrom.
On the day of the accident Lauro’s crew had been working at other hatches for about 14 hours, but they had been working at this particular hatch for only approximately two hours before the accident occurred. There was no evidence that the unsafe condition of the deck and hatch cover was caused by Lauro or any of his fellow workers. On the contrary, there was testimony that no one but Lauro had mounted that particular hatch cover. And there was testimony that none of the loading crew had spilled oil on the hatch cover. The testimony therefore points rather clearly to the presence of the oil, at least by the time when Lauro and his gang started work at 9 p. m. The District Court found it there “at the time of the commencement of the work.” Whether this has reference to the time when the stevedore commenced work on the ship at 8 a. m. or only when it commenced work at this hatch is not clear. But, unless we are to say that the stevedore was in complete control of this hatch from the time it entered the ship — and there was no evidence of that — the result is the same; for the shipowner’s duty under the Seas Shipping case clearly operates until the stevedore has taken over. Compare Patton-Tully Transp. Co. v. Turner, 6 Cir., 269 F. 334, 338, 339. Consequently the District Court’s finding of liability was not erroneous.
Having found liability, the District Court fixed the damages at $25,000. Claiming insufficiency of the judgment, libelant has appealed. The damages to be awarded should be gauged by the reasonable expectancy of pecuniary benefits which would have flowed from the continued life of the deceased. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367; The S. S. Black Gull, 2 Cir., 90 F.2d 619, certiorari denied Faye v. American Diamond Lines, 302 U.S. 728, 58 S.Ct. 50, 8.2 L.Ed. 562. At the time of the accident decedent was 45 years old. His wife, the libelant, aged 43, and six minor children survived him. His average yearly earnings for 6% years prior to the accident were about $3,-000. Considering the work expectancy of the decedent and the fact that he would have used a sizable portion of his earnings for his personal benefit, we do not feel that the amount awarded by the District Court may be found legally erroneous.
A final question concerns libel-ant’s right to sue. Sec. 5 of the Public Vessels Act of 1925, 46 U.S.C.A. § 785, bars suit by a foreign national unless it appears to the satisfaction of the trial court that his government under similar circumstances allows United States nationals to sue in its courts. In her libel libelant alleges her Italian nationality at the time of the accident; in her brief in this court she claims United States nationality when the libel was commenced. She offered no proof of Italian law in the District Court.
Libelant now claims that proof of Italian law is unnecessary, since the libel may succeed under the Suits in Admiralty Act of 1920, 46 U.S.C.A. § 741 et seq., which contains no reciprocity requirement. But § 2 of that Act limits suit to cases where the United States ship involved is a merchant vessel. Lauro’s ship, assigned by the War Shipping Administration to the Army and carrying Army, Navy, and lend-lease property, was a public vessel. The Western Maid, 257 U.S. 419, 432, 42 S.Ct. 159, 66 L.Ed. 299; Bradey v. United States, 2 Cir., 151 F.2d 742, certiorari denied 326 U.S. 795, 66 S.Ct. 484, 90 L.Ed. 483. The War Shipping Administration Act, 50 U.S.C.A.Appendix, § 1291, it is true, allows recovery under the Suits in Admiralty Act by “officers and members of crews” employed on United States vessels through the War Shipping Administration, regardless of whether the ship is engaged in merchant or public activity. But a stevedore employed in loading operations at the pier is hardly a member of the crew for the purposes of this statute. See Warner v. Goltra, 293 U. S. 155, 158, 55 S.Ct. 46, 79 L.Ed. 254.
Libelant must therefore make proof of Italian law or oí her American citizenship' at the commencement oí the action. The case -will be remanded to the District Court solely to allow her to do this and to amend her libel if necessary. If she does not succeed in showing her right to sue, judgment must go against her; if she does, the judgment she has already recovered should be reinstated.
Reversed and remanded.
Moreover, libelant cannot now recover in any event under the Suits in Admiralty Act, for she has failed to file her claim with the War Shipping Administration, as required by the War Shipping Administration Act and regulations promulgated thereunder. 46 CFR, Cum.Supp., §§ 304.-21, 304.24; Militano v. United States, 2 Cir., 156 F.2d 509, 601, certiorari dismissed States Marine Corporation v. Militano, 67 S.Ct. 193; Fox v. Alcoa S. S. Co., 5 Cir., 143 F.2d 667, certiorari denied 323 U.S. 788, 65 S.Ct. 313, 89 L.Ed. 628.
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:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ALLEN v. DIAMOND et al.
(Circuit Court of Appeals, Seventh Circuit.
May 24, 1926.)
No. 3681.
1. Insurance <§=438 — Life policy not forfeited by execution for crime (Const. Ind. art. I, § 75; Const. III. art. 2, § II).
In view of Const. Ind. art. 1, § 75, and Const. 111. art. 2, § 11, a life policy made in Indiana, and sought to be enforced in Illinois, not forfeited, nor liability avoided, because of the execution of assured for crime committed.
2. Insurance <§=438 — Criminal act of assured in life policy cannot enlarge or restrict rights of beneficiaries.
The rights of the beneficiary in a life policy are fixed and determined by the policy, and cannot be enlarged or restricted by any criminal action of the insured.
3. Insurance <§=593(l)— Under terms of life policies, assignees held entitled to proceeds as against executor of beneficiary named, who was murdered by assured.
Life policies gave assured the right to change beneficiaries, and provided that, in case of the death of the beneficiary before his death, her interest should vest in assured. He murdered the beneficiary, and later assigned the policies. He was afterwards executed for the crime. Held, that assignees were entitled to recover on the policies, and that the executor of the wife’s will had no interest therein.
Appeal from the District Court of the United States for tho Eastern Division of the Northern District of Illinois.
Action at law by Joseph A. Diamond and another against the New York Life Insurance Company; James G. Allen, executor of the will of Nettie D. Diamond, deceased, intervener. Transferred to equity docket on motion of parties. From an order striking out intervener’s answer, he appeals.
Affirmed.
L. A. Stebbins, of Chicago, 111., for appellant.
Walter Baehraeh, of Chicago, 111., for appellees.
Before ALSCHULER, -EVANS, and PAGE, Circuit Judges.
EVAN A. EVANS, Circuit Judge.
Two life insurance policies of $5,000 each were issued by the New York Life Insurance Company upon the life of one Harry H. Diamond. Upon his death, both his heirs and the executor of the will of his deceased wife demanded the money of the insurance company. The insurance company did not'question its liability, but was uncertain as to the beneficiaries, and therefore paid the money into court. The controversy is therefore one between the claimants only.
Diamond died November 19, 1924. He was executed by the state of Indiana for the murder of his .wife, which occurred February, 15, 1923. She had been named beneficiary in each policy. Each policy -contained a clause reserving to the insured the right to -change the beneficiary at any time. Each policy also provided that in case of the death of the beneficiary before the assured’s, the interest of such beneficiary .should vest in the assured. On March 31, 1923, the assured assigned the policies to his father and mother, appellees herein.
This case reaches this court through appeal and upon these proceedings. The assignees, heirs of the assured, appellees here, brought their action against the insurance company. Appellant sought to intervene and filed an answer. The court transferred the cause from the law to the equity side of the calendar upon motion of the parties. Plaintiffs then moved to strike out the intervening appellant’s answer, which motion was granted. This appeal followed. The right of some one to recover in this case is not disputed by the insurance company, and is conceded by both parties. It need hardly be vindicated then, saving as such vindication clarifies the issue.
The contract was made in Indiana. It was being enforced in Illinois. In both states, constitutional provisions are to be found which provide that no conviction shall work a forfeiture of the estate of the convicted party. Const. Ind. art. 1, § 75; Const. Ill. art. 2, § 11. Similar provisions are found in the organic law of most of the states. It is expressive of what might be called the public policy of these states. Its application has led to numerous holdings to the effect that life insurance policies will not be defeated because the assured met his death through execution and as a penalty for a murder by him committed. Collins v. Metropolitan Life Ins. Co., 232 Ill. 37, 83 N. E. 542, 14 L. R. A. (N. S.) 356, 122 Am. St. Rep. 54, 13 Ann. Cas. 129; Wall v. Pfanschmidt, 265 Ill. 180, 106 N. E. 785, L. R. A. 1915C, 228, Ann. Cas. 1916A, 674; Weeks v. New York Life Ins. Co., 128 S. C. 223, 122 S. E. 586, 35 A. L. R. 1482; American National Ins. Co. v. Coates, 112 Tex. 267, 246 S. W. 356; Fields v. Metropolitan Life Ins. Co., 147 Tenn. 464, 249 S. W. 798, 36 A. L. R. 1250; Murphy v. Metropolitan Life Ins. Co., 152 Ga. 393, 110 S. E. 178; Armster v. Metropolitan Life Ins. Co., 207 Ill. App. 514; Supreme Lodge v. Overton, 203 Ala. 193, 82 So. 443, 16 A. L. R. 649; Hatch v. Mutual Life Ins. Co., 120 Mass. 550, 21 Am. Rep. 541; Wells v. New England Mutual Life Ins. Co., 191 Pa. 207, 43 A. 126, 53 L. R. A. 327, 71 Am. St. Rep. 763; McDonald v. Order of Triple Alliance, 57 Mo. App. 87; 14 R. C. L. p. 1227.
It is true that in many of these decisions the existence of the incontestable clause in the policy was a persuasive factor in the case. The weight of authority seems to favor the validity of these contracts, however, and in view of the reasons, well stated in Weeks v. New York Life Ins. Co., supra, we hold there was no forfeiture of the insurance or avoidance of liability by reason of Diamond’s execution as a result of the crime he committed.
Who, then, is entitled to recover?
Obviously the answer must be found in the policy, the contract that fixed the rights of all parties.
The beneficiary’s rights were fixed and determined by the policy. They could not be enlarged nor restricted by any criminal action of the assured. Hers was a naked expectancy — an inchoate right, liable to be defeated by her death prior to that of the' assured, or by a change in the beneficiary made by the assured during the life of the policy. Supreme Council Royal Arcanum v. Behrend, 247 U. S. 394, 38 S. Ct. 522, 62 L. Ed. 1182, 1 A. L. R. 966; In re Hogan, 194 F. 846, 114 C. C. A. 634. It is likewise apparent that the assured could not, by his own wrongful deed, enlarge his interest under the policy, or, by the same means, diminish or restrict the rights of another.
We fail to find anything in the contract that would support a recovery by appellant. It was only in case the beneficiary survived the assured that she could recover. Assured’s wrongful act had no bearing upon the maturing of the policy, and it was the death of the assured (not the death of the beneficiary) that created the liability. Appellant must rely upon the strength of his own claim, not on the weakness of his adversaries’ position. The court struck out Ms answer, because appellant had no interest in or claim to the proceeds of these policies. He does not strengthen his position by attacking the claim of his opponents.
To recover in this ease, however, appellees need only rely upon their rights, fixed as they were by the terms of the contract. Recovery was not affected by the death of the beneficiary. The insurance was in full force, notwithstanding the death of the beneficiary. The policy being in full force and effect after the benefieiary’s demise, the rights of the living parties were unchanged. The assured had the unqualified right before and after the death of the first named beneficiary to change the beneficiary.
The decree is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_stpolicy
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Donald L. CALE, Appellant, v. The CITY OF COVINGTON, Virginia, Appellee.
No. 77-1239.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 13, 1977.
Decided Nov. 3, 1978.
William A. Parks, Jr., Hot Springs, Ya. (Erwin S. Solomon, Erwin S. Solomon & Associates, Hot Springs, Va., on brief), for appellant.
Joseph A. Matthews, Jr., and T. T. Lawson, Roanoke, Va. (William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellee.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
WIDENER, Circuit Judge:
On November 30, 1973, Donald L. Cale was discharged from his duties as a police officer for the City of Covington, Virginia. Chief of Police Donald Leet dismissed Cale for taking, while he was on duty, a plastic scalpel from the office of a deceased physician. Cale then brought this wrongful discharge action in the district court, only against the City of Covington, resting jurisdiction upon the existence of a federal question and an amount in controversy exceeding $10,000. The cause of action was alleged to have arisen under the Fifth and Fourteenth Amendments to the Constitution. The complaint also included State law claims, the dismissal of which is not here contested. He demanded damages of $50,-000.
In its answer, the City pleaded that Cale’s complaint failed to state a cause of action, and, following discovery, moved for summary judgment. Considering Cale’s “complaint as a suit for monetary relief under 42 U.S.C. § 1983,” the district court granted the City’s motion on the “well settled principle of law that a municipality is not a ‘person’ within the meaning of § 1983 and therefore is not amenable to suit for monetary relief under these statutes,” citing City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
The first of three questions for review is whether the district court erred in deciding that 42 U.S.C. § 1983 provided Cale no remedy. While the decision of the district court was correct at the time of its decision, e. g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the law has since changed. The Supreme Court in the recent decision of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruled the absolute immunity of municipalities from suits under § 1983 which had been established in Monroe. As we should apply the law as it exists at the time of our decision, Cort v. Ash, 422 U.S. 66, 76, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we vacate the decision of the district court dismissing Cale’s case as a suit under § 1983 and remand for further proceedings consistent with Monell. We add only that the liability of the City of Covington under § 1983 may depend upon factual issues not developed in the current state of the record, for Monell makes it clear that “a municipality cannot be held liable under § 1983 on a respondeat superior theory,” 436 U.S. at 691, 98 S.Ct. at 2036, and that only a local government which “under color of some official policy ‘causes’ an employee to violate another’s constitutional rights” may be liable. 436 U.S. at 692, 98 S.Ct. at 2036.
The next question is whether the amount in controversy was sufficient to invoke the district court’s subject matter jurisdiction under 28 U.S.C. § 1331. The City disputes Cale’s claim of $50,000 in damages, and argues that because Cale was later able to secure subsequent employment with about the same salary or wages, his damages were in fact less than the $10,000 jurisdictional amount required under § 1331. To agree with the City, however, we must determine “to a legal certainty that the claim is really for less than the jurisdictional amount . . Mt. Healthy, infra, 429 U.S. at 276, 97 S.Ct. at 570, quoting St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). “[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Id. Viewing Cale’s complaint under these criteria, we cannot find to a legal certainty that the amount in controversy was insufficient, and the bona fides of his claim for $50,000 in damages have not been questioned here.
Although often litigated of late in the inferior federal courts, neither this court nor the Supreme Court has yet answered the question of whether or not an implied cause of action for damages exists against a municipality for the act of its employee under the Fourteenth Amendment with jurisdiction under 28 U.S.C. § 1331, without the limitations imposed by § 1983. We hold that it does not. Our opinion that no action of the type exemplified by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), should be so implied from the Fourteenth Amendment rests upon our opinion as to the meaning of the amendment in the light of its wording, background, congressional action, and court decisions construing it.
While it is true that the federal courts have determined the constitutionality of State and federal legislation under the Fourteenth Amendment, Cale does not ask us merely to enforce the prohibitions of the Fourteenth Amendment as measured against a statute or regulation. Rather, he asks us to imply a cause of action for damages in that he was discharged in violation of the due process clause of the Fourteenth Amendment because the discharge was without proper notice or hearing.
The beginning point of our analysis is the amendment itself, ratified in 1868. Our particular concerns are §§ 1 and 5 thereof. Section 1, in pertinent part, provides that no State shall “deprive any person of life, liberty, or property without due process of law.” Section 5 states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” We also consider 28 U.S.C. § 1331(a), which, for our purposes, was enacted in 1875. It provides for original jurisdiction in the district courts over “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. . . ”
It is too well documented to bear citation that federal courts are courts of limited jurisdiction and especially the inferior federal courts. And “in the legal system generally a jurisdictional grant does not in and of itself necessarily — or even ordinarily — imply a power to make substantive rules of decision. . . . ” The Federal Courts and the Federal System, Bator, Shapiro, Mishkin, and Wechsler (2d ed. 1973), p. 786. We need go no further than these elementary rules to arrive at our conclusion that the enactment of § 1331 did not of itself create any cause of action, nor do we think that one may be implied from the mere grant of jurisdiction. So, if there is to be a cause of action implied in favor of the plaintiff against the City of Covington, it must be directly under the Constitution and in our case more particularly under the due process clause of the Fourteenth Amendment.
Due process decisions, especially in recent years, have reached endless number. To repeat, plaintiff’s claim is based on the now familiar allegation that he was discharged as a policeman by the Chief of Police of the City of Covington without a hearing. He claims that his discharge without a hearing is a violation of the due process clause.
Assuming for the moment, without deciding, the validity of the plaintiff’s cause of action as alleged, the question arises as to whether there is jurisdiction in a federal court to hear it. This question has been answered in the affirmative for suits under § 1331 in Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), but the consideration of whether or not there is jurisdiction and whether or not a cause of action is stated are different questions. Mt. Healthy, p. 278, 97 S.Ct. 568; Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
Had the plaintiff sued the Chief of Police, he clearly may have stated a cause of action under'§ 1983, and we have directed remand on the issue of the City’s liability under § 1983 as construed by Monell. But the plaintiff persists that he has a right to sue the City, even apart from § 1983, for damages directly under the Fourteenth Amendment, claiming jurisdiction under § 1331. We thus turn to the question of whether or not to imply a cause of action under the Fourteenth Amendment against the City of Covington on account of the actions of its employee.
There have been many opinions in the inferior federal courts which discuss the question, and we do not attempt to analyze them all or collect them here. Some are holdings directly on the point; some are more or less on the point; and some decide the jurisdictional question but speak of the cause of action.
On facts very similar to the case at hand, the Eighth Circuit, in Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), on account of the firing of a Chief of Police by the City Manager, held, under § 1331 jurisdiction, that there was an implied cause of action under the Fourteenth Amendment due process clause. A similar holding was apparently made in Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975), on account of the inspections of a building inspector under a city ordinance claimed to be invalid. The question in Hanna, however, concerned Fourth Amendment rights asserted under the Fourteenth Amendment. Both Hanna and Owen relied on Bivens. The Second Circuit, in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), a suit against a School Board, made the same holding against the board when it refused to grant tenure. As did Hanna and Owen, Gentile relied on Bivens.
The First Circuit, however, in Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), held, to the contrary, that there was no implied cause of action for damages under the Fourteenth Amendment resulting from the shooting of the plaintiff’s decedent by a police officer.
The Third Circuit, in two cases, has made it clear that it has not decided the question: Gagliardi v. Flint, 564 F.2d 112, 115, n. 3 (3d Cir. 1977), cert, den., - U.S. -, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Mahone v. Waddle, 564 F.2d 1018, 1024-25 (3d Cir. 1977), cert, den.,--U.S. -, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978). The Tenth Circuit also has not decided the question. Weathers v. West Yuma County School District, 530 F.2d 1335, 1342 (10th Cir. 1976).
The Fifth and Seventh and Ninth Circuits have also discussed the question. We note that the holdings in those cases may strictly be said to relate to jurisdiction, and they were decided following Bivens and do not discuss that case. But, while their discussions may not be squarely on point, we should in candor relate that they indicate, if called upon to decide the question, those courts would probably decide that there was an implied cause of action under the Fourteenth Amendment with jurisdiction under § 1331 if they follow the thoughts expressed in the cases just following: see Fitzgerald v. Porter Mem. Hosp., 523 F.2d 716, 718, n. 7 (7th Cir. 1975); Gray v. Union Co. Intermediate Education District, 520 F.2d 803 (9th Cir. 1975); Roane v. Callisburg Independent School District, 511 F.2d 633 (5th Cir. 1975); Stapp v. Avoyelles Parish School Bd., 545 F.2d 527, 531, n. 7 (5th Cir. 1977); Hostrop v. Bd. of Jr. College District No. 515, 523 F.2d 569 (7th Cir. 1975).
The Sixth Circuit, in Amen v. City of Dearborn, 532 F.2d 554 (6th Cir. 1976), has held there was § 1331 jurisdiction with respect to the condemnation of real estate in a claim under the Fourteenth Amendment. Cf. Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933).
In our own circuit, Burt v. Board of Trustees, 521 F.2d 1201, 1205 (4th Cir. 1975), and Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974), have alluded to the question but not decided it.
The eases which have held that the cause of action may be implied have generally followed that part of the reasoning of Bivens which concludes that when a general statute provides for a right to sue for an invasion of a federally protected right, federal courts may use any available remedy to make good the wrong done. See also Bell v. Hood, 327 U.S. p. 684, 66 S.Ct. 773, Kostka analyzed Bivens differently, holding that its reasoning taught caution, making analogy to the case of a claim that an implied cause of action arose from a statute which had not explicitly created one. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). It found that Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), was based on an affirmative policy against federal court imposition of liability on political subdivisions. The Kostka court found that a damages action was not indispensable to the effectuation of the Fourteenth Amendment and held that there was no implied cause of action.
While the Supreme Court, in Mt. Healthy, has made it clear that it has not decided the question, there are cases which have mentioned it, early as well as late.
One of these is Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). In that case, which construed § 5 of the Fourteenth Amendment and the extent of congressional authority (which it upheld) granted under the amendment, the court said:
“It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective.” 100 U.S. 339, 345, 25 L.Ed. 676 (Italics are the Court’s).
Ex parte Virginia was closely followed by the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), in which the Court reviewed the validity of an act of Congress providing for equality of accommodations and transportation as against the authority granted by the Thirteenth and Fourteenth Amendments. The Court held invalid a part of the statute complained of. In the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (Dec. Term 1872), the Court upheld the validity of a Louisiana statute regulating slaughter-houses when measured against the Fourteenth Amendment.
It is true that in the Civil Rights Cases the Court referred to the Fourteenth Amendment as self-executing, 109 U.S. at 20, 3 S.Ct. 18, when discussing the Fifteenth, but it is also true that earlier in the opinion, discussing § 1 of the Fourteenth Amendment, the court stated: “in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation.” The Civil Rights Cases did not overrule Ex parte Virginia, and any apparent inconsistency between the two just quoted statements in the Civil Rights Cases may be resolved, we think, by reference to the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review. See the dissent of Mr. Justice Harlan in the Civil Rights Cases quoted infra. See also the Slaughter-House Cases, 16 Wall, at 81, where the Court, referring to the equal protection clause of the Fourteenth Amendment, had stated that when it is a State dealt with and not alone the validity of a State law, the matter should be left until Congress should has exercised its power or some case of State oppression by denial of equal justice in its courts claims a decision at the hands of the Supreme Court. Another early opinion, not by the Supreme Court but by Chief Justice Chase sitting as a Circuit Justice, is Griffin’s Case, 11 Fed. Cases 7 (C.C.D.Va.1869), which held that the third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action.
Certainly the courts which decided these cases were aware of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), and Martin v. Hunter’s Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816), and their contemporaneous understanding of the meaning of the Fourteenth Amendment, which we think coincided with the understanding of Congress, should be given consideration. We do not believe the statements in Ex parte Virginia, the Slaughter-House Cases, and the Civil Rights Cases as to the meaning of the Fourteenth Amendment are inconsistent or that they meant to overrule sub silentio Marbury or more especially Martin. The courts were entirely familiar with the doctrine of judicial review by that time, and the understanding of this is stated by the first Justice Harlan in his dissent on other grounds in the Civil Rights Cases at pages 45 and 46 of the opinion of 109 U.S. at page 46 of 3 S.Ct.
“The Fourteenth Amendment presents the first instance in our history of the investiture of congress with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear that had the fifth section of the fourteenth amendment been entirely omitted, the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment.”
With this understanding in mind, we believe that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress.
When we add to this state of affairs Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which far-reaching opinion provided that an officer of a State could be required as an individual to perform his public duties in a constitutional manner, we see that litigants having suffered a violation of their constitutional rights were protected in all instances; that is to say, the right was protected in all instances.
What we think is clear is that the right was protected either by Marbury v. Madison, or Martin v. Hunter’s Lessee, or by § 1983, or by Ex parte Young. It is not doubted that the remedy may not be coextensive under any of these theories of judicial review or legislation for the protection of constitutional rights.
The acceptance of the teaching of these cases is undoubted and almost universal. Not without significance is that, in the 103 years of the present existence of § 1331, the Court has not decided the question now before us. Professor Dellinger, in his article on the subject, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972), states that “. with one exception [footnote omitted] prior to Bivens the court has never explicitly exercised the judicial power to create a damage remedy in a case arising under the Constitution . . that exception being Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933). And even in Jacobs the Court may have only recited that the suit was based on the right to recover just compensation for property taken by the United States for public use in exercise of its power of eminent domain and rested upon the Fifth Amendment. So the exception of Jacobs to the general rule thus may not be taken as beyond doubt. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 62 L.Ed. 223 (1917). This understanding is echoed by Professor Moore in Moore’s Federal Practice, Vol. I (1977), p. 665, where he states “In most instances, on the other hand [referring to Bivens], the Constitution unaided by statute does not create rights against private parties.
On the whole case, as previously indicated, we are of opinion there is no implied cause of action against the municipality under the Fourteenth Amendment, with jurisdiction under § 1331, for the acts of one of its employees.
We give weight to the fact that the amendment itself authorizes action by Congress, which Congress has exercised in § 1983, and which, even under Monell, does not permit untrammeled municipal liability. We also give weight to the reasoning that the granting of money damages against a municipality in the absence of legislative authorization actively involves the judiciary in policy decisions relating to the allocation of limited resources which in certain instances may raise serious questions concerning the enforceability of a court’s mandate. See Dellinger, p. 1533. Also taken into account is the fact that the plaintiff here has a remedy, perhaps not perfect, but that which was contemplated by Congress.
In our case, affirmative action by Congress should counsel hesitation. Bivens, 403 U.S. p. 396, 91 S.Ct. 1999.
In contrast to Bivens, which did not deal “with a question of ‘federal fiscal policy’ ” by allowing a suit against federal agents, we do deal with a question of State fiscal policy should we permit a suit against a municipal corporation based on respondeat superior and not subject to the limitations of § 1983, the only source for satisfaction of a judgment against it being the taxpayers who furnish the money to the municipality. Again, in contrast to Bivens which had no formulation of congressional policy as to whether the availability of money damages was necessary to enforce the Fourth Amendment, we have here a congressional policy that while money damages against an individual may be necessary to enforce the Fourteenth Amendment, they are in certain circumstances inappropriate against municipalities on account of the same act of the same employee.
Finally and not of the least importance, should we give as our opinion that there is an implied cause of action under the Fourteenth Amendment in the setting here, it would seem impossible for Congress to undo it for the federal courts in adjudicating such acts of Congress would enter into a balancing procedure to ascertain whether the remedy enacted by Congress is as adequate as a court implied remedy. That to us would seem to be a violation of the fifth clause of the Fourteenth Amendment which has expressly entrusted to Congress the “power to enforce, by appropriate legislation, the provisions of this article.” As MonelI holds, Congress has done just this. We doubt that we should take away this constitutionally entrusted power by judicial decision. Indeed, it seems that our authority so to do is little better than doubtful if it should exist at all.
The judgment of the district court must be vacated and the case remanded. On remand, Cale should be allowed to proceed with his action under § 1983, but not allowed to proceed with it insofar as he claims it is based on an implied cause of action under the Fourteenth Amendment.
VACATED AND REMANDED.
. For example, in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1872), the Supreme Court reviewed the constitutionality of a Louisiana statute under the Fourteenth Amendment. In the Civil Rights Cases, 109 U.S. 3, 15, 3 S.Ct. 18, 27 L.Ed. 835 (1883), the Court reviewed the constitutionality of different sections of the congressional legislation upheld in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880).
. A previous provision for catchall federal question jurisdiction was short lived, from 1801 to 1802. Wright, Miller, & Cooper, Federal Practice and Procedure (1975), § 3563, n. 3.
. The cases and many other authorities are collected in the opinions we cite and in Professor Dellinger’s article, infra. See also Note: Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976).
. Certiorari was granted, however, in Owen. The judgment of the court of appeals was vacated without opinion and the case remanded for further consideration in the light of Monell. --U.S.-----, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978).
. But see Davis v. Passman, 571 F.2d 793 (5th Cir. 1978) (en banc), which, somewhat contrary to a holding in this circuit in State’s Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974), held there was no implied cause of action under the Fifth Amendment against a federal officer as an individual for a discharge from employment claimed to be on account of the sex of the plaintiff.
. This construction of Aldinger v. Howard should now be reconsidered in light of Monell. See 436 U.S. at 696, n. 61, 701, n. 66, 98 S.Ct. at 2039, 2041.
. We note the reliance of Monell upon Ex parte Virginia. 436 U.S. at 683, n. 44, 690, n. 54, 98 S.Ct. 2032, 2035.
. Wright, Miller and Cooper address the precise question before us and state that the general tenor of the Aldinger opinion “suggests that the Court may be unwilling to imply a damages remedy that Congress has deliberately refused to give.” 1977 Pocket Part, § 3573. This statement, of course, was written before the decision in Monell.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES NATIONAL BANK OF OREGON v. INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., et al.
No. 92-484.
Argued April 19, 1993
Decided June 7, 1993
Christopher J. Wright argued the cause for petitioners in both eases and filed a brief for petitioners in No. 92-507. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Wallace, Robert V. Zener, Jacob M. Lewis, William R Bowden, Jr., Ernest C. Barrett III, and Lester N. Scall. Kenneth L. Bachman, Jr., and Michael R. Lazerwitz filed briefs for petitioner in No. 92-484.
Ann M. Kappler argued the cause for respondents in both eases. With her on the brief were Donald B. Verrilli, Jr., and Nory Miller.
Together with No. 92-507, Ludwig, Comptroller of the Currency, et al. v. Independent Insurance Agents of America, Inc., et al., also on certiorari to the same court.
John J. Gill III, Michael F. Crotty, Richard M. Whiting, Leonard J. Rubin, and John S. Jackson filed a brief for the American Bankers Association et al. as amici curiae urging reversal.
Justice Souter
delivered the opinion of the Court.
The Comptroller of the Currency recently relied on a statutory provision enacted in 1916 to permit national banks located in small communities to sell insurance to customers outside those communities. These cases present the unlikely question whether Congress repealed that provision in 1918. We hold that no repeal occurred.
I
Almost 80 years ago, Congress authorized any national bank “doing business in any place the population of which does not exceed five thousand inhabitants... [to] act as the agent for any fire, life, or other insurance company.” Act of Sept. 7, 1916, 39 Stat. 753. In the first compilation of the United States Code, this provision appeared as section 92 of Title 12. See 12 U. S. C. § 92 (1926 ed.); see also United States Code editions of 1934, 1940, and 1946. The 1952 edition of the Code, however, omitted the insurance provision, with a note indicating that Congress had repealed it in 1918. See 12 U. S. C. § 92 (1952 ed.) (note). Though the provision has also been left out of the subsequent editions of the United States Code, including the current one (each containing in substance the same note that appeared in 1952, see United States Code editions of 1958, 1964, 1970, 1976, 1982, and 1988), the parties refer to it as “section 92,” and so will we.
Despite the absence of section 92 from the Code, Congress has assumed that it remains in force, on one occasion actually-amending it. See Gam-St. Germain Depository Institutions Act of 1982, § 403(b), 96 Stat. 1511; see also Competitive Equality Banking Act of 1987, § 201(b)(5), 101 Stat. 583 (imposing a 1-year moratorium on section 92 activities). The regulators concerned with the provision’s subject, the Comptroller of the Currency and the Federal Reserve Board, have likewise acted on the understanding that section 92 remains the law, see Brief for Federal Petitioners in No. 92-507, pp. 31-32; Brief for Petitioner in No. 92-484, pp. 26-28, and indeed it was a ruling by the Comptroller relying on section 92 that precipitated these cases.
The ruling came on a request by United States National Bank of Oregon (Bank), a national bank with its principal place of business in Portland, Oregon, to sell insurance through its branch in Banks, Oregon (population: 489), to customers nationwide. The Comptroller approved the request in 1986, interpreting section 92 to permit national bank branches located in communities with populations not exceeding 5,000 to sell insurance to customers not only inside but also outside those communities. See App. to Pet. for Cert, in No. 92-507, pp. 74a-79a. The Bank is the petitioner in the first of the cases we decide today; the Comptroller of the Currency, the Office of the Comptroller of the Currency, and the United States are the petitioners in the other.
Respondents in both cases are various trade organizations representing insurance agents. They challenged the Comptroller’s decision in the United States District Court for the District of Columbia, claiming the Comptroller’s ruling to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). Respondents argued, among other things, that the ruling was inconsistent with section 92, which respondents maintained permits national banks located in small communities to sell insurance only to customers in those communities. The District Court disagreed and granted summary judgment for the federal parties and the Bank, a defendant-intervenor, on the ground that the Comptroller’s interpretation was “rational and consistent with [section 92].” National Assn. of Life Underwriters v. Clarke, 736 F. Supp. 1162, 1173 (1990) (internal quotation marks and citation omitted). The District Court thought it “worth noting that this section no longer appears in the United States Code” as it “apparently was inadvertently repealed” in 1918; but because Congress, the Comptroller, and other courts have presumed its continuing validity, the court was content to assume that the provision exists “in proprio vigore,” meaning, we take it, of its own force. Id., at 1163, n. 2.
Respondents had not asked the District Court to rule that section 92 no longer existed, and they took the same tack before the Court of Appeals for the District of Columbia Circuit, merely noting in their opening brief that section 92 may have been repealed in 1918 and then stating that all the relevant players had assumed its validity. The Court of Appeals, nevertheless, directed the parties to be prepared to address the status of section 92 at oral argument, and after oral argument (at which respondents’ counsel declined to argue that the provision was no longer in force) ordered supplemental briefing on the issue. In their supplemental brief, respondents urged the court to decide the question, but took no position on whether section 92 was valid law. The Court of Appeals did decide the issue, reversing the District Court’s decision and remanding with instructions to enter judgment for respondents. The court found first that, though the parties had not on their own questioned the validity of section 92, the court had a “duty” to do so, Independent Ins. Agents of America, Inc. v. Clarke, 293 U. S. App. D. C. 403, 406, 955 F. 2d 731, 734 (1992); and, second, that the relevant statutes, “traditionally construed,” demonstrate that Congress repealed section 92 in 1918, id., at 407, 955 F. 2d, at 735. Judge Silberman, dissenting, would have affirmed without addressing the validity of section 92, an issue he thought was not properly before the court. Id., at 413-416, 955 F. 2d, at 741-744. The Court of Appeals denied respondents’ suggestion for rehearing en banc, with several judges filing separate statements. See 296 U. S. App. D. C. 115, 965 F. 2d 1077 (1992).
The Bank and the federal parties separately petitioned for certiorari, both petitions presenting the question whether section 92 remains in force and the Bank presenting the additional question whether the Court of Appeals properly addressed the issue. Because of a conflict on the important question whether section 92 is valid law, see American Land Title Assn. v. Clarke, 968 F. 2d 150, 151-154 (CA2 1992), cert. pending, Nos. 92-482, 92-645, we granted the petitions. 506 U. S. 1032 (1992). We now reverse.
II
Before turning to the status of section 92, we address the Bank’s threshold question, whether the Court of Appeals erred in considering the issue at all. Respondents did not challenge the validity of section 92 before the District Court; they did not do so in their opening brief in the Court of Appeals or, despite the court’s invitation, at oral argument. Not until the Court of Appeals ordered supplemental briefing on the status of section 92 did respondents even urge the court to resolve the issue, while still taking no position on the merits. The Bank contends that the Court of Appeals lacked the authority to consider whether section 92 remains the law and, alternatively, that it abused its discretion in doing so. There is no need to linger long over either argument.
“The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy,” and “a federal court [lacks] the power to render advisory opinions.” Preiser v. Newkirk, 422 U. S. 395, 401 (1975); see also Flast v. Cohen, 392 U. S. 83, 97 (1968). The Bank maintains that there was no case or controversy about the validity of section 92, and that in resolving the status of the provision the Court of Appeals violated the Article III prohibition against advisory opinions.
There is no doubt, however, that from the start respondents’ suit was the “pursuance of an honest and actual antagonistic assertion of rights by one [party] against another,” Muskrat v. United States, 219 U. S. 346, 359 (1911) (internal quotation marks and citation omitted), that “valuable legal rights... [would] be directly affected to a specific and substantial degree” by a decision on whether the Comptroller’s ruling was proper and lawful, Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 262 (1933), and that the Court of Appeals therefore had before it a real case and controversy extending to that issue. Though the parties did not lock horns over the status of section 92, they did clash over whether the Comptroller properly relied on section 92 as authority for his ruling, and “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,” Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991), even where the proper construction is that a law does not govern because it is not in force. “The judicial Power” extends to cases “arising under___the Laws of the United States,” Art. Ill, § 2, cl. 1, and a court properly asked to construe a law has the constitutional power to determine whether the law exists, cf. Cohens v. Virginia, 6 Wheat. 264, 405 (1821) (“[I]f, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend”) (Marshall, C. J.). The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory.
Nor did prudence oblige the Court of Appeals to treat the unasserted argument that section 92 had been repealed as having been waived. Respondents argued from the start, as we noted, that section 92 was not authority for the Comptroller’s ruling, and a court may consider an issue “antecedent to... and ultimately dispositive of” the dispute before it, even an issue the parties fail to identify and brief. Arcadia v. Ohio Power Co., 498 U. S. 73, 77 (1990); cf. Cardinal Chemical Co. v. Morton Int'l, Inc., ante, at 88-89, n. 9 (addressing a legal question as to which the parties agreed on the answer). The omission of section 92 from the United States Code, moreover, along with the codifiers’ indication that the provision had been repealed, created honest doubt about whether section 92 existed as law, and a court “need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it.” United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). While the Bank says that by initially accepting the widespread assumption that section 92 remains in force, respondents forfeited their right to have the Court of Appeals consider whether the law exists, “[tjhere can be no estoppel in the way of ascertaining the existence of a law,” South Ottawa v. Perkins, 94 U. S. 260, 267 (1877). In addressing the status of section 92, the Court of Appeals did not stray beyond its constitutional or prudential boundaries.
The Court of Appeals, accordingly, had discretion to consider the validity of section 92, and under the circumstances did not abuse it. The court was asked to determine under the APA whether the Comptroller’s ruling was in accordance with a statutory provision that the keepers of the United States Code had suggested was no longer in force, on appeal from a District Court justifying its reliance on the law by the logic that, despite its “inadverten[t] repea[l],” section 92 remained in effect of its own force. 736 F. Supp., at 1163, n. 2. After giving the parties ample opportunity to address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917). We need not decide whether the Court of Appeals had, as it concluded, a “duty” to address the status of section 92 (which would imply error in declining to do so), for the court’s decision to consider the issue was certainly no abuse of its discretion.
Ill
A
Though the appearance of a provision in the current edition of the United States Code is “prima facie” evidence that the provision has the force of law, 1 U. S. C. § 204(a), it is the Statutes at Large that provides the “legal evidence of laws,” § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates. Cf. United States v. Welden, 377 U. S. 95, 98, n. 4 (1964); Stephan v. United States, 319 U. S. 423, 426 (1943) (per curiam). The analysis that underlies our conclusion that section 92 is valid law calls for familiarity with several provisions appearing in the Statutes at Large. This section provides the necessary statutory background.
The background begins in 1863 and 1864, when the Civil War Congress enacted and then reenacted the National Bank Act, which-launched the modern national banking system by providing for federal chartering of private commercial banks and empowering the newly created national banks to issue and accept a uniform national currency. Act of Feb. 25, 1863, ch. 58,12 Stat. 665; Act of June 3,1864, ch. 106,13 Stat. 99; see E. Symons, Jr., & J. White, Banking Law 22-25 (3d ed. 1991); see also 12 U. S. C. §38. In a section important for these eases, the National Bank Act set limits on the indebtedness of national banks, subject to certain exceptions. See §42,12 Stat. 677 (1863 Act); §36,13 Stat. 110 (1864 Act). Ten years later, Congress adopted the indebtedness provision again as part of the Revised Statutes of the United States, a massive revision, reorganization, and reenactment of all statutes in effeet at the time, accompanied by a simultaneous repeal of all prior ones. Rev. Stat. §§ 1-5601 (1874); see also Dwan & Feidler, The Federal Statutes — Their History and Use, 22 Minn. L. Rev. 1008, 1012-1015 (1938). Title 62 of the Revised Statutes, containing §§ 5133 through 5243, included the Nation’s banking laws, and, with a few stylistic alterations, the National Bank Act’s indebtedness provision became § 5202 of the Revised Statutes:
Sec. 5202. No association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
First. Notes of circulation.
Second. Moneys deposited with or collected by the association.
Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
Fourth. Liabilities to the stockholders of the association for dividends and reserved profits.
In 1913 Congress amended Rev. Stat. § 5202 by adding a fifth exception to the indebtedness limit. The amendment was a detail of the Federal Reserve Act of 1913 (Federal Reserve Act or 1913 Act), which created Federal Reserve banks and the Federal Reserve Board and required the national banks formed pursuant to the National Bank Act to become members of the new Federal Reserve System. Federal Reserve Act, ch. 6, 38 Stat. 251; see P. Studenski & H. Krooss, Financial History of the United States 255-262 (2d ed. 1963). The amendment came in § 13 of the 1913 Act, the first five paragraphs of which set forth the powers of the new Federal Reserve banks, such as the authority to accept and discount various forms of notes and commercial paper, including those issued by national banks. Federal Reserve Act, § 13,38 Stat. 263-264. This (subject to ellipsis) followed:
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
Fifth. Liabilities incurred under the provisions of the Federal Reserve Act.
38 Stat. 264. The next and final paragraph of § 13 authorized the Federal Reserve Board to issue regulations governing the rediscount by Federal Reserve banks of bills receivable and bills of exchange. Ibid.
In 1916, Congress enacted what became section 92. It did so as part of a statute that amended various sections of the Federal Reserve Act and that, in the view of respondents and the Court of Appeals, also amended Rev. Stat. §5202. Act of Sept. 7, 1916, 39 Stat. 752 (1916 Act). Unlike the 1913 Act, the 1916 Act employed quotation marks, and those quotation marks proved critical to the Court of Appeals’s finding that the 1916 Act placed section 92 in Rev. Stat. § 5202. After amending § 11 of the Federal Reserve Act, the 1916 Act provided, without quotation marks,
[t]hat section thirteen be, and is hereby, amended to read as follows:
Ibid. Then followed within quotation marks several paragraphs that track the first five paragraphs of § 13 of the 1913 Act, the modifications generally expanding the powers of Federal Reserve banks. After the quotation marks closed, this appeared:
Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
“First. Notes of circulation.
“Second. Moneys deposited with or collected by the association.
“Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto.
“Fourth. Liabilities to the stockholders of the association for dividends and reserve profits.
“Fifth. Liabilities incurred under the provisions of the Federal reserve Act.
“The discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board.
“That in addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State....
“Any member bank may accept drafts or bills of exchange drawn upon it having not more than three months’ sight to run, exclusive of days of grace, drawn under regulations to be prescribed by the Federal Reserve Board by banks or bankers in foreign countries or dependencies or insular possessions of the United States for the purpose of furnishing dollar exchange as required by the usages of trade in the respective countries, dependencies, or insular possessions. Such drafts or bills may be acquired by Federal reserve banks in such amounts and subject to such regulations, restrictions, and limitations as may be prescribed by the Federal Reserve Board....”
39 Stat. 753-754 The second-to-last paragraph just quoted is the first appearance of the provision eventually codified as 12 U. S. C. § 92. After the quotation marks closed, the 1916 Act went on to amend § 14 of the Federal Reserve Act, introducing the amendment with a phrase not surrounded by quotation marks and then placing the revised language of § 14 within quotation marks. 39 Stat. 754. The pattern was repeated for amendments of §§ 16, 24, and 25 of the Federal Reserve Act. Id., at 754-756.
The final relevant statute is the War Finance Corporation Act, ch. 45, 40 Stat. 506 (1918 Act), which in §20 amended Rev. Stat. § 5202 by, at least, adding a sixth exception to the indebtedness limit:
Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows:
“Sec. 5202. No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following:
“Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act.”
40 Stat. 512.
B
The argument that section 92 is no longer in force, adopted by the Court of Appeals and pressed here by respondents, is simply stated: the 1916 Act placed section 92 in Rev. Stat. § 5202, and the 1918 Act eliminated all of Rev. Stat. § 5202 except the indebtedness provision (to which it added a sixth exception), thus repealing section 92. Our discussion begins with the first premise of that argument, and there it ends, for we conclude with petitioners that the 1916 Act placed section 92 not in Rev. Stat. § 5202 but in § 13 of the Federal Reserve Act; since the 1918 Act did not touch § 13, it did not affect, much less repeal, section 92.
A reader following the path of punctuation of the 1916 Act would no doubt arrive at the opposite conclusion, that the statute added section 92 to Rev. Stat. § 5202. The 1916 Act reads, without quotation marks, Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 39 Stat. 753. That phrase is followed by a colon and then opening quotation marks; closing quotation marks do not appear until several paragraphs later, and the paragraph that was later codified as 12 U. S. C. § 92 is one of those within the opening and closing quotation marks. The unavoidable inference from familiar rules of punctuation is that the 1916 Act placed section 92 in Rev. Stat. § 5202.
A statute’s plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning. Along with punctuation, text consists of words living “a communal existence,” in Judge Learned Hand’s phrase, the meaning of each word informing the others and “all in their aggregate tak[ing] their purport from the setting in which they are used.” NLRB v. Federbush Co., 121 F. 2d 954, 957 (CA2
1941). Over and over we have stressed that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” United States v. Heirs of Boisdoré, 8 How. 113,122 (1849) (quoted in more than a dozen cases, most recently Dole v. Steelworkers, 494 U. S. 26, 35 (1990)); see also King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991). No more than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute’s meaning. Statutory construction “is a holistic endeavor,” United Savings Assn, of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365,371 (1988), and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.
Here, though the deployment of quotation marks in the 1916 Act points in one direction, all of the other evidence from the statute points the other way. It points so certainly, in our view, as to allow only the conclusion that the punctuation marks were misplaced and that the 1916 Act put section 92 not in Rev. Stat. §5202 but in §13 of the Federal Reserve Act.
The first thing to notice, we think, is the 1916 Act’s structure. The Act begins by stating [tjhat the Act entitled “Federal reserve Act,” approved [19IS], be, and is hereby, amended as follows. 39 Stat. 752. It then contains what appear to be seven directory phrases not surrounded by quotation marks, each of which is followed by one or more paragraphs within opening and closing quotation marks. These are the seven phrases (the numbers and citations in brackets are ours):
[1] At the end of section eleven insert a new clause as follows:
“...” [39 Stat. 752]
[2] That section thirteen be, and is hereby, amended to read as follows:
..” [39 Stat. 752]
[3] Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows:
..” [39 Stat. 753]
[4] That subsection (e) of section fourteen, be, and is hereby, amended to read as follows:
..” [39 Stat. 754]
[5] That the second paragraph of section sixteen be, and is hereby, amended to read as follows:
[39 Stat. 754]
[6] That section twenty-four be, and is hereby, amended to read as follows:
“..” [39 Stat. 754]
[7] That section twenty-five be, and is hereby, amended to read as follows:
[39 Stat. 755]
The paragraph eventually codified as 12 U. S. C. § 92 is one of several inside the quotation marks that open after the third phrase, which “hereby amended” Rev. Stat. §5202, and that close before the fourth, and the argument that the 1916 Act placed section 92 in Rev. Stat. § 5202 hinges on the assumption that the third phrase is a directory phrase like each of the others. But the structure of the Act supports another possibility, that the third phrase does not introduce a new amendment at all. Of the seven phrases, only the third does not in terms refer to a section of the Federal Reserve Act. Congress, to be sure, was free to take a detour from its work on the Federal Reserve Act to revise the Revised Statutes. But if Congress had taken that turn, one would expect some textual indication of the point where once its work on Rev. Stat. § 5202 was done it returned to revision of the Federal Reserve Act. None of the directory phrases that follow the phrase mentioning Rev. Stat. § 5202, however, refers back to the Federal Reserve Act. The failure of the fourth phrase, for example, to say something like “subsection (e) of section fourteen of the Federal Reserve Act of 1913 is hereby amended” suggests that the Congress never veered from its original course, that the object of the 1916 Act was singlemindedly to revise sections of the Federal Reserve Act, and that amending the Revised Statutes was beyond the 1916 law’s scope.
Further evidence that the 1916 Act amended only the Federal Reserve Act comes from the 1916 Act’s title: An Act To amend certain sections of the Act entitled “Federal reserve Act,” approved December twenty-third, nineteen hundred and thirteen. During this era the titles of statutes that revised pre-existing laws appear to have typically mentioned each of the laws they revised. See, e. g., Act of Sept. 26, 1918, ch. 177, 40 Stat. 967 (“An Act to amend and reenact sections four, eleven, sixteen, nineteen, and twenty-two of the Act approved December twenty-third, nineteen hundred and thirteen, and known as the Federal reserve Act, and sections fifty-two hundred and eight and fifty-two hundred and nine, Revised Statutes”). Cf. ch. 6, 38 Stat. 251 (“Federal Reserve Act”). Absent a comprehensive review it is impossible to know the extent of exceptions to this general rule, if any, and we would not cast aside the 1916 Act’s punctuation based solely on the Act’s title. Nevertheless, the omission of the Revised Statutes from the 1916 Act’s title does provide supporting evidence for the inference from the Act’s structure, that the Act did not amend Rev. Stat. § 5202. Cf. INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 189 (1991) (titles within a statute “can aid in resolving an ambiguity in the legislation’s text”).
One must ask, however, why the 1916 Act stated that Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows, 39 Stat. 753, if it did not amend Rev. Stat. §5202. The answer emerges from comparing the 1916 Act with the statute that all agree it did amend, the Federal Reserve Act of 1913, and noticing that the identical directory phrase appeared in § 13 of the 1913 Act, which did amend Rev. Stat. §5202. As enacted in 1913, §13 contained several paragraphs granting powers to Federal Reserve banks; it then included a paragraph amending Rev. Stat. § 5202 (by adding a fifth exception to the indebtedness limit for “Pliabilities incurred under the provisions of the Federal Reserve Act”), a paragraph that began Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 38 Stat. 264. The 1916 Act, in the portion following the phrase introducing a revision of § 13 of the 1913 Act, proceeded in the same manner. It contained several paragraphs granting powers to Federal Reserve banks, paragraphs that are somewhat revised versions of the ones that appeared in the 1913 Act, followed by the phrase introducing an amendment to Rev. Stat. § 5202 and then the language of Rev. Stat. § 5202 as it appeared in the 1913 Act. The similarity of the language of the 1916 and 1913 Acts suggests that, in order to amend § 13 in 1916, Congress restated the 1913 version of §13 in its entirety, revising the portion it intended to change and leaving the rest unaltered, including the portion that had amended Rev. Stat. § 5202.
In defending the Court of Appeals’s contrary conclusion that the 1916 Act amended Rev. Stat. §5202, respondents argue that any other reading would render meaningless the language in the 1916 Act that purports to amend that section of the Revised Statutes. But the 1916 Congress would have had good reason to carry forward that portion of the 1913 Act containing Rev. Stat. § 5202, even though in 1916 it did not intend to amend it any further. The 1916 Act revised § 13 of the 1913 Act by completely restating it with a mixture of old and new language (providing that § 13 is amended “to read as follows,” 39 Stat. 752), and a failure to restate Rev. Stat. § 5202 with its 1913 amendment could have been taken to indicate its repeal.
The final and decisive evidence that the 1916 Act placed section 92 in § 13 of the. Federal Reserve Act rather than Rev. Stat. §5202 is provided by the language and subject matter of section 92 and the paragraphs surrounding it, paragraphs within the same opening and closing quotation marks. In the paragraph preceding section 92, the 1916 Act granted the Federal Reserve Board authority to regulate the
discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act....
39 Stat. 753 (emphasis added). “[Tjhis Act” must mean the Federal Reserve Act, since it was §13 of the Federal Reserve Act that granted banks the authority to discount and rediscount. Use of “this Act” in the discount-and-rediscount paragraph is powerful proof that the 1916 Act placed that paragraph in the Act to which it necessarily refers, the Federal Reserve Act. That is crucial because section 92 travels together with the paragraphs that surround it; neither the language nor, certainly, the punctuation of the 1916 Act justifies separating them. Because the 1916 Act placed the paragraph preceding section 92 in §13 of the Federal Reserve Act, it follows that the 1916 Act placed section 92 there too.
We are not persuaded by respondents’ argument that the term “this Act” in the discount-and-rediscount paragraph is an antecedent reference to “the Federal reserve Act,” which is mentioned in the prior paragraph (in the fifth exception clause of Rev. Stat. § 5202). 39 Stat. 753; see also 38 Stat. 264 (1913 Act). If respondents are right, then the 1916 Act may be read as placing the discount-and-rediscount paragraph (and section 92, which necessarily accompanies it) in Rev. Stat. § 5202. But while the antecedent interpretation is arguable as construing “this Act” in the discount-andrediscount paragraph, that reading cannot attach to the other uses of “this Act” in the 1916 Act, see 39 Stat. 752, 753, 754, since none is within the vicinity of a reference to the Federal Reserve Act. Presumptively, “ ‘identical words used in different parte of the same act are intended to have the same meaning,’” Commissioner v. Keystone Consol. Industries, Inc., ante, at 159 (quoting Atlantic Cleaners &
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_origin
|
F
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E-SYSTEMS, INC., ECI Division, Respondent.
No. 79-3486.
United States Court of Appeals, Fifth Circuit. Unit B
April 8, 1981.
Elliott Moore, Deputy Associate Gen. Counsel, Howard E. Perlstein, Atty., N. L. R. B., Washington, D. C., for petitioner.
Shackleford, Farrier, Stallings & Evans, Harrison C. Thompson, Jr., Thomas M. Gonzalez, Lucius M. Dyal, Jr., Tampa, Fla., for respondent.
Before GODBOLD, Chief Judge, TUT-TLE and HILL, Circuit Judges.
JAMES C. HILL, Circuit Judge:
The National Labor Relations Board (NLRB) found that the ECI Division of E-Systems, Inc. (E-Systems) violated sections 8(aXl) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) (1976), by refusing to place on a preferential rehire list and eventually discharging four economic strikers who had engaged, E-Systems believed, in. strike misconduct. The NLRB ordered E-Systems to rescind its termination of the four strikers’ recall rights, to offer immediate and full reemployment to those strikers who would have been recalled had their recall rights not been terminated, to pay their lost wages, and to post appropriate notice concerning this disposition of the dispute. E-Systems, Inc., ECI Division, 244 N.L.R.B. No. 36 (Aug. 15, 1979). E-Systems, seeking judicial review, has refused to obey the order. Thus the NLRB petitions for enforcement. We have decided to enforce the order insofar as it concerns two of the employees, but to deny enforcement insofar as it concerns the remaining two.
The Strike
The United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, (Union) represents the production and maintenance employees at E-Systems’ St. Petersburg, Florida plant. The Union, seeking agreement on the terms of a new collective bargaining contract, called for a strike. There is evidence in the record indicating that the ambience at the plant during this economic strike, which 'began on February 7, 1978, was tense. Over two months later, on April 11, accord was reached and the strike ended. A “settlement agreement” provided, inter alia, that the strikers be placed on a preferential rehire list. Four days earlier, however, E-Systems informed the Union that a number of striking employees would not be included on that list because, E-Systems maintained, those employees had engaged in strike misconduct. On April 13, E-Systems formally discharged them.
This appeal concerns four of the discharged strikers: John Ferguson, William Chapman, Edwina L. Russ, and Antoinette Rhoads. The administrative law judge (ALJ) found, and the NLRB agreed, that the discharge of these employees was a violation of the Act.
Judicial Review of the NLRB’s Conclusions
Both statutory and case law circumscribe our factual review of the NLRB’s conclusions: we are to determine only if those conclusions are supported by substantial evidence on the record as a whole. Thus, “[i]f the evidence before the Board is conflicting, and the Board’s decision rests on credibility, then we are bound by the credibility choice.” N. L. R. B. v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir. 1978). The issue is not whether this court, confronted by the same evidence, would have come to different factual conclusions, but whether substantial evidence supports the factual conclusions of the NLRB.
There is, however, a purpose to this appellate review. This court is not so constrained that we must uncritically accept the NLRB’s order. As we have explained, “[i]f . . . the credibility choice is based on an inadequate reason, or no reason at all, we are not compelled to respect it, and shall not do so.' Obviously, if the order is based on an invalid legal reason it will not be enforced.” Id. With this in mind, we turn to cases of the discharged strikers before us.
John Ferguson
Melvin Frank Brown, an E-Systems employee who did not participate in the strike, testified that he saw John Ferguson “shooting a slingshot towards the main entrance of the plant” during the strike. Record, Vol. II, at 135. Brown reported the incident to a security guard. On the basis of that report, E-Systems discharged Ferguson.
The evidence in the record concerning the incident, however, is conflicting. William J. Peterson, the personnel manager at the plant, testified somewhat vaguely that Brown reported “[something to the effect that he [Brown] did observe him [Ferguson] attempting to load a slingshot.” Id. at 80. Brown himself admitted that he could not state whether there was anything in the slingshot when Ferguson allegedly shot. Id. at 137. Ferguson, on the other hand, denied having or discharging a slingshot at the plant. Id. at 156-57.
The ALJ, finding Ferguson “a most truthful and forthright witness,” concluded “that he did not engage in the act of strike misconduct of which he was accused . . . . ” See id., Vol. I, a 304 (Decision of the Administrative Law Judge). The ALJ accordingly concluded that E-Systems had violated the Act by discharging Ferguson. The NLRB adopted this conclusion and added that E-Systems had further violated the Act by not including Ferguson on a preferential rehire list.
These findings and conclusions are not based on inadequate reason and they are supported by substantial evidence. Thus we will not disturb them. We want to emphasize, however, that there is nothing in the record suggesting that E-Systems was not acting in good faith when it discharged Ferguson (or, not incidently, any of the strikers before us). Substantial evidence, reading the record as a whole, does support the conclusion that Ferguson did not engage in strike misconduct, but there is also evidence supporting E-Systems’ allegation that he did. Nevertheless, it is clear that an employer’s good faith belief that he is acting lawfully is not a defense to an unfair labor practice charge:
§ 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer’s good faith, when it is shown that the misconduct never occurred .... In sum, § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity and that the employee was not, in fact, guilty of that misconduct.
N. L. R. B. v. Burnup & Sims, 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed.2d 1 (1964) (citations omitted).
Thus we enforce the order of the NLRB insofar as it concerns Ferguson.
William Chapman
Rocky Rothwell, another non-striking E-Systems employee, reported that the side of his truck was scratched while he was passing through the picket line. Rothwell identified William Chapman as the picketing employee who scratched his truck; Rothwell testified that Chapman “stuck his umbrella in the right-rear quarter panel of my truck and scratched it.” Record, Vol. II, at 142. Chapman did not deny that he had scratched Rothwell’s truck. Rather, he testified that if he did, he did so unintentionally. He explained that it was cold, raining and windy the day of the incident and that at the time Rothwell’s truck passed by him his “umbrella turned inside out because of the wind. I lowered it and adjusted it .. . and the truck passed and I proceeded to picket.” Id., Vol. III, at 204-05. Later Rothwell and Chapman appeared at a voluntary proceeding before a citizen’s dispute settlement board. Chapman agreed to make restitution in the amount of $36.92; he testified he did so in order to keep his “involvement in the strike to a minimum.” Id. at 206.
The ALJ concluded, and the NLRB agreed, that Chapman had misconducted himself during the strike, but that the misconduct was accidental in nature and thus not sufficiently serious to disqualify him for employment. See id., Vol. I, at 305-06 (Decision of the Administrative Law Judge). Although we are not comfortable with the ALJ’s labeling of accidental conduct as misconduct, we do accept his legal appraisal of the incident and find that the conclusion that E-Systems did not have good cause to discharge Chapman is supported by substantial evidence. Thus, we enforce the order of the NLRB insofar as it concerns Chapman.
Edwina L. Russ
Peterson, the personnel manager, testified “[t]he basis of [Edwina L. Russ’] termination was destruction of property and tearing of an aerial off of a vendor’s car as he was leaving the vicinity. This was reported to us by the vendor.” Id., Vol. II, at 61. Robert J. Braher, an employee of the vendor, witnessed the incident. Braher was following the vendor in another car as both left the plant through the main gate. He saw a picket, whom he later identified as Russ, bend the aerial. The aerial was rendered unusable. Id., Vol. III, at 183, 196.
Russ testified that, as the cars approached the gate, she and the other pickets stepped aside to allow passage. As they did so, according to her testimony, the “car speeded up ... to get out on the street, and as it did it brushed me and I ... it hit me and as it hit me my hand reached up and I just happened to grab that antenna and I bent it.” Id. at 218. She explained that “[i]t was just a reflex, and I was angry, I guess, because he was trying to get out in a hurry and he did brush me as he went out.” Id. at 219-20. Criminal action based on this incident was later instituted against Russ. She pleaded nolo contendere to a criminal mischief charge, agreed to make restitution in the amount of $146 to the vendor, and was put on probation for three months. Id. at 224-25.
The AU concluded, and again the NLRB agreed, that Russ’ behavior was reflexive and provoked, and thus not sufficiently serious to warrant her discharge. We agree insofar as substantial evidence indicates that Russ’ behavior was impulsive, but we disagree that such impulsive, uncontrolled behavior is protected by the Act. Therefore we reject the ALJ’s legal appraisal of the incident and do not enforce the order of the NLRB insofar as it concerns Russ. See N. L. R. B. v. Moore Business Forms, Inc., 374 F.2d at 844 (Nelda Morrow).
Antoinette Rhoads
Two incidents led to the discharge of Antoinette Rhoads. Evidence in the record indicates that she blocked passage of automobiles at the plant while picketing and that she hit another E-Systems employee who had abandoned the strike and was returning to work. Peterson, the personnel manager, testified that on March 7,1978, he was informed that strikers at the plant’s main gate were preventing automobiles from leaving the plant. He observed the incident, noting that one of the strikers was Rhoads, and called the police. The police spoke to the pickets and the blocked automobiles were driven out through the gate. Record, Vol. II, at 32-33. The driver of one of the blocked cars, an E-Systems employee named Deloras Lees, who had joined the strike initially but later opted to return to work, testified that her egress was prevented partly by the pickets and partly by a stalled car; she further testified that Rhoads was not in the picket line during the entire incident, but that Rhoads replaced one of the pickets who had initially blocked the cars. Id. at 99-100. The testimony of another driver buttresses this testimony. Id. at 120-21. Both drivers, however, testified that Rhoads prevented their passage.
The following morning, pickets, again including Rhoads, prevented some cars from entering the plant. Peterson testified that when he came to work he noticed two cars, one of which was driven by Lees, in the plant’s main gate driveway. Rhoads again was not initially on the picket line, but she later joined it and blocked the passage of one car “by standing in front of it; [the pickets] were not walking, as pickets had been directed to walk.” Id. at 35. The pickets directed other cars around the ones stopped in the driveway. Management personnel eventually escorted the drivers of the blocked cars into the plant. Id. at 37-39. Lees’ testimony echoes Peterson’s, id. at 100-102, as does that of another driver, id. at 121-23.
Rhoads herself testified that, while picketing the gates, she and other pickets “moved back and forth from one end of the driveway to the other” and that she did not stop “in front of [Lees’] car” but was “walking in front of [Lees’] car.” Id. at 235-36. Rhoads admitted, however, that on the morning of March 8 she in fact stood in front of Lees’ car, thus blocking its passage for some fifteen minutes. Id. at 239.
The second incident occurred the morning of March 8, while Lees was being escorted from her car and into the plant by a managerial employee. Lees testified that as she passed Rhoads, she “felt something hit me, and I winced and turned my head .... I saw [Rhoads’] hand coming down — her arm coming down.” Id. at 103. Lees later felt some stiffness in her shoulder, so she reported to the plant nurse, who discovered a bruise. Rhoads testified that, at the time Lees passed her, she carried a piece of string in her hand and that she “threw [her] arm out and shook [her] hand and hollered ‘Scab!’ ” Id. at 245. She further testified that she did not intend to hit Lees and, to the best of her knowledge did not do so. Id. Another picket’s testimony concurs with Rhoads’ description of the incident. Id. at 280. No one testified that he had in fact seen Rhoads strike Lees.
The ALJ concluded “that the operative course of the Rhoads discharge was, solely, Respondent’s belief that that employee had assaulted Lees.” See id., Vol. I, at 307 (Decision of the Administrative Law Judge). Thus the ALJ discounted the car blocking incidents. He did find that the evidence warranted the inference that Rhoads struck Lees and thus that Rhoads had engaged in strike misconduct. He concluded, however, that the incident was not so serious that it required a forfeiture of her reemployment. The NLRB agreed.
We agree that substantial evidence indicates that Rhoads engaged in strike misconduct. That evidence, however, indicates that Rhoads misconducted herself both by blocking the passage of employees going to and from work and by striking Lees. We will not condone such conduct. See Mosher Steel Co. v. N. L. R. B., 568 F.2d 436 (5th Cir. 1978). Enforcement of the order insofar as it concerns Rhoads is therefore denied.
Enforcement GRANTED in part and DENIED in part.
. During the administrative hearing concerning the allegations leading to this litigation, the administrative law judge (ALJ) properly narrowed the issue to whether the discharged employees had engaged in strike misconduct, not ' whether the strike itself was violent. Nevertheless, we think some consideration must be given to the context in which the events precipitating the discharges took place. See generally N. L. R. B. v. Moore Business Forms, Inc., 574 F.2d 835 (5th Cir. 1978).
. “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” 29 U.S.C. § 160(e) (1976). See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). However, this court is not
to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn .... The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement . .. that courts consider the whole record.
Universal Camera Corp. v. N. L. R. B., 340 U.S. at 487-88, 71 S.Ct. at 463-64.
. Brown was employed as a design engineer and as such was not included in the bargaining unit.
. We note the line of cases decided in this circuit in which it has been held that section 8(a)(1) or (3) is not violated when an employer discharges an employee for good cause, unless it is proved that the discharge was motivated by antiunion animus. See, e. g., Florida Steel Corp. v. N. L. R. B., 587 F.2d 735 (5th Cir. 1979); Firestone Tire & Rubber v. N. L. R. B., 449 F.2d 511 (5th Cir. 1971). These cases must be distinguished from the one before us. Although E-Systems’ discharge of Ferguson was in good faith, the ALJ properly found that there was not good cause for the discharge.
. Rothwell, like Brown, was neither covered by the collective bargaining contract nor employed in a managerial capacity.
. Neither the vendor nor Braher were employed by E-Systems.
. It is worth mentioning that E-Systems filmed much of the strike activity. We have not viewed the films, but they apparently reveal that Rhoads did have string in her hand and that she did throw her arm out toward Lees; they do not prove that Rhoads struck Lees.
. The NLRB, however, disagreed with the ALJ’s conclusion that the traffic blocking incidents were not an operative cause of Rhoad’s dismissal. “Nevertheless,” the NLRB maintained, “even assuming without deciding that Rhoads engaged in such conduct, we do not believe that such conduct, whether considered alone or with Rhoads’ other conduct described above, was sufficiently serious to deny her the protection of Sec. 8(a)(3) of the Act.” E-Systems, Inc. v. ECI Division, 244 NLRB No. 36, at 2, n.1.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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.
Armour BAILEY, Appellant, v. UNITED STATES of America, Appellee.
No. 7935.
United States Court of Appeals Tenth Circuit.
Jan. 27, 1965.
See, also, 10 Cir., 324 F.2d 632.
Bruce Ducker, Denver, Colo., for appellant.
Melvin M. Gradert, Asst. U. S. Atty.,. Wichita, Kan. (Newell A. George, U. S-Atty., for the District of Kansas, with him on the brief), for appellee.
Before PICKETT and LEWIS, Circuit. Judges, and DAUGHERTY, District-Judge.
PER CURIAM.
This is an appeal from an order denying a motion to set aside a judgment and1 sentence under 28 U.S.C. § 2255. On August 15, 1961 the appellant Bailey appeared in the United States District ■Court for the District of Kansas with •counsel of his own choice, and entered a plea of guilty to an indictment which •charged that he, with others, “forcibly •entered into the State Bank of Colwich •* * * Kansas, a bank insured by the Federal Deposit Insurance Corporation of the United States, with the intent to .steal therefrom, and did attempt to enter the said bank vault therein by breaking a hole in the wall surrounding same; in violation of 18 U.S.C. 2113.” This is Bailey’s third Section 2255 attack on the judgment and sentence imposed after the plea of guilty.
In essence, the allegations of the motion are that the indictment fails to charge an offense under the statute and the judgment and sentence is therefore void. We find no merit in the contention. Rule 7(c), F.R.Crim.P., requires that an indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. All the essential elements of the offense are contained in the allegations of the indictment and they meet the requirements of the rule, even if timely challenged prior to conviction. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Young v. United States, 10 Cir., 329 F.2d 316, cert. denied 377 U.S. 980, 84 S.Ct. 1886, 12 L.Ed.2d 748; Mims v. United States, 10 Cir., 332 F.2d 944; Clay v. United States, 10 Cir., 326 F.2d 196, cert. denied 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050; Smith v. United States, 10 Cir., 273 F.2d 462, cert. denied 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729.
There is no need for a discussion of the test of the sufficiency of the indictment in post-conviction proceedings. See, Foster v. United States, 10 Cir., 339 F.2d 188; Flores v. United States, 10 Cir., 338 F.2d 966; Charley v. United States, 10 Cir., 303 F.2d 512; Barnes v. Hunter, 10 Cir., 188 F.2d 86, cert. denied 342 U.S. 920, 72 S.Ct. 368, 96 L.Ed. 688.
Affirmed.
. In Mims v. United States, 10 Cir., 332 F.2d 944, 946, the court said:
“The traditional criteria by which the legal sufficiency of an indictment is determined is whether it contains the elements of the offense charged and apprises the accused of the nature of the ■charge, so as to enable him to prepare a defense and to plead the judgment in bar. See: United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; and Clay v. United States (10 CA), 326 F.2d 196.”
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
RADIO WHKW, INC., An Alabama Corporation, Plaintiff-Appellant, v. Ben YARBER, Defendant-Appellee.
No. 87-4289.
United States Court of Appeals, Fifth Circuit.
March 11, 1988.
Rehearing Denied April 7,1988.
Hunter M. Gholson, Gholson, Hicks & Nichols, Columbus, Miss., for plaintiff-appellant.
Wilbur O. Colom, Colom & Colom, Dennis Harmon, Donna S. Smith, Columbus, Miss., for defendant-appellee.
Before KING and DAVIS, Circuit Judges, and FELDMAN , District Judge.
District Judge of the Eastern District of Louisiana, sitting by designation.
KING, Circuit Judge:
Radio WHKW, Inc., an Alabama corporation, appeals the district court’s dismissal of its breach of contract claim against Ben Yarber, a Mississippi resident, for lack of subject matter jurisdiction. The district court concluded that Radio WHKW had “localized” its business activities in Mississippi, thereby engaging in intrastate commerce — but without first qualifying to do so under Mississippi laws which govern foreign corporations transacting business in the state. Therefore, the district court held, the radio station was barred from prosecuting a lawsuit in any Mississippi state or federal court under the state’s door-closing statute.
Because our review of the record and relevant case law convinces us that the business activities of the radio station demonstrated a pattern of unitary interstate transactions, and not localized intrastate activity as found by the district court, we hold that the denial of access to Mississippi courts in this instance imposed an impermissible burden on interstate commerce under the commerce clause of the United States Constitution. We reverse and remand.
I.
The facts which underlie this case are uncontested and relatively straightforward. Appellant Radio WHKW, Inc. (“Radio WHKW”) is an Alabama corporation; its principal place of business also is Alabama. Appellee Ben Yarber (“Yarber”) is a Mis-sissipi resident. Radio WHKW held by assignment a “management agreement” executed by Yarber which contained a non-competition clause. Upon Yarber’s resignation from his employment with Radio WHKW and his purchase of a radio station located within the primary coverage area of Radio WHKW — the territory purportedly covered by the noncompetition clause— Radio WHKW brought a diversity action against Yarber for breach of contract, seeking injunctive relief. Yarber raised various defenses, including the jurisdictional question before us.
Yarber’s jurisdictional defense rests upon a Mississippi statute (“the door-closing statute”) that barred any foreign corporation from maintaining a lawsuit in any Mississippi court unless the corporation obtained a certificate of authority prior to transacting business in the state. Despite its substantial business activity in Mississippi, Radio WHKW did not obtain a certificate of authority to do business prior to transacting business in the state. Hence, Yarber argued, Radio WHKW did not qualify to sue in Mississippi state or federal courts because of the door-closing statute. However, Radio WHKW claimed that, under the commerce clause, it need not comply with the certification requirement because the interstate character of its business shielded it from the reach of Mississippi’s door-closing statute.
Following a hearing on the issue, the district court made the following factual findings regarding the interstate character of Radio WHKW’s business. Radio WHKW’s principal place of business was Kennedy, Alabama — where its corporate offices and transmitter were located, and where a substantial part of production and broadcasting and all administrative, record-keeping, billing, payment and management activities occurred. However, Radio WHKW derived its income from the sale of “air time” to advertisers, many of which were Mississippi businesses. In fact, at-hough two-thirds of the station’s advertisers were from Alabama and states other than Mississippi, Mississippi advertisers accounted for more than one-half of its advertising revenues. Contracts for air' time were executed by advertisers at their places of business, were reviewed and approved as to form by sales personnel, and were subject to final acceptance at the corporate offices in Kennedy, Alabama. These factual findings by the district court are uncontested on appeal.
Having concluded that Radio WHKW’s business “ha[d] a definite interstate flavor” which brought its activities within the purview of the commerce clause, the district court then determined that Radio WHKW had “localized” its business activities within Mississippi — thereby exceeding the protective arm of the commerce clause and subjecting itself to the state’s door-closing statute. The district court’s determination rested upon three additional factual findings: First, the court noted that Radio WHKW regularly conducted remote broadcasts of a promotional nature from Columbus, Mississippi locations. Second, Radio WHKW maintained a sales office in Columbus, Mississippi, out of which its largest sales staff operated; all daily sales meetings and most monthly meetings were conducted at that office. Third, the radio station purchased supplies and gasoline, and leased automobiles from Mississippi merchants for its personnel operating in Mississippi, and it entered into contractual arrangements with Mississippi residents such as Yarber. These factual findings by the district court also are uncontested.
Having determined from the above factors that Radio WHKW had localized its intrastate business activities, the district court ruled that the radio station could not sue in Mississippi courts because it failed to qualify under the door-closing statute. Further, although Radio WHKW did obtain a certificate of authority just prior to filing suit, the district court held that such action could not cure Radio WHKW’s earlier default because the court must look to the radio station’s qualification to sue at the time the cause of action arose. Since Radio WHKW had not qualified to sue at the time that Yarber initially began his competitive activities, which the district court determined was the time at which the cause of action arose, the court dismissed Radio WHKW’s suit.
II.
On appeal, Radio WHKW challenges the district court’s determination that Radio WHKW had “localized” its otherwise interstate business by its activities within the state of Mississippi, and that it thereby had forfeited its constitutional immunity from the requirement that a foreign corporation transacting business in interstate commerce qualify to do business within the state. Yarber responds that the district court’s finding is not clearly erroneous and, therefore, must be affirmed.
As a preliminary matter, we reject Yarber’s endorsement of the “clearly erroneous” test as the appropriate standard of review for this case. Federal Rule of Civil Procedure 52(a) prescribes the “clearly erroneous” standard for findings of fact. “Localization,” however, is a legal conclusion which merely rests upon subsidiary, historical facts. The subsidiary facts relevant to a determination of “localization” are undisputed in this case; hence, we have no occasion to apply the “clearly erroneous” test. As a conclusion of law, “localization” is freely reviewable by this court. United States v. Grayson County State Bank, 656 F.2d 1070, 1075 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 460 (1982); see, e.g., Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir.), cert. denied, — U.S. -, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 320 (5th Cir.1979). Imbued with this plenary power of review, we turn our attention to the issue.
In evaluating state regulation of foreign corporations, we follow the general rule that, “where a foreign corporation has established a continuing presence in a state for the purpose of ‘doing business’ within that state, it is fair that [the foreign corporation] be required to comply with qualification statutes.” Diversacon Indus. v. National Bank of Commerce, 629 F.2d 1030, 1034 (5th Cir.1980). However, the power of a state to impose qualification requirements on foreign corporations is not unfettered; the commerce clause to the United States Constitution delimits state authority to regulate the activities of foreign corporations. In Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), the Supreme Court explained that “[a] corporation of one State may go into another ... for all the legitimate purposes of [interstate] commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause.” Id. at 291, 42 S.Ct. at 109. Thus, where the business of the foreign corporation is interstate in nature, a state may not burden such business with state qualification requirements unless the business of the corporation includes a distinct and separable intrastate focus, Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276, 279-83, 81 S.Ct. 1316, 1318-20, 6 L.Ed.2d 288 (1961), or the corporation has “localized” its business within the state, Union Brokerage v. Jensen, 322 U.S. 202, 212, 64 S.Ct. 967, 973, 88 L.Ed. 1227 (1944). Further, as we expressed in Diversacon, for purposes of commerce clause analysis, interstate commerce includes “any activity of an intrastate nature which [is] an integral part of an overall interstate pattern or transaction.” 629 F.2d at 1033.
The crux of the issue in the instant case is whether the specific intrastate business activities upon which the district court anchored its decision reflect either a distinct and separable intrastate focus, as in Eli Lilly, or had become localized to such a degree that they were separable from the interstate character of the business, as in Union Brokerage. In deciding that Radio WHKW had localized its business activities, the court below looked to Radio WHKW’s remote broadcasts from Columbus, Mississippi, to the substantial sales force which Radio WHKW maintained in Columbus, Mississippi, and to the relationships which Radio WHKW developed with Mississippi merchants and residents as a business consumer while operating its sales force in the area. We examine each of these factors under the Eli Lilly and the Union Brokerage approaches.
Remote broadcasting from the Columbus, Mississippi area entailed the transmission of live, promotional messages from the premises of advertisers in Columbus, Mississippi to the Kennedy, Alabama station — from which the messages were rebroadcast via the FCC licensed interstate transmitter to listeners in Alabama and Mississippi. Apart from a mode of delivery peculiar to radio broadcasting, we find little to distinguish the sale and delivery of radio “air time” via remote transmission from more conventional methods of interstate sale and delivery. The transaction is the same: Radio WHKW is selling air time across state boundaries to secure the revenues on which it operates.
This case does not present a two-tiered transaction, as occurred in Eli Lilly, where the foreign drug manufacturing company not only sold its merchandise interstate to wholesalers, but also participated directly in intrastate sales transactions between wholesalers and retailers. 366 U.S. at 280, 81 S.Ct. at 1319. To the contrary, we can identify only a single commercial transaction relating to the remote broadcasts — and that is the sale of air time to an advertiser.
Neither does Union Brokerage persuade us that Radio WHKW’s remote broadcasting is a “localized” activity. We have serious doubts whether Union Brokerage is relevant at all in the context of the facts before us. The brokerage services which were at the foundation of that case affected interstate commerce only tangentially. First, customs brokers facilitated compliance with federal customs requirements at ports of entry to the United States and so were necessary to commerce, but had no connection with the underlying business transactions which constituted the commerce itself. Second, the customhouse brokerage services in Union Brokerage were offered, performed and completed entirely within each of two separate states at two separate ports of entry. However, unlike the brokerage services in Union Brokerage, the remote radio transmissions here directly involved a delivery of services across state lines. Further, these services were essential to and inseparable from the underlying interstate sales transactions themselves. We note that the Union Brokerage Court specifically disclaimed any intent to reach “a foreign corporation merely coming into [the state] to contribute to or conclude a unitary interstate transaction.” 322 U.S. at 211, 64 S.Ct. at 973. Later, in Allenburg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), the Supreme Court reiterated that Union Brokerage does not control cases in which “a foreign corporation enters the State to contribute to or conclude a unitary interstate transaction.” Id. at 33-34, 95 S.Ct. at 267 (citing Union Brokerage ). Hence, we question Union Brokerage’s applicability to the facts before us.
The Supreme Court’s decision in Allen-burg Cotton also militates against a finding of “localization.” The sale of cotton in Allenburg Cotton involved temporary intrastate storage and classification of the cotton prior to shipping with the result that Allenburg maintained a “perpetual” inventory in its Mississippi warehouse because of the sheer volume of its interstate sales transactions. However, this “perpetual” temporary inventory did not destroy the corporation’s exemption from qualification because the Court viewed the intrastate storage, sorting and classification “as a prerequisite to its shipment in interstate commerce.” 419 U.S. at 33, 95 S.Ct. at 267. Similarly, the sale of air time in the instant case required the temporary services of a remote transmitter and support personnel to convey each advertiser’s desired message from Columbus, Mississippi to the radio tower in Kennedy, Alabama. Both cases reveal a pattern of unitary interstate transactions. The intrastate activity — remote broadcasting — is inseparable from the interstate transaction and does not constitute localization.
Finally, when construing the door-closing statute in another case, Fred Hale Machinery, Inc. v. Laurel Hill Lumber Co., 483 F.2d 58, 60 (5th Cir.1973), this court recognized that services integral to an interstate sale do not constitute intrastate activity for which a foreign corporation must forfeit the protection of the commerce clause. The interstate transaction in Fred Hale was the manufacture and sale of sawmill components by a Georgia company to a Mississippi sawmill. Although Fred Hale employees did not assist in transporting the components to the sawmill, they assembled and supervised installation of the system at the sawmill following their transport. Despite this substantial local activity within Mississippi, we recognized the unitary nature of the real transaction — an interstate sale of machinery. Later, in Diversacon, we held that although sub-contract work on an interstate highway was to be performed wholly within the state of Louisiana, the single business transaction to which all of Diversacon’s activities related clearly was the construction of the interstate highway. 629 F.2d at 1032, 1034.
We conclude that neither Eli Lilly nor Union Brokerage support a finding of “localization” as to Radio WHKW’s remote broadcasting from Columbus, Mississippi localities. Further, both Allenburg Cotton and our analysis in Fred Hale and Diversa-con compel a determination that such broadcasting is inseparable from the underlying interstate sale of air time. Hence, by contributing to a unitary interstate transaction, Radio WHKW’s remote broadcasting activities fall within the governance — and hence the protections — of the commerce clause.
We reach a similar conclusion regarding the remaining “localization” factors relied upon by the district court. Although Radio WHKW maintained a substantial sales force in Columbus, Mississippi, that factor alone is insufficient to establish either localization or a distinct and separable business activity within the state. The constitutional right to transact business in interstate commerce without obstruction from state regulation includes the right to search out those business opportunities. Eli Lilly, 276 U.S. at 279, 81 S.Ct. at 1318-19 (citing Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694 (1887)). A foreign corporation should be free to maintain a sales operation promoting interstate sales within a state without fear that its rights will not be enforceable in the state. We note that the test in Eli Lilly was not the thirty-eight salespersons that the company employed within the state. Rather, the role of those employees in soliciting and participating in distinctly intrastate sales — sales between merchants and retailers — controlled the outcome. Allenburg Cotton, 419 U.S. at 32, 95 S.Ct. at 267 (explaining Eli Lilly).
Likewise, Radio WHKW’s contractual relations with Mississippi merchants and citizens as a business consumer did not support the decision below. The record clearly indicates that all of Radio WHKW’s contacts with Mississippi businesses and citizens related to its sales operation. It would be incongruous to permit local sales personnel to search out interstate business opportunities, yet deny access to goods and services necessary to perform that function. Cf., e.g., Diversacon, 629 F.2d at 1032, 1034 (local sub-contracting of interstate highway project). To require that participants in interstate commerce refrain from purchasing supplies or services within a state or suffer the loss of their commerce clause protections itself imposes an impermissible burden on interstate commerce. A foreign corporation must enjoy the same access to the domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations. Id.
Finally, we find Union Brokerage no more persuasive or relevant regarding sales personnel who are engaged in promoting a unitary interstate transaction than we found it in the context of remote transmissions which effectuate a unitary interstate transaction. As the Allenburg Court explained, Union Brokerage does not apply to an activity which is an integral part of an overall interstate pattern or transaction. 419 U.S. at 33-34, 95 S.Ct. at 267; see also Diversacon, 629 F.2d at 1033.
III.
Because Radio WHKW’s business activities within the state of Mississippi demonstrated a pattern of unitary interstate transactions rather than a localized or separable intrastate focus, the denial of access to Mississippi courts in this instance imposed an impermissible burden on interstate commerce. We REVERSE and REMAND.
. The door-closing statute provided as follows:
No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain any action, suit or proceeding in any court of this state.
Miss. Code Ann. § 79-3-247 (1972) (repealed 1987).
A companion statute, which set forth exceptions to the door-closing statute, exempted any foreign corporation ‘‘[t]ransacting any business in interstate commerce" from the certification requirement. Miss. Code Ann. § 79-3-211 (1972) (repealed 1987). This exemption was intended at least to accommodate the commerce clause’s proscription of state action which would impermissibly burden interstate commerce. Diversacon Indus., Inc. v. National Bank of Commerce, 629 F.2d 1030, 1034 (5th Cir.1980). However, Radio WHKW bases its appeal on the commerce clause alone, and we need not review Mississippi case law to determine whether the protection afforded a foreign corporation under the companion statute is broader than or coextensive with that afforded by the commerce clause itself.
. Radio WHKW makes the additional argument that Yarber's activities constitute a continuing breach of contract, and that the radio station therefore is entitled to maintain an action in Mississippi courts for Yarber's activities subsequent to Radio WHKW's procurement of the requisite certificate of authority. We do not reach this issue since our determination that Mississippi's door-closing statute will not bar Radio WHKW’s access to Mississippi courts is dispositive.
. Additionally, the brokerage firm’s failure to comply with Minnesota’s Foreign Corporation Act in Union Brokerage was particularly egregious. Ninety percent of Union Brokerage’s business had been diverted to a Minnesota port of entry because the Canadian Pacific Railway had re-routed shipments from the brokerage firm’s original port of entry in North Dakota. Of course, we recognize that the Union Brokerage Court relied upon the self-contained or sev-erable nature of the brokerage firm’s business activities within Minnesota, rather than the relative volume of its business, in deciding the case.
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_source
|
F
|
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.
ABACOA RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 19627.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 27, 1966.
Decided Feb. 17, 1966.
Mr. Joseph F. Hennessey, Washington, D. C., with whom Mr. Robert M. Booth, Jr., Washington, D. C., was on the brief, for appellant.
Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, and Mrs. Lenore G. Ehrig, Counsel, F.C.C., were on the brief, for appel-lee.
Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges.
PER CURIAM:
This appeal is from a Decision and Order of the Federal Communications Commission denying appellant’s application to increase the power of its radio station WMIA in Puerto Rico. The principal theory advanced for reversal is that since the Commission rested its decision, under 73.35(a) of the Commission’s Rules, upon applicant’s ownership, operation or control of three other stations serving substantially the same area, if one of the three stations is not under such control reversal must follow. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L. Ed. 626. It is contended that one of the three stations, namely, WISO, was in fact not in such common control because appellant’s principals owned only 49.7% of the stock of the licensee of WISO, and only two of appellant’s three principals, the two being brothers, are among the four directors of WISO. They are also officers of the corporation.
The Commission refused to review the decision of the Review Board adverse to appellant. Before the Hearing Examiner and the Review Board appellant raised no objection to the finding of ownership, operation or control of WISO. The finding under Section 73.35(a) was not there contested, appellant contending that the public interest, convenience and necessity nevertheless would be served through the multiple ownership situation. Objection to the finding of control was first raised in appellant’s application for review by the Commission.
In the circumstances of this case we think it was not open to appellant to insist that the Commission itself should reopen the issue of multiple ownership. The Commission rules provide for waiver of an objection by failing to file an exception in the manner provided by the rules. 47 CFR § 1.277(a). And the rules specifically provide that “[No] application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass.” 47 CFR § 1.115(c). The designated authority in this case was the Review Board. The policy expressed in these rules, with which appellant failed to conform, leads us to affirm, especially in the absence of a clear showing of a well-founded contention that the Commission’s decision under Section 73.35(a) of its rules was erroneous.
We have considered other questions raised and find in them no adequate basis for the court to decide, contrary to the Commission, that the application should have been granted.
Affirmed.
. Section 73.35 — Multiple Ownership
No license for a standard broadcast station shall be granted to any party (including all parties under common control) if:
(a) Such party directly or indirectly owns, operates or controls another standard broadcast station, a substantial portion of whose primary service area would receive primary service from the station in question, except upon a showing that public interest, convenience and necessity will be served through such multiple ownership situation; * * *
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:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
CORRECTIONAL SERVICES CORP. v. MALESKO
No. 00-860.
Argued October 1, 2001
Decided November 27, 2001
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scajua, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 75. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 75.
Carter G. Phillips argued the cause for petitioner. With him on the briefs were Frank R. Volpe, George P. Stasiuk, and Karen M. Morinelli.
Jeffrey A. Lamken argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Underwood, Deputy Solicitor General Clement, Barbara L. Herwig, and Thomas M. Bondy.
Steven Pasternak argued the cause for respondent. With him on the brief was David C. Vladeck.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Elizabeth Alexander, Margaret Winter, David Fathi, and Steven R. Shapiro; and for the Legal Aid Society of the City of New York by Daniel L. Greenberg and John Boston.
Chief Justice Rehnquist
delivered the opinion of the Court.
We decide here whether the implied damages action first recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), should, be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. We decline to so extend Bivens.
Petitioner Correctional Services Corporation (CSC), under contract with the federal Bureau of Prisons (BOP), operates Community Corrections Centers and other facilities that house federal prisoners and detainees. Since the late 1980’s, CSC has operated Le Marquis Community Correctional Center (Le Marquis), a halfway house located in New York City. Respondent John E. Malesko is a former federal inmate who, having been convicted of federal securities fraud in December 1992, was sentenced to a term of 18 months’ imprisonment under the supervision of the BOP. During his imprisonment, respondent was diagnosed with a heart condition and treated with prescription medication. Respondent’s condition limited his ability to engage in physical activity, such as climbing stairs.
In February 1993, the BOP transferred respondent to Le Marquis where he was to serve the remainder of-his sentence. Respondent was assigned to living quarters on the fifth floor. On or about March 1,1994, CSC instituted a policy at Le Marquis requiring inmates residing below the sixth floor to use the staircase rather than the elevator to travel from the first-floor lobby to their rooms. There is no dispute that respondent was exempted from this policy on account of his heart condition. Respondent alleges that on March 28, 1994, however, Jorge Urena, an employee of CSC, forbade him to use the elevator to reach his fifth-floor bedroom. Respondent protested that he was specially permitted elevator access, but Urena was adamant. Respondent then climbed the stairs, suffered a heart attack, and fell, injuring his left ear.
Three years after this incident occurred, respondent filed a pro se action against CSC and unnamed CSC employees in the United States District Court for the Southern District of New York. Two years later, now acting with counsel, respondent filed an amended complaint which named Urena as 1 of the 10 John Doe defendants. The amended complaint alleged that CSC, Urena, and unnamed defendants were “negligent in failing to obtain requisite medication for [respondent’s] condition and were further negligent by refusing [respondent] the use of the elevator.” App. 12. It further alleged that respondent injured his left ear and aggravated a pre-existing condition “[a]s a result of the negligence of the Defendants.” Ibid. Respondent demanded judgment in the sum of $1 million in compensatory damages, $3 million in anticipated future damages, and punitive damages “for such sum as the Court and/or [j]ury may determine.” Id., at 13.
The District Court treated the amended complaint as raising claims under, Bivens v. Six Unknown Fed. Narcotics Agents, supra, and dismissed respondent’s cause of action in its entirety. App. to Pet. for Cert. 20a. Relying on our decision in FDIC v. Meyer, 510 U. S. 471 (1994), the District Court reasoned that “a Bivens action may only be maintained against an individual,” and thus was not available against CSC, a corporate entity. App. to Pet. for Cert. 20a. With respect to Urena and the unnamed individual defendants, the complaint was dismissed on statute of limitations grounds.
The Court of Appeals for the Second Circuit affirmed in part, reversed in part, and remanded. 229 F. 3d 374 (2000). That court affirmed dismissal of respondent’s claims against individual defendants as barred by the statute of limitations. Respondent has not challenged that ruling, and the parties agree that the question whether a Bivens action might lie against a private individual is not presented here. With respect to CSC, the Court of Appeals remarked that Meyer expressly declined “‘to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but federal agencies as well.’ ” 229 F. 3d, at 378 (quoting Meyer, supra, at 484 (emphasis deleted)). But the court reasoned that private entities like CSC should be held liable under Bivens to “accomplish the . . . important Bivens goal of providing a remedy for constitutional violations.” 229 F. 3d, at 380.
We granted certiorari, 532 U. S. 902 (2001), and now reverse.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Respondent now asks that we extend this limited holding to confer a right of action for damages against private entities acting under color of federal law. He contends that the Court must recognize a federal remedy at law wherever there has been an alleged constitutional deprivation, no matter that the victim of the alleged deprivation might have alternative remedies elsewhere, and that the proposed remedy would not significantly deter the principal wrongdoer, an individual private employee. We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here.
Our authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in our general jurisdiction to decide all cases “arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331. See, e. g., Schweiker v. Chilicky, 487 U. S. 412, 420-421 (1988); Bush v. Lucas, 462 U. S. 367, 373-374 (1983). We first exercised this authority in Bivens, where we held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court. Bivens acknowledged that Congress had never provided for a private right of action against federal officers, and that “the Fourth Amendment does not in so many words provide for its enforcement by award of money damages for the consequences of its violation.” 403 U. S., at 396. Nonetheless, relying largely on earlier decisions implying private damages actions into federal statutes, see id., at 397 (citing J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964)); 403 U. S., at 402-403, n. 4 (Harlan, J., concurring in judgment) (“The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action”), and finding “no special factors counseling hesitation in the absence of affirmative action by Congress,” id., at 395-396, we found an implied damages remedy available under the Fourth Amendment.
In the decade following Bivens, we recognized an implied damages remedy under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U. S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U. S. 14 (1980). In both Davis and Carlson, we applied the core holding of Bivens, recognizing in limited circumstances a claim for money damages against federal officers who abuse their constitutional authority. In Davis, we inferred a new right of action chiefly because the plaintiff lacked any other remedy for the alleged constitutional deprivation. 442 U. S., at 245. (“For Davis, as for Bivens, it is damages or nothing”). In Carlson, we inferred a right of action against individual prison officials where the plaintiff’s only alternative was a Federal Tort Claims Act (FTCA) claim against the United States. 446 U. S., at 18-23. We reasoned that the threat of suit against the United States was insufficient to deter the unconstitutional acts of individuals. Id., at 21 (“Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy”). We also found it “crystal clear” that Congress intended the FTCA and Bivens to serve as “parallel” and “complementary” sources of liability. 446 U. S., at 19-20.
Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants. In Bush v. Lucas, supra, we declined to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment. Although the plaintiff had no opportunity to fully remedy the constitutional violation, we held that administrative review mechanisms crafted by Congress provided meaningful redress and thereby foreclosed the need to fashion a new, judicially crafted cause of action. 462 U. S., at 378, n. 14, 386-388. We further recognized Congress’ institutional competence in crafting appropriate relief for aggrieved federal employees as a “special factor counseling hesitation in the creation of a new remedy.” Id., at 380. See also id., at 389 (noting that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees”). We have reached a similar result in the military context, Chappell v. Wallace, 462 U. S. 296, 304 (1983), even where the defendants were alleged to have been civilian personnel, United States v. Stanley, 483 U. S. 669, 681 (1987).
In Schweiker v. Chilicky, we declined to infer a damages action against individual Government employees alleged to have violated due process in their handling of Social Security applications. We observed that, our “decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” 487 U. S., at 421. In light of these decisions, we noted that “[t]he absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id., at 421-422. We therefore rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court. It did not matter, for example, that “[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed.” 487 U. S., at 425. See also Bush, supra, at 388 (noting that “existing remedies do not provide complete relief for the plaintiff”); Stanley, supra, at 683 (“[I]t is irrelevant to a special factors analysis whether the laws currently on the books afford Stanley ... an adequate federal remedy for his injuries” (internal quotation marks omitted)). So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability. Chilicky, supra, at 425-427.
Most recently, in FDIC v. Meyer, we unanimously declined an invitation to extend Bivens to permit suit against a federal agency, even though the agency — because Congress had waived sovereign immunity — was otherwise amenable to suit. 510 U. S., at 484-486. Our opinion emphasized that “the purpose of Bivens is to deter the officer,” not the agency. Id., at 485 (emphasis in original) (citing Carlson v. Green, supra, at 21). We reasoned that if given the choice, plaintiffs would sue a federal agency instead of an individual who could assert qualified immunity as an affirmative defense. To the extent aggrieved parties had less incentive to bring a damages claim against individuals, “the deterrent effects of the Bivens remedy would be lost.” 510 U. S., at 485. Accordingly, to allow a Bivens claim against federal agencies “would mean the evisceration of the Bivens remedy, rather than its extension.” 510 U. S., at 485. We noted further that “special factors” counseled hesitation in light of the “potentially enormous financial burden” that agency liability would entail. Id., at 486.
From this discussion, it is clear that the claim urged by respondent is fundamentally different from anything recognized in Bivens or subsequent cases.. In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here.
The purpose of Bivens is to deter individual federal officers from committing constitutional violations. Meyer made clear that the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity, 510 U. S., at 474, 485, are indemnified by the employing agency or entity, id., at 486, or are acting pursuant to an entity’s policy, id., at 473-474. Meyer also made clear that the threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. See 510 U. S., at 485 (“If we were to imply a damages action directly against federal agencies ... there would be no reason for aggrieved parties to bring damages actions against individual officers. [T]he deterrent effects of the Bivens remedy would be lost”). This case is, in every meaningful sense, the same. For if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury. See, e. g., TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 464 (1993) (plurality opinion) (recognizing that corporations fare much worse before juries than do individuals); id., at 490-492 (O’Con-nor, J., dissenting) (same) (citing authorities). On the logic of Meyer, inferring a constitutional tort remedy against a private entity like CSC is therefore foreclosed.
Respondent claims that even under Meyer’s deterrence rationale, implying a suit against private corporations acting under color of federal law is still necessary to advance the core deterrence purpose of Bivens. He argues that because corporations respond to market pressures and make decisions without regard to constitutional obligations, requiring payment for the constitutional harms they commit is the best way to discourage future harms. That may be so, but it has no relevance to Bivens, which is concerned solely with deterring the unconstitutional acts of individual officers. If deterring the conduct of a policymaking entity was the purpose of Bivens, then Meyer would have implied a damages remedy against the Federal Deposit Insurance Corporation; it was after all an agency policy that led to Meyer’s constitutional deprivation. Meyer, supra, at 473-474. But Bivens from its inception has been based not on that premise, but on the deterrence of individual officers who commit unconstitutional acts.
There is no reason for us to consider extending Bivens beyond this core premise here. To begin with, no federal 'prisoners enjoy respondent’s contemplated remedy. If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer’s employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual; a remedy Meyer found sufficient, and which respondent did not timely pursue. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress, not us, to decide.
Nor are we confronted with a situation in which claimants in respondent’s shoes lack effective remedies. Cf. Bivens, 403 U. S., at 410 (Harlan, J., concurring in judgment) (“For people in Bivens’ shoes, it is damages or nothing”); Davis, 442 U. S., at 245 (“For Davis, as for Bivens, it is damages or nothing” (internal quotaton marks omitted)). It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. Tr. of Oral Arg. 41-42,43. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities. See Brief in Opposition 13. This case demonstrates as much, since respondent’s complaint in the District Court arguably alleged no more than a quintessential claim of negligence. It maintained that named and unnamed defendants were “negligent in failing to obtain requisite medication . . . and were further negligent by refusing . . . use of the elevator.” App. 12 (emphasis added). It further maintained that respondent suffered injuries “[a]s a result of the negligence of the Defendants.” Ibid, (emphasis added). The District Court, however, construed the complaint as raising a Bivens claim, presumably under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Respondent accepted this theory of liability, and he has never sought relief on any other ground. This is somewhat ironic, because the heightened “deliberate indifference” standard of Eighth Amendment liability, Estelle v. Gamble, 429 U. S. 97, 104 (1976), would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence, see, e. g., Farmer v. Brennan, 511 U. S. 825, 835 (1994) (“[Deliberate indifference describes a state of mind more blameworthy than negligence”).
This also makes respondent’s situation altogether different from Bivens, in which we found alternative state tort remedies to be “inconsistent or even hostile” to a remedy inferred from the Fourth Amendment. 403 U. S., at 393-394. When a federal officer appears at the door and requests entry, one cannot always be expected to resist. See id., at 394 (“[A] claim of authority to enter is likely to unlock the door”). Yet lack of resistance alone might foreclose a cause of action in trespass or privacy. Ibid. Therefore, we reasoned in Bivens that other than an implied constitutional tort remedy, “there remained]... but the alternative of resistance, which may amount to a crime.” Id., at 395 (internal quotation marks and citation omitted). Such logic does not apply to respondent, whose claim of negligence or deliberate indifference requires no resistance to official action, and whose lack of alternative tort remedies was due solely to strategic choice.
Inmates in respondent’s position also have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program (ARP). See 28 CFR §542.10 (2001) (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). This program provides yet another means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring. And unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunc-tive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.
In sum, respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.
The judgment of the Court of Appeals is reversed.
It is so ordered.
CSC is hardly unique in this regard. The BOP has since 1981 relied exclusively on contracts with private institutions and state and local governments for the operation of halfway house facilities to help federal prisoners reintegrate into society. The BOP contracts not only with for-profit entities like CSC, but also with charitable organizations like Volunteers for America (which operates facilities in Indiana, Louisiana, Maryland, Minnesota, New York, and Texas), the Salvation Army (Arkansas, Florida, Illinois, North Carolina, Tennessee, and Texas), Progress House Association (Oregon), Triangle Center (Illinois), and Catholic Social Services (Pennsylvania).
The Courts of Appeals have divided on whether FDIC v. Meyer, 510 U. S. 471 (1994), foredoses the extension of Bivens to private entities. Compare Hammons v. Norfolk Southern Corp., 156 F. 3d 701, 705 (CA6 1998) (“Nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action”), with Kauffman v. Anglo-American School of Sofia, 28 F. 3d 1223, 1227 (CADC 1994) (“[Under] Meyer’s conclusion that public federal agendes are not subject to Bivens liability, it follows that equivalent private entities should not be liable either”). We hold today that it does.
Since our decision in Borak, we have retreated from our previous willingness to imply a cause of action where Congress has not provided one. See, e. g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 188 (1994); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 15-16 (1979); Cannon v. University of Chicago, 441 U. S. 677, 688 (1979); id., at 717-718 (Rehnquist, X, concurring). Just last Term it was noted that we “abandoned” the view of Borak decades ago, and have repeatedly declined to “revert” to “the understanding of private causes of action that held sway 40 years ago.” Alexander v. Sandoval, 532 U. S. 275, 287 (2001).
Justice Stevens’ claim that this case does not implicate an “extension” of Bivens, post, at 76-77, 82 (dissenting opinion), might come as some surprise to the Court of Appeals which twice characterized its own holding as “extending Bivens liability to reach private corporations.” 229 F. 3d 374, 381 (CA2 2000). See also ibid. (“Bivens liability should extend to private corporations”).
Justice Stevens claims that our holding in favor of CSC portends “tragic consequence[s],” post, at 81, and “jeopardize^] the constitutional rights of... tens of thousands of inmates,” ibid. He refers to examples of cases suggesting that private correctional providers routinely abuse and take advantage of inmates under their control. Post, at 81, n. 9 (citing Brief for Legal Aid Society of City of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties Union as Amicus Curiae 14-16, and n. 6 (citing and discussing “abundant” examples of such abuse). In all but one of these examples, however, the private facility in question housed state prisoners — prisoners who already enjoy a right of action against private correctional providers under 42 U. S. C. § 1983. If it is true that the imperatives for deterring the unconstitutional conduct of private correctional providers are so strong as to demand that we imply a new right of action directly from the Constitution, then abuses of authority should be less prevalent in state facilities, where Congress already provides for such liability. That the trend appears to be just the opposite is not surprising given the BOP’s oversight and monitoring of its private contract facilities, see Brief for United States as Amicus Curiae 4-5, 24-26, which Justice Stevens does not mention.
Where the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U. S. 500 (1988). The record here would provide no basis for such a defense.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_geniss
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
In the Matter of A WITNESS BEFORE the SPECIAL OCTOBER 1981 GRAND JURY. Appeal of Harold MANNER and the Metabolic Research Foundation.
No. 83-2986.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 1, 1983.
Decided Dec. 5, 1983.
Dennis M. Gronek, Dilling, Dilling & Gro-nek, Chicago, Ill., for appellant.
Cynthia Giacchetti, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for appel-lee.
Before BAUER, CUDAHY and POS-NER, Circuit Judges.
POSNER, Circuit Judge.
This is an appeal by Harold Manner and the Metabolic Research Foundation (of which Manner is president) from an order of the district judge made under authority of 28 U.S.C. § 1826 holding the appellants in civil contempt for refusing to obey a grand jury subpoena commanding them to produce “any and all documents concerning or related to persons seeking referral or treatment from” either of the appellants, and directing that Manner be imprisoned until he obeys the subpoena. (Manner has been admitted to bail pending disposition of this appeal; no sanction was imposed on Metabolic Research Foundation for its contempt.) The grand jury is investigating alleged fraudulent sale of products such as laetrile in violation of federal law, and the appellants are targets of the investigation.
An initial question that we are obligated to consider although it has. not been raised is whether the district judge’s contempt order is appealable. Although much criticized, the rule of Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 607-08, 27 S.Ct. 313, 315-16, 51 L.Ed. 641 (1907), that an order of civil contempt against a party to the action in which the order is entered is not appealable, is too well established to be changed by us. See 9 Moore’s Federal Practice ¶ 110.13[4] at p. 167 (2d ed. 1983); 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3917 at pp. 623-24 (1976). And there is no question that the contempt judgment in this case is civil rather than criminal. Manner was not punished for misconduct, for he can avert the sanction by complying with the subpoena. He carries the keys to the prison in his own pocket — the classic sign of civil contempt. And while the appellants are not parties to the grand jury investigation, because there are no parties to .a grand jury investigation, the appeal rights of persons subpoenaed by a grand jury are as a rule no greater than those of subpoenaed parties. Like a party whose motion to quash a subpoena is denied, a person whose motion to quash a grand jury subpoena is denied may as a rule not appeal from that denial, see, e.g., In re Special April 1977 Grand Jury, 587 F.2d 889, 891 (7th Cir.1978), and it is not obvious therefore why, in light of Doyle, he should be allowed to appeal from a judgment of civil contempt for failing to obey the subpoena, when a party adjudged in civil contempt for disobeying a subpoena would not be.
Fortunately, the logic of Doyle has not been pressed quite so far. In Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940), the Supreme Court, in holding that a witness before a grand jury could not appeal the denial of his motion to quash, explained that “Whatever right he may have [to oppose the subpoena] requires no further protection . . . than that afforded by the district court until the witness chooses to disobey and is committed for contempt. At that point the witness’ situation becomes so severed from the main proceeding as to permit an appeal. To be sure, this too may involve an interruption of the trial or of the investigation. But not to allow this interruption would forever preclude review of the witness’ claim, for his alternatives are to abandon the claim or languish in jail.” (Citations omitted.) Although the words “civil contempt” do not appear in this passage, the last clause makes clear that the contempt referred to is indeed civil rather than criminal.
The only thing that makes the passage less than conclusive authority for the ap-pealability of the contempt judgment in the present case is that, in the two cases the Court cited for the proposition that a judgment of contempt for disobeying a grand jury subpoena is appealable, the appellant had sought a writ of habeas corpus under 28 U.S.C. § 2241(c)(1) (“in custody under ... the authority of the United States”), and was appealing from the denial of the writ as well as from the judgment of civil contempt. See Wilson v. United States, 221 U.S. 361, 369-70, 31 S.Ct. 538, 539-40, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 46, 26 S.Ct. 370, 372, 50 L.Ed. 652 (1906). And when Congress, in 28 U.S.C. § 1826(b), established certain procedural ground rules for appeal by a recalcitrant witness (including a witness in a grand jury proceeding) from “the order for his confinement,” its intent was “to codify present civil contempt practice,” H.R.Rep. No. 1549, 91st Cong., 2d Sess. 33 (1970), U.S.Code Cong. & Admin. News 1970, 4007, as illustrated by a case in this circuit, In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.1965), which like Wilson and Hale had involved an appeal from a denial of a writ of habeas corpus as well as from the civil contempt order. See 352 F.2d at 922; H.R.Rep. No. 1549, supra, at 46.
From these materials an argument could be constructed that the rule of Doyle v. United States applies to grand jury witnesses and thus bars appeals by them from orders of civil contempt unless they seek and are denied habeas corpus, such denial being an unproblematic final decision for purposes of 28 U.S.C. § 1291. But it would be a feeble argument. The language and legislative history of section 1826(b)— all but the citation to Giancana — suggest that Congress assumed that civil contempt orders were appealable by recalcitrant grand jury witnesses whether or not they bothered to ask for habeas corpus; and since the final-judgment rule of 28 U.S.C. § 1291 is not constitutionally compelled, any assumption on which Congress built section 1826(b) supersedes any contrary implications of Doyle. More important, it would be the quintessence of pointless formality to require a witness adjudged in civil contempt to file a habeas corpus petition, certain to be denied, as a condition precedent to appealing to us, and a formality with which Congress could not have wanted the appellate process to be encumbered; Congress ordained maximum expedition of the process, by requiring that the appeal be decided within 30 days after the notice of appeal is filed.
We conclude that we have jurisdiction of this appeal, and come to the merits, which require us to decide whether the district judge in ordering production struck a reasonable balance between the grand jury’s need for the documents sought and the burden on the witness of producing them. See, e.g., In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7 (2d Cir.1982). The appellants argue that the grand jury has no real need for the documents. But the grand jury is investigating illegal selling, and it is hard to see how it can do this without obtaining the sales records of the Metabolic Research Foundation. The appellants suggest that instead the grand jury subpoena the physicians to whom the Foundation refers inquiries about its system of treatment, and ask them who their customers are. But as these physicians may be targets of the investigation too, this is not a feasible suggestion. Moreover, although the appellants deny that they sell anything, the grand jury is not required to take their denial at face 'value; but without access to the Foundation’s records of requests for treatment and referral the grand jury will not be able to identify persons who may be customers of the Foundation and of Manner, and thus will be unable to evaluate the appellants’ denial.
The appellants do not claim that production of the documents sought would be burdensome in the usual sense of costly. Rather, by calling the persons who pay for the referral and other services rendered by the Foundation “members,” and by describing the treatments that the Foundation promotes — which involve the ingestion of laetrile and vitamins to treat cancer and other diseases — as medically “unorthodox,” the Foundation seeks to wrap itself in the mantle of cases such as NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), that hold that membership organizations engaged in the advocacy of ideas and opinions have a First Amendment right which may be infringed by an investigation that seeks discovery of their membership list. But the affidavits that the government submitted in the district court in connection with the. appellants’ motion to quash the grand jury subpoena present a very different picture. These affidavits, given by people who have sought treatment from the Foundation and from Manner himself for cancer and other serious illnesses, suggest that the appellants are participants with a number of doctors in a nationwide scheme for the sale of laetrile and vitamins for treatment of disease; and while the affidavits may give a false or incomplete picture of the appellants’ operations, they support the district judge’s characterization of those operations as constituting a commercial scheme in which the “members” of the Foundation are really customers or patients of the appellants. No one would argue that the First Amendment prevents a grand jury from investigating alleged Medicare or Medicaid fraud by subpoenaing a doctor’s patient records, and that is the essential nature of the investigation here, so far as can be gleaned from the record before us.
As an aside, we note that while we have expedited the appeal in order to be able to decide it within 30 days of the filing of the notice of appeal, as required by 28 U.S.C. § 1826(b), we agree with the other circuits that have considered the question that where, as in this case, the appellants are free on bond (Manner) or not a natural person (the Foundation), the 30-day limitation is not jurisdictional, its basic objective being to minimize the time during which a recalcitrant witness is languishing in jail awaiting the decision of his appeal. See, e.g., In re Rosahn, 671 F.2d 690, 693 (2d Cir.1982), and cases cited there. (One of the cases cited is our own In re January 1976 Grand Jury, 534 F.2d 719, 730 n. 11 (7th Cir.1976), but it is unclear whether a majority of the panel joined this footnote. See id. at 730-31 (concurring opinion).)
The judgment of contempt is AFFIRMED.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth OHLER, Defendant-Appellant.
No. 92-30316.
United States Court of Appeals, Ninth Circuit.
Submitted May 6, 1993 .
Decided June 28, 1993.
Steven R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for defendant-appellant.
Fred N. Weinhouse, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.
Before: PREGERSON and KLEINFELD, Circuit Judges, and INGRAM, District Judge.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4.
The Honorable William A. Ingram, Senior United States District Judge for the Northern District of California, sitting by designation.
KLEINFELD, Circuit Judge:
This case involves a question of first impression regarding the transfer of probation jurisdiction. We conclude that no liberty interest was at stake in the transfer of appellant’s probation jurisdiction from the district where the original crime was committed to the district where the appellant resided and the probation violations were committed. Therefore, no notice or hearing was required before the transfer was made.
I. FACTS
In 1988, Ohler pled guilty in the District of Arizona to theft of an interstate shipment in violation of 18 U.S.C. § 659, a crime punishable by up to one year of imprisonment. He was sentenced to three years’ probation. Ohler had an Oregon address. The conditions of his Arizona probation included self-surrender in Oregon and confinement in an Oregon community treatment center. His probation was supervised in Oregon, but jurisdiction over his probation remained in the District of Arizona.
In 1991, while still on probation, Ohler was arrested in Oregon for a separate offense. The United States District Court in Arizona ordered transfer of Ohler’s probation jurisdiction to the United States District Court in the District of Oregon, which accepted the transfer. Because Oregon was already supervising Ohler’s probation, the practical significance of the transfer was to put any revocation proceeding in Oregon rather than Arizona. Ohler did not receive notice or a hearing regarding the transfer.
In April 1992, Ohler was convicted in Oregon state court of delivery of marijuana and two counts of theft. Based on these convictions, proceedings were instituted to revoke Ohler’s probation. Following a hearing, the United States District Court for the District of Oregon revoked Ohler’s probation, and resentenced Ohler to one year of imprisonment. He appeals, arguing: (1) the transfer of his probation jurisdiction without notice to him, an opportunity to be heard, and appointment of counsel violated due process; and (2) the district court erred in resentencing him to one year of imprisonment.
II. TRANSFER OF JURISDICTION
Ohler unsuccessfully moved to dismiss his probation revocation proceeding on the ground that the transfer from Arizona to Oregon violated his procedural due process rights. He alleges the due process violation because he did not receive notice, a hearing, and appointment of counsel. Whether the transfer of Ohler’s probation jurisdiction violated Ohler’s due process rights presents a purely legal question, so we review the denial of the motion to dismiss de novo. See United States v. Anderson, 942 F.2d 606, 609 (9th Cir.1991). Whether he was entitled to any or all of these due process rights depends on whether he had a liberty interest in keeping his probation in Arizona. See Toussairt v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The question of whether a probationer possesses a liberty interest in the site of his probation jurisdiction appears to be an issue of first impression.
Ohler has not been able to cite a statute or rule conferring any right upon him with regard to the location of his probation jurisdiction. Rather, he cites Federal Rules of Criminal Procedure 32.1(a)(2) and 32.1(b) to support his contention that due process required he receive notice, a hearing, and appointment of counsel before the transfer of his probation jurisdiction. But Rule 32.-1(a)(2) relates to the revocation of probation, not the transfer of probation jurisdiction. Ohler does not claim a denial of due process in his revocation proceeding. Similarly, Rule 32.1(b) applies only when “terms or conditions of probation or supervised release” are modified. The location of probation jurisdiction is not such a term or condition.
Title 18 U.S.C. § 3605 governs transfers of probation jurisdiction. This statute provides:
A court, after imposing a sentence, may transfer jurisdiction over a probationer or person on supervised release to the district court for any other district to which the person is required to proceed as a condition of his probation or release, or is permitted to proceed, with the concurrence of such court.
The statute gives a court discretion to order a transfer, but conditions transfer upon the acceptance of jurisdiction by the court to which the transfer is made, and upon selection of a district to which the probationer was required or permitted to proceed. Ohler does not assert any violation of the statutory requirement that Oregon be a district to which he was required or permitted to proceed.
Ohler contends that a probationer has an interest in having his revocation proceeding take place in the district in which he was originally sentenced because officials in that district will be most familiar with the probationer’s case. He argues that the familiarity of the officials with the particular facts of a probationer’s case “may have a profound impact on the outcome of a subsequent revocation proceeding where the probationer’s liberty interest is at stake.” This argument goes not to whether Ohler possesses a liberty interest in the site of his probation jurisdiction, but to whether the district court to which the transfer is made exercises its jurisdiction after sufficiently familiarizing itself with the case.
The issue is somewhat analogous to a sentencing by a judge who did not preside over trial of the case. In the sentencing context, the defendant does not get notice and a hearing before the case is reassigned to another judge for sentencing. Instead, the record is examined to determine whether the sentencing judge was sufficiently familiar with the case. Ohler has found no authority recognizing a liberty interest in retaining jurisdiction in those judicial officers who have the greatest familiarity with his case. See United States v. Jones, 982 F.2d 380 (9th Cir.1993). Ohler has not argued, nor does the record suggest, that Judge Marsh, who presided at his probation revocation in the District of Oregon, lacked sufficient familiarity with his case. Hence, we find that the transfer of jurisdiction did not deprive Ohler of any right or interest created by the statute.
III. ONE YEAR AS ONE-THIRD OF THE ORIGINAL SENTENCE
The statute required that Ohler be sentenced to “not less than one-third of the original sentence.” 18 U.S.C. § 3565(a). 'Ohler argues that the fraction should be applied to the one-year maximum imprisonment available to the senténcing judge at the time of his sentencing for the 1988 offense, not to the three-year probation period to which he was actually sentenced. In United States v. Corpuz, 953 F.2d 526, 527 (9th Cir.1992), we held that probation is a sentence, so the “one-third” is measured against the period of probation actually imposed, even if the maximum period of imprisonment which could have been imposed for the earlier offense was shorter than the probation. Corpuz controls. Although Ohler makes a serious argument that Corpuz was incorrectly decided, only an en banc court can overrule existing circuit precedent. Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir.1993).
AFFIRMED.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_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.
GRACIE v. UNITED STATES.
(Circuit Court of Appeals, First Circuit.
November 5, 1926.)
No. 2044.
1. Intoxicating liquors <§=>247 — Discovery of mash by prohibition agent, entering yard and peering through aperture in wall of building not residence, violated no constitutional rights of occupant.
That prohibition agent in obtaining evidence for affidavit for search warrant went on defendant’s premises and looked through window, after detecting odor of mash, helé not violation of defendant’s constitutional rights.
2. Intoxicating liquors <§=>236(19).
Evidence held to sustain conviction for unlawful possession of property for manufacture of intoxicating liquors for use in violating National Prohibition Act, tit. 2 (Comp. St. § 10138% et seq.), and for unlawful manufacture thereof.
3. Searches and seizures <§=>3.
Commissioner must exercise own judgment as to whether facts in affidavit constitute probable cause for search warrant, and determination is conclusive, unless judgment is arbitrarily exercised.
4. Criminal law <§=>984.
Count alleging unlawful possession of property for manufacture of intoxicating liquor is separate offense from count alleging manufacture, authorizing judgment on each.
5. Criminal law <§=>30.
When evidence is sufficient to sustain conviction for possession of property for manufacture, there is no merger of count charging that offense with count charging manufacture.
In Error to the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.
George Gracie was convicted of unlawful possession of property for manufacture of intoxicating liquor, and of unlawful manufacture thereof, and he brings error.
Affirmed.
Daniel T. Hagan, of Providence, R. I. (John J. Rosenfeld and Charles A. Kieman, both of Providence, R. L, on the brief), for plaintiff in error.
Joseph E. Fitzpatrick, Asst. U. S. Atty., of Providence, R. I. (John S. Murdock, U. S. Atty., of Providence, R. I., on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge.
Upon a criminal information by the United States attorney for the district of Rhode Island, the plaintiff in error, hereinafter called the defendant, was convicted, under the first count, of unlawful possession of property designed for the manufacture of intoxicating liquors intended for use in violating title 2 of the National Prohibition Act (Comp. St. § 10138% et seq.), under a second count, of the unlawful manufacture of intoxicating liquors, and, under a third count, of the unlawful possession of intoxicating liquors. He was sentenced by the court to pay a fine of $100 under the first count, and to a term of imprisonment of three months under the second count. The court ruled that the third-count of the information was merged in count 2, and an order of nolle prosequi was entered as to the third count.
The following facts are disclosed by the record:
James J. Walsh, a federal prohibition agent, testified that on the 16th day of February, 1926, he made a personal visit to the premises occupied by the defendant in the city of Cranston, in the state of Rhode Island, because he had been in the vicinity of these premises on several occasions, and had detected the odor of mash while in the neighborhood; that he was not positive where the odor was coming from, and in order to ascertain he went upon the premises of defendant, through an open gate, and passed from the gate a distance of about 150 feet to a building occupied by the defendant; that he peeked through the windows of this building; that, by putting his face to a crack in the door, he detected the odor of mash, and saw a vat in the building steaming and two or three barrels of empty beer bottles outside the building, and that he heard a noise in the building like that made by a bottle capping machine; that he thereupon applied for a search warrant to search the building, which was issued upon an affidavit filed by him stating the above facts, and upon this warrant 18% full barrels of beer, 3 half barrels, and property designed for use in the manufacture of intoxicating liquor were seized.
At the time of the seizure the defendant told the prohibition agent that he was experimenting in the manufacture of beer and admitted that he was the occupant of the premises.
At the conclusion of the government’s testimony a niotion was made for a directed verdict by the defendant, on the ground that the search and seizure were unlawful, and there was no evidence before the court upon which the defendant could be found guilty. This motion was renewed by him at the conclusion of all the evidence, and he asked that the search warrant be quashed, and all the evidence procured by the seizure under it ruled out. These motions were overruled, and the defendant excepted.
It was not contended that the search or seizure was made in an unlawful manner, but that the affidavit upon which the search warrant was based was obtained by an unlawful entry upon the premises of the defendant.
The affidavit is as follows:
“I, James J. Walsh, federal prohibition agent, and the above-named complainant, on oath depose and say that on the 16th day of February, 1926, I made a personal visit to the above described premises in the city of Cranston, R. I., mentioned in the foregoing application for search warrant, when I saw shades down on all windows in said one-story building, saw steam coming out of chimney of building, detected the odor of mash coming through the crack of the door, saw a vat in the building steaming, saw two or three barrels of empty beer bottles outside the building, and heard a noise in the building like the noise of the operation of a bottle capping machine.”
The commissioner before whom the affidavit was made found probable eause for the issue of a search warrant. Before trial the defendant filed a motion to quash the search warrant on the ground that the facts set forth in the affidavit were unlawfully obtained. This motion was called for hearing on the next day after it was filed, and, no person answering for the moving party, the case was called for trial before a jury. It would appear from the record, therefore, that the defendant did not press his motion before the court until the trial, and, as the assumption is that the court proceeded regularly, that opportunity and notice were given to the defendant to be heard. The contention that the evidence upon which the officer’s affidavit was based was unlawfully obtained, because in violation of the defendant’s constitutional rights, has no merit.
All that the prohibition agent did was to pass through an open gate into the yard about a building from which he thought he detected, by his sense of smell, the odor of fermenting mash. He did not attempt to enter the building, but, as the shades to the windows were drawn, he looked through a crack in the door and saw what was going on within. He had reasonable grounds to believe that there was violation of law in the building, and his entry through the gate and upon the premises of the defendant, without a. warrant for the purpose of ascertaining whether the odor which he had detected came from this building or not, was justified. He made no attempt to enter the building, although, as it was not a private dwelling, he might have done so, and arrested the defendant for the commission of a crime in his presence; but he procured a search warrant authorizing him to do so.
It was the duty of the commissioner to consider the affidavit of the officer and determine whether, in his opinion, probable cause existed for issuing a search warrant. This he did, and the seizure was made under it.
The warrant is not attacked for insufficiency in any respect, nor is it alleged that in its service any unlawful acts were committed. The evidence secured was ample to justify the conviction of the defendant. Upon no tenable theory should he be allowed to escape the consequences of his guilt as a compensation for an alleged technical trespass committed by the applicant for the warrant in obtaining the information upon which his affidavit to procure it was based.
Upon the determination by the commissioner of whether probable cause existed for the issuance of a warrant, he is to exercise his own judgment whether the facts alleged in the affidavit constitute probable cause, and, unless this judgment is arbitrarily exercised, his determination that probable cause exists is conclusive. Ex parte Burford, 3 Cranch, 453, 2 L. Ed. 495.
We think the evidence secured by the search and seizure under the warrant was competent. While the jury returned a verdict of guilty under the count alleging unlawful possession of intoxicating liquor, as well as under the count alleging unlawful manuf acture, a nolle prosequi was entered as to the former and judgment was entered only upon the count alleging unlawful possession of property designed for the manufacture of intoxicating liquor and that alleging its manufacture. These are .separate offenses, and a judgment of guilty'was properly entered under each count and a penalty imposed.
The property seized consisted in part of bales of hops, barrels of malt, coloring matter, and other material, which, found in connection with the apparatus seized, was sufficient evidence upon which to sustain the verdict of the jury that they were designed for the manufacture of intoxicating liquor, which would constitute no part of that for the manufacture of which there was a verdict of guilty under the second count. There was therefore no merger of the count charging unlawful possession of property designed for the manufacture with that charging manufacture, and the request to so rule was properly refused.
The judgment of the District Court is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp2_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is due process - denial of fair hearing or notice - government employees (includes claims of terminated government workers). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Douglas EAMES, Appellant, v. The CITY OF LOGAN, UTAH, a Municipal Corporation; Newell G. Daines, in his Individual and Official Capacity as Mayor of the City of Logan, Utah; Does 1 through 25, Inclusive, Appellees.
No. 83-1544.
United States Court of Appeals, Tenth Circuit.
May 13, 1985.
Elliott Levine, Anderson & Holland, Salt Lake City, Utah, for appellant.
W. Scott Barrett, Barrett & Brady, Logan, Utah, for appellees.
Before SEYMOUR and DOYLE, Circuit Judges, and CARRIGAN, District Judge .
Honorable Jim R. Carrigan, United States District Judge, District of Colorado, sitting by designation.
WILLIAM E. DOYLE, Circuit Judge.
This matter seeks a review of a judgment of the United States District Court for the District of Utah. That court ordered a dismissal of plaintiff’s complaint for failure to state a claim upon which relief could be granted.
The plaintiff was Director of Parks for the City of Logan, Utah. As the head of such a city department, he was classified as an employee at will and was subject to dismissal without cause. On May 11,1982, he was suspended from his job by the Mayor of Logan. No reasons were given for the suspension, pending the outcome of an investigation. On June 7,1982, the City concluded its investigation and terminated plaintiff. Again, no reasons were given for the City’s actions. A great deal of publicity surrounded plaintiff’s suspension and termination, including rumors of criminal misconduct.
Plaintiff then brought a § 1983 suit against defendants City of Logan and the Mayor, claiming that they had violated his due process and equal protection rights by “willfully, knowingly and purposely [depriving him] of his right to a hearing prior to the termination of his employment * * *.” Plaintiff also claimed the defendants’ actions amounted to retaliation for exercising his right of free speech.
Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Fed.R. Civ.P. 12(b)(6). Two hearings were held on the motion. On October 14, 1982, the district court dismissed the complaint without prejudice, reasoning that because plaintiff had not requested a hearing, no deprivation had yet occurred. At this hearing, defendants indicated that they had always been willing to grant plaintiff a hearing if so requested; moreover, defendants stated they would still provide a hearing upon request. Plaintiff then filed a motion for reconsideration of the court’s order, Fed.R. Civ.P. 59(e), arguing that he was being forced to exhaust administrative remedies. At the Rule 59 hearing on December 7, 1982, the district court again determined that plaintiff had failed to state a claim. The court also noted in addition that plaintiff’s First Amendment allegation was conclusory and required expansion in order to set forth a claim. Plaintiff was given leave to amend his complaint. He took no action, and the court entered an order on March 31, 1983, dismissing the complaint without prejudice.
The matter presented has to do with the failure of plaintiff to state an actionable 42 U.S.C. § 1983 claim. The plaintiff states the issue differently. He argues that the district court erred in requiring him to exhaust administrative remedies as a condition precedent to bringing his § 1983 action.
The district court did not require plaintiff to exhaust administrative remedies against the mandate of Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Rather, the district court found that plaintiff’s failure to ask for a “name-clearing” hearing went to the issue of whether Logan City deprived him of his constitutional rights.
In reviewing the district court’s dismissal for failure to state a claim for relief, we read the complaint in the light most favorable to the plaintiff. Ronsick v. Phariss, 286 F.2d 316 (10th Cir.1960).
The question which is presented for determination is whether plaintiff had either a property or liberty interest in employment which would support a § 1983 claim alleging a violation of constitutional rights stemming from his termination.
It is undisputed that plaintiff has no property interest in his job which warrants due process protection under Utah law. Section 10-3-1105 of the Utah Code. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). When as here there is a liberty interest rather than a property interest, the due process remedy is “an opportunity to refute the charge.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). The Supreme Court’s decision in Board of Regents v. Roth, id., and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), established the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. This right arises when there is a danger of foreclosure of the community, due to derogatory reasons for being fired. Clark v. Mann, 562 F.2d 1104 (8th Cir.1977).
A liberal reading of plaintiff’s complaint convinces us that plaintiff’s allegation of a liberty interest violation was adequate to withstand defendants’ motion for dismissal. Plaintiff sufficiently alleged that defendants’ words and actions stigmatized him, McGhee v. Draper, 639 F.2d 639, 642-43 (10th Cir.1981); that the stigmatization affected a tangible employment interest, id. at 643; and that the defendants’ remarks were untrue, Williams v. West Jordan City, 714 F.2d 1017, 1021 (10th Cir.1983), citing Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). Plaintiff’s failure to earlier request a name-clearing hearing does not defeat his claim. He may still be entitled to a hearing if he can prove at trial that his liberty interest was indeed violated. McGhee v. Draper, 639 F.2d at 643.
The district court noted that the plaintiff’s First Amendment claim might have had merit, but that it was too conclusory to allow a judgment on its merit. The court gave plaintiff ample opportunity to remedy the inadequacies of the complaint, which plaintiff failed to do. Under these circumstances, we are unable to say that the district court was in error in dismissing the First Amendment claim made by plaintiff.
We remand this case for trial only on the alleged violation of plaintiff’s liberty interest.
. Plaintiffs complaint reads in pertinent part:
8. Each of the individual Defendants, here, separately and in concert engaged in the illegal conduct herein mentioned to the injury of the Plaintiff and deprived Plaintiff of the rights, privileges and immunities secured to Plaintiff by the Fourteenth Amendment to the United States Constitution. Speciffically [sic], each of the individual Defendants, without authorization of law, acted willfully, knowingly and purposefully to deprive Plaintiff of his right to a hearing prior to the termination of his employment and pursuant damage to his retirement, pension, and/or social security benefits.
9. Pursuant to the willful acts alleged in paragraph 8, defendants determined to cause Plaintiff damage to his character and reputation in his community and field of endeavor by creating an aura of suspicion as to possible misconduct and criminal charges relating to the performance of Plaintiff's duties as the Director of Parks for the City of Logan, Utah. This was accomplished through the words and actions of the Defendants during the period of approximately May 11, 1982 to the present.
10. Plaintiff was never made aware of the specific charges for which he was being investigated; was never told the identity of the witnesses supplying the investigative material and basis for the charges; was never supplied with the results of the investigation pursuant to which his dismissal was based upon; was never given a hearing or opportunity to refute the charges, and present his own witnesses and evidence all prior to his employment and accompanying benefits being terminated and infringed.
11. These actions were taken in order to deprive the Plaintiff of a fair hearing in violation of his rights of due process and equal protection as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.
12. Plaintiff avers that had he been given a fair and impartial hearing in accordance with basic and elementary due process, he could demonstrate with substantial and credible evidence that the action of suspension, on May 11, 1982, and termination, on June 7, 1982, by Defendants, was arbitrary, capricious and perjorative [sic] without any basis in truth or fact.
. But see McGhee v. Draper, 639 F.2d at 643 (stating that the truth or falsity of an employer’s statements concerning the termination of an employee is not relevant in determining the existence of a liberty interest violation).
Question: What is the second general issue in the case, other than due process - denial of fair hearing or notice - government employees (includes claims of terminated government workers)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
In the Matter of Edwin R. POWELL and Joshua E. Turner, Individually, and the Partnership Known as Powell & Turner, Composed of Edwin R. Powell and Joshua E. Turner, Alleged Bankrupts. Edwin R. Powell and Joshua E. Turner, Individually, and the Partnership Known as Powell & Turner, Composed of Edwin R. Powell and Joshua E. Turner, Appellants.
No. 11372.
United States Court of Appeals Third Circuit.
Argued Nov. 18, 1954.
Decided Nov. 26, 1954.
Samuel R. Russell, Georgetown, Del., (Tunnell & Tunnell, Georgetown, Del., on the brief), for appellants.
William Prickett, Wilmington, Del. (John E. Mulder, Wexler, Mulder & Weisman, Philadelphia, Pa., on the brief), for appellees.
Before GOODRICH, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
This case presents the question whether on á given date Edwin R. Powell and Joshua E. Turner were farmers and thus immune to an involuntary adjudication of bankruptcy under Section 4 of the Bankruptcy Act, 11 U.S.C.A. § 22. The referee found that they were not. This finding was approved by the district judge who set out his reasons in a thoroughly considered opinion. In re Powell, D.C.D.Del.1954, 121 F.Supp. 33. There is, in our judgment, ample evidence to support his conclusion.
The judgment of the district court will be affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_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.
SHUTTLESWORTH v. CITY OF BIRMINGHAM.
No. 168.
Argued February 27, 1964.
Decided March 9, 1964.
Jack Greenberg argued the cause for petitioner. With him on the brief were James M. Nabrit III, Peter A. Hall and Orzell Billingsley, Jr.
J. M. Breckenridge argued the cause and filed a brief for respondent.
Per Curiam.
The judgment of the Court of Appeals of Alabama is reversed. Cole v. Arkansas, 333 U. S. 196; Williams v. Georgia, 349 U. S. 375.
Mr. Justice White took no part in the consideration or decision of this case.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
JSG TRADING CORP., Plaintiff-Appellee, v. TRAY-WRAP, INC., Defendant-Appellant.
No. 982, Docket 89-9032.
United States Court of Appeals, Second Circuit.
Argued March 14, 1990.
Decided Sept. 26, 1990.
Linda Strumpf, Bayside, N.Y., for defendant-appellant.
Mark C. Mandell, New York City, for plaintiff-appellee.
Before KEARSE, CARDAMONE, and MAHONEY Circuit Judges.
CARDAMONE, Circuit Judge:
Underlying this litigation is an alleged delay in a shipment of $24,000 worth of tomatoes. Delay is serious in the tomato business because what is today a marketable commodity becomes tomorrow spoiled and unmarketable garbage. In common parlance tomatoes are vegetables, as the Supreme Court observed long ago, see Nix v. Hedden, 149 U.S. 304, 307, 13 S.Ct. 881, 882, 37 L.Ed. 745 (1893), although botanically speaking they are actually a fruit. 26 Encyclopedia Americana 832 (Int’I. ed. 1981). Regardless of classification, people have been enjoying tomatoes for centuries, even Mr. Pickwick, as Dickens relates, ate his chops in “tomata” sauce.
At issue in this appeal is whether legislation enacted to mitigate sellers’ damages in transactions involving perishable commodities authorizes preliminary injunctive relief against a buyer that refused to pay for the tomatoes it ordered because of a contract dispute. It was Congress’ aim to protect sellers by requiring all proceeds from unpaid perishable commodities to be held in trust, but a seller is not automatically entitled to a preliminary injunction that would require a buyer to segregate and hold trust assets separate from other assets of the buyer’s business. Because the district court granted an injunction without applying the traditional standards for its issuance, we reverse.
BACKGROUND
Appellant, Tray-Wrap, Inc. (Tray-Wrap), a distributor of fruits and vegetables, licensed under the Perishable Agricultural Commodities Act by the Secretary of Agriculture, 7 U.S.C. § 499a et seq. (1988) (Act or Perishable Commodities Act), conducts a wholesale produce business in the Bronx, New York. Appellee, JSG Trading Corp. (JSG), a New Jersey corporation, is also a licensed wholesale dealer of produce. Tray-Wrap purchases bulk quantities of tomatoes that come from various parts of the country, repackages them into consumer-sized packages, and sells them to supermarkets in the Greater New York market. On April 25, 1989 it ordered a large shipment of tomatoes over the telephone from JSG at an agreed price of $24,080. JSG shipped this order on May 9, 1989 and it was received by Tray-Wrap three days later on May 12. Apart from these conceded facts, nearly all the other facts in this case are in dispute.
Tray-Wrap alleges that its April 25th order was to be shipped on that date and that it inquired of JSG concerning its arrival, prior to purchasing replacement tomatoes at a higher price from a different supplier. JSG asserts to the contrary that Tray-Wrap’s order was not accepted with a specific shipping date in mind, but was to be shipped “ASAP,” indicating that the shipper is not sure when it can ship but expects it will be within a reasonable time and, in any event, “as soon as possible.” 7 C.F.R. § 46.43(h) (1990). Tray-Wrap further contends that it had contracted for # 2 grade, green Florida tomatoes “delivered.” In the trade the term “delivered” or “delivered sale” means that “the produce is to be delivered by the seller ... free of any and all charges for transportation or protective service. The seller assumes all risks of loss and damage in transit not caused by the buyer.” Id. § 46.43(p). JSG contends that no grade was specified and that condition on arrival was agreed upon in the oral order of sale.
As a result of JSG’s alleged late delivery of out-of-grade tomatoes, Tray-Wrap claims to have suffered damages in excess of the value of those it purchased and has refused to pay for them. JSG therefore on May 18, 1989 filed a notice with the United States Department of Agriculture, claiming that it was a beneficiary of the trust created by the Act. As such, it preserved its rights to a trust in the tomatoes, and to all inventories of food or other products derived from them and to any receivables or proceeds realized from their sale until Tray-Wrap made full payment. JSG also instituted the instant action and sought a preliminary injunction pursuant to Fed.R. Civ.P. 65 that would require Tray-Wrap, as statutory trustee under the Act, to deposit $24,080 into a separate interest bearing account to be supervised by the court and to be maintained until a final disposition of JSG’s suit. On September 22, 1989 the United States District Court for the Southern District of New York (Keenan, J.) issued an order granting JSG a preliminary injunction.
Tray-Wrap appeals from that order, contending that neither the language nor the legislative history of the Perishable Commodities Act requires that a statutory trustee segregate trust funds prior to defending a suit under the Act. Thus, appellant argues that the court should have applied the usual requirements for preliminary injunctive relief and denied appellee’s request for injunctive relief because JSG made no showing of likelihood of irreparable harm if the trust assets were not segregated.
DISCUSSION
I Trustee’s Responsibility Under the Act
We turn first to the Act which, as amended in 1984, provides suppliers of commodities with a statutory trust to enforce the payment obligations of commission merchants, dealers and brokers:
Perishable agricultural commodities received by a commission merchant, dealer, or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products, shall be held by such commission merchant, dealer, or broker in trust for the benefit of all unpaid suppliers or sellers of such commodities or agents involved in the transaction, until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers, sellers, or agents.
7 U.S.C. § 499e(c)(2).
Congress added this trust provision to protect the security interest of sellers of perishable agricultural products that are sold and delivered to buyers, but not paid for. Arrangements under which merchants, dealers and brokers that had not made payment for the agricultural commodities, but used the produce instead as collateral to finance their business operations, Congress believed constituted a burden on interstate commerce. H.R.Rep. No. 543, 98th Cong., 2d Sess. 3-4, reprinted in 1984 U.S.Code Cong. & Admin.News 405, 406-07 (House Report). Were the merchants, dealers or brokers to experience cash-flow difficulties or go bankrupt, whatever funds and assets remained would therefore go first to pay secured creditors. Id. at 3, 9, reprinted in 1984 U.S.Code Cong. & Admin.News at 407, 413. The seller of the perishable agricultural goods as an unsecured lender would have to look to the equity left in the buyer’s business for payment — a most unpromising vista.
Although the use of a trust under the Act was aimed at remedying problems created by buyers’ bankruptcies, the trust was also envisioned as a method of enforcing debts against solvent buyers. In fact, by operation of § 499e(c)(2), a statutory trust in a defined res is created whenever a seller or supplier of perishable agricultural products provides such products to a commission merchant, dealer, or broker on credit. See, e.g., Frio Ice, S.A. v. Sun-fruit, Inc., 724 F.Supp. 1373, 1376-77 (S.D.Fla.1989); Fresh Western Marketing v. M & L Food Center, Inc., 707 F.Supp. 515, 516 (S.D.Fla.1989); DeBruyn Produce Co. v. Victor Foods, Inc., 674 F.Supp. 1405, 1407 (E.D.Mo.1987). If the seller gives timely notice of its intent to preserve its benefits under the trust, the buyer must conduct itself as trustee of its assets until the seller is paid in full. See 7 U.S.C. § 499e(c)(2), (3).
Yet neither the language of the statute nor its legislative history suggests that trust assets actually need to be segregated from a buyer’s other assets. Instead, the statute clearly provides that a trust is created in the “[pjerishable agricultural commodities!],] ... and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products.” Id. § 499e(c)(2).
Additionally, even a cursory review of the Perishable Commodities Act’s history reveals that the segregation of trust fund assets was not one of Congress’ purposes:
The trust impressed by section 5(c)(2) is a nonsegregated “floating trust” made up of all a firm’s commodity related liquid assets, under which there may be a commingling of trust assets. Under this provision there is no necessity to specifically identify all of the trust assets through each step of the assets accrual and disposal process. Since commingling is contemplated, all trust assets would be subject to the claims of unpaid seller-suppliers and agents to the extent of the amount owed them.
House Report at 5, reprinted in 1984 U.S. Code Cong. & Admin.News at 409; see also 7 C.F.R. § 46.46(c) (1990) (“Trust assets are to be preserved as a nonsegregated ‘floating’ trust. Commingling of trust assets is contemplated.”).
The term “nonsegregated floating trust” is used extensively throughout the brief legislative history of the 1984 amendment to describe the nature of the trust created under the Act. House Report at 2, 4, 5, 11, 12, reprinted in 1984 U.S.Code Cong. & Admin.News at 406, 407, 409, 414, 415. Congress apparently thought it unnecessary to include this term in the statutory language in light of the fact that a similar trust provision in the Packers and Stockyards Act, 7 U.S.C. § 196(b) (“[a]ll livestock purchased by a packer in cash sales, and all inventories of, or receivables or proceeds from meat, [etc.] ... shall be held by such packer in trust for the benefit of all unpaid cash sellers of such livestock until full payment has been received by such unpaid sellers”), had consistently been interpreted as creating a nonsegregated floating trust. See House Report at 11, reprinted in 1984 U.S.Code Cong. & Admin.News at 414; see also In re Gotham Provision Co., 669 F.2d 1000, 1010 (5th Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982). In light of this language and history, there is no support for JSG’s contention that the statute requires that Tray-Wrap preserve assets allegedly due JSG in an account segregated from Tray-Wrap’s other produce-derived holdings, or that Tray-Wrap’s failure to do so amounts to conversion of trust assets.
In fact, if JSG feared that Tray-Wrap was dissipating trust assets, JSG could have asked the Secretary to initiate a proceeding enjoining such dissipation. Section 499e(c)(4)(ii) of 7 U.S.C. provides district courts with jurisdiction to entertain actions by the Secretary of the U.S.D.A. “to prevent and restrain dissipation of the trust,” and “[i]f a firm persists in trust dissipation, the Secretary can initiate an injunctive proceeding in the U.S. district court.” House Report at 8, reprinted in 1984 U.S.Code Cong. & Admin.News at 411. If the likelihood of dissipating trust assets — here the tomatoes or the proceeds derived from their sale — is shown, a preliminary injunction could issue enjoining defendant from such dissipation and directing it to keep adequate records regarding the trust res. Further, we see nothing in the Act that would prohibit the court from exercising its traditional equity powers to grant a preliminary injunction at the instance of a private litigant if the normal standards for such relief are met. See Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 108 (2d Cir.1987); but see Frio Ice, 724 F.Supp. at 1378. Upon review of the language and history of the Perishable Commodities Act and the facts of the instant case, however, there is no evidence that Tray-Wrap converted trust assets.
Though JSG sought to have the district court require Tray-Wrap to segregate $24,-080, as the price at which the tomatoes were sold to Tray-Wrap, the trust res is not measured by the contract price; if the commodities themselves or other products derived from them are no longer in the buyer’s possession, the value of the trust res cannot be greater than the proceeds or receivables derived from the resale of those commodities or products. See DeBruyn Produce, 674 F.Supp. at 1407; Frio Ice, 724 F.Supp. at 1376. Nor would JSG — if it prevails in its suit — be entitled to an amount in excess of the price of the tomatoes shipped. The Act’s history clearly belies JSG’s contention that Tray-Wrap is liable for profits made through its use of trust assets, since produce creditors may only recover “to the extent of the amount owed them” under the contract. House Report at 5, reprinted in 1984 U.S.Code Cong. & Admin.News at 409.
II Injunctive Relief
It is now familiar law in this Circuit that in order to obtain a preliminary injunction a party not only must make an appropriate showing with regard to the merits of the litigation, but also must show the likelihood of irreparable injury if the requested relief is not granted. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). Irreparable injury is one that cannot be redressed through a monetary award. Where money damages are adequate compensation a preliminary injunction should not issue. See id.; Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 974-75 (2d Cir.1989); Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir.1986); Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1359 (2d Cir.1976).
Whether to grant a preliminary injunction or not rests in the sound discretion of the district court, and its determination will not be disturbed on appeal unless the grant or denial of this relief is an abuse of discretion. See Stormy Clime Ltd. v. Progroup, Inc., 809 F.2d 971, 973 (2d Cir.1987). Only when we think the district court may have misapplied the rules governing the issuance of this extraordinary remedy — and that the exercise of its discretion therefore fell outside permissible limits — will we reverse. See Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 315 (2d Cir.1982). Neither the language nor history of the Act supports JSG’s contention that the usual requirements for injunctive relief should not apply to applications based upon the duties of a statutory trustee. Here the district court stated that movant must show “the possibility” of irreparable harm. The Act does not authorize the granting of an injunction on a more lenient standard than required under the district court’s ordinary equity injunction must show that it is likely to suffer irreparable harm if equitable relief is, denied. In re Feit & Drexler, Inc., 760 F.2d 406, 415 (2d Cir.1985); Jackson Dairy, 596 F.2d at 72. Likelihood sets, of course, a higher standard than “possibility.”
Tray-Wrap’s principal argument is that the district court erred in granting JSG a preliminary injunction when JSG failed to show a likelihood of irreparable injury. Specifically, Tray-Wrap contends that the harm done by its failure to pay for the order of tomatoes, if any, may be compensated through an action by JSG for money damages. As we have noted, it is settled law that when an injury is compensable through money damages there is no irreparable harm. Jackson Dairy, 596 F.2d at 72.
Ill Preservation of Assets
Although JSG acknowledges its suit is for the recovery of money due from the shipment of its tomatoes to Tray-Wrap, it alleges nonetheless that it is likely to suffer irreparable harm unless Tray-Wrap is required to segregate Perishable Commodities Act trust assets in an account to be supervised by the district court. In support of this position JSG states that because Tray-Wrap failed to segregate trust assets from its other holdings, it has converted the trust to its own use and thus is liable to JSG for all profits made from trust funds. Given this, JSG argues that the precise calculation of money damages becomes increasingly difficult as Tray-Wrap continues to make use of trust assets. Additionally, JSG contends that absent the segregation of trust funds its claim under the Act is subject to dilution by the claims of other produce creditors whose rights arose later than JSG’s.
Clearly, the assumption that underlies this argument is that Tray-Wrap is not or may not be in a position to pay creditors’ claims. But nothing in the record sustains this assumption. Instead, Tray-Wrap has presented evidence of substantial current assets and sound financial health. JSG does not contest this; it demonstrates only a remote and speculative possibility of future harm rather than the imminent likelihood of injury. Consequently, it has made no showing of irreparable harm with respect to its assertion that its damage claim will be diluted by subsequent trust creditors. Cf. Tucker Anthony, 888 F.2d at 975.
CONCLUSION
As noted, a preliminary injunction is an extraordinary remedy that should not be granted as a routine matter. See Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986); Medical Society v. Toia, 560 F.2d 535, 538 (2d Cir.1977). Accordingly, because JSG has not demonstrated the likelihood that it will suffer irreparable harm unless Tray-Wrap segregates trust assets, but instead may be adequately compensated by money damages, the order granting the preliminary injunction is reversed, and the matter remanded to the district court with directions to vacate it.
Reversed 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_usc1
|
15
|
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.
Ernie M. DUFF, Appellant, v. The KANSAS CITY STAR COMPANY, a corporation, and Emil A. Sees, Appellees.
No. 16840.
United States Court of Appeals Eighth Circuit.
Feb. 16, 1962.
Carrol C. Kennett, made argument for appellant, Ray D. Jones, Jr., Kansas City, Mo., was with him on the brief.
Carl E. Enggas, for appellee, Colvin A. Peterson, Jr., and also Watson, Ess, Marshall & Enggas, Kansas City, Mo., with him on the brief.
Before VOGEL and BLACKMUN, Circuit Judges, and GRAVEN, Senior District Judge.
VOGEL, Circuit Judge.
Appellant brought this action to recover damages under § 4 of the Clayton Act, 15 U.S.C.A. § 15. Appellant is a former newspaper publisher. Appellees are The Kansas City Star Company, a corporation, and Emil A. Sees, an officer and agent thereof. The corporation is publisher of The Kansas City Star, a daily newspaper, and, during the period involved herein, was also the owner and operator of radio station WDAF and television station WDAF-TV in Kansas City, Missouri. Appellant’s complaint (filed on November 13, 1958) alleged that from 1935 until June 18, 1943, he owned the “Community Herald”, a weekly newspaper published in Kansas City, Missouri; that on June 18, 1943, he copyrighted the name “Community Herald”, and that “By virtue of the war, plaintiff [appellant] for the time being ceased publishing and disseminating said paper”. He also alleged that in June, 1946, he refused an offer of $1,000 for the copyrighted name “Community Herald”. He then alleged that “On or about 1951” he “sought to enter the field of dissemination of news and advertising in the area where he had previously operated his copyrighted paper”. He alleged that he had located an office, made arrangements to have his paper printed, and “made an extensive sampling of the advertising market and newspaper industry at that time, but by virtue of defendants’ attempt to monopolize and monopoly hereinafter stated, plaintiff was prevented from publishing his copyrighted newspaper, although he had the capital, ability, present intention and although there was an immediate need for his paper in the area, he was prevented from engaging in said business.” He sought treble damages in the amount of $600,000 plus $25,000 attorney’s fees and costs.
Appellees moved to dismiss appellant’s complaint on the following grounds: One, failure of the allegations to affirmatively demonstrate that appellant had been injured in his business or property within the purview of the Clayton Act; two, the allegations of the complaint did not allege any reasonable basis for computing or ascertaining the damages, if any; and, three, any claim for relief was barred by the applicable statute of limitations. From an order granting appellees’ motion this appeal is taken.
Appellant states the question involved here as follows:
“Where plaintiff alleged that for approximately eight years he was the owner and publisher of a paid circulation newspaper called the ‘Community Herald’ and obtained a copyright for such name on June 16, 1943: that in 1943, because of World War II, plaintiff temporarily ceased publishing and circulating such newspaper: and that in 1951 he was prepared to resume publication, but was prevented from doing so through the monopolization and attempt to monopolize of the dissemination of news and advertising by the defendants, and was thereby injured and damaged, plaintiff is entitled to be put to his proof, and the Court was in error in dismissing his petition.”
§ 4 of the Clayton Act, 15 U.S. C.A. § 15, provides in part:
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * (Emphasis supplied.)
Injury to “business or property” is essential to the maintenance of an action for damages under the Clayton Act. This court said, in Jack v. Armour & Co., 8 Cir., 1923, 291 F. 741, 745:
“ * * * On both reason and authority, no one can maintain an action under the provisions of section 7 of the Sherman Anti-Trust Act, unless he has suffered an injury in his business or property by proximate reason of the violation by the defendant or defendants whom he sues, of some of the prohibitions contained in that act; for this is what the act says in plain and simple language.”
See also Clark Oil Co. v. Phillips Petroleum Co., 8 Cir., 1945, 148 F.2d 580, 582-583, certiorari denied 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437, and Twin Ports Oil Co. v. Pure Oil Co., 8 Cir., 1941, 119 F.2d 747, 751, certiorari denied 314 U.S. 644, 62 S.Ct. 84, 86 L.Ed. 516.
For purposes of this appeal we must accept as true all well pleaded allegations of appellant’s complaint. Accordingly, we find therefrom that appellant possessed the copyrighted name “Community Herald” and a desire, after an absence of eight years, to reenter the newspaper publishing business; that he had located an office, made arrangements to have his paper printed, and took extensive samplings of the advertising market and newspaper industry at that time and that he was kept from reentering the newspaper business because of appellees’ monopoly. Thus, what he is seeking here is damages by reason of loss of anticipated profits in an anticipated business. This he may not do. See Broadcasters, Inc. v. Morristown ‘Broadcasting Corp., D.C.N.J., 1960, 185 F.Supp. 641, 644-645. He ceased publishing his paper in 1943. In 1951 he was in no different position than any stranger who might arrive in Kansas City with the desire or wish to enter the newspaper publishing field and who claimed that because of appellees’ monopoly he was prevented from doing so. The trial court very correctly stated in his memorandum dismissing appellant’s complaint:
“ * * * The gist of a private treble-damage action is not the violation of the antitrust laws, as such, but is the allegation of facts from which it may be inferred that a party plaintiff was caused direct injury to his business or property as a result of such violation. A civil action for treble damages is not based upon the existence of a monopoly or attempt to monopolize, in and of itself. The statute gives a right of action to a private litigant based on acts done pursuant to a monopoly or attempt to monopolize that directly injure or damage him in his business or property, (cf.) Burnham Chemical Co. v. Borax Consolidated, [9 Cir.,] 170 F.(2d) 569; Momand v. Universal Film Exchange, 172 F. (2d) 37 (Cir. 1); Shotkin v. General Electric Co. (Cir. 10) 171 F.(2d)
236; Tilden v. Quaker Oats Co., 1 F.(2d) 160 (Cir. 7); Buckeye Powder Co., v. [E. I.] DuPont Powder Co., 248 U.S. 55 [39 S.Ct. 38, 63 L. Ed. 123]; Image and Sound Service Corp. v. Altec Service Corp., 148 F.Supp. 237 (D.C.Mass.); Peller v. International Boxing Club, Inc., 135 F.Supp. 942 (N.D.Ill), aff. 227 F. (2d) 593 (Cir. 7).”
Nevertheless, appellant argues that while he
“ * * * does not allege any large capital expenditures, * * * he does allege ownership of a copyrighted name for a newspaper which had a value because of his previous conduct of a newspaper publishing business under that name.”
And in his complaint he does claim:
“At least since 1936 and continuously up to date by reason of defendant’s continuous acts, * * * plaintiff has been injured in his business and property of owning copyright dated June 18, 1943 pertaining to the ‘COMMUNITY HERALD’ in that he has never been allowed or permitted to sell, lease, assign or dispose of said copyright in a market * * * free of defendants’ restraints and by reason thereof, the value of the copyright has either been destroyed, limited or hampered; * *
Appellant’s contention with reference to the depreciated value of the name “Community Herald” is unsupported by citation to any authority. The name “Community Herald” in and of itself is not a valid, copyrightable name. It is no more than the common name of a once-published newspaper. The name of a newspaper at best, if it qualifies as being unique and original, can- be trademarked. As stated in Pulitzer Pub. Co. v. Houston Printing Co., 5 Cir., 1926, 11 F.2d 834, 836, certiorari denied 273 U.S. 694, 47 S.Ct. 91, 71 L.Ed. 844, being concerned with the St. Louis Post-Dispatch trying to prevent the Houston Post-Dispatch from using the name “Post-Dispatch”:
“ * * * was settled long prior to the Trade-Mark Act of February 20, 1905 * * * that one is not entitled to the exclusive use of a trade-mark consisting merely of words which are descriptive of the qualities or characteristics of an article of trade. Columbia Mill Co. v. Alcorn, 14 S.Ct. 151, 150 U.S. 460, 37 L.Ed. 1144; United Drug Co. v. [Theodore] Rectanus [Co.] 39 S.Ct. 48, 248 U.S. 90, 63 L.Ed. 141; Warner & Co. v. [Eli] Lilly & Co., 44 S.Ct. 615, 265 U.S. 526, 68 L.Ed. 1161; Searle & Hereth Co. v. Warner, 112 F. 674, 50 C.C.A. 321.”
Be that as it may, no trade-mark registration was ever made. Thus the only protection available to the appellant here with reference to the name “Community Herald” would be that protection given to trade names; that is, protection against wrongful use of the name “Community Herald” by another party. However, there is no such issue involved here; hence, the only question left to determine is whether under the circumstances of this case there is a property right in the name “Community Herald”. Judge Learned Hand, in Mutual Life Ins. Co. v. Menin, 2 Cir., 1940, 115 F.2d 975, 979, certiorari denied 313 U.S. 578, 61 S.Ct. 1096, 85 L.Ed. 1536, said:
“ * * * the referee obviously supposed that the name passed like a chattel, a chose-in-aetion, or any other bit of property. In this we think he was in error; we can find no warrant in the books for considering a name, qua name, as property. No doubt ‘property’ is itself a conventional concept, but so are all legal concepts; this one has not as yet embraced names.”
See also 18 C.J.S., Copyright and Literary Property, § 10(f), p. 143. Judge Woodrough, speaking for this court in Katz Drug Co. v. Katz, 8 Cir., 1951, 188 F.2d 696, 699, said, with reference to the analogous question of trade-marks:
“ * * * [It is settled] in this circuit that there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade with which the mark is employed * *
(Emphasis supplied.)
The question narrows itself as to whether there is an established business (goodwill) to which the name “Community Herald” attaches. If none exist, then there is no property right in the name. See Lawyers Title Ins. Co. v. Lawyers Title Ins. Corp., 1939, 71 App.D.C. 120, 109 F.2d 35, 43, certiorari denied 309 U.S. 684, 60 S.Ct. 806, 84 L.Ed. 1028, wherein Mr. Justice Rutledge, then a member of the Court of Appeals for the District of Columbia, stated:
«-* * * Although ‘property’ may be admitted to exist, whether in a trade-mark, a trade name or a corporate name, that is true, broadly speaking, whenever economic interests are protected by legal process, but only to the extent that they are so protected.” (Emphasis supplied.)
After eight years of non-publication appellant possessed neither business nor property, including goodwill, which could have been damaged by appellees’ monopoly within the period of limitation. We are of the opinion that the trial court was correct in holding:
“ * * * ^ js dear from the allegations of the complaint, accepting the same to be true as alleged by plaintiff, that plaintiff had no established business or property during any period of time within the applicable statute of limitation, supra, which could have been injured or damaged by the monopoly and acts of attempt to monopolize, as here charged by him. As a consequence thereof, plaintiff’s complaint should be, and the same is hereby, dismissed, * *
This case is affirmed.
. Pursuant to § 5 of the Clayton Act, 15 TJ.S.C.A. § 16, the statute of limitations herein was suspended during the period January 6, 1953, until November 15, 1958, on account of the pendency of suits instituted by the United States against the appellees. See Kansas City Star Co. v. United States, 8 Cir., 1957, 240 F.2d 643, certiorari denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438. The trial court, in accordance with Powell v. St. Louis Dairy Co., 8 Cir., 1960, 276 F.2d 464, held that the Missouri three-year statute of limitations, Section 516. 130 RSMo 1949, V.A.M.S., was applicable. Accordingly, all damages, if any, which might have accrued to the appellant prior to January 7, 1950, were barred.
. 2 Nims, Unfair Competition and TradeMarks (4th Ed.), § 272, p. 889:
“ * * * The right secured by the copyright laws is the right to use a literary composition — the product of the mind and genius of the author — not the name or title given to it.”
See also Atlas Mfg. Co. v. Street & Smith, 8 Cir., 1913, 204 F. 398, 403, appeal dismissed 231 U.S. 348, 34 S.Ct. 73, 58 L.Ed. 262, certiorari denied 231 U.S. 755, 34 S.Ct. 323, 58 L.Ed. 468; 18 C.J.S., Copyright and Literary Property, §§ 44, 47.
. See 2 Nims, supra, § 274, pp. 892-893; Spring, “Rights and Risks, Publicity, Television, Radio, Motion Pictures, Advertising, and the Theater,” W. W. Norton & Co., New York, 1952, pp. 133, 318 n. 12a; 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 112b. See also Farmers’ Educ. & Coop. Union of America v. Iowa Farmers Union, D.C. S.D.Ia., 1957, 150 F.Supp. 422, 424, aif’d sub. nom. Stover v. Farmers’ Educ. & Coop. Union of America, 8 Cir., 1958, 250 F.2d 809, certiorari denied 356 U.S. 976, 78 S.Ct. 1139, 2 L.Ed.2d 1149.
. Spring, supra, p. 318 n. 12a:
“ * * * Since most periodicals use common names, or combinations thereof, trademark registration cannot be had and a secondary meaning must be shown to be attached, and relief sought under the theory of unfair competition.” For discussion of cases on this point, see 2 Nims, supra, § 279, pp. 925-935.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
Timothy Lee HURST, Petitioner
v.
FLORIDA.
No. 14-7505.
Supreme Court of the United States
Argued Oct. 13, 2015.
Decided Jan. 12, 2016.
Seth P. Waxman, Washington, DC, for Petitioner.
Allen Winsor, Solicitor General, for Respondent.
Pamela Jo Bondi, Attorney General of Florida, Carolyn M. Snurkowski, Associate Deputy Attorney General, Carine L. Emplit, Assistant Attorney General, Office of the Attorney General, Tallahassee, FL, for Respondent.
Carolyn M. Snurkowski, Associate Deputy, Attorney General, Office of the Attorney General, Tallahassee, FL, Pamela Jo Bondi, Attorney General of Florida, Allen Winsor, Solicitor General Counsel of Record, Denise Harle, Rachel Nordby, Osvaldo Vazquez, Deputy Solicitors General, for Respondent.
Nancy A. Daniels, Public Defender, David A. Davis, Assistant Public Defender, Mark E. Olive, Law Offices of Mark E. Olive, P.A., Tallahassee, FL, Seth P. Waxman, Catherine M.A. Carroll, David M. Lehn, Francesco Valentini, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, Eric F. Fletcher, Allison Trzop, Wilmer Cutler Pickering, Hale and Dorr LLP, Boston, MA, for Petitioner.
Justice SOTOMAYOR delivered the opinion of the Court.
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst's judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.
I
On May 2, 1998, Cynthia Harrison's body was discovered in the freezer of the restaurant where she worked-bound, gagged, and stabbed over 60 times. The restaurant safe was unlocked and open, missing hundreds of dollars. The State of Florida charged Harrison's co-worker, Timothy Lee Hurst, with her murder. See 819 So.2d 689, 692-694 (Fla.2002).
During Hurst's 4-day trial, the State offered substantial forensic evidence linking Hurst to the murder. Witnesses also testified that Hurst announced in advance that he planned to rob the restaurant; that Hurst and Harrison were the only people scheduled to work when Harrison was killed; and that Hurst disposed of blood-stained evidence and used stolen money to purchase shoes and rings.
Hurst responded with an alibi defense. He claimed he never made it to work because his car broke down. Hurst told police that he called the restaurant to let Harrison know he would be late. He said she sounded scared and he could hear another person-presumably the real murderer-whispering in the background.
At the close of Hurst's defense, the judge instructed the jury that it could find Hurst guilty of first-degree murder under two theories: premeditated murder or felony murder for an unlawful killing during a robbery. The jury convicted Hurst of first-degree murder but did not specify which theory it believed.
First-degree murder is a capital felony in Florida. See Fla. Stat. § 782.04(1)(a) (2010). Under state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment. § 775.082(1). "A person who has been convicted of a capital felony shall be punished by death" only if an additional sentencing proceeding "results in findings by the court that such person shall be punished by death." Ibid. "[O]therwise such person shall be punished by life imprisonment and shall be ineligible for parole." Ibid.
The additional sentencing proceeding Florida employs is a "hybrid" proceeding "in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencing determinations." Ring v. Arizona, 536 U.S. 584, 608, n. 6, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). First, the sentencing judge conducts an evidentiary hearing before a jury. Fla. Stat. § 921.141(1) (2010). Next, the jury renders an "advisory sentence" of life or death without specifying the factual basis of its recommendation. § 921.141(2). "Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death." § 921.141(3). If the court imposes death, it must "set forth in writing its findings upon which the sentence of death is based." Ibid. Although the judge must give the jury recommendation "great weight," Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam ), the sentencing order must "reflect the trial judge's independent judgment about the existence of aggravating and mitigating factors," Blackwelder v. State, 851 So.2d 650, 653 (Fla.2003) (per curiam ).
Following this procedure, Hurst's jury recommended a death sentence. The judge independently agreed. See 819 So.2d, at 694-695. On postconviction review, however, the Florida Supreme Court vacated Hurst's sentence for reasons not relevant to this case. See 18 So.3d 975 (2009).
At resentencing in 2012, the sentencing judge conducted a new hearing during which Hurst offered mitigating evidence that he was not a "major participant" in the murder because he was at home when it happened. App. 505-507. The sentencing judge instructed the advisory jury that it could recommend a death sentence if it found at least one aggravating circumstance beyond a reasonable doubt: that the murder was especially "heinous, atrocious, or cruel" or that it occurred while Hurst was committing a robbery. Id ., at 211-212. The jury recommended death by a vote of 7 to 5.
The sentencing judge then sentenced Hurst to death. In her written order, the judge based the sentence in part on her independent determination that both the heinous-murder and robbery aggravators existed. Id ., at 261-263. She assigned "great weight" to her findings as well as to the jury's recommendation of death. Id ., at 271.
The Florida Supreme Court affirmed 4 to 3. 147 So.3d 435 (2014). As relevant here, the court rejected Hurst's argument that his sentence violated the Sixth Amendment in light of Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. Ring, the court recognized, "held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in the maximum punishment." 147 So.3d, at 445. But the court considered Ring inapplicable in light of this Court's repeated support of Florida's capital sentencing scheme in pre-Ring cases. 147 So.3d, at 446-447 (citing Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam )); see also Spaziano v. Florida, 468 U.S. 447, 457-465, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Specifically, in Hildwin, this Court held that the Sixth Amendment "does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." 490 U.S., at 640-641, 109 S.Ct. 2055. The Florida court noted that we have "never expressly overruled Hildwin, and did not do so in Ring ." 147 So.3d, at 446-447.
Justice Pariente, joined by two colleagues, dissented from this portion of the court's opinion. She reiterated her view that "Ring requires any fact that qualifies a capital defendant for a sentence of death to be found by a jury." Id., at 450 (opinion concurring in part and dissenting in part).
We granted certiorari to resolve whether Florida's capital sentencing scheme violates the Sixth Amendment in light of Ring . 575 U.S. ----, 135 S.Ct. 1531, 191 L.Ed.2d 558 (2015). We hold that it does, and reverse.
II
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. ----, ----, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). In Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this Court held that any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury. In the years since Apprendi, we have applied its rule to instances involving plea bargains, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), sentencing guidelines, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), criminal fines, Southern Union Co. v. United States, 567 U.S. ----, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), mandatory minimums, Alleyne, 570 U.S., at ----, 133 S.Ct., at 2166 and, in Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, capital punishment.
In Ring, we concluded that Arizona's capital sentencing scheme violated Apprendi 's rule because the State allowed a judge to find the facts necessary to sentence a defendant to death. An Arizona jury had convicted Timothy Ring of felony murder. 536 U.S., at 591, 122 S.Ct. 2428. Under state law, "Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made." Id., at 592, 122 S.Ct. 2428. Specifically, a judge could sentence Ring to death only after independently finding at least one aggravating circumstance. Id., at 592-593, 122 S.Ct. 2428. Ring's judge followed this procedure, found an aggravating circumstance, and sentenced Ring to death.
The Court had little difficulty concluding that " 'the required finding of an aggravated circumstance exposed Ring to a greater punishment than that authorized by the jury's guilty verdict.' " Id., at 604, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S., at 494, 120 S.Ct. 2348 ; alterations omitted). Had Ring's judge not engaged in any factfinding, Ring would have received a life sentence. Ring, 536 U.S., at 597, 122 S.Ct. 2428. Ring's death sentence therefore violated his right to have a jury find the facts behind his punishment.
The analysis the Ring Court applied to Arizona's sentencing scheme applies equally to Florida's. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts. Fla. Stat. § 921.141(3). Although Florida incorporates an advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is immaterial: "It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury's findings of fact with respect to sentencing issues than does a trial judge in Arizona." Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) ; accord, State v. Steele, 921 So.2d 538, 546 (Fla.2005) ("[T]he trial court alone must make detailed findings about the existence and weight of aggravating circumstances; it has no jury findings on which to rely").
As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst's authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst's sentence violates the Sixth Amendment.
III
Without contesting Ring 's holding, Florida offers a bevy of arguments for why Hurst's sentence is constitutional. None holds water.
A
Florida concedes that Ring required a jury to find every fact necessary to render Hurst eligible for the death penalty. But Florida argues that when Hurst's sentencing jury recommended a death sentence, it "necessarily included a finding of an aggravating circumstance." Brief for Respondent 44. The State contends that this finding qualified Hurst for the death penalty under Florida law, thus satisfying Ring . "[T]he additional requirement that a judge also find an aggravator," Florida concludes, "only provides the defendant additional protection." Brief for Respondent 22.
The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until "findings by the court that such person shall be punished by death." Fla. Stat. § 775.082(1) (emphasis added). The trial court alone must find "the facts ... [t]hat sufficient aggravating circumstances exist" and "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." § 921.141(3) ; see Steele, 921 So.2d, at 546. "[T]he jury's function under the Florida death penalty statute is advisory only." Spaziano v. State, 433 So.2d 508, 512 (Fla.1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.
B
Florida launches its second salvo at Hurst himself, arguing that he admitted in various contexts that an aggravating circumstance existed. Even if Ring normally requires a jury to hear all facts necessary to sentence a defendant to death, Florida argues, "Ring does not require jury findings on facts defendants have admitted." Brief for Respondent 41. Florida cites our decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in which we stated that under Apprendi, a judge may impose any sentence authorized "on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S., at 303, 124 S.Ct. 2531 (emphasis deleted). In light of Blakely, Florida points to various instances in which Hurst's counsel allegedly admitted the existence of a robbery. Florida contends that these "admissions" made Hurst eligible for the death penalty. Brief for Respondent 42-44.
Blakely, however, was a decision applying Apprendi to facts admitted in a guilty plea, in which the defendant necessarily waived his right to a jury trial. See 542 U.S., at 310-312, 124 S.Ct. 2531. Florida has not explained how Hurst's alleged admissions accomplished a similar waiver. Florida's argument is also meritless on its own terms. Hurst never admitted to either aggravating circumstance alleged by the State. At most, his counsel simply refrained from challenging the aggravating circumstances in parts of his appellate briefs. See, e.g., Initial Brief for Appellant in No. SC12-1947 (Fla.), p. 24 ("not challeng[ing] the trial court's findings" but arguing that death was nevertheless a disproportionate punishment).
C
The State next argues that stare decisis compels us to uphold Florida's capital sentencing scheme. As the Florida Supreme Court observed, this Court "repeatedly has reviewed and upheld Florida's capital sentencing statute over the past quarter of a century." Bottoson v. Moore, 833 So.2d 693, 695 (2002) (per curiam ) (citing Hildwin, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 ; Spaziano, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 ). "In a comparable situation," the Florida court reasoned, "the United States Supreme Court held:
'If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [other courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' " Bottoson, 833 So.2d, at 695 (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ); see also 147 So.3d, at 446-447 (case below).
We now expressly overrule Spaziano and Hildwin in relevant part.
Spaziano and Hildwin summarized earlier precedent to conclude that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." Hildwin, 490 U.S., at 640-641, 109 S.Ct. 2055. Their conclusion was wrong, and irreconcilable with Apprendi . Indeed, today is not the first time we have recognized as much. In Ring, we held that another pre-Apprendi decision-Walton, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 -could not "survive the reasoning of Apprendi ." 536 U.S., at 603, 122 S.Ct. 2428. Walton, for its part, was a mere application of Hildwin 's holding to Arizona's capital sentencing scheme. 497 U.S., at 648, 110 S.Ct. 3047.
"Although ' "the doctrine of stare decisis is of fundamental importance to the rule of law[,]" ... [o]ur precedents are not sacrosanct.' ... '[W]e have overruled prior decisions where the necessity and propriety of doing so has been established.' " Ring, 536 U.S., at 608, 122 S.Ct. 2428 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) ). And in the Apprendi context, we have found that "stare decisis does not compel adherence to a decision whose 'underpinnings' have been 'eroded' by subsequent developments of constitutional law." Alleyne, 570 U.S., at ----, 133 S.Ct., at 2155 (SOTOMAYOR, J., concurring); see also United States v. Gaudin, 515 U.S. 506, 519-520, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (overruling Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929) ); Ring, 536 U.S., at 609, 122 S.Ct. 2428 (overruling Walton, 497 U.S., at 639, 110 S.Ct. 3047 ); Alleyne, 570 U.S., at ----, 133 S.Ct., at 2162-2163 (overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) ).
Time and subsequent cases have washed away the logic of Spaziano and Hildwin . The decisions are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty.
D
Finally, we do not reach the State's assertion that any error was harmless. See Neder v. United States, 527 U.S. 1, 18-19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that the failure to submit an uncontested element of an offense to a jury may be harmless). This Court normally leaves it to state courts to consider whether an error is harmless, and we see no reason to depart from that pattern here. See Ring, 536 U.S., at 609, n. 7, 122 S.Ct. 2428.
* * *
The Sixth Amendment protects a defendant's right to an impartial jury. This right required Florida to base Timothy Hurst's death sentence on a jury's verdict, not a judge's factfinding. Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
Justice BREYER, concurring in the judgment.
For the reasons explained in my opinion concurring in the judgment in Ring v. Arizona, 536 U.S. 584, 613-619, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I cannot join the Court's opinion. As in that case, however, I concur in the judgment here based on my view that "the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death." Id., at 614, 122 S.Ct. 2428 ; see id., at 618, 122 S.Ct. 2428 ("[T]he danger of unwarranted imposition of the [death] penalty cannot be avoided unless 'the decision to impose the death penalty is made by a jury rather than by a single government official' " (quoting Spaziano v. Florida, 468 U.S. 447, 469, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (STEVENS, J., concurring in part and dissenting in part))). No one argues that Florida's juries actually sentence capital defendants to death-that job is left to Florida's judges. See Fla. Stat. § 921.141(3) (2010). Like the majority, therefore, I would reverse the judgment of the Florida Supreme Court.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_adminaction_is
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. SECKINGER, trading as M. O. SECKINGER CO.
No. 395.
Argued January 14, 1970
Decided March 9, 1970
James van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Peter L. Strauss, and Robert V. Zener.
John G. Kennedy argued the cause for respondent. With him on the brief was Frank S. Cheatham, Jr.
Mr. Justice Brennan
delivered the opinion of the Court.
This case concerns the construction of a provision common to fixed-price government construction contracts that states that the private contractor “shall be responsible for all damages to persons or property that occur as a result of his fault or negligence . . . .” The Court of Appeals for the Fifth Circuit held that the provision could not be construed to allow the Government to recover from the contractor damages suffered by the Government on account of its own negligence. 408 F. 2d 146 (1969). We granted certiorari because of the large amount of litigation that this contract clause has produced and because of the divergent results that the lower courts have reached in construing the same or similar provisions. 396 U. S. 815 (1969). We reverse.
I
The United States had entered into a contract with the Seckinger Company for the performance of certain plumbing work at a United States Marine base in South Carolina. While working on this project, one of Seck-inger’s employees was directed by his foreman to assist a fellow employee on a particular section of pipe that had been partially constructed above a street. About four or five feet above the place where the employee was working, there was an electric wire that carried 2,400 volts of electricity. The employee accidentally came into contact with the wire, was thrown to the ground 18 feet below, and was seriously injured.
The injured employee recovered benefits under South Carolina's workmen's compensation law, S. C. Code Ann. §§ 72-1 to 72-504 (1962), and then commenced a suit in the Eastern District of South Carolina against the United States under the Federal Tort Claims Act, 28 U. S. C. §§ 2671-2680, on the theory that his injuries had been sustained as the proximate result of the Government’s negligence. The United States, relying on the contract clause, moved to implead Seckinger as a third-party defendant. This motion was denied on the ground that the addition of Seckinger would “unnecessarily and improperly complicate the issues.”
On the merits, the South Carolina District Court found that the United States had customarily de-ener-gized its electric wires whenever Seckinger employees were required to work dangerously near them. The court therefore held that the United States had been grossly negligent in failing to de-energize the wire in this particular case. Alternatively, the Government was held to have been negligent in failing to advise Seckinger’s employees that the electric wire had not been de-energized. Concluding also that the employee had in no way contributed to his injury, the District Judge ordered that he recover a judgment against the United States in the amount of $45,000 plus costs. No appeal was taken from this judgment of the District Court.
Thereafter, the United States proceeded to the District Court for the Southern District of Georgia and commenced the instant suit against Seckinger. The complaint alleged that Seckinger’s negligence was solely responsible for its employee’s injuries and that therefore the United States should be fully indemnified for the judgment which it had satisfied. In a second count, the Government alleged that Seckinger, having undertaken to perform its contract with the United States, was obligated “to perform the work properly and safely and to provide workmanlike service in the performance of said work.”
The District Court granted Seckinger’s motion to dismiss the complaint on the alternative grounds, first, that the suit was barred by the prior litigation in South Carolina and, second, that the contractual language was not sufficiently broad to permit the Government to recover indemnification for its own negligence. The Court of Appeals rejected the first ground of decision, but sustained the holding that any recovery on the contract was foreclosed to the United States because its negligence had contributed substantially to the injury. The Court of Appeals held that, under the “majority rule,” an indemnitee cannot recover for his own negligence in the absence of a contractual provision which unmistakably authorizes this result. Since the contract here did not unequivocally command that the Government be indemnified for its own negligence, and because the injuries in question were thought to have been caused by the “active direct negligence” of the Government with no more than a “slight dereliction” on the part of Seck-inger, no recovery whatsoever on the contract would be permitted to the United States.
In the Government's view, this construction of the clause renders it a nullity, for the United States can never be held liable in tort under the Tort Claims Act or otherwise in the absence, of negligence on the part of its agents. Thus, so the argument goes, the contractual provision in question can have meaning only in a context in which both the United States and the contractor are jointly negligent. In that circumstance, the contractor would be obligated to sustain the full burden of ultimate liability for the injuries produced. Alternatively, the Government suggests that it is entitled to indemnity on a comparative basis to the extent that the negligence of Seckinger contributed to its employee’s injuries.
II
In the posture in which this case reaches us, the historical background of the clause and evidence concerning the actual intention of these particular parties with respect to that provision are sparsely presented. We do know that the clause was required in government fixed-price construction contracts as early as 1938. This fact merely precipitates confusion, however, because it was not until the passage of the Tort Claims Act in 1946, §§ 401-424, 60 Stat. 842, as amended, 28 U. S. C. §§ 2671-2680, that the United States permitted recovery in tort against itself for the negligent acts of its agents. Viewed in the pre-Tort Claims Act context, the purpose of the clause is totally unclear except, perhaps, as an exercise in caution on the part of the government draftsmen, or, conceivably, as an attempt to insulate government agents from liability in their private capacities if their negligence arguably combined with that of the contractor to produce a given injury.
In American Stevedores, Inc. v. Porello, 330 U. S. 446 (1947), we had before us a contractual provision that was similar to that involved here. There we noted that the clause was susceptible of several different constructions, 330 U. S., at 457-458, and remanded the case to the District Court to ascertain the intention of the parties with respect to the clause. It does not appear that a similar course of action would be fruitful in the instant case. In Porello there were clear indications from the parties that further evidentiary proceedings in the District Court would shed light on the actual intention of the parties. Here, by contrast, there is not only no representation that further proceedings would aid in clarifying the intentions of the parties, but there is at least tacit agreement that the background of the clause has been explored as thoroughly as possible. In these circumstances, we have no alternative but to proceed directly to the contractual construction problem.
Ill
Preliminarily, we agree with the Court of Appeals that federal law controls the interpretation of the contract. See United States v. County of Allegheny, 322 U. S. 174, 183 (1944); Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). This conclusion results from the fact that the contract was entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution.
In fashioning a federal rule we are, of course, guided by the general principles that have evolved concerning the interpretation of contractual provisions such as that involved here. Among these principles is the general maxim that a contract should be construed most strongly against the drafter, which in this case was the United States. The Government seeks to circumvent this principle by arguing that it is inapplicable unless there is ambiguity in the contractual provisions in dispute and there exists an alternative interpretation that is, “under all the circumstances, a reasonable and practical one.” Gelco Builders & Burjay Const. Co. v. United States, 177 Ct. Cl. 1025, 1035, 369 F. 2d 992, 999-1000 (1966). The Government itself, however, has proffered two mutually inconsistent interpretations of the contract clause. To be sure, one of them is pressed with considerably more enthusiasm than the other. The Government, nevertheless, must be taken implicitly to have conceded (a) that the clause is not without ambiguity and (b) that there is an alternative construction of the clause that is both “reasonable and practical.” Even in the Government’s view of the matter, therefore, there is necessarily room for the construction-against-drafter principle to operate.
More specifically, we agree with the Court of Appeals that a contractual provision should not be construed to permit an indemnitee to recover for his own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties. This principle, though variously articulated, is accepted with virtual unanimity among American jurisdictions. The traditional reluctance of courts to cast the burden of negligent actions upon those who were not actually at fault is particularly applicable to a situation in which there is a vast disparity in bargaining power and economic resources between the parties, such as exists between the United States and particular government contractors. See United States v. Haskin, 395 F. 2d 503, 508 (C. A. 10th Cir. 1968).
In short, if the United States expects to shift the ultimate responsibility for its negligence to its various contractors, the mutual intention of the parties to this effect should appear with clarity from the face of the contract. We can hardly say that this intention is manifested by the formulation incorporated into the present contract. By its terms Seckinger is clearly liable for its negligence, but the contractual language cannot readily be stretched to encompass the Government’s negligence as well.
On the other hand, we must not fail to accord appropriate consideration to Seckinger’s clear liability under the contract for “all damages” that resulted from its “fault or negligence.” (Emphasis added.) The view adopted by the Court of Appeals, and now urged by Seckinger, would drain this clause of any significant meaning or protection for the Government, and, indeed, would tend to insulate Seckinger from potential liability in any circumstance in which any negligence is also attributable to the United States. Whatever may have been the actual intention of the parties with respect to the meaning of the clause, it is extremely difficult to believe that they sought to utilize this contractual provision to reduce Seckinger’s potential liability under common law or statutory rules of contribution or indemnity. Yet, that is arguably the result if the clause is interpreted to mean that Seckinger’s liability is limited to situations in which it, as opposed to the United States, is the sole negligent party.
Furthermore, in this latter situation, it is perfectly clear that, both before and after the passage of the Tort Claims Act, the United States could not, in any event, be charged with liability in the absence of negligence on its part. In short, the construction of the clause adopted by the Court of Appeals tends to narrow Seckinger’s potential liability and, also, limits its application to circumstances in which no doubt concerning Seckinger’s sole liability existed. In the process, considerable violence is done to the plain language of the contract that Seckinger be responsible for all damages resulting from its negligence.
A synthesis of all of the foregoing considerations leads to the conclusion that the most reasonable construction of the clause is the alternative suggestion of the Government, that is, that liability be premised on the basis of comparative negligence. In the first place, this interpretation is consistent with the plain language of the clause, for Seckinger will be required to indemnify the United States to the full extent that its negligence, if any, contributed to the injuries to the employee.
Secondly, the principle that indemnification for the indemnitee’s own negligence must be clearly and unequivocally indicated as the intention of the parties is preserved intact. In no event will Seckinger be required to indemnify the United States to the extent that the injuries were attributable to the negligence, if any, of the United States. In short, Seckinger will be responsible for the damages caused by its negligence; similarly, responsibility will fall upon the United States to the extent that it was negligent.
Finally, our interpretation adheres to the principle that, as between two reasonable and practical constructions of an ambiguous contractual provision, such as the two proffered by the Government, the provision should be construed less favorably to that party which selected the contractual language. This principle is appropriately accorded considerable emphasis in this case because of the Government’s vast economic resources and stronger bargaining position in contract negotiations.
For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the District Court for further proceedings consistent with this opinion.
Reversed and remanded.
Mb. Justice Marshall took no part in the consideration or decision of this case.
In the petition for certiorari, the Solicitor General advised that there are presently pending 200 government suits involving the same or similar clauses.
Compare, e. g., Fisher v. United States, 299 F. Supp. 1 (D. C. E. D. Pa. 1969), and United States v. Accrocco, 297 F. Supp. 966 (D. C. D. C. 1969), with, e. g., the decision of the Court of Appeals in the instant case.
The third-party complaint was therefore dismissed “with leave to . . . the United States ... to take such further action at an appropriate time.” The order was not appealed, and we imply no view concerning the propriety of the District Court’s action.
The District Court concluded, inter alia, that the negligence of the United States was the “sole cause” of the employee’s injuries. We do not pause to consider what effect, if any, under all the circumstances of this case, the South Carolina judgment could properly have in the instant case. The effect of the prior judgment was not raised below except as a defense contention that it constituted an absolute bar to the instant proceedings.
Specifically, the United States alleged that Seckinger was negligent in that it (1) failed to request that the power distribution line be de-energized; (2) failed to request that the wires at the place where the accident occurred be insulated; (3) failed to provide safety insulation on the wires; (4) permitted, and in fact directed, the subsequently injured employee to work in close proximity to the wires; and (5) failed to prevent the employee from proceeding in a manner that was dangerous and that caused him to be injured.
The Court of Appeals held that the Government’s suit was not barred by principles of res judicata because the South Carolina District Court expressfy left open the option of the United States to pursue its claim against Seckinger at a later time. We agree with this conclusion of the Court of Appeals.
In the present state of the record, we neither accept nor reject this characterization of the relative degrees of fault of Seckinger and the United States.
The Government, therefore, does not take issue with those authorities that exhibit reluctance to permit a negligent indemnitee to recover from a faultless indemnitor unless this intention appeared with particular clarity from the contract. See, e. g., Associated Engineers, Inc. v. Job, 370 F. 2d 633, 651 (C. A. 8th Cir. 1966), cert. denied sub nom. Troy Cannon Const. Co. v. Job, 389 U. S. 823 (1967).
In context, the clause in question appears as follows:
“11. PERMITS AND RESPONSIBILITY FOR WORK, ETC.
“The Contractor shall, without additional expense to the Government, obtain all licenses and permits required for the prosecution of the work. He shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work. He shall also be responsible for all materials delivered and work performed until completion and final acceptance, except for any completed unit thereof which theretofore may have been finally accepted.”
See, e. g., 41 CFR §§ 11.1, 11.3, 12.23, Art. 10 (1938).
The objective of the remand was frustrated when no additional evidence was presented to the District Court. That court merely adhered to the construction of the contract that had been adopted by the Court of Appeals, 153 F. 2d 605 (C. A. 2d Cir. 1946), namely, that the United States was entitled to full indemnity from a steve-doring contractor although both the United States and the contractor were found to have been negligent. Porello v. United States, 94 F. Supp. 952 (D. C. S. D. N. Y. 1950).
“The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any State.” 322 U. S., at 183.
Congress has provided extensive arrangements for the procurement, management, and disposal of government property. See generally 40 U. S. C. §§ 471-535 (1964 ed. and Supp. IV). As part of this statutory scheme, the Administrator of General Services is authorized to issue regulations necessary to perform his various managerial functions. 40 U. S. C. § 486 (e). Pursuant to this authority, various form contracts, one of which includes the provision that is the subject of this suit, have been promulgated for official use. 41 CFR §§ 1-16.401 to 1-16.404, 1-16.901-23A, Art. 12 (1969). See generally State Bar of California, Committee on Continuing Education of the Bar, Government Contracts Practice § 13.93 (1964).
See, e. g., Sternberger v. United States, 185 Ct. Cl. 528, 543, 401 F. 2d 1012, 1021 (1968); Sun Shipbuilding & Drydock Co. v. United States, 183 Ct. Cl. 358, 372, 393 F. 2d 807, 816 (1968); Jones v. United States, 304 F. Supp. 94, 103 (D. C. S. D. N. Y. 1969).
A number of courts take the view, frequently in a context in which the indemnitee was solely or principally responsible for the damages, that there can be indemnification for the indemnitee’s negligence only if this intention is explicitly stated in the contract. See, e. g., Freed v. Great A. & P. Tea Co., 401 F. 2d 266 (C. A. 6th Cir. 1968) (intention of parties must be “clear and unambiguous” necessitating a clause such as “including damage from indemnitee’s own negligence”); Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967) (same); City of Beaumont v. Graham, 441 S. W. 2d 829 (Tex. 1969) (indemnitor’s promise to indemnify for his negligent acts does not extend to indemnification for indemnitee’s negligence); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969) (indemnitor not liable for such portion of total liability attributable to act of indemnitee unless indemnity contract by express provision and strict construction so provides); cases collected in Annot., 175 A. L. R. 8, 29-38 (1948).
Other cases do not require that indemnification for the indemnitee’s negligence be specifically or expressly stated in the contract if this intention otherwise appears with clarity. See, e. g., Auto Owners Mut. Ins. Co. v. Northern Ind. Pub. Serv. Co., 414 F. 2d 192 (C. A. 7th Cir. 1969); Eastern Gas & Fuel Associates v. Midwest-Raleigh, Inc.. 374 F. 2d 451 (C. A. 4th Cir. 1967); Unitec Corp. v. Beatty Safway Scaffold Co., 358 F. 2d 470 (C. A. 9th Cir. 1966); Batson-Cook Co. v. Industrial Steel Erectors, 257 F. 2d 410 (C. A. 5th Cir. 1958).
Several earlier eases declared clauses that purported to indemnify for the indemnitee’s negligence void as contrary to public policy. See, e. g., Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, 62 N. E. 763 (1902); Johnson’s Administratrix v. Richmond & D. R. Co., 86 Va. 975, 11 S. E. 829 (1890). See also Bisso v. Inland Waterways Corp., 349 U. S. 85 (1955); Otis Elevator Co. v. Maryland Cos. Co., 95 Colo. 99, 33 P. 2d 974 (1934).
An example of an indemnification clause that makes specific reference to the effect of the negligence of the indemnitee is the following recommendation of the American Institute of Architects:
"4.18. INDEMNIFICATION
“4.18.1. The Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder." AIA Document A 201, Sept. 1967.
We specifically decline to hold that a clause that is intended to encompass indemnification for the indemnitee’s negligence must include an “indemnify and hold harmless” clause or that it must explicitly state that indemnification extends to injuries occasioned by the indemnitee’s negligence. Thus, contrary to the view apparently adopted in the dissenting opinion, we assign no talismanic significance to the absence of a “hold harmless” clause. Our approach is, in this respect, consistent with American Stevedores, Inc. v. Porello, 330 U. S., at 457-458. Contract interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties’ intention. Consequently, we hold only that, in this case, the clause that provides that Seckinger will be responsible for all damages resulting from its negligence is insufficiently broad to encompass responsibility for injuries resulting from the negligence of the Government. And, of course, the Government is entitled to no recovery unless it establishes that Seckinger was negligent. Thus the dissenting opinion mischaracterizes the scope of our holding when it states that Seckinger must “reimburse the Government for losses it incurs resulting from its negligence.”
See, e. g., United States v. Haskin, 395 F. 2d 503 (C. A. 10th Cir. 1968); Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967); Shamrock Towing Co. v. City of New York, 16 F. 2d 199 (C. A. 2d Cir. 1926); Williams v. Midland Constructors, 221 F. Supp. 400 (D. C. E. D. Ark. 1963); City of Beaumont v. Graham, 441 S. W. 2d 829 (Tex. 1969); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969).
An employer’s liability for injuries suffered by his employees to which his negligence partially contributed varies from jurisdiction to jurisdiction. In the absence of workmen's compensation statutes, the employer and the third-party tortfeasor would be jointly and severally liable, under traditional principles, for the injuries produced. In a majority of jurisdictions, contribution or indemnity is available either by statute or common law, as a device for the redistribution of the burden among the joint tortfeasors. See generally W. Prosser, Law of Torts §§ 47, 48 (3d ed. 1964). In 1956, when Seckinger’s employee was injured, South Carolina law was unclear in this respect, apparently permitting contribution or indemnity under some circumstances. See generally Comment, Indemnity Among Joint Tort-Feasors — As Affected by the Federal Employers Liability Act, 17 S. C. L. Rev. 423 (1965).
Workmen’s compensation provisions, now enacted in all States, have considerable effect on the employer’s potential liability to the third-party tortfeasor. However, these statutes vary greatly in the categories of employers and employees to which they apply, see generally, A. Reede, Adequacy of Workmen’s Compensation (1947), and even today about two-thirds of the statutes provide that coverage is voluntary as to both employers and employees. 2 A. Larson, The Law of Workmen’s Compensation § 67.10 (1969).
When a workmen’s compensation plan does cover particular employers and employees, a third-party suit against an employer who was also negligent is barred by the majority rule, although recovery is not infrequently permitted on implied or quasi-contractual theories. See, e. g., Associated Engineers, Inc. v. Job, 370 F. 2d 633, 651 (C. A. 8th Cir. 1966); 2 A. Larson, supra, §§ 76.00-76.53. Whether such a suit is permitted under South Carolina law apparently has not been authoritatively determined. See generally Burns v. Carolina Power & Light Co., 88 F. Supp. 769 (D. C. E. D. S. C. 1950).
A number of courts have reached comparable results. See, e. g., Brogdon v. Southern R. Co., 384 F. 2d 220 (C. A. 6th Cir. 1967); Williams v. Midland Constructors, 221 F. Supp. 400 (D. C. E. D. Ark. 1963); C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337 (1953), after remand, 227 Ark. 321, 299 S. W. 2d 67 (1957); Young v. Anaconda American Brass Co., 43 Wis. 2d 36, 168 N. W. 2d 112 (1969). See also United States v. Raskin, 395 F. 2d 503 (C. A. 10th Cir. 1968); Shamrock Towing Co. v. City of New York, 16 F. 2d 199 (C. A. 2d Cir. 1926).
While it is true that the interpretation adopted by the Court of Appeals is even less favorable to the Government than that which we adopt, we have concluded, for reasons previously stated, that the Court of Appeals' view would drain the clause of any significant meaning and is decidedly contrary to its plain language.
A 1941 letter from the Comptroller General, 21 Comp. Gen. 149, relied upon in dissent, sheds no light whatever on the problem of contract construction before us. There the Comptroller General, in commenting upon a question that he said was “of first impression” suggested that, under some circumstances, a contractor under a cost-plus-fixed-fee contract may seek reimbursement from the Government, as an element of his actual costs, for damages that he sustained by reason of his negligence. Since the contract clause in question was introduced long before the 1941 letter, it obviously was not responsive to any issues raised by the Comptroller. Moreover, we deal in this case with a fixed-price construction contract, a type of contract with which the Comptroller General was in no way concerned. Thus, no support is provided for the facile assumption of the dissent that, merely because a cost-plus contractor may arguably seek reimbursement for additional costs produced by his own negligence, it follows that a contractor committed to complete a project for a fixed price also may seek reimbursement because of damage caused by his own negligent acts.
We agree with the dissenting opinion that the contract clause does mean exactly what it says. What it says is that Seckinger shall be “responsible for all damages” arising from its negligence, that is, that the burden of Seckinger’s negligence may not be shifted to the United States. To be sure, the clause bars any attempt by Seckinger to obtain reimbursement from the Government for Seck-inger’s negligence. But an interpretation that limited the operation of the clause to this narrow situation would constitute an impermissible frustration of the contractual scheme, for such a construction would shift the burden of Seckinger’s negligence to the United States through the medium of a recovery against the Government by the injured employee. The contractual objective — that liability for the contractor’s negligence not be shifted to the United States — can be achieved in cases of concurrent negligence when there has been a prior recovery against the Government only by resort to the comparative negligence analysis that we have adopted, which requires Seckinger to indemnify the Government, but only to the extent that the Government was called upon, in the first instance, to respond in damages as a result of Seckinger’s negligence. 22
Because we have taken the view that the rights and liabilities of Seckinger and the United States inter se are governed by contract, we need not reach the Government’s alternative theory, rejected by the Court of Appeals, that Seckinger breached an implied warranty of workmanlike service.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_usc1sect
|
1983
|
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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Garnet VINSON, Appellant, v. RICHMOND POLICE DEPT., and Richmond Commonwealth Attorney, etc., Appellees.
No. 77-1153.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1977.
Decided Dec. 12, 1977.
George W. Warren IV, Richmond, Va., for appellant.
Thomas D. Stokes III, Richmond, Va. (Browder, Russell, Little, Morris & Butcher; Stacy F. Garrett III, Deputy Commonwealth’s Atty. for the City of Richmond and Aubrey M. Davis, Jr., Commonwealth’s Atty., Richmond, Va., on brief), for appel-lees.
Before RUSSELL and HALL, Circuit Judges, and THOMSEN, District Judge.
Sitting by Designation.
DONALD RUSSELL, Circuit Judge:
This is a pro se § 1983, 28 U.S.C., action. The district court dismissed the action as barred by the applicable Virginia statute of limitation, as established by us in Almond v. Kent (4th Cir. 1972) 459 F.2d 200, 204, for § 1983 actions. On appeal we find it unnecessary to consider this ground, which is one of defense, because it is clear on the face of the complaint itself that the cause of action as against the named defendants is without merit. We accordingly affirm the judgment for the defendants, but on grounds different from those assigned by the district court.
The only defendants named in the complaint are the Richmond Police Department and the Richmond Commonwealth Attorney. It is, however, settled that the Police Department of the City of Richmond, Virginia, is not a person within the purview of § 1983 and is not suable thereunder. The complaint does not suggest any personal involvement of the Commonwealth Attorney in the allegedly illegal taking of which plaintiff complains; in the absence of such personal involvement, the Commonwealth Attorney is not liable under § 1983. Moreover, a public prosecutor such as the Commonwealth Attorney, enjoys an immunity for any actions taken in his prosecuto-rial role. Since neither party defendant can thus be sued or found liable under § 1983, as shown on the face of the complaint itself, the district court properly dismissed the action.
The plaintiff, of course, might sue personally those police officers who were involved in the allegedly illegal taking either under § 1983 or under state law. Under such circumstances, we might be inclined, since the plaintiff is proceeding pro se, to remand to permit an amendment by the plaintiff to bring in as parties-defendant the actual officers involved in the allegedly illegal taking against whom plaintiff might have an action. This would, however, be fruitless in this case since, under the application of Almond v. Kent, supra, any action under § 1983 against such officers would plainly be barred by the appropriate Virginia statute of limitations. This conclusion follows from the oft-stated principle that when new parties-defendant are added by amendment, the commencement of the action as against such defendants, for purposes of assessing the bar of the statute of limitations, does not relate back to the initial filing of the action but is governed by the date of the amendment itself.
The judgment of the district court dismissing this action is accordingly affirmed.
. Plaintiff was represented by court-appointed counsel on appeal.
. The two-year period allowed by the Virginia statute of limitations for the institution of an action under § 1983 for the allegedly unconstitutional taking expired on June 19, 1976. June 19 was, however, a Saturday and both under Rule 6(a), F.R.C.P., 28 U.S.C., and under § 1.13.3:1, Code of Virginia, time was extended for the filing of the action to the “next day that is not a Saturday, Sunday or legal holiday.” Irrespective of whether the federal or state rule controls, unquestionably then the filing of his complaint on Monday, June 21, 1976, would have been in time. Plaintiffs complaint was received in the Clerk’s office on June 21, which would normally have been within time. The plaintiff, however, sought to proceed pro forma pauperis under § 1915, 28 U.S.C., and it was argued that, in such circumstances, the action was not to be considered filed until the court had entered its order permitting the action to proceed pro forma pauperis. The district judge did not enter his order allowing the action to proceed pro forma pauperis until August 17, 1976 and, because this was beyond two years from the commission of the “constitutional test,” the action was found to be barred. We are not prepared to accept this construction of the application of § 1915. Under a more reasonable construction the approval of the application to proceed pro forma pauperis, when entered, would relate back to the date when the plaintiff filed his action with the clerk, accompanied by an appropriate application to proceed pro forma pauperis. We, however, find it unnecessary to pursue this question in view of our conclusion that the complaint shows on its face the absence of any liability on the part of the only named defendants.
. Specifically, with respect to a municipal police department, see Henschel v. Worcester Police Department, Worcester, Massachusetts (1st Cir. 1971) 445 F.2d 624; United States ex rel. Lee v. People of State of Illinois, City of Chicago Police Department (7th Cir. 1965) 343 F.2d 120. A municipality, of which the police department is an integral part, has been repeatedly declared not to be a “person” within § 1983. Bishop v. Wood (1976) 426 U.S. 341, 343, n. 1, 96 S.Ct. 2074, 48 L.Ed.2d 684; City of Charlotte v. Firefighters (1976) 426 U.S. 283, 284, n. 1, 96 S.Ct. 2036, 48 L.Ed.2d 636; City of Kenosha v. Bruno (1973) 412 U.S. 507, 511-514, 93 S.Ct. 2222, 37 L.Ed.2d 109; cf., Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976), and Note, Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1191-7 (1977).
. Rizzo v. Goode (1976) 423 U.S. 362, 372-3, 96 S.Ct. 598, 46 L.Ed.2d 561; Bennett v. Gravelle (D.Md.1971) 323 F.Supp. 203, 211, aff’d 4 Cir., 451 F.2d 1011, cert dismissed 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692; Milton v. Nelson (9th Cir. 1976) 527 F.2d 1158, 1159 (involving as here, alleged confiscation of property by officers); Buck v. Board of Elections of City of New York (2d Cir. 1976) 536 F.2d 522, 524; Ford v. Byrd (5th Cir. 1976) 544 F.2d 194, 195; Hampton v. Holmesburg Prison Officials (3d Cir. 1976) 546 F.2d 1077, 1081-82; Dyson v. Lavery (E.D.Va.1976) 417 F.Supp. 103, 109.
As summarized in the dissenting opinion, Rizzo established that “a state official is not subject to the strictures of 42 U.S.C. § 1983 unless he directs the deprivation of constitutional rights.” (Italics added.) 423 U.S. at 384, 96 S.Ct. at 610. See, also, Note, Rizzo v. Goode: Federal Remedies for Police Misconduct, 62 Va.L.Rev. 1259 at 1274 and 1276 (1976).
. Imbler v. Pachtman (1976) 424 U.S. 409, 420-21, 96 S.Ct. 984, 47 L.Ed.2d 128; McCray v. State of Maryland (4th Cir. 1972) 456 F.2d 1, 3-4; cf., Briggs v. Goodwin (D.C.Cir.1977) 569 F.2d 1 (decided 9/21/77).
In Note, Section 1983 and Federalism, supra, at 1199-1200, the editor states;
“ * * * It is well established that state judges, legislators, and prosecutors enjoy an absolute immunity from section 1983 liability for damages. * * *
“Though nominally absolute, these immunities are not without exceptions. To be completely protected, the defendant’s challenged conduct must have occurred in the performance of his official functions. But the exceptions do not undermine the immunities in any significant way, with the result that individuals suffering a constitutional violation at the hands of legislators, judges, and prosecutors are generally foreclosed from any recovery, no matter how malicious the underlying conduct.”
. In Almond v. Kent, supra, 459 F.2d at 204, we declared that the Virginia two-year statute of limitation for “actionfs] for personal injuries” applied to any action asserting “rights which may be redressed under § 1983 by the recovery of money damages,” since “[i]n the broad sense, every cause of action under § 1983 which is well-founded results from ‘personal injuries.’ ”
. Anderson v. Papillion (5th Cir. 1971) 445 F.2d 841, 842; Butler v. Sinn (3d Cir. 1970) 423 F.2d 1116, 1118; Evans v. United States Veterans Admin. Hospital (2d Cir. 1968) 391 F.2d 261, 262, cert, denied 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589; Chladek v. Sterns Transp. Co. (E.D.Pa.1977) 427 F.Supp. 270, 275-6.
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 42? Answer with a number.
Answer:
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songer_casetyp1_7-3-1
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G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
METROPOLITAN DEVICE CORPORATION v. CLEVELAND ELECTRIC ILLUMINATING CO.
Circuit Court of Appeals, Sixth Circuit.
December 6, 1929.
No. 5132.
D. Anthony Usina, of New York City (Richey & Watts, of Cleveland, Ohio, and Benjamin T. Rauber, of New York City, on the brief), for appellant.
John B. Hull, of Cleveland, Ohio (Chas. E. Brock and Hull, Brock & West, all of Cleveland, Ohio, on the brief), for appellee.
Before DENISON, MOORMAN, and HICKS, Circuit Judges.
HICKS, Circuit Judge.
Suit for infringement of claims Nos. 3 and 4 of Torchio Patent No. 1,172,322, granted February 22, 1916, for a protective device for eleetrie cable joints. The defenses were: (1) Lack of invention; (2) anticipation; and (3) noninfringement. The bill was dismissed for lack of invention. The court disregarded a disclaimer filed four days before the trial. We think it should have been permitted. That portion of the disclaimer disapproved is as follows: “ * * * And except as to insulating liquid which is fluid at ordinary working temperatures of such cables and in quantify sufficient to supply at all times the demands by the cable in use, and by the joint.”
The criticism of the District Judge was that the limitation sought affected the quality and quantity of the insulating liquid, and from his viewpoint the specifications said nothing concerning either. We cannot yield thereto. We think the disclaimer may without violence readily stand upon the following descriptive matter in the specification, to wit: “I fill the sleeve and the reservoir with any suitable insulating oil or other liquid which is fluid at low temperature and preferably of a character which will combine with the material used in the body of the cable for permeating or imbedding the insulating wrappings. This liquid I preferably force into the sleeve 8 under pressure sufficient to drive it in the interstices of the cable ends and into the joint wrappings and fillings. When the introduction of the liquid is complete I permit it to All the reservoir 10 which is finally closed. The oil in the reservoir then serves to supply any deficiency in the sleeve caused by absorption and breathing of the cable or the disturbance of the conductors carrying sudden overload currents, so that the joint insulation is not only thoroughly permeated at the outset but continues submerged in a bath of insulating oil.” Again: “It is to be observed that the insulating fluid not only permeates the wrappings and fillings at the joint but also percolates into the insulation of the cable ends exposed in order to make the joint. This is of practical importance, because it often happens that during the making of the joint, the exposure of said ends permits of the permeating liquid used in the original manufacture of the cable to ‘bleed’ or run out and a consequent failure of insulation at these points ensues. This I have found to be the cause of breakdowns which were apparently unaccountable. The new fluid put into the joint sleeve supplies this loss and effectually prevents difficulty.”
The specifications fairly set forth the quality of the insulating compound. It is: “Fluid at low temperature.” Any liquid, fluid at low temperature, is necessarily “fluid at ordinary working temperatures,” and the disclaimer therefore sets up no new claim as to quality. The same is true as to the quantity of the liquid and the purpose of its use, to wit: “Quantity sufficient to supply at all times the demands made by the cable in use and by the joint.” The specifications fairly call for a quantity sufficient to fill the sleeve and the supplying reservoir so that the joint insulation shall not only be continuously submerged in the oil, but that the amount drawn from the sleeve by the absorption and breathing of the cable shall be correspondingly restored to the sleeve from the reservoir.
The record carries no suggestion of any intent to broaden the claims beyond the specification (tit. 35, § 65, U. S. C. [35 US CA § 65]), or any idea of obtaining the benefit of a reissue. We think the effect of the disclaimer is to clear up an awkwardly worded, and therefore a somewhat ambiguous, description in the specification. See Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 436, 22 S. Ct. 698, 46 L. Ed. 968; Simplex Ry. Appliance Co. v. Pressed Steel Car Co. (C. C. A.) 189 F. 70, 72. We also think that the disclaimer was not unreasonably delayed. As stated in Sessions v. Romadka, 145 U. S. 29, 12 S. Ct. 799, 801, 36 L. Ed. 609: “The power to disclaim is a beneficial one, and ought not to be denied except where it is resorted to for a fraudulent and deceptive purpose.” In Excelsior Furnace Co. v. Williamson Heater Co., 269 F. 614, 619 (C. C. A. 6), the disclaimer was! allowed after decision on appeal. See, also, N. O. Nelson Mfg. Co. v. F. E. Meyers & Bro. Co., 29 F.(2d) 968, 969 (C. C. A. 6). The view we take is that the matter of disclaimer was within the discretion of the patentee to be reasonably exercised — “a matter of policy” — [Permutit Co. v. Wadham, 13 F.(2d) 454, 457 (C. C. A. 6)], and we think there was sufficient doubt as to whether claims 3 and 4, as originally written, were anticipated to justify the seeming delay. Walker on Patents (2d Ed.) § 255.
As to invention: The necessity therefor was great. In high voltage cables, i. e., cables carrying in excess of 15,000 volts, the dielectric loss from faulty insulation, with the resultant destruction of the wrappings of the cable and the breaking down of the joints, was serious. Torehio discovered that this loss was due in part to the “bleeding” of the insulating compound from the exposed cable ends during installation. He also discovered that the cable “breathed” or “sueked,” that is, that while in use the heat expanded it and that it correspondingly contracted while cooling; that this bleeding and expansion of the cable forced the insulating compound from the interstices of the pervious insulating wrappings and fillings, permitting dielectric loss and' structural damage. The problem was to restore this lost insulation:. The teaching had been that the insulating compound in the joint should not be soft enough to flow. The thought was that the compound should not be permitted to escape and leave the joint unprotected. Torehio substituted a liquid insulating compound for the compound with a low melting point theretofore in use in the cable sleeve. Torehio’s liquid compound would and did, especially under pressure, flow ¡along the cable length between the conductors and the leaden sheath and refill the empty cells of the pervious insulation. This was new and useful and was a commercial success. It was not a mere refinement of the former method; it was a reversal of it. We think it was somewhat beyond the skill of an expert and amounted to patentable invention. Gear Grinding Mach. Co. v. Studebaker Corp., 270 F. 934, 935 (C. C. A. 6).
Nor was plaintiff’s invention anticipated by the prior art. The cable, the insulating compound, the sleeve with its soldered joint, and possibly the cable joint construction, were all old, but they were not old in combination. In the new combination they produced a new result and therefore were not anticipated. Webster Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Detroit Carrier & Mfg. Co. v. Dodge Bros., 33 F. (2d) 743, 747 (C. C. A. 6); Michigan Carton Co. v. Sutherland Co., 29 F.(2d) 179, 183 (C. C. A. 6); Ferro Concrete Constr. Co. v. Concrete Steel Co., 206 F. 666, 669 (C. C. A. 6); Kellogg Switchboard & Supply Co. v. Dean Elec. Co., 182 F. 991, 998 (C. C. A. 6).
We have examined the prior art references, but review here only those discussed in defendant’s brief:
First. The Brooks-Hunt group — United States patents to Brooks, No. 165,535 and No. 23 0,986, respectively, and the British patent to Hunt, No. 4828, communicated from Brooks. These at least approach a nonanalogous art. They do not deal with the modem high voltage cable. They are concerned only with low voltage telegraph wires separately insulated and drawn through iron pipes. They were abandoned as useless long before the advent of the unitary cable with the leaden sheath.
Second. British patent No. 31,932 to Abel. This does not involve such a cable as does Torehio. It deals with a cable composed of a central conductor and concentric conductors insulated from each other and with the manner of joining the conductors at the cable ends and when so joined then with joining similar cable ends. The insulating fluid in the sleeve does not contact with the joints. They are protected by impervious caoutchouc.
Third. British patent to Ferranti, No. 16,237. This discloses a conductor composed of concentric metal tubes. It in no sense deals with joint construction.
Fourth. British patent to Watson, No. 29,756. The District'Judge had substantial basis for doubting whether Watson was prior to Torehio. But, independent thereof, it is clear that the Watson patent does not anticipate even if earlier. It discloses a cable in which the conductors are helically wound in paper wrapped twine, thus forming continuous ducts or channels for the insulating liquid throughout the cable length. It does not disclose joint construction or joint insulation or teach the method of uniting the joint box or sleeve with the cable.
Infringement. The question of infringement is not difficult. • The striking similarity of the devices as illustrated by the drawings and description of defendant’s joint as defined in plaintiff’s exhibit 7 is conclusive upon the matter of construction. The defense that the viscosity of the insulating compound used, in defendant’s joint prevents it from oozing or flowing into and through the cable is not persuasive, in view of defendant’s admission that this compound, normally of the consistency of vaseline or jelly, did, under stress, escape from the reservoirs to the extent of collapsing them, and that for a time it was necessary to periodically refill the joints. Defendant advances no explanation of what had become of the lost compound. There is none, except that the working temperature of the cable heated it and the combined action of the pressure from the reservoir and the "breathing” or “sucking” of the cable during contraction drew it into the cable length. The word “fluid” is not necessarily to be defined with the extreme meaning permitted by the dictionary. Such words are to be given a reasonable interpretation in view of the association. Clipper Belt Lacer Co. v. E-W Co., 237 F. 602, 605 (C. C. A. 6); Farrington v. Haywood (C. C. A.) 35 F.(2d) 628, decided November 13, 1929.
Finally, upon the above views, we conclude that the Torchio patent, No. 1,172,322, was valid and infringed, and the decree is therefore reversed, with directions to enter a new decree in accordance with this opinion.
“3. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, and an insulating fluid adapted to permeate said pervious body contained in the space between said body and said sleeve.”
“4. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, a receptacle communicating with the interior of said sleeve, and an insulating fluid adapted to permeate said pervious body contained in said receptacle and the space between said body and said sleeve.”
“No. 1,172,32¡2. — Philip Torehio, New Xork, N. X. Protective Device for Electric-Cable Joints. Patent dated February 22, 1916. Disclaimer filed February 11, 1927, by the assignee, Thomas E. Murray.
“Hereby makes disclaimer of the improvement described except for electric cables, which comprise a line conductor, insulating wrappings permeated with insulating compound and a sheath of flexible inelastic metal constituting a unitary product of manufacture and commerce which is portable and capable of being drawn through conduits; and except as to an insulating liquid Which is fluid at ordinary working temperatures of such cables and in quantity sufficient to supply at all times the demands made by the cable in use, and by the joint.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
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songer_circuit
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J
|
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.
Jessie E. MEIL, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, Defendant-Appellant.
No. 80-1477.
United States Court of Appeals, Tenth Circuit.
Argued July 16, 1981.
Decided Sept. 11, 1981.
Gerald Anderson (Ira Watrous of Watrous, Joyce & Ryan, Houston, Tex., and Elizabeth E. Whitefield, Albuquerque, N. M., with him on the brief), for plaintiff-appellee.
W. R. Logan, Albuquerque, N. M. (C. LeRoy Hansen, Civerolo, Hansen & Wolf, P. A., Albuquerque, N. M., with him on the briefs), for defendant-appellant.
Before LOGAN and BREITENSTEIN, Circuit Judges, and BROWN, United States District Judge for the District of Kansas.
Honorable Wesley E. Brown, Senior Judge, United States District Court for the District of Kansas, sitting by designation.
BREITENSTEIN, Circuit Judge.
This is a product liability case with jurisdiction based on diversity. The plaintiff was injured when the Piper plane, which he was piloting to spray crops, crashed in New Mexico after striking a steel cable static line. The- case was tried on theories of both strict liability and negligence. Judgment of $840,000 was entered on a general jury verdict. The appeal is based on insufficiency of the evidence and alleged improper instructions. We affirm.
Crop spraying, or dusting, is the dissemination of chemicals from an airplane flying over fields at low altitudes. It is a dangerous occupation requiring routine precautions. Plaintiff-appellee alleged that defendant-appellant, Piper Aircraft Corp., negligently designed, manufactured, and assembled the aircraft which was unsafe to operate and was not crashworthy. On this appeal Piper does not challenge either the absence of a finding that plaintiff was contributorily negligent or that the proof of damage was insufficient.
The crash occurred on July 7, 1976, while plaintiff, an experienced agricultural pilot, was spraying parathion, a liquid insecticide, on cropland. The plane hit and broke a steel static cable which connected poles supporting electrical transmission lines. The contact point between the plane and the cable was a cutter blade attached to a landing gear strut of the plane. The purpose of the cutter blade was to cut wires which might be struck in flight. The cable was broken rather than cut.
The plane landed upside down and the plaintiff was suspended by the seat belt. The rescuers were unable to unfasten the seat belt and had to cut it to release the pilot. The engine of the plane caught on fire and the flames went along the fuel lines to the fuel header tank located under the cockpit. The insecticide was released from the fiberglass hopper in which it was carried. The fire extinguisher, which was attached to the frame of the plane, broke loose and could not be operated. The plaintiff was burned and covered with insecticide. He received both orthopedic and burn injuries with respiratory complications.
Applicable New Mexico law is controlling. The plaintiff claimed both strict liability and negligence in design, manufacture, assembly, and failure to provide a restraint system which would release the pilot after the crash. On strict liability New Mexico had adopted and applied Restatement, Second, Torts, § 402 A. Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732, 734. See also Moomey v. Massey Ferguson, Inc., 10 Cir., 429 F.2d 1184, 1186. Section 402 A imposes liability on the seller of a product “in a defective condition unreasonably dangerous to the user.” We have held that both “defective condition” and “unreasonably dangerous” must be established. Bruce v. Martin-Marietta Corp., 10 Cir., 544 F.2d 442, 447. Piper sold the plane about a year before the crash. No showing is made on non-compliance with federal air safety regulations. Proof of injuries in an airplane crash does not prove, or raise a presumption of, defective design. Id. at 448. The negligence claim is based on the failure to use ordinary care in the design, manufacture and sale of the product.
A distinction must be made between the crash and the crashworthiness of the plane to prevent enhancement of the injuries. Plaintiff says that the plane crashed because of the failure of the cutter to sever the static cable. He also says that his injuries were enhanced by the defective seat belt which would not unfasten, the fuel system which permitted the fire to spread, the bursting of the hopper which contained the insecticide, and failure of the support to the fire extinguisher which caused it to be inoperable.
Without objection by either party to the form of verdict, the jury returned a general verdict in favor of the plaintiff. We do not know whether the jury was so persuaded by one or all of the plaintiff’s claims. The court denied the defendant’s motion to dismiss on the ground of evidence insufficiency. In the circumstances, we must consider each claim.
Piper argues that it was entitled to a directed verdict on the issue of whether defective cutter blades proximately caused the crash. It says that plaintiff was required to, and did not, prove that an alternative safer design was available and should have been used. See Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322, 1327. Plaintiff counters with the argument that a prima facie case is made by showing a safety defect which failed to meet the reasonable expectations of an ordinary customer. See Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 451. New Mexico has not defined the elements for proof of strict liability for design defect and it is uncertain whether New Mexico would require proof that an alternative safer design was available in order to impose liability. Even if it be assumed that New Mexico would require a showing the cutter blades should have been capable of cutting the static cable and permitting the plane to keep on flying, the record satisfies that requirement.
An expert metallurgist testified for the plaintiff that cutter blades should have a hardness of 55-65 on the Rockwell scale of C and the blades on the crashed Piper had a hardness of only 20 on that scále. He said that the metal used by Piper was unacceptable as a cutter blade and could not cut the cable which had a hardness of 43 on the C scale. Upon contact the cutter blade would act as an impacting rather than cutting device. This testimony was consistent with that of other witnesses who said that the cable was broken and not cut. The metallurgist also testified to the availability of other harder metals which would have cut through the cable. Pilots of crop spraying planes said that they had struck and severed wires, and continued to fly. Although no pilot testified to hitting a cable similar to that present in this crash, one pilot said that from his experience, which included contact with wires, he would expect a plane outfitted with cutter blades to fly through the cable. Through various experts, none of whom were agricultural pilots, Piper introduced contrary evidence.
In ruling on a defense motion for directed verdict, the court is required to make every reasonable inference from the plaintiff’s evidence. See Wylie v. Ford Motor Co., 10 Cir., 502 F.2d 1292, 1294. From the expert testimony on the softness of the Piper cutter blades and the testimony of the agricultural pilots it could be reasonably inferred that the plane would not have crashed had it been equipped with proper cutter blades.
Plaintiff’s remaining claims go to the crashworthiness of the plane. To recover on this ground plaintiff must show that the claimed defect enhanced the injuries received from the original crash. Fox v. Ford Motor Co., 10 Cir., 575 F.2d 774, 786-787. Defendant asserts that as to the crashworthy claims plaintiff did not prove alternative safer designs or enhanced injuries.
The first claim is based on an alleged defective seat belt. Plaintiff was wearing the seat belt when the plane crashed. When the plane overturned he was suspended upside down. Plaintiff testified that he tried unsuccessfully to undo the seat belt buckle. The rescuer said that he was familiar with seat belt buckles, including the type used on the crashed plane, that he was unable to release the buckle, and finally had to cut the strap with a knife.
An aeronautical expert testified that another type of buckle provided more leverage. This evidence plus that of the rescuer sufficed to justify a reasonable inference that the seat belt was defective. The record shows that plaintiff suffered extensive burns while he was trapped by the inoperative seat belt. The enhanced injuries which he received do not have to be quantified. The medical evidence of the extent of the burns was enough.
The next claim relates to the fiberglass hopper which contained the insecticide. An aeronautical expert for plaintiff testified that available neopreme and stainless steel tanks would remain intact after the crash. Plaintiff was covered with the released chemical, the toxic nature of which is not contested. Rescuers of plaintiff suffered nausea and breathing problems. The doctor who examined plaintiff when he was brought to the hospital testified to the respiratory problems of plaintiff. The evidence shows an alternative safer design and enhanced injuries and supports the denial of the motion for a directed verdict and the verdict of the jury.
The next claim relates to the fuel header tank which was positioned below the feet of the pilot when he was seated in the cockpit. This tank received gasoline from the wing tanks and fed it to the engine. Evidence showed that the fire began in the engine and spread along the fuel line to the header tank. A plaintiffs witness, who was an expert aeronautical engineer, testified that the design was faulty and that another design would have prevented the engine fire from spreading. Enhancement of injuries by severe burns was established. The evidence was sufficient to sustain the actions of both the court and the jury.
The first two arrivals at the accident scene were unable to extinguish the engine fire. The plane’s fire extinguisher was held in place by two brackets, one of which broke in the crash, and the extinguisher was thrown loose from the plane. The bracket which broke was of much softer metal than the one which remained intact. The rescuers could not make the extinguisher work and the flames spread. An expert testified that the fire would not have spread if the bracket had not broken and rendered the extinguisher inoperative. The record sustains a finding of both faulty design and enhanced injury.
The court instructed the jury on res ipsa loquitur. After defining the phrase the court said: “The plaintiff relies upon this doctrine to prove that the claimed defective conditions of the product existed at the time the product was supplied to the defendant, and that the defective condition was the result of failure to use ordinary care.” Plaintiff’s claims were based on strict tort liability and negligence. The court had previously defined ordinary care. Res ipsa is available in a products case brought under a negligence theory. Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 278 P.2d 575, 578.
During the pendency of this appeal the New Mexico Supreme Court adopted a jury instruction which said that res ipsa was not applicable when liability is claimed solely on the basis of inadequate warning or design. Even if this instruction should be given retrospective effect, it is not proper in a case such as this where the plaintiff charges negligent manufacture and assembly as well as design flaws. The airplane was in the possession of Piper until sold about a year before the accident. No claim is made of any alteration or change in the plane. The instruction was applicable to the negligence claims and was proper.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_geniss
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G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
RAMBO et al. v. UNITED STATES.
No. 9361.
Circuit Court of Appeals, Fifth Circuit.
Feb. 19, 1941.
George C. Spence, of Atlanta, Ga., for appellants.
Francis Hoague, Atty., Dept. of Justice, and Norman M. Littell, Asst. Atty. Gen., both of Washington, D. C., Lawrence S. Camp, U. S. Atty., and Harvey H. Tysinger, Asst. U. S. Atty., both of Atlanta, Ga., and Erwin Sibley, Sp. Atty., Dept. of Justice, of Milledgeville, Ga., for appellee.
Before FOSTER, HOLMES, and Mc-CORD, Circuit Judges.
McCORD, Circuit Judge.
Suit was originally brought by the United States to condemn eight parcels of land in Cobb County, Georgia, for a National Memorial Military Park under the provisions of Sec. 2 of the Act of June 26, 1935, c. 315, 49 Stat. 423, 16 U.S.C.A. § 430u. The petition of the government named as defendants Kennesaw Mountain Battlefield Association, a corporation whose charter had been forfeited for nonpayment of taxes; the receivers of the corporation appointed by the Superior Court of Cobb County, Georgia; the former president of the corporation, certain named bondholders, the trustee for all bondholders, and many other persons. The court ordered that a copy of the petition be served upon the defendants and that notice of the proceeding be published in the Marietta Journal, a newspaper published in Cobb County, Georgia. After a trial before a jury, judgment for $16,000 was entered as an award of just compensation for the lands condemned. On appeal this court affirmed the judgment of the District Court, United States v. Kennesaw Mountain Battlefield Ass’n, 5 Cir., 99 F.2d 830, and the Supreme Court denied certiorari, 306 U.S. 646, 59 S.Ct. 587, 83 L.Ed. 1045.
After the mandate went down the $16,000 award was paid into the registry of the court, and on May 19, 1939, final judgment was entered vesting title to the property in the United States. After the money had been paid into court, but before it had been distributed, these appellants sought to come into the case by intervention. They claimed to own the fee-simple title to the property and sought to have the judgment and orders of the court set aside and to obtain a trial de novo to determine the value of the condemned lands. After a hearing the court declined to permit the intervention and dismissed the petition “on the grounds that it sets out no cause of action in law or equity, for relief sought”.
The appellants claim that they were the true owners of the fee-simple title to the lands because they had been stockholders and bondholders of Kennesaw Mountain Battlefield Association^ that the corporation’s charter had been forfeited and that they, as stockholders, became the owners of the assets of the corporation; that as bondholders they had acquired fee-simple title to the lands under what they term to be a decree of “strict foreclosure” in the state court; that they were never served with process or notice and were not represented in the proceedings; and that, therefore, the judgment condemning the property should be set aside.
In seeking to intervene the appellants do not allege or contend that they did not have knowledge of the condemnation proceedings when the government brought suit to condemn the land on May 26, 1936, and when it was seeking out the owners of the property. Although two of the interveners gave their addresses as Marietta, Georgia, where notice of the proceedings was published; and although they appear to be closely identified with the former president of the corporation, who appeared and took an active part in the proceedings, it appears that they sat by during the trial and waited until two appeals had been taken and judgment had been entered, and the award paid into court before they sought to assert their alleged rights. Petition for intervention was not filed until June, 1939.
We do not decide, but we are impressed with the argument that the interveners here were fully and fairly represented in the original suit filed by the government to condemn the lands in question. The state court receivers, who represented the Kennesaw Mountain Battlefield Association corporation, its stockholders, and its creditors, by direction of the court of .their appointment, participated in the condemnation case and there sought by every fair means to inform the court and jury of the value of the property. The receivers presented the' same evidence then that the interveners suggest now as to the valuation of the lands. Furthermore, the interveners were represented in the proceedings by the trustee for the bondholders, who held a deed of trust to the lands, and who was the party named in the state court decree which is now relied upon by the appellants as a decree of “strict foreclosure”. Not only were they represented but every right they claim and the relief they now seek was then litigated. They would relitigate issues which have already been settled. If, as they contend, the fee-simple title to the lands was in them, they may come in and share in the condemnation award which has been paid into the registry of the court and which now stands in the place of the lands. Cf. Cobo v. United States, 6 Cir., 94 F.2d 351; Coggleshall v. United States, 4 Cir., 95 F.2d 986; Credits Commutation Co. v. United States, 8 Cir., 91 F. 570; Id., 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782.
We do not pass upon the merits. We prefer to rest decision upon the proposition that the order denying appellants the right to intervene and dismissing their petition was within the sound discretion of the trial court. If we assume, as appellants contend, that they were the owners of the land and not represented in the suit, they have not been deprived of any rights they possess for the judgment in the condemnation case would not be binding as to them. Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782; Lupfer v. Carlton, 5 Cir., 64 F.2d 272; Burrow v. Citizen’s State Bank, 5 Cir., 74 F.2d 929; Stallings v. Conn, 5 Cir., 74 F.2d 189.
The order denying and dismissing the petition to intervene is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_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.
Patricia B. FEHRINGER and Vincent D. Fehringer, Appellants, v. BLUEBEARD’S CASTLE, INC.
No. 16896.
United States Court of Appeals Third Circuit.
Argued Feb. 2, 1968.
Decided May 24, 1968.
Thomas D. Ireland, Maas, Ireland & Bruno, Charlotte Amalie, St. Thomas, V. I., for appellants.
William W. Bailey, Bailey & Wood, Charlotte Amalie, St. Thomas, V. I., for appellee.
Before KALODNER, STALEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an appeal by the plaintiffs from a judgment of the District Court of the Virgin Islands, sitting without a jury, dismissing the complaint on the merits. The findings of fact state merely that the plaintiff fell on the steps of defendant’s establishment on the evening of April 30, 1965, and “That defendant was not negligent with respect to the aforesaid fall of plaintiff.” The plaintiffs urge that the court failed to follow the clear weight of the evidence, and request us to enter judgment in their favor.
Unfortunately, we cannot decide the merits of this appeal. The ultimate finding that defendant was not negligent is absolutely unsupported by any subsidiary finding of fact. Indeed, the paucity of findings, in disregard of the requirements of Rule 52(a) of the Federal Rules of Civil Procedure that findings of fact and conclusions of law be sufficient to indicate the bases of the trial court’s decision, precludes any intelligent review by this court.
Accordingly, the judgment of the district court will be vacated and the cause remanded to the district court with directions to make findings of fact and state conclusions of law in accordance with Rule 52(a) and to enter in accordance therewith a proper judgment.
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_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Josephine D. LOVATO, Appellant, v. UNITED STATES of America and Friedericka De Los Santos, Appellees.
No. 6702.
United States Court of Appeals Tenth Circuit.
Sept. 21, 1961.
Melvin L. Robins, Albuquerque, N. M. (Lorenzo A. Chavez and Arturo G. Ortega, Albuquerque, N. M., on the brief), for appellant.
Jack L. Love, Asst. U. S. Atty., Albuquerque, N. M. (John Quinn, U. S. Atty., Albuquerque, N. M., on the brief), for appellee United States of America.
Joseph J. Mullins, of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., for appellee Friedericka De Los Santos.
Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
The United States issued to Eleuterio De Los Santos a $10,000 National Service Life Insurance policy while he was a member of the armed forces of the United States. On the date of his death in July, 1957, the insured’s sister, Josephine D. Lovato, the plaintiff herein, was named as sole beneficiary of the policy in the designation filed with the Veterans Administration. After the designation of his sister as beneficiary, De Los Santos was married, and two children were bom as a result of this union. The Veterans Administration determined that the insured had effectuated a change of beneficiary of his insurance policy from his sister to his wife, Friedericka De Los Santos. The sister brought this action to recover the proceeds of the policy, and the widow was interpleaded. The trial court agreed with the Veterans Administration, and a judgment was entered awarding the proceeds of the policy to the widow. The sole question presented here is the sufficiency of the evidence to sustain the court’s finding that the insured had effectively changed the beneficiary of the policy.
This court has had numerous cases of this nature in which it has held that literal compliance with the technical requirements established by regulation for accomplishing a change of beneficiary is not essential, but it must be established that the insured not only intended to change the beneficiary, but performed some affirmative act to carry out that intention. Blair v. United States, 10 Cir., 260 F.2d 237; Littlefield v. Littlefield, 10 Cir., 194 F.2d 695; Boring v. United States, 10 Cir., 181 F.2d 931; Widney v. United States, 10 Cir., 178 F.2d 880; Collins v. United States, 10 Cir., 161 F.2d 64, certiorari denied 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866; Bradley v. United States, 10 Cir., 143 F. 2d 573, certiorari denied 323 U.S. 793, 65 S.Ct. 429, 89 L.Ed. 632.
The findings of the trial court are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a), 28 U.S. C.A.; Boring v. United States, supra; Widney v. United States, supra. A number of witnesses, including the insured’s wife, testified that the insured intended to change the beneficiary, and the evidence fully supports the court’s finding as to the insured’s intention. Intention, standing alone, however, is not sufficient to effectuate a change. The question remains as to whether the insured took the affirmative action to carry out his intention which is necessary to effectuate the change.
On June 17, 1956 the insured executed a Record of Emergency Data form, designated as “Form No. DD 93”. It is used to provide information as to the person to be notified in case of an emergency and also to designate the beneficiary of certain service connected benefits, including the beneficiary for the servicemen’s indemnity (Act of Apr. 25, 1951, ch. 39, 65 Stat. 33). This form included, in fine print, a statement that this designation did “not affect insurance (NSLI or USGLI) beneficiary designation.” The wife was designated as the beneficiary of the servicemen’s indemnity, and in the space providing for the share to be received, the figure “$10,-000” was inserted. The insured had no servicemen’s indemnity under the terms of the statute because he had in effect National Service Life Insurance in the amount of $10,000, and this figure could have reference only to his National Service Life Insurance. Bew v. United States, 4 Cir., 286 F.2d 570. There is an indication from the Veterans Administration files that Form Number DD 93, and its predecessor, AGO Form Number 41, were believed by some servicemen to be the proper form for changing the beneficiary in their National Service Life Insurance, and were used by them for that purpose. See Widney v. United States, supra.
In holding that the execution of an AGO Form 41 by the insured may constitute the positive or affirmative act necessary to accomplish a change of beneficiary, we said in Boring v. United States, supra [10 Cir., 181 F.2d 933]:
“Without exception, the courts have held that strict compliance with the regulations to effect a change in beneficiary by the soldier was not required, and that technicalities would be brushed aside in an effort to carry out the declared intent of the insured in this class of cases. See Bradley v. United States, supra [10 Cir., 143 F.2d 573],
“A number of cases have been before the courts in which Form AGO 41 was used to effectuate a change in beneficiary, and in all of them the courts have held that the execution of this form for this purpose was sufficient for a valid change of beneficiary, if executed with that purpose in mind.” (Footnote omitted. )
In Foster v. Winingham, 10 Cir., 169 F.2d 46, 47, it was said:
“Unless a controlling statutory provision or an effective regulation promulgated under statutory authority exacts otherwise, the intention and purpose of the insured should be given effect in a case of this kind involving the question whether his wife or this daughter is the beneficiary under a policy of National Service Life Insurance if it reasonably can be done. Narrow technicalities not contravening an applicable statutory provision or an effective regulation should be brushed aside in order to effectuate such intent and purpose. And substance rather than form should be the basis of decision. Bradley v. United States, 10 Cir., 143 F.2d 573, certiorari denied, Bradley v. Bradley, 323 U.S. 793, 65 S.Ct. 429, 89 L.Ed. 632; Mitchell v. United States, 5 Cir., 165 F.2d 758; McKewen v. McKewen, 5 Cir., 165 F.2d 761, certiorari denied, 334 U.S. 860, 68 S.Ct. 1530, [92 L.Ed. 1780].”
On this record we cannot say as a matter of law that the execution of Form Number DD 93 was not a sufficient affirmative act on the part of the insured to effectuate a change of beneficiary in insurance from his sister to his wife. The appellant relies on Blair v. United States, supra, as controlling in this case. It is, however, distinguishable on its facts. The affirmative act relied on in that case was a designation of beneficiary included in an Oath and Certificate of Enlistment executed upon re-enlistment when the National Service Life Insurance had not been in effect for over two years. Blair later made application for reinstatement of the policy but made no change in the beneficiary named in the policy. Further, the form in the Blair case was intended for purposes wholly unrelated to insurance. The form in this case was the proper form to be used in designating the beneficiary of a statutory substitute for National Service Life Insurance.
Affirmed.
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.
Benjamin STILLER et al., Defendants-Appellants, v. SQUEEZ-A-PURSE CORPORATION, Plaintiff-Appellee.
No. 14411.
United States Court of Appeals Sixth Circuit.
Nov. 28, 1961.
J. William Freeman, Akron, Ohio, for defendants-appellants, Albert R. Teare, Cleveland, Ohio, on the brief.
William R. Liberman, New York City, for plaintiff-appellee, Sanford Schnurmacher, Cleveland, Ohio, on the brief.
Before MARTIN and CECIL, Circuit Judges, and DARR, District Judge.
PER CURIAM.
After a former hearing of this patent suit, our court, on May 2, 1960, affirmed per curiam, the judgment of the United States District Court on the basis of that court’s memorandum opinion, published in 175 F.Supp. 667, 669. Squeez-A-Purse Corporation v. Stiller et al., 280 F.2d 424 (C.A. 6), certiorari denied 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56. In the opinion and order of the District Court, which we affirmed, it was recited that “it was conceded that Claim 3 of the Reissue Patent No. 24,166 was the only claim to be looked to in determining whether plaintiff is entitled to a declaratory judgment of invalidity and non-infringement.”
The patent in issue covered a coin purse comprised of a quick-opening and self-closing container, made of elastic properties similar to soft rubber, the envelope having relatively small depth and a substantially transverse normally closed slit in one face extending from one periphery to another and having, also, oppositely disposed through apertures, with the respective ends of the aforesaid slit being arched. The top of the arched-slit side had a curvature of less magnitude than the balance of the arched side, the slit face being substantially flat in the region of the slit.
The District Court stated that the patent is a product and not a method patent; and held that Claim 3 of the patent in suit constituted invention. The prior art was reviewed, with the adjudication that none of the earlier patents cited read on or disclosed the equivalents of “the elements and features” of the defendants’ purse.
The Memorandum Opinion and Order stated distinctly:
“Consideration of the evidence presented does not, in my opinion, result in the success of the plaintiff’s efforts to have declared invalid and non-infringed, the defendants’ purse.
“I find the defendants’ patent valid and infringed. [Italics supplied.]
“It follows that the defendants are not guilty of unfair competition and I so find and conclude. The defendants have every right to prevent infringement of their valid patent and are entitled to the relief sought in their counterclaim.”
The memorandum concluded with an order directing that “the complaint be dismissed; that the defendants be awarded judgment of validity and in-infringement on their counterclaim; and that an injunction and accounting be had as prayed, all at plaintiff’s costs.”
Within a week after the opinion and order of the District Judge was promulgated, the plaintiff, Squeez-A-Purse Corporation, filed a petition for rehearing and reconsideration in which it presented substantially all the contentions which plaintiff-appellee asserts upon this present hearing. Specifically, the appellee corporation alleged in its petition for reconsideration that the District Court should have rendered a proper decision on all the issues. The defendants-appellants, Stiller and others, submitted a memorandum in opposition to the plaintiff’s petition for rehearing and reconsideration, stating that the court had considered all issues presented by the complaint of the plaintiff; and that there actually had been specific findings upon every issue raised in the pleadings.
The United States District Judge sustained the defendants’ position; and, as previously stated, our court affirmed the judgment of the trial court on the basis of its memorandum opinion. We remanded the cause for further proceedings not inconsistent with our order. [280 F.2d 424, supra.]
Upon remand, the District Court entered judgment on August 17, 1960, ■wherein .quite material changes were made in its former judgment which had been affirmed -by this appellate court, with subsequent denial of certiorari by the Supreme Court. [364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56.] In its amended judgment, the District Court decreed that the complaint of the plaintiff be sustained as to Claims 1, 2, 4 and 8 of the patent, on the ground of the invalidity thereof, and as to Claims 6 and 7, on the ground of the non-infringement f6 ; + °the5.ssed’ ^ complamt was ordered to be dismissed.
The District Court ordered that the mandate of this Court of Appeals affirming its memorandum opinion should constitute the findings and conclusions of the District Court, as provided in 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. But, as stated heretofore, the court made new findings, the substance of which had been presented to it and disallowed by it before the former appeal to this court.
. „ , , ,, , n Appellants, Stiller and others, contend that the United States District Court failed to follow the mandate of this court and that an order should be issued, directing the trial court to comply with the mandate. We think the position of the appellants here is well taken. Where we had affirmed directly and unequivocally the original judgment of the District Court, certiorari had been denied by the Supreme Court, and the cause had been remanded for procedure in complianee with our order, the District Court should not have undertaken to revise its original opinion in material aspects. See Briggs v. Penn. R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403; In re Sanford Fork and Tool, 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; Mutual Life Ins. Co. of New York v. Hill, 193 U.S. 551, 24 S.Ct. 538, 48 L.Ed. 788; Victor Talking Machine Co. v. Hoschke, 188 F. 326 (C.A.2); Pocono Rubber Cloth Co. v. J. A. Livingston, 92 F.2d 290, 291 (C.A.3); D’Arcy v. Jackson Cushion Spring Co., 212 F. 889 (C.A.6); Home Indemnity Co. of New York v. O’Brien, 112 F.2d 387 (C.A.6).
The cause is remanded to the United states District Court with direction that Paragraphs numbered 2, 2(a) and 4 be stricken from the judgment entered by the court on August 17, 1960, as amended by its order of September 27, 1960; and that there be substituted therefor the following language:
(2) «Tlle piaintiff’s'complaint is dismissed and (2a) the defendants are awarded judgment of validity and infringement on their counter-claim.”
(4) “Reissue Patent No. 24,166 of the United States is valid at law. Claim 3 0f the patent constitutes invention.”
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_respond1_2_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 506, Plaintiff-Appellee, v. The PRIVATE INDUSTRY COUNCIL OF TRUMBULL COUNTY, and City of Niles, Ohio, Defendants, Joseph J. Parise, Mayor, Defendant-Appellant.
No. 90-3710.
United States Court of Appeals, Sixth Circuit.
Argued July 30, 1991.
Decided Aug. 20, 1991.
David L. Engler (argued), Youngstown, Ohio, for plaintiff-appellee.
Joseph T. Dull (argued), Niles, Ohio, for defendant-appellant.
Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.
MILBURN, Circuit Judge.
Defendant Joseph J. Parise, Mayor of the City of Niles, Ohio, appeals the judgment of the district court holding that the Mayor and the City violated 29 U.S.C. § 1553(b)(3) of the Job Training Partnership Act, and enjoining defendants from placing Summer Youth Employment Training Program participants in the City’s street department.
The principal issues on appeal are (1) whether the Job Training Partnership Act provides an implied private right of action, (2) whether reduction of a work force through attrition violates 29 U.S.C. § 1553(b)(3)(B), and (3) whether this action was barred by the doctrine of issue preclusion following the administrative proceedings. For the reasons that follow, the judgment of the district court is reversed, and the injunction against the defendants is vacated and dissolved.
I.
This case arose out of the planned participation by the City of Niles, Ohio, in the Summer Youth Employment Training Program (“SYETP”), administered by the Private Industry Council (“PIC”) of Trumbull County, Ohio. SYETP is authorized and funded by the Job Training Partnership Act of 1982 (“JTPA”), 29 U.S.C. § 1501 et seq., which replaced the Comprehensive Employment and Training Act (“CETA”), 29 U.S.C. § 801 et seq. The City of Niles requested SYETP participants to work in various city service departments for the summer of 1989. The American Federation of State, County, and Municipal Employees Local 506 (“AFSCME”) represents employees who work in the city service departments. The collective bargaining agreement between AFSCME and the City contained no provision regarding the minimum number of workers to be employed by the City.
On April 18, 1989, AFSCME filed a complaint seeking a preliminary and permanent injunction to prevent PIC, the City of Niles, and the Mayor from placing SYETP participants in various city service departments including parks and recreation, street, and water. On May 4 and May 15, 1989, the district court conducted a hearing on AFSCME’s motion for a preliminary injunction. Without addressing the merits of the case, the district court denied AFSCME’s motion on the grounds that it had failed to exhaust the administrative remedies required by the JTPA, and the court transferred the case to its non-assigned docket. AFSCME pursued its administrative remedies by filing a complaint pursuant to the procedure established by the JTPA. On August 16, 1989, a local level hearing officer issued a decision denying AFSCME’s complaint, and the decision was adopted and affirmed by a state level hearing officer on September 22, 1989.
On May 16, 1990, AFSCME filed a motion in the district court to transfer the case from the non-assigned to the active docket asserting that it had exhausted the grievance procedure provided by the JTPA, and it now sought review of the administrative decision pursuant to 29 U.S.C. § 1554. The district court granted the motion to reactivate the case and subsequently granted AFSCME leave to amend its complaint to seek declaratory relief. On June 25, 1990, the district court conducted a hearing on the merits, and on July 12, 1990, the court entered a judgment and memorandum opinion holding that the JTPA provided AFSCME an implied private right of action against the City for alleged violations of 29 U.S.C. § 1553(b)(3). The district court held that the City of Niles and Mayor Parise violated 29 U.S.C. § 1553(b)(3) by reducing the work force in the street department through attrition with the intention of using SYETP participants to perform the street department work. 748 F.Supp. 1232. The district court enjoined defendants from placing SYETP participants in the street department. Mayor Parise timely filed notice of appeal.
II.
As a preliminary matter, we must establish that AFSCME has standing to bring this action. Although neither party has raised the issue of standing, “this court can and must address the issue on its own motion.” Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1092 (6th Cir.1985). It is well-settled that “[e]ven in the absence of injury to itself, an association may have standing solely as a representative of its members.” International Union, UAW v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). In Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), the Supreme Court stated a three-part test for determining whether an association has standing to bring an action on behalf of its members:
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
We hold that the AFSCME satisfies this three-part test and has standing to bring this action on behalf of the city service department employees it represents.
“The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction_ [WJhat must ultimately be determined is whether Congress intended to create the private remedy asserted-” Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). The issue is subject to de novo review by this court. See Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979).
In deciding whether a federal statute confers an implied private right of action, we consider four factors:
1) [whether] the plaintiff is of the class for whose especial benefit the statute was created; 2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy; 3) whether finding an implied cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the cause of action is one that is traditionally left to state law such that it would be inappropriate to infer a cause of action based on only federal law.
Kaiser v. United States Postal Service, 908 F.2d 47, 50 (6th Cir.1990) (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), cert. denied, — U.S. -, 111 S.Ct. 673, 112 L.Ed.2d 665 (1991)). The central focus of the inquiry is congressional intent. Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991).
The stated purpose of the JTPA is: To establish programs to prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment, who are in special need of such training to obtain productive employment.
29 U.S.C. § 1501. The JTPA was enacted primarily to benefit youth, unskilled adults, and other individuals facing serious barriers to employment. Other potential beneficiaries of the JTPA include employees who have “been treated unfairly in light of the standards imposed under § 1553 or who [have] been discriminated against in violation of § 1577.” West Virginia v. Anchor Hocking Corp., 681 F.Supp. 1175, 1176 (N.D.W.Va.1987).
Section 1553(a) requires that JTPA participants be provided benefits and working conditions granted to other employees doing the same type of work. Section 1553(b) protects regular employees from being displaced by JTPA participants. Two district courts have held that section 1553 provides a cause of action for employees who are treated unequally or unfairly in light of the standards imposed under the statute. See Anchor Hocking, 681 F.Supp. at 1176; Clinch v. Montana AFL-CIO, 633 F.Supp. 872, 876 (D.Mont.1986). However, to imply a private right of action “the language of the statute in question must do more than confer benefits, for ‘[t]he question is not simply who would benefit ..., but whether Congress intended to confer federal rights upon these beneficiaries.’ ” Osborn v. American Ass’n of Retired Persons, 660 F.2d 740, 743 (9th Cir.1981) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)).
The second Cort factor requires examination of the legislative history for evidence that Congress intended that a private right of action be available under the statute. AFSCME has identified no legislative history regarding a private cause of action under the JTPA. The district court found that the legislative history of the JTPA does not address whether the statute creates a private right of action, and our independent review of the legislative history confirms the district court’s finding. Since the legislative history is silent regarding a private right of action, this court could “infer that Congress intended no such result.” Lamb, 915 F.2d at 1029. “Although congressional silence is not necessarily fatal to implication of a private right of action, ‘implying a private right of action on the basis of congressional silence is a hazardous enterprise at best.’ ” Osborn, 660 F.2d at 745 (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979)).
In deciding whether Congress intended to create a private right of action under the JTPA, it is helpful to consider how courts addressed this issue with regard to CETA. In CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 931-34 (2d Cir.1980), the court applied the four Cort factors and held that there was no implied private right of action under CETA. The court concluded that “CETA’s provision of a comprehensive administrative procedure subject to judicial review appealed] to indicate congressional intent against a private right of action.” Id. at 933 n. 5. In Brock v. Pierce Co., 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), the Supreme Court observed that “the federal courts have uniformly held that the statutory complaint mechanism is the sole means of redress for a private party injured by a grant recipient’s violation of CETA.”
A comparison of CETA and the JTPA suggests that the rationale for finding no implied private right of action under CETA is applicable to the JTPA. CETA provided a number of administrative remedies when violations of its provisions occurred. See 29 U.S.C. § 816 (1978). “At the local level, CETA require[d] that each prime sponsor establish grievance procedures through which ‘participants, subgrantees, contractors, and other interested persons’ in the program may have complaints expeditiously resolved.” Eastern Band of Cherokee Indians v. Donovan, 739 F.2d 153, 156 (4th Cir.1984). If a complainant failed to resolve the grievance at the local level, he could file a complaint at the federal level with the Secretary of Labor. The final decision of the Secretary was subject to judicial review in the United States Court of Appeals. 29 U.S.C. § 817(a) (1978).
Like CETA, the JTPA has a comprehensive administrative procedure for addressing complaints and grievances. The JTPA requires “[ejach administrative entity, contractor, and grantee” to establish and maintain a grievance procedure for complaints and grievances by “participants, subgrantees, subcontractors, and other interested persons.” 29 U.S.C. § 1554(a). Section 1554(b) requires “[ejach recipient of financial assistance under this chapter which is an employer of participants ... to operate or establish and maintain a grievance procedure relating to the terms and conditions of employment.” The district court held that the City is not a recipient of JTPA funds within the meaning of the statute. However, the terms recipient, subreci-pient, and grantee are not defined in the JTPA. On the basis of the language in section 1554(b), we conclude that the City is a recipient. The City receives financial assistance under the JTPA in the form of federally subsidized participants who work in the City service departments. Had Congress intended to limit the term “financial assistance” to cash payments from the government, it could have so defined the term in the statute, as it did the term “public assistance.” See 29 U.S.C. § 1503(20). Moreover, the City is an “employer of participants” in that it controls, directs and supervises the participants who work in the City service departments.
Upon exhaustion of a recipient’s grievance procedure, the Secretary of Labor is authorized to investigate allegations that a recipient is not complying with the requirements of the JTPA. See 29 U.S.C. § 1554(c). The JTPA also provides for judicial review in the United States Court of Appeals of “any final order by the Secretary under section 1576 ... with respect to a corrective action or sanction imposed under section 1574_” 29 U.S.C. § 1578(a)(1). These provisions suggest that there is no implied private right of action under the JTPA because Congress “has established an elaborate system of administrative review, which would appear intended to be exclusive.” Uniformed Firefighters Ass’n, 676 F.2d 20, 22 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982).
While provision of a comprehensive administrative procedure may indicate congressional intent against implying a private right of action, another factor to consider is “whether the administrative remedies provide relief for the specific claims of the plaintiff.” CETA Workers’, 617 F.2d at 933 n. 5. In this case, it does appear that the administrative procedures of the JTPA would provide relief for the claims of AFSCME. Section 1574(g) authorizes the Secretary of Labor to take action or order corrective measures upon determining that any recipient “has discharged or in any other manner discriminated against a participant or against any individual in connection with the administration of the program involved, ... or otherwise unlawfully denied to any individual a benefit to which that individual is entitled under the [JTPAj.... ” The conduct which AFSCME complains of, the denial of protection afforded local workers by section 1553(b), seems to be conduct which the Secretary is authorized to address under section 1574(g). The final order of the Secretary would then be subject to judicial review in the court of appeals. Accordingly, the administrative procedure of the JTPA “would appear intended to be exclusive.” CETA Workers’, 617 F.2d at 934.
The third inquiry under Cort is whether implying a private right of action would be consistent with the underlying purposes of the legislative scheme. If one of the purposes of section 1553(b) is to protect local workers from being displaced by JTPA participants, then implying a private right of action could be consistent with the legislative scheme. Recognizing a private right of action would provide an enforcement mechanism to secure the protections afforded local workers by section 1553(b). However, as noted earlier, the grievance procedures mandated by the JTPA provide the means for local workers to secure the protections afforded by section 1553(b). “Although it is certainly possible that Congress would grant a private right of action concurrent with a system of agency oversight, it is difficult to understand, absent language to the contrary, what benefits would be gained from such dual review, particularly when judicial review of the Secretary’s action is explicitly vested in the appellate courts.” CETA Workers’, 617 F.2d at 934 n. 7.
The final Cort factor to be considered is whether the cause of action is one traditionally left to state law such that it would be inappropriate to infer a cause of action based only on federal law. This factor is easily satisfied because the protection AFSCME seeks is based on a federal statute and has no independent basis in state law. Thus, implying a private right of action under the JTPA “would not intrude upon matters of state concern.” Lamb, 915 F.2d at 1030. Accordingly, having evaluated the four Cort factors with the view toward discerning congressional intent, we hold that there is no implied private right of action under section 1553(b)(3)(B) of the JTPA.
III.
For the reasons stated, the judgment of the district court is REVERSED, and this case is REMANDED to the district court with instructions to dissolve its injunction and dismiss this case.
. The City of Niles and PIC have not appealed the judgment of the district court. consider the remaining two factors outlined in Cort." Kaiser, 908 F.2d at 52. Nevertheless, we shall discuss the remaining factors.
. In its motion to transfer the case from the inactive docket to the active docket, AFSCME asserted that it sought judicial review of a final administrative decision. However, the district court would have no jurisdiction to review a final administrative decision under the JTPA because Congress has determined that judicial review is available only in the appellate courts. See 29 U.S.C. § 1578(a)(1).
. If this court concludes that “neither the language, structure, nor the legislative history of the statute shows a congressional intent to fashion an implied private remedy, [it] need not
. Having determined that there is neither an express nor an implied right of action under section 1553(b)(3)(B) of the JTPA, we need not reach the other issues raised in this appeal.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_usc1
|
42
|
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.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Plaintiff-Intervenor-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.
Nos. 80-1202, 80-1203.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 9, 1981.
Decided July 12, 1982.
Rehearing and Rehearing En Banc Denied Sept. 7, 1982.
M. Elizabeth Bunn, Dorothy M. Smith and Martin A. Scott, Detroit, Mich., Joel M. Cohn, Lutz Alexander Brager, Ray Baca, E. E. O. C. — Appellate Div., Washington, D. C., for plaintiff-appellant.
Jordan Rossen, U. A. W. Legal Dept., Detroit, Mich., for plaintiff-intervenor-appellant.
John C. O’Meara, Lawrence G. Campbell and John K. Renke II, Dickinson, Wright, McKean, Cudlip & Moon, Thomas G. Kienbaum, Detroit, Mich., for defendant-appellee.
Before EDWARDS, Chief Judge, KENNEDY, Circuit Judge, and CECIL, Senior Circuit Judge.
GEORGE CLIFTON EDWARDS, Jr., Chief Judge.
This is an appeal from the decision of a District Judge in the United States District Court for the Eastern District of Michigan denying motions for summary judgment filed by plaintiff-appellants, the Equal Employment Opportunity Commission (EEOC) and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and granting a motion for summary judgment filed by defendant-appellee Chrysler Corporation (Chrysler).
Since 1955, the plaintiff-appellant in this case, UAW, and the defendant-appellee, Chrysler, have maintained a collectively-bargained for Supplemental Unemployment Benefits Plan (SUB Plan) which seeks to provide a guaranteed annual wage to Chrysler employees. At the inception of this litigation, the SUB Plan guaranteed that the combination of SUB and state unemployment compensation will add to about 95% of the employee’s working wage if the employee was laid off for certain reasons. This case concerns the impact of two now long dead discriminatory devices upon that SUB Plan: Chrysler’s mandatory maternity leave policy, terminated in 1972, and the policy of the Michigan Employment Security Commission (MESC) that women laid off pursuant to mandatory maternity leave policies could not collect state unemployment benefits even if completely able to work.
Plaintiffs’ complaint is based upon the fact that between 1965 and 1972 Chrysler followed a mandatory “leave of absence” policy which required pregnant women employees to leave work in the fifth month of pregnancy and not return until 60 to 90 days after the birth of the child, regardless of their ability to work during these periods. Appellants claim that this policy violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976), and resulted in a class of women employees being denied benefits which would have otherwise been paid under the SUB Plan negotiated between the UAW and Chrysler.
There is, however, no dispute about the fact that Chrysler terminated the mandatory pregnancy leave policy in June 1972. The case for the appellants is best stated in the UAW’s brief:
STATEMENT OF FACTS
I. THE CORPORATION’S SUB PLANS
A. The Chrysler-UAW SUB Plan
Since prior to 1975, the appellant UAW and the appellee Corporation have negotiated as part of the parties’ collective bargaining agreement a Supplemental Unemployment Benefits (SUB) Plan. The terms of the plan have remained the same for all relevant purposes since 1965 (Deposition of Irvin Richards, at 25-27, “A” 192-194).
The SUB Plan provides in pertinent part (Plan — Article I, § 1, Eligibility for Benefits):
“An employee shall be eligible for a Regular Benefit for any week beginning on or about December 1, 1976, if with respect to such week he:
(a) was on a qualifying layoff, as discussed in Section (3) of this Article, for all or part of the week;
(b) received a State System Benefit not currently under protest by The Corporation or was ineligible for a State System.Benefit only for one or more of the following reasons;
(i) he did not have prior to layoff a sufficient period of employment or earnings covered by The State System;
(ii) exhaustion of his State System benefit rights.” (Emphasis added)
Procedurally, the Plan operates as follows. The Corporation initially determines the eligibility of the SUB applicant (Plan Art. V. § 2(a)). If the Corporation determines that the employee is eligible, it orders the trustee to make payment (Plan Art. V. § 2(b)). If the Corporation determines that the employee is ineligible for SUB, the aggrieved employee may appeal the decision to the local committee at his/her plant, if one exists (Plan Art. V. § 3(b)). From there (or if there is no local plant committee after the initial denial, from that decision), the employee may appeal to the “Board of Administration” (Plan Art. V. § 3(2)) which is composed of six (6) members, three selected by the Union and three by the Corporation (Plan Art. V. § 2(a)). If on appeal the Board of Administration rules that the employee is eligible, the Corporation then orders the Plan Trustee to pay the benefits. The Board of Administration does not have the authority to direct the trustee to pay.
B. Chrysler’s SUB Plan for non-Union employees
Since 1965, there has also been in existence a SUB Plan for non-union Corporation employees (A. 189-191). The substantive terms of that plan have been identical to the Chrysler-UAW Plan (A. 189-190, 194-195). However, the procedure differs insofar as the Corporation makes the sole determination of eligibility; there is no appeal procedure to a Board of Administration or otherwise (A. 189-190, 194-195, S.A. 3, 4).
II. BACKGROUND OF THE DISPUTE
As indicated above, this action seeks relief for women workers who were systematically denied SUB pursuant to a Corporation policy which violates Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In order to understand the present corporate violation, however, it is necessary first to explicate fully the circumstances surrounding the layoffs giving rise to the weeks of unemployment for which SUB is sought.
For years prior to 1965 and continuing until 1972, the Corporation had in effect a mandatory maternity “leave of absence” policy. Pursuant to the policy in existence from at least 1965 to 1971, pregnant workers were forced out of work at the end of their fifth (5th) month of pregnancy and were not permitted to return until six (6) weeks after the birth of the baby (S.A. 39-43). In April 1971, the policy, was altered slightly, but the Corporation persisted in forcing women workers off the job when they were able and available to continue working (S.A. 52, 53). In June 1972, the mandatory maternity leave policy was dropped altogether (S.A. 44-51).
During the period when the Corporation’s policy was in effect, women laid off pursuant to that policy in Michigan did not receive State unemployment insurance benefits (“State System Benefits”) due to the policy of the Michigan Employment Security Commission (herein “the MESC”), the Michigan agency entrusted with the administration of the Michigan Employment Security Act, to deny benefits to women placed on mandatory maternity leaves of absence. Accordingly, they were ineligible for SUB payments under Art. I § 1(b) of the Plan, quoted above. Subsequently, this state policy was struck down as contrary to federal law in a decision rendered by the Honorable Charles W. Joiner. UAW v. Taylor, C.A. No. 4-70066 (E.D.Mich., July 1974), affirmed by the Sixth Circuit in an unpublished opinion Nos., 76-1474, 76-1966, 76-1967 (1977), cert. denied sub. nom. Firestone Tire & Rubber Co. v. Taylor, et al., 435 U.S. 970, 98 S.Ct. 1610, 56 L.Ed.2d 69 (1978). The opinion and orders issued in that case required the MESC to process or re-process the claims of all women denied unemployment insurance pursuant to the unlawful policy and the claims of all women who never applied for benefits because of the futility of doing so but who, if they had applied, would have been denied pursuant to the policy. (Addendum, —.)
Under the terms of the Taylor order, to receive retroactive unemployment compensation, each class member had to show before the MESC that she was forced out due to pregnancy, that she was able and available to work during the period for which she sought benefits and that she either applied for and was denied benefits or would have applied but for her knowledge of the existence of the unlawful policy (Addendum, 46).
Chrysler was a party to each of the proceedings before the MESC involving its female employees. The Corporation protested the payment of state system benefits of most, if not all, Chrysler workers claiming under UAW v. Taylor, supra. It was not until 1976 that Chrysler ceased protesting claims for benefits of Taylor class members (Affidavit of John Thomas Kenney, a true copy of which is attached to the UAW Brief in Support of Motion for Summary Judgment as to Liability, A. 336). Sample Chrysler state agency decisions are in the Appendix. (38-73, 701-710).
Subsequent to the receipt of state unemployment insurance not under protest by The Corporation, Taylor plaintiffs employed (or formerly employed) by the Corporation became eligible for SUB under Art. I, § 1(b) quoted above. The Corporation denied benefits to all Taylor SUB applicants for the reason that, according to Chrysler they were not on a qualifying layoff (A. 218-219, 337). Chrysler asserted no other reason for its uniform denials (A. 218-219). The Corporation denied SUB to women who were UAW members and to those who were not represented by a union (S.A. 3-38). On appeal, the Plan’s Board of Administration upheld the Corporation’s initial denial of SUB. Chrysler did not order the trustee of the Plan to pay benefits.
The Corporation admits that it has a blanket policy of denying SUB to the women in question here (A. 337).
Brief for appellant UAW at 3-7 (footnotes 1, 2, 3 omitted).
The District Judge who decided this case below did so on the ground that the exclusion of involuntarily unemployed women from the SUB Plan did not violate Title VII. First, he said that the SUB Plan did not, by its terms, cover women in that situation. Rather he held that the Plan was:
aimed at a situation, or situations, which involve a disruption in the tenure of an employee through circumstances largely economic in nature and outside of the control of the employee and were not intended to cover a situation such as a pregnancy which is — at least is susceptible of being- — a planned event and it was the concern of the drafters of supplemental unemployment benefits to provide economic security directed at ameliorating the ups and downs in the economy and that the plan was not aimed at covering a type of situation which was then covered under a completely different section of the contract.
Equal Employment Opportunity Commission, et al. v. Chrysler Corp., No. 871013 (E.D.Mich. July 13, 1979) (bench disposition). Next, relying on Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 143-146, 98 S.Ct. 347, 352-353, 54 L.Ed.2d 356 (1977), the District Judge held that the failure to include those involuntarily unemployed due to mandatory maternity leave in the SUB Plan did not constitute sex discrimination.
Appellants argue that denial of SUB to involuntarily unemployed pregnant employees places a substantial burden on women that men must not bear. Nashville Gas Co. v. Satty, supra at 138-143, 98 S.Ct. at 349-352. Thus, they argue that Chrysler’s policy, while neutral on its face, illegally discriminated against women. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Since we believe that this complaint, filed July 3, 1975, has long since been barred by the applicable statute of limitations, we decline to resolve this issue in the context of this record. This record clearly shows that Chrysler abandoned its mandatory maternity leave plan in June 1972. Moreover, as of July of 1972, this circuit struck down a quite similar policy applicable to school teachers. See LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), aff’d, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Thus, all of the facts and law necessary to a timely complaint were known over a decade ago.
Appellants rely on the nature of the SUB Plan. Employees are eligible for SUB when they meet two conditions: 1) they must be on “qualifying layoff” as defined by the Plan, and 2) they must be receiving state system benefit “not under protest” by Chrysler. Appellants, therefore, contend that their cause of action did not accrue until Chrysler stopped contesting the awards of state unemployment compensation in April 1976.
We recognize, of course, that lengthy litigation was required to establish the rights of the affected class of Chrysler women employees to state unemployment compensation, which, under the labor/management contract, was a condition precedent to a valid claim for SUB. Nonetheless, as of at least July 1972, there was no legal barrier to the filing of the instant complaint — even though its prosecution might have been delayed until the completion of the UAW v. Taylor case.
We perceive no reason why the two cases could not have been timely filed simultaneously with their relationship to each other spelled out in the pleadings. In fact, however, all of these SUB claims, as well as the 1975 EEOC charges, were filed far beyond the applicable statute of limitations of 300 days. See 42 U.S.C. § 2000e-5(e) (1976).
The judgment of the District Court is vacated and the case is remanded to the District Court for dismissal on the grounds of the statute of limitations.
9 Empl.Prac.Dec. ¶9878 (E.D.Mich.1974).
In fact, in July, 1975 the UAW filed charges with the EEOC complaining in part of Chrysler’s policy of opposing claims for State benefits under UAW v. Taylor, supra. The instant case has its origins in this charge. See, for example, A. 38-73.
Only eighteen (18) cases reached the Board of Administration (S.A. 4-39). The Corporation decided one case for a non-union employee (S.A. 3).
. Appellants have not claimed that Chrysler concealed relevant facts or that the corporation’s actions unfairly prevented them from asserting their federal statutory rights. Accordingly, there is no possibility that Chrysler’s conduct tolled the applicable statute of limitations. See, e.g. Zipes v. Trans World Airlines, - U.S. -, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979). In the instant case, plaintiffs have not chosen to pursue the claim that Chrysler’s repeated protest of state employment awards itself violated Title VII.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_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.
ATLANTIC MARINE CONSTRUCTION COMPANY, INC., Petitioner
v.
UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF TEXAS et al.
No. 12-929.
Supreme Court of the United States
Argued Oct. 9, 2013.
Decided Dec. 3, 2013.
Syllabus*
Petitioner Atlantic Marine Construction Co., a Virginia corporation, entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on a construction project. The subcontract included a forum-selection clause, which stated that all disputes between the parties would be litigated in Virginia. When a dispute arose, however, J-Crew filed suit in the Western District of Texas. Atlantic Marine moved to dismiss, arguing that the forum-selection clause rendered venue "wrong" under 28 U.S.C. § 1406(a) and "improper" under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under 28 U.S.C. § 1404(a). The District Court denied both motions. It concluded that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum; that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under § 1404(a); and that the court would consider both public- and private-interest factors, only one of which was the forum-selection clause. After weighing those factors, the court held that Atlantic Marine had not carried its burden.
The Fifth Circuit denied Atlantic Marine's petition for a writ of mandamus directing the District Court to dismiss the case under § 1406(a) or to transfer it to the Eastern District of Virginia under § 1404(a). The court agreed with the District Court that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum; that dismissal under Rule 12(b)(3) would be the correct mechanism for enforcing a forum-selection clause that pointed to a nonfederal forum; and that the District Court had not abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by § 1404(a).
Held :
1. A forum-selection clause may be enforced by a motion to transfer under § 1404(a), which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Pp. 576 - 581.
(a) Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is "wrong" or "improper." Whether venue is "wrong" or "improper" depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws. Title 28 U.S.C. § 1391, which governs venue generally, states that "[e]xcept as otherwise provided by law... this section shall govern the venue of all civil actions brought in" federal district courts. § 1391(a)(1). It then defines districts in which venue is proper. See § 1391(b). If a case falls within one of § 1391(b)'s districts, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under § 1406(a). Whether the parties' contract contains a forum-selection clause has no bearing on whether a case falls into one of the specified districts.
This conclusion is confirmed by the structure of the federal venue provisions, which reflects Congress' intent that venue should always lie in some federal court whenever federal courts have personal jurisdiction over the defendant. See § 1391(b)(3). The conclusion also follows from this Court's decisions construing the federal venue statutes. See Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945;Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22. Pp. 576 - 579.
(b) Although a forum-selection clause does not render venue in a court "wrong" or "improper" under § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under § 1404(a), which permits transfer to any other district where venue is proper or to any district to which the parties have agreed by contract or stipulation. Section 1404(a), however, governs transfer only within the federal court system. When a forum-selection clause points to a state or foreign forum, the clause may be enforced through the doctrine of forum non conveniens.Section 1404(a) is a codification of that doctrine for the subset of cases in which the transferee forum is another federal court. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15. For all other cases, parties may still invoke the residual forum non conveniens doctrine. See id., at 430, 127 S.Ct. 1184. Pp. 579 - 580.
(c) The Court declines to consider whether a defendant in a breach-of-contract action could obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a forum-selection clause. Petitioner did not file a motion to dismiss under Rule 12(b)(6), and the parties did not brief the Rule's application. Pp. 580 - 581.
2. When a defendant files a § 1404(a) motion, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. No such exceptional factors appear to be present in this case. Pp. 580 - 584.
(a) Normally, a district court considering a § 1404(a) motion must evaluate both the private interests of the parties and public-interest considerations. But when the parties' contract contains a valid forum-selection clause, that clause "represents [their] agreement as to the most proper forum," Stewart, 487 U.S., at 31, 108 S.Ct. 2239, and should be "given controlling weight in all but the most exceptional cases," id., at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring). The presence of a valid forum-selection clause requires district courts to adjust their usual § 1404(a) analysis in three ways. First, the plaintiff's choice of forum merits no weight, and the plaintiff, as the party defying the forum-selection clause, has the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Second, the court should not consider the parties' private interests aside from those embodied in the forum-selection clause; it may consider only public interests. Because public-interest factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue's choice-of-law rules. See Van Dusen, supra, at 639, 84 S.Ct. 805. Pp. 581 - 584.
(b) Here, the District Court's application of § 1404(a) did not comport with these principles. The court improperly placed the burden on Atlantic Marine to prove that transfer to the parties' contractually preselected forum was appropriate instead of requiring J-Crew, the party acting in violation of the forum-selection clause, to show that public-interest factors overwhelmingly disfavored a transfer. It also erred in giving weight to the parties' private interests outside those expressed in the forum-selection clause. And its holding that public interests favored keeping the case in Texas because Texas contract law is more familiar to federal judges in Texas than to those in Virginia rested in part on the District Court's mistaken belief that the Virginia federal court would have been required to apply Texas' choice-of-law rules instead of Virginia's. Pp. 583 - 584.
701 F.3d 736, reversed and remanded.
ALITO, J., delivered the opinion for a unanimous Court.
William S. Hastings, Dallas, TX, for Petitioner.
William R. Allensworth, Austin, TX, for Respondents.
Michael L. Sterling, Vandeventer Black LLP, Norfolk, VA, W. Scott Hastings, Counsel of Record, Thomas F. Loose, Christopher M. Boeck, Locke Lord LLP, Dallas, TX, for Petitioner.
William R. Allensworth, Counsel of Record, Chad B. Simon, Joe R. Basham, Allensworth & Porter, LLP, Austin, TX, for Respondent.
Justice ALITO delivered the opinion of the Court.
The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection clause. We reject petitioner's argument that such a clause may be enforced by a motion to dismiss under 28 U.S.C. § 1406(a) or Rule 12(b)(3) of the Federal Rules of Civil Procedure. Instead, a forum-selection clause may be enforced by a motion to transfer under § 1404(a) (2006 ed., Supp. V), which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." When a defendant files such a motion, we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. In the present case, both the District Court and the Court of Appeals misunderstood the standards to be applied in adjudicating a § 1404(a) motion in a case involving a forum-selection clause, and we therefore reverse the decision below.
I
Petitioner Atlantic Marine Construction Co., a Virginia corporation with its principal place of business in Virginia, entered into a contract with the United States Army Corps of Engineers to construct a child-development center at Fort Hood in the Western District of Texas. Atlantic Marine then entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on the project. This subcontract included a forum-selection clause, which stated that all disputes between the parties "'shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division.' " In re Atlantic Marine Constr. Co., 701 F.3d 736, 737-738 (C.A.5 2012).
When a dispute about payment under the subcontract arose, however, J-Crew sued Atlantic Marine in the Western District of Texas, invoking that court's diversity jurisdiction. Atlantic Marine moved to dismiss the suit, arguing that the forum-selection clause rendered venue in the Western District of Texas "wrong" under § 1406(a) and "improper" under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under § 1404(a). J-Crew opposed these motions.
The District Court denied both motions. It first concluded that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum. The District Court then held that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under § 1404(a) and that the court would "consider a nonexhaustive and nonexclusive list of public and private interest factors," of which the "forum-selection clause [was] only one such factor." United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, at *5 (W.D.Tex., Apr. 6, 2012). Giving particular weight to its findings that "compulsory process will not be available for the majority of J-Crew's witnesses" and that there would be "significant expense for those willing witnesses," the District Court held that Atlantic Marine had failed to carry its burden of showing that transfer "would be in the interest of justice or increase the convenience to the parties and their witnesses." Id., at *7-*8; see also 701 F.3d, at 743.
Atlantic Marine petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the case under § 1406(a) or to transfer the case to the Eastern District of Virginia under § 1404(a). The Court of Appeals denied Atlantic Marine's petition because Atlantic Marine had not established a " 'clear and indisputable' " right to relief. Id., at 738; see Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (mandamus "petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable" (internal quotation marks omitted; brackets in original)). Relying on Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), the Court of Appeals agreed with the District Court that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum when venue is otherwise proper in the district where the case was brought. See 701 F.3d, at 739-741.1 The court stated, however, that if a forum-selection clause points to a nonfederal forum, dismissal under Rule 12(b)(3) would be the correct mechanism to enforce the clause because § 1404(a) by its terms does not permit transfer to any tribunal other than another federal court. Id., at 740. The Court of Appeals then concluded that the District Court had not clearly abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by § 1404(a). Id., at 741-743; see Cheney, supra, at 380, 124 S.Ct. 2576 (permitting mandamus relief to correct "a clear abuse of discretion" (internal quotation marks omitted)). That was so even though there was no dispute that the forum-selection clause was valid. See 701 F.3d, at 742;
id., at 744 (concurring opinion). We granted certiorari. 569 U.S. ----, 133 S.Ct. 1748, 185 L.Ed.2d 784 (2013).
II
Atlantic Marine contends that a party may enforce a forum-selection clause by seeking dismissal of the suit under § 1406(a) and Rule 12(b)(3). We disagree. Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is "wrong" or "improper." Whether venue is "wrong" or "improper" depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws, and those provisions say nothing about a forum-selection clause.
A
Section 1406(a) provides that "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Rule 12(b)(3) states that a party may move to dismiss a case for "improper venue." These provisions therefore authorize dismissal only when venue is "wrong" or "improper" in the forum in which it was brought.
This question-whether venue is "wrong" or "improper"-is generally governed by 28 U.S.C. § 1391 (2006 ed., Supp. V).2 That provision states that "[e]xcept as otherwise provided by law... this section shall govern the venue of all civil actions brought in district courts of the United States." § 1391(a)(1) (emphasis added). It further provides that "[a] civil action may be brought in-(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." § 1391(b). 3 When venue is challenged, the court must determine whether the case falls within one of the three categories set out in § 1391(b). If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under § 1406(a). Whether the parties entered into a contract containing a forum-selection clause has no bearing on whether a case falls into one of the categories of cases listed in § 1391(b). As a result, a case filed in a district that falls within § 1391 may not be dismissed under § 1406(a) or Rule 12(b)(3).
Petitioner's contrary view improperly conflates the special statutory term "venue" and the word "forum." It is certainly true that, in some contexts, the word "venue" is used synonymously with the term "forum," but § 1391 makes clear that venue in "all civil actions" must be determined in accordance with the criteria outlined in that section. That language cannot reasonably be read to allow judicial consideration of other, extrastatutory limitations on the forum in which a case may be brought.
The structure of the federal venue provisions confirms that they alone define whether venue exists in a given forum. In particular, the venue statutes reflect Congress' intent that venue should always lie in some federal court whenever federal courts have personal jurisdiction over the defendant. The first two paragraphs of § 1391(b) define the preferred judicial districts for venue in a typical case, but the third paragraph provides a fallback option: If no other venue is proper, then venue will lie in " any judicial district in which any defendant is subject to the court's personal jurisdiction" (emphasis added). The statute thereby ensures that so long as a federal court has personal jurisdiction over the defendant, venue will always lie somewhere. As we have previously noted, "Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other." Smith v. United States, 507 U.S. 197, 203, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (internal quotation marks omitted). Yet petitioner's approach would mean that in some number of cases-those in which the forum-selection clause points to a state or foreign court-venue would not lie in any federal district. That would not comport with the statute's design, which contemplates that venue will always exist in some federal court.
The conclusion that venue is proper so long as the requirements of § 1391(b) are met, irrespective of any forum-selection clause, also follows from our prior decisions construing the federal venue statutes. In Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), we considered the meaning of § 1404(a), which authorizes a district court to "transfer any civil action to any other district or division where it might have been brought." The question in Van Dusen was whether § 1404(a) allows transfer to a district in which venue is proper under § 1391 but in which the case could not have been pursued in light of substantive state-law limitations on the suit. See id., at 614-615, 84 S.Ct. 805. In holding that transfer is permissible in that context, we construed the phrase "where it might have been brought" to refer to "the federal laws delimiting the districts in which such an action'may be brought,' " id., at 624, 84 S.Ct. 805, noting that "the phrase'may be brought' recurs at least 10 times" in §§ 1391-1406, id., at 622, 84 S.Ct. 805. We perceived "no valid reason for reading the words 'where it might have been brought' to narrow the range of permissible federal forums beyond those permitted by federal venue statutes." Id., at 623, 84 S.Ct. 805.
As we noted in Van Dusen, § 1406(a) "shares the same statutory context" as § 1404(a) and "contain[s] a similar phrase." Id., at 621, n. 11, 84 S.Ct. 805. It instructs a court to transfer a case from the "wrong" district to a district "in which it could have been brought." The most reasonable interpretation of that provision is that a district cannot be "wrong" if it is one in which the case could have been brought under § 1391. Under the construction of the venue laws we adopted in Van Dusen, a "wrong" district is therefore a district other than "those districts in which Congress has provided by its venue statutes that the action'may be brought.' " Id., at 618, 84 S.Ct. 805 (emphasis added). If the federal venue statutes establish that suit may be brought in a particular district, a contractual bar cannot render venue in that district "wrong."
Our holding also finds support in Stewart, 487 U.S. 22, 108 S.Ct. 2239. As here, the parties in Stewart had included a forum-selection clause in the relevant contract, but the plaintiff filed suit in a different federal district. The defendant had initially moved to transfer the case or, in the alternative, to dismiss for improper venue under § 1406(a), but by the time the case reached this Court, the defendant had abandoned its § 1406(a) argument and sought only transfer under § 1404(a). We rejected the plaintiff's argument that state law governs a motion to transfer venue pursuant to a forum-selection clause, concluding instead that "federal law, specifically 28 U.S.C. § 1404(a), governs the District Court's decision whether to give effect to the parties' forum-selection clause." Id., at 32, 108 S.Ct. 2239. We went on to explain that a "motion to transfer under § 1404(a)... calls on the district court to weigh in the balance a number of case-specific factors" and that the "presence of a forum-selection clause... will be a significant factor that figures centrally in the district court's calculus." Id., at 29, 108 S.Ct. 2239.
The question whether venue in the original court was "wrong" under § 1406(a) was not before the Court, but we wrote in a footnote that "[t]he parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business in the Northern District of Alabama. See 28 U.S.C. § 1391(c) (venue proper in judicial district in which corporation is doing business)." Id., at 28, n. 8, 108 S.Ct. 2239. In other words, because § 1391 made venue proper, venue could not be "wrong" for purposes of § 1406(a). Though dictum, the Court's observation supports the holding we reach today. A contrary view would all but drain Stewart of any significance. If a forum-selection clause rendered venue in all other federal courts "wrong," a defendant could always obtain automatic dismissal or transfer under § 1406(a) and would not have any reason to resort to § 1404(a). Stewart's holding would be limited to the presumably rare case in which the defendant inexplicably fails to file a motion under § 1406(a) or Rule 12(b)(3).
B
Although a forum-selection clause does not render venue in a court "wrong" or "improper" within the meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under § 1404(a). That provision states that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Unlike § 1406(a), § 1404(a) does not condition transfer on the initial forum's being "wrong." And it permits transfer to any district where venue is also proper ( i.e., "where [the case] might have been brought") or to any other district to which the parties have agreed by contract or stipulation.
Section 1404(a) therefore provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district. And for the reasons we address in Part III, infra, a proper application of § 1404(a) requires that a forum-selection clause be "given controlling weight in all but the most exceptional cases." Stewart, supra, at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring).
Atlantic Marine argues that § 1404(a) is not a suitable mechanism to enforce forum-selection clauses because that provision cannot provide for transfer when a forum-selection clause specifies a state or foreign tribunal, see Brief for Petitioner 18-19, and we agree with Atlantic Marine that the Court of Appeals failed to provide a sound answer to this problem. The Court of Appeals opined that a forum-selection clause pointing to a nonfederal forum should be enforced through Rule 12(b)(3), which permits a party to move for dismissal of a case based on "improper venue." 701 F.3d, at 740. As Atlantic Marine persuasively argues, however, that conclusion cannot be reconciled with our construction of the term "improper venue" in § 1406 to refer only to a forum that does not satisfy federal venue laws. If venue is proper under federal venue rules, it does not matter for the purpose of Rule 12(b)(3) whether the forum-selection clause points to a federal or a nonfederal forum.
Instead, the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ("For the federal court system, Congress has codified the doctrine..."); see also notes following § 1404 (Historical and Revision Notes) (Section 1404(a) "was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper"). For the remaining set of cases calling for a nonfederal forum, § 1404(a) has no application, but the residual doctrine of forum non conveniens "has continuing application in federal courts." Sinochem, 549 U.S., at 430, 127 S.Ct. 1184 (internal quotation marks and brackets omitted); see also ibid. (noting that federal courts invoke forum non conveniens "in cases where the alternative forum is abroad, and perhaps in rare instances where a state or territorial court serves litigational convenience best" (internal quotation marks and citation omitted)). And because both § 1404(a) and the forum non conveniens doctrine from which it derives entail the same balancing-of-interests standard, courts should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum. See Stewart, 487 U.S., at 37, 108 S.Ct. 2239 (SCALIA, J., dissenting) (Section 1404(a) "did not change 'the relevant factors' which federal courts used to consider under the doctrine of forum non conveniens" (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955))).
C
An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule's application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that § 1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.4
III
Although the Court of Appeals correctly identified § 1404(a) as the appropriate provision to enforce the forum-selection clause in this case, the Court of Appeals erred in failing to make the adjustments required in a § 1404(a) analysis when the transfer motion is premised on a forum-selection clause. When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.5 Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied. And no such exceptional factors appear to be present in this case.
A
In the typical case not involving a forum-selection clause, a district court considering a § 1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations.6 Ordinarily, the district court would weigh the relevant factors and decide whether, on balance, a transfer would serve "the convenience of parties and witnesses" and otherwise promote "the interest of justice." § 1404(a).
The calculus changes, however, when the parties' contract contains a valid forum-selection clause, which "represents the parties' agreement as to the most proper forum." Stewart, 487 U.S., at 31, 108 S.Ct. 2239. The "enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system." Id., at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring). For that reason, and because the overarching consideration under § 1404(a) is whether a transfer would promote "the interest of justice," "a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases." Id., at 33, 108 S.Ct. 2239 (same). The presence of a valid forum-selection clause requires district courts to adjust their usual § 1404(a) analysis in three ways.
First, the plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Because plaintiffs are ordinarily allowed to select whatever forum they consider most advantageous (consistent with jurisdictional and venue limitations), we have termed their selection the "plaintiff's venue privilege."
Van Dusen, 376 U.S., at 635, 84 S.Ct. 805.7 But when a plaintiff agrees by contract to bring suit only in a specified forum-presumably in exchange for other binding promises by the defendant-the plaintiff has effectively exercised its "venue privilege" before a dispute arises. Only that initial choice deserves deference, and the plaintiff must bear the burden of showing why the court should not transfer the case to the forum to which the parties agreed.
Second, a court evaluating a defendant's § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties' private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum. As we have explained in a different but " 'instructive' " context, Stewart, supra, at 28, 108 S.Ct. 2239, "[w]hatever 'inconvenience' [the parties] would suffer by being forced to litigate in the contractual forum as [they] agreed to do was clearly foreseeable at the time of contracting." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17-18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see also Stewart,supra, at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring) (stating that Bremen's "reasoning applies with much force to federal courts sitting in diversity").
As a consequence, a district court may consider arguments about public-interest factors only. See n. 6, supra. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Although it is "conceivable in a particular case" that the district court "would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause," Stewart, supra, at 30-31, 108 S.Ct. 2239, such cases will not be common.
Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue's choice-of-law rules-a factor that in some circumstances may affect public-interest considerations. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (listing a court's familiarity with the "law that must govern the action" as a potential factor). A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 494-496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). However, we previously identified an exception to that principle for § 1404(a) transfers, requiring that the state law applicable in the original court also apply in the transferee court. See Van Dusen, 376 U.S., at 639, 84 S.Ct. 805. We deemed that exception necessary to prevent "defendants, properly subjected to suit in the transferor State," from "invok[ing] § 1404(a) to gain the benefits of the laws of another jurisdiction...." Id., at 638, 84 S.Ct. 805; see Ferens v. John Deere Co., 494 U.S. 516, 522, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (extending the Van Dusen rule to § 1404(a) motions by plaintiffs).
The policies motivating our exception to the Klaxon rule for § 1404(a) transfers, however, do not support an extension to cases where a defendant's motion is premised on enforcement of a valid forum-selection clause. See Ferens, supra, at 523, 110 S.Ct. 1274. To the contrary, those considerations lead us to reject the rule that the law of the court in which the plaintiff inappropriately filed suit should follow the case to the forum contractually selected by the parties. In Van Dusen, we were concerned that, through a § 1404(a) transfer, a defendant could "defeat the state-law advantages that might accrue from the exercise of [the plaintiff's] venue privilege." 376 U.S
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_casesource
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026
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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.
VANCE, SECRETARY OF STATE v. TERRAZAS
No. 78-1143.
Argued October 30, 1979
Decided January 15, 1980
White, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmuN, Powell, and RehNquist, JJ., joined. Marshall, J., post, p. 270, and Stevens, J., post, p. 272, filed opinions concurring in part and dissenting in part. Brennan, J., filed a dissenting opinion, in Part II of which Stewart, J., joined, post, p. 274. Stewart, J., filed a dissenting statement, post, p. 270.
Allan A. Ryan, Jr., argued the cause for appellant. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Getter, William G. Otis, and William C. Brown.
Kenneth K. Ditkowsky argued the cause and filed a brief for appellee.
Mr. Justice White
delivered the opinion of the Court.
Section 349 (a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U. S. C. § 1481 (a)(2), provides that “a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by... taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof.” The Act also provides that the party claiming that such loss of citizenship occurred must “establish such claim by a preponderance of the evidence” and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349 (c), as added, 75 Stat. 656, 8 U. S. C. § 1481 (c). The issues in this case are whether, in establishing loss of citizenship under § 1481 (a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481 (c).
I
Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing “adherence, obedience, and submission to the laws and authorities of the Mexican Republic” and “expressly renouncing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America....” App. to Brief for Appellant 5a. The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he “has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national.” Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris. Statement 21a.
A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but in December 1971 the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. App. to Juris. Statement 31a. As permitted by § 360 (a) of the Act, 66 Stat. 273, 8 U. S. C. § 1603 (a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo.
The District Court recognized that the first sentence of the Fourteenth Amendment, as construed in Afroyim v. Rusk, 387 U. S. 253, 268 (1967), “ 'protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship’ ” and that every citizen has “ ‘a constitutional right to remain a citizen... unless he voluntarily relinquishes that citizenship.’ ” App. to Juris. Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States.” Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had “knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality,” id., at 28a, and that “[t]he taking of an oath of allegiance to Mexico and renunciation of a foreign country [sic] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality.” Ibid. The District Court concluded that the United States had “proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States,” id., at 29a, and that he had therefore “voluntarily relinquished United States citizenship pursuant to § 349 (a) (2) of the... Act.” Ibid.
In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted “voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States,” id., at 25a, and that appellee “knew he was repudiating allegiance to the United States through his actions.” Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F. Supp. 1241, 1245 (SDNY 1975), aff’d, 532 F. 2d 809 (CA2), cert. denied, 429 U. S. 823 (1976), that “the declaration of allegiance to a foreign state in conjunction with the renuncia-tory language of United States citizenship ‘would leave no room for ambiguity as to the intent of the applicant.’ ” App. to Juris. Statement 23a.
The Court of Appeals reversed. 577 F. 2d 7 (1978). As the Court of Appeals understood the law — and there appears to have been no dispute on these basic requirements in the Courts of Appeals — the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee’s part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, “[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court’s findings.” Id., at 10. The Court of Appeals ruled, however, that under Ajroyim v. Busk, supra, Congress had no power to legislate the evidentiary standard contained in § 1481 (c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by “clear, convincing and unequivocal evidence.” 577 F. 2d, at 11. The case was remanded to the District Court for further proceedings.
The Secretary took this appeal under 28 U. S. C. § 1252. Because the invalidation of § 1481 (c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U. S. 970.
II
The Secretary first urges that the Court of Appeals erred in holding that a “specific intent to renounce U. S. citizenship” must be proved “before the mere taking of an oath of allegiance could result in an individual’s expatriation.” 577 F. 2d, at 11. His position is that he need prove only the voluntary commission of an act, such as swearing allegiance to a foreign nation, that “is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.” Brief for Appellant 24. We disagree.
In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that § 401 (e) of the Nationality Act of 1940, 54 Stat. 1168—1169, which provided that an American citizen “shall lose his nationality by... [vjoting in a political election in a foreign state,” contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401 (e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen’s intent to renounce his citizenship. This Court, however, in overruling Perez, “reject[ed] the idea... that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.” Afroyim v. Rusk, supra, at 257. The Afroyim opinion continued: § 1 of the Fourteenth Amendment is “most reasonably... read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.” 387 U. S., at 262.
The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481 (a) because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual’s “assent,” 387 u. S., at 257, in addition to his voluntary commission of the expatriating act. It is difficult to understand that “assent” to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.
The Secretary argues that the dissent in Perez, which it is said the Court’s opinion in Afroyim adopted, spoke of conduct so contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that “assent” should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that in such instances the “Government is simply giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.” Perez v. Brownell, supra, at 69. This suggests that the Chief Justice’s conception of “actions in derogation of undivided allegiance to this country,” 356 U. S., at 68, in fact would entail an element of assent.
In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481 (a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Nishikawa v. Dulles, 356 U. S. 129, 139 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.
This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op. Atty. Gen. 397. An “act which does not reasonably manifest an individual’s transfer or abandonment of allegiance to the United States,” the Attorney General said, “cannot be made a basis for expatriation.” Id., at 400. Voluntary relinquishment is “not confined to a written renunciation,” but “can also be manifested by other actions declared, expatriative under the [A]ct, if such actions are in derogation of allegiance to this country.” Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. “In- each case,” the Attorney General stated, “the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.” Id., at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 56-57, n. 28.
Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: “In consideration of the complete record, we view appellant’s declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship.” App. to Juris. Statement 50a. This same view — that expatriation depends on the will of a citizen as ascertained from his words and conduct — was also reflected in the United States’ response to the petition for certiorari in United States v. Matheson, 532 F. 2d 809, cert. denied, 429 U. S. 823 (1976). Insofar as we are advised, this view remained the official position of the United States until the appeal in this case.
As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it.
Ill
With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings and that the proof in such cases must be by clear and convincing evidence rather than by the preponderance standard prescribed in § 1481 (c). We are in fundamental disagreement with these conclusions.
In Nishikawa v. Dulles, 356 U. S. 129 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401 (c) of the Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa’s army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence.
Section 1481 (c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa. The provision “sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable — similarly—by preponderance of the evidence... H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961).
We see no basis for invalidating the evidentiary prescriptions contained in § 1481 (c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, supra, at 135. Nor do we agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F. 2d, at 10. Although § 1481 (c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 31 (1976); Hawkins v. United States, 358 U. S. 74, 78 (1958); Tot v. United States, 319 U. S. 463, 467 (1943).
We note also that the Court’s opinion in Ajroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra, at 139. In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished.
We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481 (c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that in criminal and involuntary commitment contexts we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U. S. 684 (1975); Addington v. Texas, 441 U. S. 418 (1979). This Court has also stressed the importance of citizenship and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization). None of these cases involved a congressional judgment, such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence.
IV
The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481 (c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481 (c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits such as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481 (c) is not otherwise constitutionally infirm.
Section 1481 (c) provides in relevant part that “any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” In enacting § 1481 (c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act — there, service in a foreign army — must be performed voluntarily, but it did insist that the Government have the benefit of the usual presumption of voluntariness and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence.
It is important at this juncture to note the scope of the statutory presumption. Section 1481 (c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision.
The majority opinion in Nishikawa referred to the “ordinary rule that duress is a matter of affirmative defense” to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U. S., at 134. Justices Frankfurter and Burton, concurring in the result, also referred to the “ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was.” Id., at 141. And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the “general rule that consciously performed acts are presumed voluntary” and referred to Federal Rule of Civil Procedure 8 (c), which treats duress as a matter of affirmative defense. 356 U. S., at 144. Yet the Court in Nishikawa, because it decided that “the consequences of denationalization are so drastic” and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id., at 133-138.
Section 1481 (c), which was enacted subsequently, and its legislative history, H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. See Hartsville Oil Mill v. United States, 271 U. S. 43, 49-50 (1926); Towson v. Moore, 173 U. S. 17, 23-24 (1899); Savage v. United States, 92 U. S. 382, 387-388 (1876). “Duress, if proved, may be a defence to an action... but the burden of proof to establish the charge... is upon the party making it... Mason v. United States, 17 Wall. 67, 74 (1873), The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also consti-tutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481 (e) has continuing vitality.
V
In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a
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Answer:
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songer_majvotes
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3
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
William Luther ELKINS, Petitioner-Appellee, v. Asa KELLEY, Director, State Board of Corrections, et al., Respondents-Appellants.
No. 26750.
United States Court of Appeals Fifth Circuit.
April 7, 1969.
Arthur K. Bolton, Atty. Gen. of Georgia, Marion O. Gordon, Asst. Atty. Gen. of Georgia, Atlanta, Ga., John W. Hin-chey, William R. Childers, Jr., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Ga., for appellants.
Richard W. Watkins, Jr., Jackson, Ga., for appellee.
Before RIVES, BELL and DYER, Circuit Judges.
RIVES, Circuit Judge:
Warden Smith appeals from a judgment granting Elkins a writ of habeas corpus on grounds that, under principles enunciated in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, his constitutional rights against self-incrimination have been violated during custodial interrogation. We vacate the judgment and remand the case with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies.
Elkins was arrested and questioned about the location of the murder weapon prior to the Supreme Court’s decision in Miranda. He was tried, however, approximately six weeks after the Miranda decision. Elkins was represented at trial by retained counsel, Wesley Asinof, Esq., a respected and experienced criminal defense attorney. The defense asserted was justifiable homicide.
At trial, one of the arresting officers testified that, as he arrested Elkins, he advised him that he did not have to make any statement and that he was constitutionally entitled to have a lawyer if he wished. Then the police officer testified that he asked Elkins where the murder weapon was and Elkins stated that he left it at his brother’s service station.
Elkins’ counsel did not object to admission of the testimony respecting the gun, nor to introduction of the weapon (the finding of which was clearly a fruit of Elkins’ statement to the arresting officer). In fact, Elkins attempted to bolster his justifiable homicide defense by rhetorically responding on cross-examination that he would not have made a voluntary turnover were he trying to avoid involvement in the homicide. On the other hand, defense counsel did object to admission of hearsay statements by Elkins’ nephew to another police officer in the presence of Elkins.
On appeal, Elkins, represented then by court-appointed counsel, enumerated as error the overruling of the defense objection at page 83 of the transcript, note 5 supra, and alleged a violation of the hearsay rule and of the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution. Cited obliquely as authority for this enumeration was Miranda v. Arizona, supra. See Elkins v. State, 1966, 222 Ga. 746, 152 S.E.2d 377, 378-379. In affirming the conviction, the Supreme Court of Georgia disposed of the objection issue with the observation that the hearsay “did not relate any incriminating admission of the defendant, and the testimony was not subject to the objection made.” Elkins v. State, supra at 379. Thus, thei Supreme Court of Georgia never passed upon the Miranda admissibility question, but disposed of no more than an inarticulate hearsay objection.
From the foregoing examination of the posture of this case as it appears before this Court, it becomes readily apparent that at least three questions must be decided before Elkins’ federal habeas petition can be decided on its merits. First, Elkins may never have squarely raised the Miranda issue before any state tribunal whether on appeal or by collateral attack; second, the Miranda issue may have been intentionally waived as a trial tactic based upon its inconsistency with the justifiable homicide defense ; third, the question is presented as to whether Miranda, which was designed to regulate police warning practices, should necessitate reversal when the interrogation without adequate warnings antedated the Supreme Court decision.
The hearing in the federal district court was limited to legal argument on the respondent’s, motion for summary judgment. There has been no eviden-tiary hearing on whether the Miranda issue was intentionally waived as a trial tactic because of its apparent inconsistency with the justifiable homicide defense. Instead, however, of reversing and remanding for such an evidentiary hearing and for decision of the questions of law, we vacate and remand with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies. Georgia has an adequate and available post-conviction procedure. Elkins should first exhaust his state remedies before seeking relief in a federal forum.
The judgment is therefore vacated and the case is remanded with directions to dismiss the petition without prejudice.
Vacated and remanded with directions.
. Miranda was decided on June 13, 1966; Elkins was tried on August 1, 1966 (R. 49).
. Testimony of Officer D. L. Fuller, Transcript, p. 79; Record, p. 121.
. The weapon was introduced without objection as State’s Exhibit No. 9 (Transcript 87; Record 128).
. Transcript, p. 239; Record, p. 252.
. Officer William D. Gregory noted that “I asked him [the nephew] if he, the prisoner [Elkins] had left a gun with him at the service station.” Before the next question could be answered, Mr. Asinof objected, stating: “Now, that’s a hearsay conversation.” The prosecution established that Elkins was present during the hearsay conversation and the trial court allowed the questioning to continue, whereupon Mr. Asinof made the following ambiguous comment: “If Tour Honor please, I want to make this observation. We are objecting on the ground that the testimony so far that the defendant stated that he did not wish to make any statement and that he wanted to consult with his attorney, and this would not be admissible against the defendant in any way; hearsay.” (Transcript 83, Record 124). The trial court overruled the objection. The nephew never answered the original inquiry whether Elkins had turned the gun over to him, although he did turn a weapon over to the police according to the officer’s testimony.
(Transcript 83-84; Record 125.)
. See Georgia Habeas Corpus Act of 1967, Ga.Laws 1967, p. 835; Ga.Code Ann. § 50-127.
. Peters v. Rutledge, 5 Cir. 1968, 397 F.2d 731. See Fox v. Dutton, 5 Cir. 1968, 406 F.2d 123; Picklesimer v. Smith, 5 Cir. 1968, 405 F.2d 186; Rearden v. Smith, 5 Cir. 1968, 403 F.2d 773; Henderson v. Dutton, 5 Cir. 1968, 397 F.2d 375. See also Spencer v. Wainwright, 5 Cir. 1968, 403 F.2d 778, indicating in footnotes thereto similar requirements of exhaustion of state remedies in Florida, Texas, Louisiana and Mississippi.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
G.W. GREEN, Petitioner-Appellant, v. James A. COLLINS, Director, Institutional Division Texas Department of Criminal Justice, Respondent-Appellee.
No. 91-6203.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1991.
Cynthia B. Lloyd, Houston, Tex., for petitioner-appellant.
Robert S. Walt, Atty. Gen. Office, Robert S.Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before POLITZ, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
I.
G.W. Green requests a stay of execution of his death sentence imposed by a Texas jury, a certificate of probable cause to enable him to appeal the district court’s denial of application of writ of habeas corpus and stay of execution, and appointment of counsel. Green is scheduled for execution on November 12, 1991, after midnight and before sunrise. This is Green’s first federal habeas corpus review in this court. On September 25, 1991, his two state habeas petitions were denied. On October 2, 1991, his execution was scheduled for November 12, 1991. However, his federal habeas petition was not filed until November 6, 1991. He presented seven issues to the district court in his original petition:
1. The jury could not give expression to his mitigating evidence as required by Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
2. Green was denied effective assistance of counsel in five particulars: counsel failed to interview and call all witnesses essential to his contention that his confession was coerced and involuntary; counsel failed to properly pursue a claim of indi-gency in support of a court-appointed investigator, handwriting expert, and independent psychiatrist for evaluation; counsel failed to obtain rulings on certain pretrial rulings; counsel failed to preserve any error of the trial court in not placing the full confession of Green’s co-defendant before the jury; and, finally, counsel failed to make certain evidentiary objections.
3. There was no finding by the state courts as required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
4. Green was deprived of rights secured by the fifth and fourteenth amendments by certain interrogation techniques of the state.
5. The fact-finding procedures in state habeas were inadequate.
6. Under Texas law, neither the state trial court nor the Texas Court of Criminal Appeals were authorized to issue findings of fact.
7. The federal district court failed to conduct a required evidentiary hearing.
Petitioner moved in district court for reconsideration of the court’s ruling that the state had furnished a psychiatrist. In the motion for reconsideration, Green urged that the appointed psychiatrist considered only competency to stand trial and not legal insanity. Green argues that the denial violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The district court denied the petition for reconsideration, concluding that the state granted the only request made by Green.
II.
We deny the request for stay of execution, and decline to issue a certificate of probable cause. We do so for essentially the reasons stated in the district court’s order filed November 8, 1991, and its order denying the petition for rehearing also entered on November 8, 1991, with three exceptions. First, we agree that petitioner has no colorable claim of a Penry violation. We reach that conclusion for reasons other than those stated by the district court. Specifically, we do not rest upon the district court’s analysis under Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Rather, we are persuaded that the jury could give expression to all of Green’s evidence in mitigation in answering the question of future dangerousness or deliberate acts, or both.
Second, we also reject the Enmund claim for reasons other than those relied upon by the district court. Enmund requires a state determination of the requisite participation by an accused. The jury’s answer to the question in the sentencing phase of whether Green acted deliberately meets the Enmund requirement.
Third, we agree with the district court’s rejection of Green’s claim that Texas denied him appointment of a psychiatrist in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), but we emphasize a different reason. Green has never made the “preliminary showing that his sanity at the time of the offense was likely to be a significant factor at trial.” Id., 105 S.Ct. at 1091.
Finally, we note that the motion for ap-pointment of counsel in fact requests either a substitution of counsel or the addition of counsel who have been informally assisting the court appointed counsel. Petitioner has at all times been represented by either retained or appointed counsel. We find no reason to disturb the ruling of the district court.
III.
We observe that although this death sentence was given by the jury more than 14 years ago, this is petitioner’s first federal habeas review by this court, as earlier noted. The application for a stay of execution and a certificate of probable cause is DENIED.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_casetyp1_7-3-5
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
CITY OF TACOMA, WASH., v. HOFFMAN.
No. 7441.
Circuit Court of Appeals, Ninth Circuit.
Sept. 5, 1934.
Howard Carothers, Corp. Counsel, Hilton B. Gardner, and Bartlett Rummell, Asst. Corp. Counsel, all of Tacoma, Wash. (U. E. Harmon, of Tacoma, Wash., of counsel), for appellant.
Elmer M. Hayden, P. D. Metzger, and A. E. Blair, all of Tacoma, Wash., for appellee.
Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges.
PER CURIAM.
There is substantial evidence to support the verdict and judgment. There are no exceptions to the charge to the jury. The assignments of error do not properly challenge rulings on the evidence. Most of such rulings^ moreover, were not prejudicial by reason of the charge of the court withdrawing from the consideration of the jury the issues to which such evidence was addressed. The judgment is affirmed, the application of appellee for the imposition of a penalty for a frivolous appeal is denied, as the judgment bears interest at 6 per cent., and the appeal was evidently undertaken and prosecuted in good faith.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
LANDRUM MILLS HOTEL CORP. et al., Defendants, Appellants, v. Misha FERHATOVIC a/k/a Misha Ferman, Plaintiff, Appellee.
No. 6068.
United States Court of Appeals First Circuit.
May 8, 1963.
Andrew B. Goodspeed, Boston, Mass., F. Fernandez Cuyar, San Juan, P. R., on the brief, for appellants.
Samuel J. Davidson, Jersey City, N. J., for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Puerto Rico following a jury verdict for the plaintiff in the sum of $25,000 in an action involving defendant hotel corporation’s alleged negligence in connection with the operation and maintenance of its beach and bathing facilities.
Defendants urge that (1) the trial judge erred in allowing the case to go to the jury and in refusing to direct a verdict for the defendants and (2) in refusing to grant a motion for judgment non obstante veredicto pursuant to Rule 50(b) of the Federal Rules of Civil Procedure.
Plaintiff was a guest at the La Concha Hotel in Puerto Rico, operated by defendant, Landrum Mills Hotel Corp. He had arrived at the hotel a short time before the events at issue occurred. On August 12, 1959, plaintiff went to the hotel’s beach to go swimming. Upon finishing his swim and as he was about to leave the water, he was struck in the face by a surf board. The surf board was labeled “La Concha” and there was evidence that it was being used at the time by an employee of the hotel, but plaintiff makes no claim based on the employee relationship.
Plaintiff’s theory of the case comes down essentially to the contention that defendants were negligent in (a) either allowing the use of surf boards in the area reserved for bathing or (b) in not providing more adequate supervision or safeguards in connection with use of surf boards.
In a request for admission of facts, pursuant to Rule 36 of the Federal Rules of Civil Procedure, defendants admitted that they had put up no warning signs or other devices to alert guests to the fact that surf boards were being used in the hotel’s bathing area. Defendants maintain that they had “beach employees in charge of activities therein, including the use of surfboard.” However, defendants offered no evidence to this effect.
Although the question of negligence is a close one, we believe that the case properly was allowed to go to the jury and that there was no error in the trial judge’s refusal to direct a verdict for the defendants. As we have pointed out previously:
“ * * * The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the ■contradictory evidence and inferences, judges the credibility of wit-messes, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * ” Roche v. New Hampshire Nat. Bank, 192 F.2d 203, 205 (1st Cir. 1951).
In the instant case, there is no question that the surf board was the property of the hotel and, consequently, it can be fairly implied that the hotel having purchased it, could reasonably expect that it would be used in the water. This expectation, we believe, placed the hotel under a duty either to rigidly circumscribe the areas in which the surf board could be utilized or to take due measures to apprise guests — frequenting the area reserved for bathing — of the existence of the danger stemming from the use of surf boards. From all that appears in the record, defendants undertook neither of these steps. One of the means by which the hotel could have met this responsibility would have been to erect signs on the beach to alert the hotel’s bathing guests of the potential danger inherent in the presence of surf boards in its bathing area. The hotel admitted that it did not do so. As was stated by the Supreme Court in another context: “In this posture of the proofs, there is ample evidence for a jury to determine whether the procedure followed satisfied the standard to be expected from a prudent man in light of the hazard to be prevented.” Webb v. Illinois Central R. Co., 352 U.S. 512, 514, 77 S. Ct. 451, 1 L.Ed.2d 503 (1957). Consequently, we believe that a jury could reasonably conclude that the hotel breached its duty to plaintiff. Under all the circumstances, we agree with the trial judge that the “jury’s verdict * * * was no doubt based on their own appreciation of the facts proved to them at the trial and the logical inferences which they could consider as derived therefrom.”
Judgment will be entered affirming the judgment of the district court.
. Plaintiff also joined as defendants Firemen’s Fund Insurance Company of New Fork and one Edwin Noel Cuevas.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
sc_certreason
|
B
|
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.
McGRATH, ATTORNEY GENERAL, as successor to the ALIEN PROPERTY CUSTODIAN, v. MANUFACTURERS TRUST CO.
NO. 11.
Argued October 12, 1949.
Decided November 7, 1949.
Joseph W. Bishop, Jr. argued the cause for the Attorney General. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and James L. Morrisson.
Leonard G. Bisco argued the cause for the Manufacturers Trust Co. With him on the brief was Henry Landau.
Mr. Justice Burton
delivered the opinion of the Court.
Numbers 11 and 15 are cross appeals from Clark v. Manufacturers Trust Co., 169 F. 2d 932 (C. A. 2d Cir.). Certiorari was granted in No. 11, on petition of the Custodian, to resolve a conflict between the judgment below and that in Clark v. Lavino & Co., 175 F. 2d 897 (C. A. 3d Cir.). The conflict is confined to the Custodian’s claim to the allowance of interest, in his favor, in a summary proceeding under § 17 of the Trading with the Enemy Act. He claims interest from the date that his Turnover Directive was served upon the Manufacturers Trust Company, here referred to as the bank, and computes such interest upon the sum which he ordered turned over. For the reasons hereinafter stated, we agree with the judgment below in its denial of interest. We granted certiorari also on the cross appeal of the bank in No. 15. This was to enable us to reexamine the pleadings and, if they were found to permit it, to consider the bank’s claim that the District Court lacked authority to order it to turn over to the Custodian the principal sum in question, in the face of the bank’s denial of its indebtedness to the enemy creditor for that sum, its claim of a setoff in excess of the alleged debt, and its claim to a lien upon the proceeds of the debt. We find that the record does not permit us to reach that issue.
February 1, 1946, the Custodian issued his Vesting Order No. 5791, 11 Fed. Reg. 3005, under authority of
§ 5 (b) of the Trading with the Enemy Act, vesting himself with the following described “property”:
“That certain debt or other obligation owing to Deutsche Reichsbank, by Manufacturers Trust Company, 55 Broad Street, New York, New York, arising out of a dollar account, entitled Reichsbank Direktorium Divisen Abteilung, and any and all rights to demand, enforce and collect the same, . . .
January 30, 1947, the Custodian served on the bank his Turnover Directive based upon his Vesting Order and thereby directed that the sum of $25,581.49, “together with all accumulations to and increments thereon, shall forthwith be turned over to the undersigned [the Custodian] to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States.”
October 29, 1947, the Custodian filed in the United States District Court for the Southern District of New York his petition against the bank seeking summary enforcement of his order under § 17 of the Act, supra. November 13, 1947, the bank answered.
December 12, 1947, the District Court, without opinion, directed the bank to pay to the Custodian $25,581.49, plus interest at 6% per annum from January 80, 1947. The Court of Appeals for the Second Circuit struck out the interest but otherwise affirmed the judgment. One judge said he would have preferred to limit that court’s holding to the point that the answer did not allege a sufficiently unequivocal claim to a setoff to raise that defense. Another dissented from the denial of interest. Petitions for certiorari were denied to both parties, January 17, 1949. 335 U. S. 910.
June 16, 1949, the Custodian asked leave to file a petition for rehearing and for a writ of certiorari on the ground that, on June 1, 1949, the Court of Appeals for the Third Circuit had decided Clark v. Lavino & Co., supra, in which it had expressly allowed interest to the Custodian under circumstances largely comparable to those in the case below. The bank asked leave to present its contentions should the Custodian’s petition for certiorari be granted. All applications were granted. 337 U. S. 953.
I.
The Trading with the Enemy Act is a war measure. It creates powerful and swift executive and summary procedures particularly for the seizure of the property of enemies by legal process as an effective alternative to seizure by military force. The Act expressly provides for the seizure of enemy-held claims to money owed on debts. Kohn v. Jacob & Josef Kohn, Inc., 264 F. 253 (S. D. N. Y.). Special proceedings are provided to try the merits of claims to property seized in such summary possessory procedures. The present action is a summary possessory proceeding under § 17. Section 16, which has accompanied § 17 in the Act since 1917, prescribes fines, sentences and forfeitures as special sanctions to punish willful violations of vesting orders or turnover directives as follows:
“That whoever shall willfully violate any of the provisions of this Act or of any license, rule, or regulation issued thereunder, and whoever shall willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of this Act shall, upon conviction, be fined not more than $10,000, or, if a natural person, imprisoned for not more than ten years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by a like fine, imprisonment, or both, and any property, funds, securities, papers, or other articles or documents, . . . concerned in such violation shall be forfeited to the United States.” 40 Stat. 425,50 U. S. C. App. § 16.
The Act makes no mention of interest charges in connection with the enforcement of these summary procedures. We recognize that, in the absence of express statutory provision for it, interest sometimes has been allowed in favor of the Government under other statutes when the Government’s position has been primarily that of a creditor collecting from a debtor. See Rodgers v. United States, 332 U. S. 371, 373, in which the rule was stated and interest disallowed. In the present case, however, we are not dealing with interest accruing to the Government upon contractual indebtedness or upon indebtedness such as that arising out of customs duties or taxes. We have here quite a different matter, the violation of a summary order of the Alien Property Custodian to turn over to him the physical possession of certain funds as a protective war measure. The Turnover Directive in the instant case is, in its essence, the same kind of an order as would have been issued to compel the delivery to the Custodian of the physical possession of a $25,000 bond owned by the Deutsche Reichsbank but held by the Manufacturers Trust Company in the latter’s safe-deposit vaults. Statutory fines, sentences and forfeitures are prescribed for willful violation of such an order and, in the case of the bond, it is obvious that there would be no basis for the addition of an interest charge, computed at a statutory or judicially determined rate on the face or estimated value of the bond and running merely from the date of the Turnover Directive. Similarly, we find no basis for adding such an interest charge in the instant case.
No claim of the Custodian for any interest accruing under the terms of the agreement of deposit is before us. The Custodian, in his Turnover Directive and in his petition, called for the delivery to him of the $25,581.49 owing to Deutsche Reichsbank on the date of the Vesting Order, February 1, 1946, together with all accumulations and increments thereon since that date. He made no showing of a contractual basis for any additions to such principal sum and, accordingly, judgment was rendered for the delivery to him of precisely $25,581.49, and no claim is made here that such sum is not the correct total amount of the indebtedness. The District Court, however, also ordered the bank to turn over to the Custodian 6% interest on $25,581.49 from January 30, 1947. This additional item reflected no terms of the deposit agreement. Whatever those terms may have been, they had not changed since February 1, 1946, so that any possible basis for the 6% interest from January 30, 1947, must be sought in the Trading with the Enemy Act. We find no authority in that Act for a 6% rate or for any other rate of coercive interest to be added as an incident to a summary order for the transfer of possession of funds. Accordingly, in No. 11, we affirm the judgment of the Court of Appeals, which omitted the interest.
II.
In No. 15, the parties have discussed several questions which would have been presented if the answer had contained a denial of the alleged debt, an unequivocal plea of setoff, or a claim of a lien upon the Deutsche Reichsbank’s interest in the debt or in its proceeds. The answer, however, did not present those issues and we do not consider them. When read as a whole, the answer did not deny the existence of the credit balance of $25,581.49 which the Custodian claimed was on deposit and which was the subject of the Custodian’s Vesting Order. Nor did it unequivocally assert a setoff. Instead, the answering bank alleged, on information and belief, that an offsetting indebtedness of the Deutsche Reichsbank to it arose from the fact that the Deutsche Reichsbank was an instrumentality and part of the German Government, that the German Government had guaranteed to the answering bank the payment to it of the debts of various German banks, and that, on the date of the Vesting Order, the indebtedness of said German banks to the answering bank was in excess of $25,581.49. Those allegations did not state that the Deutsche Reichsbank was such an instrumentality and such a part of the German Government as would make the Reichsbank automatically the guarantor of the debts of other German banks to the answering bank. The answer did not even allege the status of the guaranteed debts to be such as to entitle the answering bank to resort to the alleged guaranty of their payment by the Deutsche Reichsbank. The bank’s claim to a lien upon the deposit depended, likewise, upon the inadequately alleged indebtedness of the Deutsche Reichsbank to it.
For the foregoing reasons the judgment in No. 11 is affirmed, and the judgment in No. 15 is vacated so as to permit such amendments of the pleadings or further proceedings as shall be consistent with this opinion.
It is so ordered.
Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of either of these cases.
J. Howard McGrath was substituted for Tom C. Clark, as Attorney General, 338 U. S. 807.
The term “Custodian” is used to refer either to the Alien Property Custodian or to the Attorney General who succeeded to the powers and duties of the Alien Property Custodian under Executive Order No. 9788, effective October 15, 1946, 1 C. F. R. 1946 Supp. 169.
“Sec. 17. That the district courts of the United States are hereby-given jurisdiction to make and enter all such rules as to notice and otherwise, and all such orders and decrees, and to issue such process as may be necessary and proper in the premises to enforce the provisions of this Act, with a right of appeal from the final order or decree of such court as provided in sections one hundred and twenty-eight and two hundred and thirty-eight of the Act of March third, nineteen hundred and eleven, entitled ‘An Act to codify, revise, and amend the laws relating to the judiciary.’ ” 40 Stat. 425, 50 U. S. C. App. § 17.
Issued under § 7 (c), 40 Stat. 418, as amended, 40 Stat. 1020, 50 U. S. C. App. § 7 (c), and Executive Order No. 9193, 1 C. F. R. Cum. Supp. 1174, as amended by Executive Order No. 9567, 1 C. F. R. 1945 Supp. 77.
§ 5 (b), 40 Stat. 415, as amended, 55 Stat. 839, 50 U. S. C. App. § 5 (b), and Executive Order No. 9095, 1 C. F. R. Cum. Supp. 1121.
The following parts of the answer are especially material to our decision in No. 15:
“7. Furthermore, by a vesting order the Alien Property Custodian can only vest property or a debt which was in existence at the time of the issuance of the Vesting Order. Manufacturers Trust Company did not hold any property for or on behalf of the Deutsche Reichsbank. The relationship between Manufacturers Trust Company as a depository and the Deutsche Reichsbank as a depositor of Manufacturers Trust Company is a debtor and creditor relationship. The existence of a debt from Manufacturers Trust Company to the Deutsche Reichsbank can not be predicated upon the status of a particular account. Manufacturers Trust Company can not be a debtor of the Deutsche Reichsbank unless the total of their mutual credits exceeds the total of their mutual debits. At the time of the issuance of the Vesting Order No. 5791, Deutsche Reichsbank’s indebtedness to Manufacturers Trust Company was in excess of $25,581.49 and therefore there was no debt owing from Manufacturers Trust Company to Deutsche Reichsbank arising out of the Reichsbank Direktorium Divisen Ab[t]eilung account. The indebtedness of the Deutsche Reichsbank arose from the fact that Deutsche Reichsbank was upon information and belief, an instrumentality and part of the German Government. The German Government guaranteed to Manufacturers Trust Company the payment of debts of various German Banks to Manufacturers Trust Company. On June 1st, 191fi and June 14th, 1941, the indebtedness of the said banks to Manufacturers Trust Company, was in excess of $25,581.49.
“8. In addition to the foregoing, Manufacturers Trust Company is advised by counsel that a lien of a bank on a depositor’s balance for the amount of depositor’s indebtedness to the bank is well recognized by law. Manufacturers Trust Company is further advised by counsel that Section 8 of the Trading with the Enemy Act recognizes the lien of any person who is not an enemy or an ally of an enemy and the lienor’s right to realize thereon in satisfaction of the lienor’s claims.” (Emphasis supplied.)
“The Trading with the Enemy Act, whether taken as originally enacted, October 6, 1917, ... or as since amended, March 28, 1918, . . . November 4, 1918, . . . July 11, 1919, . . . June 5, 1920, ... is strictly a war measure and finds its sanction in the constitutional provision, Art. I, § 8, cl. 11, empowering Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.’ . . .
“It is with parts of the act which relate to captures on land that we now are concerned. . . . [After discussing particularly §§ 7 (c), 9, and 12]:
“That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable. . . . There is no warrant for saying that the enemy ownership must be determined judicially before the property can be seized; and the practice has been the other way. The present act commits the determination of that question to the President, or the representative through whom he acts, but it does not make his action final.” Stoehr v. Wallace, 255 U. S. 239, 241-242, 245-246. See also, Central Trust Co. v. Garvan, 254 U. S. 554, 568; Rubin, “Inviolability” of Enemy Private Property, 11 Law and Contemp. Prob. 166 (1945).
Section 9 (a) of the Act, 42 Stat. 1511, 50 U. S. C. App. § 9 (a), provides for the administrative consideration and allowance of claims to property transferred to the Custodian. A claimant also may sue in a District Court for an adjudication of the validity of his claim. Section 32, 60 Stat. 50, as amended, 60 Stat. 930, 50 U. S. C. App. § 32, authorizes the administrative recognition of claims to property in the possession of the Custodian and § 34, 60 Stat. 925, 50 U. S. C. App. § 34, authorizes a procedure for the allowance, and payment to claimants, of debts owed by the person whose property has been seized by the Custodian. See also, Central Trust Co. v. Garvan, 254 U. S. 554, 568; Garvan v. $20,000 Bonds, 265 F. 477 (C. A. 2d Cir.); Simon v. Miller, 298 F. 520, 524 (S. D. N. Y.); Kahn v. Garvan, 263 F. 909, 916 (S. D. N. Y.).
Petition filed October 29, 1947. Order to show cause issued that day. Answer filed November 13. Case heard and decided that day. Judgment entered December 12.
See also, penalties for willful violation added to § 5, 48 Stat. 1, 50 U. S. C. App. § 5 (b) (3). The Custodian may make the required Presidential determinations under § 7 (c). “In short, a personal determination by the President is not required; he may act through the Custodian, and a determination by the latter is in effect the act of the President.” Stoehr v. Wallace, 255 U. S. 239, 245; and see Central Trust Co. v. Garvan, 254 U. S. 554, 567.
E. g., Royal Indemnity Co. v. United States, 313 U. S. 289, 296; Billings v. United States, 232 U. S. 261; see also, Board of Commissioners v. United States, 308 U. S. 343, 350, 352.
For a description of the contemporary monetary and banking system of Germany and of the part played in it by the Deutsche Reichsbank, see Military Government Handbook, Germany, Section 5: Money and Banking, Army Service Forces Manual M356-5 Revised (March 1945), pp. 4, 66-73. For examples of differences between the liabilities of foreign public or semipublic corporations and those of the foreign governments to which they are related, see United States v. Deutsches Kalisyndikat Gesellschaft, 31 F. 2d 199 (S. D. N. Y.) and Coale v. Société Co-op., 21 F. 2d 180 (S. D. N. Y.).
5 Michie, Banks and Banking (Perm. Ed.) §§ 126-128, and cases cited; 7 Zollmann, Banks and Banking (Perm. Ed.) §§ 4392, 4563, 4590. See also, restrictions on assertion, without a federal license, of any right of setoff which did not exist before June 14, 1941. Executive Order No. 8785, §§ 1. A. and 1. E., 1 C. F. R. Cum. Supp. 948, and see Propper v. Clark, 337 U. S. 472.
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_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL TREASURY EMPLOYEES UNION and Joseph Mackin, Appellants, v. Jerome KURTZ, Commissioner, et al.
No. 79-1086.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 11, 1980.
Decided May 20, 1980.
Murray S. Horwitz, Atty., Dept, of Justice, Washington, D. C., with whom M. Carr Ferguson, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and Crombie J. D. Garrett, Atty., Dept, of Justice, Washington, D. C., were on brief, for appellees.
Myron C. Baum, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appellees.
William E. Persina, Associate Gen. Counsel, Washington, D. C., with whom Robert M. Tobias, Gen. Counsel, National Treasury Employees Union, Washington, D. C., was on brief, for appellants.
Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and JUNE L. GREEN, U.S. District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the court filed by District Judge JUNE L. GREEN.
Dissenting opinion filed by Senior Circuit Judge BAZELON.
JUNE L. GREEN, District Judge:
The issue in this ease is whether the District Court held correctly that appellants’ failure to exhaust their contractual remedies bars consideration of this suit. For the reasons stated below, we answer in the affirmative.
I.
Appellant Joseph Mackin, a Revenue Agent in the Internal Revenue Service (IRS) Philadelphia District Office, received a written reprimand for failing to report a bribery attempt. In response, Mr. Mackin and the appellant union, the National Treasury Employees Union (the Union) filed simultaneously a grievance and a lawsuit.
The grievance sought removal of the letter of reprimand from Mr. Mackin’s personnel file, because the IRS employee who originally interrogated him tape recorded their conversation without giving any Miranda -like warnings or assurances allegedly required by §§ 634.32(1) and 634.5(2) of the Internal Revenue Manual. The grievance alleged, inter alia, violation of Article 33, § 1(e) of the Multi-District Agreement (Agreement) between the IRS and the Union, which states that “No bargaining unit employer (sic) will be the subject of a disciplinary action except for reasons which will promote the efficiency of the service.”
Mr. Mackin requested and the IRS agreed to waive Steps 1 and 2 of the grievance procedure. A Step 3 meeting was held between Mackin and his counsel, and the Chief of the Philadelphia District Collections Division. At this meeting, appellants argued that the IRS failed to follow its procedures and had used improper tactics by obtaining information from Mr. Mackin without issuing warnings or assurances. The IRS Chief denied the grievance, ruling that Mr. Mackin was properly given a written reprimand for failing to report an apparent bribe.
No appeal was filed, although a Step 4 hearing before the District Director was available within 10 days of an adverse Step 3 decision. If Step 4 were also adverse, Mr. Mackin could have requested arbitration.
The lawsuit alleged violation of the Internal Revenue sections cited above, sought destruction of the tape from the initial interrogation, prohibition of the use of the information gleaned from the investigation in any proceeding against Mr. Mackin, and a declaratory order that the IRS should obey the regulations at issue.
Upon cross-motions for summary judgment, the District Court declared that jurisdiction existed pursuant to 28 U.S.C. § 1331 for the alleged violation of the agency regulations at issue, but that it could not be invoked properly since Mr. Mackin had failed to pursue his grievance.
II.
The Agreement clearly could have provided Mr. Mackin with the relief he sought both in his grievance and lawsuit. Article 33 § 6.C states that the arbitrator’s authority and jurisdiction are “confined exclusively to the validity of the disciplinary action.” In our view, the word “validity” encompasses the procedural irregularity alleged here. Indeed, the appellant so argued in his grievance. Further, there is no practical difference between the relief sought in the grievance and lawsuit. While appellants sought destruction of the tape, such relief would be highly unlikely. Even in criminal cases, exclusion of tainted evidence, not destruction, is the rule. Fed.R.Crim.P. 41(f); 3 Wright and Miller, Federal Practice and Procedure § 673 (1978 Supp.).
Contractual remedies existed to afford appellant the relief he sought in court: Mr. Mackin’s record could have been cleared, and the IRS put on notice that such methods of investigation would not be tolerated.
The general rule requiring exhaustion of administrative remedies is applicable to labor-management disputes where the issue is subject to a contractual grievance and arbitration procedure. Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). This rule applies where, as here, the issue involves alleged violations of the employer’s regulations which are subject to the grievance procedure. Weitzel v. Portney, 548 F.2d 489 (4th Cir. 1977).
Appellants’ argument that the violations of the Internal Revenue Manual alleged here create a separate and independent cause of action is foreclosed by the failure to attempt exhaustion of the contractual remedies. Weitzel v. Portney, supra, at 493.
The decision of the District Court is
Affirmed.
. The Internal Revenue Manual is the instructional handbook for inspectors of the Internal Security Division of the IRS. Section 634.32(1) requires Miranda -like warnings to be given to a subject or suspect (employee or non-employee) of a criminal investigation where prosecution is anticipated. Section 635.5(2) requires assurances of right to silence and non-prosecution where it has been ascertained that the employee will not be prosecuted.
. Appellants’ argument that the definition of “grievance” in Article 35 § 2 of the Agreement excludes remedying violations of the Internal Revenue Manual is undermined by their conduct in contesting the reprimand on these very grounds at the grievance hearing.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
LANCE, Inc. v. UNITED STATES.
No. 6263.
United States Court of Appeals, Fourth Circuit.
Argued June 15, 1951.
Decided June 18, 1951.
Frank H. Kennedy, Charlotte, N. C., for appellant and cross-appellee.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Thomas A. Uzzell, Jr., U. S. Atty., Ashville, N. C., Francis H. Fairley, Asst. U. S. Atty., Charlotte, N. C, Samuel D. Slade, Arthur W. Murphy and George F. Foley, Attorneys, Department of Justice, all of Washington, D. C., on the brief), for appellee and cross-appellant.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
These are cross appeals from a judgment in favor of the United States for the recovery of damages under the Walsh-Healey Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. §§ 35-45. The appeal of the United States complains because interest was awarded only from the institution of the action, the appeal of the defendant because the action was not held barred by the two-year statute of limitations imposed by section 6 of the Portal-to-Portal Act of May 14, 1947, 61 Stat. 87, 29 U.S.C.A. § 255. It is not necessary to pass upon the interest point, since we are satisfied that the maintenance of the action is barred by the statute of limitations relied on. The employments lipón which the action is ■based were in the year 1945. The action was not instituted until 1949, more than four years later. The government contends that the cause of action did not accrue until the Public Contracts Administrator made his report with respect to the matter, which was in 1949, only a few months before the action was instituted. The judge below so held, which was in accordance with the holdings in several District Court decisions: Since then the Court of Appeals of the Fifth Circuit, after a careful review of the matter, has held to the contrary in an able opinion by Judge Sibley in United States v. Lovknit Mfg. Co., Inc., 5 Cir., 189 F.2d 454. We are in accord with this holding and think that nothing need be added to what was said by Judge Sibley. The judgment appealed from is accordingly 'reversed.
Reversed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
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.
Charles H. HAMMIL d/b/a Hammil Equipment Company and Browntown Mill, Inc., Plaintiffs-Appellants, Cross-Appellees, v. RICKEL MANUFACTURING CORPORATION, Defendant-Appellee, Cross-Appellant.
Nos. 83-1249, 83-1463.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 1983.
Decided Oct. 11, 1983.
Thomas D. Bell, Doar, Drill & Skow, S.C., Lila H. Hambleton, New Richmond, Wis., for plaintiffs-appellants, cross-appellees.
Richard R. Grant, Consigny, Andrews, Hemming & Grant, Janesville, Wis., for defendant-appellee, cross-appellant.
Before CUMMINGS, Chief Judge, ESCH-BACH, Circuit Judge, and NEAHER, Senior District Judge.
The Honorable Edward R. Neaher, Senior District Judge for the Eastern District of New York, is sitting by designation.
CUMMINGS, Chief Judge.
On January 9, 1979, Charles H. Hammil, doing business as Hammil Equipment Company (HEC), and Browntown Mill, Inc., a Wisconsin corporation located in Milton, Wisconsin, sued Rickel Manufacturing Corporation (RMC), a Kansas corporation located in Kansas City, Missouri. Defendant and HEC, a division of Browntown Mill, Inc., entered into a dealership agreement on June 1, 1976, entitling that division to distribute defendant’s goods. After one year either party was entitled to terminate the agreement on 30 days’ notice. On October 14,1977, the defendant terminated the dealership, effective February 1, 1978. The plaintiffs charged that the termination was without good cause and that the notice of termination was defective in that it was unconditional and failed to provide a time period within which they could rectify any claimed deficiency. They sought $1,000,000 in damages plus costs and attorneys’ fees and requested a jury trial. Defendant’s answer asserted that (1) the contract was properly terminated under Kansas law, which was the law specified in the contract, (2) plaintiffs failed to mitigate damages, (3) plaintiffs defaulted in payments under the contract, (4) plaintiffs failed to submit appropriate financial documents and (5) plaintiffs failed to pursue the promotion and sale of defendant’s products with their best efforts.
In an amended answer, defendant asserted the following additional affirmative defenses: (1) failure to take action called for in the notice of termination and to comply, with the contract, thus estopping plaintiffs from suit, (2) insolvency at time of notice, which, under the Wisconsin Fair Dealership Law (WFDL), estopped plaintiffs from proceeding, (3) bar of one-year statute of limitations, (4) waiver and (5) failure to state a claim. Next defendant moved for partial summary judgment, urging that Kansas law was applicable rather than the WFDL. Subsequently defendant moved for judgment on the pleadings and for summary judgment (1) because of the one-year statute of limitations contained in Wisconsin Statute § 893.93(3)(b) and (2) because the dealership agreement gave defendant an immediate right to terminate without liability therefor.
The district court handed down four memoranda and orders. In the first, the court ruled that Wisconsin law governed this diversity action because the WFDL represented fundamental policy of that state “to protect dealers from the unjust termination of their dealership agreements” (No. 79-C-77 at 6 (W.D.Wis. Sept. 10, 1980)).
In its second decision, the court granted defendant’s motion for summary judgment with respect to plaintiffs’ second claim (which arose under Wis.Stat. § 135.04 (1979) setting forth the notice requirements for terminating or changing a dealership) on the ground that a statutory violation occurs when a defective notice is sent to a dealer, so that the one-year statute of limitations contained in Wisconsin Statutes § 893.93(3)(b) barred that cause of action. However, as to plaintiffs’ claim under § 135.03 for termination without good cause, the court held no violation occurred under § 135.03 until termination so that the cause of action under that provision was timely and had to be tried.
In his third decision and order, which was a pre-trial ruling, Judge Warren permitted defendant to introduce good cause evidence regarding plaintiffs’ insolvency despite no reference thereto in the termination notice, on the ground that the statutory notice requirements specifically exempted a reference to dealer insolvency.
' The court’s final decision and order were handed down after the jury trial on the § 135.03 claim resulted in a special verdict that defendant had good cause for terminating the dealership. The court held that adequate evidence of plaintiff Hammil’s precarious financial situation permitted the jury to infer that he was insolvent, in bad faith, and in noncompliance with “reasonable and nondiscriminatory requmements of the dealership agreement” (No. 79-C-77 at 3 (W.D.Wis. Jan. 17, 1983)), any of which, he said, would constitute good cause for termination under Section 135.03. Judge Warren also held that under the WFDL, defendant need only prove good cause for termination by a preponderance of the evidence. He concluded that issues of insolvency and financial status were material to the issue of good cause for termination and that the evidence of plaintiffs’ financial dealings enabled the jury to consider the issue of their bad faith as well. Therefore, plaintiffs’ motions for judgment n.o.v. and for a new trial were denied. Plaintiffs no longer challenge defendant’s good cause for termination.
On appeal, plaintiffs argue that the district court erred in granting defendant’s motion for summary judgment on the claim arising under § 135.04. That Section provides as follows:
135.04 Notice of termination or change in dealership. Except as provided in this section, a grantor shall provide a dealer at least 90 days’ prior written notice of termination, cancellation, nonrenewal or substantial change in competitive circumstances. The notice shall state all the reasons for termination, cancellation, nonrenewal or substantial change in competitive circumstances and shall provide that the dealer has 60 days in which to rectify any claimed deficiency. If the deficiency is rectified within 60 days the notice shall be void. The notice provisions of this section shall not apply if the reason for termination, cancellation or nonrenewal is insolvency, the occurrence of an assignment for the benefit of creditors or bankruptcy. If the reason for termination, cancellation, nonrenewal or substantial change in competitive circumstances is nonpayment of sums due under the dealership, the dealer shall be entitled to written notice of such default, and shall have 10 days in which to remedy such default from the date of delivery or posting of such notice.
Another provision of the WFDL covers damage actions and provides as follows:
135.06 Action for damages and injunctive relief. If any grantor violates this chapter, a dealer may bring an action against such grantor in any court of competent jurisdiction for damages sustained by him as a consequence of the grantor’s violation, together with the actual costs of the action, including reasonable actual attorney fees, and the dealer also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal or substantial change of competitive circumstances.
At the time this lawsuit was filed in 1979, § 893.14 together with § 893.22 of the Wisconsin Statutes provided that an action under the WFDL must be commenced within one year “after the cause of action has accrued.” Their successor, § 893.93(3)(b), became effective on July 1, 1980, and provides that an action under the WFDL “shall be commenced within one year after the cause of action accrues or be barred.” Plaintiffs contend that the court below should not have found the § 135.04 claim barred by the statute of limitations, because that claim did not accrue until the dealership actually terminated on February 1, 1978. Judge Warren had found that the action accrued at the time the defective notice was given in October 1977. For the reasons stated below, we affirm that the § 135.04 claim was barred because not filed within the statute of limitations period.
Under Wisconsin law, a cause of action accrues when “there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.” Wisconsin Natural Gas v. Ford, Bacon and Davis Construction, 96 Wis.2d 314, 323, 291 N.W.2d 825, 830 (1980) (quoting Holifield v. Setco Industries, Inc., 42 Wis.2d 750, 756, 168 N.W.2d 177, 179 (1969)).
According to § 135.06 a dealer has a claim under the WFDL capable of present enforcement when his or her grantor’s violation of a provision of the WFDL has caused the dealer to incur damages. In the case before us, both RMC’s alleged violation of § 135.04 and HEC’s resulting damages occurred before January 9, 1978, or more than one year before HEC commenced its action.
RMC has suggested that HEC was insolvent, so that RMC was not required to provide HEC with notice of an opportunity to cure and hence was not in violation of § 135.04. We cannot accept this suggestion for two reasons. First, the fact of HEC’s insolvency has not really been established in the record before us. It is true that Judge Warren indicated that there was evidence from which the jury could have decided that HEC was insolvent. However, the jury’s verdict that there was good cause for HEC’s termination did not depend on a decision that HEC was insolvent; that verdict may have been based solely on the existence of two delinquent accounts. The existence of two delinquent accounts themselves, of course, does not give rise to the necessary conclusion that a delinquent payor is insolvent. The verdict may also have been based on HEC’s bad faith or failure to comply with RMC’s essential, reasonable and nondiscriminatory requirements (RMC App. 117).
Secondly, even if the jury had found that HEC was insolvent, that finding alone would not have been sufficient under § 135.04 to exempt RMC from the opportunity-to-cure requirement. That Section’s exceptions come into play only “if the reason for termination * * * is [dealer’s] insolvency, the occurrence of an assignment for creditors or bankruptcy” (emphasis added). The record before us simply does not show that RMC’s reason for termination was HEC’s insolvency, nor is either of the other exceptions claimed.
RMC’s termination notice stated that HEC was being terminated because HEC’s failure to pay two delinquent accounts, failure to submit financial statements to RMC, and failure to use best efforts to promote and sell RMC’s machinery constituted specific defaults under the Dealership Agreement (HEC App. 37-38). Further, RMC does not claim that HEC’s insolvency was a reason for the termination. The most RMC asserts is that it presented sufficient evidence from which the jury could find insolvency. We cannot assume that RMC terminated HEC for insolvency when RMC has never contended that this was its reason and when in its notice RMC instead gave other reasons for the termination.
Because RMC’s reasons for termination contained in the notice did not fall within the three exceptions to § 135.04’s requirements language, RMC’s notice was required to “state the grantor’s reasons for termination and the time within which the dealer may rectify or remedy the grantor’s stated grievance.” White Hen Pantry v. Buttke, 100 Wis.2d 169, 174, 301 N.W.2d 216, 219 (1981), and § 135.04. RMC violated § 135.-04 in October 1977 when it provided HEC with the unconditional and therefore deficient notice.
As soon as HEC incurred damages as a result of RMC’s violation, its cause of action under § 135.04 accrued and the one-year statute of limitations period began to run. It is clear that these damages were incurred more than one year before January 9, 1979, the date plaintiffs commenced their cause of action. This record shows that the parties ceased doing business together right after the notice of termination in October 1977, and plaintiffs were given no time to cure their deficiencies. At the same time, RMC expanded its business operations with Fertilizer Application Systems, Inc. (FAS), its Watseka, Illinois dealer, to include the Wisconsin area that was previously HEC’s primary responsibility. Commencing in October 1977 at the time of the termination notice RMC no longer allowed HEC to order parts at the dealer discount rate (HEC App. 30). From thenceforward, customers who needed parts not available in HEC’s remaining inventory were told by HEC to obtain them from FAS (HEC App. 54). About November 11, 1977, RMC removed the dealership floor plan equipment from HEC’s premises and immediately transferred it to FAS (HEC App. 31). RMC authorized FAS, not HEC, to make contacts with potential Wisconsin customers at a major trade show in late November 1977 (HEC App. 32). Finally, on December 5,1977, RMC paid HEC the final balance due to the terminated dealer (HEC App. 35). It is clear, then, that RMC substituted FAS for HEC as its Wisconsin dealer when it provided HEC with the termination notice in October 1977. It is at that time that HEC first incurred damages as a result of RMC’s arguably defective notice and not, as HEC argues, at the February 1, 1978 termination date.
Plaintiffs’ cause of action for damages resulting from defendant’s violation of § 135.04 was barred by the Wisconsin statute of limitations because it was brought more than one year after the cause of action accrued. Therefore, the district court’s judgment is affirmed.
. The lawsuit was initially filed in the Circuit Court for Rock County, Wisconsin, but was removed by defendant under 28 U.S.C. § 1441 to the court below as a diversity case.
. The dealership agreement entitled defendant to terminate immediately a dealer subject to insolvency proceedings. The record does not reveal that HEC was subject to insolvency proceedings at the time the termination notice was issued nor at any time thereafter.
. Defendant’s motion to dismiss the appeal is denied. In view of our disposition, we have found it unnecessary to address other contentions of the parties.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
FIRST NAT. BANK OF WACO et al. v. SHEEHY. In re SOUTH BROS. TRUNK CO.
Circuit Court of Appeals, Fifth Circuit.
November 27, 1928.
No. 5331.
Allan D. Sanford and H. M. Richey, both of Waco, Tex., for appellants.
W. W. Naman, of Waco, Tex. (Spell, Naman & Penland, of Waco, Tex., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Rehearing denied January 12, 1929.
BRYAN, Circuit Judge.
The District Judge affirmed orders of the referee in bankruptcy which required the appellant banks to pay certain bank deposits over to the trustee in bankruptcy. The banks take the position on this appeal that they had the right to credit the deposits on notes which they held against the bankrupt
On September 17, 1926, the South Bros. Trunk Company had a deposit of $15 in the First National Bank of Waco, Tex., and owed that bank $17,500 on notes. On the same date the trunk company had a deposit of $4,489.06 in the Citizens’ National Bank of Waco, and owed that bank $10,000 on notes. At that time the trunk company was insolvent, and its stockholders turned its assets and the management of its affairs over to' a- committee, with authority to dispose of such assets as were necessary to pay its debts. The presidents of the twtf banks were stockholders of the trunk company, and they became chairman and treasurer, respectively, of this committee. The banks themselves and other principal creditors joined with the committee in sending out letters requesting the co-operation of the remaining creditors. The committee took eharge of the trunk company’s bank accounts, and transferred its bank deposits to the credit of the committee, in the name of the president of the Citizens’ National Bank for the account of the trunk company. The deposits in the banks were thereafter made to the credit of the committee, and were increased by collections to such an extent that, when the petition in bankruptcy was filed against the trunk company the deposits amounted to $5,760.66 in the First National Bank, and to $5,396.22 in the Citizens’ National Bank. In the meantime the notes held by the banks had not been reduced. When bankruptcy intervened, each of the banks credited the notes it held with the amount on deposit.
Section 68 of the Bankruptcy Act (11 USCA § 108) authorizes mutual debts or credits between the estate of the bankrupt and the creditors to be set off, and the balances to be allowed or paid. We are of opinion that the relation of debtor and creditor wMch ordinarily exists between banks and their depositors was so changed by the participation of the banks in the plan of the committee as to make the deposits a trust fund for the benefit, not only of the trunk company, but of all its creditors as well. Upon the creation of the committee the deposits no longer remained subject to cheek by the trunk company, but by agreement were turned over to the committee and placed to its credit. The banks waived their banker’s liens on deposits to the credit of the trunk company, by agreeing to the transfer of those deposits to the credit of the committee. To allow the banks afterwards to take credit, as against the trunk company, on their notes, would be to uphold a violation of the agreement under which all deposits were held in trust. May v. Henderson, 268 U. S. 111, 116, 45 S. Ct. 456, 69 L. Ed. 870; Merrimack Nat. Bank v. Bailey (C. C. A.) 289 F. 468; Wagner v. Citizens’ Bank, 122 Tenn. 164, 122 S. W. 245, 28 L. R. A. (N. S.) 484, 135 Am. St. Rep. 869, 19 Ann. Cas. 483.
The order appealed from is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_r_subst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
KFKB BROADCASTING ASS'N, Inc., v. FEDERAL RADIO COMMISSION.
No. 5240.
Court of Appeals of District of Columbia.
Argued Jan. 6, 1931.
Decided Feb. 2, 1931.
Geo. E. Strong, of Washington, D. C., for appellant.
Thad H. Brown, Arthur W. Seharfeld, and D. M. Patrick, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decision, of the Federal. Radio Commission denying appellant’s application for the renewal of its station license.
The station is located at Milford, Kan., is operating on a frequency of 1,050 kilocycles with 5,000 watts power, and is known by the call letters.KFKB. The station was first licensed by the Secretary of Commerce on September 20, 1923, in the name of the Brinkley-Jones Hospital Association, and intermittently operated until June 3,1925. On October 23, 1926, it was relicensed to Dr. J. R. Brinkley with the same call letters and continued to be so licensed until November 26, 1929, when an assignment was made to appellant corporation.
On March 20, 1930, appellant filed its application for renewal of license (Radio Act of 1927, c. 169, 44 Stat. 1162, U. S. C. Supp. 3, tit. 47, § 81, et seq. [47 USCA § 81 et seq.]). The commission, failing to find that public interest, convenience, or necessity would be served thereby, accorded appellant opportunity to be heard. Hearings were had on May 21, 22, and 23,1930, at which appellant appeared by counsel and introduced evidence on the question whether the granting of the application would be in the public interest, convenience, or necessity. Evidence also was introduced in behalf of the commission. Upon consideration of the evidence and arguments, the commission found that public interest, convenience, or necessity would not be served by granting the application and, therefore, ordered that it be denied, effective June 13, 1930. A stay order was allowed by this court, and appellant has since been operating thereunder.
The evidence tends to show that Dr. J. R. Brinkley established Station KFKB, the Brinkley Hospital, and the Brinkley Pharmaceutical Association, and that these institutions are operated in a common interest. White the record shows that only 3 of the 1,000 shares of the capital stock of appellant are in Dr. Brinkley’s name and that his wife owns 381 shares, it is quite apparent that the doctor actually dictates and controls the policy of the station. The Brinkley Hospital, located at Milford, is advertised over Station KFKB. For this advertising the hospital pays the station from $5,000 to $7,000 per month.
The Brinkley Pharmaceutical Association, formed by Dr. Brinkley, is composed of druggists who dispense to the public medical preparations prepared according to formulas of Dr. Brinkley and known to the public only by numerical designations. Members of the association pay a fee upon each sale of certain of those preparations. The amounts thus received are paid the station, presumably for advertising the preparations. It appears that the income of the station for the period February, March, and April, 1930, was as follows:
Brinkley Pharmaceutical Association ...................... $27,856.40
Brinkley Hospital............. 6,500.00
All other sources.............. 3,544.93
Total..............!.....$37,901.33
Dr. Brinkley personally broadcasts during three one-half hour periods daily over the station, the broadcast being referred to as the “medical question box,” and is devoted to diagnosing and prescribing treatment of eases from symptoms given in letters addressed either to Dr. Brinkley or to the station. Patients are not known to the doctor except by means of their letters, each letter containing a code signature, which is used in making answer through the broadcasting station. The doctor usually advises that the writer of the letter is suffering from a certain ailment, and recommends the procurement from one of the members of the Brinkley Pharmaceutical Association, of one or more of Dr. Brinkley’s prescriptions, designated by numbers. In Dr. Brinkley’s broadcast for April 1, 1930, presumably representative of all, he prescribed for forty-four different patients and in all, save ten, he advised the procurement of from one to four of his own prescriptions. We reproduce two as typical:
“Here’s one from Tillie. She says she had an operation, had some trouble 10 years ago. I think the operation was unnecessary) and it isn’t very good sense to have an ovary removed with the expectation of motherhood resulting therefrom. My advice to you is to use Women’s Tonic No. 50, 67, and 61. This combination will do for you what you desire if any combination will, after three months persistent use.
“Sunflower State, from Dresden Kans. Probably he has gall stones. No, I don’t moan that, I mean kidney stones. My advice to you is to put him on Prescription No. 80 and 50 for men, also 64. I think that he will be a whole lot better. Also drink a lot of water.”
In its “Facts and Grounds for Decision,” the commission held “that the practice of a physician’s prescribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, is inimical to the public health and safety, and for that reason is not in the publie interest”; that “the testimony in this case shows conclusively that the operation of Station KFKB is conducted only in the personal interest of Dr. John R. Brinkley. White it is to be expected that a licensee of a radio broadcasting station will receive some remuneration for serving the public with radio programs, at the same time the interest of the listening public is paramount, and may not be subordinated to the interests of the station licensee.”
This being an application for the renewal of a license, the burden is upon the ap-plieant to establish that such renewal would be in the public interest, convenience, or necessity (Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 114, 66 A. L. R. 1355; Campbell v. Galeno Chem. Co., 281 U. S. 599, 609, 50 S. Ct. 412, 74 L. Ed. 1063), and the court will sustain the findings of fact of the commission unless “manifestly against the evidence.” Ansley v. Fed. Radio Comm., 60 App. D. C. 19, 46 F.(2d) 600.
We have held'that the business of broadcasting, being a species of interstate commerce, is subject to the reasonable, regulation of Congress. Technical Radio Lab. v. Fed. Radio Comm., 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355; City of New York v. Fed. Radio Comm., 59 App. D. C. 129, 36 F.(2d) 115; Chicago Federation of Labor v. Fed. Radio Comm., 59 App. D. C. 333, 41 F. (2d) 422. It is apparent, we think, that the business is impressed with a public interest and that, because the number of available broadcasting frequencies is limited, the commission is necessarily called upon to consider the character and quality of the service to be rendered. In considering an application for a renewal of the license, an important consideration is the past conduct of the applicant, for “by their fruits ye shall know them.” Matt. VII :20. Especially is this true in a case like the present, where the evidence clearly justifies the conclusion that the future conduct of the station will not differ from the past.
In its Second Annual Eeport (1928), p. 169, the commission cautioned broadcasters “who consume much of the valuable time allotted to them under their licenses in matters of a distinctly private nature which are not only uninteresting, but also distasteful to the listening public.” When Congress provided that the question whether a license should be issued or renewed should be dependent upon a finding of public interest, convenience, or necessity, it very evidently had in mind that broadcasting should not be a mere adjunct of a particular business but should be of a public character. Obviously, there is no room in the broadcast band fo.r every business or sehool of thought.
In the present ease, while the evidence shows that much of appellant’s programs is entertaining and unobjectionable in character, the finding of the commission that the station “is conducted only in the personal interest of Dr. John E. Brinkley” is not “manifestly against the evidence.” We are further of the view that there is substantial evidence in- support of the finding of the Commission that the “medical question boy” as conducted by Dr. Brinkley “is inimical to the public health and safety, and for that reason _ is not in the public interest.”
Appellant contends that the attitude of , the commission amounts to a censorship of the station contrary to the provisions of section 29 of the Eadio Act of 1927 (47 USCA § 109). This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s-broadcasting matter to scrutiny prior to its release.. In considering the question whether the publie interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.
As already indicated, Congress has imposed upon the commission the administrative function of determining whether or not a station license should be renewed, and the commission in the present ease has in the exercise of judgment and discretion ruled against the applicant. We are asked upon the record and evidence before the commission to substitute our judgment and discretion for that of the commission. While section 16 of the Radio Act of 1927 (44 Stat. 1162, 1169, U. S. C., Supp. 3, tit. 47, § 96) authorized an appeal to this court, we do not think -it was the intent of Congress that we should disturb the action of the commission in a ease like the present. Support is found for this view in the Act of July 1, 1930 (46 Stat. 844 [47 USCA § 96]), amending section 16 of the 1927 Act. The amendment specifically provides “that the review by the court shall be limited to questions of law and that findings of fact by the commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the commission are arbitrary or capricious.” As to the interpretation that should be placed upon such provision, see Ma-King v. Blair, 271 U. S. 479, 483, 46 S. Ct. 544, 70 L. Ed. 1046.
We are therefore constrained, upon a careful review of the record, to affirm the decision.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_usc1
|
28
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Kenneth WATSON, Appellant, v. UNITED STATES of America, Appellee.
No. 15733.
United States Court of Appeals Fifth Circuit.
Dec. 16, 1955.
Kenneth Watson, Seagoville, Tex., for appellant.
Cavett S. Binion, Asst. U, S. Atty., Ft. Worth, Tex., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and BROWN, Circuit Judges.
PER CURIAM.
Appellant, defendant below, was convicted, on his plea of guilty, of knowingly uttering and publishing a certain falsely altered United States postal money order issued in the amount of $6 and falsely raised to $60.
Sentenced to five years imprisonment, the maximum sentence which could be imposed for the offense charged, he -is here insisting as grounds for reversal: that the sentence was excessive; and that his plea of guilty was not voluntarily and understandingly entered in that it was made upon the basis of pretrial discussions with government investigators and a letter from the United States Attorney by which he was led to believe and did believe, that if he pleaded not guilty and was convicted he would receive .the maximum sentence, while -if he pleaded guilty he would receive leniency, perhaps probation.
These matters, relevant and important as they undoubtedly would be if this were an appeal from a motion under Section 2255, 28 U.S.C., to set aside a judgment because entered on waiver of counsel and a plea of guilty on the ground that the waiver and plea had not been intelligently and voluntarily made, are not before us- for consideration on this record and this appeal. For the judgment appealed from is the judgment of sentence and nothing in the record relevant to that appeal at all impeaches it.
The judgment is affirmed, without prejudice, however, to the right of the appellant to proceed as he may be, advised by motion to correct or vacate judgment under Section 2255.
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellant, v. CENTRAL CAROLINA BANK AND TRUST COMPANY, Trustee, and Luther R. Veasey, Appellees.
No. 14725.
United States Court of Appeals, Fourth Circuit.
Oct. 2, 1970.
William L. Osteen, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., Gerald W. Jones and Dorothy E. Mead, Attys., Department of Justice, on brief for appellant.
Lillard H. Mount and Richard M. Hut-son, II, Durham, N. C., on brief for ap-pellees. ,
Before HAYNSWORTH, Chief Judge, and SOBÉLOFF and BOREMAN, Circuit Judges. ,
HAYNSWORTH, Chief Judge:
The Attorney General has moved for summary reversal of the District Court’s order denying a preliminary injunction in the Government’s suit to require the defendants .to desegregate their golfing facility. We reverse and remand for entry of a preliminary injunction pending final determination of the action.
The defendant bank is the trustee of the Durham Foundation, which operates Hillandale Golf Course, located in Durham, North Carolina. Hillandale was established pursuant to a 1939 deed granting certain realty to the Foundation to “be used for general recreational purposes by the white citizens of Durham, City and County *■ * * ” The individual defendant is the manager of Hillandale; he is also the proprietor of the Hillandale pro shop, which is located on the premises of Hillandale and which he operates under lease from the trustee. The pro shop sells golfing equipment, much of which is manufactured out of North Carolina. In addition it rents electric golf carts to Hillandale patrons. These carts are assembled in North Carolina, but components representing approximately 35 per cent of their finished value come from out of the state. At the time the action was commenced there was a snack bar located in the pro shop, but it was discontinued and all food service equipment was removed some two weeks after the complaint was filed.
From the time of its inception, Hillan-dale has been open to white residents of North Carolina on payment of a greens fee. Negroes are uniformly excluded.
This action was instituted by the Attorney General, as authorized by the Civil Rights Act of 1964 (42 U.S.C. § 2000a-5). He contends that the Act requires Hillandale to admit persons to its facilities without regard to race, arguing that it is a place of public accommodation both as an establishment having on its premises a food service facility under § 2000a(b) (2), and as a place of entertainment under § 2000a(b) (3). We consider here only the question of Hillandale’s coverage as a place of entertainment affecting commerce.
The record indicates that, although they may be separate in a business sense, Hillandale and the pro shop are so intertwined in operation that they may properly be considered a single enterprise. Both are owned by the Foundation; the pro shop is located on the golf course premises and is leased and operated by the golf course manager. The shop contains a lounge and locker rooms which are used by patrons of the golf course and which do not appear to be intended for any other purpose. It offers golfing equipment for sale, much of which is doubtless used at Hillandale. In addition, the shop owns forty electric golf carts which are rented to Hillandale patrons for use on the golf course. In short, the pro shop appears to exist solely as an adjunct to Hillandale to provide its patrons with products and services normally expected to be available at such an establishment. Without the golf course, there appears no reason for the pro shop, as such, to exist. It is possible, though unlikely, that a golfer might come to the pro shop at Hillandale to purchase balls and clubs which he intended to use exclusively elsewhere. It is not even imaginable, however, that the electric carts rented by the shop could serve any purpose other than to provide a convenience to Hillandale’s patrons. The pro shop, therefore, is an integral part of the place of entertainment, which Hillandale unquestionably is. Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697.
If the products and services provided by the pro shop are “sources of entertainment which move in commerce,” 42 U.S.C. § 2000a(c) (3), Hillandale is a covered establishment and is subject to the Act’s requirement of non-discrimination. Under Daniel v. Paul, supra, there can be little question but that they are. The products and services furnished by the pro shop bear a closer relationship to the total operation at Hillandale than did the sources of entertainment held to result in coverage of the facility in Daniel. The connection with interstate commerce is as great. Of the golfing equipment sold by the pro shop, it is undisputed that more than half was manufactured outside of North Carolina. Although the electric golf carts are assembled in North Carolina, most of their essential parts are manufactured in other states. Since each cart represents an investment of about $1,000, approximately $14,000 of the total $40,000 investment in carts represents components originating out of North Carolina.
On the facts discussed above, the plaintiff has shown a high probability that he will ultimately be entitled to the relief sought.
While there are no private plaintiffs involved in this action, this does not mean that the requirement that irreparable injury be shown should be so construed as to defeat the plain statutory language authorizing the Attorney General to seek, and the courts to grant, preliminary relief when a sufficient case has been made. This authorization for preliminary relief without the intervention of an individual aggrieved party implies that the forbidden discrimination itself constitutes irreparable injury.
Under these circumstances, a requirement that Hillandale admit golfers without regard to race pending final determination of the action will result in less injury, if any, to it than would result to others from its continued discrimination against and affront to those Negroes who wish to use its facilities. The preliminary injunction should have been granted.
Reversed and remanded.
. The Attorney General contends that admission has in fact been generally open to non-residents of North Carolina, and urges that this fact constitutes an additional ground of coverage. However, this contention is based on factual allegations which are sharply disputed and which have not been ruled on by the District Court. Under these circumstances it would be inappropriate for us to attempt to base any decision on this ground.
. It is clear that, under the decision in Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318, the presence of the snack bar, which served food and drink originating out of North Carolina, would have made Hillandale a covered establishment under 42 U.S.C.A. § 2000a (b) (4) (A) (ii) and (B). Because there is another adequate ground for decision, we need not face the difficult question of whether the status of an establishment as covered under the Act is “frozen” by institution of an action to desegregate it, even though the establishment discontinues the performance of all services on which its coverage is based.
. The facility under consideration in Daniel was Lake Nixon, Arkansas, a diversified 232-acre operation providing swimming, boating, sun bathing, picknicking, miniature golf, dancing facilities, and a snack bar. A jukebox manufactured outside of Arkansas and sixteen paddle boats purchased or leased from an Oklahoma company furnished sufficient basis for the Supreme Court to hold that Lake Nixon furnished sources of entertainment that moved in commerce.
. Components which are manufactured in other states include the motors, wheel assemblies, batteries, chargers, solenoids, seats and steering assemblies.
. There is a distinction between the definition of “affecting commerce” applied to food service establishments under § 2000a (b) (2) and that applied to places of entertainment under § 2000a (b) (3). The former affect commerce if a substantial portion of the food served has moved in interstate commerce; thus it is proper to consider the origin of individual ingredients in locally processed food items. Daniel v. Paul, supra. Places of entertainment affect commerce only if their “sources of entertainment” move in commerce. Whether this distinction means that a locally manufactured source of entertainment, assembled in part from out-of-state components, as the golf carts in this case are, does not “move in commerce” within the meaning of § 2000a (c) (3), is a question which need not be decided at this time. The majority of the items of equipment sold by the pro shop to Hillandale patrons, such as balls and clubs, are admittedly manufactured entirely outside of North Carolina.
. “[T]he Attorney General may bring a civil action in the appropriate district * * * requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order or other order * * * as he deems necessary to insure the full enjoyment of the rights herein described.” 42 U.S.C. § 2000a-5(a).
. See United States v. Hayes International, 5 Cir., 415 F.2d 1038, 1045.
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_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
BAKER et al. v. GENERAL MOTORS CORP. et al.
No. 85-117.
Argued April 2, 1986
Decided July 2, 1986
Stevens, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Black-mun, JJ., joined, post, p. 638.
Jordan Rossen argued the cause for appellants. With him on the briefs was Fred Altshuler.
Peter G. Nash argued the cause for appellees. With him on the brief were Dixie L. Atwater, J. R. Wheatley, and Jonathan N. Wayman.
Deputy Solicitor General Cohen argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Fried, Deputy Solicitor General Kuhl, Jerrold J. Ganzfried, Norton J. Come, and Linda Sher.
Justice Stevens
delivered the opinion of the Court.
In Michigan an employee is ineligible for unemployment compensation if he has provided “financing” — by means other than the payment of regular union dues — for a strike that causes his unemployment. The question presented by this appeal is whether Michigan’s statutory disqualification is implicitly prohibited by § 7 of the National Labor Relations Act.
This case has a long history. Two appeals to the State Supreme Court and a series of administrative proceedings have determined the relevant facts and the meaning of the governing statutory provision. Before addressing the federal question, we shall therefore summarize the events that gave rise to the controversy and the propositions of state law that were resolved on each appeal.
The Relevant Events
The story begins in June 1967, when the international union representing the work force in the automobile industry notified the three major manufacturers — General Motors, Ford, and Chrysler — that it intended to terminate all national and local collective-bargaining agreements when they expired on September 6, 1967. In August, after the UAW and GM had opened negotiations for a new national agreement, the members of the Union employed by GM voted to authorize strikes, if necessary, on national and local issues. When the agreements expired, the UAW began a national strike against Ford, but did not immediately strike any GM plants.
On October 8, 1967, while the Ford strike was continuing, the UAW held a special convention to authorize “adequate strike funds to meet the challenges of the 1967 and 1968 collective bargaining effort.” At that convention the UAW amended its constitution to authorize the collection of “emergency dues” that would be used to augment the Union’s strike insurance fund. In a letter to GM employees explaining the purpose of the dues increase, the Union stated:
“ ‘These emergency extra dues are being raised to protect GM workers as well as support the Ford strikers. When our time comes at GM, we cannot go back to the bargaining table without an adequate strike fund behind us and promise of continued assistance from other UAW members.’” 420 Mich. 463, 513, 363 N. W. 2d 602, 624-625 (1984) (footnote omitted).
The emergency dues were payable immediately and were to remain in effect during the “collective bargaining emergency.” See n. 6, supra. They were much larger than the regular dues. Before the emergency, each UAW member paid strike insurance dues of $1.25 per month and administrative dues of $3.75. The amendment increased the contribution to the strike insurance fund to $21.25 per month for employees in plants where the average straight-time hourly earnings amounted to $3 or more, and to $11.25 in plants where the average earnings were lower. Thus, for the former group the increase of $20 was 16 times as large as the regular contribution to the strike fund; for the latter group the $10 increase was 8 times as large.
The strike against Ford was settled in October, before the first scheduled collection of the new special strike fund dues. Notwithstanding this development, emergency dues of $42 million were subsequently collected until November 30, 1967 — when the UAW determined that it would not strike any GM plants “at least during the month of December 1967. ” At this point the UAW advised its membership that even though “the collective bargaining emergency has not yet ended,” the emergency dues would be waived during December and January and dues would revert to the regular rate of $5 per month. In December, the UAW and GM reached agreement on all national issues.
In January 1968, however, three UAW local unions went on strike at three GM foundries for periods of 10, 11, and 12 days. Strike fund benefits of $4 to $6 a day, totaling $247,245.31, were paid to the striking UAW employees from the fund in which the emergency dues collected in October and November had been deposited. At that time the emergency dues constituted about half of the money in the fund. As a result of the strikes, operations were temporarily curtailed at 24 other functionally integrated GM plants, idling more than 19,000 employees. Most of these employees are appellants in this case. Their claims for unemployment benefits were considered at three levels of administrative review and three levels of judicial review, and were ultimately denied by the State Supreme Court.
The First Appeal
In its first opinion in this case the Michigan Supreme Court decided two statutory questions and remanded a third for further consideration by the Board of Review.
It first held that appellants’ unemployment was “due to a labor dispute in active progress” at other establishments operated by the same employing unit and functionally integrated with the establishments where appellants were employed within the meaning of the statute. It rejected the argument that the layoffs were due not only to the strikes, but also to a combination of management decisions and seniority provisions in the collective-bargaining agreement, holding instead that the strikes were a “substantial contributing cause” of the unemployment and need not be its sole cause.
After finding the requisite causal connection between the strikes and the layoffs, the court considered the relationship between the emergency dues and the strikes. Appellants contended that their payments were expressly excepted from the coverage of the statute because they were “regular union dues.” The State Supreme Court rejected this argument, explaining that the term “regular” had been used “to exclude from possible treatment as financing those dues payments required uniformly of union members and collected on a continuing basis without fluctuations prompted by the exigencies of a particular labor dispute or disputes.” The exception for regular union dues thus did not encompass “unusual collections for the purpose of supporting a labor dispute.”
The court did not decide whether the emergency dues constituted “financing” of the local strikes. It noted that the statute did not require that the payments made by the individuals whose disqualification was in issue must be traced into the hands of the striking employees, but it indicated that there must be a “meaningful connection” between the payments and the strikes to satisfy the “financing” requirement. It therefore remanded the case to the Appeal Board’s successor tribunal to consider that question.
The Second Appeal
On remand, the Board of Review concluded that there was a “meaningful connection” between the emergency dues and the GM strikes. It found that the dues were intended to support local strikes at GM plants, that strikes which might affect their own employment were foreseeable at the time appellants paid the emergency dues, and that the dues were a substantial source of funding for the strikes. The Supreme Court agreed.
As a predicate to its analysis, the court explained that the term “financing” should be construed in the light of the general purpose of the statute to provide assistance to persons who are involuntarily unemployed. The disqualification applies to “persons who are ‘voluntarily’ unemployed by financing the labor dispute that causes their unemployment. It does so because ‘financing’ is one of the statutorily designated ways in which a person may evidence ‘direct involvement’ in a labor dispute.” Thus, “[t]he end result of a proper meaningful connection definition should be to delineate persons whose own activities have contributed to their unemployment so as to make them voluntarily unemployed and therefore, ineligible for unemployment compensation benefits.”
The Michigan Supreme Court considered and rejected appellants’ argument that their emergency dues payments were not voluntary because they were required by the UAW in order to retain their union membership and their jobs at GM. The court held that employees could not use their own collective-bargaining agent as a shield to protect them from responsibility for conduct that they had authorized. It therefore specifically held that appellants’ “emergency dues payments were not involuntary.”
Those payments constituted “financing” of the strikes that had caused appellants’ unemployment because there was a “meaningful connection” between the payments and the strikes. In finding that causal connection the court relied on three factors — the purpose, the amount, and the timing of the emergency dues. In finding the requisite purpose, the court noted that the dues had actually provided financial support for the strikes, that the strikes were foreseeable when the dues were collected, that it was also foreseeable that such strikes would cause the unemployment which actually occurred, and that the evidence of purpose and foreseeability was sufficient without relying on hindsight after the events occurred. The court also concluded that the amount of the financing was significant, whether viewed in terms of the aggregate value of the emergency dues, the individual contributions by each member, or their support for the strikers. Finally, it found only a “minimal” time lag between the collections of the emergency dues and their use to support the strikes that caused appellants’ unemployment. As a consequence, the court concluded that appellants were “not eligible for unemployment benefits because they caused their unemployment by financing, in a meaningfully connected way, the labor dispute that caused” their unemployment.
Only after it had meticulously satisfied itself that the emergency dues payments constituted “financing” that made appellants ineligible for unemployment compensation under the Michigan statute, did the court turn to the question whether its construction of state law was pre-empted by federal law because it inhibited the exercise of rights guaranteed by the National Labor Relations Act (NLRA). The state court agreed with appellants that the right to support strikes by paying extraordinary dues was protected by §7 of the NLRA, but concluded that the legislative history of the Social Security Act which was reviewed in New York Tele phone Co. v. New York State Dept. of Labor, 440 U. S. 519 (1979), demonstrated that Congress “intended to tolerate” the conflict between the state law and the federal law. Accordingly, after some 15 years of litigation, the Michigan Supreme Court finally denied appellants’ claim for unemployment compensation.
We noted probable jurisdiction of their appeal, 474 U. S. 899 (1985), and now affirm. We first discuss the problem presented by the case in general terms and then consider the specific contentions that appellants advance.
I
The National Labor Relations Act and the Social Security Act were both enacted in the summer of 1935. See New York Telephone Co. v. New York State Dept. of Labor, 440 U. S., at 527. Neither statute required any State to adopt, or to maintain, an unemployment compensation program. See Steward Machine Co. v. Davis, 301 U. S. 548, 596 (1937). Title IX of the latter Act did, however, motivate the enactment of state programs throughout the Nation. That Title authorized the provision of federal funds to States having programs approved by the Secretary of Labor. Although certain minimum federal standards must be satisfied, the scheme is one in which a “wide range of judgment is given to the several states as to the particular type of statute to be spread upon their books.” Id., at 593.
The policy of allowing “broad freedom to set up the type of unemployment compensation they wish” has been a basic theme of the program since the general outlines of the legislation were first identified in the Report of the Committee on Economic Security that was prepared for “the President of the United States and became the cornerstone of the Social Security Act.” Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471, 482 (1977). In guiding state efforts to draft unemployment compensation programs, however, that Report also stressed the importance of the distinction between voluntary and involuntary unemployment. It characterized that distinction as “the key to eligibility. ” Id., at 483. “To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed.” Id., at 482 (quoting Report of the Committee on Economic Security, as reprinted in Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311, 1328 (1935)).
The involuntary character of the unemployment is thus generally a necessary condition to eligibility for compensation. But even involuntary unemployment is not always a sufficient condition to qualify for benefits, as we found in Hodory. In that case, we held that Ohio could disqualify a millwright who was furloughed when the plant where he worked was shut down because of a shortage of fuel caused by a strike at coal mines owned by his employer. Even though he was unemployed through no fault of his own, as the result of a labor dispute in which he had no interest, federal law did not require Ohio to pay him unemployment compensation.
In Hodory there was no claim that the National Labor Relations Act pre-empted Ohio’s disqualification of unemployment caused by a labor dispute. A pre-emption argument was advanced, however, in New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519 (1979), a case in which the employer contended that federal law prohibited the State from giving unemployment compensation to the company’s striking employees. The evidence established that the payments not only provided support for the strikers but also imposed an added burden on the company and therefore plainly “altered the economic balance between labor and management.” Id., at 532. Relying on the pre-emption analysis in Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), the employer therefore contended that the payments were inconsistent with the federal labor policy “of allowing the free play of economic forces to operate during the bargaining process.” 440 U. S., at 531. We rejected the argument, not because we disagreed with its premises, but rather because we were persuaded by our study of the legislative history of the two 1935 Acts that Congress had intended to tolerate the conflict with federal labor policy. We explained:
“Undeniably, Congress was aware of the possible impact of unemployment compensation on the bargaining process. The omission of any direction concerning payment to strikers in either the National Labor Relations Act or the Social Security Act implies that Congress intended that the States be free to authorize, or to prohibit, such payments.” Id., at 544.
See id., at 547 (Brennan, J., concurring in result); id., at 549 (Blackmun, J., with whom Marshall, J., joined, concurring in judgment).
Our conclusion that Congress did not intend to pre-empt the States’ power to make the policy choice between paying or denying unemployment compensation to strikers does not directly respond to the argument advanced by appellants in this case. For they rely, not on the general policy of noninterference with the free play of economic forces during the bargaining process, but rather on the claim that § 7 of the NLRA provides specific protection for their payment of the emergency dues required by the UAW. Nevertheless, the claim must be analyzed in the light of our conclusion in New York Telephone Co. that Congress expressly authorized “a substantial measure of diversity,” 440 U. S., at 546, among the States concerning the payment of unemployment compensation to workers idled as the result of a labor dispute.
Thus, New York Telephone Co. makes it clear that a State may, but need not, compensate actual strikers even though they are plainly responsible for their own unemployment. And, on the other hand, Hodory makes it equally clear that a State may refuse, or provide, compensation to workers laid off by reason of a labor dispute in which they have no interest or responsibility whatsoever. In between these opposite ends of the spectrum are cases in which the furloughed employees have had some participation in the labor dispute that caused their unemployment. This is such a case, because the state court has found that appellants provided significant financial support to strikes against their employer with full knowledge that their own work might thereby suffer. It is clear, however, that in financing the local strikes, they were exercising associational rights that are expressly protected by § 7 of the NLRA. The question, then, is whether that protection deprives the State of the power to make the policy choice that otherwise would be plainly authorized by Title IX of the Social Security Act.
hH hH
Appellants place their primary reliance on Nash v. Florida Industrial Comm’n, 389 U. S. 235 (1967), a case in which the Florida Commission had concluded that a union member was disqualified for unemployment compensation because she had filed an unfair labor practice charge against her employer. The Florida District Court of Appeal held that the Commission had properly treated the filing of the charge with the National Labor Relations Board as the initiation of a “labor dispute” within the meaning of the Florida statute disqualifying unemployment that “is due to a labor dispute.” We reversed. We explained that Congress had made it clear that it wished all persons with information about unfair labor practices “to be completely free from coercion against reporting them to the Board,” id., at 238, and that the statute prohibited an employer from interfering with an employee’s exercise of his right to file charges. Accordingly, we concluded:
“[CJoercive actions which the Act forbids employers and unions to take against persons making charges are likewise prohibited from being taken by the States.... Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government’s constitutional plan. ” Id., at 239.
The federal right implicated in Nash was the right to file an unfair labor practice charge with the Board. Arguably there are two different rights protected by § 7 that are implicated by this case — the right to contribute to a fund that will strengthen the union’s bargaining position, and the right to expend money to support a strike. It would seem clear that it would be an unfair labor practice for an employer to discharge an employee for making a contribution to a strike fund or for voting in favor of a strike at another plant, just as it would be unlawful to discharge an employee for filing a charge with the Labor Board. In each such case, the unemployment would be attributable to an unlawful act by the employer rather than the foreseeable consequence of the exercise of the employee’s § 7 rights.
In the actual case before us, however, the employer did nothing to impair the exercise of appellants’ § 7 rights. To the extent that appellants may be viewed as participants in the decision to strike, or to expend funds in support of the local strikes, it is difficult to see how such a decision would be entitled to any greater protection than is afforded to actual strikers. In either event, the fact that the temporary unemployment is entirely attributable to the voluntary use of the Union’s bargaining resources — untainted by any unlawful conduct by the employer — is a sufficient reason for allowing the State to decide whether or not to pay unemployment benefits.
Perhaps the answer is less obvious when we focus on the payment of the emergency dues before any actual strike decision has been made, but we believe similar reasoning leads to the same conclusion. Appellants were not laid off simply because they paid emergency dues. Rather, under the meticulous analysis of the case by the Michigan Supreme Court, they became unemployed because there was a meaningful connection between the decision to pay the emergency dues, the strikes which ensued, and ultimately their own layoffs. Under the state court’s narrow construction of its own statute, the emergency dues decision was tantamount to a plant-wide decision to call a strike in a bottleneck department that would predictably shut down an entire plant. As the court put it, “since the Michigan law only disqualifies those who are directly involved in the labor dispute through financing, the MESA essentially only disqualifies ‘strikers.’ ” 420 Mich., at 540, 363 N. W. 2d, at 637. Unquestionably federal law protects the employees’ right to authorize such a strike; it is equally clear, however, that federal law does not prohibit the States from deciding whether or not to compensate the employees who thereby cause their own unemployment. New York Telephone Co., 440 U. S., at 540-546.
Thus, the essential distinction between the Nash case and this one is the distinction between involuntary and voluntary unemployment that was recognized at the inception of the Social Security Act. A decision to file an unfair labor practice charge — even though it may in fact motivate a retaliatory discharge — cannot be treated as a voluntary decision to cause one’s own unemployment without undermining an essential protection in the NLRA. But an employee’s decision to participate in a strike, either directly or by financing it, is not only an obvious example of causing one’s own unemployment — it is one that furthers the federal policy of free collective bargaining regardless of whether or not a State provides compensation for employees who are furloughed as a result of the labor dispute.
In reaching this conclusion, we of course express no opinion concerning the wisdom of one policy choice or another. Nor are we concerned with the possible application of the “financing” disqualification that has been adopted in numerous States other than Michigan and which, like the Florida statute involved in Nash, may be construed in a way that has an entirely different impact on § 7 rights. Specifically, we have no occasion to consider the circumstances, if any, in which individuals might be disqualified solely because they paid regular union dues required as a condition of their employment. We merely hold that the “financing” disqualification in the Michigan statute as construed by the State Supreme Court in this case is not pre-empted by federal law.
Affirmed.
Section 29(8) of the Michigan Employment Security Act (MESA) provides:
“(8) An individual shall be disqualified for benefits for a week in which the individual’s total or partial unemployment is due to a labor dispute in active progress... in the establishment in which the individual is or was last employed, or to a labor dispute, other than a lockout, in active progress... in any other establishment within the United States which is functionally integrated with the establishment and is operated by the same employing unit.... An individual shall not be disqualified under this subsection if the individual is not directly involved in the dispute.
“(a) For the purposes of this subsection an individual shall not be considered to be directly involved in a labor dispute unless it is established that any of the following occurred:
“(ii) The individual is participating in or financing or directly interested in the labor dispute which causes the individual’s total or partial unemployment. The payment of regular union dues, in amounts and for purposes established before the inception of the labor dispute, shall not be construed as financing a labor dispute within the meaning of this subparagraph.” Mich. Comp. Laws § 421.29(8) (Supp. 1986).
Section 7 of the National Labor Relations Act, 49 Stat. 462, 29 U. S. C. § 157, provides in part:
“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 in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....”
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (referred to in the text as the UAW and the Union).
The UAW employees of the Caterpillar Company were also on strike.
The proceedings of the convention recited that its purposes were:
“ ‘1. [To] [r]eview the status of our 1967 collective bargaining effort.
“‘2. To consider revision of the dues program of the International Union, UAW, to provide adequate strike funds to meet the challenges of the 1967 and 1968 collective bargaining effort.
“ ‘3. To consider revisions of the Constitution of the International Union as it relates to the payment of dues, strike fund, membership eligibility, strike insurance program and other matters related to emergencies facing the International Union, UAW.’” 420 Mich. 463, 512-513, 363 N. W. 2d 602, 624 (1984).
The text of the amendments reads, in pertinent part:
‘“Article 16, Section 2(a) (new): Emergency Dues
“ ‘All dues are payable during the current month to the financial secretary of the local union.
“ ‘Commencing with the eighth (8th) day of October 1967 until October 31,1967, and for each month thereafter during the emergency as defined in the last paragraph of this subsection, union administrative dues shall be three dollars and seventy-five cents ($3.75) per month and Union Strike Insurance Fund dues shall be ás follows:
“ ‘1. For those working in plants where the average straight time earnings * * * is three dollars ($3.00) or more, twenty-one dollars and twenty-jive cents ($21.25) per month.
“ ‘2. For those working plants where the average straight time earnings * * * is less than three dollars ($3.00), eleven dollars and twenty-jive cents ($11.25).
“ ‘This schedule of dues shall remain in effect during the current collective bargaining emergency as determined by the International Executive Board and thereafter, if necessary, until the International Union Strike Insurance Fund has reached the sum of twenty-five million dollars ($25,000,000)...." Id., at 472, 363 N. W. 2d, at 606.
Baker v. General Motors Corp., 409 Mich. 639, 653, n. 5, 297 N. W. 2d 387, 392, n. 5 (1980) (emphasis omitted).
See id., at 653, 297 N. W. 2d, at 392.
See 420 Mich., at 520, 363 N. W. 2d, at 628. See also App. to Juris. Statement 113a, 115a (decision of Michigan Employment Security Board of Review on remand from Michigan Supreme Court).
The claims were originally allowed by the Michigan Employment Security Commission, but on an appeal by GM a hearing referee reversed the MESC. On appellants’ appeal the referee’s decision was upheld by the Michigan Employment Security Appeal Board. See 420 Mich., at 474-475, 363 N. W. 2d, at 608.
Appellants appealed the denial of unemployment benefits to three County Circuit Courts, two of which reversed the decision of the Appeal Board and one of which affirmed it. On further appeal, the Michigan Court of Appeals disallowed the claims, holding that the appellants had “financed” the labor dispute which caused their unemployment by paying emergency strike fund dues and that they were disqualified under Michigan Employment Security Act § 29(8)(a)(ii) as a consequence. See Baker v. General Motors Corp., 74 Mich. App. 237, 254 N. W. 2d 45 (1977). The Michigan Supreme Court granted leave to appeal and disposed of certain issues before remanding to the Board of Review for further proceedings. See Baker v. General Motors Corp., 409 Mich. 639, 297 N. W. 2d 387 (1980). See infra this page and 628.
“The seniority provisions and management decisions which plaintiffs identify as contributing causes of their unemployment would not themselves have caused plaintiffs’ unemployment or any unemployment were it not for the labor disputes in active progress at the functionally integrated foundries. But for those disputes, materials would have been available at plaintiffs’ places of employment, the work force at those establishments would not have been reduced, and the seniority provisions would not have become operative. The labor disputes in active progress at the foundries were shown by competent, material and substantial evidence to have been substantial contributing causes of the layoffs which idled plaintiffs. We affirm the board’s finding that plaintiffs’ unemployment was ‘due to a labor dispute in active progress’ within the meaning of subsection 29(8).” 409 Mich., at 661-662, 297 N. W. 2d, at 396.
Id., at 666, 297 N. W. 2d, at 398.
Ibid.
“The appeal board did not give separate consideration to the meaning of ‘financing,’ in general or as applied to this case. We therefore remand this matter to its successor, the tribunal with the most experience and expertise in the application of the act, to reconsider, in light of its own unique familiarity with the act, practical considerations and related issues implicated by this question, whether plaintiffs’ emergency dues payments were sufficiently connected with the local labor disputes which caused their unemployment to constitute ‘financing’ of those labor disputes.” Id., at 668, 297 N. W. 2d, at 399.
420 Mich., at 493, 363 N. W. 2d, at 616.
Ibid. See id., at 478, 363 N. W. 2d, at 609 (“Since the MESA is intended to provide benefits only to involuntarily unemployed persons, the purpose of §29 is obvious. MESA §29 lists the circumstances under which the Legislature holds that a person is not entitled to benefits under the MESA because he is not involuntarily unemployed”).
“As noted above, the statute does not recognize such a ploy. UAW membership is required for employment by GM because the UAW bargains for such a provision in its contract with GM. In so doing, the UAW represents its members and they must ratify any contract agreed upon by the UAW and GM. Therefore, any ‘coercion’ resulting from the terms of the contract does not make the plaintiffs’ action in accord with the contract ‘involuntary.’ As the Court of Appeals said in Applegate v. Palladium Publishing Co., 95 Mich. App. 299, 305; 290 N. W. 2d 128 (1980), and we adopt here:
“ ‘Action taken by employees under a contract negotiated for them by their authorized agent must be considered their voluntary acts. In effect, plaintiff agreed to [act] pursuant to the collective bargaining agreement.’
“Any other holding would make all actions taken by union members pursuant to a union contract involuntary and relieve the members of responsibility for their contract-based actions. We cannot agree with such a rule. The plaintiffs’ emergency dues payments were not involuntary.” 420 Mich., at 499, 363 N. W. 2d, at 618-619.
“A meaningful connection exists between the financing and the labor dispute that causes the claimant’s unemployment where, for the purpose of assisting labor disputes which reasonably and foreseeably include the labor dispute that caused the claimant’s unemployment, the claimant finances in significant amount and in temporal proximity the labor dispute that causes his unemployment. Where the Court finds these three elements present (purpose, amount, and timing), there is a meaningful connection between the financing and the labor dispute that causes the claimant’s unemployment.” Id., at 506, 363 N. W. 2d, at 621-622.
Accord, id., at 500-501, 363 N. W. 2d, at 619.
"The final aspect of the purpose analysis focuses on whether it was foreseeable at the time of the financing that supporting the labor disputes would cause the claimant’s unemployment. In this case, there is and can be no dispute on this issue. Since it was foreseeable that local GM strikes would occur and be financed by the emergency dues, and since automotive industry production is based upon a series of interrelated production units which produce only one component of the automobile, it is obvious that a local labor dispute which idles one plant might cause layoffs at other plants which rely upon the component produced at the idled plant. This ‘chain reaction’ can move both ‘up’ and ‘down’ the line. Therefore, layoffs at plants not presently engaged in a local labor dispute were foreseeable due to local disputes.
“In conclusion, the evidence adduced in this case supports the conclusion that the purpose of the emergency dues included supporting labor disputes ineluding those that actually caused the plaintiffs’ unemployment. Therefore, the first portion of the meaningful connection definition is met.” Id., at 516-517, 363 N. W. 2d, at 626.
See id., at 519, 363 N. W. 2d, at 627 (“By any standard, the amount of increase is significant and demonstrates a meaningful connection with the labor dispute that caused their unemployment”). Accord, id., at 517-520, 363 N. W. 2d, at 626-628.
“As applied to this case, we find that this portion of the meaningful connection definition is satisfied since the payment of emergency dues immediately precedes the support of the labor dispute that caused the plaintiffs’ unemployment.... The time lag between the collection and disbursement of the strike fund benefits is minimal when it is considered that the funds were collected ‘by hand’ at the local level, were forwarded to the SIF, and were distributed to striking GM employees only after they had satisfied an initial waiting period requirement.” Id., at 521, 363 N. W. 2d, at 628.
Id., at 521-522, 363 N. W. 2d, at 628.
Id., at 541, 363 N. W. 2d, at 637.
“Before Congress acted, unemployment compensation insurance was still, for the most part, a project and no more. Wisconsin was the pioneer. Her statute was adopted in 1931. At times bills for such insurance were introduced elsewhere, but they did not reach the stage of law. In 1935, four states (California, Massachusetts, New Hampshire and New York) passed unemployment laws on the eve of the adoption of the Social Security Act, and two others did likewise after the federal act and later in the year. The statutes differed to some extent in type, but were directed to a common end. In 1936, twenty-eight other states fell in line, and eight more the present year. But if states had been holding back before the passage of the federal law, inaction was not owing, for the most part, to the lack of sympathetic interest. Many held back through alarm lest, in laying such a toll upon their industries, they would place themselves in a position of economic disadvantage as compared with neighbors or competitors. See House Report, No. 615, 74th Congress, 1st session, p. 8; Senate Report, No. 628, 74th Congress, 1st session, p. 11.” Steward Machine Co. v. Davis, 301 U. S., at 587-588 (footnote omitted).
In their statement of the question presented, appellants described the statutory disqualification as one arising “solely because those individuals paid union dues,” Brief for Appellants i, or, alternatively, as one arising “solely because those individuals paid union dues uniformly and lawfully required as a condition of employment,” Juris. Statement i. As the Michigan Supreme Court carefully explained, however, the Michigan statute excepts the payment of regular union dues from the
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_lcdispositiondirection
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A
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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
PLATT, CHIEF JUDGE, U. S. DISTRICT COURT, v. MINNESOTA MINING & MANUFACTURING CO.
No. 113.
Argued January 9, 1964.
Decided March 9, 1964.
Daniel M. Friedman argued the cause for petitioner. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick and Lionel Kestenbaum.
John T. Chadwell argued the cause for respondent. With him on the brief were Glenn W. McGee, Jean Engstrom, Allan J. Reniche and John L. Connolly.
Mr. Justice Clark
delivered the opinion of the Court.
Rule 21 (b) of the Federal Rules of Criminal Procedure provides that where it appears that an offense was committed in more than one district or division and the court “is satisfied that in the interest of justice the proceeding should be transferred” to another such district or division than the one wherein it is filed, the court shall, upon motion, transfer the case. The respondent filed such a motion to transfer this antitrust prosecution from the Eastern District of Illinois to the District of Minnesota. After a hearing, the trial judge denied this motion on the ground that the factors of convenience, expense and early trial, together with the fact that it “would be more difficult [for the Government] to get a fair and impartial jury in the Minnesota District,” convinced him that “the interest of justice” would not be promoted by a transfer. The respondent then petitioned the Court of Appeals to issue a writ of mandamus directing the transfer. The Court of Appeals found that the trial judge had treated the factor of a fair and impartial trial as the “most important item” in his decision and that this was not an appropriate criterion. It concluded that in addition to “the essential elements of convenience, expense and early trial, constituting ‘interest of justice’ in a civil case,” a criminal case was “impressed with the fundamental historical right of a defendant to be prosecuted in its own environment or district . ...” Upon reviewing the record, the Court of Appeals substituted its own findings for those of the trial judge and ordered the case transferred. 314 F. 2d 369. Chief Judge Hastings dissented. We granted the petition for certiorari in view of the importance of the questions to the prosecution of multi-venue cases. 374 U. S. 825. We believe that the Court of Appeals erred in ordering the transfer and therefore vacate its judgment and remand the case for further consideration by the District Court.
I.
A grand jury sitting at Danville, in the United States District Court for the Eastern District of Illinois, returned an indictment charging the respondent with violating §§ 1 and 2 of the Sherman Act. The indictment charged an attempt to monopolize and a conspiracy to restrain and monopolize interstate and foreign commerce in pressure-sensitive tape, magnetic recording media and aluminum presensitized lithographic plates. The offense was alleged to have been committed in part in the Eastern District of Illinois, which includes both Danville and East St. Louis. It is agreed that the indictment could have been returned in the District of Minnesota as well as several other districts.
The Court of Appeals found, in contradiction to the finding of the District Court, that a trial in the Eastern District of Illinois would result in unjustifiable increased expenses to the respondent of “at least $100,000, great inconvenience of witnesses, serious disruption of business and interference of contact between the [respondent’s] executives and its trial attorneys . ...” It also found that respondent had no office, plant, or other facility in the Eastern District and that there was less congestion in the docket of the Minnesota District than in the Eastern District of Illinois. The court concluded that this was a “demonstration by proof or admission of the essential elements of convenience, expense and early trial, constituting 'interest of justice’ in a civil case,” which, augmented by the additional consideration that this was a criminal action, compelled the granting of the motion to transfer.
In awarding the mandamus the Court of Appeals placed particular weight on the trial judge’s finding that it “would be more difficult to get a fair and impartial jury in the Minnesota District than in the Eastern District of Illinois.” The Court of Appeals stated that this finding, if true (which it doubted), “would not justify a refusal to make a transfer otherwise proper under rule 21 (b) . . .” and concluded that “it would be an unsound and dangerous innovation in our federal court system for a judge in any district to appraise or even speculate as to the efficacy of the operations of a federal court of concurrent jurisdiction in another district. It follows that no order in any way based upon such reasoning can stand, even under the guise of an exercise of discretion.” The Court of Appeals, by way of footnote, then characterized the consideration of this factor by the trial judge as “the most important item” despite the trial judge’s statement in his answer to the rule to show cause that it “was but one of a number of factors . . . which led respondent to his conclusion.”
II.
The trial judge in his memorandum decision listed a number of items as pertinent in the determination of whether the case should be transferred to Minnesota “in the interest of justice” as required by Rule 21 (b). As Chief Judge Hastings pointed out in his dissent, these “factors were (1) location of corporate defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.”
It appears that both parties and the Court of Appeals agree that the first nine factors enumerated were appropriate. As we have noted, the Court of Appeals struck the fair and impartial jury finding as not being a proper factor and the Government does not challenge that action here. Nor has the Government challenged the use of the extraordinary writ of mandamus as an appropriate means to review the refusal to transfer. We shall, therefore, not consider those matters here, assuming, without deciding, their validity for the purposes of this case. This leaves before us the question of whether the Court of Appeals erred in considering the motion to transfer de novo on the record made in the District Court and ordering transfer to the District of Minnesota.
III.
We cannot say, as did the Court of Appeals, that “the most important item” in the trial judge’s mind when he ruled against transfer was the finding of difficulty in the selection of a fair and impartial jury in Minnesota. The weight that Judge Platt gave this factor is a matter so peculiarly within his own knowledge that it seems more appropriate to have him resolve it. He has represented in his answer that this “was but one of a number of factors.” The District Court’s use of an inappropriate factor did not empower the Court of Appeals to order the transfer. The function of the Court of Appeals in this case was to determine the appropriate criteria and then leave their application to the trial judge on remand. Extraordinary-writs are “reserved for really extraordinary causes,” Ex parte Fahey, 332 U. S. 258, 260 (1947), and then only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Here, however, the Court of Appeals undertook a de novo examination of the record and itself exercised the discretionary function which the rule commits to the trial judge. This the court should not have done since the writ cannot be used “to actually control the decision of the trial court.” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953).
IV.
Since the trial court must reconsider the motion, effective judicial administration requires that we comment upon the erroneous holding of the Court of Appeals that criminal defendants have a constitutionally based right to a trial in their home districts. Art. Ill, § 2, of the Constitution provides that “The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed . . . .” The Sixth Amendment carries a like command. As we said in United States v. Cores, 356 U. S. 405, 407 (1958): “The Constitution makes it clear that determination of proper venue in a criminal case requires determination of where the crime was committed. . . . The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.” The fact that Minnesota is the main office or “home” of the respondent has no independent significance in determining whether transfer to that district would be “in the interest of justice,” although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel.
The judgment of the Court of Appeals is therefore reversed and the cause is remanded to that court with instructions to vacate the judgment of the District Court and to remand the case for reconsideration of the motion for transfer, without reference to the ability of the United States to receive a fair and impartial trial in Minnesota.
It is so ordered.
The All Writs Act grants to the federal courts the power to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U. S. C. §1651 (a).
314 F. 2d 369, 371, n. 1.
Id,., at 375.
Id., at 375, n. 3.
Id., at 375.
Id., at 373.
Id., at 375.
Id., at 371, n. 1.
Id., at 376-377.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_respond2_7_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
ONEGO CORPORATION, Appellant, v. UNITED STATES of America, Robert L. House and Claude N. Jordan, Appellees.
No. 6658.
United States Court of Appeals Tenth Circuit.
Sept. 27, 1961.
Byran W. Tabor, Tulsa, Okl. (Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, Okl., were with him on the brief), for appellant.
Robert S. Griswold, Jr., Dept, of Justice, Washington, D. C. (Ramsey Clark, Asst. Atty. Gen., Russell H. Smith, U. S. Atty., Hubert A. Marlow, Asst. U. S. Atty., Tulsa, Old., Roger P. Marquis, Dept, of Justice, Washington, D. C., were with him on the brief), for appellee, U. S.
Glenn H. Chappell, Nowata, Okl. (Chappell & Maddux, Nowata, Okl., Doerner, Stuart, Moreland, Campbell & Saunders, Harry D. Moreland, Tulsa, Okl., were with him on the brief), for appellees Robert L. House and Claude N. Jordan.
Before MURRAH, Chief Judge, and PHILLIPS and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
This appeal challenges the adequacy of an award in a condemnation proceeding condemning the royalty interest and the working interest in two oil and gas mining leases, and the division of the award between the royalty interest and the working interest.
On March 4, 1959, the United States filed its declaration of taking condemning all interest to the sub-surface oil and gas and other minerals under two tracts, totaling four hundred acres. Tract numbered J-1038 and part of J-1038E-1, consisting of one hundred acres, were owned by Robert L. House, and tracts numbered J-1053 and J-1054, consisting of three hundred acres, were owned by Claude N. Jordan and Helen R. Jordan, his wife.
■Commissioners were appointed by the court to appraise and fix the value of the property taken. They filed their report in court fixing the fair cash market value or just compensation of the two tracts, as follows: Tract numbered J-1038 and part of J-1038E-1, $13,500; tracts numbered J-1053 and J-1054, $58,500. On September 26, 1960, the court approved the report of the commissioners and entered judgment for the amount found to be just compensation by the commissioners. Thereafter, on November 17, 1960, the trial court entered a separate judgment apportioning the amount of the judgment, as follows: Tract numbered J-1038 and part of tract numbered J-1038E-1 — $1,960 to Onego Corporation for equipment on the lease and 40% of the balance of the valuation of the tract to Onego for its interest as owner of the leasehold interest, and 60% of the balance to Robert L. House for his one-eighth royalty interest in the oil and gas. Tract numbered J-1053 and J-1054 ■ — $8,800 to Onego for equipment on the lease and 40% of the balance to Onego for its leasehold interest, and 60% of the balance to Claude N. Jordan and Helen R. Jordan for their royalty interest under the oil and gas lease.
Onego has appealed contending, in effect, first, that the finding of the value of its leasehold estate is so grossly inadequate as to amount to a taking of its property without payment of just compensation as required by the Federal Constitution; and second, that in any event, the court erred in its division of the balance of the judgment after entering judgment for the equipment on the leases.
It is fundamental and without dispute in the law that an appellate court will not set aside the judgment of a trial court, based upon findings of fact, unless there is in its judgment no substantial evidence in the record supporting the court's findings. This opinion will not be encumbered by citations of authorities to support this statement of law.
The value with which we are concerned is fair market value. That was what the Government was required to pay when it condemned these leases. Fair market value has been defined as that price which a willing purchaser would pay and a willing seller would accept under ordinary circumstances. The best evidence of such value is like and comparable sales within a reasonable time preceding the condemnation. There was no evidence of such sales. Such value was sought to be established from other competent evidence.
A summary of the evidence is as follows: These were not original oil and gas leases. Oil wells had been drilled on the property and oil had been produced for many years. The operation contemplated by these oil and gas leases was what is known as water flooding. This process may be sketchily defined as one in which water is forced into wells causing concentration of oil, thus enabling the recovery of oil after the primary operations had ceased, and which could not be recovered under ordinary operations. Onego contemplated combining this property with other like property and operating it as a water-flood unit operation.
Claude Jordan, the owner of the three hundred acre tract, testified that he had pumped wells on this property since 1919. He testified to prior water-flood operations on his and other adjoining lands; that these water-flood operations had been conducted by several operators; that they had always resulted in increased production, but because of improper methods being used they had to be abandoned. House, the owner of the other tract, testified that prior water-flood operations had increased production but that due to improper methods of operation, they had to be abandoned. Both of these witnesses testified that they were familiar with water-flood operations.
Ward E dinger, a consultant petroleum engineer, testified that he was acquainted with the area and that he had researched the property to determine its fair market value. He testified that there was a recoverable reserve of oil under the two leases of 567,552 barrels. He also testified as to the cost of producing the oil, and that, in his opinion, the net profit of Onego would be $708,901. He testified that, in his opinion, the fair market value of the Jordan lease was $443,300, and the fair market value of the House lease was $48,800.
Paul F. Fulton, a professor of petroleum engineering at the University of Pittsburgh, testified that he was asked by Onego to make a study of these leases in question; that in his opinion there was a recoverable reserve of 553,860 barrels of oil under the two leases; that the Jordan lease had a market value of $554,000, and the House lease, a market value of $57,800.
H. Wesley Altman, President of Onego, testified that his company had paid $65,-000 for the two leases and that it had spent $100,000 in cleaning them up, and that the investment was a good one.
The Government offered as its sole witness, Wayne Swearingen, a petroleum engineer specializing in oil and gas property evaluation and secondary recovery operations. He testified to a market value including the value of the equipment on the leases. He placed a total valuation on the Jordan tract of $27,500, and on the House tract of $6,500. He was in substantial agreement with Onego’s witnesses as to the amount of oil in place. He testified in great detail as to the facts on which he based his ultimate conclusions of market value. He gave detailed information with respect to twenty-one other similar operations in the vicinity of this property, as well as to three previous similar operations of this particular property. He testified there was little relation between oil in place under such properties and market value because it was economically unfeasible to attempt recovery of the entire reserves. He testified to many other details of such operations in support of his conclusions. In the interest of brevity, we will not set out his testimony in detail. An examination of his testimony compels the conclusion that he was well qualified in his field and that his testimony was entitled to great weight.
The only way this court could find no substantial evidence to support the findings and judgment would be to hold that Swearingen’s testimony was entitled to no credence, and that we cannot do. The award was over twice the valuation fixed by him. The findings were based upon sharply conflicting evidence and are, therefore, binding upon this court.
It is further contended that, in any event, the court erred in the division of the award between the owners of the royalty interest and the working interest. After the award to Onego of an amount compensating it for the value of the equipment on the leases, the court divided the balance of the award, 60% to the royalty interest and 40% to the %ths working interest. On first blush, it might seem that this was a disproportionate apportionment, but there is ample evidence in the record sustaining the court’s conclusion that the cost of producing the oil would be so great as to leave little net income for the owner of the working interest. The basis of the court’s decision is found in this statement by the court:
“In other words, it seems to me that Mr. Swearingen’s premise is unanswerable, that as you approach the marginal area, or the economic, and the uneconomic operation, that since all of the cost must be borne by the working interest, you finally reach a point where the net income to the royalty owner would be correspondingly much greater than the net income to the working interest.”
With this, we agree. In fact, Onego’s expert witnesses conceded that once adopting the premise that the amount of oil recoverable is in line with the testimony of the government’s witness, Swearingen, then the division by the court was correct. Onego’s testimony as to the division was based on its earlier testimony that there would be a net recovery of approximately $708,901. This testimony was rejected by the Court.
We find no reversible error.
Affirmed.
. Herein called Onego.
. Certain Parcels of Land in City of Philadelphia et al. v. United States, D.C., 57 F.Supp. 768; Messer et al. v. United States, 5 Cir., 157 F.2d 793.
. Buena Vista Homes, Inc., v. United States, 10 Cir., 281 F.2d 476.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
sc_certreason
|
L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
DAYTON BOARD OF EDUCATION et al. v. BRINKMAN et al.
No. 78-627.
Argued April 24, 1979
Decided July 2, 1979
White, J., delivered the opinion of the Court, in which BreNNAN, Marshall, BlackmuN, and SteveNs, JJ., joined. Stewart, J., filed a dissenting opinion, in which Burger, C. J., joined, ante, p. 469. Powell, J., filed a dissenting opinion, ante, p. 479. RehNQUist, J., filed a dissenting opinion, in which Powell, J., joined, post, p. 542.
David C. Oreer argued the cause for petitioners. With him on the brief was Leo F. Krebs.
William E. Caldwell argued the cause for respondents. With him on the brief were Nathaniel R. Jones, Paul R. Dimond, Louis R. Lucas, Robert A. Murphy, Norman J. Chachkin, and Richard Austin. Armistead W. Gilliam, Jr., and Charles J. Faruki filed a brief for the Ohio State Board of Education et al. as respondents under this Court’s Rule 21 (4).
Assistant Attorney General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Wallace, Sara Sun Beale, Brian K. Landsberg, and Robert J. Reinstein.
Richard S. Gebelein, Attorney General of Delaware, Regina M. Small, Deputy Attorney General, Mason E. Turner, Jr., James T. McKinstry, and Philip B. Kurland filed a brief for the Delaware State Board of Education et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Burt Neuborne, E. Richard Larson, Robert Allen Sedler, Winn Newman, and Carole W. Wilson for the American Civil Liberties Union et al.; by Arthur J. Lese-mann for the Fair Housing Council of Bergen County, N. J.; by Jack Greenberg, James M. Nebrit III, Bill Lann Lee, Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, and John Fillion for the NAACP Legal Defense and Educational Fund, Inc., et al.; and by 'Stephen J. Poliak, Richard M. Sharp, Wendy S. White, and David Rubin for the National Education Association et al.
Briefs of amici curiae were filed by Harriet F. Pilpel, Nathan Z. Der-showitz, and Joseph B. Robison for the American Jewish Congress; by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation; and by Duane W. Krohnke for Special School District No. 1, Minneapolis, Minn.
Mr. Justice White
delivered the opinion of the Court.
This litigation has a protracted history in the courts below and has already resulted in one judgment and opinion by this Court. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977) (Dayton I). In its most recent opinion, the United States Court of Appeals for the Sixth Circuit approved a systemwide plan for desegregating the public schools of Dayton, Ohio. Brinkman v. Gilligan, 583 F. 2d 243 (1978). The Court of Appeals found that the Dayton Board of Education had operated a racially segregated, dual school system at the time of Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), and that “'[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination” and “actually have exacerbated the racial separation existing at the time of Brown I.” 583 F. 2d, at 253. We granted certiorari, 439 U. S. 1066 (1979), and heard argument in this case in tandem with Columbus Board of Education v. Penick, ante, p. 449. We now affirm the judgment of the Court of Appeals.
I
The public schools of Dayton are highly segregated by race. In the year the complaint was filed, 43% of the students in the Dayton system were black, but 51 of the 69 schools in the system were virtually all white or all black. Brinkman v. Gilligan, 446 F. Supp. 1232, 1237 (SD Ohio 1977). A number of students in the Dayton system, through their parents, brought this action on April 17, 1972, alleging that the Dayton Board of Education, the State Board of Education, and the appropriate local and state officials were operating a racially segregated school system in violation of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs sought a court order compelling desegregation. The District Court sustained their challenge, determining that certain actions by the Dayton Board amounted to a “cumulative” violation of the Fourteenth Amendment. Id., at 1259. The District Court also approved a plan having limited remedial objectives.
The District Court’s judgment that the Board had violated the Fourteenth Amendment was affirmed by the Court of Appeals; but after twice being reversed on the ground that the prescribed remedy was inadequate to eliminate all vestiges of state-imposed segregation, the District Court ordered the Board to take the necessary steps to assure that each school in the system would roughly reflect the systemwide ratio of black and white students. App. to Pet. for Cert. 103a. The Court of Appeals then affirmed. Brinkman v. Gilligan, 539 F. 2d 1084 (1976).
We reversed the judgment of the Court of Appeals and ordered the case remanded to the District Court for further proceedings. Dayton I, supra. In light of the District Court’s limited findings regarding liability, we concluded that there was no warrant for imposing a systemwide remedy. Rather, the District Court should have “determine [d] how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.” 433 U. S., at 420. In view of the confusion evidenced at various stages of the proceedings regarding the scope of the violation established, we remanded the case to permit supplementation of the record and specific findings addressed to the scope of the remedy, id., at 418-419, but allowed the existing remedy to remain in effect on remand subject to further orders of the District Court, id., at 420-421.
The District Court held a supplemental evidentiary hearing, undertook to review the entire record anew, and entered findings of fact and conclusions of law and a judgment dismissing the complaint. In support of its judgment, the District Court observed that, although various instances of purposeful segregation in the past evidenced “an inexcusable history of mistreatment of black students,” 446 F. Supp., at 1237, plaintiffs had failed to prove that acts of intentional segregation over 20 years old had any current incremental segregative effects. The District Court conceded that the Dayton schools were highly segregated but ruled that the Board's failure to alleviate this condition was not actionable absent sufficient evidence that the racial separation had been caused by the Board's own purposeful discriminatory conduct. In the District Court's eyes, plaintiffs had failed to show either discriminatory purpose or segregative effect, or both, with respect to the challenged practices and policies of the Board, which included faculty hiring and assignments, the use of optional attendance zones and transfer policies, the location and construction of new and expanded school facilities, and the rescission of certain prior resolutions recognizing the Board’s responsibility to eradicate racial separation in the public schools.
The Court of Appeals reversed. The basic ingredients of the Court of Appeals’ judgment were that at the time of Brown I, the Dayton Board was operating a dual school system, that it was constitutionally required to disestablish that system and its effects, that it had failed to discharge this duty, and that the consequences of the dual system, together with the intentionally segregative impact of various practices since 1954, were of systemwide import and an appropriate basis for a systemwide remedy. In arriving at these conclusions, the Court of Appeals found that in some instances the findings of the District Court were clearly erroneous and that in other respects the District Court had made errors of law. 583 F. 2d, at 247. Petitioners contend that the District Court, not the Court of Appeals, correctly understood both the facts and the law.
II
A
The Court of Appeals expressly held that, “at the time of Brown I, defendants were intentionally operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment,” and that the “finding of the district court to the contrary is clearly erroneous.” 583 F. 2d, at 247 (footnote omitted). On the record before us, we perceive no basis for petitioners’ challenge to this holding of the Court of Appeals.
Concededly, in the eariy 1950’s, "77.6 percent of all students attended schools in which one race accounted for 90 percent or more of the students and 54.3 percent of the black students were assigned to four schools that were 100 percent black.” Id., at 248-249. One of these schools was Dunbar High School, which, the District Court found, had been established as a districtwide black high school with an all-black faculty and a black principal, and remained so at the time of Brown I and up until 1962. 446 F. Supp., at 1245. The District Court also found that “among” the early and relatively undisputed acts of purposeful segregation was the establishment of Garfield as a black elementary school. Id., at 1236-1237. The Court of Appeals found that two other elementary schools were, through a similar process of optional attendance zones and the creation and maintenance of all-black faculties, intentionally designated and operated as all-black schools in the 1930’s, in the 1940’s, and at the time of Brown I. 583 F. 2d, at 249, 250-251. Additionally, the District Court had specifically found that in 1950 the faculty at 100% black schools was 100% black and that the faculty at all other schools was 100% white. 446 F. Supp., at 1238.
These facts, the Court of Appeals held, made clear that the Board was purposefully operating segregated schools in a substantial part of the district, which warranted an inference and a finding that segregation in other parts of the system was also purposeful absent evidence sufficient to support a finding that the segregative actions “were not taken in effectuation of a policy to create or maintain segregation” or were not among the “factors . . . causing the existing condition of segregation in these schools.” Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 214 (1973); see id., at 203; Columbus Board of Education v. Penick, ante, at 467-468. The District Court had therefore ignored the legal significance of the intentional maintenance of a substantial number of black schools in the system at the time of Brown 1. It had also ignored, contrary to Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 18 (1971), the significance of purposeful segregation in faculty assignments in establishing the existence of a dual school system; here the “purposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices.” 583 F. 2d, at 248. Based on its review of the entire record, the Court of Appeals concluded that the Board had not responded with sufficient evidence to counter the inference that a dual system was in existence in Dayton in 1954. Thus, it concluded that the Board’s “intentional seg-regative practices cannot be confined in one distinct area”; they “infected the entire Dayton public school system.” Id., at 252.
B
Petitioners next contend that, even if a dual system did exist a quarter of a century ago, the Court of Appeals erred in finding any widespread violations of constitutional duty since that time.
Given intentionally segregated schools in 1954, however, the Court of Appeals was quite right in holding that the Board was thereafter under a continuing duty to eradicate the effects of that system, Columbus, ante, at 458, and that the systemwide nature of the violation furnished prima facie proof that current ségregation in the Dayton schools was caused at least in part by prior intentionally segregative official acts. Thus, judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials. Keyes, supra, at 211; Swann, supra, at 26. At the time of trial, Dunbar High School and the three black elementary schools, or the schools that succeeded them, remained black schools; and most of the schools in Dayton were virtually one-race schools, as were 80% of the classrooms. “ ‘Every school which was 90 percent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 percent or more black. Of the 25 white schools in 1972-73, all opened 90 percent or more white and, if open, were 90 percent or more white in 1971-72, 1963-64 and 1951-52.’ ” 583 F. 2d, at 254 (emphasis in original), quoting Brinkman v. Gilligan, 503 F. 2d 684, 694-695 (CA6 1974). Against this background, the Court of Appeals held that “[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination and have intentionally maintained a segregated school system down to the time the complaint was filed in the present case.” 583 F. 2d, at 253. At the very least, defendants had failed to come forward with evidence to deny “that the current racial composition of the school population reflects the systemwide impact” of the Board’s prior discriminatory conduct. Id., at 258.
Part of the affirmative duty imposed by our cases, as we decided in Wright v. Council of City of Emporia, 407 U. S. 451 (1972), is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects. See also United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972). The Dayton Board, however, had engaged in many post-Brown I actions that had the effect of increasing or perpetuating segregation. The District Court ignored this compounding of the original constitutional breach on the ground that there was no direct evidence of continued discriminatory purpose. But the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. Wright, supra, at 460, 462; Davis v. School Comm’rs of Mobile County, 402 U. S. 33, 37 (1971); see Washington v. Davis, 426 U. S. 229, 243 (1976). As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. 413 U. S., at 200-201, n. 11; 402 U. S., at 28. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices “are not used and do not serve to perpetuate or re-establish the dual school system,” Columbus, ante, at 460, and the Board has a “ 'heavy burden’ ” of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends. Wright, supra, at 467, quoting Green v. County School Board, 391 U. S. 430, 439 (1968).
The Board has never seriously contended that it fulfilled its affirmative duty or the heavy burden of explaining its failure to do so. Though the Board was often put on notice of the effects of its acts or omissions, the District Court found that “with one [counterproductive] exception ... no attempt was made to alter the racial characteristics of any of the schools.” 446 F. Supp., at 1237. The Court of Appeals held that far from performing its constitutional duty, the Board had engaged in “post-1954 actions which actually have exacerbated the racial separation existing at the time of Brown 583 F. 2d, at 253. The court reversed as clearly erroneous the District Court’s finding that intentional faculty segregation had ended in 1951; the Court of Appeals found that it had effectively continued into the 1970’s. This was a systemwide practice and strong evidence that the Board was continuing its efforts to segregate students. Dunbar High School remained as a black high school until 1962, when a new Dunbar High School opened with a virtually all black faculty and student body. The old Dunbar was converted into an elementary school to which children from two black grade schools were assigned. Furthermore, the Court of Appeals held that since 1954 the Board had used some “optional attendance zones for racially discriminatory purposes in clear violation of the Equal Protection Clause.” Id., at 255. The District Court's finding to the contrary was clearly erroneous. At the very least, the use of such zones amounted to a perpetuation óf the existing dual school system. Likewise, the Board failed in its duty and perpetuated racial separation in the schools by its pattern of school construction and site selection, recited by the District Court, see n. 7, supra, that resulted in 22 of the 24 new schools built between 1950 and the filing of the complaint opening 90% black or white. The same pattern appeared with respect to additions of classroom space made to existing schools. Seventy-eight of a total of 86 additions were made to schools that were 90% of one race. We see no reason to disturb these factual determinations, which conclusively show the breach of duty found by the Court of Appeals.
C
Finally, petitioners contend that the District Court correctly interpreted our earlier decision in this litigation as requiring respondents to prove with respect to each individual act of discrimination precisely what effect it has had on current patterns of segregation. This argument results from a misunderstanding of Dayton I, where the violation that had then been established included at most a few high schools. See Columbus, ante, at 458 n. 7 and 465-466; nn. 3 and 5, supra. We have found no reason to fault the Court of Appeals’ findings after our remand that a sufficient case of current, systemwide effect had been established. In reliance on its decision in Columbus, the Court of Appeals held:
“First, the dual school system extant at the time of Brown 1 embraced ‘a systemwide program of segregation affecting a substantial portion of the schools, teachers, and facilities’ of the Dayton schools, and, thus, clearly had systemwide impact. . . . Secondly, the post-1954 failure of defendants to desegregate the school system in contravention of their affirmative constitutional duty obviously had systemwide impact. . . . The impact of defendants’ practices with respect to the assignment of faculty and students, use of optional attendance zones, school construction and site selection, and grade structure and reorganization clearly was systemwide in that the actions perpetuated and increased public school segregation in Dayton.” 583 F. 2d, at 258 (footnote omitted), quoting Keyes, 413 U. S., at 201.
As we note in Columbus today, this is not a misuse of Keyes, “where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system.” Columbus, ante, at 467-468. See also Swann, 402 U. S., at 26. The Court of Appeals was also quite justified in utilizing the Board’s total failure to fulfill its affirmative duty — and indeed its conduct resulting in increased segregation — to trace the current, systemwide segregation back to the purposefully dual system of the 1950’s and to the subsequent acts of intentional discrimination. See supra, at 537; Columbus, ante, at 464-465; Keyes, supra, at 211; Swann, supra, at 21, 26-27.
Because the Court of Appeals committed no prejudicial errors of fact or law, the judgment appealed from must be affirmed.
So ordered.
[For dissenting opinion of Me. Justice Stewaet, see ante, p. 469.]
[For dissenting opinion of Me. Justice Powell, see ante, p. 479.]
The Court of Appeals set out the undisputed statistics:
“ ‘Enrollment data from the Dayton system reveals the substantial lack of progress that has been made over the past 23 years in integrating the Dayton school system. In 1951-52, of 47 schools, 38 had student enrollments 90 per cent or more one race (4 black, 34 white). Of the 35,000 pupils in the district, 19 per cent were black. Yet over half of all black pupils were enrolled in the four all black schools; and 77.6 per cent of all pupils were assigned to virtual one race schools. “Virtual one race schools” refers to schools with student enrollments of 90 per cent or more one race. In 1963-64, of 64 schools, 57 had student enrollments 90 per cent or more one race (13 black, 44 white). Of the 57,400 pupils in the district, 27.8 per cent were black. Yet 79.2 per cent of all black pupils were enrolled in the 13 black schools; and 88.8 per cent of all pupils were enrolled in such one race schools.
“Tn 1971-72 (the year the complaint was filed), of 69 schools, 49 had student enrollments 90 per cent or more one race (21 black, 28 white). Of the 54,000 pupils 42.7 per cent were black; and 75.9 per cent of all black students were assigned to the 21 black schools. In 1972-73 (the year the hearing was held) of 68 schools, 47 were virtually one race (22 black, 25 white); fully 80 per cent of all classrooms were virtually one race. (Of the 50,000 pupils in the district, 44.6 per cent were black).
“‘Every school which was 90 per cent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 per cent or more black. Of the 25 white schools in 1972-73, all opened 90 per cent or more white and, if open, were 90 per cent or more white in 1971-72, 1963-64 and 1951-52.’ ” Brinkman v. Gilligan, 583 F. 2d 243, 254 (CA6 1978) (emphasis in original), quoting Brinkman v. Gilligan, 503 F. 2d 684, 69<R695 (CA6 1974).
In the last stages of this litigation, respondents did not press their claims against the state officials. Only the Dayton Board and local officials petitioned for writ of certiorari.
The violation found by the District Court had three major components: first, the marked racial separation of students, which the Board had made no significant effort to alter; second, the utilization of optional attendance zones, in some cases racially motivated and having significant segregative effect in two high school zones; and third, the Board’s rescission of previously adopted resolutions recognizing the Board’s role in racial segregation and its responsibility to eradicate the existing pattern.
To preserve continuity, the court exempted enrolled high school students for two academic years. And the court noted that it would evaluate on a case-by-case basis any deviations from the target percentage. The court, moreover, set down certain guidelines to be followed in achieving the redistribution: (1) students would be permitted to attend neighborhood walk-in schools in those neighborhoods where the schools were already within the approved ratios; (2) students would be transported to the nearest available school; and (3) no student would be transported further than two miles or, if traveling that distance would take more time, for longer than 20 minutes. The District Court appointed a master to supervise the logistics of the plan. Certain other particulars were worked out when the master’s report was filed. The plan has now been in effect for three school years.
The three parts of the violation found by the District Court are discussed in n. 3, supra. Racial imbalance, we noted in Dayton I, is not per se a constitutional violation, and rescission of prior resolutions proposing desegregation is unconstitutional only if the resolutions were required in the first place by the Fourteenth Amendment. 433 U. S., at 413-414. Thus, the scope of liability extended no further than the use of some optional zones, which apparently had a present effect only as to certain high schools, and the rescission of the resolutions so far as they pertained to these high schools. See id., at 412.
The District Court observed that “[m]any of those practices, if they existed today, would violate the Equal Protection Clause.” 446 F. Supp., at 1236. The court identified certain Board policies as being “among” such practices: until at least 1934, black elementary students were kept separate from white students; until approximately 1950, high school athletics were deliberately segregated by race; and until about the same time, black students at one high school were ordered or induced to sit at the rear of classrooms and suffered other indignities.
Reviewing the faculty assignment and hiring practices, the District Court found that until at least 1951 the Board’s policies had been intentionally segregative. But in that year the Board instituted a policy of “dynamic gradualism” and “by 1969 all traces of segregation were virtually eliminated.” Id., at 1238-1239. Reasoning that the predominant factor in the racial identifiability of schools is the pupil population and not the faculty, the court ruled that plaintiffs had not established that past discrimination in faculty assignments had an incremental segregative effect.
Similarly, the court ruled that the plaintiff children had not shown that the Board’s use of attendance zones and transfers denied equal protection. In certain instances, segregative intent had not been satisfactorily demonstrated. In fact, the District Court reversed itself with respect to the high school optional zones it had earlier held unconstitutional. In other instances, current segregative effect had not been proved. Though another high school, Dunbar, had been created and maintained until 1962 as a citywide black high school, the District Court found that because of the increasing black population in that area Dunbar would have been virtually all black by 1960 anyway. And though until the early 1950’s black orphans had been bused past nearby white schools to all-black schools, this “arguably” discriminatory conduct had not been shown by “objective proof” to have any continued segregative effect. Id., at 1241.
The court also looked to school construction and siting practices. Although 22 of 24 new schools, 78 of 95 additions, and all 26 portable schools built or utilized by the Board between 1950 and 1972 opened virtually all black or all white, and though many of the accompanying decisions appeared to be so without any rationale as to be “haphazard,” the District Court found that the plaintiffs had not shown purposeful segregation. The court also refused to investigate whether the Board had any legitimate grounds for the failure to close some schools and consolidate others when enrollment declined in recent years. Though such a course would have decreased racial separation and saved money, the court found no evidence of discriminatory purpose in those facts. Nor did the court see any hint of impermissible purpose in the Board’s decisions in the 1940’s to supply school services for legally segregated housing projects and to rent elementary school space in such projects.
Finally, the court held that the Board’s rescission of its earlier resolutions was not violative of the Fourteenth Amendment since, in light of the court’s finding that the current segregation had no unconstitutional origin, the Board had no constitutional obligation to adopt the resolutions in the first place.
We have no quarrel with our Brother Stewart’s general conclusion that there is great value in appellate courts showing deference to the fact-finding of local trial judges. Ante, at 470-471. The clearly-erroneous standard serves that purpose well. But under that standard, the role and duty of the Court of Appeals are clear: it must determine whether the trial court’s findings are clearly erroneous, sustain them if they are not, but set them aside if they are. The Court of Appeals performed its unavoidable duty in this case and concluded that the District Court had erred. Differing with our dissenting Brothers, we see no reason on the record before us to upset the judgment of the Court of Appeals in this respect.
We do not deprecate the relevance of segregated faculty assignments as one of the factors in proving the existence of a school system that is dual for teachers and students: but to the extent that the Court of Anneals understood Swann v. Charlotte-Mecklenburg Board of Education as holding that faculty segregation makes out a prima facie case not only of intentionally discriminatory faculty assignments contrary to the Fourteenth Amendment but also of purposeful racial assignment of students, this is an overreading of Swann.
The Court of Appeals also held that the District Court had not given proper weight to Oliver v. Michigan State Board of Education, 508 F. 2d 178, 182 (CA6 1974), cert. denied, 421 U. S. 963 (1975), where the Court of Appeals had held that “[a] presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation,” and that “[t]he presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies.” We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to the defendants. Of course, as we hold in Columbus today, ante, at 464-465, proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose, and it may itself show a failure to fulfill the duty to eradicate the consequences of prior purposefully discriminatory conduct. See supra, at 535.
The Board heard from the local National Association for the Advancement of Colored People and other community groups, the Department of Health, Education, and Welfare, the Ohio State Department of Education, and a citizens advisory group the Board had appointed; at times the Board itself expressed its recognition of the problem and of its responsibility, though ultimately it did nothing. 446 F. Supp., at 1251-1252.
Under the policy of “dynamic gradualism” instituted in 1951, see n. 7, supra, black teachers were assigned to white or mixed schools when the surrounding communities were ready to accept black teachers, and white teachers who agreed were assigned to black schools. App. 182-Ex. By 1969, each school in the system had at least one black teacher. The District Court apparently did not think the post-1951 policy was purposeful discrimination. 446 F. Supp., at 1238-1239. We think the Court of Appeals was completely justified in finding that conclusion to be clearly erroneous on the undisputed facts. As late as the 1968-1969 school year, the Board assigned 72% of all black teachers to schools that were 90% or more black, and only 9% of white teachers to such schools. And faculty segregation disappeared completely only after efforts of the Department of Health, Education, and Welfare under Title VI of the Civil Rights Act of 1964. See 446 F. Supp., at 1238.
The Court of Appeals found that the District Court had committed clear error in reversing its earlier findings of purpose as to certain optional zones, which the Court of Appeals had earlier affirmed and this Court had not set aside. 583 F. 2d, at 255.
Petitioners also contend that the respondent children have failed to establish their standing to bring this action. This challenge is dependent on petitioners1 major contentions, for if the Court of Appeals was correct that the current, systemwide segregation is a result of past unlawful conduct then respondents, as students in the system, clearly have standing.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_treat
|
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.
UNITED STATES of America, Appellee, v. UPPER POTOMAC PROPERTIES CORPORATION et al., Appellants.
No. 15106.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1971.
Decided Sept. 29, 1971.
Philip O. Foard, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellants.
Peter R. Steenland, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Anthony C. Liotta, Philip M. Zeidner, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee.
Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.
CRAVEN, Circuit Judge:
This is an appeal from a judgment entered on a jury verdict in the United States District Court for the District of Maryland, awarding the defendants $315,000.00 as compensation for the taking by the United States of over 2,060 acres of coal mining property. It was agreed before trial that the highest and best use of the land was for coal mining purposes, and at the trial the testimony of all witnesses was directed to the value of the property for such purposes. The questions presented us are these: (1) whether the property should be valued as of the date of the trial, as defendants contend, or as of the date of the filing of the Order for Delivery of Possession, as held by the district court; (2) whether the district judge erred in admitting into evidence testimony concerning the sale of a piece of coal mining property to the lessee of all the mineral rights to the property; and (3) whether it was error to charge the jury that if they found certain sales relied upon by the government’s expert witness to be comparable, they were the best evidence of value, but not the only evidence to be considered.
For reasons set out below we conclude that the assignments of error are without merit and affirm the judgment below.
This action was commenced on April 17, 1968, when the government filed a Complaint and a Notice of Condemnation according to 33 U.S.C. §§ 591, 594. On April 18, 1968, the district court entered ex parte an Order for Delivery of Possession. On May 14, 1968, a stipulation between the parties was filed.
The defendants argue that since the government did not file a declaration of taking under 40 U.S.C. §§ 258a-258e, nor take physical possession at any time before the trial, the value of the land is to be ascertained as of the date of the trial. However, under 33 U.S.C. § 594 the United States is entitled to the right of immediate possession provided only that subsequent compensation is assured. *When it proceeds under this title, as was done here, the United States is not required to file a Declaration of Taking under 40 U.S.C. §§ 258a-258e unless it elects to do so. United States v. Catlin, 142 F.2d 781 (7th Cir. 1944). We agree with the district court that the time of taking was on April 18, 1968, the date of the Order for Delivery of Possession. While it is true that the United States did not have actual physical possession of the land in question on that date, the stipulation of May 14, 1968, between the parties indicates that the rights of the defendants to the use of the land was limited in such a way as to be inconsistent with anything except a possessory right in the government with certain rights reserved to the defendants. Our conclusion on this issue is reinforced by paragraph 5 of the Stipulation, the proper interpretation of which we think is provided by the district court. “Only if the land had previously been taken by the United States [i. e., at the date of the Stipulation], but defendants were nevertheless permitted to use some of it, and remove coal, would it be necessary to provide specifically for reflecting, ‘the diminution in value * * * by reason [of removal] of the coal or other materials.’ ” R. 88-93, App. at 19.
We think the district judge did not abuse his discretion when he allowed the jury to consider the price paid for the coal mining operation immediately adjacent to the property in question on the theory that comparable sales- are the best evidence of value. The government appraisers testified that they took this price into consideration as a comparable sale in arriving at their figure of what the fair market value of the property in question would be. This sale, entered into in 1967 (hereinafter referred to as the Johnstown sale), was of about 5,000 acres by the Johnstown Coal Company to Douglas Coal Company for $250,000. Douglas Coal Company already had a lease on the property under which they could mine the coal on the property for 20 years, with an option to renew for ten years or until the coal was exhausted. As royalty under their lease, Douglas was to pay a per ton price which varied depending on the mining method used, but which was to be at least $625 per month.
The defendants contend that since this lease existed, evidence of the subsequent sale should have been excluded because no one other than Douglas could have bought the land and used it for coal mining. Implicit in this argument is the supposition that since Douglas had the lease, it could not have rationally paid the same price for the freehold as it would have if the lease had not existed, and therefore the purchase price in the Johnstown sale could not have reflected the fair market value of the freehold.
It is clear that the term fair market value, with reference to the land in question, is the complete freehold interest. However, it does not follow that the fair market value of the property involved in the Johnstown sale must be greater than the price paid for the land subject to the lease. This depends entirely on the terms of the lease. While it is true that only Douglas could have bought the land and used it for coal mining, whether or not it would pay more or less than the fair market value of the land would depend upon the terms of the lease.
There was conflicting testimony when evidence of this sale was first introduced whether the government appraisers knew the terms of the lease when they arrived at their conclusions as to fair market value of the property in question. However, there was also evidence that the government appraisers considered the lease to be a “fair market” lease (App. 287) and that they had concluded from conversations with the principals to the Johnstown sale that the sale was for the fair market value of the land.
If this testimony is taken as true, as it must be here, there is no reason to believe that Douglas would not have paid the value of the land as it would have been without the lease. If the royalty payments were more than the fair rental value of the land, Johnstown would have no reason to sell and the lease would actually enhance the value of the freehold. If the royalty payments had been less than the fair rental value, it is true that the freehold interest would be less valuable with the lease than without it. But if the royalty payments reflect the fair rental value in 1967, then it would seem that the lease neither added nor detracted from the value of the land.
There is testimony which would support a conclusion that the lease in question provided for royalty payments below the fair rental value in 1967, in which ease the sale price could well have been less than the fair market value of the land, since the leasehold would have value. However, there is also adequate testimony to support the conclusion that the lease in question in the Johnstown sale properly reflected the fair rental value of the land in 1967, in which case the lease could properly be disregarded when arriving at a conclusion as to fair market value of the freehold, as one of the government appraisers testified he did. App. at 261. Allowing the jury to consider whether the sale price of the Johnstown property was a comparable sale was clearly within the sound discretion of the district judge; indeed, it would have been error to exclude it for federal courts favor “a broad rule of admissibility * * * of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. * * * ” United States v. Sowards, 370 F.2d 87, 90 (10th Cir. 1966).
The defendant property owners next contend that it was error to instruct the jury, preliminarily and at the close of the case, that comparable sales are the best evidence of value. In addition, the property owners seem to argue that it was also error to allow the jury to consider the prior sales as evidence bearing on the value of the property in question because another method of valuation is generally used by members of the coal mining industry when they consider whether to buy a piece of coal bearing property. This method, termed the discounted royalty rate method, uses the product of the amount of recoverable coal in place times the price per ton of such coal, discounted over time. Defendants urge that because this method of valuation is almost universally used by people in the coal mining business any other method of valuation is inadmissible under exclusionary rules of evidence. We disagree. That it may be an acceptable method does not serve to exclude otherwise competent evidence relating to valuation. For a discussion of whether this method is an acceptable method of valuation or a deviation from the proper standard of value, see United States v. Sowards, 370 F.2d 87 (10th Cir. 1966), and cases cited.
The main thrust of defendants’ appeal is that the district judge committed error by instructing the jury that comparable sales are the best evidence of value. The property owners claim that the effect of the trial judge’s instructions was to preclude the jury from even considering the method of valuation used in the industry, and that the jury thought that the only issue to be determined was whether or not there were comparable sales. A reading of the instructions given the jury by the trial judge, however, does not support the defendants’ contention.
On numerous occasions the trial judge repeated his basic instructions that “ * * * if there are comparable sales, they are the best evidence, but they are not to be taken solely and exclusively, they are to be taken in connection with all of these other things.” App. 1147. See also App. 1148-1150. Throughout his instructions, the trial judge emphasized that comparable sales, if the jury found them in fact to be comparable, are not the only evidence of value which the jury was to consider. In addition, the trial judge specifically instructed the jury that they could also consider the price per ton of coal and the royalty rate in arriving at the amount to be paid defendants. App. 1150. We think it is clear that the trial judge’s instructions did not limit the jury in the manner that the defendants contend.
The defendants further contend that the trial judge labored under the erroneous impression that he was compelled by decisions of this court to charge the jury that comparable sales are the best evidence of value in all condemnation cases and that but for his misapprehension he would not have so charged in this case. We perceive no such error. It is clear that the trial judge did not think such an instruction was mandatory under all circumstances, but rather concluded that under the facts of this case such an instruction was appropriate and therefore mandatory. Having correctly determined that there was an issue of fact for the jury as to whether several sales relied upon by the government witness were comparable, the trial judge was then obligated to give an instruction that if found to be comparable, such sales are the best evidence of value, but not the only evidence. The law was correctly stated by Judge Boreman in United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir. 1964), when he said, “[I]t is settled law that comparable sales are the best evidence of value.” See also United States v. Miller, 317 U.S. 369, 374-375, 63 S.Ct. 276, 87 L.Ed. 336 (1943), United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957).
The judgment of the district court will be
Affirmed.
. The lands taken were to be used for the building of the Bloomington Dam and Reservoir on the North Branch of the Potomac River in Garrett County, Maryland.
. Section 594 reads in relevant part as follows :
Whenever the Secretary of the Army, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted. * * *
. For example, the stipulation provides that:
Defendants further agree that no strip mining, cast off of overburden or disturbance of the earth for any reason is permitted by them except as stated below. Defendants may conduct mining operations on the property subject to following conditions:
After conditions relative to strip mining in certain areas were laid out, the stipulation continued:
In the event that the District Engineer should determine that the continued use and occupancy of the areas designated herein constitutes an interference with protect purposes the Defendants hereby agree to cease its operations immediately upon notice by the United States Army District Engineer to said effect.
. Defendants further agree that the diminution in the value of the land described in paragrapli 3 above by reason of removal of coal or other materials shall be reflected in the just compensation as determined by judicial process or by stipulated agreement between the plaintiff and defendants.
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_genapel2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
The TOILET GOODS ASSOCIATION, Inc., et al., Plaintiffs-Appellees, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and Herbert L. Ley, Jr., Commissioner of Food and Drugs, Defendants-Appellants.
No. 617, Docket 32531.
United States Court of Appeals Second Circuit.
Argued June 6, 1969.
Decided Aug. 25, 1969.
Alan B. Morrison, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Michael D. Hess, Asst. U. S. Atty., of counsel), for defendants-appellants.
Edward J. Ross (Breed, Abbott & Morgan, Stephen R. Lang, New York City, of counsel), for plaintiffs-appel-lees.
Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
Nine years ago Congress amended the Food, Drug, and Cosmetic Act, 52 Stat. 1040 (1938), by enacting the Color Additive Amendments of 1960, 74 Stat. 397. Nearly three years later, after appropriate rule-making proceedings, the Food and Drug Administration (FDA) published its Regulations thereunder, 28 F.R. 6439. This litigation about the validity of their provisions concerning diluents, finished cosmetics and hair-dyes has continued ever since. An initial effort by the Government to prevent the judicial review of the Regulations sought by the cosmetics industry, on the ground of lack of “ripeness,” was rebuffed by Judge Tyler in the District Court for the Southern District of New York, 235 F.Supp. 648 (1964). A year later, when the case was nearly ready for trial, the Government renewed its effort to obtain dismissal for lack of ripeness on the basis of an allegedly conflicting decision by another circuit, with no success beyond obtaining a certificate from the district judge for an interlocutory appeal under 28 U.S.C. § 1292(b) which we allowed. We sustained the district court save in one' respect no longer material, 360 F.2d 677 (1966). Both sides successfully sought certiorari but the Supreme Court affirmed, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). The case then returned to the district court where Judge Tyler rendered a decision favorable to the plaintiffs, 278 F.Supp. 786 (1968). This time the defendants were some seventeen months in bringing their appeal to us.
I.
Finished Cosmetic Products as Color Additives
The key provision of the Color Additive Amendments is 21 U.S.C. § 376, providing for what the parties term “pre-marketing clearance.” This begins by saying in subsection (a):
A color additive shall, with respect to any particular use (for which it is being used or intended to be used or is represented as suitable) in or on food or drugs or cosmetics, be deemed unsafe for the purposes of the application of sections 342(c), 351(a) (4), or 361(e) of this title, as the case may be, unless—
(1) (A) there is in effect, and such additive and such use are in conformity with, a regulation issued under subsection (b) of this section listing such additive for such use, including any provision of such regulation prescribing the conditions under which such additive may be safely used, and (B) such additive either (i) is from a batch certified, in accordance with regulations issued pursuant to subsection (c) of this section, for such use, or (ii) has, with respect to such use, been exempted by the Secretary from the requirement of certification; or
(2) such additive and such use thereof conform to the terms of an exemption which is in effect pursuant to subsection (f) of this section.
Subsection (b) (1) directs the Secretary to provide by regulation
for separately listing color additives for use in or on food, color additives for use in or on drugs, and color additives for use in or on cosmetics, if and to the extent that such additives are suitable and safe for any such use when employed in accordance with such regulations.
Section 8.4(c) of the Regulations sets forth the requirements for a listing application in elaborate detail. These include a complete description of the chemical and physical properties of the color additive, the chemical and physical tests relied on to identify it, and the methods and ingredients used for its production; a description of practical methods to determine the amount of the color additive, and of any substance formed by its use, contained in the final product; full reports of investigation made with respect to its safety; complete data to allow the Commissioner to consider the probable consumption of or other exposure to the additive and any substance formed therefrom; and proposed tolerances. If an exemption from batch certification is requested, supporting data are to be furnished. Each listing application must be accompanied by a fee of $2600 to cover the FDA’s costs in processing the application and performing tests. Other provisions of the Regulations, § 8.22-§ 8.30, contain equally detailed requirements with respect to certification, including a provision, § 8.26, that “the person to whom a certificate is issued shall keep complete records showing the disposal of all the color additive from the batch covered by such certificate.”
The parties are in basic disagreement concerning what constitutes a color additive requiring the premarketing clearance just described. On this the statute informs us, § 321 (t) (1):
(1) The term “color additive” means a material which—
(A) is a dye, pigment, or other substance made by a. process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity, from a vegetable, animal, mineral, or other source, and
(B) when added or applied to a food drug or cosmetic, or to the human body or any part thereof, is capable (alone or through reaction with any other substance) of imparting color thereto; except that such term does not include any material which the Secretary, by regulation, determines is used (or intended to be used) solely for a purpose or purposes other than coloring.
The disputed Regulation, 21 C.F.R. § 8.1 (f), after repeating this definition, adds two provisions of which the industry complained. One is “This includes all diluents”; the other is:
A substance that, when applied to the human body results in coloring, is a “color additive,” unless the function of coloring is purely incidental to its intended use, such as in the case of deodorants. Lipsticks, rouge, eye makeup colors and related cosmetics intended for coloring the human body are “color additives.”
The industry contended, and the district court held, that the Regulation exceeded the statutory authority in requiring pre-marketing clearance of diluents and of finished cosmetic products. The Government does not claim error in the conclusion that § 8.1(f) is invalid in defining diluents as color additives and thereby making them subject to premarketing clearance. But it vigorously attacks the holding that the section is similarly invalid in so defining finished cosmetic products.
In a valiant effort to overcome the instinctive reaction that when Congress spoke of a “color additive” it scarcely meant the entire product, the Government has developed an ingenious parsing of the definition in § 321 (t). A finished cosmetic product, it says, while not a dye or pigment within subdivision (A), is an “other substance.” And while such a product is not “added or applied to a food, drug or cosmetic” within subdivision (B), it is applied “to the human body or any part thereof” and “is capable (alone or through reaction with any other substance) of imparting color thereto.” Hence the finished cosmetic product is itself a color additive. Indeed, says the Government, any other construction would fail to comply with the canon that every word in a statute must be given effect, since, as it claims, the industry has been unable to point to any “other substance” which, when added or applied to the human body, is capable of imparting color thereto.
The district judge rejected the Government’s construction on several grounds, 278 F.Supp. at 790-791. He pointed to the numerous instances where Congress used the word “cosmetics” when that was what it intended. See 21 U.S.C. §§ 331, 374, 381. He countered the defendants’ canon with that of ejusdem gener-is; the natural interpretation of “other substance” is a coloring ingredient having properties similar to a dye or pigment, see fn. 2. Defendants’ reading “other substance” to include a cosmetic would cause the definition to refer to “a dye, pigment, or other substance (including a cosmetic)” which, when added to “a food, drug or cosmetic” is capable of imparting color, a result he deemed absurd. When Congress wished to employ a comprehensive term for finished products, it used the word “articles,” 21 U.S.C. § 321, whereas “substance” was used to connote a component or ingredient, 21 U.S.C. §§ 321(s), 346.
The Government answers the last argument rather effectively by pointing to other instances where the word “articles” was used to refer to components, §§ 321(f) and (i) and 355(b). It also contends that if the industry’s construction is right, the exemption for pesticides in § 321 (t) (3) was unnecessary, to which the industry responds that this was inserted on the request of pesticide manufacturers out of abundant caution, and that in any case it would have been more logical to call pesticides and fertilizers which might alter the color of plants “color additives” than to apply the term to finished cosmetics. The Government argues from the rejection of many similar requests to limit the definition that it was intended to have broad scope, while the industry asserts that many of these requests stemmed from such absurd fears — for example, that the peas in a can of peas and carrots might be “color additives” because they are not the same color as the carrots — that they reinforce Judge Tyler’s restricted reading of the phrase “dye, pigment, or other substance.”
Coming closer to the critical issue, the Government points to § 361(e), hereafter discussed, as showing that the statutory scheme places at least some kinds of finished cosmetic products under the rubric of color additives. It also directs our attention to § 362, which provides that “A cosmetic shall be deemed to be misbranded * * *, (e) if it is a color additive” unless its packaging and label-ling accord with prescribed regulations. Although § 321 (i) defines “cosmetics” to include the components of finished cosmetics as well as the finished cosmetics themselves, and therefore may make it necessary for “color additives” to be called “cosmetics” even when they are not meant to be used directly by consumers, these provisions scarcely show that all finished cosmetics were thought to be color additives requiring pre-marketing clearance.
While we consider the industry to be ahead in this exchange of textual volleys, we find more enlightenment in the history and declared purpose of the Color Additive Amendments. The definition of color additives in the 1960 amendment did not spring full-blown from the congressional brain. The Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, had prohibited the sale, § 301(a) (c), of food, § 402(c), drugs, § 501(a) (4), and cosmetics (other than hair dyes), § 601(e), bearing or containing a coal-tar color other than one from a batch certified, in accordance with regulations as authorized for the three categories respectively in §§ 406(b), 504, and 604, to be “harmless and suitable for use.” The Regulations, 21 C.F.R. § 135.1 (1949 ed.), defined “coal-tar color” as meaning “articles which (1) are composed of or contain any substance derived from coal-tar * * *, and (2) when added or applied to a food, drug, cosmetic, or the human body or any part thereof, are capable (alone or through reaction with other substance) of imparting color thereto.” There is no indication that the FDA ever considered this definition to require the listing and certification of finished cosmetics as distinguished from the coal-tar colors themselves. The burden thus falls on the Government to show that when, in the Color Additive Amendments, Congress employed words similar to those previously in the FDA’s regulations, it meant them to have a different effect. The history seems rather to reinforce the view that it did not.
The occasion for the legislation of 1960 was the Supreme Court’s ruling of December 15, 1958, in Flemming v. Florida Citrus Exchange, 358 U.S. 153, 79 S. Ct. 160, 3 L.Ed.2d 188, which this court had anticipated in Certified Color Industry Committee v. Secretary of Health, Ed. & Welfare, Folsom, 2 Cir., 236 F.2d 866 (1956). These decisions sustained the Secretary’s new position, dating from 1950, that he could certify only coal-tar colors which were harmless without regard to quantity or concentration, regardless of the fact that they were “safe-for-use” within specified quantity limits.
Shortly after this court’s decision the color industry began steps to meet the threat with which it was confronted. The common goal of the industry and the FDA was, on the one hand, to restore the “safe-for-use” principle that had been in effect from 1906 to 1950 and, on the other, to deal with all colors rather than only with those derived from coal-tar. A revised industry draft, introduced by Representative Curtis in 1957, 85th Cong. 1st Sess., H.R. 8945, defined “color additive” as “a material which (1) is composed of or contains any dye, pigment or other substance * * *, and (2) is added or applied to a food, drug, cosmetic, or the human body or any part thereof, for the purpose of imparting color thereto- alone or through reaction with any other substance.” Obviously premarketing clearance of all cosmetic products containing color was the last thing in the industry’s mind, as the FDA must have been well aware. In an extended letter, dated June 27, 1958, to the Chairman of the House Committee on Interstate and Foreign Commerce, the Assistant Secretary of Health, Education and Welfare endorsed the general principles of the bill. Nothing in the letter suggested that the Department conceived of the bill as requiring premarketing clearance of finished cosmetic products. Instead the letter used such language as “the proposal that we be permitted to admit colors for use under appropriate tolerance and other prescribed conditions of use in specified foods, drugs, and cosmetics,” and “the bill, as we interpret it, authorizes the Secretary to decide which foods, drugs, or cosmetics may bear a color and in what amounts.”
The Supreme Court’s decision of December 15, 1958, created a new urgency. On January 13, 1959, Secretary Flem-ming issued a statement on the need for legislation. This, he said, “should place upon the users of colors the responsibility of proving to the satisfaction of the Food and Drug Administration that coloring materials in foods, drugs, and cosmetics are safe in the quantities they propose to use” (emphasis supplied). A draft bill circulated by the FDA to the industry on April 10 defined color additive in substantially the same manner as the Curtis bill except that in the second clause it used the phrase “is capable of imparting color” instead of “for the purpose of imparting color.” Ten days later the Secretary characterized the FDA bill, among other things, as requiring “industry to prove to our satisfaction that its use of any color would be without harm” and as allowing the FDA “to place a limit on the amount of a color that may be used, or to specify the products in which it may be used, or both.” Nothing in his statement indicated an intention that finished cosmetic products would have to be listed and certified. However, in response to fears by some members of industry, the words “is composed of or contains” in the first clause of the definition were deleted by the Department in the bill submitted to Congress. In his letter of transmittal the Secretary characterized the bill as providing “a scientifically sound and uniform system for the listing of color additives of any kind which may safely be used in foods, drugs, or cosmetics, subject, when necessary, to appropriate tolerance limitations and other conditions of use and to official certification of batches of color so as to assure the safety of such use to the consumer.” 2 U.S.C. Cong. & Adm.News, 86th Cong. 2d Sess., p. 2914 (1960). A detailed analysis of the bill spoke of the need for “permitting the listing of colors under safe tolerances,” for extending “the pretesting requirement * * * to those non-coal-tar colors, especially those used in cosmetics and drugs, to which it does not now apply,” and also for applying to all colors “the requirement of certification of batches of color, where necessary for the protection of the public health.” Id. at p. 2919. Nothing in the Department’s analysis gave either the industry or the legislators any reason to think that by adopting the bill Congress would be subjecting finished cosmetics products to a pre-marketing clearance never previously imposed, and the Government has not directed our attention to any point in the hearings, reports or debates where any such intention was indicated.
We do not mean to imply that all or even many of the Congressmen who voted for the Color Additive Amendments in 1960 had such arcana vividly in mind. But it is a good principle that before a court will hold Congress to have made a basic change in regulatory procedures, legislators must either use plain language or give other clear manifestation of intent. Cf. Ozawa v. United States, 260 U.S. 178, 194, 43 S. Ct. 65, 67 L.Ed. 199 (1922). In the absence of this it is reasonable to assume that both those legislators who were knowledgeable and those who voted on faith wished to leave things as they were,
There is still further evidence in favor of the district court’s construction. The basic structure of the Color Additive Amendments is to apply the same requirements to foods, drugs and cosmetics which contain coloring materials. ' Yet the Government’s exegesis would result in finished cosmetics with coloring ingredients being subject to listing and certification whereas foods and drugs bearing such ingredients would not be. Yet, if there is a difference in hazard, foods and drugs, which are ingested, would seem to outrank cosmetics; indeed cosmetics were not brought into the regulatory scheme until 32 years after foods and drugs.
We cannot agree with the Government that the district court’s invalidation of the portion of § 8(f) which we have quoted frustrates the “safe-for-use” principle which concededly underlay the Color Additive Amendments. Other provisions of 21 U.S.C. § 376 confer all authority needed to that end. Although the Secretary “may list any color additive for use generally in or on food, or in or on drugs, or in or on cosmetics, if ‘the Secretary finds that such additive is suitable and may safely be employed for such general use,” 21 U.S.C. § 376 (b) (2) (A), he also may list an additive “only for any more limited use or uses for which it is suitable and may safely be employed.” § 376(b) (2) (B). He is authorized to prescribe broadly “the conditions under which such additive may be safely employed for such use or uses,” including tolerance limitations. § 376 (b) (3). This power and the further directives in § 376(b) (4) and (5) are ample authority for the Secretary to prescribe that a particular “dye, pigment or other substance” may be used with certain diluents but not with others, or at higher concentrations with some than with others. It may well be that, in some eases, a cosmetics manufacturer might be obliged to supply an amount of information concerning a finished cosmetic equivalent to what would be required for listing. But it does not follow from this that Congress meant to subject the many thousands of cosmetic formulations to premarketing clearance — both listing and certification — at enormous and apparently unnecessary cost both to the industry and to the Government. “In our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop.” 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 600, 71 S.Ct. 515, 521, 95 L.Ed. 566 (1951).
II.
. The Hair-Dye Exemption
The teeth of the control over cosmetics are in 21 U.S.C. § 361, prescribing that “A cosmetic shall be deemed to be adulterated” under any one of five conditions there prescribed. The introduction of an adulterated cosmetic into interstate commerce is a prohibited act, § 331, which is subject to injunction, § 332, and constitutes a crime, § 333, and the adulterated goods are subject to seizure, § 334.
The two provisions of § 361 relevant to the FDA’s hair-dye regulation are subdivisions (a) and (e). They say that a cosmetic shall be deemed adulterated
(a) If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling thereof, or under such conditions of use as are customary or usual: Provided, That this provision shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: “Caution — This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness,” and the labeling of which bears adequate directions for such preliminary testing. For the purposes of this subsection and subsection (e) of this section the term “hair dye” shall not include eyelash dyes or eyebrow dyes.
(c) If it is not a hair dye and it is, or it bears or contains, a color additive which is unsafe within the meaning of section 376(a) of this title.
Subdivision (a) was part of the original legislation concerning cosmetics, 52 Stat. 1054 (1938), and was not altered in any manner in 1960. Subdivision (e) had previously read
(e) If it is not a hair dye and it bears or contains a coal-tar color other than one from a batch that has been certified in accordance with regulations as provided by section 604.
The Regulation held invalid by the district court, 21 C.F.R. § 8.1 (u), provides :
(u) The “hair-dye” exemption in section 601(a) of the act applies to those articles intended for use in altering the color of the hair and which are, or which bear or contain, color additives with the sensitization potential of causing skin irritation in certain individuals and possible blindness when used for dyeing the eyelashes or eyebrows. The exemption is permitted with the condition that the label of any such article bear conspicuously the statutory caution and adequate directions for preliminary patch-testing. If tho poisonous or deleterious substance in the “hair dye” is one to which the caution is inapplicable and for which patch-testing provides no safeguard, the exemption does not apply ; nor does the exemption extend to poisonous or deleterious diluents that may be introduced as wetting agents, hair conditioners, emulsifiers, or other components in a color shampoo, rinse, tint, or similar dual-purpose cosmetics that alter the color of the hair.
Although the Regulation appears to be limited to § 361(a), the court’s decree was broader. The decree not only invalidated the Regulation “in its entirety” but also
any other provisions of the Regulations which have or may have the purpose or effect of defining or treating hair dyes or hair coloring products as color additives, or of requiring the listing or certification of such products, or of limiting or changing in any way the statutory exemption for hair dye products, or which may cause or result in having the provisions of Sections 601(a), 601(e), 602(e), 706, 301, 303, 304 of the Act, or of regulations issued or purported to be issued thereunder, applied to hair dyes or to hair coloring products, or to the ingredients thereof, which are exempt from the provisions of said Sections of the Act.
Taking first things first, we agree with the invalidation of so much of the Regulation as sought to deprive coal-tar hair dyes of the exemption conferred by § 361(a) in cases where, in the view of FDA, the coal-tar color ingredient carries a danger for which patch-testing provides no safeguard. The Government’s argument' should indeed be appealing to a legislator — what good is the warning to make a patch test if the test will not disclose the danger? But a court must take the statute as it is, and Congress wrote with great specificity. Whether it relied solely on the patch test warning because it was unaware in 1938 that coal-tar dyes might have damaging effects not detectable by such a test, as the Government asserts but the industry denies, or because it thought such instances so rare as not to warrant indentation of the exemption, the language is too clear for us to read it as meaning something different from what it so plainly says, at least in the absence of persuasive legislative history. The case fits perfectly Mr. Justice Brandéis’ famous stricture, “What the Government asks is not a construction of the statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope.” Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926). Cf. Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959).
It is equally plain that the exemption of § 361(a) does not apply to coloring ingredients in hair dyes not derived from coal-tar; indeed we do not read the decree as prohibiting a regulation which would make that clear. We likewise see no basis for invalidating the portion of the Regulation which says that the exemption does not apply to poisonous or deleterious diluents. It is inconceivable that Congress meant to deprive the FDA of its ordinary powers with respect to other ingredients simply because they were combined with a coal-tar dye.
We think the court also erred in excluding from § 361(e) color additives in hair dyes other than those made from coal tar. The 1938 Act applied only to coal-tar colors, and the exemption of hair dyes in subdivision (e) was logical since coal-tar colors were dealt with by subdivision (a) in a supposedly adequate fashion. The modification of subdivision (e) in 1960 was párt of a program to regulate all colors, and not merely coal-tar colors. But, if the statute be read with entire literalness, the unaltered introductory provision in subsection (e) now would have the effect of excluding any sanction for the use in a hair dye of an unlisted or uncertified coloring ingredient although not within the proviso to § 361(a). In the absence of any legislative history indicating an intention to broaden the exemption in § 361(e), the most sensible construction is that, despite the retention of the introductory words “if it is not a hair dye,” Congress did not mean to exempt non-coal-tar color additives used in hair dyes from the requirement of listing and certification. There is no inconsistency between this ruling and that with respect to coal-tar color additives in hair dyes. As to the latter we hold that, in the absence of any indication of a changed Congressional intent, § 361(a) continued to mean what it said and had always been thought to mean. As to non-coal-tar hair dyes we refuse to rule that the retention of an introductory phrase, appropriate when enacted in 1938, should produce a result wholly inconsistent with the basic purpose of the 1960 amendments.
We therefore affirm the holding of the district court with respect to § 8.1(f) of the Regulations, affirm in part and reverse in part with respect to § 8(u), and remand for proper modification of the decree. No costs.
. Section 8.1 (m) defines diluent to mean “any component of a color additive mixture that is not of itself a color additive and has been intentionally mixed therein to facilitate the use of the mixture in coloring foods, drugs, or cosmetics or in coloring the human body.”
. The industry argues that “other substance” was intended to refer to certain ingredients which, in contrast to dyes and pigments, are themselves colorless but nevertheless impart color. However, says the Gpvernment, such substances are applied to the human body only through being added to a cosmetic, still leaving “other substance” applied “to the human body or any part thereof” a null set.
. The Food and Drug Act of 1906, 34 Stat. 768 (1906), had contained similar provisions with respect to food and drugs.
. The Secretary also took the position that he could certify only colors that were safe for use in all foods, or in all drugs, or in all cosmetics.
. The final paragraph of the form of decree submitted by the defendants would have made entirely clear that the invalidation of portions of § 8.1(f) should not restrain the defendants “in requiring the presentation of all needed scientific data to support color additive listing regulations which will assure that such listed color additives will be safe for their intended uses, including uses in lipstick, rough, eye makeup and related finished cosmetics,” or “from determining what the relevant factors are in a particular case or from determining the nature, scope and extent of the testing of other data which may be required, and anything else which may be essential in determining that a color is safe for its intended use.” While we see nothing in the decree that would restrain the defendants in these respects, the district court might give further consideration to this on the remand we are directing with respect to the hair-dye exemption.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
ANDREW G. NELSON, INC., v. UNITED STATES et al.
No. 16.
Argued December 11, 1957.
Decided March 3, 1958.
Paul E. Blanchard argued the cause for appellant. With him on the brief were Victor L. Lewis and Edward W. Rothe.
Roger Fisher argued the cause for appellees. On the brief were Solicitor General Rankin, Assistant Attorney General Hansen, Robert W. Ginnane and Isaac K. Hay for the United States and the Interstate Commerce Commission, appellees.
Me. Justice Clakk
delivered the opinion of the Court.
This appeal concerns the scope of a contract carrier permit granted appellant by the Interstate Commerce Commission under the “grandfather clause” of the Motor Carrier Act of 1935. The Commission interpreted “stock in trade of drug stores,” a commodity description in appellant’s permit, to authorize carriage of only those goods which at time of movement are, or are intended to become, part of the stock in trade of a drugstore. On the basis of that interpretation, an appropriate cease and desist order prohibiting carriage of unauthorized goods was entered. 63 M. C. C. 407. After a three-judge District Court refused to enjoin enforcement of the order, 150 F. Supp. 181, direct appeal was taken to this Court, and we noted probable jurisdiction. 352 U. S. 905 (1956). For reasons hereinafter stated we affirm the judgment of the District Court.
Appellant’s predecessor, Andrew G. Nelson, having operated as a contract carrier before enactment of the Motor Carrier Act, applied for a permit to continue his operation subsequent to passage of the Act, as contemplated by § 209 (a) thereof. The application described Nelson’s complete operation as "transportation ... of store fixtures and miscellaneous merchandise, and household goods of employes, for Walgreen Co., in connection with the opening, closing and remodeling of stores.” In a supporting affidavit Nelson stated that he was “an interstate contract carrier of property for the Walgreen Company and for it alone ... to and from Walgreen Retail Stores . . . the commodities so transported [being] usually store fixtures and equipment and merchandise for the opening stock.” Filed with the affidavit were 17 delivery receipts showing contract carriage for Walgreen in 1934-1935.
On March 13, 1942, the Commission issued the permit in controversy without a hearing, relying on the application and supporting papers filed by Nelson. The permit authorized contract carriage of “[n]ew and used store fixtures, new and used household goods, and stock in trade of drug stores” over irregular routes in 10 States. Upon Nelson’s incorporation in 1951, the Commission issued an identical permit to the corporation, the appellant here. In 1954, an investigation by the Commission to determine if appellant was operating beyond the bounds of its permit authority revealed that appellant was carrying a wide range of commodities for many kinds of shippers, including groceries for grocery stores, beer and wine to liquor distributors, dry glue to manufacturers of gummed products, and automobile batteries to department stores. The Commission held that such carriage, all of which appellant attempted to justify under the description “stock in trade of drug stores,” violated § 209 of the Act, which prohibits contract carriage without a permit authorizing the business in question.
Appellant contends that the critical language of the permit, “stock in trade of drug stores,” is a generic description of commodities by reference to place of sale, entitling it to transport goods like those stocked by present-day drugstores to any consignee within the authorized operating territory. The Commission, however, regards these words as a description of commodities by reference to intended use, authorizing a more limited carriage: goods moving to a drugstore for sale therein, or if moving elsewhere, then with the intention at the time of movement that they ultimately will become part of the goods stocked by a drugstore. Appellant argues that the intended use of the goods is of no consequence here because (1) intended use restrictions are never applied to commodity descriptions by reference to place of sale, and (2) intended use restrictions were developed by the Commission long after issuance of Nelson’s permit and cannot now be applied retroactively. Finally, having offered evidence of a much more extensive grandfather operation than was set out in Nelson’s application and affidavits, appellant contends that the Commission erred in excluding such evidence.
Before considering these contentions, we first note that the plain meaning of words in a commodity description is controlling in the absence of ambiguity or specialized usage in the trade. Neither of the parties believes the description here patently ambiguous, nor do we consider it to be such. Moreover, appellant is unwilling to say that the instant description is a term of art, while the Commission specifically asserts that it is not. Consequently, the ordinary meaning of the words used in the permit is determinative. In ascertaining that meaning, we are not given carte blanche; just as “[t]he precise delineation of an enterprise which seeks the protection of the ‘grandfather’ clause has been reserved for the Commission,” Noble v. United States, 319 U. S. 88, 93 (1943), subsequent construction of the grandfather permit by the Commission is controlling on the courts unless clearly erroneous. Dart Transit Co. v. Interstate Commerce Comm’n, 110 F. Supp. 876, aff’d, 345 U. S, 980 (1953).
In construing “stock in trade of drug stores,” the Commission found the controverted words to be a commodity description" by reference to intended use; it held them equivalent to “drug stores’ stock” and analogized the latter to such descriptions as “contractors’ equipment” or “packing house supplies.” On that basis it required that the goods transported be intended for use by a drugstore as part of its stock in trade.
The Commission rejected appellant’s contention that the words of this permit are a description by reference to place of sale. In making that contention appellant equates the permit’s language with “goods such as are sold in drug stores.” It is obvious to us that such a reading enlarges the ordinary meaning of the words. As pointed out by the examiner, 63 M. C. C., at 414, the description used in the permit connotes possession, and therefore lends itself more readily to “drug stores’ stock” than it does to “goods such as are sold in drug stores.” Moreover, an examination of the Commission’s decisions indicates use of a definite and distinctive linguistic pattern whenever descriptions are made by reference to place of sale: if the Commission’s purpose has been to authorize transportation of goods like those named in the permit, that purpose consistently has been revealed by use of the phrase “such as,” or a close variation thereof. Yet there is no such phrase in the present permit. These considerations are bulwarked by the record Nelson put before the Commission in 1942, clearly showing that he was hauling Walgreen’s drugstore stock, and not goods such as might be stocked for sale by Walgreen. On balance, therefore, we are compelled to think the Commission right; certainly it is not clearly wrong.
Appellant contends that the permit language cannot embody an intended use restriction because such restrictions were not formulated by the Commission until after issuance of Nelson’s permit and cannot be retroactively applied as a limitation on the same. The Commission challenges the assertion that the intended use restriction was never applied prior to issuance of the permit. It is unnecessary for us to resolve that question, however. Assuming that the intended use test first appeared as a commodity description technique after appellant’s predecessor obtained his permit, we think the Commission still free to interpret the permit as it has done. Its determination accords with the common, ordinary meaning of the words used, and in no way strains or artificializes that meaning. If the controverted words fairly lend themselves now to the construction made here, they always have done so. Consequently, any retroactive application of the intended use test could work no prejudice to appellant; once it is determined that the ordinary meaning of the description is neither more nor less than the Commission’s interpretation, the manner in which the Commission arrived at its conclusion is not controlling.
Finally, appellant contends that the Commission’s interpretation limits the actual- — though previously unas-serted — scope of grandfather operations carried on by appellant’s predecessor, thus subverting the substantial parity which a grandfather permit should establish between pre-Act and post-Act operations. Alton R. Co. v. United States, 315 U. S. 15 (1942). If this be so, the remedy lies elsewhere: in the event the grandfather permit does not correctly reflect the scope of the grandfather operation, the carrier’s recourse is to petition the Commission to reopen the grandfather proceedings for consideration of the evidence not previously brought to the Commission’s attention. Such a contention is no answer to the present charge of permit violation, since the permit cannot be collaterally attacked. Callarían Road Improvement Co. v. United States, 345 U. S. 507 (1953); Interstate Commerce Comm’n v. Consolidated Freight-ways, Inc., 41 F. Supp. 651. To hold otherwise would render meaningless the congressional requirement of a permit to continue grandfather operations subsequent to the Act.
Appellant’s arguments based on noncompliance with the Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. §§ 1001-1011, have no merit.
Affirmed.
Mr. Justice Douglas dissents.
This Act became Part II of the Interstate Commerce Act. Section 209 (a), 49 Stat. 552, as amended, 52 Stat. 1238, 64 Stat. 575, 49 U. S. C. §309 (a)(1), makes it unlawful to engage in interstate contract carriage by motor vehicle without a permit from the Interstate Commerce Commission; however, the first proviso thereto provides that the Commission shall issue a permit as a matter of course upon application by a carrier for authority to operate a route over which the carrier or a predecessor in interest was in bona fide operation on July 1, 1935. That proviso is commonly called the “grandfather clause.”
Since neither party attaches any significance to certain underscoring of language in the permit, we do not italicize that language.
Appellant does argue alternatively that if the Commission’s interpretation is adopted, the description necessarily would be ambiguous. This is a considerable twisting of appellant’s earlier position, consistently maintained throughout these proceedings, that the permit’s phraseology exhibits no ambiguity or indefiniteness. In this regard, the Commission held, “We agree with the contention of the parties and the examiner’s conclusion that there is no such patent ambiguity in the permit as to warrant our going back of it and giving consideration to events prior to its issuance.” 63 M. C. C., at 409.
Absent patent ambiguity, it is well established that the Commission will not' refer to the underlying grandfather operation. P. Saldutti & Son, Inc. — Interpretation of Permit, 63 M. C. C. 593. Even if such reference is made here, however, the Nelson application and all the documents filed with it describe an operation solely for the Walgreen Drug Company; appellant admits that all the record evidence before the Commission gives “the impression that Nelson was hauling only for Walgreen.” That background in nowise supports appellant’s position here, since it shows Nelson to have been carrying goods actually destined to become part of the stock of a drugstore, and not merely goods like those stocked by such a store. Although appellant offers evidence now of a grandfather operation more extensive than carriage merely for Walgreen, it seems obvious that the Commission’s intent in issuing the present permit is not to be ascertained from evidence unknown to the Commission at the time of issuance.
It is true, of course, that limitations on Commission power to modify motor carrier permits, established in § 212 (a) of the Act, cannot be by-passed under a guise of interpretative action. Commission interpretation of the meaning of a permit, being simply a definitive declaration of what rights existed from the very beginning under the permit, cannot be equated with modification, however, unless found to be clearly erroneous.
See C. & H. Transportation Co. — Interpretation of Certificate, 62 M. C. C. 586, holding that “contractors’ equipment and supplies” authorized transportation of such goods only when intended for use by a contractor; transportation of similar goods for use by a branch of the armed services was held unauthorized.
See Dart Transit Co. — Modification of Permit, 49 M. C. C. 607, holding that “packing house supplies” means supplies that in fact are intended to be used in a packing house, and not supplies like those used in packing houses.
In contending, then, that the Commission erred in applying the intended use test to a commodity description by reference to place of sale, appellant clearly begs the question at issue.
Appellant argues that McAteer Contract Carrier Application, 42 M. C. C. 35, equates the phrases “goods such as are sold in” and “stock in trade of.” The opinion’s single use of the latter phrase, however, gives no support to such a contention.
See, e. g., Interstate Commerce Comm’n v. Ratner, 6 CCH Fed. Carriers Cases ¶ 80,415 (“such merchandise as is dealt in by wholesale food business houses”); Anton Vidas Contract Carrier Application, 62 M. C. C. 106 (“such commodities as are sold by retail mail-order houses”); National Trucking Co. Extension — Electrical Appliances, 51 M. C. C. 638 (“such commodities as are dealt in by wholesale and retail hardware stores”); Sanders Extension of Operations, 47 M. C. C. 210 (“such general merchandise as is dealt in by wholesale and retail grocery stores”); McAteer Contract Carrier Application, 42 M. C. C. 35 (“such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses”); Onondaga Freight Corp. Common Carrier Application, 28 M. C. C. 53 (“such merchandise as is dealt in by retail food stores”); Keystone Transportation Co. Contract Carrier Application, 19 M. C. C. 475 (“such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses”).
Contrast the Commission’s interpretation here with those in Bird Trucking Co. — Modification of Certificate, 61 M. C. C. 311, rev’d, 11 CCH Fed. Carriers Cases ¶ 81,028; Johnson Truck Service v. Salvino, 61 M. C. C. 329, rev’d, 119 F. Supp. 277, on which appellant relies.
The intended use test, as applied by the Commission here, is descriptive rather than determinative: it describes the result obtained by taking the language of the permit at face value, and in no sense is a factor in arriving at that result.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Frieda M. GROSSHANS, Defendant-Appellant.
No. 86-1727.
United States Court of Appeals, Sixth Circuit.
Argued May 14, 1987.
Decided June 30, 1987.
Rehearing and Rehearing En Banc Denied Aug. 13, 1987.
Arthur Jay Weiss (argued), Farmington Hills, Mich., for defendant-appellant.
Stephen Hiyama (argued), Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Before KEITH, KENNEDY and NORRIS, Circuit Judges.
CORNELIA G. KENNEDY, Circuit Judge.
Defendant-appellant Frieda M. Grosshans (“defendant”) appeals the District Court’s entry of judgment of conviction on five counts of tax evasion in violation of 26 U.S.C. § 7201. Defendant claims on appeal that a waiver of her right to counsel may not be inferred from the record and that she was forced to choose between proceeding with incompetent counsel or proceeding pro se. She also asserts that the District Court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), and erred in admitting evidence of defendant’s other crimes, bad acts and wrongs, for the purpose of proving propensity to commit the alleged crime. We find that a knowing and intelligent waiver by defendant can be inferred from the record. We further find that the District Court failed to comply with the Speedy Trial Act when it failed to secure an express waiver, but we hold that a new trial is not required because defendant was not prejudiced. Finally, we hold that the District Court did not err in admitting evidence of defendant’s prior acts.
In February of 1986, a grand jury in Detroit returned a five-count indictment charging defendant with tax evasion for the years 1980 through 1984, in violation of 26 U.S.C. § 7201. The indictment alleged that in each of those five years defendant filed a false W-4, claiming exemption from withholding; failed to file an income tax return; and failed to pay her income tax. The day after the indictment, the government sent a letter to defendant notifying her of the indictment and informing her that her arraignment would be held on February 19, 1986. The letter also stated that defendant could have an attorney present at the arraignment and that if she could not afford an attorney, she should contact the Federal Defenders Office. On February 19, defendant appeared before a federal magistrate. She had not retained an attorney and the arraignment was adjourned until February 28 so she could do so.
On February 28, defendant again appeared before a federal magistrate without counsel. She stated that she had been ill and had been unable to find an attorney. She asserted that she still wished to have an attorney. A deputy federal defender gave her the card of the Federal Defenders Office and defendant was told'that someone from that office could represent her if she could not find an attorney. The arraignment was adjourned until March 5 to allow defendant to retain counsel. On March 5, defendant appeared before the magistrate without counsel and explained that she had a meeting scheduled with an attorney two days later. The magistrate entered a plea of not guilty and the Assistant United States Attorney read the indictment aloud. Defendant stated that she had a copy of the indictment, but refused to sign an acknowledgment form. On March 11, defendant once again appeared before a federal magistrate without counsel, this time in chambers for a pretrial conference. She claimed that several attorneys had refused to represent her.
On March 24, defendant filed a motion entitled “Motion for Counsel or Co-Counsel of Choice.” Defendant requested representation by a non-member of the bar. At a hearing on April 10, the District Court informed defendant that she was not entitled to representation by a person who was not licensed to practice law. The court told defendant that either she must get an attorney herself or he would appoint a member of the Federal Defenders Office to represent her, but defendant said she would not agree to that. The court then stated that defendant was entitled to represent herself if she so chose, but that the court would appoint an attorney to be available to assist her. It concluded that “[w]e have done absolutely everything we could to get you to consider having an attorney who is licensed to practice law in the State of Michigan. You haven’t come up with one yet.” Joint Appendix at 253. Trial was set for May 19, 1986.
The Federal Defenders Office referred defendant’s case to a private attorney, Mr. Patrick Cleary. The District Court docket sheet does not indicate an appearance by Mr. Cleary, but shows that on May 12 he was allowed to withdraw from the case. Mr. Cleary later testified on the record that he had made several attempts to contact defendant soon after he was appointed. He stated that defendant did not return his calls. When he finally contacted her, she indicated to him that she intended to represent herself. Defendant apparently inquired about Mr. Cleary’s professional experience. He informed her that he was an experienced criminal attorney, although he had not tried a tax case before. He stated that he was prepared to try the case, but defendant insisted that she did not want counsel. Mr. Cleary then called the District Court and requested a meeting. At the meeting on May 12, the District Court apparently asked defendant if she wanted to represent herself and she answered affirmatively. Mr. Cleary was allowed to withdraw. Unfortunately, we have no transcript of that meeting.
On May 29, four days before the rescheduled trial date of June 2, defendant filed a “Motion for Court to Honor Accused’s Right to Proper Defense and Arrange Schedule to Allow Expert Summary Witness to be Present at Trial.” She claimed that she needed an “expert summary witness” present at trial in order to conduct a proper defense because Mr. Cleary “admitted he was incompetent to defend properly in this case.” Joint Appendix at 70. Defendant’s witness would apparently be present to take notes on the proceedings. The court denied defendant’s motion for a continuance but stated that defendant’s witness would be allowed to be available at trial. At this point in the proceedings, the court again noted that “defendant has been afforded the opportunity on many occasions to have counsel available for her defense. Defendant has consistently refused.” Joint Appendix at 72.
On June 2, the first day of trial, the government requested that the court make a finding on the record of waiver of counsel by defendant. The government stated that it was concerned that the record would not indicate waiver. It was particularly worried about the statement in defendant’s motion for continuance that defendant needed an expert summary witness present because she was forced to proceed pro se. At this point, Mr. Cleary testified regarding what had happened when he tried to assist defendant. The following interchange between defendant and the court then took place:
THE COURT: Ms. Grosshans, is it still your desire to represent yourself in this case?
MS. GROSSHANS: Your Honor, under the circumstances, since I have been refused counsel of my choice, I have no other choice but to represent myself because I have not found an attorney who can defend inalienable rights.
THE COURT: Well, I can hardly make somebody represent you. There is certainly no rhyme or reason why you should have someone forced upon you that you do not desire to have represent you.
You have asked at an earlier point in these proceedings to have a non-lawyer represent you. You absolutely do not have a right to have a non-lawyer represent you and the Court will not permit it and that is the end of the discussion. MS. GROSSHANS: I object to that, your Honor.
THE COURT: And so as I understand it, then, ... the position in which I find myself is that you have the right to proceed to represent yourself and you are prepared to do so here today.
It is my duty to make a determination that your waiver of counsel is knowingly made and voluntarily made. I am satisfied that it is; that there is no question in my mind from my association with you over the past few months and you appear to be mentally competent to make the decision to appear pro se.
We have had discussions earlier about the disadvantage of self-representation have we not?
MS. GROSSHANS: Yes.
Joint Appendix at 260-61. The court noted again that it had tried to get defendant to accept counsel and she had repeatedly refused. It stated that Mr. Cleary was a very experienced trial lawyer and that the court could appoint him to assist her in the trial, even if she insisted on representing herself. The court finally stressed that Mr. Cleary would be more aware of the possible defenses to the charges and the procedural aspects of the case. Defendant again stated that she wanted only counsel of her choice, a non-lawyer.
The evidence at trial indicated that defendant had worked for the United States Postal Service and that her wages during the tax years in question ranged from $15,-838.43 to $27,378.86. Before 1980, defendant had filed income tax returns and paid her federal taxes. Beginning in 1980, defendant declared herself exempt from withholding and failed to file an income tax return. She continued to make substantial wages and owed taxes for each year from 1980 to 1984. Defendant asserted at trial that she believed that wages were not income and that filing a tax return was a form of compelled self-incrimination. On June 23,1986, the jury convicted defendant of five counts of tax evasion. On August 7, the District Court sentenced defendant to five years imprisonment, five years probation, and a fine of $25,000. Defendant appeals this conviction.
I.
This Court recently addressed “the question of the type of record necessary to establish a defendant’s waiver of counsel is knowing and intelligent.” United States v. McDowell, 814 F.2d 245, 249 (6th Cir.1987). The record must show “that an accused was offered counsel but intelligently and understanding rejected the offer.” Id. at 248 (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962)). It is impermissible to presume waiver from a silent record. The Court stressed the competing interests underlying the right to counsel and the right to self-representation:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego [sic] those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. at 249 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). This Court held that, based on a reading of the record as a whole, the defendant waived his right to counsel with his “eyes open.” It particularly stressed the findings that the defendant was “not a stranger to the courts, [ ] knew he was entitled to counsel, and [ ] was not faced with a situation of enduring representation by counsel he considered ineffective or being forced to proceed immediately on his own.” Id. at 249.
In the case before this Court, defendant claims that this Court cannot infer a knowing and voluntary waiver of her right to counsel because the record is silent. She also alleges that she was forced to choose between proceeding with incompetent counsel and proceeding pro se. In fact, there are several interchanges between the District Court and defendant on the record regarding her waiver of counsel. At each of the proceedings before a federal magistrate, defendant appeared without counsel. The magistrate informed her of her right to counsel, at one proceeding instructed her to contact the Federal Defenders Office, and adjourned the proceeding to allow her time to retain an attorney. Concerning her motion for representation by a layperson, the court informed defendant that she was not entitled to such representation and appointed a member of the Federal Defenders office. When defendant informed the appointed attorney that she desired to represent herself, the court asked defendant if this was the case before allowing the attorney to withdraw. The court repeatedly attempted to convince defendant to retain an attorney or to allow an attorney to assist her at trial. Finally, at the hearing conducted on the morning of trial, the court found on the record that defendant had refused for several months to obtain an attorney, that she was well aware of her rights regarding representation, that she knew of the disadvantages of self-representation, and that she nevertheless intended to represent herself. We find that the record supports the District Court’s finding that defendant knowingly and voluntarily waived her right to counsel and elected to proceed pro se.
Defendant’s argument that she was forced to choose between proceeding with incompetent counsel or proceeding pro se is without merit. The attorney referred to the case by the Federal Defenders Office was an experienced criminal trial attorney. He had not tried a case involving a tax protester, but as the court pointed out, few attorneys have tried such a case. His lack of experience in tax protester cases did not render him incompetent to represent defendant. Defendant apparently objected to Mr. Cleary because he did not share her beliefs regarding the legality of the tax system. Defendant does not, however, have a right to counsel who shares her political beliefs. See United States v. Udey, 748 F.2d 1231, 1242-43 (8th Cir.1984) (holding that the right to counsel does not imply the right to counsel who shares beliefs about the tax laws), cert. denied, 472 U.S. 1017, 105 S.Ct. 3477, 87 L.Ed.2d 613 (1985). Defendant was not in a position of being forced to represent herself because her appointed attorney was not competent to represent her.
II.
Defendant also argues on appeal that the District Court violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), which provides in relevant part that “[ujnless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.” Defendant claims that there was no appearance by counsel nor did she ever expressly waive her right to counsel. She thus concludes that the thirty-day period provided for by section 3161(c)(2) was never triggered in her case and the court violated the Speedy Trial Act by commencing trial when it did.
In support of her argument that section 3161(c)(2) requires an express waiver of the right to counsel, defendant relies on a decision of the Fourth Circuit in which the court held that:
From the record and the findings of the district court, it is clear that there was in effect a waiver of the right to counsel by implication from the acts or failure to act of the defendants. However, the clear language of the statute requires an express waiver. To have an express waiver, there must be a voluntary, intentional relinquishment of a known right.
The present record will not support a finding of an express waiver by the defendants, and the trial judge did not find that there was an express waiver. Without such a finding and without an appearance through counsel, the thirty-day limitation contained in (c)(2) never began to run.
United States v. Wright, 797 F.2d 171, 175 (4th Cir.1986). The court found error warranting a new trial. Id. at 176. The court did recognize, however, the problem with its position. It noted that “[t]his is a difficult decision because the trial judge recognized that the defendants were intentionally trying to disrupt the calendar of the court, and if possible, to create error in the process.” Id. at 176. The court decided that when a trial court is faced with a defendant who refuses to either retain or expressly waive counsel, the court must
bring such defendant into court and make a finding on the record that the actions or lack of actions of the defendant are the voluntary and intentional relinquishment of his known right to be represented by an attorney____ The trial judge should then set a date for trial not less than thirty days in the future, and he should advise the defendant that his trial will commence on that date whether he is represented by an attorney or whether he appears pro se.
Id. at 176.
Although we hold that the record supports the District Court’s finding that defendant knowingly and intelligently waived her right to counsel, we are unable to find that defendant expressly waived the right more than thirty days prior to the commencement of trial. In fact, we do not know whether the District Court could have obtained an express waiver in view of defendant’s demand for representation by a layperson. We are also unable to determine from the record when Mr. Cleary began his representation of defendant. Although the May 12 meeting might be construed as an appearance through counsel, it did not take place thirty days before the commencement of trial. Because there was neither an express waiver nor an appearance through counsel more than thirty days earlier, we conclude that in commencing trial when it did, the District Court failed to comply with the Speedy Trial Act. We also hold, however, that the sanction of a new trial is not appropriate in the case before us.
Section 3161(c)(2) of the Speedy Trial Act was passed to address the concern that a defendant be allowed sufficient time to prepare for trial. The Speedy Trial Act does not provide a specific sanction for violations of this provision’s time requirements as it does for violations of other time provisions. We hold that, in light of Congress’ failure to provide a sanction and the purpose of section 3161(c)(2), defendant must demonstrate that she was prejudiced by the untimely commencement of trial in order to obtain a new trial. Cf. United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985) (holding that a defendant must show prejudice in order to win reversal of a conviction for a violation of section 3161(j)). Defendant has not met this burden. She did not raise the Speedy Trial Act claim before the District Court. The Court of Appeals for the Eighth Circuit has held that where a defendant failed to raise the claim of violation of the thirty-day requirement at the trial level the defendant effectively waived the right to raise it on appeal. See United States v. Ferguson, 776 F.2d 217, 221-22 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). We agree. Had defendant raised the statutory violation, there is no reason to believe that the District Court would not have corrected any error. Defendant had several months in which to prepare her case. The pretrial proceedings and the trial itself were repeatedly postponed due to her refusal to obtain an attorney and her insistence on representation by a layperson. Finally, defendant has not claimed that she was in any way prejudiced by the commencement of trial on June 2. We hold that a new trial is not required in this case because there is no indication of prejudice.
III.
Defendant finally claims that the evidence of prior acts and wrongs allegedly committed by defendant was inadmissible because it was more prejudicial to defendant than probative. The evidence that she claims was inadmissible was evidence that she had attended “tax protestor” meetings and that she had attempted to satisfy financial obligations with two “Public Office Money Certificates.” Defendant claims that this evidence was admitted to prove propensity to commit the crimes with which she was charged, not to prove intent as the government claimed.
Defendant must establish that the admission of the evidence was plain error because she failed to object at the time of admission. Fed.R.Crim.P. 52(b). We find that it was not error for the District Court to admit the evidence. To prove tax evasion under 26 U.S.C. § 7201, the government must prove willfulness, or a specific intent to disregard a known legal duty. The government introduced the evidence to demonstrate willfulness on the part of defendant. We agree that defendant’s prior actions tend to demonstrate that she knew what she was doing and knew that she had an obligation to pay taxes.
IV.
We find that the record supports a knowing and voluntary waiver by defendant of her right to counsel. We also find that the record does not contain an express waiver of that right made more than thirty days prior to the commencement of trial as required by the Speedy Trial Act. We hold, however, that defendant did not prove that she was prejudiced by the commencement of trial on June 2 and is therefore not entitled to a new trial. Finally, we hold that the District Court did not err in admitting evidence of defendant’s prior acts to prove intent.
Accordingly, the judgment of the District Court is affirmed.
. The McDowell Court invoked its supervisory powers to set out a model inquiry to be made on the record in future cases involving a waiver of counsel. McDowell, at 249-50.
. In fact, during this period, defendant filed pro se at least twelve motions with supporting briefs, including a "Notice and Demand for Dismissal for Lack of Jurisdiction,” "Motion to Dismiss Indictment As There Is No Tax ‘Due and Owing,’ ” and "Motion for Order of Disclosure of Transcript of Grand Jury Proceedings."
. For example, section 3162(a)(1) requires dismissal of pending charges if the arrest-to-indictment time limit specified in section 3161(b) is violated. Section 3162(a)(2) requires dismissal of an indictment when a defendant is not brought to trial within the period established by section 3161(c)(1).
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_caseorigin
|
050
|
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.
Keith THARPE
v.
Eric SELLERS, Warden.
No. 17-6075.
Supreme Court of the United States
Jan. 8, 2018.
PER CURIAM.
Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe's claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court's determination that Gattie's presence on the jury did not prejudice him. See Tharpe v. Warden, No. 5:10-cv-433 (MD Ga., Sept. 5, 2017), App. B to Pet. for Cert. 19.
Tharpe sought a certificate of appealability (COA). The Eleventh Circuit denied his COA application after deciding that jurists of reason could not dispute that the District Court's procedural ruling was correct. See Tharpe v. Warden, 2017 WL 4250413, *3 (C.A.11, Sept. 21, 2017). The Eleventh Circuit's decision, as we read it, was based solely on its conclusion, rooted in the state court's factfinding, that Tharpe had failed to show prejudice in connection with his procedurally defaulted claim, i.e., that Tharpe had "failed to demonstrate that Barney Gattie's behavior 'had substantial and injurious effect or influence in determining the jury's verdict.' " Ibid. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ).
Our review of the record compels a different conclusion. The state court's prejudice determination rested on its finding that Gattie's vote to impose the death penalty was not based on Tharpe's race. See Tharpe v. Warden, No. 93-cv-144 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. F to Pet. for Cert. 102. And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie's view that "there are two types of black people: 1. Black folks and 2. Niggers"; that Tharpe, "who wasn't in the 'good' black folks category in my book, should get the electric chair for what he did"; that "[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn't my reason"; and that, "[a]fter studying the Bible, I have wondered if black people even have souls." App. B to Pet. for Cert. 15-16 (internal quotation marks omitted). Gattie's remarkable affidavit-which he never retracted-presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict. At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination was wrong. The Eleventh Circuit erred when it concluded otherwise.
The question of prejudice-the ground on which the Eleventh Circuit chose to dispose of Tharpe's application-is not the only question relevant to the broader inquiry whether Tharpe should receive a COA. The District Court denied Tharpe's Rule 60(b) motion on several grounds not addressed by the Eleventh Circuit. We express no view of those issues here. In light of the standard for relief from judgment under Rule 60(b)(6), which is available only in " 'extraordinary circumstances,' " Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), Tharpe faces a high bar in showing that jurists of reason could disagree whether the District Court abused its discretion in denying his motion. It may be that, at the end of the day, Tharpe should not receive a COA. And review of the denial of a COA is certainly not limited to grounds expressly addressed by the court whose decision is under review. But on the unusual facts of this case, the Court of Appeals' review should not have rested on the ground that it was indisputable among reasonable jurists that Gattie's service on the jury did not prejudice Tharpe.
We therefore grant Tharpe's motion to proceed in forma pauperis, grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further consideration of the question whether Tharpe is entitled to a COA.
It is so ordered.
If bad facts make bad law, then "unusual facts" inspire unusual decisions. Ante, at 548. In its brief per curiam opinion, the Court misreads a lower court's opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a "high bar" on remand to obtain even a certificate of appealability (COA). Ante, at 547.
One might wonder why the Court engages in this pointless exercise. The only possible explanation is its concern with the "unusual facts" of this case, specifically a juror affidavit that expresses racist opinions about blacks. The opinions in the affidavit are certainly odious. But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.
The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law. The law reflects society's considered judgments about the balance of competing interests, and we must respect those judgments. In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice. It is not. Its summary vacatur will not stop Tharpe's execution or erase the "unusual fac[t]" of the affidavit. It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent.
I
The Court's terse opinion tells the reader that this case involves a petitioner, a juror, an affidavit, and a prejudice determination. But it involves much more than that. This case also has a victim, a second affidavit, numerous depositions, factfinding by a state court, and several decisions from federal judges that provide multiple grounds for denying a COA. I will briefly provide this omitted context.
A
Keith Tharpe's wife, Migrisus, left him in 1990. Despite a no-contact order, Tharpe called her and told her that if she wanted to " 'play dirty' " he would show her " 'what dirty was.' " Tharpe v. Warden, 834 F.3d 1323, 1325 (C.A.11 2016). The next morning, Tharpe ambushed his wife and her sister, Jaquelin Freeman, as they drove to work, pulling his truck in front of their car and forcing them to stop. Tharpe aimed a shotgun at the car and ordered his wife to get into his truck. He then told Freeman that he was going to " 'f-[her] up' " and took her to the rear of his truck. Ibid. Tharpe shot Freeman, rolled her body into a ditch, reloaded, and shot her again, killing her. After murdering Freeman, Tharpe kidnaped and raped his wife, leaving Freeman's body lying in the ditch. Freeman's husband found her a short time later, while driving their children to school.
A jury convicted Tharpe of malice murder and two counts of aggravated kidnaping. After hearing the evidence, the jury needed less than two hours to return a unanimous sentence of death. As aggravating factors, the jury found that Tharpe murdered Freeman while committing two other capital felonies-the aggravated kidnapings of his wife and Freeman-and that the murder was outrageously or wantonly vile, horrible, or inhuman.
B
More than seven years after his trial, Tharpe's lawyers interviewed one of his jurors, Barney Gattie. The resulting affidavit stated that Gattie knew Freeman, and that her family was "what [he] would call a nice [b]lack family." Tharpe v. Warden, No. 5:10-cv-433 (MD Ga., Sept. 5, 2017), App. B to Pet. for Cert. 15. The affidavit continued that, in Gattie's view, "there are two types of black people: 1. Black folks and 2. Niggers." Ibid. Tharpe "wasn't in the 'good' black folks category," according to the affidavit, and if Freeman had been "the type Tharpe is, then picking between life and death for Tharpe wouldn't have mattered so much." Id., at 16. But because Freeman and her family were "good black folks," the affidavit continued, Gattie thought Tharpe "should get the electric chair for what he did." Ibid. Gattie's affidavit went on to explain that "[a]fter studying the Bible," he had "wondered if black people even have souls." Ibid. The affidavit also noted that some of the other jurors "wanted blacks to know they weren't going to get away with killing each other." Ibid.
A couple of days later, the State obtained another affidavit from Gattie. In that second affidavit, Gattie stated that he "did not vote to impose the death penalty because [Tharpe] was a black man," but instead because the evidence presented at trial justified it and because Tharpe showed no remorse. Record in No. 5:10-cv-433 (MD Ga., June 21, 2017) (Record), Doc. 77-3, p. 2. The affidavit explained that Gattie had consumed "seven or more beers" on the afternoon he signed the first affidavit. Ibid. Although he had signed it, he "never swore to [it] nor was [he] ever asked if [the] statement was true and accurate." Id., at 3. He also attested that many of the statements in the first affidavit "were taken out of context and simply not accurate." Ibid. And he felt that the lawyers who took it "were deceiving and misrepresented what they stood for." Id., at 5.
A state postconviction court presided over Gattie's deposition. Gattie again testified that, although he signed the affidavit, he did not swear to its contents. Gattie also testified that when he signed the affidavit he had consumed "[m]aybe a 12 pack, [and] a few drinks of whiskey, over the period of the day." Id., Doc. 15-8, p. 80. Tharpe's lawyers did not question Gattie about the contents of his first affidavit at the deposition. They instead spent much of the deposition asking Gattie unrelated questions about race, which the state court ruled irrelevant-like whether he was familiar with Uncle Tom's Cabin or whether his granddaughter would play with a black doll. The lawyers' failure to address the contents of Gattie's first affidavit troubled the state court. Just before it permitted Gattie to leave, the court advised Tharpe's lawyers that it might "totally discoun[t]" Gattie's first affidavit, and it again invited them to ask Gattie questions about its contents. Id., at 105. Tharpe's lawyers declined the opportunity.
The state court also heard deposition testimony from ten of Tharpe's other jurors and received an affidavit from the eleventh. None of the jurors, two of whom were black, corroborated the statements in Gattie's first affidavit about how some of the jurors had considered race. The ten jurors who testified all said that race played no role in the jury's deliberations. The eleventh juror did not mention any consideration of race either.
C
Tharpe sought state postconviction relief. One of his claims was that "improper racial animus... infected the deliberations of the jury." Tharpe v. Warden, 2017 WL 4250413, *1 (C.A.11, Sept. 21, 2017).
The state court rejected this claim for two reasons. First, Tharpe could not prove juror misconduct because Georgia law did not allow parties to impeach a jury verdict with post-trial testimony from jurors. Tharpe v. Warden, No. 93-cv-144 (Super. Ct. Butts Cty., Ga., Dec. 1, 2008), App. F to Pet. for Cert. 99-101. Second, Tharpe had procedurally defaulted his claim because he had failed to raise it on direct appeal, and he could not establish cause and prejudice to overcome that default. Id., at 102. Tharpe's allegation of ineffective assistance of counsel was insufficient to establish cause because he had "failed to establish the requisite deficiency or prejudice." Ibid. And Tharpe failed to establish prejudice because the state court credited Gattie's testimony that he had not relied on race when voting to sentence Tharpe. Id., at 102-103.
D
Tharpe then raised his juror-bias claim in a federal petition for a writ of habeas corpus. The United States District Court for the Middle District of Georgia denied his claim as procedurally defaulted. The District Court acknowledged that ineffective assistance of counsel can provide cause to overcome a procedural default, but it explained that Tharpe "fail[ed] to provide any details regarding this allegation." 2017 WL 4250413, *2. The District Court concluded that Tharpe "ha[d] not established that his counsels' ineffectiveness constituted cause to overcome the procedural defaul[t]" and that he "failed to show actual prejudice." Ibid.
Tharpe did not seek a COA on his juror-bias claim. The United States Court of Appeals for the Eleventh Circuit affirmed the District Court's decision, Tharpe, 834 F.3d 1323, and this Court denied certiorari, Tharpe v. Sellers, 582 U.S. ----, 137 S.Ct. 2298, 198 L.Ed.2d 732 (2017).
In June 2017, Tharpe moved to reopen his federal habeas proceedings under Federal Rule of Civil Procedure 60(b). He pointed to this Court's recent decisions in Buck v. Davis, 580 U.S. ----, 137 S.Ct. 759, 197 L.Ed.2d 1 (2017), and Pena-Rodriguez v. Colorado, 580 U.S. ----, 137 S.Ct. 855, 197 L.Ed.2d 107 (2017), as extraordinary circumstances that entitled him to relief. According to Tharpe, Buck established that extraordinary circumstances are present when a defendant was sentenced due to his race and new law provides an opportunity to consider the merits of his previously defaulted, race-based sentencing claim. Pena-Rodriguez supplied that new law, Tharpe argued, because it held that a state no-impeachment rule must yield when there is a "clear statement that indicates [a juror] relied on racial stereotypes or animus to convict a criminal defendant." 580 U.S., at ----, 137 S.Ct., at 869.
The District Court denied Tharpe's motion. It first explained that Pena-Rodriguez announced a new procedural rule that does not apply retroactively on federal collateral review. App. B to Pet. for Cert. 6-14. It alternatively deferred to the state court's finding that Tharpe could not prove cause or prejudice to overcome his procedural default. Id., at 18-21. After the depositions of Gattie and ten other jurors, the state court credited Gattie's testimony that he did not vote for death based on race. Id., at 21. The District Court deferred to that credibility determination, and nothing in Pena-Rodriguez undermined that determination. App. B to Pet. for Cert. 19-21.
The Eleventh Circuit denied a COA. It explained that the District Court had concluded in its first decision that Tharpe failed to prove cause and prejudice. 2017 WL 4250413, *2. The District Court had later rejected Tharpe's Rule 60(b) motion both because Pena-Rodriguez was not retroactively applicable on federal collateral review and because it "presumed the correctness" of the state court's finding that Tharpe failed to " 'establish cause and prejudice.' " 2017 WL 4250413, *2. The Eleventh Circuit then offered two reasons why Tharpe was not entitled to a COA. First, Tharpe had not "'made a substantial showing of the denial of a constitutional right.' " Id., at *3 (quoting 28 U.S.C. § 2253(c)(2) ). "As the [state court] and the District Court found, Tharpe failed to demonstrate that Barney Gattie's behavior 'had substantial and injurious effect or influence in determining the jury's verdict.' " 2017 WL 4250413, *3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). "Nor," the Eleventh Circuit continued, "has Tharpe shown that 'jurists of reason would find it debatable whether the district court was correct in its procedural ruling.' " 2017 WL 4250413, *3 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ).
Shortly before his execution, Tharpe filed a petition for a writ of certiorari and a stay application with this Court. We issued a stay.
II
To obtain a COA, Tharpe must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id., at 484, 120 S.Ct. 1595. The Court is not willing to say that Tharpe can satisfy this standard. See ante, at 546 ("It may be that, at the end of the day, Tharpe should not receive a COA"). Instead, its opinion makes two moves. First, it "read[s]" the decision below as resting "solely" on Tharpe's "fail [ure] to show prejudice" to overcome his procedural default. Ante, at 545. It does not read the decision as reaching cause, and it declines to consider that or any other alternative reason to affirm the Eleventh Circuit. See ante, at 545 - 546. Second, the Court holds, contrary to the Eleventh Circuit, that jurists of reason could debate whether Tharpe has proven prejudice. See ante, at 546. Neither of the Court's moves is justified.
A
1
The majority misreads the decision below as resting "solely" on prejudice. See ante, at 545. The Eleventh Circuit addressed cause as well.
The Eleventh Circuit first held that Tharpe had failed to make a "'substantial showing of the denial of a constitutional right,' " explaining that he had "failed to demonstrate that... Gattie's behavior 'had substantial and injurious effect or influence in determining the jury's verdict.' " 2017 WL 4250413, *3 (quoting Brecht, supra, at 637, 113 S.Ct. 1710 ). Then the Eleventh Circuit alternatively held that Tharpe had not "shown that 'jurists of reason would find it debatable whether the district court was correct in its procedural ruling.' " 2017 WL 4250413, *3 (quoting Slack, supra, at 484, 120 S.Ct. 1595 ). The "procedural ruling" of the District Court rested on both cause and prejudice-as the Eleventh Circuit explained earlier in its opinion, quoting the District Court at length. See 2017 WL 4250413, *2. Indeed, neither party suggests that the Eleventh Circuit's decision did not reach cause, and both parties briefed the issue to this Court. See Brief in Opposition 16-17; Reply Brief 7-8. The Court's reading of the decision below is untenable.
Even if its reading were tenable, the Court does not explain why the strong medicine of a summary disposition is warranted here. Summary decisions are "rare" and "usually reserved by this Court for situations in which... the decision below is clearly in error." Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). The majority's reading of the decision below is not the better one, much less the clearly correct one. By adopting the least charitable reading of the Eleventh Circuit's decision, the majority "disrespects the judges of the courts of appeals, who are appointed and confirmed as we are." Wellons v. Hall, 558 U.S. 220, 228, 130 S.Ct. 727, 175 L.Ed.2d 684 (2010) (Scalia, J., dissenting). This Court should not "vacate and send back their authorized judgments for inconsequential imperfection of opinion-as though we were schoolmasters grading their homework." Ibid. In fact, "[a]n appropriately self-respecting response to today's summary vacatur would be summary reissuance of the same opinion," ibid., with a sentence clarifying that the Eleventh Circuit agrees with the District Court's decision on cause.
2
Putting aside its misreading of the decision below, the Court inexplicably declines to consider alternative grounds for affirmance. The Court acknowledges that our review "is certainly not limited to grounds expressly addressed by the court whose decision is under review." Ante, at 546. But the Court does not explain why it nonetheless limits itself to the question of prejudice. The Court's self-imposed limitation is inexcusable given that Tharpe's collateral challenges to his sentence have lasted 24 years, the Court's failure to consider alternative grounds has halted an imminent execution, the alternative grounds were reached below, several of them were briefed here, and many of them are obviously correct. In fact, the District Court identified two grounds for denying Tharpe relief that no reasonable jurist could debate.
First, no reasonable jurist could argue that Pena-Rodriguez applies retroactively on collateral review. Pena-Rodriguez established a new rule: The opinion states that it is answering a question "left open" by this Court's earlier precedents. 580 U.S., at ----, 137 S.Ct., at 867. A new rule does not apply retroactively unless it is substantive or a "watershed rul[e] of criminal procedure." Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). Since Pena-Rodriguez permits a trial court "to consider [certain] evidence," 580 U.S., at ----, 137 S.Ct., at 869-70, and does not "alte[r] the range of conduct or the class of persons that the law punishes," Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), it cannot be a substantive rule. And Tharpe does not even attempt to argue that Pena-Rodriguez established a watershed rule of criminal procedure-a class of rules that is so "narrow" that it is " 'unlikely that any has yet to emerge.' " Schriro, supra, at 352, 124 S.Ct. 2519 (quoting Tyler v. Cain, 533 U.S. 656, 667, n. 7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ; alterations omitted). Nor could he. Not even the right to have a jury decide a defendant's eligibility for death counts as a watershed rule of criminal procedure. Schriro, supra, at 355-358, 124 S.Ct. 2519.
Second, no reasonable jurist
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Answer:
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sc_issue_10
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K
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES STEEL CORP. et al. v. MULTISTATE TAX COMMISSION et al.
No. 76-635.
Argued October 11, 1977
Decided February 21, 1978
Erwin N. Griswold argued the cause for appellants. With him on the briefs were Thomas McGanney, Richard A. Hoppe, and Todd B. Sollis.
William D. Dexter argued the cause for appellees. With him on the brief was Samuel N. Oreenspoon.
A brief of amici curiae urging affirmance was filed for their respective States by William J. Baxley, Attorney General of Alabama; Bruce E. Babbitt, Attorney General of Arizona; Carl R. Ajello, Attorney General of Connecticut; Robert L. Shevin, Attorney General of Florida; Arthur K. Bolton, Attorney General of Georgia; William J. Scott, Attorney General of Illinois; Francis B. Burch, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; Rufus L. Edmisten, Attorney General of North Carolina; Warren R. Spannaus, Attorney General of Minnesota; Brooks McLemore, Attorney General of Tennessee; Chauncey H. Browning, Jr., Attorney General of West Virginia; and for the State of Louisiana by David Dawson.
John H. Larson filed a brief for the County of Los Angeles as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
The Compact Clause of Art. I, § 10, cl. 3, of the Constitution provides: “No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State, or with a foreign Power....” The Multistate Tax Compact, which established the Multistate Tax Commission, has not received congressional approval. This appeal requires us to decide whether the Compact is invalid for that reason. We also are required to decide whether it impermissibly encroaches on congressional power under the Commerce Clause and whether it operates in violation of the Fourteenth Amendment.
I
The Multistate Tax Compact was drafted in 1966 and became effective, according to its own terms, on August 4, 1967, after seven States had adopted it. By the inception of this litigation in 1972, 21 States had become members. Its formation was a response to this Court's decision in Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (1959), and the congressional activity that followed in its wake.
In Northwestern States, this Court held that net income from the interstate operations of a foreign corporation may be subjected to state taxation, provided that the levy is nondiscriminatory and is fairly apportioned to local activities that form a sufficient nexus to support the exercise of the taxing power. This prompted Congress to enact a statute, Act of Sept. 14, 1959, Pub. L. 86-272, 73 Stat. 555, which sets forth certain minimum standards for the exercise of that power. It also authorized a study for the purpose of recommending legislation establishing uniform standards to be observed by the States in taxing income of interstate businesses. Although the results of the study were published in 1964 and 1965, Congress has not enacted any legislation dealing with the subject.
While Congress was wrestling with the problem, the Multi-state Tax Compact was drafted. It symbolized the recognition that, as applied to multistate businesses, traditional state tax administration was inefficient and costly to both State and taxpayer." In accord with that recognition, Art. I of the Compact states four purposes: (1) facilitating proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes; (2) promoting uniformity and compatibility in state tax systems; (3) facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration; and (4) avoiding duplicative taxation.
To these ends, Art. VI creates the Multistate Tax Commission, composed of the tax administrators from all the member States. Section 3 of Art. VI authorizes the Commission (i) to study state and local tax systems; (ii) to' develop and recommend proposals for an increase in uniformity and compatibility of state and local tax laws in order to encourage simplicity and improvement in state and local tax law and administration; (iii) to compile and publish information that may assist member States in implementing the Compact and taxpayers in complying with the tax laws; and (iv) to do all things necessary and incidental to the administration of its functions pursuant to the Compact.
Articles YII and VIII detail more specific powers of the Commission. Under Art. VII, the Commission may adopt uniform administrative regulations in the event that two or more States have uniform provisions relating to specified types of taxes. These regulations are advisory only. Each member State has the power to reject, disregard, amend, or modify any rules or regulations promulgated by the Commission. They have no force in any member State until adopted by that State in accordance with its own law.
Article VIII applies only in those States that specifically adopt it by statute. It authorizes any member State or its subdivision to request that the Commission perform an audit on its behalf. The Commission, as the State’s auditing agent, may seek compulsory process in aid of its auditing power in the courts of any State that has adopted Art. VIII. Information obtained by the audit may be disclosed only in accordance with the laws of the requesting State. Moreover, individual member States retain complete control over all legislation and administrative action affecting the rate of tax, the composition of the tax base (including the determination of the components of taxable income), and the means and methods of determining tax liability and collecting any taxes determined to be due.
Article X permits any party to withdraw from the Compact by enacting a repealing statute. The Compact’s other provisions are of less relevance to the matter before us.
In 1972, appellants brought this action on behalf of them-selves and all other multistate taxpayers threatened with audits by the Commission. They named the Commission, its individual Commissioners, and its Executive Director as defendants. Their complaint challenged the constitutionality of the Compact on four grounds: (1) the Compact, never having received the consent of Congress, is invalid under the Compact Clause; (2) it unreasonably burdens interstate commerce; (3) it violates the rights of multistate taxpayers under the Fourteenth Amendment; and (4) its audit provisions violate the Fourth and Fourteenth Amendments. Appellants sought a declaratory judgment that the Compact is invalid and a permanent injunction barring its operation.
The complaint survived a motion to dismiss. 367 F. Supp. 107 (SDNY 1973). After extensive discovery, appellees moved for summary judgment. A three-judge District Court, convened pursuant to 28 U. S. C. § 2281, rejected appellants' claim that the record would not support summary judgment. 417 F. Supp. 795, 798 (SDNY 1976). Turning to -the merits, the District Court first rejected the contention that the Compact Clause requires congressional consent to every agreement between two or more States. The court cited Virginia v. Tennessee, 148 U. S. 503 (1893), and New Hampshire v. Maine, 426 U. S. 363 (1976), in support of its holding that consent is necessary only in the case of a compact that enhances the political power of the member States in relation to the Federal Government. The District Court found neither enhancement of state political power nor encroachment upon federal supremacy. Concluding that appellants’ Commerce Clause, Fourth Amendment, and Fourteenth Amendment claims also lacked merit, the District Court granted summary judgment for appellees.
Before this Court, appellants have abandoned their search- and-seizure claim. Although they preserved their claim relating to the propriety of summary judgment, we find no reason to disturb the conclusion of the court below on that point. We have before us, therefore, appellant’s contentions under the Compact Clause, the Commerce Clause, and the Fourteenth Amendment. We consider first the Compact Clause contention.
II
Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States. The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in Virginia v. Tennessee, supra. His conclusion that the Clause could not be read literally was approved in subsequent dicta, but this Court did not have occasion expressly to apply it in a holding until our recent decision in New Hampshire v. Maine, supra.
Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy. We have examined, nevertheless, the origin and development of the Clause, to determine whether history lends controlling support to appellants’ position.
Article I, § 10, cl. 1, of the Constitution — the Treaty Clause — declares: “No State, shall enter into Any Treaty, Alliance or Confederation....” Yet Art. I, § 10, cl. 3 — the Compact Clause — permits the States to enter into “agrees ments” or “compacts,” so long as congressional consent is obtained. The Framers clearly perceived compacts and agreements as differing from treaties. The records of the Constitutional Convention, however, are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause. This suggests that the Framers used the words “treaty,” “compact,” and “agreement” as terms of art, for which no explanation was required and with which we are unfamiliar. Further evidence that the Framers ascribed precise meanings to these words appears in contemporary commentary.
Whatever distinct meanings the Framers attributed to the terms in Art. I, § 10, those meanings were soon lost. In 1833, Mr. Justice Story perceived no clear distinction among any of the terms. Lacking any clue as to the categorical definitions the Framers had ascribed to them, Mr. Justice Story-developed his own theory. Treaties, alliances, and confederations, he wrote, generally connote military and political accords and are forbidden to the States. Compacts and agreements, on the other hand, embrace “mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of States bordering on each other.” 2 J. Story, Commentaries on the Constitution of the United States § 1403, p. 264 (T. Cooley ed. 1873.). In the latter situations, congressional consent was required, Story felt, “in order to check any infringement of the rights of the national government.” Ibid.
The Court’s first opportunity to comment on the scope of the Compact Clause, Holmes v. Jennison, 14 Pet. 540 (1840), proved inconclusive. Holmes had been arrested in Vermont on a warrant issued by Jennison, the Governor. The warrant apparently reflected an informal agreement by Jennison to deliver Holmes to authorities in Canada, where he had been indicted for murder. On a petition for habeas corpus, the Supreme Court of Vermont held Holmes’ detention lawful. Although this Court divided evenly on the question of its jurisdiction to review the decision, Mr. Chief Justice Taney, in an opinion joined by Mr. Justice Story and two others, addressed the merits of Holmes’ claim that Jennison’s informal agreement to surrender him fell within the scope of the Compact Clause. Mr. Chief Justice Taney focused on the fact that the agreement in question was between a State and a foreign government. Since the clear intention of the Framers had been to cut off all communication between the States and foreign powers, id., at 568-579, he concluded that the Compact Clause would permit an arrangement such as the one at issue only if “made under the supervision of the United States...,” id., at 578. In his separate opinion, Mr. Justice Catron expressed disquiet over what he viewed as Mr. Chief Justice Taney’s literal reading of the Compact Clause, noting that it might threaten agreements between States theretofore considered lawful.
Despite Mr. Justice Catron’s fears, courts faced with the task of applying the Compact Clause appeared reluctant to strike down newly emerging forms of interstate cooperation. For example, in Union Branch R. Co. v. East Tennessee & G. R. Co., 14 Ga. 327 (1853), the Supreme Court of Georgia rejected a Compact Clause challenge to an agreement between Tennessee and Georgia concerning the construction of an interstate railroad. Omitting any mention of Holmes v. Jennison, the Georgia court seized upon Story’s observation that the words “treaty, alliance, and confederation” generally were known to apply to treaties of a political character. Without explanation, the court transferred this description of the Treaty Clause to the Compact Clause, which it perceived as restraining the power of the States only with respect to agreements “which might limit, or infringe upon a full and complete execution by the General Government, of the powers-intended to be delegated by the Federal Constitution... 14 Ga., at 339. A broader prohibition could not have been intended, since it was unnecessary to protect the Federal Government. Unless this view was taken, said the court:
“We must hold that a State, without the consent of Congress, can make no sort of contract, whatever, with another State. That it cannot sell to another state, any portion of public property,... though it may so sell to individuals....
“We can see no advantage to be gained by, or benefit in such a provision; and hence, we think it was not intended.” Id., at 340.
It was precisely this approach that formed the basis in 1893 for Mr. Justice Field's interpretation of the Compact Clause in Virginia v. Tennessee. In that case, the Court held that Congress tacitly had assented to the running of a boundary between the two States. In an extended dictum, however, Mr. Justice Field took the Court's first opportunity to comment upon the Compact Clause since the neglected essay in Holmes v. Jennison. Mr. Justice Field, echoing the puzzlement expressed by Story 60 years earlier, observed:
“The terms 'agreement' or 'compact' taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.” 148 U. S., at 517-518.
Mr., Justice Field followed with four examples of interstate agreements that could in “no respect concern the United States”: (1) an agreement by one State to purchase land within its borders owned by another State; (2) an agreement by one State to ship merchandise over a canal owned by another; (3) an agreement to drain a malarial district on the border between two States; and (4) an agreement to combat an immediate threat, such as invasion or epidemic. As the Compact Clause could not have been intended to reach every possible interstate agreement, it was necessary to construe the terms of the Compact Clause by reference to the object of the entire section in which it appears:
“Looking at the clause in which the terms 'compact’ or 'agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” Id., at 519.
Mr. Justice Field reiterated this functional view of the Compact Clause a year later in Wharton v. Wise, 153 U. S. 155, 168-170 (1894).
Although this Court did not have occasion to apply Mr. Justice Field’s test for many years, it has been cited with approval on several occasions. Louisiana v. Texas, 176 U. S. 1, 17 (1900); Stearns v. Minnesota, 179 U. S. 223, 246-248 (1900); North Carolina v. Tennessee, 235 U. S. 1, 16 (1914). Moreover, several decisions of this Court have upheld a variety of interstate agreements effected through reciprocal legislation without congressional consent. E. g., St. Louis & S. F. R. Co. v. James, 161 U. S. 545 (1896); Hendrick v. Maryland, 235 U. S. 610 (1915); Bode v. Barrett, 344 U. S. 583 (1953); New York v. O’Neill, 359 U. S. 1 (1959). While none of these cases explicitly applied the Virginia v. Tennessee test, they reaffirmed its underlying assumption: not all agreements between States are subject to the strictures of the Compact Clause. In O’Neill, for example, this Court upheld the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings, which had been enacted in 41 States and Puerto Rico. That statute permitted the judge of a court of any enacting State to invoke the process of the courts of a sister State for the purpose of compelling the attendance of witnesses at criminal proceedings in the requesting State. Although no Compact Clause question was directly presented, the Court’s opinion touched upon similar concerns:
“The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution.” 359 U. S., at 6.
The reciprocal-legislation cases support the soundness of the Virginia v. Tennessee rule, since the mere form of the interstate agreement cannot be dispositive. Agreements effected through reciprocal legislation may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized “compact.” Mr. Chief Justice Taney considered this point in Holmes v. Jennison, 14 Pet., at 573:
“Can it be supposed, that the constitutionality of the act depends on the mere form of the agreement? We think not. The Constitution looked to the essence and substance of things, and not to mere form. It would be but an evasion of the constitution to place the question upon the formality with which the agreement is made.”
The Clause reaches both “agreements” and “compacts,” the formal as well as the informal. The relevant inquiry must be one of impact on our federal structure.
This was the status of the Virginia v. Tennessee test until two Terms ago, when we decided New Hampshire v. Maine, 426 U. S. 363 (1976). In that case we specifically applied the test and held that an interstate agreement locating an ancient boundary did not require congressional consent. We reaffirmed Mr. Justice Field's view that the “application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.''' Id., at 369, quoting Virginia v. Tennessee, 148 U. S., at 519. This rule states the proper balance between federal and state power with respect to compacts and agreements among States.
Appellants maintain that history constrains us to limit application of this rule to bilateral agreements involving no independent administrative body. They argue that this Court never has upheld a multilateral agreement creating an active administrative body with extensive powers delegated to it by the States, but lacking congressional consent. It is true that most multilateral compacts have been submitted for congressional approval. But this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling. It is also true that the precise interstate mechanism involved in this case has not been presented to this Court before. New York v. O’Neill, supra, however, involving analogous multilateral arrangements, stands as an implicit rejection of appellants’ proposed limitation of the Virginia v. Tennessee rule.
Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact upon federal supremacy. We agree. But the multilateral nature of the agreement and its establishment of an ongoing administrative body do not, standing alone, present significant potential for conflict with the principles underlying the Compact Clause. The number of parties to an agreement is irrelevant if it does not impermis-sibly enhance state power at the expense of federal supremacy. As to the powers delegated to the administrative body, we think these also must be judged in terms of enhancement of state power in relation to the Federal Government. See Virginia v. Tennessee, supra, at 520 (establishment of commission to run boundary not a “compact”). We turn, therefore, to the application of the Virginia v. Tennessee rule to the Compact before us.
Ill
On its face the Multistate Tax Compact contains no provisions that would enhance the political power of the member States in a way that encroaches upon the supremacy' of the United States. There well may be some incremental increase in the bargaining power of the member States quoad the corporations subject to their respective taxing jurisdictions. Group action in itself may be more influential than independent actions by the States. But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence. Nor is there any delegation of sovereign power to the Commission; each State retains complete freedom to adopt or reject the rules and regulations of the Commission. Moreover, as noted above, each State is free to withdraw at any time. Despite this apparent compatibility of the Compact with the interpretation of the Clause established by our cases, appellants argue that the Compact’s effect is to threaten federal supremacy.
A
Appellants contend initially that the Compact encroaches upon federal supremacy with respect to interstate commerce. This argument, as we understand it, has four principal components. It is claimed, first, that the Commission’s use in its audits of “unitary business” and “combination of income” methods for determining a corporate taxpayer’s income creates a risk of multiple taxation for multistate businesses. Whether or not this risk is a real one, it cannot be attributed to the existence of the Multistate Tax Commission. When the Commission conducts an audit at the request of a member State, it uses the methods adopted by that State. Since appellants do not contest the right of each State to adopt these procedures if it conducted the audits separately, they cannot be heard to complain that a threat to federal supremacy arises from the Commission’s adoption of the unitary-business standard in accord with the wishes of the member States. Indeed, to the extent that the Commission succeeds in promoting uniformity in the application of state taxing principles, the risks of multiple taxation should be diminished.
Appellants’ second contention as to enhancement of state power over interstate commerce is that the Commission’s regulations provide for apportionment of nonbusiness income. This allegedly creates a substantial risk of multiple taxation, since other States are said to allocate this income to the place of commercial domicile. We note first that the regulations of the Commission do not require the apportionment of nonbusiness income. They do define business income, which is apportionable under the regulations, to include elements that might be regarded as nonbusiness income in some States. P-H State & Local Tax Serv. ¶¶ 6100-6286 (1973). But again there is no claim that the member States could not adopt similar definitions in the absence of the Compact. Any State’s ability to exact additional tax revenues from multistate businesses cannot be attributed to the Compact; it is the result of the State’s freedom to select, within constitutional limits, the method it prefers.
The third aspect of the Compact’s operation said to encroach upon federal commerce power involves the Commission’s requirement that multistate businesses under audit file data concerning affiliated corporations. Appellants argue that the costs of compiling financial data of related corporations burden the conduct of interstate commerce for the benefit of the taxing States. Since each State presumably could impose similar fifing requirements individually, however, appellants again do not show that the Commission’s practices, as auditing agent for member States, aggrandize their power or threaten federal control of commerce. Moreover, to the extent that the Commission is engaged in joint audits, appellants’ fifing burdens well may be reduced.
Appellants’ final claim of enhanced state power with respect to commerce is that the “enforcement powers” conferred upon the Commission enable that body to exercise authority over interstate business to a greater extent than the sum of the States’ authority acting individually. This claim also falls short of meeting the standard of Virginia v. Tennessee. Article VIII of the Compact authorizes the Commission to require the attendance of persons and the production of documents in connection with its audits. The Commission, however, has no power to punish failures to comply. It must resort to the courts for compulsory process, as would any auditing agent employed by the individual States. The only novel feature of the Commission’s “enforcement powers” is the provision in Art. VIII permitting the Commission to resort to the courts of any State adopting that Article. Adoption of the Article, then, amounts to nothing more than reciprocal legislation for providing mutual assistance to the auditors of the member States. Reciprocal legislation making the courts of one State available for the better administration of justice in another has been upheld by this Court as a method “to accomplish fruitful and unprohibited ends.” New York v. O’Neill, 359 U. S., at 11. Appellees make no showing that increased effectiveness in the administration of state tax laws, promoted by such legislation, threatens federal supremacy. See n. 21, supra.
B
Appellants further argue that the Compact encroaches upon the power of the United States with respect to foreign relations. They contend that the Commission has conducted multinational audits in which it applied the unitary business method to foreign corporate taxpayers, in conflict with federal policy concerning the taxation of foreign corporations.
This contention was not presented to the court below and in any event lacks substance. The existence of the Compact simply has no bearing on an individual State’s ability to utilize the unitary business method in determining the income of a particular multinational taxpayer. Bass, Ratcliff & Gretton, Ltd. v. State Tax. Comm’n, 266 U. S. 271 (1924). The Commission, as auditing agent, adopts the method only at the behest of a State requesting an audit. To the extent that its use contravenes any foreign policy of the United States, the facial validity of the Compact is not implicated.
C
Appellants’ final Compact Clause argument charges that the Compact impairs the sovereign rights of nonmember States. Appellants declare, without explanation, that if the use of the unitary business and combination methods continues to spread among the Western States, unfairness in taxation — presumably the risks of multiple taxation — will be avoidable only through the efforts of some coordinating body. Appellants cite the belief of the Commission’s Executive Director that the Commission represents the only available vehicle for effective coordination, and conclude that the Compact exerts undue pressure to join upon nonmember States in violation of their “sovereign right” to refuse.
We find no support for this conclusion. It has not been shown that any unfair taxation of multistate business resulting from the disparate use of combination and other methods will redound to the benefit of any particular group of States or to the harm of others. Even if the existence of such a situation were demonstrated, it could not be ascribed to the existence of the Compact. Each member State is free to adopt the auditing procedures it thinks best, just as it could if the Compact did not exist. Risks of unfairness and double taxation, then, are independent of the Compact.
Moreover, it is not explained how any economic pressure that does exist is an affront to the sovereignty of nonmember States. Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, § 2, see, e. g., Austin v. New Hampshire, 420 U. S. 656 (1975), it is not clear how our federal structure is implicated. Appellants do not argue that an individual State's decision to apportion nonbusiness income — or to define business income broadly, as the regulations of the Commission actually do — -touches upon constitutional strictures. This being so, we are not persuaded that the same decision becomes a threat to the sovereignty of other States if a member State makes this decision upon the Commission's recommendation.
IY
Appellants further challenge, on relatively narrow grounds, the validity of the Multistate Tax Compact under the Commerce Clause and the Fourteenth Amendment. They allege that the Commission has abused its powers by conducting a campaign of harassment against members of the plaintiff class. Specifically, they claim that the Commission induced eight States to issue burdensome requests for production of documents and to deviate from the provisions of state law by issuing arbitrary assessments against taxpayers who refuse to comply with these harassing production orders.
These allegations do not establish that the Compact is in violation either of the Commerce Clause or the Fourteenth Amendment. We observe first that this contention was not presented to the court below. The only evidence of record relating to the allegations are statements in the affidavit of appellants’ counsel and an ambiguous excerpt from a letter of the Commission to the Director of Taxation of the State of Hawaii, quoted therein. App. 51-53. On this fragile basis, we hardly would be justified in making an initial finding of fact that appellees engaged in the campaign sketched in the affidavit.
Even if appellants’ factual allegations were supported by the record, they would be irrelevant to the facial validity of the Compact. As we have noted above, it is only the individual State, not the Commission, that has the power to issue an assessment — whether arbitrary or not. If the assessment violates state law, we must assume that state remedies are available. E. g., Colgate-Palmolive Co. v. Dorgan, 225 N. W. 2d 278 (N. D. 1974).
Y
We conclude that appellants’ constitutional challenge to the Multistate Tax Compact fails. We affirm the judgment of the District Court.
Affirmed.
Those States were: Alaska, Alaska Stat. Ann. §43.19.010 (1977); Arkansas, Ark. Stat. Ann. § 84-4101 (Supp. 1977); Colorado, Colo. Rev. Stat. §24-60-1301 (1973); Florida, Fla. Stat. §213.15 (1971); Haw. Rev. Stat. § 255-1 (Supp. 1976); Idaho, Idaho Code § 63-3701 (1976); Illinois, Ill. Rev. Stat., ch. 120, § 871 (1973); Indiana, Ind. Code § 6-8-9-101 (1972); Kansas, Kan. Stat. Ann. § 79-4301 (1969); Michigan, Mich. Comp. Laws §205.581 (1970); Missouri, Mo. Rev. Stat. §32.200 (1969); Montana, Mont. Rev. Codes Ann. § 84-6701 (Supp. 1977); Nebraska, Neb. Rev. Stat. §77-2901 (1943); Nevada, Nev. Rev. Stat. §376.010 (1973); New Mexico, N. M. Stat. Ann. § 72-15A-37 (Supp. 1975); North Dakota, N. D. Cent. Code §57-59-01 (1972); Oregon, Ore. Rev. Stat. § 305.655 (1977); Texas, Tex. Rev. Civ. Stat. Ann., Art. 7359a (Vernon Supp. 1977); Utah, Utah Code Ann. §59-22-1 (1953 and Supp. 1977); Washington, Wash. Rev. Code § 82.56.010 (1974); Wyoming, Wyo. Stat. §39-376 (Supp. 1975).
Since the suit began, four States — Florida, Illinois, Indiana, and Wyoming — have withdrawn from the Compact, see 1976 Fla. Laws, ch. 76-149, § 1; 1975 HI. Laws, No. 79-639, § 1; 1977 Ind. Acts, No. 90; 1977 Wyo. Sess. Laws, ch. 44, § 1. Two others — California and South Dakota— have joined it, see Cal. Rev. & Tax. Code Ann. § 38001 (West Supp. 1977); S. D. Comp. Laws Ann. § 10-54r-l (Supp. 1977), for a current total of 19 members.
Title I of Pub. L. 86-272, codified as 15 U. S. C. §§ 381-384, essentially forbids the imposition of a tax on a foreign corporation’s net income derived from activities within a State, if those activities are limited to the solicitation of orders that are approved, filled, and shipped from a point outside the State.
H. R. Rep. No. 1480, 88th Cong., 2d Sess. (1964); H. R. Rep. No. 565, 89th Cong., 1st Sess. (1965); H. R. Rep. No. 952, 89th Cong., 1st Sess. (1965).
There have been several unsuccessful attempts. H. R. 11798, 89th Cong., 1st Sess. (1965); H. R. 16491, 89th Cong., 2d Sess. (1966); S. 317, 92d Cong., 1st Sess. (1971); H. R. 1538, 92d Cong., 1st Sess. (1971); S. 1245, 93d Cong., 1st Sess. (1973); H. R. 977, 93d Cong., 1st Sess. (1973); S. 2080, 94th Cong., 1st Sess. (1975); H. R. 9, 94th Cong., 1st Sess. (1975).
The model Act proposed as the Multistate Tax Compact, with minor exceptions, has been adopted by each member State.
Article II consists of definitions. Article III permits small taxpayers— those whose only activities within the jurisdiction consist of sales totaling less than $100,000 — to elect to pay a tax on gross sales in lieu of a levy on net income. The Uniform Division of Income for Tax Purposes Act, contained in Art. IV, allows multistate taxpayers to apportion and allocate their income under formulae and rules set forth in the Compact or by any other method available under state law. It was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1957. Article V deals with sales and use taxes. Article IX provides for arbitration of disputes, but is not in effect. Article XI disclaims any attempt to affect the power of member States to fix rates of taxation or limit the jurisdiction of any court. Finally, Art. XII provides for liberal construction and severability.
The action was filed by United States Steel Corp., Standard Brands Inc., General Mills, Inc., and the Procter & Gamble Distributing Co. On February 5, 1974, the court below permitted Bethlehem Steel Corp., Bristol Myers Co., Eltra Corp., Goodyear Tire & Rubber Co., Green Giant Co., International Business Machines Corp., International Harvester Co., International Paper Co., International Telephone & Telegraph Corp., McGraw-Hill, Inc., NL Industries, Inc., Union Carbide Corp., and Xerox Corp. to intervene as plaintiffs. The court below ordered that the suit proceed as a class action. International Business Machines and Xerox withdrew as intervenor plaintiffs before decision.
Congressional consent has been sought, but never obtained. See S. 3892, 89th Cong., 2d Sess. (1966); S. 883, 90th Cong., 1st Sess. (1967); S. 1551, 90th Cong., 1st Sess. (1967); H. R. 9476, 90th Cong., 1st Sess. (1967); H. R. 13682, 90th Cong., 1st Sess. (1967); S. 1198, 91st Cong., 1st Sess. (1969);
Question: What is the issue of the decision?
A. federal-state ownership dispute (cf. Submerged Lands Act)
B. federal pre-emption of state court jurisdiction
C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does.
D. Submerged Lands Act (cf. federal-state ownership dispute)
E. national supremacy: commodities
F. national supremacy: intergovernmental tax immunity
G. national supremacy: marital and family relationships and property, including obligation of child support
H. national supremacy: natural resources (cf. natural resources - environmental protection)
I. national supremacy: pollution, air or water (cf. natural resources - environmental protection)
J. national supremacy: public utilities (cf. federal public utilities regulation)
K. national supremacy: state tax (cf. state tax)
L. national supremacy: miscellaneous
M. miscellaneous federalism
Answer:
|
songer_oththres
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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".
DIESEL TANKER F. A. VERDON, INC., as owner of the tank vessel F. A. Verdon, Libellant-Appellant, v. STAKEBOAT NO. 2 and Bronx Towing Line, Inc., Claimant-Respondent-Appellee. BRONX TOWING LINE, INC., as owner of the Stakeboat No. 2, Libellant-Appellee, v. TANK VESSEL F. A. VERDON and Diesel Tanker P. A. Verdon, Inc., Claimant-Respondent-Appellant.
No. 220, Docket 28549.
United States Court of Appeals Second Circuit.
Argued Dec. 4, 1964.
Decided Jan. 19, 1965.
Stephen J. Buck ley, New York City (Christopher E. Heckman, Foley & Martin, New Yoxit City, on the brief), for appellant.
Herbert B. Halberg, New York City (Maurice A. Krisel and Krisel & Beck, New York City, on the brief), for appellee.
Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.
Sitting by designation.
BLUMENFELD, District Judge:
These two appeals briefed and argued together present a problem of applying the same principles of admiralty law to opposing sides of the same controversy. The owners of two ships each brought a libel against the other and the two actions wex'e consolidated for trial below. The owners of the tanker F. A. Verdón and the Stakeboat No. 2 each contended that the other’s vessel was solely responsible for a collision which occurred in Red Hook Flats, New York Harbor, during the night of June 15, 1960.
The District Judge concluded that the collision was caused by negligent operation of the Verdón. He was unable to determine whether or not the Stake-boat No. 2 was unlighted, as the Verdón claimed. He dismissed the Verdon’s libel and awarded Stakeboat No. 2 full damages against her. We affirm the dismissal of the Verdon’s libel and the conclusion that she was at fault and thus liable to Stakeboat No. 2, but disagree with the allowance of full damages to the latter.
The significant facts as found by the court below are not complicated. A collision took place in a Fedex-al Anchorage in Red Hook Flats between anchored Stakeboat No. 2 and the tanker F. A. Verdón on the night of June 15, 1960. The collision occurred at 11:35 p. m. At that time, no one was aboard the stakeboat.
Visibility was limited by haze, intermittent fog and smoke; but navigation and shore lights, a mile and a half away, could readily be seen. The Verdon’s captain and the deck hand, an able seaman, were in the wheelhouse. About 3 or 4 minutes before the collision, the wheel had been turned over to the deck hand with orders to hold the ship “steady as she goes.” Meanwhile, the captain was watching for traffic in the main ship channel, off his port side. There was no lookout on the tanker’s bow. The Verdón is a tank vessel 204.5 feet long with her wheelhouse located approximately 180 feet back from her bow. The Verdón was in a light condition and proceeding at a full speed of 8 to 9 knots, well in excess of the permissible speed of 6 knots. This raised the bow higher above the surface of the water than the stem and produced a “blind area” for 30 or 40 yards ahead of the bow for one in the wheelhouse. The radar was on, but the captain did not look at it. The stake-boat, 92 feet in length and constructed of steel, would have made a good radar target. Neither the captain nor the deck hand saw the stakeboat until after the collision.
One of the strongly contested factual issues was whether the stakeboat carried forward a white light visible all around the horizon at the distance of at least one mile as she was required to do. 33 U.S.C. § 180. After a careful consideration of conflicting oral testimony in which credibility was, in some measure, a factor for the trier to weigh, and of circumstantial evidence from which the reasonableness of inferences to be drawn were also within the power of the trial judge to resolve, he found, “I cannot affirmatively find that, on the night of the collision, the white light was burning.” On the other hand, he stated, “I am not persuaded that the white light was not burning.” To leave no room for doubt as to what he found on this issue, he continued, “I freely confess my inability to make a definite finding one way, or the other.”
When the owner of the Verdón brought its case into court it assumed the affirmative. With respect to the factual issue of whether the stake-boat was lighted, the burden of proof rested upon it. The general principle was stated in Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 112, 113, 62 S.Ct. 156, 161, 162, 86 L.Ed. 89 (1941): “Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of facts is unable to resolve * * * ‘If the determination of this question is left in doubt, that doubt must be resolved against’ the shipowner.” Since the Verdón did not carry the burden of establishing fault on the part of the stakeboat, her libel was properly dismissed. “Where the fault is wholly on one side, the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage.” The Clara, 102 U.S. 200, 202, 26 L.Ed. 145 (1880).
A somewhat more troublesome question is presented on the appeal from the judgment awarding full damages to the owner of the stakeboat. The court’s conclusions and findings that the tanker was grossly at fault in proceeding through the anchorage in excess of the speed limit with no lookout forward and no one paying any attention to the radar were amply supported.
But its fault alone was not sufficient to support the award of full damages to the stakeboat. “In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant.” The Clara, supra, 102 U.S. at 203. Bruce v. Debuse Barras Co., 169 F.Supp. 90, 92 (E.D. La.1958).
Although the negligent navigation of the Verdón was clearly established, Stakeboat No. 2 did not affirmatively satisfy its burden of persuading the trier that it was lighted. Article 11 of the Inland Rules of the Road, 33 U.S.C. § 180, in force at the time of the collision, reads in part as follows;
“A vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile:”
Despite the stakeboat’s failure to prove its compliance with the duty to display a light, the opinion below, after holding that there was no excuse for the Verdon’s faults, continued: “In comparison with them, the sin of the stakeboat, if any, was venial, and should be condoned [cited eases omitted]. Consequently, I conclude that the collision was caused solely through the faults of the Verdón, * * ”
Although findings of fact in suits in admiralty must be accepted unless they are “clearly erroneous,” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954) ; Cunningham v. Rederiet Vindeggen A/S, 333 F.2d 308, 312 (2d Cir. 1964), we are not so limited as to erroneous views of the law. To the extent that conclusions may have been reached by the application of an erroneous rule of law to the facts found, they are open to full review. Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75-76 (2d Cir. 1963). Cf. American Technical Mach. Corp. v. Caparotta, 339 F.2d 557 (2d Cir. 1964).
Even in the absence of any regulations, under established principles of admiralty law, the risks to other vessels created by a vessel lying at anchor at night without lights, even though in a permissible place, can hardly be regarded as trivial. The creation of undue risks of injury is negligence. The James Gray, 62 U.S. (21 How.) 184, 189, 16 L.Ed. 106 (1859). And, where the duty is imposed by statute, 33 U.S.C. § 180, compliance has been held to be imperative. American Dredging Co. v. Calmar S.S. Corp., 121 F.Supp. 255 (E.D.Pa.1954), aff’d per curiam, 218 F.2d 823 (3d Cir. 1955), held that the dredging company was under an absolute obligation to have proper anchor lights upon its anchored mudscows. And see Bruce v. Debuse Barras Co., supra, 169 F.Supp. 90, cases at 92, n. 8. As pointed out by Judge Learned Hand in Merritt-Chapman & Scott Corp. v. Cornell S.S. Co., 265 F.2d 537, 539 (2d Cir. 1959), “a different rule applies to the breach of a statutory duty from the breach of an ordinary duty. The doctrine of The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, is that when the fault consists in the breach of a ‘statutory rule intended to prevent collisions * * * the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it px'obably was not, but that it could not have been.’ ” It was held in Tide Water Associated Oil Co. v. The Syosset, 203 F.2d 264 (3d Cir. 1953), that there is no room for application of the major-minor fault rule where there is a violation of a statutory requirement intended to avoid collisions for the reasons given at pages 268-269, and more thoroxxghly explained by Judge Friendly in In re Kinsman Transit Co., 338 F.2d 708, 720 (2d Cir. 1964), where he revealed the court’s awareness of the view held by some that
“results of the equal division principle which are sometimes quite as shocking as those of the common law bar for contributory negligence— especially in cases where x*eliance by a relatively innocent plaintiff on the ‘major-minor fault’ exception has been thought to be barred by the rule of The Pennsylvania, 19 Wall. (86 U.S.) 125 [22 L.Ed. 148] (1874), that a party to a collision who has violated a statutory rule of navigation may not escape liability except on proof that the violation could not have contributed to the accident. See MacIntyre, supra [The Rationale of Last Clear Chance] 53 Harv.L. Rev. at 1236-41; Gilmore & Black, Admiralty, 403-407, 438-442.”
Nevertheless, we have unequivocally adhered to the doctrine of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874). Topor-Taparek v. Socony Mobil Oil Co., 339 F.2d 792 (2d Cir. Dec. 29, 1964).
Thus, where the breach of duty is statutory, it is the impossibility that it may have been one of the causes of the collision, not the forgivability of one which did, that affords relief fx*om liability for that violation. No tour de force can transmute the minor fault among varying degrees of negligence into the non-existence of proximate cause. See In re Kinsman Transit Co., supra. The crucial omission in the stakeboat’s libel is the absence of a finding that its violation “could not have contributed to the accident.” Having found that Stake-boat No. 2 did not meet its burden of proving that it was lighted as required by the statute, under the rule administered in American admiralty the trial court ■should have required her to bear half her loss.
The decree must, therefore, be reversed, and the case remitted to the court below for the purpose of carrying this .division into effect.
. This section has been amended as of August 5,1963, Pub.L. 83-84 § 1, 77 Stat. 116.
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondentstate
|
58
|
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.
TREICHLER, EXECUTOR, v. WISCONSIN.
No. 20.
Argued October 11-12, 1949.
Decided November 7, 1949.
Alexander W. Schutz argued the cause and filed a brief for appellant.
Harold H. Persons, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief were Thomas E. Fairchild, Attorney General, and Neil Conway.
J. Gilbert Hardgrove filed a brief, as amicus curiae, supporting appellant.
Mr. Justice Clark
delivered the opinion of the Court.
This is an appeal from a decision of the Supreme Court of Wisconsin, arising from an order of the County Court of Milwaukee County, levying certain death taxes on the estate of Fred A. Miller, deceased, under the applicable statutes of Wisconsin. The question for decision is the validity of the Wisconsin emergency tax on inheritances, Wis. Stat. (1947) § 72.74 (2), when tested in the light of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
The decedent died testate on December 19, 1943, a resident of Wisconsin. At death his gross estate was $7,849,714.84. Property located in Wisconsin was valued at $6,869,778.61; the remainder of $979,936.23 consisted of real and tangible personal property situated in the States of Illinois and Florida.
The Commissioner of Internal Revenue assessed net federal taxes against the estate in the sum of $3,076,131.19, inclusive of the 80% of the basic federal tax subject to credit for state estate taxes as provided by § 301 (b) of the United States Revenue Act of 1926, 44 Stat. 70, as amended, 26 U. S. C. § 813 (b). This 80% credit was the sum of $630,709.62.
Wisconsin has a triad of death taxes known as (1) normal inheritance tax, (2) estate tax, and (3) emergency-tax.
The normal Wisconsin inheritance tax, as levied by Wis. Stat. (1947) §§ 72.01 to 72.24, was in this case $220,682.12. It is levied only on property within the State of Wisconsin and is not in controversy here.
To take advantage of the credit provisions of the Revenue Act of 1926, the Wisconsin legislature also enacted an estate tax in the amount of 80% of the basic federal tax subject to credit, less “the aggregate amount of all estates, inheritance, transfer, legacy and succession taxes paid to any state or territory or the District of Columbia, in respect to any property in the estate of said decedent.” Wis. Stat. (1947) § 72.50. Wisconsin normal inheritance taxes as well as out-of-state taxes are deducted from the federal credit. The estate tax on this estate was computed at $352,701.79. However, this provision of the Wisconsin statutes is not under explicit attack here.
The only statute, the validity of which is involved in this appeal, is § 72.74 (2) of the Wisconsin statutes known as the Emergency Tax on Inheritances. The section under scrutiny provides:
“In addition to the taxes imposed by sections 72.01 to 72.24 and 72.50 to 72.61, an emergency tax for relief purposes, rehabilitation of returning veterans of World War II, construction and improvements at state institutions and other state property and for post-war public works projects to relieve post-war unemployment is hereby imposed upon all transfers of property which are taxable under the provisions of said sections and which are made subsequent to March 27, 1935 and prior to July 1, 1949 which said tax shall be equal to 30 per cent of the tax imposed by said sections.”
As is apparent, computation of the additional emergency tax involves only four factors: (1) the amount of the 80% federal credit, (2) the taxes paid to other jurisdictions, (3) Wisconsin normal inheritance taxes, and (4) the 30% rate imposed. In applying the yardstick of this section to the decedent’s estate, the Wisconsin authorities took the total of the 80% federal credit, that is $630,709.62, and first deducted from it the taxes paid to states other than Wisconsin — Illinois ($35,616.26) and Florida ($21,709.45) — and Wisconsin’s normal inheritance tax ($220,682.12), which left $352,701.79. The tax due was then calculated by taking 30% of the latter amount, plus 30% of the normal inheritance tax. The result, $172,015.20, was levied as the emergency inheritance tax due.
It will be seen that as the taxing formula is reduced, the normal inheritance tax is no longer a factor in the computation. For while 30% thereof is added to 30% of the estate tax to give the emergency tax, the normal inheritance tax has already been subtracted in the computation of the basic estate tax. Hence, in extending the formula of the emergency tax, the inheritance taxes cancel. What is left, other than out-of-state taxes, is simply 80% of the basic federal tax, rated and measured by the entire estate, regardless of situs, and therefore including the property located in Illinois and Florida.
The court below thought that the presence of 87.52% of Mr. Miller’s property within Wisconsin justified its statement that the state taxed only Wisconsin property. And the state argues that the “other 20 %” over the federal basic estate tax 80% credit “more than absorbs, or is, on any mathematical basis, attributable to” the 12.48% of property outside Wisconsin. But Wisconsin made but 80% of the federal tax its own; and as it did not apportion that 80% to property within the state, the presence of property therein is simply a fortuity which cannot help the taxing jurisdiction. See Owensboro National Bank v. Owensboro, 173 U. S. 664, 683 (1899). The same must be said of deductions for out-of-state taxes, which have no necessary relation to the proportion of property outside Wisconsin.
We think it clear that the order entered by the Supreme Court of Wisconsin authorized a tax on property rated and measured in part by tangible property, the situs of which was outside Wisconsin.
This Wisconsin may not do. In Frick v. Pennsylvania, 268 U. S. 473 (1925), Pennsylvania levied an inheritance tax based upon real and personal property wherever located. Mr. Frick’s art collection was located in New York. In a unanimous opinion this Court ruled that Pennsylvania’s statute, “in so far as it attempts to tax the transfer of tangible personalty having an actual situs in other States, contravenes the due process of law clause of the Fourteenth Amendment and is invalid.” Wisconsin’s statute may be more sophisticated than Pennsylvania’s, but in terms of ultimate consequences this case and the Frick case are one. It is quite unnecessary to know in either case what property is located within the taxing jurisdiction in order to compute the challenged exaction.
Nor are we inclined to discard the Frick rule. We have consistently upheld the domicile’s levy when it was based upon intangible property with technical title without the jurisdiction. Blodgett v. Silberman, 277 U. S. 1 (1928). And the economic effects of tax burdens in the federal system cannot control our results, limited as we are to the words of the Fourteenth Amendment. State Tax Commission of Utah v. Aldrich, 316 U. S. 174, 181 (1942), citing Holmes, J., dissenting in Baldwin v. Missouri, 281 U. S. 586, 595 (1930). But when a state reaches beyond its borders and fastens upon tangible property, it confers nothing in return for its exaction. Since the state of location has all but complete dominion over the physical objects sought to be measured for tax, see Green v. Van Buskirk, 7 Wall. 139, 150 (1869); Curry v. McCanless, 307 U. S. 357, 363 (1939), and cases cited, no other state can offer a quid pro quo. A state is not equipped with the implements of power and diplomacy without its boundaries which are at the root of the Federal Government’s undoubted right to measure its tax upon foreign property. United States v. Bennett, 232 U. S. 299 (1914); see Burnet v. Brooks, 288 U. S. 378 (1933). And if the state has afforded nothing for which it can ask return, its taxing statute offends against that due process of law it is our duty to enforce.
We hold that Wisconsin’s emergency inheritance tax is invalid insofar as it is measured by tangible property outside Wisconsin. The judgment must be reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed.
Mr. Justice Black dissents. He agrees that the Court’s holding logically follows from its interpretation of the due process clause in the Frick case, but believes that so interpreted the clause gives a more expansive control over state tax legislation than the due process clause justifies.
Mr. Justice Douglas took no part in the consideration or decision of this case.
The record does not reveal the exact nature of the property, and we have held that whether the property is “tangible” within the meaning of Frick v. Pennsylvania, 268 U. S. 473 (1925), infra, is a federal question. Blodgett v. Silberman, 277 U. S. 1 (1928). In this case, however, the parties and the court below agree that the property is clearly “tangible” within the Frick rale. We accept that assumption.
The formula is as follows:
30% X Wisconsin normal inheritance tax+30% (80% federal basic tax — Wisconsin normal inheritance tax — taxes paid in Illinois and Florida). This reduces to: 30% (80% federal basic tax — taxes paid in Illinois and Florida).
Deductions authorized in the computation of the normal inheritance tax are thus of no significance.
The State’s table of computation reads:
(1) Wisconsin Normal Inheritance Taxes............ $220,682.12
(2) Wisconsin Estate Tax:—
80% of U. S. Estate Tax............ $630,709.62
Less:—
(a) Wisconsin Normal
Taxes (1) above.. $220,682.12
(b) Illinois Inheritance
Taxes ........... 35,616.26
(c) Florida Inheritance
Taxes ........... 21,709.45
Total State Taxes................. 278,007.83
Difference is Wisconsin Estate Tax.............. 352,701.79
(3) Wisconsin Emergency Tax:—
Wisconsin Normal
Taxes (1) above.. $220,682.12
Wisconsin Estate Tax
(2) above........ 352,701.79
Total.............. $573,383.91
Emergency Tax is 30%...................... 172,015.20
Total Wisconsin Inheritance Taxes.................. $745,399.11
A different question might be presented, however, if the statute in question authorized computation to begin with 87.52% rather than all of the 80% federal credit. We intend to intimate no opinion as to that situation.
Of course we have refused to be governed by this consideration when so to do would have placed a premium upon the avoidance of all state taxes. New York ex rel. New York C. & H. R. R. Co. v. Miller, 202 U. S. 584, 597 (1906); Southern Pacific Co. v. Kentucky, 222 U. S. 63 (1911); cf. Northwest Airlines v. Minnesota, 322 U. S. 292 (1944). See Commonwealth v. Pennsylvania Coal Co., 197 Pa. 551, 47 A. 740 (1901); Norfolk & W.R. Co. v. Board, 97 Va. 23, 32 S.E. 779 (1899).
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Thomas Owen NORMAN, Jr., Defendant-Appellant.
No. 18779.
United States Court of Appeals Sixth Circuit.
July 15, 1969.
J. B. Tietz, Los Angeles, Cal., for appellant; Ralph K. Helge, Pasadena, Cal., J. B. Tietz, Los Angeles, Cal., on brief.
Carlton H. Petway, Nashville, Tenn., for appellee; Gilbert S. Merritt, Jr., U. S. Atty., Alfred H. Knitht, III, Asst. U. S. Atty., Nashville, Tenn., on brief.
Before O’SULLIVAN, PECK and COMBS, Circuit Judges.
O’SULLIVAN, Circuit Judge.
Thomas Owen Norman, Jr., appeals from conviction for refusing induction into the armed forces of the United States in violation of 50 U.S.C. App. § 462 et seq. He was tried without a jury, before District Judge William E. Miller in the United States District Court for the Middle District of Tennessee, Nashville Division, and was committed to the custody of the Attorney General for treatment and supervision as a youth offender under 18 U.S.C. §§ 5010(b) and 5017(c). He refused induction, claiming that he was wrongfully denied conscientious objector status.
On March 1, 1963, Norman registered with his Local Selective Service Board No. 62 in Jasper, Tennessee. In answers to his registration questionnaire he did not claim to be a conscientious objector. On October 17, 1963, he was given a I-A classification, (available for military service). He thereupon requested Selective Service Form 150 and completed it to assert a claim for exemption as a conscientious objector. Such exemption was denied him, but on November 18, 1963 his local board did give him a I-A-0 classification which qualified him for noncombatant military service. Thereupon, Norman initiated and for nearly three years pursued various proceedings within the Selective Service System, seeking exemption as a conscientious objector (1-0 classification), or to be accorded an occupational deferment (II-A classification). These unsuccessful attempts ended on September 26, 1966 when he refused to step forward to submit himself for induction.
During the course of these administrative proceedings, Norman made personal appearances as well as written presentations to support his contentions. An account of these proceedings is set out in the opinion of the District Court reported as United States v. Norman, 301 F.Supp. 53 (M.D.Tenn.1968.)
Norman, on this appeal, raises the following four issues: I. Did the Selective Service System have a basis in fact for denying Norman’s claim of a conscientious objector classification? II. Did the Selective Service System deny Norman due process? III. Did the trial court commit error in its admission of evidence? IV. Did the trial court err in denying Norman’s Motion for Judgment of Acquittal based upon a claimed failure of the government to meet its burden of proof ?
Except for the matters we discuss herein, we are satisfied that the opinion of District Judge Miller provides an adequate exposition of the questions presented and correctly resolves them.
We affirm.
Because they are not covered in the District Court opinion, we discuss appellant’s claim that his Selective Service System file, identified and received in evidence as plaintiff’s Exhibit One, should not have been received in evidence and that the government failed to prove that Norman was called for induction in the proper order.
1) Admission of Selective Service file.
Norman’s counsel initially objected to the sufficiency of the identification of Norman’s Selective Service System file, but the matter was concluded by counsel’s withdrawal of his objection, as follows :
“I’ll withdraw that objection. It is a point I feel has merit, but in order to get to the further merits, I’ll withdraw it.”
Aside from such withdrawal, we consider that the file was properly authenticated and was admissible as competent evidence. See LaPorte v. United States, 300 F.2d 878, 881 (9th Cir. 1962); United States v. Holmes, 387 F.2d 781, 784 (7th Cir. 1968), cert. denied, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856 (1968); Haven v. United States, 403 F.2d 384, 385 (9th Cir. 1968), cert. denied, 393 U.S. 1114, 89 S.Ct. 926, 22 L.Ed.2d 120 (1969).
2) Order of call.
The majority of cases which have considered this question involved orders to report for civilian work by registrants classified as conscientious objectors. 32 C.F.R. § 1660.20 provides that:
“Such order shall not be issued prior to the time that the registrant would have been ordered to report for induction if he had not been classified in Class 1-0 unless he has volunteered for such work.”
We consider, however, that 32 C.F.R. § 1631.7 requires that those classified in I-A be called for induction in proper order.
We do not think that the alleged failure of the government to prove with particularity that Norman was called to appear for induction in proper order vis-a-vis other registrants presents a question properly saved for review by us. No such alleged deficiency was asserted at the close of the government’s case. Defendant’s counsel made an opening statement of his defense without mention of it. Neither was the point raised when the proofs were closed. When both sides had rested, appellant’s counsel filed a written Motion for Judgment of Acquittal which contained no reference to the order of call. The first mention of the point appeared during counsel’s argument on his motion for acquittal when he said that a recent case in a California District Court held that a motion for judgment of acquittal should be granted “when the government failed to show that the defendant was called up in proper order.” We assume that the District Judge included this point among “the remaining contentions of defendant” which he disposed of by saying “they are without merit.” We agree with this disposition, but are constrained to discuss the point to the following extent.
The case having been tried and both sides having rested without mention of the order of call, we believe that, solely upon the basis of the presumption of the regularity of the Selective Service System’s proceedings, the point cannot now be relied upon. In Lewis v. United States, 279 U.S. 63, 49 S.Ct. 257, 73 L.
Ed. 615 (1929), the Supreme Court said:
“It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted, it must be affirmatively shown. Nofire v. United States, 164 U.S. 657, 660, 17 S.Ct. 212, 41 L.Ed. 588; United States v. Royer, 268 U.S. 394, 398, 45 S.Ct. 519, 69 L.Ed. 1011; and cases cited.” 279 U.S. at 73, 49 S.Ct. at 260.
Such rule was applied to the regularity of draft board proceedings in Ayers v. United States, 240 F.2d 802, 809 (9th Cir.1956), cert. denied, 352 U.S. 1016, 77 S.Ct. 563, 1 L.Ed.2d 548 (1957), and Keene v. United States, 266 F.2d 378, 380 (10th Cir. 1959). Dealing specifically with a claim that the prosecution had not, as part of its case, established that an accused had been called in proper order, we recently held that such a question could not be raised for the first time on appeal. United States v. Boroski, 412 F.2d 668 (6th Cir.1969).
We need not discuss what would have been the government’s burden had the defendant raised the question before the proofs had been concluded, but we cite with approval the following language from Yates v. United States, 404 F.2d 462 (1st Cir.1968), rehearing denied, 407 F.2d 50 (1969) :
“[T]here exists the possibility that capricious or arbitrary action was taken by a local board; a defendant has little opportunity to obtain proof of discrimination; and there is no chance or procedure to review this issue before the agency. There ought, therefore, to be a means of exerting constant pressure on the local boards to adhere faithfully to the order of call regulation.
“There is no difficulty in the perhaps rare case where a defendant can produce evidence of a person who should have been called before him was not. In such a case, the government cannot disprove a leak in a bucket simply by showing most of it was tight. But where the defendant lacks any such proof, his only recourse is to examine the clerk of the local board. This may not conclusively establish the absence of any violation of the regulation but, since the clerk must testify in any case to the validity of the order to report, there is little extra burden on the government to have him prepared to testify on order of call.
“If, however, the order of call point is not raised before trial and there is no examination or cross-examination of the clerk on this point, and defendant moves for a judgment of acquittal, should the motion be granted? We think not. In this circumstance, where what is involved, while an element of the offense, has not been deemed important enough in the particular case to make any effort to elicit facts, we see no unfairness in allowing the government to go to the jury on the issue, relying on the presumption of regularity.” 404 F.2d at 466.
Judgment affirmed.
. United States v. Rhodes, N.D.Calif., No. 41,112, January 26, 1967, unpublished.
. See also, United States v. Sandbank, 403 F.2d 38, 40 (2nd Cir. 1968), cert. denied, 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969); Greer v. United States, 378 F.2d 931, 933 (5th Cir. 1967); Lowe v. United States, 389 F.2d 51 (5th Cir. 1968); Pigue v. United States, 389 F.2d 765 (5th Cir. 1968).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is civil rights - other civil rights - other 14th amendment and civil rights act cases. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Ernest BROOKS, Plaintiff-Appellant, v. CENTER TOWNSHIP, a municipality incorporated in Marion County, Indiana, and Benjamin A. Osborne, Center Township Trustee and Overseer of the Poor in Center Township, Defendants-Appellees.
No. 72-1921.
United States Court of Appeals, Seventh Circuit.
Argued May 22, 1973.
Decided Oct. 3, 1973.
John T. Manning, Louis F. Rosenberg, Indianapolis, Ind., for plaintiff-appellant.
Ernest P. Schnippel, Indianapolis, Ind., for defendants-appellees.
Before CLARK, Associate Justice, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.
The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
KILEY, Circuit Judge.
Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs’ rent and food assistance.- On motion of defendants the district court dismissed the complaint. Brooks alone has appealed. We reverse.
The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants’ practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants’ pre-termination procedure under Indiana law, and that they were, not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971).
We take the allegations well pleaded by Brooks as true, for purposes of this appeal. He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18 (1971).
Brooks contends that he was not required to exhaust the Indiana “remedy” before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
I
The district court’s application of the exhaustion rule was premised upon plaintiff’s failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That “poor relief” statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the “township trustee as overseer of the poor.” The statute contains no procedural requirements at the “trustee or overseer of the poor” level. Brooks’ claim of denial of due process is not aimed at the uneonstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief.
The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the “trustee as overseer.” The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given.
We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
Defendants’ arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S.Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right.
The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana’s “township poor relief program ... is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance” but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The Civil Rights Act was intended to “override certain kinds of state laws.” Id. at 173, 81 S.Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act.
II
We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare recipients before filing his civil rights action.
The Supreme Court has been careful to avoid trespassing upon state jurisdiction in the civil rights area. See McNeese v. Board of Education, 373 U.S. 668, 673, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Beginning with Monroe v. Pape, however, the Court has persisted in holding that the civil rights remedy under 42 U.S.C. § 1983 is supplementary to any state administrative remedies and that federal jurisdiction may be invoked without exhaustion of state remedies. In Pape the remedy was used in a search and seizure framework. In Mc-Neese the holding in Pape was repeated in the context of alleged segregation of students in an Illinois school. The holding was reasserted in a per curiam opinion in Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), an action under § 1983 involving the California welfare laws. In Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), a per curiam opinion, where a prisoner claimed his civil rights were denied by state confiscation of legal materials, the Court stated that “resort to” remedies of state was unnecessary in the light of Pape, McNeese and Damico. Still another per curiam opinion, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), held that a three-judge court improperly dismissed a complaint under § 1983 for failure to exhaust a state remedy. Carter involved aid to dependent children, and the court on authority of Damico, “an indistinguishable ease,” held “exhaustion” was not required. In a civil rights action by Illinois relief recipients this court in Metcalf v. Swank, 444 F.2d 1353 (7th Cir. 1971), affirmed dismissal for failure to exhaust state remedy. The Supreme Court vacated and remanded for further consideration in the light of Carter v. Stanton. Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972).
In Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the court cited McNeese and Damico for the proposition that the court had “expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983.” The court however qualified that statement by saying it need not decide “[wjhether this is invariably the case.” In a factual situation such as the one there, where the state remedy was initiated and pending and the individual would be deprived of nothing until completion of the state proceeding, the question of exhaustion “remains open.” Gibson is inapposite here because no Indiana state proceeding was or is pending with which a district court decision would interfere.
For the reasons given the district court judgment is reversed and the cause is remanded with directions to reinstate Brooks to the Center Township of Marion County, Indiana relief rolls from which he was unconstitutionally dropped; and for further proceedings with respect to what just compensation is due him from defendants for what injury the evidence shows he suffered as a result of the unconstitutional arbitrary termination of his “poor relief” benefits.
Reversed and remanded with directions.
. The court assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).
. The district court granted leave to appeal in forma pauperis.
. The assistance record of Brooks appended to defendants’ brief is not to be considered at this stage of the proceeding.
Question: What is the second general issue in the case, other than civil rights - other civil rights - other 14th amendment and civil rights act cases?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
In re BRASEA, INC., Petitioning for Exoneration from or limitation of liability. Petition of Roy Lewis C. WILLIAMS.
No. 78-1516
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 8, 1978.
Olney G. Wallis, Craig A. Washington, Houston, Tex., for petitioner.
Jack G. Carinhas, Jr., P. T. Moore, Jr., Brownsville, Tex., for Brasea, Inc.
Before THORNBERRY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
We are once again visited with an appeal concerning the rights and liabilities of the parties to this unfortunate mishap. The claimant Williams was the master of the shrimp trawler Ciapesc I on December 10, 1969. Ho was seriously injured at sea when a winch was activated while his hands were entangled in the line. Suit was instituted against various parties, and, after a bench trial, damages in the amount of $527,500 wore assessed against three defendants. The award was reduced by 40% due to contributory negligence attributed to the plaintiff Williams. All parties appealed and this Court determined that two parties were not liable as a matter of law, and that remand for an additional factual finding was necessary to resolve the negligence issue. On remand, the trial court made the requisite factual determination, but incorrectly reduced the judgment to the extent of the contributory negligence attributed to Williams. On appeal, we remanded for entry of a final judgment in favor of Williams against Brasea, Inc., the owner of the vessel and the employer of the crew, in the full amount of $527,500. The final judgment was entered forthwith and no appeal was filed.
Brasea, Inc., then pursued this action for limitation of liability pursuant to 46 U.S.C. § 183. The district court granted limitation of liability on Brasea’s motion for summary judgment. This appeal followed.
The memorandum order granting summary judgment reveals the conclusion of the district court that summary judgment was proper because “all the issues necessary to the determination of the limitation question in this cause were finally adjudicated in the Corpus Christi case.” App. 99. We cannot agree. In ascertaining whether a shipowner is entitled to limitation, the Court must first determine which act or acts of negligence or conditions of unseaworthiness caused the injury. The Court then determines whether the shipowner had knowledge or privity of these specific acts or conditions. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976). It is equally as well settled that in the limitation proceeding below the initial burden of proving negligence or unseaworthiness rested with the injured seaman. Id. at 10. The injured seaman sought to meet this burden in two distinct ways. First, the seaman requested that the court take judicial notice of the proceedings before Judge Cox and the findings of fact and conclusions of law resulting therefrom. App. 94. The negligence of crewman Terry was established in those proceedings. Second, the seaman sought to establish that the vessel was rendered unseaworthy by the alleged failure of Brasea, the owner, to provide a competent crew. See, Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir. 1968).
We conclude that the trial court improperly granted summary judgment without first considering whatever testimony or evidence the injured seaman may have on the issue of the competency of crewman Terry. The doctrine of collateral estoppel or issue preclusion does not operate as a roadblock under the facts of this case. The proceedings before Judge Cox only established that Terry was negligent and that equipment aboard the vessel did not render it unseaworthy. Of course, these issues may not be relitigated in the limitation proceeding. However, the issue of whether crewman Terry was incompetent at the time the vessel departed was not actually litigated in the prior proceedings. We therefore conclude that at this stage of the limitation proceedings there is a genuine issue of material fact which precludes the granting of summary judgment. Because this case must be remanded in any event, we deem it judicially efficient to direct the district court to likewise hear and consider such testimony and evidence which the injured seaman may wish to present on the issue of knowledge and privity. The court must consider this issue as to the negligence of Terry, and, additionally, will necessarily be required to consider this issue as to the failure of the owner to provide a competent crew in the event that Terry is found to have been incompetent at the time the vessel departed. We express no opinion as to the merits of the contentions of the injured seaman but note that the prior finding that Terry was negligent on the occasion in question does not establish as a matter of law that he was an incompetent seaman. This is because a competent seaman can on occasion engage in negligent conduct.
REVERSED AND REMANDED.
. We held that under the facts of this case the defendants Bender Welding & Machine Co., Inc., and Construction Machinery Company could not be found liable under a products liability theory for the supply of equipment alleged to be defective. We also affirmed the ruling of the district court that these two defendants were not negligent. Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), opinion amended, 513 F.2d 301 (5th Cir. 1975), cert. denied, 423 U.S. 906, 96 S.Ct. 207, 46 L.Ed.2d 136 (1975).
. We instructed the trial court to determine whether crewman Terry acted pursuant to instructions from Williams in starting the winch, and directed that if this question was answered in the negative, the negligence of Terry would constitute the sole proximate cause of the plaintiffs injuries. 497 F.2d at 74.
. Williams v. Brasea, Inc., 549 F.2d 977 (5th Cir. 1977).
. The liability and damages issues were heard by the Honorable Owen Cox, Corpus Christi Division, whereas the limitation proceeding was held before the Honorable Reynaldo Garza, Brownsville Division.
. The court further concluded that because “the sole proximate cause of Williams’ injuries were the negligent acts of crewman Terry in operating the winch, it then follows that there is no basis upon which to charge petitioner Brasea, Inc., with any privity or knowledge with regard to Williams’ accident or injuries.” App. 99-100.
. See, Kaspar Wire Works, Inc. v. Leco Engineering and Machine, Inc., 575 F.2d 530 (5th Cir. 1978) for a thorough discussion of res judicata or “claim preclusion”, and collateral estoppel or “issue preclusion.”
. The burden of proof on the knowledge or privity issue, however, rests with the petitioner in limitation, Brasea, Inc. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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").
UNITED STATES of America, Appellee, v. John Robert CONNER, Appellant.
No. 14600.
United States Court of Appeals Third Circuit.
Submitted April 19, 1965.
Decided April 22, 1965.
John Robert Conner, pro se.
Bernard J. Brown, U. S. Atty., Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., for appellee.
Before McLAUGHLIN, STALEY and SMITH, Circuit Judges.
PER CURIAM.
This appeal is from an order of the District Court denying a motion under Rule 32(d) of the Rules of Criminal Procedure to set aside a judgment of conviction and permit appellant to withdraw a plea of guilty and re-enter a plea of not guilty, where the guilty plea was made after trial but before verdict and where the District Court held a full hearing on the allegations presented by appellant.
We affirm the order of the District Court upon the opinion of Judge Follmer, 37 F.R.D. 360. We agree with him that this appeal is frivolous, completely without merit and shows no evidence of having been filed in good faith.
The order of the District Court will be 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:
|
songer_appel1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MUSTANG FUEL CORPORATION, a corporation, Appellant, v. YOUNGSTOWN SHEET AND TUBE COMPANY, an Ohio Corporation, Appellee.
No. 76-1462.
United States Court of Appeals, Tenth Circuit.
Submitted Aug. 2, 1977.
Decided Sept. 2, 1977.
Rehearing Denied Sept. 28, 1977.
Edwin D. Abel of Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., for appellant.
Gary W. Gardenhire, Oklahoma City, Okl. (Calvin W. Hendrickson, Oklahoma City, Okl., on the brief), Pierce, Couch, Hendrick-son & Short, Oklahoma City, Okl., of counsel, for appellee.
. Before SETH, BARRETT and DOYLE, Circuit Judges.
BARRETT, Circuit Judge.
This is the third appeal by the same appellant, Mustang Fuel Corporation (Mustang), from the grant of a Summary Judgment on behalf of appellee, Youngstown Sheet and Tube Company (Youngstown). Jurisdiction vests by reason of diversity.
The facts giving rise to the controversy involved here have been fully developed in Mustang Fuel Corporation v. Youngstown Sheet & Tube Company, 516 F.2d 33 (10th Cir. 1975). Briefly, Youngstown manufactured and delivered 37 miles of metal pipe in compliance with the API specifications contained in its contract with Mustang, the purchaser. Mustang laid the pipe to transport natural gas to its customers. Some three years after the pipe was laid, an explosion occurred at Okarche, Oklahoma, resulting in the death of Mrs. Ervin W. Lemke and serious injuries to members of her family. Mustang, while denying liability, settled with the Lemkes in amount of $680,000.00 and it thereafter filed suit seeking recovery from Youngstown on two grounds: first, on the basis of indemnity and, second, for the economic loss incurred in replacing that which Mustang contends to have been defective pipe sold and supplied to it by Youngstown.
Upon the first appeal, this court set aside a summary judgment granted to Youngstown against Mustang (denying Mustang any recovery) for failure of the trial court to follow'the mandates of rule 56(c), Fed. Rules Civ.Proc., 28 U.S.C.A., relative to hearing and notice requirements. Mustang Fuel Corporation v. Youngstown Sheet & Tube Company, 480 F.2d 607 (10th Cir. 1973).
Upon the second appeal, this court again set aside a summary judgment granted to Youngstown against Mustang (denying Mustang any recovery) and remanded for further proceedings to determine the applicability of the doctrine of strict liability in tort announced by the Oklahoma Supreme Court in the case of Kirkland v. General Motors Corporation, 521 P.2d 1353 (Okl. 1974), which decision was handed down some three months after the trial court granted the second summary judgment. We there specifically rejected Mustang’s claim for recovery against Youngstown— and in doing so affirmed the trial court — insofar as Mustang’s basis for recovery was on its contractual claim of breach of implied warranty of fitness of the pipe for its particular use. We rejected the breach of implied warranty claim, holding that Youngstown had complied with its express contract with Mustang in that it manufactured the pipe pursuant to American Petroleum Institute (API) standards and specifications. Mustang Fuel Corporation v. Youngstown Sheet & Tube Company, 516 F.2d 33 (10th Cir. 1975). However, as previously noted, we did set the summary judgment aside and remanded for further proceedings in light of the Kirkland, supra, decision.
The trial court, in the case at bar, again granted summary judgment to Youngstown, based upon a review of the entire record, our opinion reported in 516 F.2d 33, supra, and memorandum briefs of the parties. The Order recites that the court “. . . finds that there is no evidence tending to establish any genuine issue of liability of the defendant, [Youngstown] . . . under the theory of Manufacturers’ Products Liability as adopted by the Supreme Court of Oklahoma in its decision, Kirkland v. General Motors Corporation, supra, and that, accordingly, pursuant to the mandate of the United States Court of Appeals for the Tenth Circuit, the Summary Judgment heretofore granted the defendant is reinstated by the Court, Judgment is granted to the defendant under the doctrine of Manufacturers’ Products Liability, and Judgment is hereby entered dismissing this action.” [R., Vol. I, p. 138.]
A Motion for New Trial was filed by Mustang and overruled. Thereafter, the trial court entered a detailed Memorandum Opinion and Order denying the Motion for New Trial for these reasons: (1) Mustang failed in its burden of proving an unreasonable danger, (2) Mustang voluntarily assumed the risk of a known defect, and (3) an act of Mustang caused the injury complained of.
The sole issue on appeal is whether, as Mustang contends, there is a genuine issue as to any material facts from which reasonable men could find Youngstown liable to Mustang on the basis of the theory of “Manufacturers’ Products Liability.”
We undertake this review, guided by the rule that a motion for summary judgment should be granted only when the moving party has established the absence of any genuine issue as to a material fact. Dzentis v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 F.2d 168 (10th Cir. 1974); James v. Atchison, Topeka & Santa Fe Railway Co., 464 F.2d 173 (10th Cir. 1972).
We recognize that great deference is to be accorded the views of a resident federal district judge relative to the interpretation and application of the law of his state in the absence of controlling precedents opined by the highest court of that state. In Re Cox, 543 F.2d 1277 (10th Cir. 1976); Matthews v. IMC Mint Corporation, 542 F.2d 544 (10th Cir. 1976). Where, as here, the state’s highest court has opined, the question is then one of law. Our review is then governed by the “clearly erroneous” rule. Reversal is required only if the appellate court’s review results in a firm conviction that a mistake has been committed. Fed.Rules Civ.Proc., rule 52, 28 U.S.C.A.; Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Muller v. United States Steel Corporation, 509 F.2d 923 (10th Cir. 1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975).
I.
At the threshold, we observe that the trial court’s memorandum opinion recites that this court’s 1975 opinion held that Youngstown complied with its contract with Mustang in that it manufactured the pipe to API standards and specifications. Accordingly, the trial court ruled that the proffered depositional testimony of one Dr. Robert Hockman, a metallurgical expert, relative to tests and examinations which he conducted on fractured sections of the pipe, in the nature of “microprobe analysis” which led him to conclude that the pipe was defective when delivered by Youngstown notwithstanding its compliance with the API specifications, was not admissible. The trial court erred in so ruling.
In our 1975 opinion (516 F.2d 33) we upheld the trial court’s ruling rejecting the offer of Dr. Hockman’s expert testimony because the suit was on the contract and “. . . there being no cogent evidence that API specifications were not met, summary judgment was properly granted against Mustang’s theory of breach of express warranty urged upon the Court." 516 F.2d, at 38. We anchored our holding supporting the denial of Dr. Hockman’s expert testimony to the proposition that his testimony did not go to any issues raised in the contract proper which would aid Mustang’s claim of breach of express warranty. Dr. Hockman’s testimony, we noted, involved the results of tests he conducted on sections of the fractured pipe which “. . . were not included in the tests required by the API in determining whether or not the pipe conformed to API standards.” 516 F.2d at 38. When this court upheld the trial court’s rejection of the proffer of Dr. Hockman’s expert testimony aforesaid, we did not indicate, directly or by implication, that his expert testimony was to be rejected upon remand and rehearing insofar as it may be relevant and material in the determination of Youngstown’s liability to Mustang under the doctrine of strict liability in tort or, as the Oklahoma Supreme Court referred to it in Kirkland v. General Motors Corporation, supra, “Manufacturers’ Products Liability.”
The trial court, in the instant proceeding, held that Dr. Hockman’s expert testimony relative to defects in the pipe when delivered, in the nature of a concentration of sulphur in the heat-affected zone and an incomplete seam closure, did not present a triable issue of fact, predicated, as we view it, on the following “findings” coritainéd in the court’s memorandum opinion: (a) Dr. Hockman agreed that the API specifications did not call for the “microprobe analysis” test which he conducted, (b) Dr. Hock-man’s testimony established as undisputed fact that no specifications in the country require the tests he performed, (c) based on (a) and (b) there cannot be a triable issue of fact because Mustang has wholly failed in its burden to establish a defect in the pipe which was “unreasonably dangerous” when it left the hands of its manufacturer, Youngstown. Predicated on these findings, and others, the trial court ruled that: “The plaintiff [Mustang] has heretofore not brought forth evidence to show that the product was so defective as to be unmer-chantable under the cumulative definition of 12A O.S.1971, § 2-314(2)(a-f). Under the burden of proof as established by Kirkland, supra, the court specifically finds that the testimony of Dr. Hockman is not sufficient to sustain this burden of proof. The pipe was not dangerous to an extent beyond that reasonably contemplated by an ordinary purchaser of pipe under the API specification 5LX.” [R., Yol. I, p. 155.]
We hold that the above recital evidences that the trial court’s finding that there was no unreasonable defect in the pipe when delivered — notwithstanding Dr. Hockman’s expert opinion testimony — was a factual finding on the ultimate issue in controversy. The court’s finding did go to proof. It reached the very issue in controversy. In light of Kirkland, supra, we must hold that the trial court usurped the fact finding function of a jury in foreclosing consideration of the expert testimony of Dr. Hock-man on the ultimate issue of liability. Thus, the trial court’s ruling that Dr. Hock-man’s expert testimony is inadmissible is clearly erroneous. We do not presume to say that a jury will not arrive at the same conclusion as that arrived at by the trial court. We simply hold that the expert testimony of Dr. Hockman does create a genuine issue as to material facts.
II.
. In Kirkland v. General Motors Corporation, supra, the Oklahoma Supreme Court embraced the doctrine initially labeled “Strict Liability in Tort” as announced in Greenman v. Yuba Power Products, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), which the Oklahoma court preferred to label as “Manufacturers’ Products Liability.” The American Law Institute has, as the Kirkland, supra, court observed, confirmed the acceptance of the California decision by its adoption and approval by other courts. The rule is set forth in Restatement of Torts (Second), § 402A, quoted in Kirkland v. General Motors Corporation, supra, as follows: Mustang contends that the offered expert testimony of Dr. Hockman is the evidentia-ry basis upon which it relies for the application of the strict liability doctrine, and that this evidence creates a genuine triable issue as to material facts. We agree. We have not overlooked Youngstown’s contention that Dr. Hockman’s testimony was equivo-cable and that he required further examinations to substantiate his conclusions. Even so, Dr. Hockman testified that his conclusions were “fairly solid.” In any event these are matters going to the weight and credibility of the proffered evidence.
‘(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 products, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.’ Restatement 347, 348.
Comment m to the Restatement makes it clear that the liability stated in § 402A is strict liability based on tort rather than warranty; that warranty has become so identified in practice with a contract of sale that the warranty theory has become something of an obstacle to the recognition of strict liability where there is no such contract; and that the rule stated in the section is not governed by the provisions of the Uniform Commercial Code, as
to warranties. See Restatement of Torts (Second), § 402A, p. 355-356. 521 P.2d, at p. 1358.
Mustang recognizes that in order to prevail against Youngstown under the Kirkland, supra, doctrine, it must establish: (1) that the pipe sold by Youngstown was the cause of the injuries; (2) that the defect or defects existing in the pipe were in existence at the time the pipe left the possession and control of Youngstown; and (3) that the defect or defects in the pipe (based upon the Dr. Hockman opinion testimony) made the product unreasonably dangerous to Mustang or its property. Thus, this criteria, as applied to the instant case, does not permit the grant of a summary judgment.
During oral argument, counsel for Youngstown stated that Dr. Hockman testified that the subject pipe was not defective when delivered by Youngstown to Mustang. Such is not the case. A careful review of Dr. Hockman’s deposition simply confirmed that he acknowledged that the pipe, as delivered, did comply with API standards. Dr. Hockman had previously testified, however, that his personal investigation — testing of two sections of the pipe close to or adjacent to the initial “fracture” points— involved his metallographical examinations of cross sections of seamed and corrosive areas of the fractured surfaces where he undertook a series of “microprobe analysis” and “micro examinations.” These tests led him to conclude that “there are indications of lack of fusion in the weld area, which was a weld seam originally, and there is an indication of high sulphur content in the steel in these areas, both of these leading to a corrosion process which wound up with a highly localized corrosion in the area of the seam.” [R., Vol. VII, Deposition, pp. 10-13.] Dr. Hockman further testified that the corrosion he referred to reduces the cross sectional area capacity of the pipe resulting in pressure in the pipe and a stress intensity factor so that the combination of the extremely high intensity and reduced corrosion leads to a ruptured failure. [R., Vol. VII, pp. 12-16.]
We note that the trial court found that Mustang was not an “ordinary” consumer as contemplated under the doctrine announced in Kirkland, supra ; that Mustang voluntarily assumed a known risk in that it used a process of cathodic protection to prevent preferential corrosion rather than a method recommended by Youngstown; and that because Mustang continued to use the same miles of pipe after several ruptures had occurred, it thereby assumed the risk of a known defect. We must reject the trial court’s findings in these particulars insofar as they were relied upon in granting the summary judgment. The criteria to be applied is that laid down in Kirkland, supra. There are genuine triable fact issues for ultimate determination by a jury. We express no opinion on the merits of the trial court’s grant of the summary judgment. We must, however, set it aside and remand to the district court with instructions to undertake further proceedings consistent with the views expressed herein.
Reversed and remanded.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_numappel
|
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 appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WELSH V. AMERICAN SURETY CO. OF NEW YORK et al.
No. 13265.
United States Court of Appeals ‘ Fifth Circuit.
Jan. 17, 1951.
H. O. Williams, San Angelo, Tex., for appellant.
Dorsey B. Hardeman, San Angelo, Tex., for appellees.
Before HUTCHESON, Chief Judge, and McCORD, and BORAH, Circuit Judges.
BORAH, Circuit Judge.
Steve Welsh sued V. O. Earnest, sheriff of Crockett County, Texas, and American Surety Company of New York, surety on the sheriff’s official bond, to recover damages for personal injuries inflicted on Welsh during the course of and following his arrest. The action was dismissed on defendants’ motion and plaintiff has appealed.
The only question here is whether the District Court had jurisdiction to hear and determine the complaint. Plaintiff relied upon diversity of citizenship and the requisite amount in controversy as the basis of jurisdiction. The narrow and specific point in issue is whether at the time of the commencement of this suit plaintiff was a bona fide citizen of the State of New Mexico, within the meaning of Title 28 U.S.C.A. § 1332(a) (1). The suit was brought on March 6, 1950, and it was alleged in the complaint that plaintiff was a resident and citizen of the State of New Mexico; and that defendant Earnest was a citizen of the State of Texas; and that defendant American Surety Company of New York was a New York corporation licensed to do business and doing business in Texas. In response to the complaint the defendants filed a motion to dismiss the action on the ground that the court was without jurisdiction because plaintiff is and has been for many years a bona fide citizen of the State of Texas. The court heard evidence om the motion and in its order dismissing the complaint for want of jurisdiction found, “that although plaintiff resides in the State of New Mexico * * * it has not been established by reasonably satisfactory evidence that plaintiff intends to reside permanently in New Mexico and that the evidence of diversity of citizenship of the plaintiff and defendant, V. O. Earnest, is insufficient to establish a ground for jurisdiction * * The findings are challenged on the ground that they are against the evidence and are clearly wrong.
Plaintiff had been a resident of Texas. He contends that he ended his residence and citizenship there and established residence and citizenship in New Mexico in February, 1950, less than one month prior to the institution of the action. Now, it is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto ct animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Mitchell v. United States, 21 Wall. 350, 352, 22 L.Ed. 584; Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027. Plaintiff’s allegation of citizenship in New Mexico was not sufficient. When challenged as here, the burden rested on him to show by a preponderance of the evidence that he was a citizen of that State. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Town of Lantana, Florida v. Hooper, 5 Cir., 102 F.2d 118.
There was evidence in the record which fairly tended to prove these facts. Plaintiff lived in California for twenty-six years. In 1946 he moved to Ozona, Texas, and in the same year he married. During the years that followed he often declared that he intended to return to California and he informed his wife that he would remain in Ozona only during the lifetime of her sick and aged father. On December 28, 1949, his father-in-law died. After finishing up a job on which he was then working plaintiff went to a Mr. Couch and told him that he was leaving but doubted if he had sufficient money to take him to California and asked Couch if he would purchase his trailer for two hundred dollars. Couch did not have the money but he advised plaintiff to go to Hobbs, New Mexico where Couch’s nephew, a contractor, would assist plaintiff in securing employment, thereby enabling him to work his way back to California. Plaintiff arrived in Hobbs, New Mexico on February 3, 1950 and on the following day he secured employment.
The testimony with regard to plaintiff’s intention is illuminating. Plaintiff testified that he decided to stay in New Mexico when he secured employment and “got the second chance to go to work.” It is the testimony of the witness Couch that plaintiff told him shortly before the hearing, which was on May 26, 1950, that “he liked Hobbs so well he believed he was going to make it his home.” And according to the wife’s version, plaintiff decided, after they were there just a short while, “that he believed he would stay at Hobbs, New Mexico, and make his home there.” The witness Cade testified that plaintiff told him that he was going to file suit in San Angelo, Texas, and that he had to move out of the State of Texas in order to file this suit in the Federal Court.
Declarations of intention to establish residence in a particular locality are of course to be given full and fair consideration, but like other self serving declarations may lack persuasiveness or be negatived by other declarations and inconsistent acts. To bring about a domiciliary change there must be a conjunction, of physical presence and animus manendi in the new location. The question is always one of compound fact and law, and one which the trial judge, having an opportunity to hear the testimony, and observe the witnesses, is most competent to judge of their credibility and we are not warranted in setting aside his findings and conclusions unless clearly erroneous. We are satisfied that the court did not misapprehend the testimony and that its findings as to the weight of the evidence should be left undisturbed.
Accordingly, the judgment of the District Court is affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
GAS RIDGE, Inc. v. SUBURBAN AGRICULTURAL PROPERTIES, Inc.
No. 11232.
Circuit Court of Appeals, Fifth Circuit.
July 12, 1945.
Rehearing Denied Sept. 13, 1945.
See 150 F.2d 1020.
Arthur H. Bartelt, of Austin, Tex., for appellant.
Knox Miller, of San Antonio, Tex., for appellee.
Before SIBLEY, HUTHESON, and LEE, Circuit Judges.
HUTCHESON, Circuit Judge.
While prior but abandoned pleadings had set out in the alternative various claims, the Second Amended Complaint, on which the trial was had, declared on one simple claim, that an oil and gas lease on the described premises “ * * * for the term of five years from Dec. 7, 1920, and as long thereafter as oil or gas is produced from the said lease” had, because of the failure to produce in paying quantities expired, terminated and ceased.
The defense that the lease had not ceased to produce in accordance with its terms was primarily legal, that it was admitted that there was production and that the lease did not require production “in paying quantities” ; secondarily factual, that if production in paying quantities was required, the lease had not ceased so to produce.
Other defenses were (1) waiver and estoppel through permitting development and accepting royalties; (2) war restrictions preventing development; (3) changes in the lease contract converting lessee’s title from a determinable to an absolute fee. The documents relied on as affecting these changes were not proved up and only copies thereof were offered. Plaintiff objected to their admissibility, and they were received subject to the objection.
The trial of the case before the judge without a jury was concluded on May 17, 1944, and the case taken under advisement. On August 28, 1944, appellant filed a motion to reopen the case in order to permit him to introduce as part of the record, O. P. A. regulations providing for subsidy for stripper wells and an affidavit of M. J. Hildebrandt, secretary of the company, as to prices which would have been received for the production from the property if the subsidy had been in effect. On September 25, this motion was overruled, and on a consideration of the whole case, judgment was rendered for complainant, and defendant has appealed.
Of the opinion that Garcia v. King, 139 Tex. 578, 164 S.W.2d 509, 511, had settled it that the continuance of the lease estate required the continuance of production “in paying quantities”, he found that the evidence established that for a period of years the lease had not so produced, and that cessation of such production had resulted in the automatic termination of the lease estate. Of the opinion too that plaintiff had not in fact waived its right to insist, nor estopped itself from claiming, that the lease had terminated,, he so found. As to the claim that the failure of the lease to produce in paying quantities was excused by war, acts of the government, or other force majeure, he was of .the opinion that since the lease contained no saving clause but fixed precisely the terms upon which its continuance depended, these constituted no defense.
Upon the defenses that by the documents relied on by defendant the terms of the lease had been changed to give defendant a fee simple title rather than a determinable fee, he was of the opinion; that the documents were not admissible in evidence over the objection that their execution had not been proved;, that if admissible, they were not effective to prevent termination of the lease on cessation of production in paying quantities; and that if in error as to this, complainant, holding under Tar-rant, an innocent purchaser for value, would not be bound by unrecorded instruments.
We think the district judge was right throughout. The opinion of the Supreme Court in Garcia's case leaves in no doubt; that “production” as used in the lease in question means “production in paying quantities”; that the continuance in force of the lease depended on the continuance of such production; and that when that ceased, the lease automatically terminated. Neither may it be doubted that there was ample evidence to support the finding of the district judge that for some years prior to the trial the lease had not so produced. There was evidence of persons familiar with the lease that it could not be, it had not for some time been, operated except at a loss, evidence of the actual production, the operating expenses and the amounts received from it, and tax statements of defendant -filed with the Wisconsin Tax Commission showing that for many years the lease had been operated at a loss. It is true that plaintiff undertook by an analysis of these returns to show that they did not truly reflect that the lease in question was operated at a loss, and that counsel for the defendant testified as one familiar with the property that it had not been so operating but had been breaking even or a little better. But the weight and credibility of all this testimony was for the district judge before whom the case was tried, and it is quite plain that upon this record we cannot say that his findings were clearly erroneous. Indeed, we think that on proper balance the evidence heavily preponderates in favor of the judge’s conclusion that the lease had been operating at a loss and that the defendant was holding on to it for the speculation involved in the possibility of a deep test proving up rich deposits in much lower strata.
As to waiver and estoppel, plaintiff did nothing in any way to mislead defendant or even to induce it to develop the property. It only took the meager pittance defendant from time to time sent it, and it seems to be well settled in the law that the mere receipt of payments on account of minerals taken from one’s own property does not operate as a waiver of, or an estoppel to assert, the claim that the rights of the taker as lessee have terminated.
As to the documents the defendant relies on, we think it quite clear that the district judge was right in excluding them from evidence on the ground that they had not been properly proven up. Nor are we in any doubt that, unrecorded instruments, if they had been properly proven up, they could not have been effective as against Tarrant under whom plaintiff holds or against plaintiff to change the terms of the. lease so as to diminish the rights of the lessor under it. As to their effect, admissibility and innocent purchase aside, we think that the statement in clause one of the purported contract between Hamilton Land Company and defendant’s predecessor was intended to, and, as between the parties, did, have the effect of releasing the company from the implied obligation to further develop the lease, and was an assurance that the Land company would not claim a forfeiture for failure to further develop. This, however, in connection- with an earlier statement in the contract that the Gas Ridge has “drilled certain wells upon said property which produce oil or gas in commercial quantities” must be taken not as an attempt to provide that the lease was to continue in force after production in paying quantities had ceased, but as an assurance that so long as oil in paying quantities was produced from wells then or thereafter drilled, Gas Ridge could hold the lease free from the necessity of drilling further wells. We think, therefore, that the district judge was right in holding that neither the Sweetman contracts which do not at all purport to change the title under which the lease is held, nor the Hamilton Land contract, if admissible and effective against the claim of innocent purchase, would have the effect claimed for them of changing the title of lessor from a determinable fee upon condition that oil be produced in paying quantities to an absolute and unconditional fee.
As to the action of the court in refusing the motion to reopen the case, this motion was addressed to the sound discretion of the judge, and his action will not be disturbed in the absence of a showing that it has worked an injustice in the cause. Nothing of the kind is made to appear. The record upon a full trial shows that for a long time now defendant has been operating the property with a constantly dwindling and almost disappearing return both to itself and to its lessor, and that its holding on to and operation of the lease has for some time now not been to obtain the profits from the strata then in production but in the purely speculative hope that something might develop by which production from deeper strata would be established and it might reap the benefits of that speculation. In these circumstances where the right claimed is a purely legal one, that the lease has ceased and all rights in the property have revested in the lessor, and there is an entire absence of equitable features, it cannot be said that the judge abused his discretion on the showing made to reopen the case.
The judgment was right. It is affirmed.
Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726; Dallas v. Hendricks, 140 Tex. 93, 166 S.W.2d 116; Hirsch v. Dearing, Tex.Civ.App., 151 S.W.2d 949.
Lease dated 12-7-20 from Hamilton Land & Development Company to San Antonio Oil and Natural Gas Co., defendant’s predecessor in title.
They were broadly of two kinds. One was a series of instruments purporting to be executed in 1922, between one M. M. Sweetman and defendant’s predecessors in title, covering certain gas and oil rights. Of these Sweetman instruments, all except one are unrecorded, and none of them, recorded or unrecorded, at all purports to change the terms of the original lease or prevent its cessation upon failure to produce.
The other, the instrument mainly relied on, is an unsigned copy of an unrecorded instrument between the original lessor, Hamilton Land & Development Co., appellee’s predecessor in title, and Gas Ridge Development Co., appellant’s predecessor in title, dated Jan., 1927. The significant terms of it are:
(a) A statement that under the provisions of the lease, lessees “have drilled certain wells upon said property which produce oil or gas in commercial quantities.”
(b) A statement that by instrument dated 5-24-24, the parties had modified the original lease agreement of date 12-7-20, to the extent of providing for changed royalties for oil and gas and in no other respect.
(c) The following: That Whereas the parties “desire to further modify said original lease in the particulars hereinafter specified, and in no other respect, Now, Tberefore, * * * ”, they “do hereby mutually agree:
“1. The Land Company hereby releases the Development Company, its predecessor, successors or assigns, from the obligation to further develop said property, or any part thereof, for oil or gas, and hereby recognizes title in the Development Company, its successors or assigns, free from forfeiture, to all oil or gas wells drilled by said Development Company, its predecessors or successors or assigns, upon the above described property, except a one-half interest in certain gas wells thereon now owned by the Land Company.”
2. That the Development Company gives to the Land Company the right to drill for oil or gas on any part of the property, and the Land Company will own the production subject to paying the Development Company royalties.
3. Except as herein expressly modified, the original lease and modification are in no other respect changed.
Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032.
Kyle v. Wadley, D.C., 24 F.Supp. 884; Stanolind v. Guertzgen, 9 Cir., 100 F.2d 299; Guerra v. Chancellor, Tex.Civ.App. 103 S.W.2d 775; 13 A.L.R. 396; Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032.
“1. The Land Company hereby releases the Development Company, its predecessor, successors or assigns, from the obligation to further develop said property, or any part thereof, for oil or gas, and hereby recognizes title in the Development Company, its successors or assigns, free from forfeiture, to all oil or gas wells drilled by said Development Company, its predecessors or successors or assigns, upon tbe above described property, except a one-half interest in certain gas wells thereon now owned by the Land Company.”
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
F
|
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.
NORTHWESTERN ELECTRIC CO. v. FEDERAL POWER COMMISSION.
No. 9756.
Circuit Court of Appeals, Ninth Circuit.
Feb. 13, 1942.
Rehearing Denied March 13, 1942.
John A. Laing, Henry S. Gray, and Laing, Gray & Smith, all of Portland, Or., and A. J. G. Priest, Sidman I. Barber, Reid & Priest, White & Case, and Nicholas H. Powell, all of New York City, for petitioner.
William S. Youngman, Jr., Gen. Counsel, F. P. C., Richard J. Connor, Asst. Gen. Counsel, George Slaff, Principal Atty., F. P. C., and Milford Springer, Atty., F. P. C., all of Washington, D. C. (Reuben Goldberg and Robert L. Russell, both of Washington, D. C., of counsel), for respondent.
Smith Troy, Atty. Gen., State of Washington, and Harry A. Bowen, Sp. Asst. Atty. Gen., of Olympia, Wash., for Department of Public Service of Washington, as amicus curiae.
I. H. Van Winkle, Atty. Gen., State of Oregon, Willis S. Moore, First Asst. Atty. Gen., and Alvin A. Kurtz, Gen. Counsel, Public Utilities Commission of Oregon, of Salem, Or., for Ormond R. Bean, Com’r of Public Utilities of Oregon, as amicus curiae.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
HANEY, Circuit Judge.
Review is sought of an order of the Federal Power Commission.
Petitioner was organized under the laws of Washington on January 7, 1911 by two San Francisco financiers who desired to acquire a water power site to develop electricity for a paper mill in which they were interested. The promoters advanced $175,-000 to petitioner for the purpose of acquiring water power sites, which amount was repaid on May 13, 1912 with interest. Petitioner thereafter decided to enter the utility business in Portland and vicinity to utilize the power developed in excess of the paper mill’s requirements.
On March 14, 1911, petitioner’s Board of Trustees issued to the promoters 50,000 shares of the $100 par common stock, and on May 14, 1912, petitioner’s Board of Trustees increased the capital stock of petitioner from 50,000 shares of $100 par common to 100,000 shares of $100 par common, and issued the additional 50,000 shares to the promoters. This $10,000,000 of common stock was not recorded on petitioner’s books until January 31, 1914, when it was entered in an account entitled “Land and Water Rights” and a corresponding credit to “Common Capital Stock”.
In 1925, American Power & Light Company purchased all the common stock in petitioner at a cost of $5,095,946.48. In 1936 petitioner was authorized by the regulatory authorities of Oregon and Washington to reduce the par value of its common stock from $100 to $35. Petitioner based the reduction upon the then fair value of its assets.
From the commencement of regular operations through 1925, petitioner did not capitalize interest during construction on all its construction expenditures, except for the period from 1911 to July 1, 1914, and except for construction of one plant. Since 1925, petitioner has capitalized interest during construction, on projects costing more than $1,000, and requiring more than 30 days to complete.
Respondent prescribed a Uniform System of Accounts for Public Utilities and Licensees and required the reclassification of the electric plant of public utilities, and adjusting entries necessary to reflect the reclassification as of January 1, 1937. Petitioner submitted a purported reclassification of its electric plant accounts. Respondent made an investigation of the reclassification and issued a report thereon under date of April 26, 1940. Respondent’s letter of transmittal to petitioner contained a request for a plan of disposition of the $3,500,000 common stock item, and a request that petitioner adjust its reclassification to conform with the report.
The report recommended that an item in petitioner’s reclassification, constituting a capitalization of interest charges for construction between July 1, 1914 and December 31, 1925, should be eliminated. It further recommended that the amount of $3,500,000 should be retained in account 107 — Electric Plant Adjustments — pending the submission to the Commission of a plan for its disposition.
Petitioner did not comply with the requests made and on June 18, 1940 respondent ordered petitioner to show cause why it should not find and determine by order that adjusting entries be made to bring the books of account in conformity with the report made. Hearing was held thereafter, and briefs were filed.
On December 6, 1940, respondent issued its opinion and findings. With respect to the interest item, the Commission found that the omission of the interest capitalization prior to the proposed reclassification was a deliberate choice on behalf of the petitioner, which was the exercise of proper accounting discretion, was not an “error”, was “reaccounting” rather than “reclassification”, and that it would be improper for petitioner to include such item in its account now.
With respect to the common stock item, respondent found that the issue of the common stock was a “disguised gift” by the promoters to themselves; that “there is no reliable evidence in the record that any promoters’ services of demonstrable value or any other consideration was received by the” petitioner for its common stock, and
“The real cost of all the property of the Company at the time of the issuance of its Common Stock was represented by debt securities. This condition likewise prevailed on July 1, 1914, except for a small amount of Preferred Stock. Even today the Company’s entire Common Stock is not represented by any assets received by the Company in exchange for it. No electric plant was received in exchange for the Common Stock; hence, no amount in respect thereof should remain in the electric plant accounts. The issuance of this stock was manipulation.”
Regarding the disposition of the common stock item, respondent made the following statement:
“Considering all relevant factors, we find that it is in the interest of consumers, investors and the public to direct the disposition of the $3,500,000 write-up by requiring the Company to apply all net income above Preferred Stock dividend requirements to the disposition of the $3,-500,000 in Account 107. This disposition, assuming adequate earnings, is the equivalent of obtaining ultimately from the holders of the common stock (the holding company) a consideration of $3,500,000 for the stock. Certainly dividends should not be paid on the Common Stock until it has the equivalent of a paid-in value.”
The order of respondent, issued December 6, 1940, required petitioner to comply with such findings. On January 9, 1941, petitioner filed an application for rehearing. On January 21, 1941, respondent granted a rehearing with respect to the common stock item, but denied the application as to all other matters. On February 21, 1941, and prior to a decision or order of respondent on the rehearing, petitioner filed in this court its petition to review respondent’s order of December 6, 1940.
The Federal Power Act consists of three parts. The first part, in general, provides for the creation of the Federal Power Commission, the improvement of navigation and the development of water power. 16 U.S.C.A. §§ 791-823. Part II of such act, in general, provides for the regulation of electric companies engaged in interstate commerce. 16 U.S.C.A. §§ 824-824h. Part III of such act, in general, relates to licensees and public utilities and contains procedural and administrative provisions. 16 U.S.C.A. §§ 825-825r.
Part I, § 3, defines “net investment” in a project, the basis of which is “the actual legitimate original cost”. 16 U.S.C.A. § 796(13). § 14 of such part, 16 U.S.C.A. § 807, provides that the United States may purchase a project at the expiration of the license upon payment of such net investment, not exceeding the fair value of the property, arid further empowers the Commission to determine the “net investment” of the licensee in the project. § 20 of Part I makes provision for regulation of rates charged for power entering into interstate and foreign commerce, and stipulates that in any valuation of the property of any licensee “for purposes of rate making” no value will be claimed by the licensee or allowed by the Commission in excess of the value or values prescribed in § 14, 16 U.S. C.A. § 813.
Section 201(a) of Part II of the act, 16 U.S.C.A. § 824(a) provides as follows:
“It is hereby declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this Part and the Part next following [sections 824-825r of this title] and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such ■ Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.”
Section 208(a) of such part provides that the Commission may investigate and ascertain the actual legitimate cost of the property of every public utility, the deprecia-, tion therein, and, when found necessary for ratermaking purposes, other facts which bear on the determination of such cost or depreciation and the fair value of such property. 16 U.S.C.A. § 824g(a).
Section 301(a) of Part III of the act, 16 U.S.C.A. § 825(a) requires every licensee and public utility to make, keep and preserve such records “ * * * as the Commission may by rules and regulations prescribe as necessary or appropriate for purposes of the administration of this Act [chapter] * * * Provided, however, That nothing in this Act [chapter] shall relieve any public utility from keeping any accounts, memoranda, or records which such public utility may be required to keep by or under authority of the laws of any State. The Commission may prescribe a system of accounts to be kept by licensees and public utilities and may classify such licensees and public utilities and prescribe a system of accounts for each class. The Commission, after notice and opportunity for hearing, may determine by order the accounts in which particular outlays and receipts shall be entered, charged, or credited. The burden of proof to justify every accounting entry questioned by the Commission shall be on the person making, authorizing, or requiring such entry, and the Commission may suspend a charge or credit pending submission of satisfactory proof in support thereof.”
With these provisions in mind, we turn to the questions presented. It is difficult to tell what the exact contentions of petitioner are.
It is contended that states may regulate the accounting practices of utilities and therefore, by the express words of § 201(a), federal regulation does not extend to the regulation of accounting practices. While it is true that § 201(a) provides that “such Federal regulation” shall “extend only to those matters which are not subject to regulation by the States”, the words “such Federal regulation” refer back to the kind of regulation previously referred to, .i. e. to “matters relating to generation” of electricity, and to “that part of such business which consists of the transmission of electric energy in interstate commerce”. As accounting of the sort involved here is not either of the things mentioned, § 201 (a) does not preclude installation of a system of accounts by respondent.
It is further contended that the system of accounts authorized by § 301(a) of the act must be “necessary or appropriate for purposes of the administration” of the act, and that the system of accounts prescribed by respondent is neither necessary nor appropriate. We will assume, without so deciding, that the system of accounts which respondent is authorized to prescribe, must be a system which respondent may lawfully determine to be necessary or appropriate for purposes of administration of the act. There is nothing in the act which authorizes us to determine what is necessary or appropriate for purposes of administration of the act. The duty to make such a determination is imposed by the statute on respondent. After such determination, the only question which may be presented to us is one of law. The question of law has been expressed in various words, such as: did the Commission abuse its discretion, or was the action of the Commission arbitrary or unreasonable, or was the action of the Commission based on whim, or is there any rational basis to support the view of the Commission ? All these expressions lead to one conclusion, which is: could any reasonable man take the view announced by the Commission? If he could, then the action of the Commission must be sustained. If he could not, then the action of the Commission cannot be upheld. See American Tel. & Tel. Co. v. United States, 299 U.S. 232, 236, 237, 57 S.Ct. 170, 81 L.Ed. 142. The mere fact that the system of accounts prescribed might appear to us to be unwise, burdensome or inferior to another system, is insufficient to show that a reasonable man could not take the view which the Commission took. Id. 299 U.S. page 236, 57 S. Ct. 170, 81 L.Ed. 142.
Petitioner also contends that Congress did not intend to grant to the Commission authority which could be exercised by the States with respect to accounting matters. The arguments in support of this contention need not be repeated, for the language itself discloses the Congressional intent. It authorizes the Commission to “prescribe a system of accounts to be kept by licensees and public utilities”. The authority is unlimited, and restrained, if at all, only by the rule mentioned in the preceding paragraph. The mere fact that the Commission’s authority over other things may be limited in the act, does not show that the authority over the subject in controversy is also limited. There is no good reason for reading into the language a limitation. We think that if Congress had intended such grant of authority to be limited, it would have been as specific in the limitation as it was in the grant.
Petitioner contends that even though the act is construed to give the Commission authority to prescribe an accounting system, the Commission may not issue regulations which oust the jurisdiction of the courts. We see no point to this contention. We know of no regulation which attempts any such action. Section 313(b) of the act, 16 U.S.C.A. 8257, specifically provides for review of orders of the Commission. If there is any regulation which attempts to limit that statute, it is not involved here.
The only other question before us regarding the general power of the Commission, is whether respondent, in prescribing the system of accounts here involved, prescribed a system which no- reasonable man would prescribe. Petitioner argues that original cost is less significant than other evidence of value, and that if original cost can be made the sole criterion of value for purposes of utility regulation, the investor will shun utility securities. Such arguments are among those which should be considered upon the initial decision of the question as to what system should be prescribed, but insofar as the decision of the question before us is concerned, our agreement with such arguments does not show that a reasonable man could not find another sound reason for the conclusion of the Commission. In other words, the question before us is not one which calls for the display of reasons or arguments supporting another view, but one which requires a demonstration, that the reasons or arguments supporting the view of the Commission, were those which could not have been accepted by a reasonable man.
In this connection it is argued that rates must be based at a figure which will yield a fair return on the fair value of a utility’s properties; that the courts have disapproved of the “original cost” value ' and have fixed the rule of “fair value” as the basis; and that therefore a system of accounts which requires petitioner to eliminate “fair value” from its accounts, is contrary to the decisions and deprives petitioner of its vested property rights without due process of law. The latter argument is unsound. Petitioner has as much property as it has ever had. The system of accounts takes nothing from, petitioner. Petitioner may keep such other accounts as it desires. The present regulation only requires a particular system of accounts to be kept, not that other systems shall not be kept.
Furthermore, original or actual cost of the property is a factor which must be considered in determining whether a particular rate yields a fair return. Los Angeles Gas & Electric Co. v. Railroad Comm., 289 U.S. 287, 306, 53 S.Ct. 637, 77 L.Ed. 1180. While it is not the only factor, generally speaking, it is one of them. Whether the act in question requires rates to be fixed on values arrived at by the “original cost” method alone, or in conjunction with other methods, it is unnecessary to determine, for under any method “original cost” is a factor to be considered. Certainly there ought not to be any objection to the keeping of a system of accounts which will show correctly one of the factors to be considered in fixing rates — a matter within the jurisdiction of .public bodies.
Turning now to the justification for respondent’s view in prescribing this system, we find indications in the act, quoted above, that Congress attached great importance to the “original cost” theory. A pertinent one is the provision for purchase by the United States of a project. § 14. In addition, the reasons for prescribing an “original cost” system are almost identical with those described in American Tel. & Tel. Co. v. United States, supra, 299 U. S. 238, 239, 57 S.Ct. 170, 81 L.Ed. 142, referring to telephone companies. Consideration of these reasons leads, we think, to but one sound conclusion which is that a reasonable man could believe that such reasons warranted the system of accounts involved here. Since we have reached that conclusion, the judicial function is exhausted.
With respect to the interest item required to be eliminated from petitioner’s accounts, petitioner contends that the Commission’s system specifically authorizes the inclusion of such items; that uniformity is flouted by elimination of the item; and that the contention that inclusion would improperly disturb the finality of past accounting is refuted by the Commission’s action with respect to the common-stock item.
There is no contention that the interest item could not have been properly included in the accounts at the time when they were born. Respondent’s view is that the system it prescribed contemplated reclassification of old accounts in order that those items which did not represent “original cost” could be eliminated or corrected, and that the system did not, does not, and should not contemplate the inclusion of items which had never appeared on the old accounts. The Commission, having power to prescribe a system, likewise has power to determine the extent of the system. In determining the extent of the system, the Commission reached the conclusion that “retroactive accounting for indefinite periods in the past” would lead to chaos in accounting rather than to a desired end of finality. We think a reasonable man could take that view, and therefore the order, with respect to that item must be sustained.
With respect to the common-stock item, a rehearing of the Commission’s order was granted but not decided. Until decided there is no order” to review here. Federal Power Comm. v. Metropolitan Edison Co., 304 U.S. 375, 383, 58 S.Ct. 963, 82 L.Ed. 1408.
Affirmed.
The report mentioned was actually a joint report of respondent and the Public Utilities Commissioner of Oregon, the latter also participating in the investigation.
For discussion as to the title of the act see Montana Power Co. v. Federal Power Commission, 9 Cir., 112 F.2d 371, 373.
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_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. SHOTWELL MANUFACTURING CO. et al.
No. 1.
Argued October 17, 1957.
Decided December 16, 1957.
Philip Elman argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Leonard B. Sand and Joseph M. Howard.
George B. Christensen argued the cause for respondents. With him on the brief were Howard Ellis and William T. Kirby.
Mr. Justice Harlan
delivered the opinion of the Court.
This case presents an unusual question involving the integrity of a criminal trial in the federal courts.
The Solicitor General has filed a motion in this Court to remand the case to the District Court for further proceedings. This motion is based on a proffer of evidence alleged to have come into the possession of the Government after the United States had petitioned for certiorari to review a decision of the Court of Appeals setting aside the conviction of the respondents. It is claimed that such evidence shows that the decision of the Court of Appeals was based upon a perjurious record attributable to the fraud of the respondents.
A clear appreciation of both the proceedings in the lower courts and the peculiar circumstances in which the Government’s motion arises is essential to an understanding of why we believe the motion to remand must be granted.
In 1953 the respondents and Frank J. Huebner, after a jury trial in the United States District Court for the Northern District of Illinois, were convicted of willfully attempting to evade the 1945 and 1946 federal corporate income taxes of the Shotwell Manufacturing Company. Prior to trial they moved for dismissal of the indictment on the ground that their voluntary and timely disclosure of these tax derelictions to the taxing authorities entitled them to immunity from prosecution under the Treasury’s former “voluntary disclosure policy.” This motion was denied by the District Court after a pretrial hearing. Respondents and Huebner then moved, on the same ground, for suppression of the evidence obtained from them by the taxing authorities as a result of their alleged disclosure. After a further pretrial hearing, the District Court also denied this motion, later filing an opinion in which it found that the disclosure was not made in good faith.
On appeal, the Court of Appeals affirmed as to the dismissal motion but reversed as to the suppression motion, set aside the convictions, and remanded the case for a new trial. 225 F. 2d 394. The Court of Appeals found that the respondents’ disclosure was bona fide, and also ruled that the disclosure was timely, an issue which the District Court had not reached. The Government petitioned us for certiorari on the suppression issue and the respondents and Huebner cross-petitioned on the dismissal issue. Thereafter, the Government filed its motion to remand, on which, as later amended and supplemented, respondents and Huebner joined issue by the filing of answers. Considering that the matters presented by the motion to remand raised an important issue affecting the proper administration of justice in the federal courts, we granted the Government’s petition for certiorari, “limited to the issues raised in the amended motion to remand and supplement thereto and the respondents’ answer to the amended motion to remand.” 352 U. S. 997. We denied the cross-petition for certiorari. 352 U. S. 998.
For an understanding of the significance of the newly discovered evidence proffered by the Government some knowledge is required of the position taken by the defendants in the District Court on the suppression issue. The substance of that position was presented by Leon J. Busby, Shotwell’s accountant, who testified at both the hearing on the motion to suppress and at the trial. He stated that the Shotwell Company in each of the years 1945 and 1946 had received substantial cash payments for black-market candy sales above O. P. A. ceiling prices; that these receipts were not recorded on Shotwell’s books and were not reported in its income tax returns; that he first learned of these facts in the course of conversations with H. Stanley Graflund, Shotwell’s comptroller, during a trip they took to New York early in January 1948; that immediately upon his return to Chicago he discussed the matter with respondents Cain and Sullivan; that he recommended disclosing the omissions to the taxing authorities; and that, at the direction of respondents, he revealed the entire affair to Ernest J. Sauber, Deputy Collector in Chicago, in a series of conferences beginning in the latter part of January 1948, at one or more of which conferences he was accompanied by Cain. He also testified that thereafter, acting under Sauber’s instructions and assurances that only a civil liability was involved, he and his staff, with the assistance of Cain, Huebner and Graflund, conducted an exhaustive investigation over a period of several months to reconstruct the Shotwell figures on the black-market transactions. He said that these figures were furnished in August 1948 to a revenue agent for scrutiny.
Sauber and Cain gave similar testimony, except that Sauber fixed Busby’s first visit to him at about the middle of March 1948. Cain’s explanation of Shot-well’s failure to report the black-market receipts in its income tax returns was that he believed such receipts were not taxable since they were used by Shotwell to purchase black-market supplies and therefore gave rise to no profit.
In support of its motion the Government has filed with the Court the affidavits of Huebner and Graflund, which they executed after the Government filed its petition for certiorari. These affidavits paint a sharply different picture of the entire affair; indeed, they flatly contradict the tale unfolded on behalf of the respondents in the District Court. More specifically: (1) Graflund swears that the first time he discussed the black-market transactions with Busby was at Busby’s home in late June 1948, at which time Busby gave no indication that he had previously known of these transactions; (2) Graflund and Huebner swear that at no time prior to a meeting held in July 1948 were they ever advised or led to believe by respondents that Shotwell’s black-market receipts had been disclosed to the Treasury; (3) Huebner swears that it was at this July 1948 meeting that Cain first told him that a voluntary disclosure would be made, and that Cain also gave him to understand that it had been “agreed” that the date of the disclosure “would be set at June 15, 1948”; (4) Graflund and Huebner swear that prior to the middle of July 1948 no work was done by anyone to assemble records or data for the purpose of making a disclosure to the tax authorities, and that, the alleged offsetting payments for black-market supplies were in fact concocted “out of thin air” at the July meeting; and (5) Huebner swears that in July and August 1948 he gave Cain $10,000 which Cain said he needed “to fix the tax difficulty we were in.” Huebner says in his affidavit that he was not asked to testify in the District Court “because I had stated I would not lie on the stand.”
It is obvious that the Government’s new evidence casts the darkest shadow upon the truthfulness of the disclosure testimony given by or on behalf of the respondents in the District Court. If true, it indicates that what the respondents have sought to represent in the District Court, the Court of Appeals, and in this Court as a voluntary disclosure, made in a timely manner and in good faith, was instead but a further step in a conspiracy to “fix” Shotwell’s tax difficulties, possibly involving the corruption of government officials, and certainly entailing an attempt to perpetrate a fraud upon the courts. Were we to undertake to review the Court of Appeals upon a record as suspect as this, we might very well be lending ourselves to the consummation of a fraud which may already have made the Court of Appeals its unwitting victim. In these circumstances it is imperative that the case be remanded to the District Court for a full exploration of where the truth lies before the case is allowed to proceed further. The integrity of the judicial process demands no less.
The path to our decision is clearly marked by this Court's actions and pronouncements in two recent cases, Communist Party v. Subversive Activities Control Board, 351 U. S. 115, and Mesarosh v. United States, 352 U. S. 1. In each case the Court refused to consider the questions presented for review in the face of a challenge to the integrity of the record based on newly discovered evidence. In Communist Party the Court remanded the case to the Board with directions to resolve the charges of taint, and to make a fresh determination on the merits, if taint were found. In Mesarosh the Court, believing that the record clearly demonstrated that a key government witness had been wholly discredited, took more drastic action by reversing the convictions of the petitioners and remanding the case to the District Court for a new trial. The basic reason for the Court’s action in both cases was made manifest in its opinions. In Communist Party, supra, at pp. 124-125, the Court said:
“The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U. S. 332. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted. . . . We cannot pass upon a record containing such challenged testimony. We find it necessary to dispose of the case on the grounds we do, not in order to avoid a constitutional adjudication but because the fair administration of justice requires it.”
In Mesarosh, supra, at p. 14, the Court said:
“This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. [Citing McNabb, supra, in a footnote.] If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity.”
A convincing showing is of course necessary to bring these principles into play. We think that such a showing has been made here. The newly discovered evidence contained in the affidavits from the prospective witnesses Graflund and Huebner cuts to the very heart of the testimony adduced by respondents to show that they made a timely and bona fide disclosure to the Treasury, the sole issue involved in the suppression hearings and the issue on which the outcome of the case in the Court of Appeals turned. It is plain that either the testimony in the District Court was untrue or these affidavits themselves are the product of fraud. This is a matter for the District Court to determine. One thing is clear. This Court cannot be asked to review the decision of the Court of Appeals until these charges have been resolved.
In both the Communist Party and Mesarosh cases, supra, the action of the Court enured to the benefit of the defendants. In this instance the further proceedings below may work to the advantage of the Government. In the circumstances of this case we think that the distinction makes no difference. Because they were found guilty by the jury, respondents concede, as they must, that the motion to remand involves no question of double jeopardy. See United States v. Ball, 163 U. S. 662, 672. Their objection that it is “unfair” to allow the Government at this stage of the proceedings to “bolster” the record relating to the suppression issue is likewise unacceptable. It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence. We think that in the peculiar circumstances of this case the fair administration of justice requires that the Government should have a similar opportunity here. For if the Government’s evidence is found to be true, it would then appear that the Court of Appeals’ decision setting aside the verdict was obtained by the respondents on a corrupt record attributable to their own fraud. In the further proceedings in the District Court the respondents will of course have a reciprocal opportunity to sustain the validity of their asserted voluntary disclosures.
We should not lose sight of the fact that the Government’s new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence. Hence, to grant the Government’s motion is not to permit it to “bolster” the evidence upon which the verdict of guilty was returned by the jury in this case. That verdict clearly must stand or fall on the sufficiency of the evidence already introduced at the trial.
In these circumstances, acceptance of the respondents’ position on this motion would be tantamount to sanctioning a rule which would prohibit appellate review upon a record suspect of taint, if the taint might operate to the disadvantage of the defendants, but which would nevertheless require review if the taint might operate to their advantage. We cannot subscribe to that quixotic result. The fair administration of justice is not such a one-way street.
The respondents contend that the motion to remand should originally have been addressed to the Court of Appeals, and that we should now send the Government back to that court. This contention is essentially one addressed to our discretion, and in the circumstances of this case we find it unavailing. The Government was not in a position to make the motion until after its petition for certiorari had been filed in this Court. The course of this litigation has already been protracted. We are abundantly satisfied that the charges as to the integrity of the record must be fully aired, and that the proper forum for this is the District Court because of its intimate familiarity with the record and its facilities for sifting controverted facts. In this state of affairs we think that it would be both unnecessary and wasteful to remit the Government to the Court of Appeals. Cf. Mesarosh, supra, at p. 13.
We conclude with a word about the nature of the further proceedings in the District Court. The additional evidence to be presented by both sides will be confined to the suppression issue. The District Court will make such new findings of fact on this issue as may be appropriate in light of the further evidence and the entire existing record (see Carroll v. United States, 267 U. S. 132, 162), including findings on the question of the timeliness of respondents’ alleged disclosures. If the District Court decides, on the basis of its new findings, to adhere to its original decision on the motion to suppress, it will then enter new final judgments based upon the record as supplemented by its new findings, thereby preserving to all parties the right to seek further appellate review, including respondents’ right to have reviewed by the Court of Appeals alleged errors in the original trial which that court did not reach in the previous appeal. If, on the other hand, the District Court concludes after the further proceedings that the motion to suppress should have been granted, it would then become its duty to accord the respondents a new trial.
In accordance with the views set forth in this opinion, we make the following disposition of this case: (1) this Court’s order of February 25, 1957, which granted with limitations the Government’s petition for certiorari, is vacated and such petition is granted without restriction; (2) the judgment of the Court of Appeals is vacated; and (3) the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Internal Revenue Code of 1939, § 145(b), 53 Stat. 63. The Shotwell Company manufactured candy and marshmallows. Cain was President, Sullivan, Executive Vice President and General Counsel, and Huebner, Vice President. Huebner is no longer a respondent here. See notes 6 and 7, infra.
Under that policy, first announced by the Treasury Department in 1945, the Department did not refer to the Department of Justice for prosecution cases of intentional income tax evasion where the taxpayers had made a clean breast of things to the Treasury before any investigation had been initiated by the Revenue Service! This policy was set forth in various informal announcements by Treasury officials, but was never formalized by statute or regulation. The policy was abandoned in January 1952.
The propriety of this pretrial procedure is not before us.
The Court of Appeals did not pass on other contentions made by the respondents in support of a reversal of their conviction.
More specifically, the Court of Appeals held that there was an effective voluntary disclosure and that the Government’s use of the evidence thereby obtained from the respondents violated their rights under the Self-Incrimination Clause of the Fifth Amendment. The District Court simply held that the alleged voluntary disclosure was defective, and did not discuss the Fifth Amendment. In the present posture of this case we do not reach the correctness of these rulings of the two lower courts, or any other question going to the merits of the respondents’ conviction.
We deferred consideration of the petition and cross-petitions for certiorari for some months on the basis of representations made by the Solicitor General in his letters of December 6, 1955, and June 1, 1956, which culminated in the filing of the Government’s motion to remand. See 351 U. S. 980. As originally filed, the cross-petition was conditional on the Government’s petition being granted. After the Government moved to remand, respondents withdrew the conditional limitation, and Huebner withdrew his cross-petition in its entirety.
Huebner later withdrew his answer and consented to the Government’s motion.
Respondents point out that this limitation of our writ in effect amounted to a denial of the Government’s petition for certiorari, and therefore that the motion to remand, which was not before the Court of Appeals, must be regarded as an attempt to invoke an original jurisdiction which we do not possess. We shall dispose of respondents’ point by vacating our limited writ and granting, nunc pro tunc, the Government’s petition for certiorari, without restriction. This removes all question as to our jurisdiction, 28 U. S. C. § 2106 ; Mesarosh v. United States, 352 U. S. 1, and prejudices neither party because we shall decide only the issues raised by the motion to remand.
Respondents have made no such showing in opposition to the Government’s motion as would justify our questioning the accuracy of the Solicitor General’s representation that the Government’s proffered evidence is “newly discovered.”
The Government puts the figure at some $380,000; the respondents’ figure is about $160,000.
Except for the amount of $6,000 which was reported -in the Shotwell returns.
Although the Treasury policy at the time denied deductibility to such black-market expenditures, the courts later held that this kind of expenditure was deductible. See Sullenger v. Commissioner, 11 T. C. 1076.
According to Graflund’s affidavit, it would appear that the respondents were spurred into action after Sam Krane, a Special Agent of the Internal Revenue Service, visited the Shotwell office on June 21, 1948. The affidavit states that Krane requested records and information relating to Shotwell’s transactions with one David G. Lubben, from whom Shotwell had been receiving large sums of money which were not recorded in its regular books; that Graflund made certain records available to Krane and was “criticized” by the respondents for having done so; and that Graflund conferred with Busby within a few days after Krane’s visit.
In his affidavit Huebner states: “On November 13, 1952, Sauber testified at the hearing on the defendant’s motion to suppress evidence that Busby and Cain had contacted him in March, 1948. After hearing Sauber testify, I told Cain I thought the voluntary disclosure date was supposed to be June 15, 1948. Cain said to me, ‘Ssshhh! There is nobody that knows anything about this. Keep quiet.’ ”
The Solicitor General represents that if the motion to remand is granted Revenue Agent Joseph M. Lima will testify that on July 30, 1948 he was instructed by his Group Supervisor, Ralph Johnson, to make an immediate audit of Shotwell’s 1946 return; that thereafter he was instructed by Johnson to allow (as offsets) over-ceiling purchases totaling more than $300,000, which were wholly unsubstantiated and whose allowance was contrary to the existing Revenue Service policy; and that he then prepared a report showing a tax deficiency for 1945 and 1946 of about $20,000, which report he destroyed at Johnson’s direction in September 1948, after the Intelligence Unit of the Service had made inquiries about the case. In this connection Huebner states in his affidavit:
“Cain also told me, sometime in about late July, 1948, that he was about to settle the tax case. Shortly thereafter, Cain told me he had settled the tax case for a tax deficiency of $20,000.00.
“In October, 1948, Busby told me that there had been a meeting in the fraud division at the Internal Revenue office and that hell had broken loose; that some Internal Revenue people had a heck of a time destroying papers that had been made up for the purpose of billing Shotwell for taxes.”
See note 15, supra.
Section 14 (a) of the Subversive Activities Control Act expressly authorizes courts of appeals to remand cases to the Board for the taking of further evidence. 64 Stat. 987, at 1001-1002. Our authority to act in similar fashion is found in the broad provisions of 28 U. S. C. § 2106, which grants us power, incident to our appellate jurisdiction, to "vacate . . . any judgment” brought “before [us] for review” and to “require such further proceedings to be had as may be just under the circumstances.”
The Government does not concede the correctness of the Court of Appeals’ decision upon the existing record. Cf. United States v. Johnson, 327 U. S. 106, 111, 112.
Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury. Rather their contention has been that the judge should have sustained the motion to suppress.
It has also been suggested that these charges of fraud could be dealt with at the new trial which the Court of Appeals has ordered. But as the Court of Appeals has directed suppression of the evidence obtained by the Government as a result of the alleged voluntary disclosure, it seems clear that at the new trial the Government could not use that evidence, or the fruits thereof, unless the “suppression” aspect of the judgment of the Court of Appeals is vacated. We think that the sound administration of justice precludes that course because, if the Government's evidence is true, the net effect would be to grant the respondents a new trial, not otherwise justified, procured by their own fraud.
Respondents have contended that the Government’s new evidence is irrelevant to the issue of timeliness because, even assuming its truth, the disclosure was timely since no formal investigation was initiated by the Revenue Service until after July 1948, the time that the Government’s new evidence indicates that the respondents first communicated with the Treasury. We find it unnecessary to deal with this contention because the new evidence is in any event clearly relevant to the question whether a bona fide disclosure was in fact ever made. Moreover, in the present state of the record this Court should not pass on respondents’ argument as to timeliness because (a) the District Court has not yet made a finding on this issue, and (b) the Treasury “voluntary disclosure policy” was never formulated with sufficient precision to enable us to apply it mechanically.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
MOBAY CHEMICAL CORP. v. COSTLE, ADMINISTRATRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
No. 78-308.
Decided January 8, 1979
Per Curiam.
Appellant contends that the use of one submitter’s data, filed prior to 1970, in the consideration of another person’s application for registration of pesticides under § 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as added by the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 979, and as amended, 89 Stat. 755, 7 U. S. C. § 136a, effects a taking for private use and without compensation in violation of the Fifth Amendment to the Constitution and that the Act is to that extent invalid. A three-judge court was convened under former 28 U. S. C. § 2282 (1970 ed.) and proceeded to reject these contentions. Appellant seeks to appeal directly to this Court. Having examined the Act and the papers before us, however, we are convinced that whatever may be true with respect to data submitted after January 1, 1970, the FIFRA, as amended, does not at all address the issues of the conditions under which pre-1970 data may be used in considering another application. It neither authorizes, forbids, nor requires the existing agency practice with respect to pre-1970 data. As a legal matter, then, appellant’s attack is on agency practice, not on the statute. The three-judge court was thus improperly convened, William Jameson & Co. v. Morgenthau, 307 U. S. 171, 173-174 (1939), and this Court does not have jurisdiction to entertain a direct appeal from the judgment in such case. See 28 U. S. C. § 1253; Norton v. Mathews, 427 U. S. 524, 528-530 (1976). The appeal is accordingly dismissed for want of jurisdiction.
So ordered.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
ARIZONA v. MAURO
No. 85-2121.
Argued March 31, 1987
Decided May 4, 1987
Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Black-mun, JJ., joined, post, p. 530.
Jack Roberts, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the brief were Robert K. Corbin, Attorney General, Georgia B. Ellexson, Assistant Attorney General, William J. Schafer III, and John Verkamp.
Kathleen Kelly Walsh argued the cause and filed a brief for respondent.
Justice Powell
delivered the opinion of the Court.
While respondent in this case was in police custody, he indicated that he did not wish to answer any questions until a lawyer was present. The issue presented is whether, in the circumstances of this case, officers interrogated respondent in violation of the Fifth and Fourteenth Amendments when they allowed him to speak with his wife in the presence of a police officer.
I
On November 23, 1982, the Flagstaff Police Department received a telephone call from a local K mart store. The caller stated that a man had entered the store claiming to have killed his son. When officers reached the store, respondent Mauro freely admitted that he had killed his son. He directed the officers to the child’s body, and then was arrested and advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U. S. 436 (1966). The officers then took Mauro to the pólice station, where he was advised of his Miranda rights again. At that point, Mauro told the officers that he did not wish to make any more statements without having a lawyer present. All questioning then ceased. As no secure detention area was available, Mauro was held in the office of the police captain.
At the same time, one of the officers, Detective Manson, was questioning Mauro’s wife in another room. After she finished speaking with Manson, Mrs. Mauro asked if she could speak to her husband. Manson was reluctant to allow the meeting, but after Mrs. Mauro insisted, he discussed the request with his supervisor, Sergeant Allen. Allen testified that he “saw no harm in it and suggested to [Manson] that if she really sincerely wanted to talk to him to go ahead and allow it.” App. 74. Allen instructed Manson not to leave Mr. and Mrs. Mauro alone and suggested that Manson tape-record the conversation.
Manson then “told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on.” Id., at 218 (findings of trial court). He brought Mrs. Mauro into the room and seated himself at a desk, placing a tape recorder in plain sight on the desk. He recorded their brief conversation, in which she expressed despair about their situation. During the conversation, Mauro told his wife not to answer questions until a lawyer was present.
Mauro’s defense at trial was that he had been insane at the time of the crime. In rebuttal, the prosecution played the tape of the meeting between Mauro and his wife, arguing that it demonstrated that Mauro was sane on the day of the murder. Mauro sought suppression of the recording on the ground that it was a product of police interrogation in violation of his Miranda rights. The trial court refused to suppress the recording. First, it explained the basis of the officers’ decision to allow Mrs. Mauro to meet with her husband in the presence of a policeman:
“The police counseled [Mrs. Mauro] not to [speak with her husband], but she was adamant about that. They finally yielded to her insistent demands. The Police Station lacked a secure interview room. The police justifiably appeared [sic] for Mrs. Mauro’s . . . safety, and they were also concerned about security, both in terms of whether Mr. and Mrs. Mauro might cook up a lie or swap statements with each other that shouldn’t have been allowed, and whether some escape attempt might have been made, or whether there might have been an attempt to smuggle in a weapon. They really had no idea what to expect along those lines.” Ibid.
In light of these justifications, the trial court found “that this procedure was not a ruse, nor a subterfuge by the police. They did not create this situation [i. e., allowing the meeting] as an indirect means of avoiding the dictates of Miranda.” Ibid. Accordingly, the trial court admitted the evidence. Mauro was convicted of murder and child abuse, and sentenced to death.
The Arizona Supreme Court reversed. 149 Ariz. 24, 716 P. 2d 393 (1986). It found that by allowing Mauro to speak with his wife in the presence of a police officer, the detectives interrogated Mauro within the meaning of Miranda. This interrogation was impermissible, the court said, because Mauro previously had invoked the right to have counsel present before being questioned further. The court noted that both detectives had acknowledged in pretrial hearings that they knew it was “possible” that Mauro might make incriminating statements if he saw his wife. The court relied on our statement in Rhode Island v. Innis, 446 U. S. 291 (1980), that interrogation includes a “practice that the police should know is reasonably likely to evoke an incriminating response from a suspect,” id., at 301. The court then concluded that the officers’ testimony demonstrated that there had been interrogation, because “[t]hey both knew that if the conversation took place, incriminating statements were likely to be made.” 149 Ariz., at 31, 716 P. 2d, at 400. Therefore, it held that the tape recording was not properly admitted at Mauro’s trial.
Arizona filed a petition for a writ of certiorari. Because the decision below appeared to misconstrue our decision in Rhode Island v. Innis, supra, we granted the petition, 479 U. S. 811 (1986). We now reverse.
HH 1 — 1
We begin by summarizing the relevant legal principles. The Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U. S. 436 (1966), the Court concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. ” Id., at 467. “Accordingly, the Court formulated the now-familiar ‘procedural safeguards effective to secure the privilege against self-incrimination.’” Colorado v. Spring, 479 U. S. 564, 572 (1987) (quoting Miranda v. Arizona, supra, at 444). Among these is the rule that when an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S. 477, 484-485 (1981).
One of the questions frequently presented in cases in this area is whether particular police conduct constitutes “interrogation.” In Miranda, the Court suggested in one passage that “interrogation” referred only to actual “questioning initiated by law enforcement officers.” 384 U. S., at 444. But this statement was clarified in Rhode Island v. Innis, supra. In that case, the Court reviewed the police practices that had evoked the Miranda Court’s concern about the coerciveness of the “‘interrogation environment.’” 446 U. S., at 299 (quoting Miranda, supra, at 457). The questioned practices included “the use of lineups in which a coached witness would pick the defendant as the perpetrator . . .[,] the so-called ‘reverse line-up’ in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime,” and a variety of “psychological ploys, such as to ‘posi[t]’ ‘the guilt of the subject,’ to ‘minimize the moral seriousness of the offense,’ and ‘to cast blame on the victim or on society.’” 446 U. S., at 299 (quoting Miranda, supra, at 450) (brackets by Innis Court). None of these techniques involves express questioning, and yet the Court found that any of them, coupled with the “interrogation environment,” was likely to “‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” 466 U. S., at 399 (quoting Miranda, supra, at 457). Thus, the Innis Court concluded that the goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to “its functional equivalent.” 446 U. S., at 301. The Court explained the phrase “functional equivalent” of interrogation as including “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Ibid, (footnotes omitted). Finally, it noted that “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Ibid.
1 — 1 I — I hH
We now turn to the case before us. The officers gave Mauro the warnings required by Miranda. Mauro indicated that he did not wish to be questioned further without a lawyer present. Mauro never waived his right to have a lawyer present. The sole issue, then, is whether the officers’ subsequent actions rose to the level of interrogation — that is, in the language of Innis, whether they were the “functional equivalent” of police interrogation. We think it is clear under both Miranda and Innis that Mauro was not interrogated. The tape recording of the conversation between Mauro and his wife shows that Detective Manson asked Mauro no questions about the crime or his conduct. Nor is it suggested — or supported by any evidence — that Sergeant Allen’s decision to allow Mauro’s wife to see him was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation.
There is no evidence that the officers sent Mrs. Mauro in to see her husband for the purpose of eliciting incriminating statements. As the trial court found, the officers tried to discourage her from talking to her husband, but finally “yielded to her insistent demands,” App. 218. Nor was Detective Manson’s presence improper. His testimony, that the trial court found credible, indicated a number of legitimate reasons — not related to securing incriminating statements — for having a police officer present. See supra, at 523-524 (quoting App. 218). Finally, the weakness of Mauro’s claim that he was interrogated is underscored by examining the situation from his perspective. Cf. Rhode Island v. Innis, 446 U. S., at 301 (suggesting that the suspect’s perspective may be relevant in some cases in determining whether police actions constitute interrogation). We doubt that a suspect, told by officers that his wife will be allowed to speak to him, would feel that he was being coerced to incriminate himself in any way.
The Arizona Supreme Court was correct to note that there was a “possibility” that Mauro would incriminate himself while talking to his wife. It also emphasized that the officers were aware of that possibility when they agreéd to allow the Mauros to talk to each other. But the actions in this case were far less questionable than the “subtle compulsion” that we held not to be interrogation in Innis. See id., at 303. Officers do not interrogate a suspect simply by hoping that he will incriminate himself. In Miranda, and again in Innis, the Court emphasized:
“Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, 384 U. S., at 478, quoted in Rhode Island v. Innis, supra, at 299-300.
See Oregon v. Elstad, 470 U. S. 298, 305 (1985). (“‘[F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable’” (quoting United States v. Washington, 431 U. S. 181, 187 (1977))). Mauro was not subjected to compelling influences, psychological ploys, or direct questioning. Thus, his volunteered statements cannot properly be considered the result of police interrogation.
In deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. The government actions in this case do not implicate this purpose in any way. Police departments need not adopt inflexible rules barring suspects from speaking with their spouses, nor must they ignore legitimate security concerns by allowing spouses to meet in private. In short, the officers in this case acted reasonably and lawfully by allowing Mrs. Mauro to speak with her husband. In this situation, the Federal Constitution does not forbid use of Mauro’s subsequent statements at his criminal trial.
I — I <!
The judgment of the Arizona Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The entire conversation proceeded as follows:
“MRS. MAURO: Please — please, I don’t know what to do. We should have put David [the victim] in the hospital. Please — I don’t know what we’re going to do. We should have went for help — we should have went for help.
“[MR. MAURO]: You tried as best you could to stop it.
“MRS. MAURO: I-
“[MR. MAURO]: Shut up.
“MRS. MAURO: —taken him to a mental hospital or something. What’ll we do?
“[MR. MAURO]: Shut up.
“DET. MANSON: Do you know a reverend or a priest or someone you can talk to — take care of David?
“MRS. MAURO: No.
“[MR. MAURO]: Don’t answer questions until you get rights of attorney before you find out whats [sic] going on. You tried to stop me as best you can. What are you going to do, kill me? You tried the best you can to stop me.
“MRS. MAURO: I don’t — we don’t — I don’t have money.
“[MR. MAURO]: There’s a public attorney.
“MRS. MAURO: I don’t know.
“[MR. MAURO]: There’s a public attorney. Why don’t you just be quiet.
“MRS. MAURO: I don’t have any money to bury him. I don’t have any money. All I got is enough money for the rent for the children and that’s it.
“DET. MANSON: Did you want to talk to your husband any more?
“MRS. MAURO: No, I can’t talk to him.
“[MR. MAURO]: Then don’t talk to me — get out.
“MRS. MAURO: I don’t know what to do. O.K.”
149 Ariz. 24, 30-31, 716 P. 2d 393, 399-400 (1986).
The court relied on testimony of the officers at the hearing in the trial court on the suppression motion. Sergeant Allen testified as follows:
“Q. [C]ertainly when you sent an officer in there to listen to that conversation, you knew that it was possible that he might make incriminating statements?
“A. That’s correct.
“Q. And obviously, you wanted to record that conversation so as to have a record of those incriminating statements.
“A. That’s correct.” Id., at 30, 716 P. 2d, at 399. Detective Manson’s testimony was as follows:
“Q. [Detective Manson], certainly you were aware that during the conversation either [Mrs. Mauro] or my client may have given an incriminating statement?
“A. Yes.
“Q. And obviously one of the purposes of your tape recording the interview was to take down any such statements?
“A. Yes, sir.” Ibid.
In Malloy v. Hogan, 378 U. S. 1 (1964), the Court held that the Fourteenth Amendment requires observance of this privilege in state-court proceedings.
In the course of the conversation, that apparently lasted only a few minutes, Manson made two statements, both apparently directed at Mauro’s wife. See n. 1, supra.
Justice Stevens suggests that the officers “employed a powerful psychological ploy.” Post, at 531. He bases this statement on his reading of the record that the officers “failed to give respondent any advance warning that Mrs. Mauro was coming to talk to him, that a police officer would accompany her, or that their conversation would be recorded.” Ibid. This reading is difficult to reconcile with the trial court’s conclusion that the officers “told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on.” App. 218. This sentence seems to indicate that Mauro received advance warning. But accepting the facts as Justice Stevens states them, the opinion still makes it clear that Mauro was fully informed before the conversation began. Similarly, it may be that the officers did not give Mr. Mauro advance warning that they would record the eonversation, but the trial court noted that “[t]he officer who was present produced a tape recorder and told the couple that their conversation would be recorded and put that tape recorder down on the desk in plain sight and taped their conversation, so they had knowledge that that was going on.” Ibid. Justice Stevens also implies that respondent was forced against his will to talk to his wife. Post, at 581. But, as the trial court observed, “[t]he defendant, with knowledge that the police were listening, could have chosen not to speak to his wife. Instead, he chose to speak.” App. 219. In short, the trial court’s findings completely rebut the atmosphere of oppressive police conduct portrayed by the dissent.
The dissent suggests that the Arizona Supreme Court found as a fact that the officers intended to interrogate Mauro and faults us for reversing this allegedly factual finding. With due respect, we disagree with this reading of the record. The Arizona Supreme Court did not conclude that the officers intended to interrogate Mauro. Rather it concluded that “[t]hey both knew that . . . incriminating statements were likely to be made.” 149 Ariz., at 31, 716 P. 2d, at 400. Taken in context, this is a determination that the facts known to the officers satisfied the legal standard we established in Rhode Island v. Innis. Our decision today does not overturn any of the factual findings of the Arizona Supreme Court. Rather, it rests on a determination that the facts of this case do not present a sufficient likelihood of incrimination to satisfy the legal standard articulated in Miranda v. Arizona and in Rhode Island v. Innis.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genapel2
|
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 second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Mrs. Mary Ellen PRITCHARD, Wife of Charles C. Pritchard, et al., Appellants, v. Robert C. DOWNIE, Administrator of the Estate of Eugene G. Smith, Appellee.
No. 17389.
United. States Court of Appeals Eighth Circuit.
Jan. 21, 1964.
Sidney W. Provensal, Jr., New Orleans, La., for appellant.
Winslow Drummond, of Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., Robert S. Lindsey, and Joseph C. Kemp, Little Rock, Ark., for appellee.
Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
The nine plaintiffs involved in these eight suits brought against Eugene G. Smith, Chief of Police of the City of Little Rock, Arkansas, have appealed from final judgment dismissing their complaints. These eight cases were consolidated for trial and were tried to the court on the merits. Judge Young’s opinion, setting forth his findings of fact with respect to each plaintiff’s claim and the reasons why all of the actions should be dismissed, is reported at 216 F.Supp. 621.
Plaintiffs’ causes of action are based upon alleged violation of their federally protected civil rights, particularly those of free speech and assembly. All of the plaintiffs except Mrs. Sosebee claim they were wrongfully arrested and taken into custody on August 12, 1959. Some plaintiffs claim that unnecessary force was used in connection with their arrests. Plaintiffs assert they were falsely imprisoned and denied the opportunity to promptly post bail and that the plaintiffs who were minors should have been taken to the juvenile court rather than being temporarily lodged in jail.
On August 12, 1959, the Little Rock schools were being reopened on an integrated basis. Much of the background with respect to the serious difficulties encountered in connection with the attempt to integrate the Little Rock schools is set out in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, and cases there cited. Plaintiffs at the time of their arrests were part of a group of some 200 people who had assembled initially at the State Capitol, had a meeting there, and then pursuant to a preconceived plan previously published in the newspapers marched toward the school. Their activities met with no interference or resistance until they reached an intersection about a block from the school where they were confronted by a police line and told to disperse and leave the street. Some of the group complied but plaintiffs continued what the court aptly describes as “an unlawful and riotous assembly.”
Judge Young’s well-considered opinion carefully summarizes his findings with respect to the activity of each of the plaintiffs. We have carefully examined the extensive record containing some 687 pages. Much of the testimony is conflicting. No purpose will be served in discussing the evidence in detail. Judge Young in his opinion has very satisfactorily demonstrated that substantial evidence supports his finding that probable cause existed for the arrest of each of the plaintiffs and the further finding that only the minimum force necessary to effect the arrest was made in the situations where plaintiffs resisted arrest.
The only ease cited by plaintiffs in support of reversal in their entire brief is that of Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Said case is cited in support of plaintiffs’ contention that their right of free speech and peaceful assembly guaranteed by the First Amendment and protected by the Fourteenth Amendment from invasion by the states has been abridged. It is quite true that the Supreme Court in Edwards, upon the basis of the facts there presented, determined that the defendants' arrests and convictions on a state breach of peace charge infringed defendants’ federally protected rights of free assembly and free speech. The Court in Edwards, at page 236 of 372 U.S., at ¿age 683 of 83 S.Ct., distinguishes the case from Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267, and recognizes that the rights of free speech and assembly are subject to some reasonable limitations. In Feiner v. New York, the Court quoted from Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213, including the following:
“No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to. prevent or punish is obvious.” 340 U.S. 315, 320, 71 S.Ct. 303, 306.
And as a basis for sustaining a state conviction, states:
“It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. * * * The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.” 340 U.S. 315, 321, 71 S.Ct. 303, 306.
Our present ease is factually distinguishable from Edwards in a number of material respects. In Edwards the Court found that the state statute was ambiguous and that the activity was confined to the capítol grounds and that there was no violence or threat of violence. In our present case, subsequent to the assembly and meeting on the State House grounds, the marchers proceeded down the street for some twelve blocks and were stopped only when they reached the vicinity of the school, at which point some engaged in violence in an effort to break through the police line. Upon the basis of substantial evidence, the court was justified in finding the conduct of the marchers to be riotous.
Press releases had indicated an intention on the part of the marchers to go to the school ground where some of the mothers proposed to remove some of their children from the school. In the light of the history of the violent disturbances at the school in connection with the previous attempts to integrate, some of which are described in Cooper v. Aaron, supra, a rational basis existed for stopping the riotous mob before it reached the school ground. As the trial court clearly points out in its opinion, the plaintiffs in their forceful efforts to reach the school ground had in their riotous conduct violated one or more reasonable existing Arkansas statutes designed to meet such situations.
Moreover, in Edwards the appeal was from a conviction. Here the claim is false arrest. An arrest is justified if probable cause exists therefor. The burden of proving probable cause for arrest is considerably lighter than that involved in sustaining a conviction. The record shows that a large number of persons other than plaintiffs were arrested on this day. All were processed as rapidly as possible. All of the plaintiffs were released on bond. Some were released within an hour or two after the arrests and all were released from custody within five or six hours thereafter.
Some of the plaintiffs are juveniles. Complaint is made that they were taken to jail rather than to juvenile court and that this constitutes a denial of equal protection of the law. Plaintiffs have failed to point to any constitutional requirement or interpretative case holding that the placing of an arrested juvenile in jail for a few hours is a violation of his federal constitutional rights. Like the trial court, we find no cases supporting the minor plaintiffs’ contention that their short period of incarceration after their arrests constitutes a denial of any federal constitutional right.
Plaintiffs urge that the trial court committed error in receiving over their objection movies taken at the scene of arrest by newsmen and police officers and also some film showing 1957 demonstrations against integration. In admitting the film after its nature and method of assembly had been fully explained, the court stated:
“I realize the inherent defects of a film of that kind, taken by a number of people and which results in repetition. I think it has some value and I think I understand its limitations. Objection to it will be overruled.”
The sufficiency of preliminary proof to warrant the admission of a picture or a movie into evidence rests largely within the discretion of the trial court. The matter of editing of the film goes to the weight of the evidence and not its admissibility. Millers’ Nat’l Ins. Co. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 100. See McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566, 570.
The fact that the movie film contained a collection of pictures taken by a number of photographers and that it was repetitious and was edited was fully understood by the trial court. The pictures were exhibited to this court during oral argument. We are entirely satisfied that the court did not abuse its discretion in receiving the film in evidence. We are of the view that the court could not possibly have been misled or misguided by its viewing of the film. The oral testimony of the witnesses, apart from the movies, strongly supports the court’s findings. We have frequently stated that it is virtually impossible for a trial judge in a non jury case to commit reversible error by receiving incompetent evidence. Green v. Dingman, 8 Cir., 234 F.2d 547, 553; Builders Steel Co. v. Commissioner, 8 Cir., 179 F.2d 377, 379.
Inasmuch as what we have heretofore said requires an affirmance, we do not reach the question of whether the trial court correctly determined that Smith is liable only for his own acts and not for the independent acts of other police officers.
Our examination of the record and a full consideration of the errors urged as a basis for reversal leads us to the inescapable conclusion that the court committed no error in dismissing the complaints in each of the consolidiated actions.
Affirmed.
. Defendant Smith died after the commencement of these actions. His administrator has been subsituted as defendant. This court has heretofore held that the causes- of action survived, Pritchard v. Smith, 8 Cir., 289 F.2d 153, 88 A.L.R. 2d 1146, and that the administrator should be substituted as defendant. Downie v. Pritchard, 8 Cir., 309 E\2d 634.
. Mrs. Sosebee was not arrested. The court with respect to Mrs. Sosebee states that she was either pushed back by the police or knocked down inadvertently by an officer while he was trying to fend off an attacker. The court’s basis for dismissal of Mrs. Sosebee’s claim is thus stated: “The facts indicate that Mrs. Soseboe’s injuries if any, were negligible. In fact, she stated that after her fall she went back to the cux-b and stayed until the crowd dispersed. Chief Smith was in no way connected with Mrs. Sosebee’s fall.”
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_authoritydecision
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
SECURITIES AND EXCHANGE COMMISSION v. MEDICAL COMMITTEE FOR HUMAN RIGHTS
No. 70-61.
Argued November 10, 1971
Decided January 10, 1972
Solicitor General Griswold argued the cause for petitioner. With him on the briefs were Daniel M. Friedman, William Terry Bray, Philip A. Loomis, Jr., David Ferber, and Richard E. Nathan.
Roberts B. Owen argued the cause for respondent. With him on the brief was Michael Boudin.
Roger S. Foster and Charles R. Halpern filed a brief for the Project on Corporate Responsibility as amicus curiae urging affirmance.
MR. Justice Marshall
delivered the opinion of the Court.
The Medical Committee for Human Rights acquired by gift five shares of stock in Dow Chemical Co. In March 1968, the Committee’s national chairman wrote a letter to the company expressing concern over its policy with respect to the production and sale of napalm. The letter also requested that there be included in the company’s proxy statement for 1968 a proposal to amend Dow’s Certificate of Incorporation to prohibit the sale of napalm unless the purchaser gives reasonable assurance that the napalm will not be used against human beings. Dow replied that the proposal was too late for inclusion in the 1968 proxy statement and for discussion at that year’s annual meeting, but that it would be reconsidered the following year.
In an exchange of letters with Dow in 1969, the Committee indicated its belief that it had a right under Rule 14a-8 of the Securities and Exchange Commission, 17 CFR § 240.14a-8 (1970) (promulgated pursuant to § 14 (a) of the Securities Exchange Act of 1934, 48 Stat. 895, as amended, 15 U. S. C. § 78n (a)), to have its proposal included in the company’s proxy statement for consideration by all shareholders. On February 7, 1969, Dow responded that it intended to omit the proposal (somewhat modified) from the 1969 statement under the authority of subsections of the SEC Rule relied on by the Committee that permitted omission of shareholder proposals under two sets of circumstances:
§ 240.14a-8 (c) (2) — “If it clearly appears that the proposal is submitted by the security holder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the issuer or its management, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes”; or
§ 240.14a-8 (c) (5) — “If the proposal consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the ordinary business operations of the issuer.”
The Committee requested that Dow's decision be reviewed by the staff of the SEC. On February 18, 1969, the Chief Counsel for the Division of Corporation Finance wrote both Dow and the Committee to inform them that “this Division will not recommend any action to the Commission if this proposal is omitted from the management’s proxy material.” App. 21. The SEC Commissioners granted a request by the Committee that they review the Division’s decision and affirmed it. App. 43. The Committee then sought and obtained review of the Commission’s decision in the United States Court of Appeals for the District of Columbia Circuit.
On July 8, 1970, the Court of Appeals held that the decision of the SEC was reviewable under § 25 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78y (a); that while review of Dow’s decision was clearly available in district court, reviéw of the SEC’s decision could also be obtained in a court of appeals; that the validity of the Commission’s determination was extremely dubious, especially in light of its failure to state reasons supporting its conclusion; and that the case should be remanded to the Commission for reconsideration and a statement of reasons. 139 U. S. App. D. C. 226, 432 F. 2d 659. The Commission petitioned for review here, and we granted certiorari on March 22, 1971. 401 U. S. 973.
Events have taken place, subsequent to the decision by the court below, and some subsequent to our decision to grant certiorari, that require that we dismiss this case on the ground that it has now become moot. In January 1971, the Medical Committee again submitted its napalm resolution for inclusion in Dow’s 1971 proxy-statement. This time Dow acquiesced in the Committee’s request and included the proposal. At the annual stockholder’s meeting in May 1971, Dow’s shareholders voted on the Committee’s proposal. Less than 3% of all voting shareholders supported it, and pursuant to Rule 14a-8 (c)(4) (i), 17 CFR § 240.14a-8 (c) (4) (i), Dow may exclude the same or substantially the same proposal from its proxy materials for the next three years. We find that this series of events has mooted the controversy.
Respondent argues that it will continue to urge the adoption of the proposal and its inclusion in proxy statements, and that it is likely that Dow will reject inclusion in the future as it has in the past. It is true that in permitting the proposal to be included in the 1971 proxy statement Dow stated that it adhered to its opinion that the proposal might properly be omitted and that its inclusion was without prejudice to future exclusion. However, this does not create the controversy that is necessary for us to retain jurisdiction to decide the merits. Whether or not the Committee will actually resubmit its proposal or a similar one in 1974 is purely a matter of conjecture at this point, as is whether or not Dow will accept it. If Dow were likely to repeat its allegedly illegal conduct, the case would not be moot. See Walling v. Helmerich & Payne, 323 U. S. 37, 43 (1944); United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). However, in light of the meager support the proposal attracted, we can only speculate that Dow will continue to include the proposal when it again becomes eligible for inclusion, rather than to repeat this litigation. Thus, we find that "the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U. S. 199, 203 (1968). The case is therefore moot.
“[I]t is well settled that federal courts may act only in the context of a justiciable cáse or controversy.” Benton v. Maryland, 395 U. S. 784, 788 (1969). “Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” Liner v. Jafco, Inc., 375 U. S. 301, 306 n. 3 (1964); cf. Doremus v. Board of Education, 342 U. S. 429, 434 (1952).
Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court for dismissal.
MR. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_applfrom
|
B
|
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).
CITY OF ROMULUS, Fouad Berry, on behalf of themselves and the Citizens, Residents and Owners of Property within the City of Romulus, and those similarly situated, and The Romulus Community Schools Board of Education, Plaintiffs and Appellants, v. COUNTY OF WAYNE, The Board of County Road Commissioners of Wayne County, Claude S. Brinegar, Secretary of Transportation, Alexander Butterfield, Administrator of the F.A.A., Defendants and Appellees.
No. 76-1243.
United States Court of Appeals, Sixth Circuit.
Argued June 12, 1980.
Decided Nov. 6, 1980.
Jerrold A. Fadem, Michael M. Berger, Fadem, Berger, Mclntire & Norton, Santa Monica, Cal., for plaintiffs and appellants.
Aloysius J. Suchy, Corp. Counsel, George H. Cross, Chief Asst. Corp. Counsel, and David R. Kaplan, Asst. Pros. Atty., Detroit, Mich., for Wayne County.
John P. Cushman, Detroit, Mich., for Wayne Road Commissioners.
Edward S. Faggen, James A. Hourihan, Geo. U. Carneal, Allen R. Snyder, Washington, D.C., for F.A.A.
Before MERRITT, BROWN and JONES, Circuit Judges.
MERRITT, Circuit Judge.
The City of Romulus, Michigan, the Romulus school board and a Romulus citizen brought this action against the United States Transportation Secretary, the Federal Aviation Administrator and local governmental agencies that operate the Detroit Metropolitan Airport for an injunction to prevent construction of an additional $20 million, ten-thousand-foot, third parallel runway at the airport. The runway has now been completed, and the controversy over the construction of the runway is moot.
The federal defendants prepared an environmental impact statement under § 102 of the National Environmental Policy Act, 42 U.S.C. § 4332. The District Court found the statement inadequate and enjoined federal funding. 392 F.Supp. 578 (E.D.Mich. 1975). The federal defendants then supplemented the impact statement, and the District Court dissolved the injunction. The plaintiffs appeal from the dissolution order.
After a trial to determine the adequacy of the impact statement, the District Court granted a preliminary injunction prohibiting the federal defendants from funding or participating in the runway project “until the requirements of § 102 of NEPA are met.” The Court’s opinion set out in detail the reasons for the District Court’s findings, reasons which included the lack of statistical traffic information showing a need for another runway, the lack of adequate information about traffic congestion and delays in landing, and the lack of information about the effect of noise on nearby homes and schools.
The government then drafted and adopted a lengthy addendum to the impact statement and moved to dissolve the preliminary injunction. After hearing, the District Court dissolved the injunction. It found that the information and conclusions, as revised and supplemented, were now adequate.
The plaintiffs’ arguments on appeal do not address any question other than their claim that the District Court erred in dissolving the preliminary injunction and permitting construction of the runway to proceed. They argue that the government’s projections concerning future aircraft traffic are wildly inflated, that no analysis of costs or benefits was made, that the noise standard employed is improper, and that the government failed to reevaluate the project after drafting the addendum. Their entire argument on appeal is addressed to the claimed inadequacy of the environmental impact statement as revised and the government’s failure to evaluate the project properly. They have not addressed or argued any question regarding damages or injunctive relief other than the injunctive relief denied by the District Court when it dissolved its previous injunction preventing construction of the runway. Plaintiffs did not file a motion in this court or in the District Court for an injunction pending appeal. During the time that this appeal has been pending, the runway in question has been completed.
The government is correct in its claim that the issue presented on appeal-whether the District Court erred in dissolving its previous injunction preventing construction of the runway-is now moot in light of the fact that the runway is finished. The activities which plaintiffs seek to enjoin are over, and we are not in position to prevent what has already occurred. Plaintiffs may now have claims that the use of the runway should be restricted, that they should be awarded damages, or even that the runway should be abandoned. But these are not claims on which the District Court has ruled or that have been addressed to us on appeal. Plaintiffs have argued on appeal only that the District Court erred in declining to continue its injunction against construction of the runway. Any such injunction would now be ineffectual and beside the point. That issue is no longer live.
Plaintiffs do not argue that the government’s action in this case is capable of repetition yet evades review or that there is a specific or general threat that the government’s conduct may be repeated in such a way as to injure plaintiffs. Therefore, we apply the familiar principle that an action is moot where the activities sought to be enjoined have already occurred and can no longer be prevented. Ogunquit Village Corp. v. Davis, 553 F.2d 243 (1st Cir. 1977); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377 (9th Cir. 1978); In Matter of Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. 1977); Todd v. Joint Apprenticeship Committee, 332 F.2d 243 (7th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 880, 13 L.Ed.2d 800 (1965). In light of the fact that this appeal has become moot while on its way here and pending our decision on the merits, we vacate the orders of the District Court granting and dissolving the injunction preventing construction of the runway and remand the action to the District Court for appropriate further proceedings on any remaining issues not adjudicated by our decision here. For the effect of finding of mootness in cases where other issues may remain, see Diffenderfer v. Central Baptist Church, 404 U.S. 412, 415, 92 S.Ct. 574, 576, 30 L.Ed.2d 567 (1972).
Accordingly, it is so ordered.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_appel1_2_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
WES CHAPTER, FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION, AFL-CIO, Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees.
No. 16697.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 5, 1962.
Decided Nov. 15, 1962.
Mr. Isaac N. Groner, Washington, D. C., with whom Messrs. I. J. Gromfine, Washington, D. C., Herman Sternstein, New York City, and William B. Peer, Washington, D. C., were on the brief, for appellant.
Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellee National Mediation Board and certain other appellees. Mr. David C. Acheson, U. S. Atty., and Messrs. Nathan J. Paulson and Harold D. Rhynedance, Jr., Asst. U. S. Attys., at the time the brief was filed, were on the brief for appellee National Mediation Board and certain other appellees.
Mr. Tim L. Bornstein, Washington, D. C., for appellee Second Officers’ Association.
Mr. Donald K. Hall, Los Angeles, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Messrs. L. Welch Pogue, Washington, D. C., and Hugh W. Darling, Los Angeles, Cal., were on the brief, for appellee, Western Air Lines, Inc. Messrs. Calvin Davison and Robert H. Shorb, Washington, D. C., also entered appearances for appellee Western Air Lines, Inc.
Before FAHY, BASTIAN and BURGER, Circuit Judges.
FAHY, Circuit Judge.
The action in the District Court was to obtain a decree vacating orders, rulings, and the direction of an election made by the National Mediation Board, and for a declaratory judgment and injunctive relief. The plaintiff, now appellant, is WES Chapter, Flight Engineers International Association, AFL-CIO, hereinafter referred to as “the Association” or “the Union”. The District Court dismissed the action for failure to state a claim upon which relief could be granted. The court also granted the Board’s cross motion for summary judgment.
The Board proceedings under attack were held pursuant to Section 2, Ninth, of the Railway Labor Act, 48 Stat. 1186 (1934), 45 U.S.C.A. § 152 (Supp.1961), providing that “[i]f any dispute shall arise among a carrier’s employees as to1 who are the representatives of such employees”, the Board shall investigate-the dispute, conduct a secret ballot and’ then certify who or what organization is-to represent the employees of the carrier. And “[i]n the conduct of any election * * * the Board shall designate who may participate in the election and establish the rules to govern the election * *
A certifying election wa.s held by the Board with the result that the Second Officers’ Association,- to which we shall refer as SO A, replaced the Association, as the designated representative of the flight engineers of Western Airlines, the employer. The Board excluded from the voting flight engineers who were members of the Association. The first contention of the Association is that such exclusion violated the Board’s own Rule 6.
Tlie second claim is that the Board deprived appellant of due process of law by not investigating fully the. charge that SOA was dominated and assisted by the employer.
On the claim of eligibility the following are the essential facts. One hundred twenty three flight engineers, then represented by the Association, walked off their jobs at Western in February 1961, as part of a general walkout of flight engineers at a number of air lines, growing out of a dispute at United Air Lines. The day after the walkout the men in effect were ordered by the United States District Court for the Southern District of California to return to work and failed to do so. Upon their refusal to accept normal work assignments Western terminated the employment of the 123, obtained replacements in large part and refused to take back those who had declined the work assignments. Nine of these unsuccessfully appealed under the procedures of the collective bargaining agreements between Western and the Association. Six of the nine then unsuccessfully appealed to the Vice President-Operations of Western. The other three did not file .second appeals and are claimed by Western to have abandoned their cases. Western also claims that none appealed to the System Board of Adjustment in accordance with another agreement between the Association and Western, and that Western’s action in terminating the employment of the 123 flight engineers became final on or about May 19, 1961, under the terms of the collective bargaining agreement. In the meanwhile, when the walkout ended on the other air lines a few days after it began, a Presidential Commission was set up to consider the issues involved, and a back-to-work agreement was reached, which, however, Western did not accept. This agreement pledged the air lines which did accept it to take no disciplinary action against the flight engineers. Those represented by the Association promptly offered to return to work, but Western would not take them back. In April, following the February walkout and the replacements at Western, SOA claimed to represent the flight engineers employed by Western. It initiated the Board proceedings under section 2, Ninth, and it was in the ensuing election that the flight engineers for whom the Association speaks were not permitted to vote.
The need for a large degree of conclusiveness in the settlement of labor disputes over the question of employee representation in the transportation industry was met by Congress in the Railway Labor Act. Responsibility was given to a board with special competence, in the effort to maintain enough harmony to prevent interruption of service. Congress sought to preclude litigation in the courts over what the Supreme Court has called an “explosive problem.” Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943). The Court said Congress had taken “great pains” to protect the Mediation Board in its handling of the problem. Consequently the courts have seldom intruded. Switchmen’s Union has been followed in a line of cases which include our recent decisions in UNA Chapter, etc. v. National Mediation Board, supra, and Air Line Stewards and Stewardesses Ass’n v. National Mediation Board, 111 U.S.App.D.C. 126, 294 F.2d 910 (1961), cert. denied, 369 U.S. 810, 82 S.Ct. 687, 7 L.Ed.2d 611 (1962). And see Air Line Dispatchers Ass’n v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685 (1951).
Where courts have taken jurisdiction of such representation disputes the context has strongly indicated either that the Board by refusing to act had obliterated rights granted to employees by Congress or, turning now to a situation arising under the National Labor Relations Act, the Board had acted in excess of .its delegated powers and contrary to a statutory provision which' is “clear and mandatory.” Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). When this occurs, the courts “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Id. at 190, 79 S.Ct. at 185.
Viewed against this background the two questions raised by appellant do not enable the courts to assume jurisdiction. As to eligibility, it is clear the Board made a determination that the excluded engineers were not eligible under Rule 6 to vote in the certifying election. The Board has not refused to act on the one hand, nor has it exceeded the express commands of Congress on the other. In the face of strong Association challenge on this point it might have been preferable for the Board to have delineated more fully its determination — making clear whether, for example, the excluded men were “dismissed” within the meaning of Rule 6 or had merely quit ; and whether if dismissed their reinstatement applications were pending before “proper authorities.” However that may be, the challenge by appellant does not go beyond asking for a different solution to a mixed factual and legal issue which has been solved by the Board in a manner not clearly contrary to its statutory, including its rule-making, authority. Switch-men’s Union and related cases cited above; cf. Order of Ry. Conductors of America v. Penn. R. R., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154 (1944), where in the face of allegations of “illegal” action ■on part of the Board but with the absence of the Board from the case the Court failed to reach the question of the propriety of judicial relief.
The second question must be decided in a similar manner. The Association charged that SOA was assisted and dominated by the employer in violation of section 2, Third and Fourth, of the Act. The Board held a hearing on these charges, taking pertinent testimony but declining, because of lack of power, to compel attendance of certain witnesses requested by the Association. The statute, in Section 2, Ninth, requires an “investigation” of such disputes; and the Board, it seems to us, did investigate. In a different case, where, for example, a stronger showing is made initially by the charging party than was made here, the Board might be required to make a more independent investigation into a charge of company assistance to an opposing union seeking certification. But in discharging its duty to investigate in the manner it did in this case we find no official conduct in excess of authority and no refusal to bring the processes of the Board to bear in a reasonable manner on the dispute. Accordingly we do not think the District Court acquired jurisdiction to upset the Board’s ruling that the Association’s charges were without merit.
It remains only to be said that in our view the Board’s scope of authority under the statute, and its exercise, preclude a successful challenge that the Association’s constitutional rights were violated. “[T]he requirements of due process * * * vary with the type of proceeding involved.” Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 (1959). And “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Id. at 442, 80 S.Ct. at 1515. Due process of law would not appear to require more in the circumstances than was accorded appellant.
The order of the District Court dismissing the complaint is
Affirmed.
. This rule reads as follows:
“Dismissed employees whose request for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at the time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.”
. The Association states that the .walkout occurred because of, or as a protest against, a Board decision adverse to an-, other chapter of the same union, upheld by this court in UNA Chapter, Flight Engineers’ Int’l Ass’n, AFL-CIO v. National Mediation Board, 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. denied, 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962).
. Air Line Dispatchers Ass’n v. National Mediation Board, supra.
. Judge Hall of the United States District Court for the Southern District of California in Flight Engineers’ International Association v. Western Air Lines, Inc., Civil Action No. 362-61 PH, stated in his oral opinion that the flight engineers had “simply quit their jobs.”
. The Board itself states that at the time of the proceedings before it, which began April 5, 1961, no “valid” appeal for reinstatement was pending before any official of Western or before the System Board of Adjustment. But the Association claims it then had a counterclaim pending in the District Court in California,- demanding restoration and reinstatement, a claim for reinstatement before the System Board of Adjustment, and a similar claim before the Presidential Commission.
. “While the Mediation Board is given specified powers in the conduct of elections, there is no requirement as to hearr ings. And there is no express grant of subpoena power.” Switchmen’s Union,' supra, 320 U.S. at 304, 64 S.Ct. at 98.
. The Board found “no fact was established from which even an inference — to say nothing of a conclusion — can be drawn” supporting the charges.
. The charges of employer assistance were made on “information and belief” and were only general in nature. At the hearing the original charges were not made more specific or detailed. Furthermore, representatives of both SOA and the employer were present at the hearing, which was held by one member of the Board. The full Board reviewed the transcript of the hearing and examined copies of SOA’s minutes.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
UNITED STATES of America, Plaintiff-Appellee, v. Carl SUTTON, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert Rankin, Samuel Lee Harris, Charles Edward Craven, Viola Holmes, Defendants-Appellants.
Nos. 78-5134 to 78-5139, 78-5141 to 78-5143.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 1, 1978.
Decided Sept. 4, 1979.
Eugene D. Smith, Cincinnati, Ohio (Court-appointed), for defendants-appellants in 78-5134.
James C. Cissell, U. S. Atty., Terry Lehman, Asst. U. S. Atty., Dayton, Ohio, Paul J. Brysh, c/o T. George Gilinsky, Washington, D. C., for U. S. in all cases.
James R. Willis, Cleveland, Ohio, for defendants-appellants in 78-5135 and 78-5136.
Willis, Whitehead, Character, Adrine, Childs, Blackwell & Davison, Cleveland, Ohio, for defendants-appellants in 78-5135.
John Carson, Cleveland, Ohio, for defendants-appellants in 78-5136.
Philip L. Pleska, Lebanon, Ohio (Court-appointed), for defendants-appellants in 78-5137.
James D. Ruppert, Franklin, Ohio (Court-appointed), for defendants-appellants in 78-5138.
Calvin W. Prem, Cincinnati, Ohio (Court-appointed), for defendants-appellants in 78-5139.
Andrew B. Dennison, Cincinnati, Ohio (Court-appointed), for defendants-appellants in 78-5141.
Henry E. Sheldon, Cincinnati, Ohio (Court-appointed), for defendants-appellants in 78-5142.
Ronald A. Lipez, Cincinnati, Ohio (Court-appointed), for defendants-appellants in 78-5143.
Before ENGEL, KEITH and MERRITT, Circuit Judges.
MERRITT, Circuit Judge.
This case raises issues of first impression in our court concerning the scope of the federal enterprise racketeering statute, 18 U.S.C. §§ 1961-68 (1976). The law was enacted as Title IX of the Organized Crime Control Act of 1970 and is popularly knov/n as RICO, an acronym for “Racketeer Influenced and Corrupt Organizations,” the heading under which it appears in the criminal code. RICO’s central aim is to prevent and punish the financial infiltration and corrupt operation, through patterns of racketeering activity, of “legitimate business operations affecting interstate commerce.” Iannelli v. United States, 420 U.S. 770, 787 n. 19, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975). The question in this case is whether the statute may also be applied to persons engaged in racketeering activity unrelated to any legitimate organization but in furtherance of something the government terms “a criminal enterprise.” We hold that it may not.
I.
After a jury trial in the United States District Court for the Southern District of Ohio, on an indictment containing 329 counts, the nine appellants — Carl Sutton, Jr., Joseph Elkins, Dyeatra Carter, Edwin Adams, Otis Hensley, Prince Albert Rankin, Samuel Harris, Charles Cravens, and Viola Holmes — were each convicted of conducting the affairs of an “enterprise” affecting interstate commerce through a pattern of racketeering activity, 18 U.S.C. § 1962(c), and of conspiracy to commit that offense, 18 U.S.C. § 1962(d). Each was also convicted of one or more counts of using the telephone to facilitate drug offenses, 21 U.S.C. § 843(b), and of various substantive drug offenses, primarily possession and distribution of heroin, 21 U.S.C. § 842(a)(1). In addition, Adams was convicted of seven counts of mail fraud, 18 U.S.C. § 1341, and of transporting and receiving stolen property in interstate commerce, 18 U.S.C. §§ 2314-15; and, Hensley was convicted of eight counts of mail fraud, thirteen counts of receipt by a convicted felon of firearms shipped in interstate commerce, 18 U.S.C. § 922(h), and of unlicensed dealing in firearms, 18 U.S.C. § 922(a).
The government’s evidence showed both a significant heroin distribution business and a large-volume stolen property fencing operation. They were centered in the Cincinnati, Ohio area, and involved many of the same participants.
The central figures in the narcotics distribution business were appellant Sutton and Herschel Weintrub, who was not tried in the instant prosecution. Sutton, with the aid of appellant Holmes, purchased heroin from Elkins and Carter in Cleveland with money supplied by Weintrub. The drugs were redistributed by appellants Rankin, Craven, Adams, Hensley and Harris.
Weintrub, Hensley and Adams comprised the fencing operation. Weintrub’s role again was apparently that of financier. Adams and Hensley actually marketed the stolen property, principally household goods. There was evidence that the goods were supplied by several burglary rings over which Hensley and Adams once claimed control to an undercover government agent.
It was the government’s theory of the case that these were not discrete criminal ventures but were merely separate departments of a unitary “criminal enterprise” under the management and control of Weintrub and Sutton. For example, there was evidence that Adams often sold both heroin and stolen property to a single customer in the same transaction. Adams told one such buyer, a government informant, that the stolen goods he had on hand— stoves in that instance — had been provided by Hensley and that the heroin he was selling was supplied by “Carl” (Sutton) and “Herschel” (Weintrub). Weintrub, Hensley, Harris, and Sutton were often observed by government surveillance agents visiting Adams’ place of business, a jewelry store, from which the heroin and stolen property were usually sold. During court-authorized electronic surveillance Adams and Hensley, and Adams and Weintrub, frequently were overheard discussing both the narcotics and the fencing operations in a single telephone conversation.
The telephone interceptions also revealed that Adams and Weintrub assisted Hensley in obtaining false receipts for jewelry, appliances, and other items of personal property which Hensley had reported stolen from his home in a burglary. Hensley used the receipts to collect insurance money on the items, and the mailings made in connection with the insurance claims formed the basis of the mail fraud counts. The proceeds of the fraud apparently were applied to a debt Hensley owed Weintrub for narcotics.
A warrant-authorized search of Hensley’s residence during the closing days of the investigation uncovered several ledger books documenting transactions in firearms and stolen property. Entries in one of the ledger books formed the basis for Hensley’s convictions of receipt by a convicted felon of firearms that had been shipped in interstate commerce.
II.
Appellants’ main contention is that RICO was intended to proscribe only the infiltration and operation of legitimate enterprises through patterns of racketeering activity, something the government concedes was not involved in this case. Appellants argue that the statute does not reach a group of individuals like themselves, who “merely” have committed a series of racketeering offenses. To say the least, the argument lacks surface appeal, for it asks us to embrace the rather ironic proposition that racketeers should be immune from criminal liability under the statute so long as they keep their activities wholly illegitimate. We suspect that largely explains the hostile treatment the argument has received in the other courts of appeals that have considered it. United States v. Rone, 598 F.2d 564 (9th Cir. 1979); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied sub nom. Delph v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977); United States v. Morris, 532 F.2d 436 (5th Cir. 1976); United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975). Upon analysis, however, we do not find appellants’ proposed construction of RICO quite as unusual as it might seem at first blush. Indeed, we think there are compelling reasons to adopt it.
A.
Our analysis begins with the language of the statute. Section 1962(c), under which appellants were convicted, provides in pertinent part:
It shall be unlawful for any person employed by or associated with any enterprise * * * to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.. (emphasis added)
“Racketeering activity” is defined in section 1961(1) as including numerous federal offenses and, in addition, any offense involving murder, kidnapping, gambling, arson, robbery, extortion or drugs punishable under state law by imprisonment for more than one year. A “pattern of racketeering activity” is defined by section 1961(5) as requiring at least two acts of racketeering committed within ten years of each other.
The government’s argument is straightforward and relies entirely upon the text. The government first notes that the statute on its face does not distinguish between “legitimate” and “illegitimate” enterprises but instead, by its express terms, applies to “any enterprise.” “Enterprise,” the government then points out, is defined broadly in section 1961(4) to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” These provisions dispose of appellants’ claim, according to the government, since the evidence demonstrates that appellants were a “group of individuals associated in fact” and that each committed the required number of racketeering offenses while in that association. To summarize the government’s theory of the case, the evidence showed the existence of a “single enterprise — operated for the purpose of making money from repeated criminal activity.”
Of course, it is beyond dispute that the statute must be read to cover “any enterprise.” But what does that mean? The flaw we see in the government’s approach lies in its deceptively literal treatment of the statutory definition of the term “enterprise.” What parades under the guise of rigorous fidelity to the text turns out, upon examination, to read the “enterprise” element entirely out of the statute.
The dictionary meaning of “enterprise” is any “undertaking” or “project,” i. e., some activity, and the term is also commonly used to describe a unit of organization established to perform any such undertaking or project. The statute defines “enterprise” only in the latter sense. Section 1961(4) catalogues the kinds of organizational units that may, for statutory purposes, qualify as an “enterprise” — anything from legal entities such as corporations or partnerships, to entities without formally recognized legal personalities such as “any union or group of individuals associated in fact,” even to “any individual.” However, the statutory definition is silent regarding what attributes or activities these units must assume or undertake before they may be deemed an “enterprise” in any meaningful sense. Obviously, every “individual” or “group of individuals,” considered in the abstract, is not an “enterprise.” Individuals and groups do not become “enterprises” except in relation to something they do. The statutory definition of “enterprise” contained in section 1961(4) is incomplete because it does not tell us what that “something” is.
The government would finesse the problem, and its theory of this case neatly illustrates the point: appellants were a “group of individuals associated in fact” around numerous patterns,of racketeering activity and therefore constituted a statutory “enterprise,” organized for the purpose of profiting from racketeering activity. Thus, in the government’s view, the “something” this group of individuals did to transform themselves into an “enterprise” is provided by their racketeering activity. In short, appellants’ enterprise was racketeering.
The government has successfully applied the statute in the same fashion on numerous other occasions. For example, in United States v. Cappetto, supra, the defendants were charged with engaging in a pattern of racketeering activity “consisting of participating on two or more occasions in an illegal gambling business” in the conduct of the affairs of an enterprise, “viz., an illegal gambling business.” 502 F.2d at 1355. In United States v. Morris, supra, the “enterprise” was described as “a group of individuals associated in fact to defraud in illegal card games persons who had travelled to Nevada,” and the racketeering activity through which the enterprise’s affairs was conducted consisted of running the fraudulent card games and recruiting victims to travel to Nevada. 532 F.2d at 442. In United States v. Hansen, 422 F.Supp. 430 (E.D.Wis.1976), aff’d, 583 F.2d 325 (7th Cir.), cert. denied, 439 U.S. 912, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978), the enterprise was “for the purpose of defrauding insurance companies by the use of the mails and committing acts of arson,” and the racketeering activity consisted of defrauding insurance companies through the mails and arson. 422 F.Supp. at 433. And, in United States v. McLaurin, 557 F.2d 1064 (5th Cir. 1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978), the defendants were convicted of operating a “lucrative commercial enterprise specializing in prostitution” through a pattern of various prostitution offenses. 557 F.2d at 1066, 1073.
It requires no great insight to recognize that applying the statute in this fashion renders the “enterprise” element of the crime wholly redundant and transforms the statute into a simple proscription against “patterns of racketeering activity.” Under the approach reflected in these cases, every “pattern of racketeering activity” becomes an “enterprise” whose affairs are conducted through the “pattern of racketeering activity.” Plainly, that is not the statute Congress has written.
The language Congress did use makes it unlawful “for any person employed by or associated with any enterprise... to conduct... such enterprise’s affairs through a pattern of racketeering activity.” Surely, the draftsmen would not have opted for so complex a formulation if the legislative purpose had been merely to proscribe racketeering, without more. A straightforward prohibition against engaging in “patterns of racketeering activity” would have sufficed, and there would have been no need for a reference to “enterprises” of any sort. Although the government reminds us that the Organized Crime Control Act of 1970 “is a carefully crafted piece of legislation,” Iannelli v. United States, supra, 420 U.S. at 789, 95 S.Ct. at 1296, it would have us treat section 1962(c) as a purposeless circumlocution, written in terms of “enterprises,” and persons “employed” by them to conduct their “affairs,” but in reality directed at anyone who commits two acts of racketeering. Under this construction an individual or a group who robs two banks “for the purpose of making money” commits a RICO offense.
Common sense, not to mention the first principle of statutory construction, leads us to reject the government’s reading and to seek a construction that gives some content to each element of the crime set forth in the text. The plain meaning of the words in context indicates that the reference to “enterprise” was included to denote an entity larger than, and conceptually distinct from, any “pattern of racketeering activity” through which the enterprise’s “affairs” ■might be conducted. If the “enterprise” element of the crime is to have independent meaning, but is still to encompass “criminal enterprises” as the government contends, then a “criminal enterprise” must involve something more than simply an individual or group engaged in a pattern of racketeering activity.
The problem is thus to discover what the distinction might be for statutory purposes between simple patterns of racketeering activity, which we think are outside RICO’s purview, and a “criminal enterprise,” which the government insists is within the ambit of the statute. Here the text is no help, for it does not even hint at what the standard should be for determining when racketeers have crossed the line to become a “criminal enterprise.”
In a passage which the government urges us to follow, the Fifth Circuit describes a “criminal enterprise” as “an amoeba-like infra-structure that controls a secret criminal network.” United States v. Elliott, supra, 571 F.2d at 897-98. With all due respect, we think greater precision than that is required if the statute is not to violate “the first essential of due process of law” by forbidding “the'doing of an act in terms so vague that [persons] of common intelligence [would] necessarily [have to] guess at its meaning and differ as to its application.” United States v. Culbert, 435 U.S. 371, 374, 98 S.Ct. 1112, 1114, 55 L.Ed.2d 349 (1978) quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although government prosecutors may be trained nowadays to recognize an “amoeba-like infra-structure” when they see one, our instincts are not so keenly developed, and we think even racketeers are entitled to know before the fact at what point their criminal activities will be deemed sufficiently “amoeba-like” to transgress the statute.
Some reasonably definite standards are ■ needed if the statute is to apply to so-called “criminal enterprises.” We turn to the legislative history to see whether it offers any guidance concerning what those standards should be.
B.
RICO’s legislative history is remarkable for the clarity with which it speaks to the issue of the intended scope of the “enterprise” element of the crime. Unfortunately, these materials do not solve the problem that we think is created by the government’s proposed construction — that of finding a workable definition of “criminal enterprise.” But the materials do point the way to a construction that will insure to the “enterprise” element some content independent of the racketeering element in all potential applications of the statute. The construction unmistakably endorsed by the legislative history is the one appellants have urged — limiting section 1962(c) to the conduct of a “legitimate” enterprise’s affairs through racketeering activity.
RICO in its present form is the product of two bills introduced separately in the Senate in 1969. The first, S. 1623, the “Criminal Activities Profits -Act,” was sponsored by Senator Hruska and prohibited the investment of income derived from criminal activities into any legitimate business enterprise affecting interstate or foreign commerce. Senator McClellan introduced the second, S. 1861, the “Corrupt Organizations Act of 1969,” which proscribed the infiltration or management of legitimate organizations by racketeers. Senator McClellan succinctly explained the purpose of the measures as follows: “... What we are trying to do... [is] to keep them [racketeers] from using that [racketeering and income derived therefrom] to infiltrate legitimate businesses and pollute the stream of commerce.” And, in 1969 at least, the Department of Justice apparently shared Senator McClellan’s understanding of the thrust of the proposals. Delivering the Department’s endorsement, Assistant Attorney General Wilson described the McClellan bill as one “to prohibit the infiltration or management of legitimate organizations by racketeering activity or the proceeds thereof,” which, “[l]ike [the Hruska bill], is designed to attack the infiltration of legitimate business by organized crime.” Wilson went on to praise Senator McClellan for drafting an “innovative approach to the problem of racketeering infiltration of legitimate business.”
Nothing happened that reflects a departure from this original understanding during any subsequent stage of the process by which the two bills were merged into Title IX of the Organized Crime Control Act of 1970. The Report of the Senate Judiciary Committee declares that Title IX “has as its purpose the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” That general statement of purpose is followed by a lengthy discussion of various examples of the subversion of business and labor by racketeers. The House report on the measure is to like effect. Before the House Judiciary Committee, the Department of Justice described the measure it was endorsing in the following terms:
Title IX is designed to inhibit the infiltration of legitimate business by organized crime, and,... to reach the criminal syndicates’ major sources of revenue.
* $ # % * sk
The statute would also proscribe the acquisition, maintenance, or control of any interest in business enterprise through a pattern of racketeering activity or the collection of unlawful debts. Here the emphasis is against illegally acquired ownership or control of businesses by members and associates of the Mafia
The floor debates on the measure are filled with similar descriptions of Title IX’s scope, And the formal “Statement of Findings and Purpose” preceding the substantive provisions of the Organized Crime Control Act as finally adopted declares that Congress was acting to stop the “billions of dollars” obtained “from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs and other forms of social exploitation" from being used “to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes,” a process which had “weaken[ed] the stability of the Nation’s economic system, harm[ed] innocent investors and competing organizations, interfered] with free competition, seriously burdened] interstate and foreign commerce, threaten[ed] the domestic security and undermine[d] the general welfare of the Nation and its citizens.”
Legislative history is sometimes equivocal, and arguments from it may not always be dispositive of concrete issues of statutory construction. But, on this issue, we feel confident in concluding that the Congress was of one mind. Senator McClellan summed up the legislative consensus nicely during the floor debates when he characterized the special class of criminals at whom RICO was aimed as those who “operate illegitimately in legitimate channels.”
C.
Against this background, appellants’ defense that they were “mere" racketeers and therefore not properly charged under section 1962(c) begins to make a great deal of sense. The legislative history conclusively demonstrates that RICO was enacted in response to the growing subversion of our society’s legitimate institutions of business and labor by organized crime, a relatively recent development that Congress deemed a significantly more dangerous threat to the nation’s social and economic stability than the age-old problem of crime for crime’s sake. It thus seriously misconceives this legislative purpose to argue, as some have, that limiting RICO to the corruption of legitimate enterprises “does not make sense since it leaves a loophole for illegitimate business to escape its coverage.” United States v. Altese, supra, 542 F.2d at 106-07. “Illegitimate business,” so-called, is already comprehensively proscribed and severely punished by the many provisions of state and federal law listed under RICO’s definition of “racketeering activity.” RICO’s evident purpose was to single out racketeering activity undertaken in connection with the subversion of legitimate institutions as a special case, deserving of even harsher penal sanctions. Under the view we take of the congressional scheme, appellants are not so much attempting to slip through a “loophole” in the law as they are quite properly pointing out that they did not engage in the aggravated form of racketeering activity for which RICO was exclusively designed.
Appellants' proposed construction of section 1962(c) also makes sense in terms of the logic and structure of the statute- as a whole. Subsection (a) of section 1962 prohibits the investment of income derived from racketeering activity “in acquisition of any interest in, or the establishment or operation of, any enterprise” and goes on to state that a “purchase of securities on the open market for purposes of investment” with tainted money is not unlawful so long as the holdings of the purchaser, his family, and accomplices in crime “do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer... the power to elect one or more directors of the issuer.” Clearly, subsection (a) is talking about legitimate enterprises only. Logic dictates that the provisions which follow — subsection (b), prohibiting the use of racketeering to “acquire or maintain... any interest in or control of any enterprise,” and subsection (c), prohibiting “the conduct of [an] enterprise’s affairs through a pattern of racketeering activity” — should be read in pari materia.
Most importantly, however, appellants’ proposed construction is to be preferred over the government’s because it infuses some content into-each element of the crime. All of the words of section 1962(c) take on some independent significance when the statute is applied, for example, to a shop steward who conducts the affairs of his labor union through a pattern of extortion, bribery and fraud. The same cannot be said for a construction that would permit the prosecution of illegal gamblers for conducting illegal gambling through a pattern of illegal gambling or of prostitutes for conducting prostitution through a pattern of prostitution.
In our view, the only alternative we have to accepting appellants’ position on the scope of section 1962(c) is to rewrite the statute completely. To reiterate, the government’s approach is unacceptable because it reads the “enterprise” element out of the crime. In order to extend the statute to illicit enterprises of some description, and yet preserve some content for the “enterprise” element, we would be required to engraft upon the definition of “enterprise” contained in section 1961(4) some set of standards that would serve to warn any person or group engaged in racketeering activity when they will be deemed to have embarked upon an “enterprise” to that end.
Several considerations discourage us from choosing that course. In the first place, there is no mandate in the legislative history for us to indulge in such uneasy and speculative construction. Indeed, the unambiguous thrust of that history supports appellants’ construction and no other. Without such a mandate, we would truly be inventing from our own notions of sound legislative policy the additional elements we believe are needed to save the statute from fatal vagueness and at the same time have it apply to “criminal enterprises” in any meaningful sense. Although Congress has declared that RICO’s provisions should be “liberally construed to effectuate its remedial purpose,” we do not read that directive as authorizing us to write a new and substantially different law. Appellants’ construction fully serves the statute’s remedial purpose as revealed by all of the guides to legislative intent. It is for Congress, not the courts, to amend the statute to expand its coverage, if that is what an effective policy against organized crime requires.
Two of the canons courts traditionally follow in construing criminal statutes also counsel us not to stray from the path marked out by the legislative history. The first of these is that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), unless the legislature has spoken “plainly and unmistakably” to the contrary. United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). When as in this case the legislative history speaks “plainly and unmistakably,” but in support of resolving the statute’s ambiguity in favor of the construction argued by defendants, the maxim applies with special force and tells us that we ought not to strain to accommodate the government’s desire for a broader construction.
The other canon that guides us is that, “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). To be sure, even under appellants’ view, RICO still represents a substantial incursion into state criminal jurisdiction. But the government’s construction would take us much further into areas traditionally left to state regulation by making a federal felon out of “any individual” or any member of a “group” who has committed any two of the broad range of state offenses denominated “racketeering activity” under section 1961(1). We do not seriously doubt the power of Congress to undertake such a bold expansion of federal criminal jurisdiction. But we will not simply assume that Congress has done so with this statute, when the text, at best, is ambiguous on the matter and the legislative history suggests a different construction that would not alter the traditional division of responsibilities between federal and state governments quite so radically.
For all of these reasons, we are persuaded to construe section 1962(c) in the manner appellants have suggested. We therefore hold that an “enterprise” within the meaning of the statute is “any individual, partnership, corporation, association. and any union or group of individuals associated in fact,” that is organized and acting for some ostensibly lawful purpose, either formally declared or informally recognized. Section 1962(c) is violated whenever any person associated with such an enterprise conducts its “affairs,” i. e., undertakes any activity on behalf of or relating to the purposes of the enterprise, by committing at least two criminal acts constituting a “pattern of racketeering” as defined in section 1961(5). Since appellants’ numerous acts of racketeering were not shown to have been related in any way to the affairs of such an enterprise, we reverse their convictions under section 1962(c) for conducting the affairs of an enterprise through a pattern of racketeering activity and their convictions under section 1962(d) for conspiracy to commit that offense.
III.
It remains to consider the effect of our reversal of the RICO and RICO conspiracy counts upon the validity of appellants’ numerous other convictions. These remaining counts can be divided into roughly four categories:
(1) offenses involving controlled substances, principally possession and distribution of heroin and using the telephone to facilitate those offenses;
(2) receipt and transportation of stolen property;
(3) mail fraud;
(4) unlicensed dealing in firearms.
All nine appellants were convicted of one or more narcotics offenses. Only appellants Adams and Hensley were charged with or convicted of offenses in the second and third categories, involving stolen property and mail fraud. Only appellant Hensley was charged with or convicted of firearms offenses.
We reluctantly conclude that the convictions on all of these counts must also be reversed, on grounds of misjoinder. Trying all of these counts against all of these appellants in a single proceeding was proper only if appellants were participants “in the same series of acts or transactions constituting an offense or offenses.” Rule 8(b), Fed.R.Crim.P. The government sought to supply the requisite nexus among defendants and offenses by alleging, in counts I and II of the 329 count indictment, that appellants were associated in a single “criminal enterprise,” the affairs of which were conducted by appellants through the commission of the many disparate crimes charged in the remaining counts. We have just determined, however, that the RICO and RICO conspiracy counts were fatally defective, in that they failed to state offenses under 18 U.S.C. §§ 1962(c) and (d). The legal insufficiency of those two counts removes any conceivable justification for appellants’ joint trial on the other counts.
Without benefit of the “criminal enterprise” concept, rejected in Part II supra, there is simply no basis for lumping the four categories of offenses with which appellants were variously charged into a single “series of acts or transactions” within the meaning of Rule 8(b). It may be that each category of offenses (narcotics, stolen property, mail fraud and firearms), considered in isolation, would meet the “same series” test and that, accordingly, all of the defendants and offenses charged within a single, category could be jointly tried. However, the sole connection among the various categories, compared one with another, is the presence of some common participants. And even that connection is tenuous. None of the appellants was charged with offenses in all four categories, and seven of the nine were charged in only a single category, the one involving narcotics. Only Hensley and Adams were charged with offenses in more than one category: Adams, with narcotics, mail fraud and stolen property offenses, and Hensley, with narcotics, mail fraud, and firearms offenses.
Although “all of the defendants need not be charged in each count” under Rule 8(b), we would be making a mockery of the Rule were we to find Hensley’s and Adams’ participation in three of the four categories enough to transform the others, who had no connection with mail fraud, stolen property, or firearms, into participants in a single criminal transaction encompassing all of these offenses. It is true, as the government argues, that Hensley used the proceeds of his mail fraud to pay off a debt he owed Herschel Weintrub for heroin. But we fail to see how that makes the mail fraud a part of Weintrub’s heroin distribution ring or makes those guilty of operating the heroin business participants in the same “series of acts” which constituted the mail fraud. It is also true that Hensley dealt in unlicensed firearms as well as stolen property, and that he apparently documented sales of both in the same ledger books. But that fact hardly justifies characterizing appellant Adams’ trafficking in stolen property as part of the same transaction as Hensley’s illicit gun sales, and it affords no basis whatsoever for connecting the participants in the narcotics distribution ring to either the stolen property or firearms offenses committed by others. Nor could all of these offenses have been tried together on the theory that appellants were members of a single conspiracy with multiple criminal objects under 18 U.S.C. § 371. Analyzed under conventional principles of the law of conspiracy, the allegations of the indictment, and the proofs at trial, made out, at most, multiple, unrelated conspiracies, We think Rule 8(b) exists “to prohibit exactly what was done here, namely, allowing evidence in a case against one defendant to be presented in the case against another charged with a completely disassociated offense, with the danger that the jury might feel that the evidence*/ against one supported the charge against the other.” Ingram v. United States, 272 F.2d 567, 570 (4th Cir. 1959).
A risk of prejudice, either from evidentiary spillover or transference of guilt, inheres in any joinder of offenses or defendants. In the interests of judicial economy, our system of justice nevertheless tolerates that risk so long as the requirements of Rule 8 are satisfied, subject of course to the remedy of severance should the risk become a reality. Rule 8 “set[s] the limits of toleranee,” however. King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). Misjoinder under the Rule is deemed prejudicial per se: “[WJhere multiple defendants are charged with offenses in no way connected, and are tried together, they are prejudiced by that very fact....” United States v. Reynolds, 489 F.2d 4, 6 (6th Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766 (1974), quoting Ingram v. United States, supra, 272 F.2d at 570. And, the remedy for misjoinder “is reversal. with orders for... new and separate trial[s].” United States v. Reynolds, supra, 489 F.2d at 6.
We think appellants are entitled to that remedy. This is not merely a case of “retroactive misjoinder,” such as confronted the Supreme Court in Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Schaffer involved an indictment charging seven defendants with three counts of transporting stolen property in interstate commerce and one count of conspiracy to commit those offenses. The conspiracy count, alleging a connection among the three substantive counts, provided a basis for joinder under Rule 8(b). At the conclusion of the government’s case, however, the trial court dismissed the conspiracy count for insufficient evidence, and submitted the remaining counts to the jury.
The Court ruled, 5-4, that, despite the mid-trial dismissal of the count that had
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_app_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.
George Anton BOMHER, Plaintiff-Appellant, v. Ronald REAGAN et al., Defendants-Appellees.
No. 74-3172.
United States Court of Appeals, Ninth Circuit.
Sept. 12, 1975.
George Anton Bomher, in pro per.
Carol A. Ronquillo (argued), San Diego, Cal., for defendants-appellees.
Honorable Albert C. Wollenberg, Northern District of California, sitting by designation.
OPINION
Before HUFSTEDLER and WRIGHT, Circuit Judges, and WOLLENBERG, District Judge.
PER CURIAM:
Appellant alleged in the district court below and on this appeal several constitutional deprivations. His fundamental claim appears to be that summary tax collection procedures are constitutionally invalid as a violation of due process.
The- Franchise Tax Board sent several requests to appellant for payment of delinquent personal income taxes. Appellant declined to pay the taxes, asserting that he could only be required to pay if the tax debt were supported by a judgment of a court. The Franchise Tax Board, under the authority of California Revenue and Tax Code §§ 18906-18909, subsequently issued a warrant for collection of amounts due. The sheriff’s department executed the warrant by levy upon and sale of appellant’s automobile. This procedure, alleges appellant, deprived him of due process because he was not given prior notice and hearing in a court of law wherein the tax debt could be proven.
Summary tax collection procedures, which provide for subsequent judicial review, have been sustained against constitutional challenge since the case of Phillips v. Commissioner (1931) 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289. The Court there held that such procedures neither deprived a taxpayer of due process nor amounted to an unconstitutional delegation of judicial authority to the executive branch of government. Id., at 593-594, 597-598, 51 S.Ct. 608. The exception in tax matters to prior notice and hearing was more recently reaffirmed in Fuentes v. Shevin (1972), 407 U.S. 67, 90-92, 92 S.Ct. 1983, 32 L.Ed.2d 556, reh. den. 409 U.S. 902. See Tavares v. United States (9th Cir. 1974) 491 F.2d 725, 726. The fact that a taxpayer disputes the tax debt, as appellant asserts he does here, does not alter the rule of Phillips. See Kalb v. United States (2d Cir. 1974) 505 F.2d 506, 510.
California revenue and tax law provides for subsequent judicial review in personal income tax matters by way of a suit in state court for a refund. California Revenue and Tax Code § 19081 et seq. A similar procedure was expressly held adequate as an alternative means of subsequent judicial review in Phillips, 283 U.S. at 597-598, 51 S.Ct. 608. Thus, appellant has not shown a constitutional deprivation based on the seizure and sale of his automobile. Since no constitutional deprivation could be found from the summary tax collection activities of appellees, there could be no actionable conspiracy. The district court committed no error in dismissing appellant’s complaint brought under 42 U.S.C. §§ 1983, 1985(3) and 1986 for failure to state a claim. When a case is dismissed for failure to state a claim for relief, a pure question of law, no question of fact exists for a jury to try.
Affirmed.
Question: What is the state of the first listed state or local government agency that is an appellant?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
Joe Bradley SMITH and Myron Parker, Appellants, v. UNITED STATES of America, Appellee.
No. 17198.
United States Court of Appeals Ninth Circuit.
May 31, 1961.
Harry E. Claiborne, Las Vegas, Nev.,, for appellants.
Howard W. Babcock, U. S. Atty., and' Raymond E. Sutton, Asst. U. S. Atty., Las Vegas, Nev., for appellee.
Before HAMLEY and MERRILL, Circuit Judges, and WALSH, District Judge.
MERRILL, Circuit Judge.
This appeal is taken from conviction, of the crime commonly known as bank robbery. 18 U.S.C. § 2113(b). It challenges the sufficiency of the evidence to establish two elements of the crime: (1) the taking and carrying away of property; (2) the victim’s lack of consent to-the taking.
The government’s principal witness was a teller at the Bank of Nevada at Las Vegas, Nevada. He testified that he had known both appellants; that Parker had been a fellow employee at the Bank of Nevada and that he had known Smith when both of them had worked at a Reno bank. The evidence leading up to the theft, as he related it, was as follows:
On the morning of March 31, 1958,, while he was driving to work, appellant Parker passed him in his automobile and signaled that he wished to talk with him. He stopped and Parker stopped behind', him. Parker came over to the teller’s, car, got in and they talked:
“He asked me how chances were to-rob my window. * * * I said I thought it would be pretty good. He asked me how much would be in my cash drawer and I told him I thought, between eighty and ninety thousand dollars. * * * He said he wasn’t coming in to rob it but that another guy would and we would meet at noon to talk about it some more.”
The teller agreed to that arrangement and then reported the matter to the bank manager. He was told to go ahead with the arrangements and that the proper authorities would be notified.
At the noon meeting appellant Smith was present. It was agreed that Smith would come to the teller’s window and hand him a one hundred dollar bill to be changed. The teller then would hand Smith a bundle of money which he would have prepared in advance. About two o’clock Parker telephoned the teller and advised that Smith would be in in about fifteen minutes. The teller reported to the manager and then took all the money in his cash drawer, $65,000, put it in a money bag and put the bag in a locked inner vault. Smith arrived, presented a one hundred bill and asked- for change. The teller gave him change and then walked back to the inner vault, about sixty or seventy feet from his window, unlocked it, got the bag, returned to his window and put the bag on the counter in front of Smith. Smith put his hands on the bag and started to pull it toward him. He moved the bag a distance of two or three inches according to the teller; four to six inches according to another witness. At that point he was placed under arrest.
Appellant contends under these facts that a taking and carrying away of property has not been shown. He asserts that the money bag was not, under these circumstances, taken from the possession of the teller into the possession of Smith and carried away by Smith.
This contention is without merit. “The degree of the taking is immaterial, the least removing of the thing taken from the place it was before with intent to steal it being sufficient.” Rutkowski v. United States, 6 Cir., 1945, 149 F.2d 481, 483. To the same effect are State v. Nelson, 121 W.Va. 310, 3 S.E.2d 530; Davis v. State, 41 Ariz. 12, 15 P.2d 242; Daugherty v. State, 154 Neb. 376, 48 N.W.2d 76; State v. Richards, 3 Utah 2d 368, 284 P.2d 691.
Appellants contend that since the bank submitted to and actively cooperated in the taking it has demonstrated its consent to the taking and that the element of trespass (a taking without the consent of the owner), essential to common law larceny, is lacking.
The United States contends that while trespass is necessary to the common law crime of larceny it is not necessary to the statutory crime of which appellants have been convicted. This issue we need not decide.
The bank never consented to the taking in the trespass sense. Knowing of appellants’ felonious intent, it simply smoothed the way for the commission of the crime in order that the criminal might be apprehended. It was under no duty to prevent the crime nor to place obstacles in the way of its commission. We are not faced with any question of appellants’ having been enticed into the commission of a crime. The scheme originated with them. The bank merely submitted to it. Any active participation was in complete accord with the plan and intent of appellants.
Appellants place reliance on cases which are readily distinguishable in that not only was possession voluntarily surrendered but the title or right to possession as well. Hite v. United States, 10 Cir., 1948, 168 F.2d 973, was a Dyer Act case in which the defendant had fraudulently misrepresented as his own an automobile turned in on the purchase of a new car. It was held that this did not constitute a trespassory taking. The court followed and quoted from Loney v. United States, 10 Cir., 1945, 151 F.2d 1, to the effect that in this type of case the victim “intends to and does part voluntarily with his title to the property, as well as his possession thereof, not expecting the property to be returned to him or to be disposed of in accordance with his directions.” 151 F.2d 1, 4.
People v. Werner, 1940, 16 Cal.2d 216, 105 P.2d 927, was a case in which money had voluntarily been delivered for the purpose, known to the victim, of being used by the taker to bribe a public officer. Again the right to possession had been freely granted although for a criminal purpose.
In the instant case no party to the transaction had any thought that the bank for any reason was granting to the appellants any right to possession of the money. We conclude that the taking constituted a trespass and was without consent of the bank.
Affirmed.
. “Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both * "*
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_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.
KOSAK v. UNITED STATES
No. 82-618.
Argued November 7, 1983
Decided March 21, 1984
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 862.
Jeffrey L. Naftulin argued the cause and filed a brief for petitioner.
Kathryn A. Oberly argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, and Marc Richman.
Justice Marshall
delivered the opinion of the Court.
The question presented in this case is whether 28 U. S. C. § 2680(c), which exempts from the coverage of the Federal Tort Claims Act “[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs,” precludes recovery against the United States for injury to private property sustained during a temporary detention of the property by the Customs Service.
HH
While a serviceman stationed in Guam, petitioner assembled a large collection of oriental art. When he was transferred from Guam to Philadelphia, petitioner brought his art collection with him. In his customs declaration, petitioner stated that he intended to keep the contents of the collection for himself. Subsequently, acting upon information that, contrary to his representations, petitioner planned to resell portions of his collection, agents of the United States Customs Service obtained a valid warrant to search petitioner’s house. In executing that warrant, the agents seized various antiques and other objects of art.
Petitioner was charged with smuggling his art collection into the country, in violation of 18 U. S. C. § 545. After a jury trial, he was acquitted. The Customs Service then notified petitioner that the seized objects were subject to civil forfeiture under 19 U. S. C. § 1592, which at the time permitted confiscation of goods brought into the United States “by means of any false statement.” Relying on 19 U. S. C. § 1618, petitioner filed a petition for relief from the forfeiture. The Customs Service granted the petition and returned the goods.
Alleging that some of the objects returned to him had been injured while in the custody of the Customs Service, petitioner filed an administrative complaint with the Service requesting compensation for the damage. The Customs Service denied relief. Relying on the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680 (1976 ed. and Supp. V), petitioner then filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking approximately $12,000 in damages for the alleged injury to his property. The Government moved for a dismissal of the complaint or for summary judgment on the ground that petitioner’s claim was barred by § 2680(c). The District Court granted the Government’s motion.
The Court of Appeals, with one judge dissenting, affirmed. 679 F. 2d 306 (CA3 1982). The Court of Appeals reasoned that the United States may be held liable for torts committed by its employees only on the basis of a statutory provision evincing a “‘clear relinquishment of sovereign immunity.’” Id., at 309 (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953)). In the court’s view, the Federal Tort Claims Act, as qualified by § 2680(c), fails to provide the necessary relinquishment of governmental immunity from suits alleging that customs officials damaged or lost detained property. On the contrary, the court observed, the “clear language” of § 2680(c) shields the United States from “all claims arising out of detention of goods by customs officers and does not purport to distinguish among types of harm.” 679 F. 2d, at 308. On that basis, the Court of Appeals held that petitioner had failed to state a claim on which relief could be granted.
We granted certiorari to resolve a conflict in the Circuits regarding the liability of the United States for injuries caused by the negligence of customs officials in handling property in their possession. 459 U. S. 1101 (1983). We now affirm.
II
A
The Federal Tort Claims Act, enacted in 1946, provides generally that the United States shall be liable, to the same extent as a private party, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U. S. C. § 1346(b); see also 28 U. S. C. §2674. The Act’s broad waiver of sovereign immunity is, however, subject to 13 enumerated exceptions. 28 U. S. C. §§2680(a)-(f), (h)-(n). One of those exceptions, § 2680(c), exempts from the coverage of the statute “[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs . . . .” Petitioner asks us to construe the foregoing language to cover only claims “for damage caused by the detention itself and not for the negligent. . . destruction of property while it is in the possession of the customs service.” By “damage caused by the detention itself,” petitioner appears to mean harms attributable to an illegal detention, such as a decline in the economic value of detained goods (either because of depreciation or because of a drop in the price the goods will fetch), injury resulting from deprivation of the ability to make use of the goods during the period of detention, or consequential damages resulting from lack of access to the goods. The Government asks us to read the exception to cover all injuries to property sustained during its detention by customs officials.
The starting point of our analysis of these competing interpretations must, of course, be the language of § 2680(c). “[W]e assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.’” American Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982) (quoting Richards v. United States, 369 U. S. 1, 9 (1962)). At first blush, the statutory language certainly appears expansive enough to support the Government’s construction; the encompassing phrase, “arising in respect of,” seems to sweep within the exception all injuries associated in any way with the “detention” of goods. It must be admitted that this initial reading is not ineluctable; as Judge Weis, dissenting in the Court of Appeals, pointed out, it is possible (with some effort) to read the phrase, “in respect of” as the equivalent of “as regards” and thereby to infer that “the statutory exception is directed to the fact of detention itself, and that alone.” 679 F. 2d, at 310. But we think that the fairest interpretation of the crucial portion of the provision is the one that first springs to mind: “any claim arising in respect of” the detention of goods means any claim “arising out of” the detention of goods, and includes a claim resulting from negligent handling or storage of detained property.
Relying on the analysis of the Second Circuit in Alliance Assurance Co. v. United States, 252 F. 2d 529 (1958), petitioner argues that the foregoing reading of the plain language of § 2680(c) is undercut by the context in which the provision appears.
“That the exception does not and was not intended to bar actions based on the negligent destruction, injury or loss of goods in the possession or control of the customs authorities is best illustrated by the fact that the exception immediately preceding it expressly bars actions ‘arising out of the loss, miscarriage, or negligent transmission’ of mail. 28 U. S. C. A. § 2680(b). If Congress had similarly wished to bar actions based on the negligent loss of goods which governmental agencies other than the postal system undertook to handle, the exception in 28 U. S. C. A. § 2680(b) shows that it would have been equal to the task. The conclusion is inescapable that it did not choose to bestow upon all such agencies general absolution from carelessness in handling property belonging to others.” Id., at 534.
We find the conclusion reached by petitioner and the Second Circuit far from “inescapable.” The specificity of § 2680(b), in contrast with the generality of § 2680(c), suggests, if anything, that Congress intended the former to be less encompassing than the latter. The motivation for such an intent is not hard to find. One of the principal purposes of the Federal Tort Claims Act was to waive the Government’s immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault. In order to ensure that § 2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, “the loss, miscarriage, or negligent transmission of letters or postal matter” — thereby excluding, by implication, negligent handling of motor vehicles. The absence of any analogous desire to limit the reach of the statutory exception pertaining to the detention of property by customs officials explains the lack of comparable nicety in the phraseology of § 2680(c).
B
The legislative history of § 2680(c), though meager, supports the interpretation of the provision that we have derived from its language and context. Two specific aspects of the evolution of the provision are telling. First, the person who almost certainly drafted the language under consideration clearly thought that it covered injury to detained property caused by the negligence of customs officials. It appears that the portion of § 2680(c) pertaining to the detention of goods was first written by Judge Alexander Holtzoff, one of the major figures in the development of the Tort Claims Act. In his report explicating his proposals, Judge Holtzoff explained:
“[The proposed provision would exempt from the coverage of the Act] [c]laims arising in respect of the assessment or collection of any tax or customs duty. This exception appears in all previous drafts. It is expanded, however, so as to include immunity from liability in respect of loss in connection with the detention of goods or merchandise by any officer of customs or excise. The additional proviso has special reference to the detention of imported goods in appraisers’ warehouses or customs houses, as well as seizures by law enforcement officials, internal revenue officers, and the like.” A. Holtzoff, Report on Proposed Federal Tort Claims Bill 16 (1981) (Holtzoff Report) (emphasis added).
Though it cannot be definitively established that Congress relied upon Judge Holtzoff’s report, it is significant that the apparent draftsman of the crucial portion of § 2680(c) believed that it would bar a suit of the sort brought by petitioner.
Second, the congressional Committees that submitted Reports on the various bills that ultimately became the Tort Claims Act suggested that the provision that was to become § 2680(c), like the other exceptions from the waiver of sovereign immunity, covered claims “arising out of” the designated conduct. Thus, for example, the House Judiciary Committee described the proposed exceptions as follows:
“These exemptions cover claims arising out of the loss or miscarriage of postal matter; the assessment or collection of taxes or assessments; the detention of goods by customs officers; admiralty and maritime torts; deliberate torts such as assault and battery; and others.” H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945).
The Committees’ casual use of the words, “arising out of,” with reference to the exemption of claims pertaining to the detention of goods substantially undermines petitioner’s contention that the phrase, “in respect of,” was designed to limit the sorts of suits covered by the provision.
Of perhaps greater importance than these two clues as to the meaning of the prepositional phrase contained in § 2680(c) is the fact that our interpretation of the plain language of the provision accords with what we know of Congress’ general purposes in creating exceptions to the Tort Claims Act. The three objectives most often mentioned in the legislative history as rationales for the enumerated exceptions are: ensuring that “certain governmental activities” not be disrupted by the threat of damages suits; avoiding exposure of the United States to liability for excessive or fraudulent claims; and not extending the coverage of the Act to suits for which adequate remedies were already available.
The exemption of claims for damage to goods in the custody of customs officials is certainly consistent with the first two of these purposes. One of the most important sanctions available to the Customs Service in ensuring compliance with the customs laws is its power to detain goods owned by suspected violators of those laws. Congress may well have wished not to dampen the enforcement efforts of the Service by exposing the Government to private damages suits by disgruntled owners of detained property.
Congress may also have been concerned that a waiver of immunity from suits alleging damage to detained property would expose the United States to liability for fraudulent claims. The Customs Service does not have the staff or resources it would need to inspect goods at the time it seizes them. Lacking a record of the condition of a piece of property when the Service took custody of it, the Government would be in a poor position to defend a suit in which the owner alleged that the item was returned in damaged condition. Congress may have reasoned that the frequency with which the Government would be obliged to pay undeserving claimants if it waived immunity from such suits offset the inequity, resulting from retention of immunity, to persons with legitimate grievances.
To a lesser extent, our reading of § 2680(c) is consistent with the third articulated purpose of the exceptions to the Tort Claims Act. At common law, a property owner had (and retains) a right to bring suit against an individual customs official who negligently damaged his goods. Title 28 U. S. C. §2006 provides that judgments in such suits shall be paid out of the Federal Treasury if a court certifies that there existed probable cause for the detention of the goods and that the official was acting under the directions of an appropriate supervisor. Congress in 1946 may have concluded that this mode of obtaining recompense from the United States (or from an individual officer) was “adequate.” To be sure, there are significant limitations to the common-law remedy, the most important of which is the apparent requirement that the plaintiff prove negligence on the part of a particular customs official. Such proof will often be difficult to come by. But Congress may well have concluded that exposing the United States to liability for injury to property in the custody of the Customs Service under circumstances in which the owner is not able to demonstrate such specific negligence would open the door to an excessive number of fraudulent suits.
rH HH HH
Petitioner and some commentators argue that § 2680(c) should not be construed in a fashion that denies an effectual remedy to many persons whose property is damaged through the tortious conduct of customs officials. That contention has force, but it is properly addressed to Congress, not to this Court. The language of the statute as it was written leaves us no choice but to affirm the judgment of the Court of Appeals that the Tort Claims Act does not cover suits alleging that customs officials injured property that had been detained by the Customs Service.
It is so ordered.
Because Guam is outside the customs territory of the United States, all goods imported therefrom are subject to duties. 19 U. S. C. § 1202.
Section 1618 permits the Secretary of the Treasury to remit or mitigate a forfeiture “if he finds that such . . . forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such . . . forfeiture . . . .”
Petitioner also requested damages for two other alleged injuries related to the seizure and detention of his property: the destruction of a cork pagoda by customs officials during the search of petitioner’s house, and the accidental seizure of a sales receipt for a stereo receiver (without which petitioner was unable to obtain warranty repairs). App. 6-7. In his brief, petitioner argues that these two claims are segregable from his primary claim for damages resulting from the injury to the detained goods and merit separate analysis. Because petitioner did not present this argument to the Court of Appeals, we decline to consider it. See United States v. Lovasco, 431 U. S. 783, 788, n. 7 (1977).
Civil Action No. 81-2054 (ED Pa. Oct. 15, 1981). The District Court did not identify the grounds for its ruling. We see no reason to doubt the inference drawn by the Court of Appeals that the District Court was persuaded by the Government’s argument that § 2680(c) barred the suit. 679 F. 2d 306, 307, and n. 2. It would have been better practice, however, for the District Court to have noted the reasons for its judgment.
In three cases, Courts of Appeals have construed § 2680(c) in ways that would not bar petitioner’s suit. A & D International, Inc. v. United States, 665 F. 2d 669 (CA5 1982); A-Mark, Inc. v. United States Secret Service, 593 F. 2d 849 (CA9 1978); Alliance Assurance Co. v. United States, 252 F. 2d 529 (CA2 1958). In two other cases, Courts of Appeals have read the provision as did the Third Circuit in this case. United States v. One (1) Douglas A-26B Aircraft, 662 F. 2d 1372 (CA11 1981); United States v. One (1) 1972 Wood, 19 Foot Custom Boat, FL 8443 AY, 501 F. 2d 1327 (CA5 1974). In Hatzlachh Supply Co. v. United States, 444 U. S. 460, 462, n. 3 (1980), we acknowledged the divergence in the views of the Circuits but expressly declined to decide the issue.
The full text of § 2680(c) provides:
“The provisions of [28 U. S. C. §§ 2671-2679] and section 1346(b) of this title shall not apply to—
“(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.”
We have no occasion in this case to decide what kinds of “law-enforcement officer[s],” other than customs officials, are covered by the exception.
In view of the fact that the Tort Claims Act permits recovery only of “money damages ... for injury or loss of property, or personal injury or death,” 28 U. S. C. § 1346(b), it is unclear whether, even in the absence of § 2680(c), any of the foregoing sorts of damage would be recoverable under the Act. Cf., e. g., Idaho ex rel. Trombley v. United States Dept. of Army, Corps of Engineers, 666 F. 2d 444 (CA9) (adopting a restrictive interpretation of the language of § 1346(b)), cert. denied, 459 U. S. 823 (1982). If the sorts of damages that, under petitioner’s theory, are covered by § 2680(c) would not be recoverable in any event because of the limitation built into § 1346(b), § 2680(c) would be mere surplusage. The unattractiveness of such a construction of the statute, see Colautti v. Franklin, 439 U. S. 379, 392 (1979), would cast considerable doubt on petitioner’s position. However, because the question of the scope of § 1346(b) has not been briefed or argued in this case, we decline to rely on any inferences that might be drawn therefrom in our decision today.
Because petitioner conceded below that the injuries to his property occurred after it had been lawfully detained by customs officers, we need not consider the meaning of the term “detention” as used in the statute.
The Court of Appeals, while properly emphasizing the plain language of § 2680(c) as the basis for its ruling, suggested that the structure of the Tort Claims Act should affect how that language is read. Relying on the principles that “sovereign immunity is the rule, and that legislative departures from the rule must be strictly construed,” the Court of Appeals suggested that § 2680(c), as an exception from a statute waiving sovereign immunity, should be broadly construed. 679 F. 2d, at 308-309. We find such an approach unhelpful. Though the Court of Appeals is certainly correct that the exceptions to the Tort Claims Act should not be read in a way that would “‘nullif[y them] through judicial interpretation,’” id., at 309, unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute. See United States v. Yellow Cab Co., 340 U. S. 543, 548, n. 5 (1951); cf. Block v. Neal, 460 U. S. 289, 298 (1983) (“‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced’ ”) (quoting Anderson v. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.)). We think that the proper objective of a court attempting to construe one of the subsections of 28 U. S. C. § 2680 is to identify “those circumstances which are within the words and reason of the exception” — no less and no more. See Dalehite v. United States, 346 U. S. 15, 31 (1953).
For reiterations of this argument, see A & D International, Inc. v. United States, 665 F. 2d, at 672; A-Mark, Inc. v. United States Secret Service, 593 F. 2d, at 850.
See General Tort Bill: Hearing before a Subcommittee of the House Committee on Claims, 72d Cong., 1st Sess., 17 (1932) (testimony of Assistant Attorney General Rugg).
Judge Holtzoff went on to explain that “[t]his provision is suggested in the proposed draft of the bill submitted by the Crown Proceedings Committee in England in 1927. ...” Holtzoff Report, at 16. The relevant portion of the bill to which Holtzoff referred was even more explicit:
“No proceedings shall lie under this section—
“(c) for or in respect of the loss of or any deterioration or damage occasioned to, or any delay in the release of, any goods or merchandise by reason of anything done or omitted to be done by any officer of customs and excise acting as such . . . .” Report of Crown Proceedings Committee §ll(5)(c), pp. 17-18 (Apr. 1927). (It appears that this bill was never enacted into law in England.)
Mr. Holtzoff wrote his report while serving as Special Assistant to the Attorney General. He had been “assigned by Attorney General Mitchell to the special task of co-ordinating the views of the Government departments” regarding the proper scope of a tort claims statute. See Borchard, The Federal Tort Claims Bill, 1 U. Chi. L. Rev. 1, n. 2 (1983). Holtzoff submitted his report, in which his draft bill was contained, to Assistant Attorney General Rugg, who in turn transmitted it to the General Accounting Office of the Comptroller General. Insofar as Holtzoff’s report embodied the views of the Executive Department at that stage of the debates over the tort claims bill, it is likely that, at some point, the report was brought to the attention of the Congressmen considering the bill. We agree with the dissent that, because the report was never introduced into the public record, the ideas expressed therein should not be given great weight in determining the intent of the Legislature. See post, at 863-864. But, in the absence of any direct evidence regarding how Members of Congress understood the provision that became § 2680(c), it seems to us senseless to ignore entirely the views of its draftsman.
See also S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946); S. Rep. No. 1196, 77th Cong., 2d Sess., 7 (1942); H. R. Rep. No. 2245, 77th Cong., 2d Sess., 10 (1942).
Cf. 679 F. 2d, at 809 (Weis, J., dissenting) (discussed, supra, at 854).
The dissent objects to our effort to test our interpretation of § 2680(c) for conformity with the legislative purposes that underlie § 2680 as a whole, principally on the ground that we take inadequate account of the “central purpose” of the Tort Claims Act. Post, at 866-869. The dissent mistakes the nature of our analysis. Our view is that the language of § 2680(c) is inclusive enough to exempt the United States from liability for negligence in the handling or storage of goods detained by the Customs Service, see supra, at 854. Our purpose in looking to the legislative history is merely to ensure that our construction is not undercut by any indication that Congress meant the exception to be read more narrowly. Because of the sparseness of the evidence regarding the purpose of § 2680(c) itself, see supra, at 855-858, we consider it advisable to consider Congress’ more general objectives in excluding certain kinds of claims from the broad waiver of sovereign immunity effected by the Tort Claims Act. Because we find that our reading of § 2680(c) is consistent with those objectives, we see no need to throw our analytical net any wider.
For a variety of expressions of these three purposes, see S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946); Tort Claims: Hearings on H. R. 5373 and H. R. 6463 before the House Judiciary Committee, 77th Cong., 2d Sess., 33 (1942) (testimony of Assistant Attorney General Shea); Tort Claims Against the United States: Hearings on H. R. 7236 before Subcommittee No. 1 of the House Judiciary Committee, 76th Cong., 3d Sess., 22 (1940) (testimony of Alexander Holtzoff); Hearings, supra n. 11, at 17 (testimony of Assistant Attorney General Rugg); Holtzoff Report, at 15. To our knowledge, the only arguably relevant specific statement as to the purpose of § 2680(c) appears in the testimony of Alexander Holtzoff before a Subcommittee of the Senate Judiciary Committee. Holtzoff emphasized the adequacy of existing remedies as a justification for the portion of the provision pertaining to the recovery of improperly collected taxes; he did not proffer an explanation for the portion of the provision pertaining to the detention of goods. Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38 (1940).
See, e. g., 19 U. S. C. § 1594 (authorizing seizure of “a vessel or vehicle” to force payment of assessed penalties); 19 U. S. C. § 1595a(a) (authorizing seizure of property used to facilitate the illegal importation of other goods).
The Government’s vulnerability to fraudulent claims would be especially great in a case in which the Customs Service took custody of the goods from a shipper rather than from the owner. The shipper would contend that it exercised due care in the handling of the goods. The owner would demonstrate that he received the goods in damaged condition. In the absence of an extensive system for accounting for the movements and treatment of property in its custody, the Customs Service would be hard pressed to establish that its employees were not at fault. We do not suggest that such a dilemma would automatically give rise to liability on the part of the United States; that of course would depend upon the substance of the pertinent state tort law. See 28 U. S. C. §§ 1346(b), 2674. But uneasiness at the prospect of such scenarios may have influenced Congress when it carved out this exception to the Tort Claims Act.
See, e. g., States Marine Lines, Inc. v. Shultz, 498 F. 2d 1146, 1149 (CA4 1974); Dioguardi v. Durning, 139 F. 2d 774, 775 (CA2 1944); J. Story, Commentaries on the Law of Bailments §§ 613, 618, pp. 387, 390 (1832).
See States Marine Lines, Inc. v. Shultz, supra, at 1149-1150.
We note that there exists at least one other remedial system that might enable someone in petitioner’s position to obtain compensation from the Government. If the owner of property detained by the Customs Service were able to establish the existence of an implied-in-fact contract of bailment between himself and the Service, he could bring suit under the Tucker Act, 28 U. S. C. § 1491 (1976 ed., Supp. V). See Hatzlachh Supply Co. v. United States, 444 U. S. 460 (1980).
At oral argument, the Government contended that a property owner could recover against the United States under this theory by bringing suit against the relevant District Director of the Customs Service and would not be obliged to prove negligence on the part of any specific customs official. Tr. of Oral Arg. 28-29. Though we do not decide the issue, such an interpretation of the common-law doctrine appears questionable to us. Except in cases in which the property owner could demonstrate that the Director expressly authorized tortious conduct by a subordinate, it seems likely that the owner would be obliged to identify and bring suit against the individual whose malfeasance caused the injury to his goods.
The dissent finds “internally inconsistent” the foregoing “hypothetical rationales” for § 2680(c). Post, at 865. Thus, the dissent suggests that the fact that an owner of goods damaged by the Customs Service might recover from the United States under the Tucker Act, see n. 22, supra, makes it unlikely that Congress would have been chary of creating a remedy under the Tort Claims Act because of the risk of exposing the Government to an excessive number of fraudulent suits. Post, at 865-866. But the requirement that an owner, to recover under the Tucker Act, prove that the Service entered into an implied-in-fact contract of bailment would operate to screen out many fraudulent claims; Congress rationally could have concluded that, in view of the absence of any comparable filter in the Tort Claims Act, it was inadvisable to extend the coverage of the latter to owners of detained goods. Similarly, the dissent finds it implausible that Congress might have feared that the creation of a remedy against the United States under the Tort Claims Act would inhibit vigorous enforcement of the customs laws, see supra, at 859, when there already existed a common-law remedy against customs officials for negligence in the handling of goods, see supra, at 860-861. Post, at 866. But, as explained above, the apparent requirement that the owner, to recover under the common law, prove negligence on the part of a specific customs official, see supra, at 860-861, and n. 23, combined with the obligation of the United States to indemnify the official if he acted under proper authority, see supra, at 860, would have minimized the effect of the extant remedies on the willingness of the Service to adopt vigorous enforcement policies and the willingness of its officials to implement those policies. Congress might well have feared that the creation of a remedy under the Tort Claims Act would have increased the liability of the United States to such a degree as to curtail the exercise by the Service of its authority to detain goods.
Comment, Governmental Liability for Customs Officials’ Negligence: Kosak v. United States, 67 Minn. L. Rev. 1040 (1983); Note, Using the Federal Tort Claims Act to Remedy Property Damage Following Customs Service Seizures, 17 U. Mich. J. of L. Ref. 83 (1983).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_numresp
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
MARTIN et al. v. UNITED STATES.
Nos. 1705-1709, 1717-1719.
Circuit Court of Appeals, Tenth Circuit.
Dec. 7, 1938.
Rehearing Denied Jan. 9, 1939.
Jean S. Breitenstein, of Denver, Colo. (Louis R. Stein, of El Paso, Tex., on the brief), for appellants Porter Allbee, Andrew Berns, Carl Ernest Brown, Jack Herring, and Harry W. Martin.
J. H. Boutcher, of Denver, Colo., for appellants Oral V. McMenus, Walter Nisun, and Austin Patton Muzingo.
David H. Morris, Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Dist. Atty., of Denver, Colo., and Arthur G. Higgs, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.
Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.
Writ of certiorari denied 59 S.Ct. 590, 83 L.Ed. —.
BRATTON, Circuit Judge.
These eight appeals are from convictions for a conspiracy to violate the Motor Carrier Act of 1935, 49 Stat. 543, 49 U. S.C.A. § 301 et seq. The indictment charged that on or about October 15, 1935, and continuously thereafter to the return of the presentment, Frank Murphy, doing business as Frank Murphy Travel Bureau, in New York City; Made Schultz, doing business as Main Travel Bureau, in New York City; Andrew Berns, doing business as Andy’s Bus Depot, in Chicago; Walter Nisun, doing business as Midway Travel Bureau and NiSun Bus Lines and NiSun Lines, Ltd., in Chicago; Howard Stee'd, doing business as Steed Travel Bureau, in Omaha, Nebraska, also as Steed Travel Bureau and Reliable Travel Bureau, in Denver, Colorado; Oral V. McMenus, doing business as Mack’s Travel Bureau, in Denver, Wm. Gottesman, doing business as Bill’s Reliable Travel Service, in Denver; Edwin Oswald Weimer, doing business as Kane Travel Bureau, in Denver; Monty Cox, doing business as Interstate Employment Tourist Travel Bureau, in Salt Lake City, Utah; James Manasee, doing business as Nu-Way Cut-Rate Travel, in San Francisco, California; Carl Ernest Brown, doing business as Auto Travel Bureau, in Los Angeles, California; Austin Patton Muzingo, doing business as Pat’s Travel Bureau, in Los Angeles; Rosemond Young and Oscar Turlington Marshall, each doing business as Coast to Coast Travel Bureau, in Los Angeles; Stanley Cruson, Colonel Perry, and Phillip Fisher Finch, doing business as DeLuxe Travel Bureau, in Phoenix, Arizona; James R. S. Lefebvre, doing business as U. S. Travel Service, in Phoenix; Harry W. Martin, doing business as Martin Travel Bureau, in El Paso, Texas; Guy Stedham and Doyle Coles, each doing business as Majestic Travel Bureau, in Fort Worth, Texas; Edd Roberts, doing business as A A Travel Bureau, in Fort Worth; V. C. Hale, doing business as All American Travel Bureau, in Fort Worth; John Elliott Frank, doing business as Frank The Travel Man, in Dallas, Texas; Pap Garland and Lee Gsrland, each doing business as Garland Bros. Travel Bureau, in Dallas; Jack Herring, doing business as Interstate Travel Bureau, in Oklahoma City, Oklahoma; Porter All-bee, doing business as Interstate Travel Bureau, in Tulsa, Oklahoma; and James W. Reddick, doing business as AAA Travel Exchange and Grand Travel Exchange, in Kansas City, Missouri, conspired, combined, confederated, and agreed, each with the other and with divers other persons whose names were unknown, to violate the Motor Carrier Act; that they: “so conspired * *' * each with the other, and that they did, and each of them did, unlawfully * * * for compensation negotiate for, and did hold himself out by solicitation, advertisement, and otherwise> as one who sells, provides, furnishes procures, contracts, and arranges for transportation of passengers for the general public in interstate commerce by motor vehicle for compensation over.and upon the public highways of the United States ■* * * and did, for compensation, negotiate for, provide, furnish, procure, contact, and arrange for such transportation of passengers for the general public in interstate commerce by motor vehicle for compensation * * * and was and is a broker and as such broker was and is subject to the Motor 'Carrier Act of 1935 * * *. And that they so conspired * * * each with the other, and that they did, and each of them did, unlawfully * * * enter into the execution of contracts, agreements or arrangements to sell, provide, procure, furnish, and arrange for such transportation; unlawfully * * * to employ for such transportation common carriers of passengers in interstate commerce by motor vehicle for compensation * * *, who or which said common carriers * * * were not the holder or holders * * * of an effective certificate of public convenience and necessity issued by the Interstate Commerce Commission of the United States, authorizing such common carriers to transport passengers for the general public in interstate commerce by motor vehicle for compensation, as aforesaid; such employment of said common carriers, as aforesaid, being unlawful and in violation of Section 211 of the Motor Carrier Act of 1935 [49 U.S.C.A. § 311] * *. Murphy, Schultz, Weimer, Cruson," Finch, and Lefebvre pleaded guilty; the case was dismissed as to Manasee at the close of the evidence submitted by the Government; directed verdicts of not guilty were returned as to Roberts, Frank Garland and Lee Garland; and Berns, Nisun, McMenus, Brown, Muzingo, Martin, Stedham, Herring, and Allbee were convicted. Stedham did not appeal. The others perfected separate appeals.
The Motor Carrier Act is attacked on the ground that it is unconstitutional for the reason that it fails to define a standard of conduct from which it may be determined when and under what circumstances its provisions are violated. The statute provides that it is the declared policy of Congress to regulate transportation by motor carriers engaged in interstate or foreign commerce in such manner as to recognize and preserve its inherent advantages; to foster sound economic conditions in such transportation; to promote adequate, economical, and efficient service by motor carriers; to prevent unjust discriminations, undue preferences or advantages, and unfair or destructive practices; to improve the relations between such carriers and other carriers; and to develop a system of highway transportation properly adapted to the needs of the commerce of the United States and of the national defense. § 202, 49 U.S.C.A. § 302. The term “common carrier by motor vehicle” is defined as any person who undertakes to transport passengers or property for the general public in interstate or foreign commerce by motor vehicle for compensation; the term “motor carrier” is defined to include both a common carrier and a contract carrier by motor vehicle; and the term “broker” is defined to mean any person, not .included in the term “motor carrier” and not a bona fide employee or agent of any such carrier, who sells or offers for sale any transportation subject to the act, or negotiates for or hglds himself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for such transportation. §' 203, 49 U.S.C.A. § 303. The Interstate Commerce Commission is vested with power to administer the statute, that is, to regulate transportation of that kind. §§ 204, 205, 49 U.S.C.A. §§ 304, 305. It is provided that no common carrier subject to the act shall engage in interstate or foreign operation on a public highway, or within a reservation under the exclusive jurisdiction of the United States unless there is in force and effect an authorizing certificate of public convenience and necessity issued by the Commission, § 206, 49 U.S.C.A. § 306; and that no person shall engage in the business of a contract carrier by motor vehicle in such commerce on such a highway or within such a reservation unless there is in force and effect an authorizing permit likewise issued by the Commission. § 209, 49 U.S.C.A. § 309. But it is further provided that nothing contained therein shall be construed to include the casual, occasional, or reciprocal transportation of passengers or property in interstate or foreign commerce for compensation by a person not engaged in such transportation as a regular occupation or business, § 203, 49 U.S.C.A. § 303. It is also provided that no person shall for compensation sell or offer for sale transportation subject to the act or make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation, or hold himself out by advertisement, solicitation, or otherwise as one who does such things unless he holds a broker’s license issued by the Commission, § 211, 49 U.S.C.A. § 311.
Appellants did not transport passengers. They were unlicensed brokers engaged in the business of making arrangements for compensation for transportation of passengers by motor vehicle in interstate commerce. They, therefore, came within the purview of section 211 of the act. But it is argued that the statute fails to provide any standard or guide by which it could be determined whether the persons who transported such passengers were engaged in transportation of that kind as a regular occupation or business and were required to obtain certificates of public convenience and necessity, or were not engaged in such transportation as a regular occupation or business but merely carried such passengers as casual, occasional, or reciprocal transportation, and for that reason no certificate was required. The act brings within its provisions those regularly engaged in the occupation or business of transporting persons or property by motor vehicle in interstate or foreign commerce and excludes casual, occasional, or reciprocal transportation of that kind as a regular occupation or business, without undertaking to define textually either class or to fix a standard by which to determine in advance whether certain conduct is in one class or the other. Reasonable definiteness and certainty is required in the enactment of statutes, but in the very nature of things rules of conduct oftentimes must be stated in general language and. depend for their application upon diversified circumstances. It frequently is impossible to state in detail rules or formulae. which will meet different conditions or varying qualities. A penal statute must be sufficiently explicit to enable a person of ordinary intelligence to understand its provisions but the employment of terms ordinarily used to express ideas is not fatal. The words, “casual”, “occasional”, “reciprocal”, “regular”, “occupation”, and “business” are in common use, and each has a well understood meaning; and in the absence of anything indicating otherwise it is to be presumed that Congress used them in their generally accepted meaning. It manifestly is possible through the exercise of ordinary intelligence to determine with reasonable exactness and certainty whether given facts and circumstances constitute engaging in the transportation of passengers or property as a regular occupation or business, or merely casual, occasional, or reciprocal transportation by one not engaged in it as a regular occupation or business. Accordingly, the statute is not so vague and indefinite that it offends the due process clause. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364; Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; United States v. Alford, 274 U.S. 264, 47 S.Ct. 597, 71 L.Ed. 1040; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; McElvogue v. United States, 8 Cir., 40 F.2d 889; United States v. Hill, 3 Cir., 90 F.2d 573.
Next to be considered are the contentions that there was a variance between the indictment and the proof in that the indictment charged a nationwide conspiracy to violate the statute by the employment of unlicensed carriers in interstate commerce while the proof showed, if anything, several small conspiracies; and that the evidence was insufficient to sustain the charge. These contentions are so interwoven that disposition may be made of them together. The substance of the indictment has been stated. There was evidence that appellants and others similarly engaged operated travel bureaus in cities. jWhile there may have been others located elsewhere, reference is made in the record to two bureaus each in New York, Chicago, Denver, and Los Angeles, and one each in Salt Lake City, Phoenix, El Paso, Fort Worth, Dallas, Oklahoma City, Tulsa, and Kansas City. Signs were usually displayed, sometimes with such words as “share expense plan”. One read: “This bureau has no connection with any bureau operated by Steed, but has working agreements with all other bureaus in Denver and from border to border and Coast to Coast”; another “Baggage Limited”; and a third “Drivers please loaf in the rear.” And rates were frequently posted. Cards were printed usually containing such information as the name, street address, and telephone number. It was the custom for each bureau to send cards to others, and they were preserved as a directory and sometimes displayed. The usual method of business was that a person desiring transportation was charged a fee or compensation which usually ranged from fifty cents to two or three dollars depending upon the length of the trip, and.he was told the time at which it was expected an automobile would depart. The automobile called at the bureau for passengers, and each passenger paid the driver his charge for the transportation. There was one exception. In some instances appellant Nisun collected the charge for the transportation and paid it to the driver. In the event the passenger was bound for a destination beyond that of the automobile, the bureau gave him a card called a transfer stating in substance that he was to be transferred to another automobile. Upon arriving at the destination of the automobile, the passenger presented the transfer to the bureau located there and that bureau placed him in another automobile for part or all of the remainder of the journey. To illustrate, if a passenger starting from New York to Los Angeles was placed in an automobile going no farther than Chicago, he Was given a transfer addressed to a bureau in Chicago requesting that he be transferred to an automobile bound for Los Angeles or some intermediate point, and that process was repeated until he reached his destination. Each driver was paid his charge for transportation, but the intermediate bureaus did not make any charge for the transfers. Each of the bureaus operated by appellants issued one or more transfers to one or more other bureaus or accepted one or more transfers issued by one or more of the others, but in no instance did a single bureau issue transfers to all others or accept transfers from all others. Some of the transfers bore a special notation stating in substance that the passenger desired a regular driver. Some of the appellants solicited business from others through correspondence, and some solicited it through personal visits and interviews. Appellant Nisun stated in a letter to Weimer that he had cars leaving every night for New York. There were two kinds of drivers. Those operating automobiles in such transportation as a business or occupation were called regulars ; and those making occasional or infrequent trips and taking one or more passengers for the purpose of meeting the expense were called angels. There were a great many regulars. About fifty operated out of one of the bureaus in Chicago; about forty out of one in Denver; and about eighty per cent of those operating out of one in Los Angeles were regulars. Five regulars without licenses testified. One made several trips between v Los Angeles and Chicago; he made six or seven out of the bureau of appellant Brown; he stopped at the Kane Travel Bureau in Denver; and he contacted the bureaus of appellants Berns and Nisun in Chicago. Another made four or five trips between Los Angeles and Chicago during one summer; he made two out of the bureau of appellant Brown; he contacted the bureaus of appellants Berns and Nisun in Chicago, that of Steed in Omaha and Denver, and that of Cox in Salt Lake City. A third transported passengers out of Fort Worth, Denver, and Kansas City. A fourth transported passengers out of Fort Worth, Oklahoma City, and Denver. The remaining one transported passengers from El Paso to Dallas; he made three trips out of the State of Texas; and he took passengers from the Martin Travel Bureau in El Paso. And passengers from different bureaus testified concerning other regular drivers. Emphasis is seemingly laid upon the insufficiency of the evidence to sustain the verdict against appellant Martin. There was a Martin Bureau in El Paso. Cards were in it advertising bureaus in different parts of the country. A man named Toby either operated it or was connected with it, but Martin was seen there on one occasion. He visited a bureau in Denver on two occasions, once in 1936 and once in 1937; he stated to an employee there that he owned the bureau in El Paso, and that he was doing a nice business; and on each occasion he and the employee agreed each to send the other all business possible. The bureau in Denver sent cards and passengers to him and received transfers from him. In like manner stress is laid upon the inadequacy of the evidence relating to appellant Allbee. He operated a bureau in Tulsa;* he advertised in the papers; he sent cards to a bureau in Denver on two or three occasions; the cards bore the name of Herring on one side and that of Allbee on the other; he accepted one transfer and arranged for the transfer of the passenger; he sent transfers to the bureau in Denver; and a certain driver who drove for him and Herring made frequent trips to Denver. Appellant Allbee denied much of the testimony establishing these facts but that merely formed an issue of fact for the jury.
In respect to the question of variance there was evidence from which the inference could be reasonably drawn that the system existed throughout a large part of the United States; that all of appellants understood it and participated in it; and that they stood ready to further it by maintaining intercourse with all others through the issuance and acceptance of transfers. A variance is not to be treated as material unless there is a substantial departure of the proof from the charge of a character which could mislead the defendant at the trial. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. There was no departure of that kind here. The proof substantially conformed to the charge. The assertion of a material variance cannot be sanctioned.
Concerning the sufficiency of the evidence, the essence of the crime of conspiracy is two or more persons combining and confederating with the intent and purpose of committing a public offense by doing an unlawful act or doing a lawful act in an unlawful manner. The agreement need not be in any particular form. It is enough if the minds of the parties meet and unite in an understanding way with the single design to accomplish a common purpose,1 and the union of the minds may be proved by circumstantial evidence. The agreement may be inferred from statements, acts, and circumstances. It is frequently not susceptible of direct proof. Parnell v. United States, 10 Cir., 64 F.2d 324; Telman v. United States, 10 Cir., 67 F.2d 716; Brayton v. United States, 10 Cir., 74 F.2d 389; Jaramillo v. United States, 10 Cir., 76 F.2d 700; Marx v. United States, 8 Cir., 86 F.2d 245; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Robinson v. United States, 5 Cir., 94 F.2d 752. And it is not necessary that all of the parties be personally acquainted with each other. Neither is it requisite that one have direct contact with all others. It suffices if with knowledge that others have combined to violate the law, one knowingly co-operates in some affirmative manner to further the purpose of the conspiracy. Booth v. United States, 10 Cir., 57 F.2d 192; Wilder v. United States, 10 Cir., 100 F.2d 177, decided November 28, 1938; Allen v. United States, 7 Cir., 4 F.2d 688. The evidence adduced at the trial with the inferences and deductions reasonably to be drawn from it was sufficient to warrant the jury in finding that an agreement existed to violate the statute and that with knowledge of that fact each of the appellants affirmatively co-operated to further the unlawful design.
Complaint is made in respect to the instructions, also the refusal to give certain requested instructions. It is argued that the gist of the charge was an agreement to employ unlicensed carriers of passengers; that the court failed to so instruct; that instead the jury were erroneously instructed that the charge was a conspiracy to violate subsection (a) of Section 211 of the statute, 49 U.S.C.A. § 311(a), which provides that no person shall sell, offer for sale, provide, procure, furnish, or arrange for transportation, or hold himself by advertisement, solicitation, or otherwise as one who does such things unless he holds a broker’s license authorizing him to engage in such transactions; and that the requested instructions correctly stated the elements of the offense laid in the indictment. The jury were instructed at the outset that the charge was a conspiracy to violate a law of the United States, and the conspiracy statT ute — Section 37 of the Criminal Code, 18 U.S.C.A. § 88 — was quoted; they were then instructed that the object of the conspiracy was to violate one paragraph of the new statute in respect to the regulation of motor vehicles engaged in carrying passengers for hire between states, and subsection (a) of Section 211 was quoted as the provision; and they were further instructed: “The question in this case is, gentlemen, whether these defendants got together, any two or more of them, and had a common understanding that they would violate this law by doing what the government says they did, that is, by soliciting people for hire to go by motor transportation by arranging for their transportation from state to state, or advertising or holding themselves 'out as people properly authorized or able to procure such transportation. * * * If you believe beyond a reasonable doubt, gentlemen, that that was the practice, and that it was a practice and an understood thing between these dealers that they would get people from Chicago to the coast, or vice versa, or from Tulsa to Denver, or vice versa, it makes no difference where, by this method, and would recognize these introductions and forego a fee at every one of these places where a passenger had to transfer from one automobile to another, then you are justified in saying that the conspiracy existed. * * * You cannot convict these defendants for a casual or occasional or reciprocal transportation of passengers or property in interstate commerce for compensation by any person not engaged in transporting by motor vehicles as a regular occupation or business. The occasional act is specifically exempted by this particular act. * * * What is .the evidence here, gentlemen? Briefly, it is something like this. The evidence of the government tends to prove that these different defendants had these several establishments in several different cities of the United States, extending from Chicago through Kansas City, Tulsa, Oklahoma City, Denver, and Salt Lake, two or three places in Texas, and out to California to Los Angeles; that by advertisements and solicitation they would attract passengers, people desiring to go by automobile from state to state, and that for a fee of $1.00, $1.75, or varying amounts, they would arrange for them to get transportation in some other fellow’s automobile — they did not own these cars — and they would send them on to Kansas City, and give them a card of introduction to a man in Kansas City, for instance, who was in the same business, and he would arrange, upon presentation of this card, or letter of introduction, whatever you want to call it, it makes no difference — they would pass them on to another city until they finally reached their destination.”
It is well settled that all parts of the instructions must be considered together, and that excerpts or particular parts cannot be separated and considered apart from the whole. Caldwell v. United States, 10 Cir., 36 F.2d 742; Tanchuck v. United States, 10 Cir., 93 F.2d 534. Considered in that manner it cannot be said that the jury failed to understand the nature of the conspiracy or the facts which must be established in order to warrant a conviction. Furthermore, the trial of the case extended throughout six days. Appellant Allbee testified briefly in his own behalf. Otherwise, appellants did not offer any evidence. An examination of the entire record indicates clearly that the verdict was right, and that the reference to section 211 of the statute cannot be regarded as substantial prejudice. A judgment should not be reversed for a harmless error. Berger v. United States, supra; Tanchuck v. United States, supra; Eierman v. United States, 10 Cir., 46 F2d 46; United States v. Brown, 2 Cir., 79 F.2d 321; Stokes v. United States, 5 Cir., 93 F.2d 744; Stunz v. United States, 8 Cir., 27 F.2d 575; Dye v. United States, 4 Cir., 262 F. 6.
It may be conceded without deciding that each of the requested instructions was accurate in substance. But the instructions of the court fairly and fully covered the issues in the case, and a court is not required to give a requested instruction which is an accurate statement if the subject matter has been appropriately covered in the instructions given. Tingley v. United States, 10 Cir., 34 F.2d 1; Luke v. United States, 5 Cir., 84 F.2d 823; Brett v. United States, 9 Cir., 86 F.2d 305; Bowater v. Worley, 10 Cir., 57 F.2d 970; Detroit Fire & Marine Ins. Co. v. Oklahoma Terminal Elevator Co., 10 Cir., 64 F.2d 671; George v. Wiseman, 10 Cir., 98 F.2d 923.
The remaining contention which merits a word is that the conspiracy statute should not be used to subject one to a more severe penalty than that which may be imposed for the substantive offense. Section 222 of the Motor Carrier Act, 49 U.S.C.A. § 322, provides that the penalty for the first violation of its terms shall be a fine of not more than $100, and that the penalty for each subsequent violation shall be a fine not to exceed $500. Some of appellants were sentenced to the penitentiary and to pay a fine of $500, and others were given jail sentences. But they were found guilty of the crime of conspiracy. The crime is distinct from the offense which the parties intend to ac-complish as the result of the conspiracy; and it is completed when the agreement has been formed, and one or more overt acts have been committed in furtherance of such unlawful design. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Clune v. United States, 159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375; Di Bonaventura v. United States, 4 Cir., 15 F.2d 494; Marcante v. United States, 10 Cir., 49 F.2d 156; Booth v. United States, supra; Marino v. United States, supra; Maryland Casualty Co. v. Hosmer, 1 Cir., 93 F.2d 365.
Section 37 of the Criminal Code, supra, fixes the penalty for the crime of conspiracy, and these sentences were within its limits. The fixing of penalties for criminal offenses is a legislative function; and a sentence within the limits fixed in the statute which has been violated will not ordinarily be disturbed on appeal as being excessive, or cruel, or inhuman. Bailey v. United States, 10 Cir., 74 F.2d 451; Martin v. United States, 10 Cir., 99 F.2d 236.
The remaining contentions are so lacking in merit that they need not be discussed.
The judgments are severally affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_respond1_1_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
The POSTER EXCHANGE, INC., Plaintiff-Appellant, v. NATIONAL SCREEN SERVICE CORPORATION et al., Defendants, Columbia Pictures Corp. et al., Defendants-Appellees.
No. 74-1512.
United States Court of Appeals, Fifth Circuit.
Aug. 8, 1975.
Rehearing and Rehearing En Banc Denied Sept. 24, 1975.
Francis T. Anderson, New Orleans, La., Glenn B. Hester, Augusta, Ga., C. Ellis Henican, Jr., New Orleans, La., for plaintiff-appellant.
Warren O. Wheeler, Tench C. Coxe, Gambrell, Russell, Killorin, Wade & Forbe, Atlanta, Ga., Phillip A. Wittmann, New Orleans, La., for Columbia Pictures Corp. et al.
Walter Beck, New York City, Charles H. Kirbo, John Izard, Atlanta, Ga., for Nat. Screen Serv.
Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
GOLDBERG, Circuit Judge:
This case evolves from the same industry and raises, among others, the same issues decided today in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459 and Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 129, No. 74-2172, also decided today. Plaintiff here, The Poster Exchange Inc., (Poster), an Atlanta-based poster renter, initiated this treble damage suit on February 26, 1969, in the Northern District of Georgia against National Screen Service Corp. (National Screen) and six motion picture producers (Producers) charging their continuation of an unlawful antitrust conspiracy, attempted monopoly, and monopoly, in the motion picture accessory industry in derogation of Sherman Act §§ 1 and 2. In December, 1973, the district court granted the Producers (but not National Screen) a summary judgment on grounds of collateral estoppel and limitations. Poster appeals.
We affirm as to all Producers except Columbia on grounds of collateral estoppel; we reverse as to Columbia, and remand for further proceedings with respect to the claim against it.
I
The industry here is the same as that described in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., supra, but ever since 1943 plaintiff Poster has encountered rougher treatment from National Screen than has its counterpart in New Orleans. After settlement of the first motion picture accessory suit, in Philadelphia in 1943, National Screen granted Exhibitors in New Orleans a sub-license to distribute posters manufactured by National Screen; but, despite repeated requests, plaintiff Poster in Atlanta was afforded no such license. After entering the Atlanta Exchange Market, National Screen did supply Poster with accessories to some extent, until 1961, but these provisions were not sufficient to meet Poster’s needs in supplying all of its own customers, and the prices to Poster were substantially higher than those to other independent poster renters. Finally, on May 16, 1961, Poster was cut off entirely from National Screen’s posters.
In response, Poster sued National Screen in the Northern District of Georgia in 1961, charging National Screen with violations of § 2 of the Sherman Act and praying for treble damages and injunctive relief. The district court denied National Screen’s motion for a summary judgment in its favor, and awarded a preliminary injunction. Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1961, 198 F.Supp. 557. On appeal we affirmed, 5 Cir. 1962, 305 F.2d 647, holding in particular that the outcome of the Philadelphia-based litigation of Lawlor v. National Screen Service Corp., 3 Cir. 1959, 270 F.2d 146, cert. denied, 1960, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742, in Philadelphia was not conclusive in this case.
Poster subsequently filed an amended complaint adding all of the Producers presently charged, save Columbia, as parties defendant. As amended, the complaint recited that each of the Producers, including Columbia, had contracted with National Screen regarding the production and distribution of its accessories, and alleged that the arrangements “were entered into pursuant to and in furtherance of a conspiratorial plan or scheme deliberately concerned and launched by the parties thereto for the purpose of creating a national monopoly of distributing standard accessories.” The Producers moved for summary judgment, which was granted by the district court in 1963. Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1963, 35 F.R.D. 558. In granting judgment, the district court found no genuine issue as to any material facts, and relying on the Lawlor case as stare decisis, concluded that upon the facts asserted by Poster, the Producers were entitled to judgment as a matter of law. Poster appealed, and we affirmed per curiam sub nom. Poster Exchange, Inc. v. Paramount Film Distributing Corp., 5 Cir. 1965, 340 F.2d 320.
Poster’s action against National Screen still remained, and it ultimately won a judgment for damages suffered day to day for the four years prior to initiation of its suit. On National Screen’s appeal we affirmed. Poster Exchange Inc. v. National Screen Service Corp., 5 Cir. 1970, 431 F.2d 334. A few days thereafter Poster initiated this suit against National Screen and all six Producers, complaining that National Screen had continued in its monopoly and attempted monopoly in violation of Sherman Act § 2 and that all the defendants had continued in a “combination and conspiracy... in unreasonable restraint of the interstate trade and commerce in the production and distribution of standard and specialty accessories in violation of Section 1 of the Sherman Act,” through the date of suit, all to the considerable pecuniary damage of Poster.
The district court then granted summary judgment in favor of the Producers on grounds of limitations and res judicata, and Poster appealed. We reversed. Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir.1972, 456 F.2d 662. First, we held that the res judicata reasoning relied upon by the trial court could not support its judgment. Second, we held that the intervening decision in Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 91 5. Ct. 795, 28 L.Ed.2d 77, required a reversal of the district court’s conclusion on the limitations issue. Anticipating the significance of collateral estoppel issues on remand, we additionally directed the district court to the principles enunciated in our 1970 opinion in the New Orleans litigation, Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, cert. denied, 1971, 400 U.S. 991, 91 S.Ct. 454, 27 L.Ed.2d 439. We observed that:
With respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the 1969 suit. As to such acts occurring prior to 1965, it can recover for such damages as could not reasonably have been proved prior to February 26, 1965....
456 F.2d at 667. Moreover, in remanding the case we advised that:
Good judicial husbandry calls for an effective pretrial management of this case which has now occupied the attention of not less than four trial judges, fifteen Circuit judges and Supreme Court justices twice. [T]he District Court should require by suitable means that Poster outline in detail what its claim is. The Court should determine as to the parties to the 1963 suit what, if any, issues were necessarily determined in the 1963 summary judgment.... Then, with precision, Poster should demonstrate what post-1961 acts substantively constitute antitrust violations on theories declared in [our 1970 opinion in the New Orleans litigation]. With respect to such substantive acts occurring prior to February 26, 1965, Poster should show the relevant facts on which to fix the earliest reasonable time or times for which damages for such claim or claims could have been proved to fix the commencement of the limitations period under Zenith. Considering the persistent inability of Poster to appreciate the significance of res judicata- — collateral estoppel or the difficulties from parrotting the prior complaints in amended ones covering different periods of time and, on the other hand, like persistence by National [Screen] in asserting contentions now so often rejected by us, it would surely be in order to appoint a special master (F.R.Civ.P. 53), with his allowance to be taxed as costs for an orderly determination of just what remains to be disposed of by summary judgment on the basis of the facts, not just pleadings, or by trial.
456 F.2d at 668.
Pursuant to our recommendation, on remand the district court did appoint a master to facilitate the progress of Poster’s lawsuit. In a response to the master’s order to outline in detail the precise nature of its claims and state “the specific acts (or nonacts) of the defendants to be relied upon as proof of [the alleged] violations,” Poster recited the pre1961 history of dealings between the Producers and National Screen in regard to the standard motion picture accessory market, and charged that all the defendant Producers have persisted through the four-year period preceding suit (February 26, 1965, to February 26, 1969) in their alleged exclusive dealing with National Screen. As in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459, the plaintiff asserted no basis for belief or inference that the alleged Producer-conspirators have engaged in conduct different in any way from that complained of in the prior suit against them. After an exhaustive review of the record in the prior case in which the Producers had won summary judgment, the master determined that in this action Poster complains only of the Producers’ continuation in the conduct adjudged lawful in the district court’s 1963 summary judgment in their favor. The master thus concluded that the Producers who were defendants in that prior action were entitled to a summary judgment on the basis of collateral estoppel. Moreover, the master observed that the allegations and attempted proof of conspiracy in Poster’s 1961 suit applied equally to Columbia although Columbia was itself not a defendant, and recommended on that basis that Columbia was equally entitled to employ the 1963 judgment as an estoppel against Poster’s present case against it for continuation in identical conduct. Finally, the master suggested that Poster’s claims against all the Producers were barred by the four year statute of limitations, because the acts complained of transpired more than four years prior to the initiation of this suit in 1969, and because Poster had not shown its case to come within the Zenith exception, see Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77, permitting the present recovery of previously unprovable damages from prior actionable antitrust acts. After reviewing the record, the master’s report, and Poster’s objections to that report, the district court entered an opinion adopting the recommendations of the master in full, and granted the Producers a summary judgment.
II
We are faced with three issues on this appeal: first, the correctness of the district court’s collateral estoppel holding in favor of the Producer defendants exonerated in Poster’s 1961 suit; second, the entitlement of Columbia — -which was not a defendant in that suit — to employ it as a collateral estoppel here; third, the applicability of the statute of limitations to bar Poster’s claim against these defendants’ allegedly continuing antitrust conspiracy.
We have no difficulty in affirming the district court’s collateral estoppel judgment for the Producers who were charged as defendants in Poster’s 1961 suit. This aspect of the case is identical to and controlled by our decision today in Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir., 517 F.2d 110, No. 74-1459. Poster has failed to demonstrate any change in the facts or circumstances differentiating the conspiracy alleged here from the conspiracy among the identical defendants alleged and unproved in its 1961 suit. The entire case alleged against the Producers is that they have continued to supply National Screen with accessories, pursuant to the pre-1961 allegedly exclusive dealing contracts unsuccessfully sued upon in Poster’s last action. As in Exhibitors Poster Exchange, the sole argument raised by Poster against collateral estoppel is that it cannot be estopped by a summary judgment entered without specific findings. But as we have pointed out today in Exhibitors Poster Exchange, this argument has already been rejected in our 1970 opinion in the New Orleans litigation, Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, 1319-20, and we are bound by that decision.
The summary judgment entered in the 1961 suit by necessity determined that upon the facts shown none of the Producer defendants had conspired unlawfully with Columbia. Columbia seeks here by that judgment to estop Poster from proceeding on its allegations that Columbia illegally conspired with the remaining Producers. We agree with the district court that collateral estoppel is correctly invoked here with respect to Columbia as well. Prior practice would not have recognized the estoppel here, for lack of mutuality, but as we recognized in Rachal v. Hill, 5 Cir. 1970, 435 F.2d 59, 61-62:
Although many states still honor the rule of mutuality of estoppel, the modern trend has been to discard the rule and preclude a party from relitigating an issue decided against him in a prior action, even if the party asserting the,, estoppel was a stranger to the prior action.....The federal rule comports with the modern trend and thus it is clear that the requirements of mutuality need not be met for collateral estoppel to be applied in an action presenting a federal question in the courts of the United States.
See also Zdanok v. Glidden Co., 2 Cir. 1964, 327 F.2d 944, 954-56, cert. denied 1964, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298; Bruszewski v. United States, 3 Cir. 1950, 181 F.2d 419, cert. denied, 1950, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632; Bernhard v. Bank of America, etc., 1942, 19 Cal.2d 807, 811-13, 122 P.2d 892, 894-95. This trend, which has been smiled upon by the Supreme Court, see Blonder-Tongue Laboratories, Inc., v. University of Illinois Foundation, 1971, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, has already been embraced by this Court. See Cheramie v. Tucker, 5 Cir. 1974, 493 F.2d 586, 589 n. 10; Rachal v. Hill, supra; see also James Talcott, Inc. v. Allahabad Bank, Ltd., 5 Cir. 1971, 444 F.2d 451, 461; Monsanto Co. v. Dawson Chemical Co., 5 Cir. 1971, 443 F.2d 1035; Seguros Tepeyac, S.A., Compania Mexicana v. Jernigan, 5 Cir. 1969, 410 F.2d 718, 727, cert. denied, 1969, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181. Where mutuality is lacking, a plaintiff may not be collaterally estopped if he did not enjoy “a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time,” Blonder-Tongue, supra, 402 U.S. at 333, 91 S.Ct. at 1445, 28 L.Ed.2d at 802, quoting Eisel v. Columbia Packing Co., D.Mass.1960, 181 F.Supp. 298, 301. But here, where plaintiff Poster had the initiative in a recognizably substantial litigation, and specifically chose to cite Columbia as one of the alleged conspirators, there is no suggestion of any failure of fairness in the original litigation, so as to render it unsupportive of an estoppel. See generally, Blonder-Tongue, supra, 402 U.S. at 332-34, 91 S.Ct. at 1444-1446, 28 L.Ed.2d at 402; Zdanok v. Glidden Co., supra, 327 F.2d at 955—56; James Talcott, Inc. v. Allahabad Bank, Ltd., supra, 444 F.2d at 462-63. Admitting “that in the modernized version of the law of collateral estoppel the ancient requirements of mutuality is no longer necessary,” Poster’s argument on this aspect of its appeal is only a recitation of its position that collateral estoppel must be based upon the result of a trial to the jury. A plaintiff’s failure to muster sufficient proof to survive a summary judgment motion in the trial court or to sustain a jury verdict, however, is no demonstration’ that it was denied a fair opportunity to present its claim. See Cheramie v. Tucker, supra.
We believe that the district court did err, however, in holding that Poster’s entire claim against Columbia was resolved by the collateral estoppel of the summary judgment for the Producers in Poster’s 1961 suit. No judgment was ever entered in that litigation regarding the allegation that Columbia conspired with National Screen for the purpose of establishing or augmenting National Screen’s monopoly. Thus, we cannot agree that Poster is collaterally estopped from maintaining its claim in this suit that Columbia’s relations with National Screen amount to a vertical § 1 conspiracy.
Ill
Poster’s remaining claim against Columbia is that Columbia continued through the four year period preceding initiation of this suit in 1969 to conspire with National Screen to consolidate National Screen’s monopoly position as the sole distributor of standard motion picture advertising accessories, in return for a share of the monopoly profits extracted from theater owners left dependent upon National Screen for their supplies. Accordingly, Poster seeks to recover triple the damages it has suffered during this four year period which result from the continuation of the alleged conspiracy and monopoly during this four year period.
The district court believed that Poster’s claim was barred by the four year statute of limitations, 15 U.S.C. § 15b, however, because it considered Poster’s claim as one arising essentially from National Screen’s May 16, 1961, refusal to continue dealing with Poster. In adopting this approach the court adhered to the view expressed in its earlier summary judgment for all the Producers, Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1969, 306 F.Supp. 491, 492, “That the theory of ‘continuing conspiracy’ is not the law in the Fifth Circuit.” But we reversed that summary judgment, 5 Cir. 1972, 456 F.2d 662, in light of Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 338—42, 91 S.Ct. 795, 806-808, 28 L.Ed.2d 77, 92—94. There we said:
[T]he statute of limitations problem is present with respect to (i) pre-1961 conduct (or non-action) not foreclosed by collateral estoppel and (ii) post-1961 conduct occurring more than four years prior to [the filing of this suit].
Here Zenith, supra, cuts a big figure. First, whatever expressions we have used from time to time, which might suggest that in antitrust situations there is no such thing as a continuing conspiracy, now must yield their sweeping force..
More importantly, what is emphasized, perhaps for the first time, is that for acts which have long since taken place — and which are in no sense repeated in conjunction with new acts (or non-acts) — the act in effect is “revived” as a basis for later damages under a certain circumstance. That circumstance is the inability of the injured victim to earlier prove with requisite certainty the existence and amount of damages. In that circumstance it is a holding that in antitrust cases subsequent damages have not yet “accrued.” They do not “accrue” until they can be reasonably established. The moment the victim can prove such subsequent damages, the statute begins to run leaving four more years in which to assert them.
456 F.2d at 666-67. Thus, we concluded that:
With respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the initiation of [this suit]. As to such acts occurring prior to 1965, it can recover for such damages as could not reasonably have been proved to February 26, 1965.
456 F.2d at 467.
On remand Poster declined to bring forward any evidence to show that it now suffers any damages from pre1965 acts, which damages were unprovable before February 26, 1965. Thus, this aspect of Zenith is out of the case. As we have already stated, however, Poster has consistently maintained, in reliance on the “continuing conspiracy” aspect of Zenith, that it is entitled to recover for damages accruing during the four year period preceding this suit which have been caused by continuation of the alleged injurious acts of the alleged conspiracy and monopoly during that period. Poster is correct in this assertion. To repeat our 1972 opinion once again, we held that “with respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the [initiation of this] suit.” As we have pointed out in part II, supra, Poster’s claim against Columbia for conspiring with National Screen is not foreclosed by the 1963 summary judgment in favor of the other Producers, and thus it is clear from our previous opinion — which binds us at the least as the law of the case and stare decisis — that this claim is not barred by limitations. The vigor with which counsel have debated the limitations issue, however, and the decisions below and in Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir., 517 F.2d 129, No. 74-2172, persuade us of the necessity to explain in some greater detail the precise rationale of our holding on this complex issue.
Since Crummer Co. v. Du Pont, 5 Cir. 1955, 223 F.2d 238, 248, we have recognized that for statute of limitations purposes a new cause of action against an antitrust conspiracy arises “from each act in violation of the antitrust laws for the damages flowing therefrom.” The question presented here is whether the alleged continuing conspiracy and monopoly interfering with Poster’s ability to supply itself with advertising accessories is to be treated for statute of limitations purposes as a single act and invasion of Poster’s rights, occurring with the original refusal to deal on May 16, 1961, or with the earlier birth of the alleged conspiracy, or whether it may be viewed as a continuing series of acts upon which successive causes of actions may accrue. We are persuaded that the latter view is correct.
Columbia’s argument to the contrary rests upon Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., N.D.Ala. 1960, 197 F.Supp. 333, 338, opinion on limitations adopted, 5 Cir. 1961, 295 F.2d 362 to establish that a continued refusal to deal such as Poster allegedly suffers from here constitutes a single invasion of the plaintiffs’ right, and gives rise to a single substantive cause of action. The plaintiff wholesaler in Norman Tobacco complained of a “classic” conspiratorial refusal to deal by the defendant manufacturer Gillette; but the Court held that the plaintiff’s suit was barred under the then applicable Alabama one year limitations statute, since the initial cut-off had occurred more than a year before the suit was filed, and since there was no reiteration of the refusal within a year. The court also reasoned, that even if the refusal had been reiterated during the latest year, “it probably would not constitute an actionable claim.” 197 F.Supp. at 338 n. 17. This conclusion was apparently reached upon the reasoning that “recovery in this action may not be predicated upon the theory that the original refusal to deal is in the nature of a continuing tort or done pursuant to a continuing conspiracy.” Id. 338.
A subsequent case, Braun v. Berenson, 5 Cir. 1970, 432 F.2d 538, 542, while distinguishing Norman Tobacco, recognized that the dictum there was in accord with the refusal to deal cases from other jurisdictions which held in similar circumstances that “the cause of action accrued when the initial refusal to deal was made, and was therefore barred by the running of the statute of limitations, because the damages suffered by the distributors were sustained at that time and in no way altered or affected by the subsequent refusals occurring within the limitations period.” Id. 542—43. See, e. g., Garelick v. Goerlich’s, Inc., 6 Cir. 1963, 323 F.2d 854.
We are persuaded that after Zenith and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 1968, 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231, 1246, the Norman Tobacco dictum cannot be understood to control, at least in this monopoly context. As we particularly noted in our last opinion in this Atlanta litigation, “Here Zenith, supra, cuts a big figure.... [Wjhatever expressions we have used from time to time, which might suggest that in antitrust situations there is no such thing as a continuing conspiracy, now must yield their sweeping force.” 456 F.2d at 666.
Poster’s complaint in this case is based on continuing antitrust behavior, not merely the continuing damage it feels from a single day’s monopoly and refusal to deal in 1961. Indeed, our 1970 opinion affirming Poster’s recovery in its 1969 trial against National Screen of damages whose computation was based on a day by day calculation of accruing injury according to Bigelow v. R. K. O. Radio Pictures, Inc., 1945, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, demonstrates the continuing nature of the injury Poster complains of, as well as its daily calculability. Cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 3 Cir. 1967, 377 F.2d 776, 794, aff’d in this regard, 392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246, distinguishing Norman Tobacco, supra. Moreover, in cases where plaintiffs have suffered from a continued refusal to deal, they have been forbidden to prove damages inflicted by persistence of the refusal after the date of filing suit, precisely on the ground that a plaintiff is barred from recovering on injuries caused by wrongful acts subsequent to suit, and the
cause of action is founded on an act of a continuing nature. The [initial] express refusal to deal constituted no more than a refusal to deal at that time.
Flintkote Co. v. Lysfjord, 9 Cir. 1957, 246 F.2d 368, 394—96, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46; Connecticut Importing Co. v. Frankfort Distilleries, 2 Cir. 1939, 101 F.2d 79; Frey & Son, Inc., v. Cudahy Packing Co., D.Md.1917. 243 F. 205. See also Momand v. Universal Film Exchange, Inc., D.Mass.1942, 43 F.Supp. 996, 1006, aff’d, 1 Cir. 1948, 172 F.2d 37, 49, cited with approval in Zenith, 401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92.
The Supreme Court’s approval of this approach is indicated in Hanover Shoe, supra. There the antitrust defendant had exercised its monopoly power since 1912 to force the plaintiff to lease (and not buy) its machinery at monopoly rates but the plaintiff did not sue until 1955. The Court held that the antitrust action was not barred by the statute of limitations with respect to the period 1951 — 1955 because
[w]e are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span. Cf. Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (C.A. 7 1956), upon which [the defendant] relies. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing' and accumulating harm on [the plaintiff],
392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246. This language applies equally aptly to the matter at bar.
These authorities lay to rest the theory that under Norman Tobacco’s dictum, suit upon a continued antitrust violation must be prosecuted within four years from the first act of illegality (plus, of course, any period during which the limitations period was tolled). Where the violation is final at its impact, for example, where the plaintiff’s business is immediately and permanently destroyed, or where an actionable wrong is by its nature permanent at initiation without further acts, then the acts causing damage are unrepeated, and suit must be brought within the limitations period and upon the initial act. But here, where the action complained of was the exclusion of Poster from any participation in the standard accessory industry, such action, while perhaps unequivocal, was not of necessity permanent, see Flintkote Co. v. Lysfjord supra, 246 F.2d at 395; see also Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 328 n. 13 and accompanying text, 75 S.Ct. 865, 868 n. 13, 99 L.Ed. 1122, 1127, “we are not dealing with an act which occurs within some specific and limited time span.... Rather, we are dealing with conduct which constituted a continuing violation.” See also Baker v. F. & F. Investment, 7 Cir. 1970, 420 F.2d 1191, 1200; Highland Supply Corp. v. Reynolds Metals Co., 8 Cir. 1964, 327 F.2d 725, 732; Susser v. Carvel Corp., S.D.N.Y.1962, 206 F.Supp. 636, 651-52, aff’d, 2 Cir. 1964, 332 F.2d 505, cert. dismissed, 1965, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284; Cardinal Films, Inc., v. Republic Pictures, Corp., S.D.N.Y.1957, 148 F.Supp. 156, 159-60. This reasoning is sealed by the unqualified embrace in Zenith of the recognition that each injurious act of a continuing conspiracy gives rise to an antitrust cause of action, and the Zenith opinion’s conspicious selection of authorities eschewing the requirement of acts different in kind to set up a later accruing cause of action:
In the context of a continuing conspiracy to violate the antitrust laws. [it] has usually been understood. that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. See, e. g., Crummer Co. v. Du Pont, 223 F.2d 238, 247-48 (C.A. 5 1955); Delta Theaters, Inc. v. Paramount Pictures, Inc., 158 F.Supp. 644, 648 (E.D.La.1958); Momand v. Universal Film Exchange, Inc., 43 F.Supp. 996, 1006 (D.Mass.1942), aff’d, 172 F.2d [37], at 49 (C.A. 1 1948).... Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date.
401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92. Here, Poster complains that during the four-year period sued upon, it has been continually injured by Columbia’s and National Screen’s conspiratorial foreclosure of Poster from access to supplies. Under Zenith we are obliged to recognize Poster’s continually accruing cause of action during this period.
Moreover, aside from the conclusive effect of these authorities, any other result here would, we think, improperly transform the limitations statute from one of repose to one of continued immunity. For according to Columbia’s argument, a plaintiff who suffers continuing damage from the continued invasion of a monopoly and exclusion from the market is barred not only from proving violations and damages more than four years old, but is barred forever from complaining of the continuing excuse of the unlawful conduct. The function of the limitations statute is simply to pull the blanket of peace over acts and events which have themselves already slept for the statutory period, thus barring the proof of wrongs embedded in time-passed events. See Delta Theaters, Inc. v. Paramount Pictures, Inc., E.D.La.1958, 158 F.Supp. 644, 648. Employing the limitations statute additionally, to immunize recent repetition or continuation of violations and damages occasioned thereby not only extends the statute beyond its purpose, but also conflicts with the policies of vigorous enforcement of private rights through private actions. See generally Zenith, 401 U.S. at 340, 91 S.Ct. at 807, 28 L.Ed.2d at 93; Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 329, 75 S.Ct. 865, 869, 99 L.Ed. 1122, 1128; Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, 1318.
The authorities cited above establish that continuing antitrust conduct resulting in a continued invasion of a plaintiff’s rights may give rise to continually accruing rights of action. It remains clear nonetheless that a newly accruing claim for damages must be based on some injurious act actually occurring during the limitations period, not merely the abatable but unabated inertial consequences of some pre-limitations action.
Generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business. See, e. g., Suckow Borax Mines Consolidated, Inc., v.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
UNITED STATES ex rel. BECK v. NEELLY.
No. 10715.
United States Court of Appeals Seventh Circuit.
Feb. 20, 1953.
Rehearing Denied March 17, 1953.
Albert W. Dilling and Kirkpatrick W. Billing, Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anna R. Lavin, Assts. U. S. Atty., Chicago, Ill. (John M. McWhorter, Acting District Counsel Immigration & Naturalization Service, of Chicago, Ill., of counsel), for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
Petitioner, relator in a habeas corpus proceeding in the District Court, appeals from an order dismissing her petition.
The essential facts are undisputed. Petitioner, a citizen of Canada, entered the United States legally September 19, 1926, when some sixteen years of age. Three years later, she was brought before the United States immigration authorities in a deportation hearing, at which she was represented by counsel, and found deportable on the charge that she was an inmate of a house of prostitution. A warrant issued and petitioner left the country voluntarily on April 26, 1929. She reentered the same day without any legal permission so tó do.
A little over a year later, June 20, 1930, she was again brought before the immigration officials who found that she was de-portable because, at the time of her reentry following her first deportation, she had no immigration visa, was then likely to become a public charge, was a prostitute, had returned to the United States after having been deported, had reentered by means of false and misleading statements, without inspection, and was then a member of a class excluded by law. In pursuance of a warrant then issuing she was again deported on August 28, 1931.
About a month later, in September, 1931, she again entered the United States without a visa. Having been arrested on a warrant issued December 24, 1931, charging, among other things, that she had entered by means of false and misleading statements, at a hearing on February 23, 1932, she was found to be in the country illegally and again ordered deported April 5, 1932.
On September 23, 1931 petitioner had married a Cuban. Consequently, the Canadian government ruled that she was no longer a Canadian citizen, and refused to accept her as a deportee. The warrant of deportation could not be executed, as Canada persisted in its refusal to accept her until August 16, 1945.
In 1946 petitioner moved to reopen the proceeding on the ground that her admission of prostitution at the first hearing on March 12, 1929 had been secured by duress and coercion and that she had not then been represented by counsel. The motion to reopen was granted and the rehearing held on July 7, 15,.25, 31 and November 14, 1947, at all of which times she was represented by counsel of her own selection, except that on the last day, November 14, 1947 she waived counsel. At the conclusion of tlie hearing, the inspector found that she was an alien who had been arrested and deported in pursuance of law; that the Secretary of Labor had not granted her permission to reapply for admission; that she had reentered the United States, after having been deported as a prostitute, and that at the time of her entry she was not in possession of an immigration visa. She appealed to the Board of Immigration Appeals, which, on November 9, 1949, approved the finding and directed that she be deported to Canada.
The District Court, after hearing, entered an order denying petitioner’s motions to quash the warrant, found the issues in favor of respondent, dismissed the writ and remanded petitioner to the custody of respondent. Assuming arguendo, but not deciding that petitioner may collaterally attack the record of previous deportation proceedings we pass to the essential questions presented by petitioner, viz.: whether (1) there was a denial of fair hearing before the immigration authorities, (2) the latter’s findings were supported by adequate evidence, and (3). any erroneous rule of law was applied. A subordinate question presented is whether the hearing on which the warrant of deportation of December 9, 1949 is governed by the Administrative Procedure Act.
The then applicable Act, 8 U.S.C.A. § 155(a), provided that any alien who, after being deported as a prostitute, shall return to and enter the United States, shall, upon the warrant of the Attorney General, be taken into custody and deported; section 213(a), that no immigrant shall be admitted to the United States unless she has an unexpired immigration visa or comes within certain oilier exempt classes not pertinent in this case, and section 214, that any alien found in the United States not entitled to entry shall be taken into custody and deported. Section 155(a) also provided that in every case where a person is ordered deported from the United States, the decision of the Attorney General shall be final.
Under the statute the courts may not interfere with the administrative determination unless, upon the record, the proceedings were manifestly unfair or substantial evidence to support the finding is lacking, or error of law has been committed, or the evidence reflects manifest abuse of discretion. U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, 634. In other words, the findings of administrative officials in charge in such cases will be set aside by the court only upon proof of at least one of these situations. Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579, 581; Yep Suey Ning v. Berkshire, 9 Cir., 73 F.2d 745; Louie Lung Gooey v. Nagle, 9 Cir., 49 F.2d 1016, 1017; Taranto v. Haff, 10 Cir., 88 F.2d 85; U. S. ex rel. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; U. S. ex rel. Rennie v. Brooks, D.C., 284 F. 908.
With this rule in mind, we examine the evidence submitted upon the fairness of the hearings, including the original one of 1929. At that time petitioner was first questioned by the immigration inspector, in the absence of counsel. She stated that she had recently been arrested in Detroit, in a house of prostitution; that, while living there, she had had illicit relations with four or five different men; that she had had similar relations with men in Canada before coming to the United States, beginning when she was 14 years of age. Thereupon a warrant issued charging that she was in the country in violation of the law. A hearing was held on March 12, 1929, at which time she was represented by counsel of her own choice. A transcript of the statements she had previously made before the inspector was read to hér and she was asked if the statements were true. In the presence of her counsel, and without objection upon her part or that of her counsel, she replied that they were true and correct. Thereupon the transcript was received in evidence. Her testimony in the present proceeding is that the basis for issuance of the warrant consisted of false charges and that her testimony was given under duress. Inasmuch as it is undisputed that in her counsel’s presence at the original hearing she admitted the truth of the statements without objection by her or by her counsel, the trial court was amply justified in finding that the hearing was fair; that no erroneous application of the law was involved and that the administrative finding was justified and warranted the order of deportation.
True it is that at the time of the first interview with the inspector she was without counsel; but subsequently, at the hearing, she was represented by counsel and in his presence and, as we have seen, without objection, admitted the truth of what she had previously said, fully supporting the findings made. This is within^he case of Low Wah Suey v. Backus, 225 U.S. 460 at page 470, 32 S.Ct. 734, 736, 56 L.Ed. 1165, where the court said: “This objection, in substance, is that, under examination before the inspection officer, at first she had no counsel. Such an examination is within the authority of the statute, and it is not denied that at subsequent stages of the proceedings and before the hearing was closed or the orders were made she had the assistance and advice of counsel.’’ To the same effect are U. S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155-156, 44 S.Ct. 54, 68 L.Ed. 221, and Ung Bak Foon v. Prentis, 7 Cir., 227 F. 406, 409; United States ex rel. Di Battista v. Hughes, 3 Cir., 299 F. 99, 101 and 102.
Petitioner insists that the review was conducted in violation of the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. It should be observed, however, that that Act specifically exempts proceedings originating before it became effective, September 11, 1946. She insists further that the hearing before Inspector Friedman in 1947, when the Act was effective, was in violation of the Act. Section 12 of the Act provides that “no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement.” In Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 515, 96 L.Ed. 586, where the proceedings were instituted before September 11, 1946, the court said: “Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.” This language is decisive of.the issue before us, for here, as there, the proceedings had been instituted before September 11, 1946. Furthermore, if we should assume arguendo that there is merit to petitioner’s contention in this respect, she raised the objections too late. Thus, in United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36, 73 S.Ct. 67, 68, the court said: “We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative ag.ency be made while it has opportunity for correction in order to raise issues reviewable by the courts. * * * Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”
Upon a full review of all the evidence we find that there was adequate substantial evidence to support the findings in each of the deportation proceedings; that there was no misapplication of the law; that the hearings were fair and that petitioner has no just cause for complaint.
The judgment is affirmed.
. United States ex rel. Steffner v. Carmichael, 5 Cir., 183 F.2d 19; Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579; United States ex rel. Koehler v. Corsi, 2 Cir., 60 F.2d 123.
. Similar provisions appear in the present Act, 8 U.S.C.A. § 1101 et sequi. See sections 1182, 1251 and 1252.
Question: What is the 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_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
FROZEN FOOD EXPRESS v. UNITED STATES et al.
No. 158.
Argued March 7, 1956.
Decided April 23, 1956.
Carl L. Phinney argued the cause and filed a brief for Frozen Food Express, appellant in No. 158 and appellee in Nos. 159, 160 and 161.
Robert W. Ginnane argued the cause for the Interstate Commerce Commission, appellant in No. 159 and appellee in No. 158. With him on the brief was Leo H. Pou.
David G. Macdonald argued the cause for the American Trucking Associations, Inc., et al., appellants in No. 160. With him on the brief were Francis W. Mclnerny, Peter T. Beardsley, Clarence D. Todd and Dale C. Dillon.
Charles P. Reynolds and Carl Helmetag, Jr. submitted on brief for the Akron, Canton & Youngstown Railroad Co. et al., appellants in No. 161.
Mr. Justice Douglas
delivered the opinion of the Court.
Part II of the Interstate Commerce Act, 49 Stat. 543, as amended, 49 U. S. C. § 301 et seq., grants the Commission pervasive control over motor carriers. Common carriers and contract carriers by motor vehicle, subject to that part of the Act, must have a certificate of public convenience and necessity or a permit issued by the Commission. §§ 206 (a), 209 (a). The Commission has powers of investigation to determine if a motor carrier has complied with the Act; and it has authority to issue an order compelling compliance. § 204 (c). These requirements for a certificate or permit are not, however, applicable to “motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural (including horticultural) commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation.” §203 (b)(6).
The controversy in these cases centers around this “agricultural” exemption. After an investigation instituted on its own motion, the Commission issued an order that specified commodities are not “agricultural” within the meaning of § 203 (b)(6).
The hearing to determine the meaning and application of the term “agricultural . . . commodities (not including manufactured products thereof)” as used in § 203 (b)(6) was held before an examiner. It was a public hearing at which various governmental officials and agencies and various producers, shippers, and carriers appeared and presented evidence. The Commission’s decision was in the form of a report and order. 52 M. C. C. 511. The report, which concerns various groups of commodities, covers 71 pages of the printed record. The findings list those commodities that the Commission finds are exempted under § 203 (b) (6) and those that are not. The order of the Commission incorporates the “findings” and states that the proceeding “be, and it is hereby-discontinued.”
Frozen Food Express, the plaintiff, is a motor carrier transporting numerous commodities which the Commission ruled were nonexempt under § 203 (b)(6) but which the carrier claims are “agricultural commodities.” Plaintiff, who was not a party to the administrative proceeding, instituted suit before a three-judge District Court (28 U. S. C. § 2325) to enjoin the order of the Commission and have it set aside, naming the United States and the Commission as defendants. 28 U. S. C. § 1336; 49 Stat. 550, as amended, 49 U. S. C. § 305 (g); 60 Stat. 243, 5 U. S. C. § 1009. The complaint alleged that plaintiff is a common carrier by motor vehicle, holding a certificate of public convenience and necessity which authorizes it to transport certain commodities between designated points and places; that plaintiff is transporting, in addition to those commodities, commodities which are exempt under § 203 (b) (6) and for which plaintiff has sought no authority from the Commission; that the Commission in its order has held the latter commodities nonexempt and accordingly has deprived it of the right granted by the statute; that the order of the Commission classifying certain commodities as nonexempt is unlawful; and that the Commission threatens to enjoin transportation of the commodities' which plaintiff claims are exempt. The Secretary of Agriculture intervened, supporting plaintiff’s position on some of the commodities. Other interveners are trucking associations and railroads which support the Commission. The United States as a defendant supports the Commission on some of its findings and opposes it on others.
The District Court, being of the view that .the case was controlled by United States v. Los Angeles R. Co., 273 U. S. 299, dismissed the action, saying that the “order” of the Commission was not subject to judicial review. 128 F. Supp. 374. The cases are here by appeal. 28 U. S. C. §§ 1253, 2101 (b).
We disagree with the District Court. We do not think United States v. Los Angeles R. Co., supra, is controlling here. In that case the “order” held nonreviewable was a valuation of a carrier’s property made by the Commission. The Court held that the “order” was no more than a report of an investigation which might never be the basis of a proceeding before the Commission or a court. Mr. Justice Brandéis, speaking for the Court, said:
“The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing, any thing; which does not grant or withhold any authority, privilege or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier’s existing or future status or condition; which does not determine any right or obligation. This so-called order is merely the formal record of conclusions reached after a study of data collected in the course of extensive research conducted by the Commission, through its employees. It is the exercise solely of the function of investigation. . . .” 273 U. S. 309-310.
The situation here is quite different. The determination by the Commission that a commodity is not an exempt agricultural product has an immediate and practical impact on carriers who are transporting the commodities, and on shippers as well. The “order” of the Commission warns every carrier, who does not have authority from the Commission to transport those commodities, that it does so at the risk of incurring criminal penalties. §222 (a). Where unauthorized operations occur, the Commission may proceed administratively and issue a cease and desist order. § 204 (c). Such orders of the Commission are enforceable by the courts. § 222 (b). And wilful violation of a cease and desist order is ground for revocation of a certificate or permit. § 212. The determination made by the Commission is not therefore abstract, theoretical, or academic. Cf. El Dorado Oil Works v. United States, 328 U. S. 12, 18-19. The “order” of the Commission which classifies commodities as exempt or nonexempt is, indeed, the basis for carriers in ordering and arranging their affairs. Cf. Rochester Tel. Corp. v. United States, 307 U. S. 125, 132. Carriers who are without the appropriate certificate or permit, because they believe they carry exempt commodities, run civil and criminal risks. A carrier authorized to carry specified commodities and dependent on exempt articles for its return load may lose its right to operate at all, if it does not respect the Commission’s “order.” Carriers and shippers alike are told that they are or are not free to bargain for rates, that they must or must not pay the filed charges. The “order” of the Commission is in substance a “declaratory” one, see 60 Stat. 240, 5 U. S. C. § 1004 (d), which touches vital interests of carriers and shippers alike and sets the standard for shaping the manner in which an important segment of the trucking business will be done. Cf. Columbia Broadcasting System v. United States, 316 U. S. 407. The consequences we have summarized are not conjectural. The Commission itself places this interpretation on its action and argues, contrary to its position in the Los Angeles Case, supra, for finality of the order. We conclude that the issues raised in the complaint are justiciable and that the District Court should adjudicate the merits.
„ 7
„ 7 Reversed.
Exempted carriers are also not subject to the provisions concerning rates and charges, §§ 217, 218, nor to the requirements concerning bodily injury and property damage insurance. § 215.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES of America v. Paul W. MARCEY, Appellant.
No. 22819.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1970.
Decided Feb. 24, 1971.
Mr. Albert J. Ahern, Jr., Washington, D. C., for appellant.
Mr. Robert C. Crimmins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, Asst. U. S. Atty., and Nicholas S. Nunzio, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee.
Before McGOWAN, TAMM and ROBINSON, Circuit Judges.
PER CURIAM:
Appellant was indicted for first degree murder in connection with the slaying of his wife. The Government’s theory was that in a five-minute episode he stabbed her 18 times with a knife. Appellant did not deny the stabbing, but defended on grounds that he lacked mens rea and that he was insane at the time. Following a nine-day trial to a jury, appellant was convicted of manslaughter, and he now appeals. After carefully considering the numerous points he raises, we affirm.
Appellant complains of the trial judge’s treatment of incriminating statements he allegedly made prior to the date of the offense. The Government was allowed to introduce testimony to the effect that appellant had threatened to kill his wife and “do five years standing on his head” by pleading insanity. Appellant contends that the statements should not have been admitted in evidence because they were non-probative and prejudicial. We think the statements were plainly relevant on the issue of mens rea, and the trial judge ruled that their probative value outweighed their prejudicial effect, which he felt was dissipated by the large volume of psychiatric testimony; moreover, he limited the scope of the Government’s inquiry as to them. Thus the judge assigned a role to each of the relevant criteria, and we perceive no basis for upsetting the balance he struck upon weighing them. Appellant also contends that in any event the jury should have been instructed that the statements should be considered with care and could not serve as a basis for conviction unless corroborated. The legal principles to which appellant refers apply to confessions and admissions, as to which special precautions are needed to safeguard against false convictions. They do not obtain in reference to pre-offense statements of intent, which “contain none of the inherent weaknesses of confessions or admissions after the fact.”
Appellant claims that the trial judge erred in receiving in evidence a photograph of the deceased taken after appellant had allegedly beaten her some six months prior to the offense. One of the conflicts in the testimony was in relation to appellant’s feelings toward and treatment of his wife. Government witnesses testified that appellant had mistreated her, while appellant testified that he loved her. On cross-examination, appellant was shown five photographs purporting to depict her appearance after the alleged assault, but he denied that her appearance was as bad as the photographs indicated. On rebuttal, the Government moved for the admission of the photographs into evidence, and the trial judge let in one of the five for consideration only on the issue of appellant’s credibility. The judge reasoned, inter alia, that the photograph could have been admitted for its tendency to show intent, and that it was non-prejudicial in the light of the uncontradicted testimony describing the brutal manner in which appellant had killed his wife. We agree with the trial judge that the photograph was relevant to intent as well as to appellant’s credibility ; we agree, too, that the inquiry did not end at that point. As we recently reaffirmed, probative value must outweigh the probability of prejudice before even relevant evidence may be admitted. Here the trial judge reached a conclusion after careful balancing of the pertinent factors, and we detect no abuse in the discretion he exercised.
Appellant also claims that three psychiatrists on the staff of Saint Elizabeths Hospital, whom the Government called as expert witnesses on the insanity issue, should not have been permitted to testify because they had participated in a pretrial psychiatric staff conference of which appellant’s attorney was not notified and at which the attorney was not present. Reasoning by analogy to United States v. Wade, and relying upon our decision in Thornton v. Corcoran, appellant argues that the staff conference violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Our close scrutiny of the voluminous record discloses, however, that while appellant was interviewed during the course of the conference, nothing even remotely resembling an incriminating statement at the conference crept into his trial. It reveals, too, that his counsel did not experience any substantial difficulty in examining witnesses or in reconstructing events which his presence at the staff conference could have avoided. Finding no prejudice stemming from counsel’s absence from the staff conference, we do not reach the broad issues appellant tenders.
Another contention strongly urged is that the trial judge erred in failing to instruct the jury that it might, if so persuaded by the evidence, find him guilty of assault with a dangerous weapon as a lesser offense included within the murder charge. The jury was instructed as to the elements of first degree murder, second degree murder and manslaughter, and was authorized to convict of one or to acquit. No more was required, for there was no foundation in the evidence for a conviction of assault with a dangerous weapon. Unlike cases involving an issue as to whether the accused’s act caused the victim’s death, thereby presenting an issue as to whether the offense, if any, was homicide or was something less, the uncontradicted evidence in the case at bar established that appellant’s wife died from the multiple stab wounds he inflicted upon her. Since every legally unjustifiable assault with a dangerous weapon producing death is either murder or manslaughter, appellant was guilty of one or the other or else was not guilty at all. Under clear precedents, an instruction on a lesser included offense need not and should not be given unless there is evidence to support it. We find no error in the trial judge’s charge on this score.
Appellant argues additionally that the trial judge’s instruction as to the consequences of an acquittal by reason of insanity was insufficient, and that the jury should have been informed of the possible length of resulting hospitalization, of the fact that appellant need not have been psychotic to be committed, and that appellant would have to carry the burden of proving that he was not dangerous in order to secure his eventual release. The judge gave an instruction in the exact form approved in Bolton v. Harris, which sets forth the legal standard for commitment, and we think no more was required, certainly not along the lines suggested by appellant. We have admonished against speculation as to the length of confinement for hospitalization, and appellant’s complaint on burden of proof is referable to only one of several avenues of release from hospitalization. A complete canvassing of release alternatives for the jury’s edification could have impermissibly led to conjecture as to what might actually occur in appellant’s case.
In sum, we find no error in the rulings of which appellant complains. The judgment appealed from is accordingly
Affirmed.
. This case was previously before this court on appellant’s ultimately unsuccessful contest of an order committing him to Saint Elizabeths Hospital for a mental examination to determine his competence to stand trial. Marcey v. Harris, 130 U.S.App.D.C. 301, 400 F.2d 772 (1968) .
. United States v. Gay, 133 U.S.App.D.C. 337, 340, 410 F.2d 1036, 1039-1040 (1969) ; Harper v. United States, 99 U.S.App.D.C. 324, 325-326, 239 F.2d 945, 946-947 (1956); Fairbanks v. United States, 96 U.S.App.D.C. 345, 347, 226 F.2d 251, 253 (1955). See also Wakaksan v. United States, 367 F.2d 639, 645-646 (8th Cir. 1966), cert. denied. 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967).
. See text infra at notes 8-11.
. Shepard v. United States, 290 U.S. 96, 103-104, 54 S.Ct. 22, 78 L.Ed. 196 (1933), cited by appellant, is distinguishable. There evidence introduced to prove one fact was used by the prosecution to prove another by hearsay. That was not the case here.
. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); Opper v. United States, 348 U.S. 84, 89-92, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Naples v. United States, 120 U.S.App.D.C. 123, 128-129, 344 F.2d 508, 513-514 (1964), motion to clarify denied, 123 U.S.App.D.C. 292, 359 F.2d 276 (1966); Drew v. United States, 118 U.S.App.D.C. 11, 16, 331 F.2d 85, 90 (1964); Jones v. United States, 111 U.S.App.D.C. 276, 280-281, 296 F.2d 398, 402-403, cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962).
. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876 (1941).
. Id.
. This put appellant’s credibility in issue, and paved the way for introduction of the photograph on rebuttal.
. To authenticate the photographs, the decedent’s brother recounted the circumstances surrounding the photography and vouched for the accuracy of the prints.
. Comisare the cases cited supra note 2.
. United States v. Bussey, 139 U.S.App.D.C. 268, 271, 432 F.2d 1330, 1333 (1970). See also Luck v. United States, 121 U.S.App.D.C. 151, 155-157, 348 F.2d 763, 767-769 (1965).
. 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1194 (1967).
. 132 U.S.App.D.C. 232, 407 F.2d 695 (1969).
. One of the conference participants testified in appellant’s behalf. Cross-examination of the Government’s experts revealed occasional failures of memory but mostly as to the sources of particular bits of information. Some of these failures were remediable since they related to data in hospital records which were available at trial. Earely were witnesses asked whether, and nowhere does it appear that, a missing item affected the testimony given.
. See United States v. Greenwell, No. 22,563 (D.C.Cir. Sept. 12, 1969) at 2 (unpublished). And in light of the conflicting testimony as to whether appellant was criminally responsible, we sustain the trial judge’s refusal to grant a judgment of acquittal. See Gaskins v. United States, 133 U.S.App.D.C. 288, 291-292, 410 F.2d 987, 990-991 (1967); Washington v. United States, 129 U.S.App.D.C. 29, 30-31, 290 F.2d 444, 445-446 (1967).
. See, e. g., Bush v. Texas, 372 U.S. 586, 590, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963); United States v. Petrillo, 332 U.S. 1, 12, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).
. See, e. g., Perry v. United States, 137 U.S.App.D.C. 260, 422 F.2d 697 (1969), where the question whether assault with a dangerous weapon is a lesser included offense of homicide was not ruled upon.
. According to the presence or absence of premeditation, deliberation and malice. See Carter v. United States, 141 U.S.App.D.C. 259 at 263 n. 19, 437 F.2d 692 at 696 (D.C.Cir. 1970).
. Id. In the eyes of the law, an assault which results in death is not just an assault, even of the aggravated type. See Shaw v. United States, 103 U.S.App.D.C. 82, 254 F.2d 785 (1958).
. See Fuller v. United States, 132 U.S.App.D.C. 264, 294, 297, 407 F.2d 1199, 1229, 1232 (en banc 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969); Belton v. United States, 127 U.S.App.D.C. 201, 206-207, 382 F.2d 150, 155-156 (1967); Chillo v. United States, 117 U.S.App.D.C. 31, 325 F.2d 227 (1963). Appellant’s counter-citation is United States v. Hamilton, 182 F.Supp. 548, 551 (D.D.C.1960), citing in turn Logan v. United States, 144 U.S. 263, 307, 12 S.Ct. 617, 36 L.Ed. 429 (1892), which, however, did not deal with the need for an evidentiary foundation. Appellant’s theory on mens rea was satisfactorily covered by the judge’s instructions on second degree murder and manslaughter, and his insanity theory by appropriate instructions on that subject.
. See Belton v. United States, supra note 20, 127 U.S.App.D.C. at 206-207, 382 F.2d at 155-156; Stith v. United States, 126 U.S.App.D.C. 95, 374 F.2d 309 (1967). Compare United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1969).
With this disposition, it is unnecessary to decide whether assault with a dangerous weapon can ever be a lesser included offense of homicide. Conviction of assault with a dangerous weapon necessitates proof that a dangerous weapon was used in the course of the assault, but neither of the homicide offenses so limits the means by which death occurs. Assault with a dangerous weapon thus embraces an element not required for murder or manslaughter. See Sansone v. United States, 380 U.S. 343, 350-351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). See also Kelly v. United States, 125 U.S.App.D.C. 205, 370 F.2d 227 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).
. Appellant also protests the judge’s refusal to instruct that a drug-induced stupor may negate specific intent. There was evidence that appellant took amphetamines, drank a quantity of liquor, and had trouble driving to the scene of the homicide, but there was no evidence that he was in a stupor at the time of the stabbing. This quantum of evidence did not rise to the level required, Womack v. United States, 119 U.S.App.D.C. 40, 336 F.2d 959 (1964); Tatum v. United States, 88 U.S.App.D.C. 386, 390-391, 190 F.2d 612, 616-617 (1951), and in any event other instructions given on the element of specific intent sufficed.
. 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968).
. See Lyles v. United States, 103 U.S.App.D.C. 22, 27, 254 F.2d 725, 730 (en banc 1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958).
. For example, a post-trial hearing might eventuate in a decision that appellant does not require hospitalization. At such a hearing, the burden of proof is on the Government. See Bolton v. Harris, supra note 23, 130 U.S.App.D.C. at 7-11, 395 F.2d at 648-652. Again, after a period of commitment, appellant might be released by the hospital administratively, either conditionally or unconditionally, see D.C.Code § 24-301 (e) (1967), or release might be sought by habeas corpus. See D.C.Code § 24-301(g) (1967).
. See Lyles v. United States, supra note 24, 103 U.S.App.D.C. at 27, 254 F.2d at 730. Appellant also argues that the trial judge should have instructed the jury that the mere probability of his sanity would not be sufficient to authorize his conviction. The judge gave several instructions on the subject, and they met the requirements of Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468, cert. denied, 389 U.S. 833, 88 S.Ct. 139, 19 L.Ed.2d 179 (1965). The judge was not obliged to do more.
. Appellant also assigns as error an Allen-type instruction, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), which the trial judge gave at the conclusion of his charge to the jury. Appellant’s single objection, voiced originally in the District Court and pressed here, is that such an instruction is inappropriate prior to the jury’s retirement to commence deliberations. Precedent, however, is to the contrary. Fulwood v. United States, 125 U.S.App.D.C. 183, 185-186, 369 F.2d 960, 962-963 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967); McNeil v. United States, 140 U.S.App.D.C. 3, 4, 433 F.2d 1109, 1110 n. 2 (1969) ; United States v. Johnson, 139 U.S.App.D.C. 193, 197-201, 432 F.2d 626, 630-634 (1970). And since the verdict was not forthcoming until four and a half hours after rendition of the instruction, we are not persuaded that its timing could in any event have affected appellant prejudicially.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Estelle DENTON, Appellant v. MERIT SYSTEMS PROTECTION BOARD.
No. 84-5679.
United States Court of Appeals, District of Columbia Circuit.
Argued May 15, 1985.
Decided July 26, 1985.
John D. Grad, Alexandria, Va., for appellant.
Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before MIKVA, BORK and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
STARR, Circuit Judge.
This appeal is taken by a former federal civil service employee from the District Court’s denial of her motion to remand proceedings to the Merit Systems Protection Board (MSPB or Board) for reconsideration in light of new evidence. For the reasons that follow, we conclude that we lack jurisdiction over the appeal and that jurisdiction lies in the United States Court of Appeals for the Federal Circuit. We therefore transfer the case to that court in the interest of justice pursuant to 28 U.S.C. § 1631 (1982).
In 1972, Estelle Denton, an employee at the Small Business Administration (SBA), was diagnosed as suffering from a severe emotional disorder. Her ensuing application for disability retirement was granted and she thereupon left federal employment. In the mid-1970’s, Ms. Denton came to believe that her 1972 retirement had not been voluntary but, to the contrary, had been coerced by certain fellow employees who were under federal criminal investigation and who, in her view, wished to get rid of her under circumstances that would undermine her credibility with law enforcement officials. However, Ms. Denton did nothing about her suspicions for some years. Then, beginning in March 1981, she engaged in correspondence with her then-United States Senator with respect to her retirement from SBA almost a decade before. In May 1982, as a result of her communications with the Senator’s office, Ms. Denton initiated contact with the MSPB. Her administrative appeal and request for hearing were formally filed with the Board on June 3, 1982. The gravamen of her complaint was that her retirement in 1972 had been improperly coerced.
In October 1982, the MSPB’s presiding official dismissed Ms. Denton’s appeal as untimely. Ms. Denton thereupon filed a request to reopen with the MSPB in November 1982, which was denied. On November 15, 1982, she filed a petition for review in the United States District Court for the District of Columbia. She later filed another petition for review — “out of an abundance of caution” — in the United States Court of Appeals for the Federal Circuit by virtue of her uncertainty as to which court was the proper forum in light of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in scattered sections of 5 U.S.C. (1982)), and the subsequently enacted Federal Courts Improvement Act (FICA), Pub.L. No. 97-164, 96 Stat. 25 (1982). See J.A. 82. However, the United States Attorney’s Office thereafter advised Ms. Denton as follows:
[I]t is our position that this action was properly filed in the United States Court for the District of Columbia. Thus, we will not argue before the District Court that this case should have been filed in the Court of Appeals for the Federal Circuit. When you dismiss your petition now pending before the Federal Circuit, please send a copy of the dismissal papers to [us].
Accordingly, Ms. Denton voluntarily dismissed her petition in the Federal Circuit and proceeded with her action in federal district court.
In May 1983, Ms. Denton filed a motion in District Court to remand the case to the MSPB for reconsideration in light of “new and material evidence.” The District Court denied the motion in February 1984. The MSPB subsequently moved for affirmance of its decision dismissing Ms. Denton’s appeal. By order filed August 23, 1984, the District Court granted the Board’s motion and dismissed Ms. Denton’s case with prejudice. This appeal followed.
At the outset, it is incumbent upon us to determine whether we in fact have subject matter jurisdiction over this appeal. Though the parties have not raised the question, reflecting of course their agreement that jurisdiction properly lies in this court, we are obviously under a duty to make that determination sua sponte. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976); Louisville & Nashville Ry. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Our analysis begins with the Federal Courts Improvement Act, which created the United States Court of Appeals for the Federal Circuit. See generally Van Drasek v. Lehman, 762 F.2d 1065 (D.C.Cir.1985).
That statute, which was enacted in 1982, vests in the United States Court of Appeals for the Federal Circuit “exclusive jurisdiction ... of an appeal from a final order or final decision of the Merit Systems Protection Board....” 28 U.S.C. § 1295(a)(9) (1982) (emphasis added). The effective date of the FCIA was October 1, 1982. Pub.L. No. 97-164, § 402, 96 Stat. 25, 57 (1982). Thus, any appeal from the MSPB after that date would lie exclusively in the new Federal Circuit. Here, Ms. Denton filed her petition for review from the MSPB’s adverse decision in mid-November 1982, which was of course after the FCIA’s effective date; in consequence, under the express terms of the FCIA, her appeal should have been filed in the Court of Appeals for the Federal Circuit, not in United States District Court.
The reason that Ms. Denton, with the Government’s full agreement, took the unlikely course of repairing to federal district court for a post-FCIA review of a postFCIA MSPB decision is found in the organic statute creating the MSPB in the first instance, namely the watershed Civil Service Reform Act of 1978, which became effective January 11, 1979, Pub.L. No. 95-454, § 907, 92 Stat. 1111, 1226 (1978). That statute fundamentally altered the system for judicial review of federal civil service decisions. Whereas review of decisions of the old Civil Service Commission previously could be had in the United States Court of Claims or an appropriate federal district court, the CSRA stripped the United States District Courts of jurisdiction over such appeals. In the CSRA’s wake, jurisdiction to review MSPB decisions lay either in the Court of Claims, as before, or in the several United States Court of Appeals.
Now this structure, standing alone, would have left no room for federal district court review of MSPB decisions. But, as the final piece of this jurisdictional puzzle, a savings clause was included within the CSRA that made this new regime of judicial review inapplicable to “any administrative proceeding pending at the time [the CSRA] takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.” Pub.L. No. 95-454, § 902(b), 92 Stat. 1111, 1224 (1978). The MSPB then promulgated the following regulation implementing the savings clause:
No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.
5 C.F.R. § 1201.191(b) (1981).
The MSPB’s regulation was upheld by this court in the face of a pre-FCIA judicial challenge in Kyle v. Interstate Commerce Commission, 609 F.2d 540 (D.C.Cir.1980). In that case, three federal employees came directly to this court, rather than federal district court, challenging the MSPB’s upholding of adverse personnel actions taken by the ICC (in two cases) and by the then-HEW in a third case. Each of the three cases involved an employee who had received notice of the proposed personnel action from his respective agency prior to the CSRA’s effective date, but whose appeal before the MSPB was not decided until after that date. Reviewing the MSPB’s regulation construing the savings clause, the Kyle court observed that “each [employee’s] proceeding was pending when the [CSRA] became effective, and must therefore be reviewed judicially under prior [preCSRA] law, which did not permit review in a Court of Appeals.” 609 F.2d at 542.
Now to bring all this home: it was the CSRA’s savings clause, as construed by the MSPB’s regulation and this court’s decision in Kyle, which led the parties in our case to conclude that judicial review of the MSPB’s decision could not, as in Kyle, be had in the first instance in a Court of Appeals, but must instead be brought in a federal district court. The reasoning was, apparently, that Ms. Denton’s administrative proceeding must be deemed to have been “pending” before her employing agency prior to the CSRA’s effective date of November 1979.
We cannot agree. This interpretation takes the term “pending” beyond any reasonable meaning. As of November 1979, when the CSRA, complete with savings clause, went into effect, nothing whatsoever was pending before the SBA or the old Civil Service Commission with respect to Ms. Denton’s 1972 retirement. Indeed, unlike the situation in Kyle where specific agency action was taken against the three employees (removal from a position in two instances and removal to a lower grade position in the third instance), here all that happened from the employing agency’s standpoint was that Ms. Denton applied for retirement in 1972, a request that was granted lock, stock and barrel. Thus matters stood, with Ms. Denton from all appearances happily drawing retirement pay and life at the agency going on, until years later when in the spring of 1982 Ms. Den-ton filed her complaint with the MSPB. Until that time, Ms. Denton had taken no steps to bring her complaint of coerced retirement to the SBA, the Civil Service Commission or the MSPB. To the contrary, her sole recourse was outside the Executive Branch entirely, repairing to Capitol Hill to the good offices of her United States Senator.
Under these circumstances, we despair of finding any sort of “pending” proceeding back in 1979, save in some metaphysical sense that a complaint was all the while there, lying inchoate, as it were, awaiting the moment when it would spring to life and relate back to 1972. Not only is this mental gymnastic a bit daunting, but what is more this lavishly expansive interpretation of a savings clause that took effect now almost six years ago creates substantial tension with what Congress set out more recently to do in the FCIA. For there, Congress saw fit to strip the several Courts of Appeals of jurisdiction over MSPB matters, just as the 95th Congress had divested the federal district courts of jurisdiction (save for the savings clause) back in 1979 in enacting the CSRA; since October 1982, as we have seen, post-FCIA decisions of the MSPB are appealable only to the Court of Appeals for the Federal Circuit. It is to that specialized forum which Congress determined to channel MSPB decisions rendered after the effective date of the FCIA. Under the parties’ jurisdictional view, however, there is no end in sight to federal district court jurisdiction over agency personnel actions so long as employees seek to challenge an agency action taken prior to the CSRA’s effective date. This would be, when all is said and done, a rewriting of the savings clause, at great cost to the orderly administration of justice which Congress sought to effectuate in the FCIA. That is to say that the savings clause language, “any administrative proceeding pending,” would otherwise be twisted to mean, “any agency action taken prior to the CSRA’s effective date, regardless of when that action was first challenged by the employee.”
We are, in sum, unable to conclude that Congress intended the CSRA’s savings clause to continue to reach so powerfully back in time and then to project forward into the post-FCIA era all those matters lying fallow for lo these many years in the vast apparatus of the Executive Branch and deposit them at the doorsteps of all ninety-four federal judicial districts from the Virgin Islands to Guam. A gentle paraphrase of Chief Justice John Marshall’s statement springs to mind: this proposition is simply too extravagant to be seriously maintained.
In the interest of justice, the case is transferred to the Court of Appeals for the Federal Circuit.
It is so ordered.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_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 of America, Appellee, v. Robert L. DONOVAN and Albert Andrews, Defendants-Appellants, and Hyman Cohen, Defendant.
No. 269, Docket 24821.
United States Court of Appeals Second Circuit.
Argued March 14, 1958.
Decided March 14, 1958.
Jacob W. Friedman, New York City (Frank E. Healey, New York City, on the brief for Robert L. Donovan), for defendants-appellants.
Adelbert C. Matthews, Jr., Asst. U. S. Atty., S.D.N.Y., New York City (Paul W. Williams, U. S. Atty., and Robert Kirtland, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge.
PER CURIAM.
Judgment affirmed in open court.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_casesource
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027
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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.
KLOECKNER v. SOLIS, SECRETARY OF LABOR
No. 11-184.
Argued October 2, 2012
Decided December 10, 2012
Kagan, J., delivered the opinion for a unanimous Court.
Eric Schnapper argued the cause for petitioner. With him on the briefs were Larry J. Stein, Anthony J. Frame, and R. Reeves Anderson.
Sarah E. Harrington argued the cause for respondent. With her on the brief were Solicitor General Verrilli, Acting Assistant Attorney General Delery, Deputy Solicitor General Srinivasan, Marleigh D. Dover, and Stephanie R. Marcus.
Justice Kagan
delivered the opinion of the Court.
A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). See 5 U. S. C. §§ 7512, 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See § 7702(a)(1). The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on procedural grounds. Should an employee seeking judicial review then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court.
I
A
The Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. § 1101 et seq., establishes a framework for evaluating personnel actions taken against federal employees. That statutory framework provides graduated procedural protections depending on an action’s severity. If (but only if) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency’s decision to the MSPB, an independent adjudicator of federal employment disputes. See §§1204, 7512, 7701. Such an appeal may' merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964,42 U. S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967,29 U. S. C. § 621 et seq. See 5 U. S. C. § 7702(a)(1). When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a “mixed case.” See 29 CFR § 1614.302 (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity-Commission (EEOC) set out special procedures to govern such a case—different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory. See 5 U. S. C. §§7702, 7703(b)(2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012); 29 CFR pt. 1614, subpt. C.
A federal employee bringing a mixed case may proceed in a variety of ways. She may first file a discrimination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 CFR § 1201.154(a); 29 CFR § 1614.302(b). If the agency decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 CFR § 1201.154(b); 29 CFR § 1614.302(d)(l)(i). Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges. See 5 CFR § 1201.154(a); 29 CFR § 1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U.S.C. §§7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303. The question in this case concerns where that judicial review should take place.
Section 7703 of the CSRA governs judicial review of the MSPB’s decisions. Section 7703(b)(1) gives the basic rule: “Except as provided in paragraph (2) of this subsection, a petition to review a... final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) then spells out the exception:
“Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [the enforcement sections of the Civil Rights Act, Age Discrimination in Employment Act, and Fair Labor Standards Act], as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.”
The enforcement provisions of the antidiscrimination statutes listed in this exception all authorize suit in federal district court. See 42 U. S. C. §§2000e-16(c), 2000e-5(f); 29 U. S. C. § 633a(c); § 216(b); see also Elgin v. Department of Treasury, 567 U. S. 1, 13 (2012).
Section 7702 describes and provides for the “cases of discrimination” referenced in § 7703(b)(2)’s exception. In relevant part, § 7702(a)(1) states:
“[I]n the case of any employee... who—
“(A) has been affected by an action which the employee... may appeal to the Merit Systems Protection Board, and
“(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes],
“the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.”
The “cases of discrimination” in § 7703(b)(2)’s exception, in other words, are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.
The parties here dispute whether, in light of these interwoven statutory provisions, an employee should go to the Federal Circuit (pursuant to the general rule of § 7703(b)(1)), or instead to a district court (pursuant to the exception in § 7703(b)(2)), when the MSPB has dismissed her mixed case on procedural grounds.
B
Petitioner Carolyn Kloeckner used to work at the Department of Labor (DOL or agency). In June 2005, while still an employee, she filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in unlawful sex and age discrimination by subjecting her to a hostile work environment. At that point, Kloeckner’s case was not ap-pealable to the MSPB because she had not suffered a sufficiently serious personnel action (e. g., a removal or demotion). See supra, at 44. Her claim thus went forward not under the special procedures for mixed cases, but under the EEOC’s regulations for all other charges of discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with those rules, the agency completed an internal investigation and report in June 2006, and Kloeckner requested a hearing before an EEOC administrative judge.
The next month, DOL fired Kloeckner. A removal from employment is appealable to the MSPB, see supra, at 44, and Kloeckner believed the agency’s action was discriminatory; she therefore now had a mixed case. As permitted by regulation, see supra, at 45, she initially elected to file that case with the MSPB. Her claim of discriminatory removal, however, raised issues similar to those in her hostile work environment case, now pending before an EEOC judge; as a result, she became concerned that she would incur duplica-tive discovery expenses. To address that problem, she sought leave to amend her EEOC complaint to include her claim of discriminatory removal, and she asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. See App. 13, 50-51. Both of those motions were granted. The EEOC judge accepted the amendment, and on September 18, 2006, the MSPB dismissed her appeal “without prejudice to [her] right to refile... either (A) within 30 days after a decision is rendered in her EEOC case; or (B) by January 18, 2007— whichever occurs first.” Id., at 5.
Discovery continued in the EEOC proceeding well past the MSPB’s January 18 deadline. In April, the EEOC judge found that Kloeckner had engaged in bad-faith conduct in connection with discovery. As a sanction, the judge terminated the EEOC proceeding and returned Kloeckner’s case to DOL for a final decision. Six months later, in October 2007, DOL issued a ruling rejecting all of Kloeckner’s claims. See id., at 10-49.
Kloeckner appealed DOL’s decision to the Board in November 2007. That appeal was filed within 30 days, the usual window for seeking MSPB review of an agency’s determination of a mixed case. See 5 CFR § 1201.154(a); 29 CFR § 1614.302(d)(l)(ii). But the MSPB declined to treat Kloeck-ner’s filing as an ordinary appeal of such an agency decision. Instead, the Board viewed it as an effort to reopen her old MSPB case—many months after the January 18 deadline for doing so had expired. The Board therefore dismissed Kloeckner’s appeal as untimely. See App. 53-57.
Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. See Kloeckner v. Solis, Civ. Action No. 4:09CV804 (ED Mo., Feb. 18, 2010). Relying on the Eighth Circuit’s ruling in Brumley v. Levinson, 991 F. 2d 801 (1993) (per curiam), the court held that because the MSPB had dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under § 7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursuant to § 7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed on the same reasoning. See 639 F. 3d 834 (2011).
We granted certiorari, 565 U. S. 1152 (2012), to resolve a • Circuit split on whether an employee seeking judicial review should proceed in the Federal Circuit or in a district court when the MSPB has dismissed her mixed case on procedural grounds. We now reverse the Eighth Circuit’s decision.
H—Í i—i
As the above account reveals, the intersection of federal civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeckner to district court.
Begin with §7703, which governs judicial review of the MSPB’s rulings. As already noted, see supra, at 45-46, § 7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit—“[e]x-cept as provided in paragraph (2) of this subsection.” Paragraph (2), i. e,, § 7703(b)(2), then sets out a different rule for one category of cases—“[clases of discrimination subject to the provisions of section 7702 of this title.” Such a case, paragraph (2) instructs, “shall be filed under” the enforcement provision of an enumerated antidiscrimination statute. And each of those enforcement provisions authorizes an action in federal district court. See supra, at 46. So “[c]ases of discrimination subject to the provisions of section 7702” shall be filed in district court.
Turn next to § 7702, which identifies the cases “subject to [its] provisions.” As also stated earlier, §7702(a)(1) describes cases in which a federal employee “(A) has been affected by an action which [she] may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The subsection thus describes what we (adopting the lingo of the applicable regulations) have called “mixed eases.” See 29 CFR §1614.302. Those are the “eases of discrimination subject to” the rest of §7702⅛ provisions.
Now just put §7703 and §7702 together—say, in the form of a syllogism, to make the point obvious. Under § 7703(b)(2), “cases of discrimination subject to [§ 7702]” shall be filed in district court. Under § 7702(a)(1), the “cases of discrimination subject to [§7702]” are mixed cases—those appealable to the MSPB and alleging discrimination. Ergo, mixed cases shall be filed in district court.
And so that is where Kloeckner’s case should have been filed (as indeed it was). No one here contests that Kloeck-ner brought a mixed case—that she was affected by an action (i. e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated federal law. And under the CSRA's terms, that is all that matters. Regardless whether the MSPB dismissed her claim on the merits or instead threw it out as untimely, Kloeekner brought the kind of case that the CSRA routes, in crystalline fashion, to district court.
Ill
The Government offers an alternative view (as did the Eighth Circuit)—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit. According to the Government, that bifurcated scheme, though not prescribed in the CSRA in so many words, lies hidden in the statute’s timing requirements. But we return from the Government’s maze-like tour of the CSRA persuaded only that the merits-procedure distinction is a contrivance, found nowhere in the statute’s provisions on judicial review.
The Government’s argument has two necessary steps. First, the Government claims that § 7703(b)(2)’s exception to Federal Circuit jurisdiction applies only when the MSPB’s decision in a mixed case is a “judicially reviewable action” under §7702. Second, the Government asserts that the Board’s dismissal of a mixed case on procedural grounds does not qualify as such a “judicially reviewable action.” We describe in turn the way the Government arrives at each of these conclusions.
The first step of the Government’s argument derives from § 7703(b)(2)’s second sentence. Right after stating that “cases of discrimination subject to [§7702]” shall be filed under specified antidiscrimination statutes (i. e., shall be filed in district court), § 7703(b)(2) provides: “Notwithstanding any other provision of law, any such case filed under any such [statute] must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.” The Government reads that sentence to establish an additional prerequisite for taking a case to district court, instead of to the Federal Circuit. To fall within the § 7703(b)(2) exception, the Government says, it is not enough that a case qualify as a “case of discrimination subject to [§ 7702]”; in addition, the MSPB’s decision must count as a “judicially reviewable action.” See Brief for Respondent 20-21. If the MSPB’s decision is not a “judicially reviewable action”—a phrase the Government characterizes as a “term of art in this context,” Tr. of Oral Arg. 28—the ruling still may be subject to judicial review (i. e., “judicially reviewable” in the ordinary sense), but only in the Federal Circuit.
The Government’s second step—that the Board’s procedural rulings are not “judicially reviewable actions”—begins with the language of § 7702(a)(3). That provision, the Government states, “defines for the most part which MSPB decisions qualify as ‘judicially reviewable aetionsfs]’ ” by “providing that ‘[a]ny decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of’ the date of the decision.” Brief for Respondent 21 (quoting § 7702(a)(3); emphasis and brackets added by Government). From there, the Government moves on to the cross-referenced paragraph—§ 7702(a)(1)—which states, among other things, that the Board “shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” According to the Government, the Board only “decide[s]... the issue of discrimination” when it rules on the merits, rather than on procedural grounds. On that view, a procedural decision is not in fact a “decision of the Board under paragraph (1),” which means that it also is not a “judicially reviewable action” under § 7702(a)(3). See Brief for Respondent 21-22. And so (returning now to the first step of the Government’s argument), judicial review of a procedural decision can occur only in the Federal Circuit, and not in district court.
If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more roundabout way of bifurcating judicial review of the MSPB’s rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismissals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result.
And taking the Government’s analysis one step at a time makes it no more plausible than as a gestalt. The Government’s initial move is to read § 7703(b)(2)’s second sentence as adding a requirement for a case to fall within the exception to Federal Circuit jurisdiction. But that sentence does no such thing; it is nothing more than a filing deadline. Consider each sentence of § 7703(b)(2) in turn. The first sentence defines which cases should be brought in district court, rather than in the Federal Circuit; here, the full description is “[cjases of discrimination subject to the provisions of section 7702”—to wit, mixed cases. The second sentence then states when those cases should be brought: “[A]ny such case... must be filed within 30 days” of the date the employee “received notice of the judicially reviewable action.” The reference to a “judicially reviewable action” in that sentence does important work: It sets the clock running for when a case that belongs in district court must be filed there. What it does not do is to further define which timely-brought cases belong in district court instead of in the Federal Circuit. Describing those cases is the first sentence’s role.
Proof positive that the Government misreads § 7703(b)(2) comes from considering what the phrase “judicially reviewable action” would mean under its theory. In normal legal parlance, to say that an agency action is not “judicially reviewable” is to say simply that it is not subject to judicial review—that, for one or another reason, it cannot be taken to a court. But that ordinary understanding will not work for the Government here, because it wants to use the phrase to help determine which of two courts should review a decision, rather than whether judicial review is available at all. In the Government’s alternate universe, then, to say that an agency action is not “judicially reviewable” is to say that it is subject to judicial review in the Federal Circuit (even though not in district court). Small wonder that the Government must call the phrase “judicially reviewable action” a “term of art,” supra, at 51: On a natural reading, the phrase defines cases amenable to judicial review, rather than routes those cases as between two courts.
And even were we to indulge the Government that far, we could not accept the second step of its analysis. At that stage, remember, the Government contends that under § 7702 only decisions on the merits qualify as “judicially reviewable actions.” The language on which the Government principally relies, stated again, is as follows: “[T]he Board shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action.” But that provision, too, is only a timing requirement; it is designed to ensure that the Board act promptly on employees’ complaints. We see no reason to think that embedded within that directive is a limitation on the class of “judicially reviewable actions.” Nor (even were we to indulge the Government on that point as well) can we find the particular restriction the Government urges. According to the Government, the MSPB does not “decide... the issue of discrimination” when it dismisses a mixed case on procedural grounds. But that phrase cannot bear the weight the Government places on it. All the phrase signifies is that the Board should dispose of the issue in some way, whether by actually adjudicating it or by holding that it was not properly raised. Indeed, were the Government right, §7702(a)’s statement that the Board “shall” decide the issue of discrimination would appear to bar procedural dismissals, requiring the Board to resolve on the merits even untimely complaints. No one (least of all the Government, which here is defending a procedural ruling) thinks that a plausible congressional command.
Another section of the statute—§ 7702(e)(1)(B)—puts the final nail in the coffin bearing the Government’s argument. That section states: “[I]f at any time after... the 120th day following [an employee’s filing] with the Board..., there is no judicially reviewable action[,]... an employee shall be entitled to file a civil action” in district court under a listed antidiscrimination statute. That provision, as the Government notes, is designed “to save employees from being held in perpetual uncertainty by Board inaction.” Brief for Respondent 28. But if, as the Government insists, a procedural ruling is not a “judicially reviewable action,” then the provision would have another, surprising effect—essentially blowing up the Government’s argument from the inside. In that event, an employee whose suit the Board had dismissed on procedural grounds could bring suit in district court under § 7702(e)(1)(B) (so long as 120 days had elapsed from her Board filing), because she would have received “no judicially reviewable action.” And what’s more, she could do so even.many years later, because the statute’s usual 30-day filing deadline begins to run only upon “notice of [a] judicially reviewable action.” § 7703(b)(2). So an argument intended to keep employees like Kloeckner out of district court would paradoxically, and nonsensically, result in giving them all the time in the world to file suit there.
Responding to this unwelcome outcome, the Government offers us an exit route: We should avoid “absurd results,” the Government urges, by applying § 7702(e)(1)(B) only to “cases over which the Board continues to exert jurisdiction.” Brief for Respondent 27, 28, n. 4. But as the Government admits, that “gloss on the statute is not found in the text,” Tr. of Oral Arg. 50; the Government’s remedy requires our reading new words into the statute. We think a better option lies at hand. If we reject the Government’s odd view of “judicially reviewable actions,” then no absurdity arises in the first place: § 7702(e)(1)(B) would have no bearing on any case the MSPB dismissed within 120 days, whatever the grounds. It is the Government’s own misreading that creates the need to “fix” § 7702(e)(1)(B); take that away and the provision serves, as it was intended, only as a remedy for Board inaction.
l—I <í
A federal employee who claims that an agency action ap-pealable to the MSPB violates an antidiscrimination statute listed in § 7702(a)(1) should seek judicial review in district court, not in the Federal Circuit. That is so whether the MSPB decided her case on procedural grounds or instead on the merits. Kloeckner therefore brought her suit in the right place. We reverse the contrary judgment of the Court of Appeals for the Eighth Circuit, and remand the case for further proceedings consistent with this opinion.
It is so ordered.
The actions entitling an employee to appeal a case to the MSPB include “(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough.” 5 U. S. C. §
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:
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songer_counsel1
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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 the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Gary Julius PAIGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 71-2255.
United States Court of Appeals, Ninth Circuit.
Feb. 7, 1972.
Gary Julius Paige, in pro. per.
Robert L. Meyer, U. S. Atty., Eric A. Nokles, Chief, Crim. Div., Brian J. O’Neill, Ass’t Chief, Crim. Div., Los An-geles, Cal., for appellee.
Before MERRILL, KOELSCH and HUFSTEDLER, Circuit Judges.
PER CURIAM:
Appealing from denial of relief under 28 U.S.C. § 2255, appellant assigns as error failure of the District Court to give consideration to various errors he asserts were committed in the course of his trial for bank robbery. One of these alleged errors was raised by appellant on direct appeal from judgment of conviction and was rejected by this court. United States v. Paige (9th Cir. 1971). The others relate to matters of evidence, the use of memoranda by a witness and remarks made by the government attorney. All could have been asserted on direct appeal but were not. None is of such dimensions as to present a question of due process. A sentence is not subject to collateral attack on the basis of such alleged error. Dodd v. United States, 321 F.2d 240 (9th Cir. 1963).
Judgment affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_issue_1
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05
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES v. DUNN
No. 85-998.
Argued January 20, 1987
Decided March 3, 1987
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Powell, Stevens, and O’Connor, JJ., joined, and in all but the paragraph headed “Third” in Part II of which Scalia, J., joined. Scalia, J., filed an opinion concurring in part, post, p. 305. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 305.
Roy T. Englert, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.
Louis Dugas, Jr., argued the cause and filed a brief for respondent.
Justice White
delivered the opinion of the Court.
We granted the Government’s petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house’s curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials’ intrusion onto the area immediately surrounding the barn. 782 F. 2d 1226 (1986). We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals.
I
Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U. S. C. § 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent’s apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or “beepers,” in an electric hot plate stirrer, a drum of acetic anhy-dride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the “beeper” a few days later. The agents were able to track the “beeper” in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter’s pickup truck, which was carrying the container, arrived at respondent’s ranch. Aerial photographs of the ranch property showed Carpenter’s truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the “beeper” in the hot plate stirrer that they had lost in early September and determined that the stirrer was on respondent’s ranch property.
Respondent’s ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 14 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.
On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent’s ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns — crossing over a barbed wire fence— and, looking into the bam, observed only empty boxes. The officers then proceeded to the larger barn, crossing another barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn’s overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn. At this point the officers departed from respondent’s property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.
On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent’s ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980. The officers arrested respondent and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house.
The District Court denied respondent’s motion to suppress all evidence seized pursuant to the warrant and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent’s conviction. United States v. Dunn, 674 F. 2d 1093. The court concluded that the search warrant had been issued based on information obtained during the officers’ unlawful warrantless entry onto respondent’s ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court’s reasoning that “the barn in question was within the curtilage of the residence and was within the protective ambit of the fourth amendment.” Id., at 1100. We granted the Government’s petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in fight of Oliver v. United States, 466 U. S. 170 (1984). 467 U. S. 1201 (1984). On remand, the Court of Appeals reaffirmed its judgment that the evidence seized pursuant to the warrant should have been suppressed, but altered the legal basis supporting this conclusion: the large barn was not within the curtilage of the house, but by standing outside the barn and peering into the structure, the officers nonetheless violated respondent’s “reasonable expectation of privacy in his barn and its contents.” 766 F. 2d 880, 886 (1985). The Government again filed a petition for certiorari. On January 17, 1986, before this Court acted on the petition, the Court of Appeals recalled and vacated its judgment issued on remand, stating that it would enter a new judgment in due course. 781 F. 2d 52. On February 4, 1986, the Court of Appeals reinstated the original opinion rendered in 1982, asserting that “[u]pon studied reflection, we now conclude and hold that the barn was inside the protected curtilage.” 782 F. 2d, at 1227. The Government thereupon submitted a supplement to its petition for certiorari, revising the question presented to whether the barn lay within the curtilage of the house. We granted the petition, 477 U. S. 903, and now reverse.
II
The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States, 265 U. S. 57, 59 (1924), held that the Fourth Amendment’s protection accorded “persons, houses, papers, and effects” did not extend to the open fields, the Court observing that the distinction between a person’s house and open fields “is as old as the common law. 4 Bl. Comm. 223, 225, 226.”
We reaffirmed the holding of Hester in Oliver v. United States, supra. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 466 U. S., at 180. We identified the central component of this inquiry as whether the area harbors the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” Ibid, (quoting Boyd v. United States, 116 U. S. 616, 630 (1886)).
Drawing upon the Court’s own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home’s curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U. S. 207, 221 (1986) (Powell, J., dissenting) (citing Care v. United States, 231 F. 2d 22, 25 (CA10), cert. denied, 351 U. S. 932 (1956); United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981)). We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection. Applying these factors to respondent’s barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.
First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. 766 F. 2d, at 882-883; 782 F. 2d, at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house.
Second. It is also significant that respondent’s barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in Oliver, supra, that “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends —is a familiar one easily understood from our daily experience.” 466 U. S., at 182, n. 12. Viewing the physical layout of respondent’s ranch in its entirety, see 782 F. 2d, at 1228, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn — the front portion itself enclosed by a fence — and the area immediately surrounding it, stands out as a distinct portion of respondent’s ranch, quite separate from the residence.
Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, “apparently,” in the words of the Court of Appeals, “for the unloading of its contents.” 674 F. 2d, at 1096. When on respondent’s property, the officers’ suspicion was further directed toward the barn because of “a very strong odor” of phenylacetic acid. App. 15. As the DEA agent approached the barn, he “could hear a motor running, like a pump motor of some sort . . . .” Id., at 17. Furthermore, the officers detected an “extremely strong” odor of phenylacetic acid coming from a small crack in the wall of the barn. Ibid. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, “the smell was very, very strong . . . [and the officers] could hear the motor running very loudly.” Id., at 18. When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent’s home.
Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent’s property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.
l — l HH 1 — I
Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home’s curtilage, in the barn and its contents, because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of Oliver v. United States, 466 U. S. 170 (1984).
We may accept, for the sake of argument, respondent’s submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers’ conduct and the ensuing search and seizure violated the Constitution. Oliver reaffirmed the precept, established in Hester, that an open field is neither a “house” nor an “effect,” and, therefore, “the government’s intrusion upon the open fields is not one of those ‘unreasonable searches’ proscribed by the text of the Fourth Amendment.” 466 U. S., at 177. The Court expressly rejected the argument that the erection of fences on an open field — at least of the variety involved in those cases and in the present case — creates a constitutionally protected privacy interest. Id., at 182-183. “[T]he term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Id., at 180, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent’s ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent’s premises. Once at their vantage point, they merely stood, outside the curti-lage of the house and in the open fields upon which the barn was constructed, and peered into the barn’s open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent’s barn. This conclusion flows naturally from our previous decisions.
Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in California v. Ciraolo, 476 U. S. 207 (1986), we held that warrantless naked-eye aerial observation of a home’s curtilage did not violate the Fourth Amendment. We based our holding on the premise that the Fourth Amendment “has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Id., at 213. Importantly, we deemed it irrelevant that the police observation at issue was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Ibid. Finally, the plurality opinion in Texas v. Brown, 460 U. S. 730, 739-740 (1983), notes that it is “beyond dispute” that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, “trenched upon no right secured . . . by the Fourth Amendment.” The holding in United States v. Lee, 274 U. S. 559, 563 (1927) is of similar import. Here, the officers’ use of the beam of a flashlight, directed through the essentially open front of respondent’s barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment.
The officers lawfully viewed the interior of respondent’s barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent’s premises. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
In denying respondent’s motion to suppress all evidence obtained as a result of the search warrant, the District Court Judge stated that the law enforcement officials, during their incursions onto respondent’s property, “did not invade the premises, that is, the houses or the barns . . . .” Tr. 216. The Court of Appeals did not disturb this finding. At the suppression hearing, the DEA agent described the officers’ approach to the large barn on November 5:
“A. We came back around, we crossed a small wooden type fence here, which put us right underneath a type of a tin overhang and in front of us was a wooden locked gate ....
“Q. How high was that gate?
“A. It probably came up to my waist, estimated.
“Q. Was that gate open or shut?
“A. It was shut and it was locked.
“Q. Was there anything above that gate?
“A. Yes, there was.
“Q. What was that?
“A. A fish netting, kind of a netting, that was hanging from the ceiling down to the gate.
“Q. Did you cross over that gate and go into the barn?
“A. No.
“Q. Did you stand outside the gate?
“A. We stood right at the gate.”
App. 17-18.
Prior to the actual search of the barn and ranch house, the agents entered the property for further observations.
In the section of Blaekstone’s Commentaries which the Court cited, Blackstone described the elements of common-law burglary, and elaborated on the element that a breaking occur in a mansion or dwelling house. In defining the terms “mansion or dwelling-house,” Blackstone wrote that “no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man’s castle of defence . . . .” 4 W. Blackstone, Commentaries *225. Blackstone observed, however, that “if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall.” Ibid.
We decline the Government’s invitation to adopt a “bright-line rule” that “the curtilage should extend no farther than the nearest fence surrounding a fenced house.” Brief for United States 14. Fencing configurations are important factors in defining the curtilage, see infra, at 302, but, as we emphasize above, the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home. Application of the Government’s “first fence rule” might well lead to diminished Fourth Amendment protection in those cases where a structure lying outside a home’s enclosing fence was used for such domestic activities. And, in those cases where a house is situated on a large parcel of property and has no nearby enclosing fence, the Government’s rule would serve no utility; a court would still be required to assess the various factors outlined above to define the extent of the curtilage.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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sc_petitionerstate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CALIFORNIA DEPARTMENT OF CORRECTIONS et al. v. MORALES
No. 93-1462.
Argued January 9, 1995
Decided April 25, 1995
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 514.
James Ching, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Senior Assistant Attorney General, Joan W. Cavanagh, Supervising Deputy Attorney General, and G. Lewis Chartrand, Jr.
James R. Asperger argued the cause for respondent. With him on the brief were Daniel H. Bookin, Brian D. Boyle, and Thomas J. Karr
Briefs of amici curiae urging reversal were filed for the State of Georgia by Michael J. Bowers, Attorney General, Terry L. Long, Assistant Attorney General, and Daryl A Robinson, Senior Assistant Attorney General; for the State of Pennsylvania et al. by Ernest D Preate, Jr., Attorney General of Pennsylvania, and Andrea F. McKenna, Senior Deputy Attorney General, Grant Woods, Attorney General of Arizona, Gale A Norton, Attorney General of Colorado, John M. Bailey, Chief State’s Attorney of Connecticut, Elizabeth Barrett-Anderson, Attorney General of Guam, Robert A Marks, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Pamela Fanning Carter, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Jeremiah W. (Jay) Nixon, Attorney General of Missouri, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Joseph P. Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Deborah T. Poritz, Attorney General of New Jersey, Heidi Heitkamp, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Jan Graham, Attorney General of Utah, Rosalie Simmonds Ballentine, Attorney General of the Virgin Islands, Joseph B. Meyer, Attorney General of Wyoming, and Eleni M. Constantine; for the Criminal Justice Legal Foundation et al. by Kent S. Scheidegger, Charles L. Hobson, and Kevin Washburn; and for the Pacific Legal Foundation et al. by Ronald A Zumbrun and Anthony T. Caso.
Ronald D. Maines, Robert Burke, and Jonathan Smith filed a brief for the National Legal Aid and Defender Association et al. as amici curiae urging affirmance.
Justice Thomas
delivered the opinion of the Court.
In 1981, the State of California amended its parole procedures to allow the Board of Prison Terms to decrease the frequency of parole suitability hearings under certain circumstances. This case presents the question whether the application of this amendment to prisoners who committed their crimes before it was enacted violates the Ex Post Facto Clause. We conclude that it does not.
I
California twice has convicted respondent Jose Ramon Morales of murder. In 1971, the body of respondent’s girlfriend, Gina Wallace, was found in an abandoned medical building. She had been shot in the head, neck, and abdomen; her right thumb had been amputated and her face slashed repeatedly. A bloody fingerprint near the body matched respondent’s. A jury found respondent guilty of first-degree murder, and he was sentenced to life in prison.
While serving his sentence at the State Training Facility in Soledad, California, respondent met Lois Washabaugh, a 75-year-old woman who had begun visiting inmates after gaining an interest in prison reform. Ms. Washabaugh visited respondent on numerous occasions, and respondent kept in contact with her through correspondence. Respondent’s letters eventually expressed a romantic interest in Ms. Washabaugh, and the two were married some time after respondent’s release to a halfway house in April 1980.
On July 4, 1980, Ms. Washabaugh left her home and told friends that she was moving to Los Angeles to live with her new husband. Three days later, police officers found a human hand on the Hollywood Freeway in Los Angeles. Ms. Washabaugh was reported missing at the end of July, and fingerprint identification revealed that the hand was hers. Her body was never recovered. Respondent was subsequently arrested and found in possession of Ms. Washabaugh’s car, purse, credit cards, and diamond rings.
Respondent pleaded nolo contendere to the second-degree murder of Ms. Washabaugh. He was sentenced to a term of 15 years to life, but became eligible for parole beginning in 1990. As required by California law, see Cal. Penal Code Ann. § 3041 (West 1982), the Board of Prison Terms (Board) held a hearing on July 25, 1989, to determine respondent’s suitability for parole. California law required the Board to set a release date for respondent unless it found that “the public safety requires a more lengthy period of incarceration for this individual.” § 3041(b). The Board found respondent unsuitable for parole for numerous reasons, including the heinous, atrocious, and cruel nature of his offense; the mutilation of Ms. Washabaugh during or after the murder; respondent’s record of violence and assaultive behavior; and respondent’s commission of his second murder while on parole for his first. Supplemental App. to Pet. for Cert. 45.
Under the law in place at the time respondent murdered Ms. Washabaugh, respondent would have been entitled to subsequent suitability hearings on an annual basis. 1977 Cal. Stats., ch. 165, §46. In 1981, however, the California Legislature had authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of “more than one offense which involves the taking of a life” and if the Board “finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). In light of the considerations that led it to find respondent unsuitable for parole, and based on its conclusion that a longer period of observation was required before a parole release date could be projected, the Board determined that it was not reasonable to expect that respondent would be found suitable for parole in 1990 or 1991. Pursuant to the 1981 amendment, the Board scheduled the next hearing for 1992.
Respondent then filed a federal habeas corpus petition in the United States District Court for the Central District of California, asserting that he was being held in custody in violation of the Federal Constitution. See 28 U. S. C. § 2254. Respondent argued that as applied to him, the 1981 amendment constituted an ex post facto law barred by Article I, § 10, of the United States Constitution. The District Court denied respondent’s habeas petition, but the United States Court of Appeals for the Ninth Circuit reversed. 16 F. 3d 1001 (1994). Because “a prisoner cannot be paroled without first having a parole hearing,” the Court of Appeals concluded that “any retrospective law making parole hearings less accessible would effectively increase the [prisoner’s] sentence and violate the ex post facto clause.” Id., at 1004. The Court of Appeals accordingly held that the Board was constitutionally constrained to provide respondent with annual parole suitability hearings, as required by the law in effect when he committed his crime. Id., at 1006.
We granted certiorari, 512 U. S. 1287 (1994), and we now reverse.
II
Article I, §10, of the Constitution prohibits the States from passing any “ex post facto Law.” In Collins v. Youngblood, 497 U. S. 37, 41 (1990), we reaffirmed that the Ex Post Facto Clause incorporated “a term of art with an established meaning at the time of the framing of the Constitution.” In accordance with this original understanding, we have held that the Clause is aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Id., at 43 (citing Calder v. Bull, 3 Dall. 386, 391-392 (1798) (opinion of Chase, J.); Beazell v. Ohio, 269 U. S. 167, 169-170 (1925)).
The legislation at issue here effects no change in the definition of respondent’s crime. Instead, the question before us is whether the 1981 amendment to §3041.5 increases the “punishment” attached to respondent’s crime. In arguing that it does, respondent relies chiefly on a trilogy of cases holding that a legislature may not stiffen the “standard of punishment” applicable to crimes that have already been committed. See Lindsey v. Washington, 301 U. S. 397, 401 (1937); Miller v. Florida, 482 U. S. 423 (1987); Weaver v. Graham, 450 U. S. 24 (1981).
In Lindsey, we established the proposition that the Constitution “forbids the application of any new punitive measure to a crime already consummated.” 301 U. S., at 401. The petitioners in Lindsey had been convicted of grand larceny, and the sentencing provision in effect at the time they committed their crimes provided for a maximum sentence of “not more than fifteen years.” Id., at 398. The applicable law called for sentencing judges to impose an indeterminate sentence up to whatever maximum they selected, so long as it did not exceed 15 years. Id., at 398, 400. Before the petitioners were sentenced, however, a new statute was passed that required the judge to sentence the petitioners to the 15-year maximum; under the new statute, the petitioners could secure an earlier release only through the grace of the parole board. Id., at 398-399. We held that the application of this statute to petitioners violated the Ex Post Facto Clause because “the measure of punishment prescribed by the later statute is more severe than that of the earlier.” Id., at 401.
Weaver and Miller held that the Ex Post Facto Clause forbids the States to enhance the measure of punishment by altering the substantive “formula” used to calculate the applicable sentencing range. In Weaver, the petitioner had been sentenced to 15 years in prison for his crime of second-degree murder. Both at the time of his crime and at the time his sentence was imposed, state statutes provided a formula for mandatory reductions to the terms of all prisoners who complied with certain prison regulations and state laws. The statute that the petitioner challenged and that we invalidated retroactively reduced the amount of “gain time” credits available to prisoners under this formula. Though the statute preserved the possibility that some prisoners might win back these credits if they convinced prison officials to exercise their discretion to find that they were especially deserving, see 450 U. S., at 34, n. 18, we found that it effectively eliminated the lower end of the possible range of prison terms. Id., at 26-27, 31-33. The statute at issue in Miller contained a similar defect. The Florida sentencing scheme had established “presumptive sentencing ranges” for various offenses, which sentencing judges were required to follow in the absence of “clear and convincing reasons” for a departure. At the time that the petitioner in Miller committed his crime, his presumptive sentencing range would have been 3V2 to 4V2 years. Before his sentencing, however, the state legislature altered the formula for establishing the presumptive sentencing range for certain sexual offenses by increasing the “primary offense points” assigned to those crimes. As a result, petitioner’s presumptive, range jumped to 5V2 to 7 years. We held that the resulting increase in the “quantum of punishment” violated the Ex Post Facto Clause. 482 U. S., at 433-434.
Respondent insists that the California amendment before us is indistinguishable from the legislation at issue in Lindsey, Weaver, and Miller, and he contends that those cases control this one. We disagree. Both before and after the 1981 amendment, California punished the offense of second-degree murder with an indeterminate sentence of “confinement in the state prison for a term of 15 years to life.” Cal. Penal Code Ann. §190 (West 1982). The amendment also left unchanged the substantive formula for securing any reductions to this sentencing range. Thus, although 15 years was the formal “minimum” term of confinement, see ibid., respondent was able to secure a one-third “credit” or reduction in this minimum by complying with prison rules and regulations, see §2931. The amendment had no effect on the standards for fixing a prisoner’s initial date of “eligibility” for parole, see In re Jackson, 39 Cal. 3d 464, 476, 703 P. 2d 100, 108 (1985), or for determining his “suitability” for parole and setting his release date, see Cal. Penal Code Ann. §§3041, 3041.5 (West 1982).
The 1981 amendment made only one change: It introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period. § 3041.5(b)(2). In contrast to the laws at issue in Lindsey, Weaver, and Miller (which had the purpose and effect of enhancing the range of available prison terms, see Miller, supra, at 433-434), the evident focus of the California amendment was merely “ ‘to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings’” for prisoners who have no reasonable chance of being released. In re Jackson, supra, at 473, 703 P. 2d, at 106 (quoting legislative history). Rather than changing the sentencing range applicable to covered crimes, the 1981 amendment simply “alters the method to be followed” in fixing a parole release date under identical substantive standards. See Miller, supra, at 433 (contrasting adjustment to presumptive sentencing range with change in “the method to be followed in determining the appropriate sentence”); see also Dobbert v. Florida, 432 U. S. 282, 293-294 (1977) (contrasting change in the “quantum of punishment” with statute that merely “altered the methods employed in determining whether the death penalty was to be imposed”).
Ill
Respondent nonetheless urges us to hold that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner’s punishment. In his view, there is “no principled way to determine how significant a risk of enhanced confinement is to be tolerated.” Brief for Respondent 39. Our cases have never accepted this expansive view of the Ex Post Facto Clause, and we will not endorse it here.
Respondent’s approach would require that we invalidate any of a number of minor (and perhaps inevitable) mechanical changes that might produce some remote risk of impact on a prisoner’s expected term of confinement. Under respondent’s approach, the judiciary would be charged under the Ex Post Facto Clause with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures, including such innocuous adjustments as changes to the membership of the Board of Prison Terms, restrictions on the hours that prisoners may use the prison law library, reductions in the duration of the parole hearing, restrictions on the time allotted for a convicted defendant’s right of allocution before a sentencing judge, and page limitations on a defendant’s objections to presentence reports or on documents seeking a pardon from the governor. These and countless other changes might create some speculative, attenuated risk of affecting a prisoner’s actual term of confinement by making it more difficult for him to make a persuasive case for early release, but that fact alone cannot end the matter for ex post facto purposes.
Indeed, contrary to the approach advocated by respondent, we have long held that the question of what legislative adjustments “will be held to be of sufficient moment to transgress the constitutional prohibition” must be a matter of “degree.” Beazell, 269 U. S., at 171. In evaluating the constitutionality of the 1981 amendment, we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes. We have previously declined to articulate a single “formula” for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition, see ibid., and we have no occasion to do so here. The amendment creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause. See Dobbert, supra, at 294 (refusing to accept “speculation” that the effective punishment under a new statutory scheme would be “more onerous” than under the old one).
First, the amendment applies only to a class of prisoners for whom the likelihood of release on parole is quite remote. The amendment enabled the Board to extend the time between suitability hearings only for those prisoners who have been convicted of “more than one offense which involves the taking of a life.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). The California Supreme Court has noted that about 90% of all prisoners are found unsuitable for parole at the initial hearing, while 85% are found unsuitable at the second and subsequent hearings. In re Jackson, 39 Cal. 3d, at 473, 703 P. 2d, at 105. In light of these numbers, the amendment “was seen as a means ‘to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released.’” Ibid, (quoting legislative history).
Second, the Board’s authority under the amendment is carefully tailored to that end. The amendment has no effect on the date of any prisoner’s initial parole suitability hearing; it affects the timing only of subsequent hearings. Accordingly, the amendment has no effect on any prisoner unless the Board has first concluded, after a hearing, not only that the prisoner is unsuitable for parole, but also that “it. is not reasonable to expect that parole would be granted at a hearing during the following years.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). “This is no arbitrary decision,” Morris v. Castro, 166 Cal. App. 3d 33, 38, 212 Cal. Rptr. 299, 302 (1985); the Board must conduct “a full hearing and review” of all relevant facts, ibid., and state the bases for its finding. Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). Though California law is not entirely clear on this point, the reliability of the Board’s determination may also be enhanced by the possibility of an administrative appeal. See 15 Cal. Admin. Code § 2050 (1994).
Moreover, the Board retains the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner. The default requirement is an annual hearing, but the Board may defer the next hearing up to two years more depending on the circumstances. Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). Thus, a mass murderer who has participated in repeated violent crimes both in prison and while on parole could perhaps expect a 3-year delay between suitability hearings, while a prisoner who poses a lesser threat to the “public safety,” see § 3041(b), might receive only a 2-year delay. In light of the particularized findings required under the amendment and the broad discretion given to the Board, the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings. For these prisoners, the amendment simply allows the Board to avoid the futility of going through the motions of reannouncing its denial of parole suitability on a yearly basis.
Respondent suggests that there is some chance that the amendment might nevertheless produce an increased term of confinement for some prisoners who might experience a change of circumstances that could render them suitable for parole during the period between their hearings. Brief for Respondent 39. Respondent fails, however, to provide any support for his speculation that the multiple murderers and other prisoners subject to the amendment might experience an unanticipated change that is sufficiently monumental to alter their suitability for release on parole. Even if we assume the possibility of such a change, moreover, there is no reason to conclude that the amendment will have any effect on any prisoner’s actual term of confinement, for the current record provides no basis for concluding that a prisoner who experiences a drastic change of circumstances would be precluded from seeking an expedited hearing from the Board. Indeed, the California Supreme Court has suggested that under the circumstances hypothesized by respondent “the Board could advance the suitability hearing,” In re Jackson, supra, at 475, 703 P. 2d, at 107, and the California Department of Corrections indicates in its brief that the Board’s “practice” is to “review for merit any communication from an inmate asking for an earlier suitability hearing,” Reply Brief for Petitioner 3, n. 1. If the Board’s decision to postpone the hearing is subject to administrative appeal, the controlling regulations also seem to preserve the possibility of a belated appeal. See 15 Cal. Admin. Code §2050 (1994) (time limits for administrative appeals “are directory only and may be extended”). An expedited hearing by the Board — either on its own volition or pursuant to an order entered on an administrative appeal — would remove any possibility of harm even under the hypothetical circumstances suggested by respondent.
Even if a prisoner were denied an expedited hearing, there is no reason to think that such postponement would extend any prisoner’s actual period of confinement. According to the California Supreme Court, the possibility of immediate release after a finding of suitability for parole is largely “theoretica[l],” In re Jackson, 39 Cal. 3d, at 474, 703 P. 2d, at 106; in many cases, the prisoner’s parole release date comes at least several years after a finding of suitability. To the extent that these cases are representative, it follows that “the 'practical effect’ of a hearing postponement is not significant.” Id., at 474, 703 P. 2d, at 106-107. This is because the Board is bound by statute to consider “any sentencing information relevant to the setting of parole release dates” with an eye toward establishing “uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.” Cal. Penal Code Ann. § 3041(a) (West 1982). Under these standards, the fact that a prisoner had been “suitable” for parole prior to the date of the hearing certainly would be “relevant” to the Board’s decision in setting an actual release date, and the Board retains the discretion to expedite the release date of such a prisoner. Thus, a prisoner who could show that he was “suitable” for parole two years prior to such a finding by the Board might well be entitled to secure a release date that reflects that fact. Such a prisoner’s ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings.
IV
Given these circumstances, we conclude that the California legislation at issue creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes. The Ninth Circuit’s judgment that the amendment violates the Ex Post Facto Clause is accordingly reversed.
It is so ordered.
The statute was again amended in 1990 to allow the Board the alternative of deferring hearings for five years if the prisoner has been convicted of more than two murders, Cal. Penal Code Ann. § 3041.5(b)(2)(C) (West Supp. 1994), 1990 Cal. Stats., ch. 1053, and in 1994 to extend that alternative to prisoners convicted of even a single murder, 1994 Cal. Stats., ch. 560. The 5-year deferral applies, however, “only to offenses committed before July 1, 1977, or on or after January 1, 1991,” 1990 Cal. Stats., ch. 1053, and thus appears to have no application to respondent, whose most recent crime was committed in 1980.
During the pendency of this action, respondent appeared before the Board for his 1992 suitability hearing. The Board again found respondent unsuitable and again determined that it was not reasonable to expect that he would be found suitable for parole at the following two annual hearings. Respondent’s next suitability hearing was then set for 1995.
Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders. See Lindsey, 301 U. S., at 401; Weaver, 450 U. S., at 29; Miller, 482 U. S., at 433. But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U. S. 37, 41 (1990). After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner’s “opportunity to take advantage of provisions for early release,” see post, at 518, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.
The dissent proposes a line between those measures that deprive prisoners of a parole hearing and those that “make it more difficult for prisoners to obtain release.” Post, at 524. But this arbitrary line has absolutely no basis in the Constitution. If a delay in parole hearings raises ex post facto concerns, it is because that delay effectively increases a prisoner’s term of confinement, and not because the hearing itself has independent constitutional significance. Other adjustments to mechanisms surrounding the sentencing process should be evaluated under the same standard.
Contrary to the dissent’s suggestion, see post, at 519, we express no view as to the constitutionality of any of a number of other statutes that might alter the timing of parole hearings under circumstances different from those present here.
The dissent suggests that any “speculation” as to the effect of the amendment on prison terms should “ru[n] in the other direction,” post, at 525, but this approach effectively shifts to the State the burden of persuasion as to respondent’s ex post facto claim. Not surprisingly, the dissent identifies no support for its attempt to undo the settled rule that a claimant must bear the risk of nonpersuasion as to the existence of an alleged constitutional violation. Although we have held that a party asserting an ex post facto claim need not carry the burden of showing that he would have been sentenced to a lesser term under the measure or range of punishments in place under the previous statutory scheme, see Lindsey v. Washington, 301 U. S., at 401, we have never suggested that the challenging party may escape the ultimate burden of establishing that the measure of punishment itself has changed. Indeed, elimination of that burden would eviscerate the view of the Ex Post Facto Clause that we reaffirmed in Collins. Just as “[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed,” Gibson v. Mississippi, 162 U. S. 565, 590 (1896), neither does it require that the sentence be carried out under the identical legal regime that previously prevailed.
The dissent mischaracterizes our analysis in suggesting that we somehow have concocted a “reduced” standard of judicial scrutiny for application to “a narrow group as unpopular ... as multiple murderers.” Post, at 522. The ex post facto standard we apply today is constant: It looks to whether a given legislative change has the prohibited effect of altering the definition of crimes or increasing punishments. Our application of that standard necessarily considers a number of factors — including, in this case, that the 1981 amendment targets a group of prisoners whom the California Legislature deemed less likely than others to secure early release on parole — but the constitutional standard is neither “enhanced” nor “reduced” on the basis of societal animosity toward multiple murderers. Cf. ibid.
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_respond2_7_5
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Louis W. WEGERER and Judith A. Wegerer, Plaintiffs-Appellees, v. FIRST COMMODITY CORPORATION OF BOSTON, et al., Defendants-Appellants.
No. 82-1686.
United States Court of Appeals, Tenth Circuit.
Sept. 10, 1984.
Rehearing Denied Oct. 11, 1984.
Theodore C. Beckett, Kansas City, Mo. (Don R. Lolli and Emmett J. McMahon, Kansas City, Mo., with him on brief) of Beckett & Steinkamp, Kansas City, Mo. (Charles C. Rankin, Lawrence, Kan., of counsel), for plaintiffs-appellees.
Arthur L. Smith, Washington, D.C. (Thomas W. Van Dyke, J. Michael Vaughan, and James C. Tilden of Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, Mo., on brief), for defendants-appellants.
Before BARRETT, BREITENSTEIN and McKAY, Circuit Judges.
BARRETT, Circuit Judge.
First Commodity Corporation of Boston (FCCB), Donald R. Schleicher, and his brother, Richard A. Schleicher (Appellants) appeal from an adverse jury verdict and remittitur judgment entered in favor of Louis and Judith Wegerer (Wegerers). The Wegerers were awarded $10,775.00 in actual damages and $250,000.00 in punitive damages on a finding that appellants and one Robert Jones, a former account executive for FCCB, conspired to defraud the Wegerers in the sale of two copper commodity option contracts. The evidence presented at trial was developed exclusively by the Wegerers; the appellants rested without presenting any evidence.
BACKGROUND
FCCB is a corporation doing business as a commodity option brokerage firm with its main office in Boston and sales offices in Chicago, Miami, San Francisco, New York, and Newport Beach. FCCB is a private, closely-held corporation whose stock is owned by Donald Schleicher (80%) and Richard Schleicher (20%). At all times relevant hereto, Donald Schleicher was president, treasurer and chairman of the board of directors of FCCB, while Richard Schleicher was vice-president, secretary, and the only other member of FCCB’s board of directors. Richard Schleicher did most of the research for FCCB. Over the years FCCB has enjoyed tremendous financial success and the Schleichers have profited accordingly. In his deposition Donald Schleicher testified that he and Richard had recently sold 20% of FCCB, for which he had received $3,900,000 and Richard had received $900,000; that FCCB was selling several of its offices to a partnership for $6,000,000, and that the proceeds of the sale would go to himself and his brother over a three to four year period. FCCB held itself out to be the oldest commodity options specialist on the East Coast with considerable financial strength, and one of America’s most accomplished and professional commodity option brokerage firms. FCCB employs several hundred salesmen to sell various option contracts.
On November 11, 1976, FCCB, through Donald Schleicher as President, and Donald and Richard Schleicher, individually, and on behalf of “their affiliates, officers, agents, servants, employees, attorneys, and assigns, and those persons in active concert or participation with them” (R., Pl.Ex. 33 at 2) entered into a consent decree with the Commodity Futures Trading Commission permanently enjoining each of them from using the mails or any means or instrumentalities of interstate commerce to cheat or defraud any person by: (1) disseminating by means of oral representations or written materials expected and predicted profits and returns from commodity options and futures transactions, (2) representing that commodity options or commodity transactions are guaranteed, backed, escrowed or collateralized for the benefit and protection of purchasers of commodity options, (3) failing to disclose or misrepresenting the actual amount of the purchase price of commodity options, including a separate listing of the premium, markups on the premium, costs, fees, and commissions, (4) executing commodity option transactions and commodity futures contracts without the consent, knowledge, and/or authorization of its customers; (5) failing or omitting to disclose or misrepresenting the price level which a commodity must reach during the life of an option before an option customer will realize a profit, (6) failing or omitting to disclose that specific market movements of a commodity or contract of sale of a commodity for future delivery cannot be accurately predicted, (7) failing or omitting to disclose the nature and character of a customer’s investment in commodity options, (8) failing or omitting to relate all additional costs which may be incurred by an option customer if the option is exercised, and (9) failing to disclose or misrepresenting the fact that a commodity option purchased by a customer had earlier been purchased for the account of FCCB or another customer of FCCB.
FACTS
During early April 1978, Louis Wegerer, a railroad engineer responded to an FCCB advertisement. Although neither Louis nor his wife, Judith, both residents of Mari-, on, Kansas, knew anything about stocks, bonds, or commodities, they decided to respond to the FCCB advertisement which stated that “Mr. X invested $3,445; nine months later he received $24,213.” Within several days after responding to the ad, the Wegerers received the first of what was to be a series of phone calls from Robert Jones, an account executive for FCCB, from New York. Although the Wegerers told Jones that they knew nothing about dealing in commodities or investments and that they could not afford to invest in commodity option contracts, Jones persisted. He made thirty to forty telephone calls to the Wegerers over a period of several weeks. During the course of his telephone conversations with the Wegerers, Jones related, inter alia: an investment in copper commodity option contracts was completely safe; the Wegerers would make money with each rise in the price of copper; that copper was rising and the Wegerers were sure to make a profit; that the Wegerers should not review the documents and information mailed to them by FCCB because it was too complicated for them to understand and the information was sent out merely to fulfill a legal requirement; that he was an expert in commodities; and he was making many people a lot of money and that the Wegerers should trust him with their investment.
Based on Jones’ representations, the Wegerers withdrew some of their savings and also obtained a bank loan, all in Kansas, for investing $5,375 with FCCB on May 8, 1978, and $5,400 with FCCB on May 30, 1978, in copper commodity options traded on the London exchange. Subsequent to making these investments, the Wegerers discovered, for the first time, (1) that FCCB charged a commission brokerage fee equal to 100% of the purchase price of the copper commodity options they had purchased, (2) that two days after they had purchased their second option contract, the sale of commodity options was banned in the United States by the Commodity Futures Trading Commission because of rampant fraud in the sale of such options, and (3) that the price of copper had to rise a fixed amount before they could even recover their initial investment.
After the Wegerers purchased their second contract, Jones stopped calling them. Despite repeated attempts, the Wegerers were unable to contact Jones again. The Wegerers subsequently sued FCCB, the Schleichers, and Jones alleging that they were persuaded to purchase two copper option contracts which were worthless at the time they were purchased and that the actions of the appellants and Robert Jones in inducing them to effectuate the purchases were in violation of federal law and constituted fraud and conspiracy to defraud under Kansas law.
Following a three day trial, the jury returned a verdict against FCCB and the Schleichers, awarding the Wegerers $15,-000 in actual damages and $1,000,000 in punitive damages. Following appellants’ post-trial motions, the district court entered an order denying a new trial and appellants’ motion for a judgment notwithstanding the verdict. The district court did, however, grant appellants’ motion for a remittitur. The court reduced the Wegerers’ actual damages to $10,775.00, the purchase price of the contracts, and the Wegerers’ punitive damages to $250,000.00.
ISSUES
On appeal FCCB and the Schleichers contend the district court erred by: (1) refusing to give their requested instruction on justifiable reliance, (2) refusing to grant a new trial after finding that the $1,000,000 punitive damage award was excessive, (3) denying their motions for directed verdict and a new trial, (4) submitting Instructions 9-11A since officers, directors or employees of a corporation acting in their official capacity on behalf of a corporation cannot conspire with their corporation, (5) holding that it had personal jurisdiction over the Schleichers, (6) admitting the 1976 consent decree, (7) admitting the testimony of two other FCCB customers, and (8) by ruling that various complaints filed with the Commodities Futures Trading Commissioner by unrelated parties could be used for cross-examination of any defendant.
I.
Appellants contend that the district court erred in refusing to give their requested instruction defining justifiable reliance. Appellants argue, citing to Goff v. American Savings Association of Kansas, 561 P.2d 897, 903 (Ct.App.Ks.1977), that the test for determining when reliance is justified is whether the plaintiffs had “information which would serve as a danger signal and a red light to any normal person of his intelligence and experience” and that the district court erred by not instructing accordingly.
In rejecting the appellants’ proferred instruction, the district court stated:
The reason I rejected this [instruction], the way you submitted it is that you are trying to get comparative fault in this case and the court isn’t about to let you turn, this into a negligence case.
(R., Vol. X at 304-305.)
Thereafter, the district court instructed the jury on justifiable reliance in Instruction No. 8:
A party claiming to have been defrauded by a false representation or concealment must not only have acted in reliance thereon but must have been justified in such reliance, that is, the situation must have been such as to make it reasonable for him, in the light of the circumstances and his intelligence, experience and knowledge, to accept the representation without making an independent inquiry or investigation.
(R., Vol. II at 291.)
Under these circumstances we hold that the district court did not err in refusing the appellants’ proffered instruction. Whereas a party is, upon proper request, entitled to an instruction upon his theory of the case if there is evidence to support it, Brandes v. Burbank, 613 F.2d 658 (7th Cir.1980), a party is not entitled to have the jury instructed in the particular language of its choice. Frosty Land Foods International, Inc. v. Refrigerated Transport Co., Inc., 613 F.2d 1344 (5th Cir.1980); Baker & Co. v. Preferred Risk Mutual Insurance Co., 569 F.2d 1347 (5th Cir.1978). Instructions must be considered as a whole and particular instructions and requests for instructions are to be considered in the framework of the entire charge. Marshall v. Ford Motor Company, 446 F.2d 712 (10th Cir.1971). The district court’s instructions were proper and adequate.
We have also considered the applicability of our Zobrist v. Coal-X, Inc., 708 F.2d 1511 (10th Cir.1983), cited by both parties in supplemental authority letters to the court. We hold Zobrist to be distinguishable.
Zobrist involved an action brought by purchasers of stock against the sellers to recover for fraud. In Zobrist we held that the warnings and statements contained in a private placement memorandum could be imputed to a sophisticated investor even though he had not read them and that the investor could not justifiably- rely on misrepresentations where the falsity of the misrepresentations is palpable. Such is not the case at hand.
Neither of the Wegerers were sophisticated investors. Furthermore, it is uncontested that the Wegerers were told not to read the materials sent to them; that Jones told the Wegerers the materials were sent by FCCB merely to comply with a legal requirement; that the Wegerers were lied to repeatedly; and that the Wegerers were “badgered” by numerous telephone calls and pressured into investing.
II.
Appéllants argue that the district court erred in admitting the 1976 consent decree executed by FCCB and the Schleichers. Appellants contend that although the district court admitted the decree for the limited purpose of showing intent and knowledge, and instructed the jury accordingly, that the consent decree was nonetheless inadmissible for any purpose under Rules 410, 408, 404(b), 403, 402 and 802 of the Federal Rules of Evidence. Appellants further contend that the limiting instruction given by the court did not cure the prejudice suffered by the appellants as a result of the admission of the consent decree. We disagree. We hold that the district court properly admitted the consent decree for the limited purpose of showing intent and knowledge under Rule 404(b).
Rule 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person or to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plain knowledge, identity, or absence of mistake or accident.
Within Instruction No. 12 the district court charged the jury:
Certain evidence has been admitted of alleged similar misrepresentations made by defendants to one Jerry Kerr and Michael Collins. Also there has been received into evidence Exhibit 33, a consent decree involving claims between the Commodity Futures Trading Commission and persons named in the consent decree, including the defendants in this action.
This evidence has been admitted for limited purposes only as being relevant to defendants’ intent to defraud plaintiffs, any scheme or plan on the part of defendants to defraud plaintiffs, and also defendants' knowledge of the alleged falsity of misrepresentations made to plaintiffs.
The admission of the consent decree, as limited, was particularly appropriate in this case for purposes of showing intent and knowledge. In United States v. Barbieri, 614 F.2d 715, 719 (10th Cir.1980) we stated:
Under Fed.R.Evid. 404(b), evidence of crimes not charged in the indictment may be admitted to prove, among other things, intent and plan. See United States v. Ahern, 612 F.2d 507, 509 (10th Cir.1980). The admissibility of such evidence is within the sound discretion of the trial judge. See United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). We find no abuse of discretion here.
Matters of intent and plan were crucial in this case. The evidence was relevant for a purpose other than showing bad character; it was clear and convincing; and its probative value substantially outweighed the danger of prejudice. See United States v. Scholle, 553 F.2d 1109, 1121 (8th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). The St. Louis evidence showed the dimensions and continuing nature of Barbieri’s scheme. It put the activities in Oklahoma City in context. See United States v. Pauldino, 443 F.2d 1108, 1113 (10th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163 (1971). Finally, it provided a basis for understanding the testimony — ...
See also Jerry J. Kerr v. First Commodity Corporation of Boston, 735 F.2d 281 (8th Cir.1984) in which the Court upheld the admission of the same consent decree here involved “solely for the purpose of demonstrating First Commodity’s knowledge and intent to commit the fraud insofar as such knowledge and intent are relevant to the issue of punitive damages” at 286. Although the district court in the instant case did not limit the consent decree solely for consideration of punitive damages, the decree was properly admitted since the Wegerers not only sued FCCB, but also the Schleichers, and the punitive damages awarded the Wegerers were assessed only against FCCB.
III.
Appellants contend that the district court erred in giving Instructions 9 through 11A on conspiracy because the evidence failed to establish that any of the individual defendants were acting outside their official capacities on behalf of FCCB. Appellants cite May v. Santa Fe Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962) for the general rule that officers, directors or employees of a corporation, acting in their official capacities on behalf of the corporation, cannot conspire with the corporation. Appellants acknowledge that the court in May implicitly recognized an exception to the general rule, set forth in Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391 (4th Cir.1974) and Jewel Foliage Co. v. Uniflora Overseas Florida, 497 F.Supp. 513 (M.D.Fla.1980), that officers, directors, or employees of a corporation who personally benefit from the illegal activities in a way separate and distinct from the corporation may be held to be a participant in a conspiracy with their corporation. Appellants contend that the pivotal question of whether the Schleichers conspired with FCCB must be resolved by determining whether they were acting within their official capacities on behalf of the corporation or whether they were acting for their individual benefit.
Appellants argue that the evidence presented by the Wegerers does not contradict their contention that the individual defendants were acting within their official capacities for FCCB when dealing with the Wegerers. They cite Jewel Foliage v. Uni-flora Overseas Florida, supra, for the proposition that mere stock ownership does not preclude the application of May, and Stanfield v. Osborne Industries, Inc., 7 Kan.App.2d 416, 643 P.2d 1115 (1982) for the proposition that the mere accrual of personal benefits to individual shareholders, such as the Schleichers, does not remove a case from the May holding, whenever the actions of the individual defendants are completely related to their corporate responsibilities. Finally, appellants contend that “the 1976 consent decree provides no evidence of the individual benefit which plaintiffs must prove the Schleichers received in order to prove a civil conspiracy.” (Brief of Defendants-Appellants at 22.)
Kansas has long recognized that there may be recovery against all the members of a civil conspiracy by one who has suffered damages as a result of actionable conduct by one or more of the conspirators pursuant to the conspiracy. Ammon v. Kaplow, 468 F.Supp. 1304, 1312 (D.Ks.1979), citing International Union, United Auto, et al. v. Cardwell Mfg. Co., 416 F.Supp. 1267, 1290 (D.Ks.1976). Under the law of Kansas, a plaintiff may either prove the conspiracy by admissible acts of the conspirators, or by admissible acts of different persons. Beverly v. McCullick, 211 Kan. 87, 505 P.2d 624, 626 (1973). Furthermore, the reckless misrepresentations of an employee such as Jones, who is also a co-conspirator, are imputed to FCCB. First Commodity Corporation of Boston v. CFTC, 676 F.2d 1 (1st Cir.1982).
Within Count II of their complaint, the Wegerers alleged that FCCB, Donald and Richard Schleicher, together with Robert Jones, pursuant to a conspiracy to defraud, committed tortious acts against them, i.e., false and fraudulent representations and concealing material facts which they relied upon in purchasing two copper commodity option contracts from FCCB for $10,775.00. In determining whether the district court properly instructed on conspiracy we must decide whether (1) the Wegerers established a civil conspiracy, and (2) whether the Wegerers established that the Schleichers were acting outside their official capacities for their personal gain.
The Wegerers presented evidence which established that: they responded to an FCCB advertisement which stated that one of its clients had made a profit of 827% in one year; Donald and Richard Schleicher were the principal officers and only directors and shareholders of FCCB; Robert Jones, an FCCB account executive, made numerous phone calls to them within a relatively short period of time during which time he held himself out to be an expert; Jones stated that the Wegerers did not need to read the written material sent to them by FCCB since they would not be able to understand it and the information was being sent out merely to fulfill a legal requirement; Jones stated that copper prices were rising and that they were certain to make a profit; the Wegerers wired FCCB funds totaling $10,775; FCCB accepted the wired funds and mailed out confirmations; FCCB did not sent the Wegerers the contracts Jones said would be sent; the Wegerers were not knowledgeable, sophisticated investors; the Wegerers relied exclusively on Jones as an employee of FCCB in purchasing the option contracts; the Wegerers were unaware that the commission fees on their purchases would equal 100% of the purchase price of the option contracts; FCCB and the Schleichers had entered into a consent decree in 1976 in which FCCB and the Schleichers agreed to cease and desist from a variety of deceptive practices, many of which were identical to the practices utilized in defrauding the Wegerers.
Under these circumstances, we hold that the Wegerers established a civil conspiracy to defraud. We further hold that this same, uncontested, evidence established that the Schleichers were acting outside their official capacities as officers and directors of FCCB. They were acting for their personal gain.
In evaluating whether the Schleichers were acting outside of their official capacities for their own personal gain, we view the consent decree executed by FCCB and the Schleichers to be of primary importance. Under the decree, voluntarily executed by FCCB and the Schleichers, the Schleichers agreed to be permanently enjoined from cheating or defrauding any other person by, inter alia: representing expected or predicted profits and returns from commodity options, failing to disclose or misrepresent the actual purchase price of commodity options, failing to disclose that the market movements of commodity options or contract cannot be accurately predicted, and failing or omitting to disclose material facts about the nature and character of a customer’s investment in commodity options.
Notwithstanding the Schleichers’ voluntary execution of the consent decree on November 11, 1976, the Wegerers presented unchallenged evidence that: after November 11, 1976, FCCB sold them and numerous other customers commodity options utilizing the very fraudulent and deceptive practices permanently enjoined by the consent decree; subsequent to the execution of the consent decree, FCCB’s earnings flourished and Donald and Richard were personally able to sell 20% of FCCB for $4,800,000 and to also personally sell several sales offices for $6,000,000, and that sales proceeds went directly to the Schleichers; and that during this period the Schleichers were borrowing large sums of money from FCCB at six percent per annum interest rates with very favorable repayment terms.
Under all of the circumstances, we hold that the Wegerers presented substantial evidence from which the jury could find that the Schleichers were acting outside of their official capacities as officers and directors of FCCB for their personal benefit and that the Schleichers could, accordingly, conspire with FCCB in defrauding the Wegerers. The Schleichers personally benefited from the illegal activities (fraudulent sale of commodity options) in a way separate and distinct from FCCB.
Assuming, arguendo, that the Wegerers did not present sufficient evidence upon which the jury could find that the Schleichers were acting outside their official capacities for their personal benefit, the facts in evidence do, in our view, support the application of the alter ego doctrine. In Quarles v. Fuqua Industries, Inc., 504 F.2d 1358, 1362 (10th Cir.1974) we stated:
Kansas, however, has recognized the alter ego doctrine. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33 (1970). Under this doctrine, the corporate entity is disregarded and liability fastened on an individual who uses the corporation merely as an instrumentality to conduct his own personal business. The liability must arise from fraud or injustice perpetrated on third parties dealing with the corporation. Id. 473 P.2d at 42. See Doyn Aircraft, Inc. v. Wylie, 443 F.2d 579 (10th Cir.1971).
It is uncontested that the appellants’ liability to the Wegerers arose from the fraud perpetrated on them (Wegerers) through their dealings with FCCB. There is sufficient evidence in the record permitting the jury to conclude that the Schleichers, as the principal officers and only-shareholders and directors of FCCB, were utilizing FCCB “merely as an instrumentality to conduct... [their] own personal business.” This is particularly true when, as here, the Schleichers executed the 1976 consent individually. Applying the alter ego doctrine to the facts herein, FCCB’s existence as a corporate entity must be disregarded and the Schleichers reliance on May, supra, for the general rule that officers, directors or employees of a corporation acting in their official capacities cannot conspire with the corporation, is without merit. Thus, we hold that the district court properly instructed the jury by giving Instructions 9 through 11A on conspiracy.
IV.
The Schleichers contend that the district court erred in finding that it had personal jurisdiction over them. The Schleichers argue that the district court erroneously asserted jurisdiction under K.S.A. § 60-308(b)(2) (1976) when the only contacts they had with Kansas were: (1) execution of the 1976 Consent Decree, (2) in an affidavit, Don Schleicher stated a form letter bearing his signature stamp was mailed to Louis Wegerer in Kansas, and (3) copies of investment recommendations generated by Richard Schleicher were mailed to the Wegerers in Kansas. The Schleichers argue that the district court erroneously concluded that this evidence presented a prima facie showing that the Schleichers had committed a tortious act within Kansas and had sufficient “minimum contacts” with the state to satisfy due process. Schleichers also argue that the district court erroneously found jurisdiction over them individually by way of jurisdiction over FCCB.
A party invoking the jurisdiction of the federal courts has the burden of proving that federal jurisdiction does exist. Basso v. Utah Power and Light Company, 495 F.2d 906 (10th Cir.1974). A federal court, in diversity actions, may obtain personal jurisdiction over nonresidents of the state in which the district court is located by complying with the state’s long-arm statute. Quarles v. Fuqua Industries, Inc., supra. Jurisdiction over the individual officers of a corporation, however, may not be obtained merely by accomplishing jurisdiction over the corporation. Escude Cruz v. Ortho Pharmaceutical Corporation, 619 F.2d 902 (1st Cir.1980); Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277 (10th Cir.1969).
In meeting the threshold burden of establishing in personam jurisdiction in a diversity action, a Kansas plaintiff need only make out a prima facie case of the jurisdictional fact of conspiracy or entry into the state. Professional Investing Life Ins. Co. v. Roussel, 445 F.Supp. 687 (D.Ks.1978). Kansas’ long-arm statute, § 60-308(b)(2), provides in part:
Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
* # # >}: >¡t *
(2) commission of a tortious act within this state;
Fraud and deceit in inducement to contract are clearly torts that may cause Kansas residents sufficient injury to invoke Kansas’ legitimate protective interests under § 60-308(b)(2). J.E.M. Corporation v. McClellan, 462 F.Supp. 1246, 1252 (D.Ks.1978). A plaintiff need not establish that a defendant was actually present in Kansas to effectuate service under § 60-308(b)(2), or that the tortious act complained of occurred in Kansas. In J.E.M. Corporation, supra, the court opined:
It is inconceivable that the legislature did not also intend to extend service to tortious acts outside the forum that cause tortious injury to a resident in the state, particularly in this day of instant long-range communications when one can engage in extensive purposeful activity here without ever actually setting foot in the state. See Professional Investors Life Ins. Co. v. Roussel, supra, at 695, quoting Ghazoul v. International Management Services, Inc., 398 F.Supp. 307 (S.D.N.Y.1975).
462 F.Supp. at 1252.
Applying these standards to the facts herein, we hold that the district court did not err in finding that it had in personam jurisdiction over the Schleichers.
V.
We have carefully considered the appellants’ remaining allegations of error and find them to be individually and collectively without merit.
WE AFFIRM.
. Robert Jones was never served and was, accordingly, never a part of the lawsuit.
. Although Wegerer responded to an FCCB advertisement in the Houston Post, FCCB was also advertising in the Kansas City Star and Wichita Eagle during 1977 and 1978.
. The decree was also executed by John Farwell Howe, III, individually, who is not a party herein.
. We previously denied the Schleichers’ Writ of Prohibition which sought review of the district court’s denial of their motion to dismiss for lack of personal jurisdiction. First Commodity Corporation of Boston v. The United States District Court, No. 80-1766 (Aug. 29, 1980).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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