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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
WILSON v. LANAGAN.
No. 3064.
Circuit Court of Appeals, First Circuit.
Oct. 16, 1935.
John H. Wilson, pro se.
James J. Bacigalupo, Asst. Atty. Gen., of Massachusetts (Paul A. Dever, Atty. Gen., of Massachusetts, on the brief), for appellee.
Before BINGHAM and MORTON, Circuit Judges, and PETERS, District Judge.
PER CURIAM.
This is an appeal from an order or judgment of May 22, 1935, of the federal District Court for Massachusetts dismissing a petition for writ of habeas corpus and denying the writ. It appears that the petitioner is held under process of the state court and that there is no certificate of probable cause as is now required in such a case to authorize this court to entertain jurisdiction. USCA, title 28, § 466 (43 Stat. 940, § 6 (d), Act March 10, 1908, c. 76 (35 Stat. 40). See Bilik v. Strassheim, 212 U. S. 551, 29 S. Ct. 684, 53 L. Ed. 649; Ex parte Patrick, 212 U. S. 555, 29 S. Ct. 686, 53 L. Ed. 650; Comerford v. Hogsett, 79 F.(2d) 486, decided by this court October 16, 1935.
The appeal is dismissed for want of jurisdiction.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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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".
DENARO v. McLAREN PRODUCTS CO. et al.
(Circuit Court of Appeals, First Circuit.
December 7, 1925.)
No. 1861.
1. Abatement and: revival <@=341 — Patents <@= 284 — Substituting parties plaintiff by reason of death and assignments held not to entitle defendant to dissolution of injunction and dismissal.
In patent infringement suit, filing of supplemental bill, substituting new parties plaintiff, successors in interest of former parties through assignments and death of one of them, after reversal of decree dismissing bill, held not to entitle defendants to dissolution of injunction, vacation of execution for costs, and dismissal, on theory that original cause of action and rights thereunder had abated.
2. Parties <@=62 — That .substitution of parties plaintiff in infringement suit was attempted by filing of supplemental rather than original bill held immaterial.
That substitution of parties plaintiff in patent infringement suit, because of assignment of interests, was attempted by filing of supplemental bill, to be taken as amendment to original bill, rather than by filing of original bill, is immaterial.
3. Courts <@=407(2) — On appeal from interlocutory decree in injunction suit, Circuit Court of Appeals held authorized to determine merits.
On appeal from interlocutory decree denying motion to dissolve injunction, vacate execution for costs, and dismiss bill, Circuit Court of Appeals, under Judicial Code, § 129 (Comp. St. § 1121), has authority to determine merits of case.
4. Ahatement and revival <@=347 — Patents <@= 284 — Successors in interest of plaintiffs in patent infringement suit held entitled to substitution.
Successors in interest of parties plaintiff in patent infringement suit, through assignments and death of one of parties, who had held legal title in trust for others, on filing of supplemental bill, to be taken as amendment of original bill, held entitled to be substituted for original plaintiffs, and to benefit of all judgments and decrees previously entered, to same extent as original plaintiffs.
5. Corporations <@=617(5) — Cancellation of corporate charter of party plaintiff in patent infringement suit held not to affect litigation.
■ That corporate charter of party plaintiff in patent infringement suit was canceled by state of its domicile for nonpayment of taxes, held not to affect pending litigation, in view of laws of such state and of state where litigation was pending, Gen. Code Ohio, § 11964, and G. L; Mass. 1921, c. 155, respectively.
Appeal from the District Court of the United States fo-r the District of Massachusetts; George W. Anderson, Judge.
Suit by the American Cone & Wafer Company and others against James Denaro, wherein the McLaren Products Company and others sought by supplemental bill to be substituted as parties plaintiff. From an interlocutory decree, denying defendant’s motion to dissolve injunction, vacate execution for costs, and dismiss bill, defendant appeals.
Decree affirmed, with instructions.
See, also, 297 F. 913.
Jesse A. Holton, of Boston, Mass., for appellant.
Albert E. Dieterich, of Washington, D. C. (Frederick A. Tennant, of Boston, Mass., on the brief), for appellees.
Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Ju'dge.
JOHNSON, Circuit Judge.
This is an appeal from an interlocutory decree of the District Court of the United States for the District of Massachusetts, denying the appellant's motion to dissolve an injunction, vacate an execution for costs, and dismiss the bill under which damages were sought for infringement of a patent.
. A bill in equity, alleging infringement of a patent and praying for an injunction and accounting, was filed September 22, 1921, by Frederick A. Bruekman, Alexander McLaren, the American Cone & Wafer Company, as exclusive licensee in certain territory, and Fred G. Dieterieh and Albert E. Dieterieh, copartners under the firm name and style of Fred G. Dieterieh & Co., as trustees, holding the legal title- to the patent for the benefit of Bruekman and McLaren.
The bill' was dismissed by the District Court; but upon appeal to this court the’ decree of the District Court was reversed, and the action was remanded to that court for further action not inconsistent with the opinion of this court. 297 F.-913.
October 28, 1924, an execution for costs was issued by the District Court on the mandate of this court. A motion for stay of this execution was filed by the defendant, which was denied November 5, 1924. A déeree of the District Court was entered upon the mandate of the Circuit Court of Appeals November 17, 1924, and a writ of injunction issued November 18, 1924, which was served upon the defendant.
Motion for leave to file an amendment, in the nature of a supplemental bill substituting new parties plaintiff, was filed November 22, 1924, which was granted and subpoena issued and served. On November 26, 1924, the defendant filed a motion to dissolve the injunction, vacate the order for execution, and dismiss the bill-
The situation is this: There is pending in the District Court a supplemental bill, in which the McLaren Products Company, a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, Alexander McLaren, of Chicago, in the state of Illinois, and Albert E. Dieterich, as trustee, a resident of Washington, in the District of Columbia, have set out the death of Fred G. Dieterich on February 20, 1923, before the opinion of this court was announced, and alleged that Albert E. Dieterich, as sole surviving member of the firm of Fred G. Dieterich & Co., became the sole surviving trustee of the legal title to the patent in suit for the solo benefit of Alexander McLaren, in accordance with a trust instrument previously entered into and particularly described in the bill; that the said Frederick A. Bruckman authorized and empowered the said Albert E. -Dieterich, as sole surviving partner of said partnership, and as surviving trustee in execution of said trust, to convey and set over to the said Alexander McLaren, his heirs and assigns, or to such other person, firm, corporation, or association as he may direct, the entire right, title, and interest conveyed to the said trustee by said trust instrument; that the said Frederick A. Bruckman furthermore sold, assigned, and quitclaimed unto the said Alexander McLaren, his heirs and assigns, all his (Bruekman’s) rights in the letters patent here in suit, including all claims and demands in law and in equity in the territory described in said trust instrument; that Frederick A. Bruckman has no interest in the said letters patent within the territory specified in this agreement; that the American Cone & Wafer Company, on March 22, 1923, had assigned and transferred unto the McLaren Products Company its entire right, title, and interest in and to the exclusive license granted to it, including all claims and demands, both in law and equity, for damages and profits accrued or to accrue on account of the infringement of said letters patent, within the specified territory, and including all interest in any rights of action or suit involving said letters patent then pending in which the American Cone & Wafer Company appeared as a party; that the naked legal title to the patent in suit, within the part of the United States lying east of the Rocky Mountain states of Montana, Wyoming, Colorado, and New Mexico, stands in the name of Albert E. Dieterich, as trustee, for the sole benefit of plaintiff Alexander McLaren, and that the McLaren Products Company is the exclusive licensee under said letters patent in that part of the United States lying east of said Rocky Mountain states.
The complainants prayed that the bill might be taken as and for a bill supplemental to the bill in the original suit; that they might have the benefit of the judgment and decrees in said suit to the same extent as said original plaintiffs might or would have, had they not made the assignments and agreements hereinbefore set forth; and that they might continue the prosecution of the suit and have full benefit of any and all pleadings and proceedings taken therein and of all orders and decrees therein made. Leave to file this supplemental bill of complaint was given and subpoena issued to the defendant to appear and answer to the same. Service of the subpcona was made November 24,1924, and on November 26, 1924, before any hearing upon the supplemental bill, the defendant filed his motion, from the denial of which this appeal has been taken. lie claims that, because of the death of Fred G. Dieterich and the assignments hereinbefore stated, the original cause of action and the rights acquired thereunder have abated, and that this action should be remanded to the District Court, with instructions to dissolve the injunction and dismiss the original bill and the amended bill, in the nature of a supplemental bill.
In support of his contention the defendant has cited Goss Printing Co. v. Scott (C. C.) 134 F. 880, and Automatic Switch Co. v. Cutler-Hammer Mfg. Co., 147 F. 250, 77 C. C. A. 176. Both of these cases recognize the right of a party in interest to revive, by a supplemental bill, an action which may have been abated or suspended by reason of an assignment by the original complainant of his right, title and interest in a patent of which infringement is alleged. This the complainants in their supplemental bill are seeking to do. That they are attempting to do this by a supplemental bill, to be taken as an amendment to the original bill, instead of filing an original bill, is immaterial, as the rights of the defendant can be as fully protected under the former as under the latter.
In F. A. Manufacturing Co. Inc. v. Hayden & Clemons, Inc. (C. C. A.) 273 F. 374, this court held that the assignment by a sole party plaintiff of his entire right in the subject-matter of a suit in equity did not abate the action, if it was of a nature that survived, but merely suspended it until the purchaser became a party to the litigation. In the present ease there was no suspension of the action as to McLaren, for he was one of the original parties to the suit and is now before the court. He has simply enlarged his beneficial interest in the patent by acquiring the interest -of Bruekman. Albert E. Dieterich is the surviving member of the firm of Fred G. Dieterich & Co., which was an original party, and in this capacity claims to be a surviving trustee under the trust agreement by which said firm held the legal title to the patent in the suit.
We think, it is unnecessary to decide whether as surviving member of the firm of Fred G. Dieterich & Co. he became also surviving trustee, as both of i the beneficiaries under the trust have acquiesced in his acting in this capacity, and. Bruekman has authorized and empowered him, as the surviving member of said firm, to transfer to McLaren his entire right, title, and interest under said trust instrument. Bruekman has also assigned to McLaren all his right, title, and interest in the said patent, together with all claims and demands, both in law and equity, which he then had or might have in said letters patent. This instruction and authorization to the surviving trustee, and also the assignment to McLaren, made by Bruekman on December 31, 1923, appear by a copy of the same filed with us.
There has also been filed with us a copy of an assignment executed by the American Cone & Wafer Company on the 22d day of March, 1923, of all its right, title, and interest in the patent in suit, including all claims and demands, both in law and in equity, for damages and profits accrued or to accrue on account of infringement of the same to which it is entitled as licensee.
The judgment of the District Court denying the motion to djssolve the injunction is affirmed, and while no final decree has, been entered in the court below upon the supplemental bill, which the complainants were given leave to file, yet we have authority under section 129 of the Judicial Code (Comp. St. § 1121) to determine the ease upon its merits and save both time and expense, which evidently both parties desired us to do, as they have argued the merits at length.
. While the assignment of the American Cone & Wafer Company was not made until after the appeal from the final decree of the District Court dismissing the original bill had been entered in this court, and.before its opinion was handed down, yet under F. A. Mfg. Co. v. Hayden, supra, the McLaren Products Company can legally be substituted for the American Cone & Wafer Company. No complications can arise as to its legal right to all claims for damages for past as well as future infringements, because these pass under'the assignment to it.
While it is claimed by the defendant that the charter of the American Cone & Wafer Company was canceled by the state of Ohio for the nonpayment of taxes on February 15, 1924, as appears from the affidavit of Mr. Holton, yet counsel for the appellees has called our attention to section 11964 of the.Ohio General Code, under which pending litigation is not discontinued or abated by such cancellation, and also to Gen. Laws Mass. 1921, vol. 2, c. 155, which in substance continues the corporate existence of -a corporation for three years after dissolution “for the purposes of any suit brought by or against it within said period of three years.” Section 51. •
From the affidavit of Mr. Dieterich it appears that Frederick A. Bruekman, one of the original plaintiffs, has no further interest in the patent; that Alexander-McLaren, an original party, has acquired his interest; that the McLaren Products Company has acquired the interests of the American Cone & Wafer Company; and that Albert E. Dieterich, as the surviving member of the firm of Fred G. Dieterich & Co., holds in trust for McLaren the legal title to the interest in the patent which was transferred and assigned to said firm in trust for McLaren and Bruckman.
The defendant has relied upon the allegations in the affidavits of Mr. Dieterich and Mr. Holton and those in the' supplemental bill in support of his motion to dissolve the injunction, and does not contest the validity of the assignments alleged to have been made. We see no reason, therefore, why we should not decide that the complainants in the supplemental bill are entitled to be substituted for the plaintiffs in the original bill as prayed for, and we so decide.
The decree of the District Court is affirmed, and the action is returned to that court, with instructions to enter a decree granting the prayer of the complainants in the supplemental bill; the appellees to recover costs in this court.
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:
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songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
David J. BULLOCK v. STERLING DRUG Inc., Appellant.
No. 10350.
United States Court of Appeals Third Circuit.
Argued Feb. 8, 1951.
Decided Feb. 23, 1951.
C. Russel Phillips, Philadelphia, Pa. (Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., on the brief), for appellant.
Henry T. Re'ath, Philadelphia, Pa. (John B. Martin, Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for ap-pellee.
Before KALODNER, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
The plaintiff instituted this action to recover a substantial amount of severance pay. The defendant denied that he was an employee within the meaning of its severance pay schedule, and asserted that no enforceable contract existed between them. We have examined the record and find nothing to convince us that the District Court erred in its findings or in the application of well-settled principles of contract law. Accordingly, the judgment of the District Court will be affirmed upon its opinion, 93 F.Supp. 371.
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_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RASSENFOSS v. COMMISSIONER OF INTERNAL REVENUE.
No. 9078.
Circuit Court of Appeals, Seventh Circuit.
Dec. 18, 1946.
M. Lester Reinwald, of Chicago, Ill., for petitioner.
Douglas W. McGregor, Asst. Atty. Gen., Sewall Key, A. F. Prescott, S. D. Hanson and Helen Goodner, Asst. to the Atty. Gen., J. P. Wenchel and Bernard D. Daniels, both of Washington, D. C., Bureau of Internal Revenue, for respondent.
Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This is a petition to review a decision of the Tax Court sustaining respondent’s, ¡determination of deficiencies in the income tax of petitioner for the years 1940 and 1941. Such deficiencies were determined by disallowing deductions taken by petitioner in the sums of $2,087.37 and $4,467.06, representing money paid by him for legal fees and expenses in defending certain litigation affecting his co-partnership business-interest.
Petitioner contended before the Tax Court, as here, that the deductions were proper either as ordinary and necessary business expenses under the provisions of Sec. 23(a) (1) or as a non-business expense under Sec. 23(a) (2) of the Internal Revenue Code as amended, 26 U.S.C.A. Int.Rev. Code, § 23(a) (1) and (2). Respondent contends that the expenditures thus made were for the purpose of protecting and defending his right and title to partnership business and property and therefore not deductible.
A statement of facts sufficient to show the nature and character of the expenditure in question is required. Petitioner, Julian Richmond and William R. Kohl, Jr. in 1928 formed a co-partnership known as the Lincoln Bag Company, and have since been engaged in the manufacture and sale of paper bags used principally by the dry cleaning industry. In 1933, Richmond sold his partnership interest to petitioner and Kohl, and as a result each became the owner of a 50% interest in said co-partnership. They so reported their respective interests in tax returns filed by the co-partnership from year to year. Petitioner reported substantial income from his one-half interest in the partnership, as is evidenced by the fact that he reported $59,809.65 for the year 1940, and $67,157.44 for the year 1941.
In 1928, Lawson V. Campbell, a friend of Kohl, was brought into the business to act as superintendent. The exact terms of his entry into the business are not clear and perhaps not important. With reference thereto the Tax Court found: “The partners and Campbell had a rather vague and indefinite oral understanding at that time that he would be allowed to participate in some way in the earnings of the business.” (The question as to Campbell’s position in the business gave rise to the litigation, for the defense of which petitioner made the expenditures sought to be deducted.) Shortly after Richmond’s sale of his interest, in the partnership, an unfriendly relationship developed between petitioner and Kohl which resulted on one occasion in a fight.
Campbell in 1934, some six years after he became associated with the partnership, asserted for the first time that he was a general partner rather than an employee. His assertion was disputed by petitioner and supported by Kohl. On December 29, 1939, Campbell filed his complaint in Chancery in the Superior Court of Cook County, Illinois, naming as defendants petitioner, Kohl, and Lincoln Bag Company, a co-partnership composed of petitioner, Kohl and Campbell. By his complaint Campbell sought the following relief: (a) that a receiver be appointed to take over the partnership business; (b) that an accounting be had, and that the court should decree that he should receive such amount as such accounting would disclose he would be entitled to; (c) that a decree be entered determining and adjudicating his right in and to the partnership and its assets, and (d) that the co-partnership be dissolved.
Kohl filed an answer to said complaint, substantially admitting the allegations thereof. Petitioner employed attorneys for the purpose of contesting the suit. An answer was filed, denying substantially all the allegations of the complaint and particularly that Campbell had any interest in the co-partnership, was entitled to an accounting, the appointment of a receiver or to have the partnership dissolved. The matter was referred to a Master in' Chancery who, after hearing the testimony of all the parties, made a report finding that Campbell was entitled to a 1.75% interest in the partnership as against the 33%'% interest claimed by him. Petitioner excepted to the Master’s report, but subsequently the controversy was compromised and the report was neither approved nor disapproved. By the terms of the compromise Campbell was given a limited 1.75% interest in the partnership earnings and assets commencing the first day of November 1943, and in addition thereto the sum of $14,346.78, in full settlement against the partnership up to November 1, 1943.
Petitioner incurred and paid his attorneys in defense of the aforesaid suit the sum of $2,087.37 for the year 1940, and the sum of $4,467.06 for the year 1941. No question is raised as to the reasonableness of such fees. These are the items which tne respondent, sustained by the Tax Court, held to be non-deductible.
The findings of fact as made by the Tax Court follow in the main those which we have recited. We think it is not inaccurate to state that there is no dispute concerning the facts as found except as to the finding that “the amounts paid in 1940 and 1941 were not ordinary and necessary expenses of carrying on the petitioner’s trade or business.” Obviously, if we are bound by this finding there is nothing to review for the reason that a taxpayer is not entitled to a deduction under either Sec. 23(a) (1) or (2) unless the expenditure is an “ordinary and necessary expense.”
On the authority of Trust of Bingham v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, 1235, 89 L.Ed. 1670, we are of the view that this so-called finding of the Tax Court presents a reviewable question. The question in the Bingham case was whether certain expenditures in connection with the “management * * * of property held for the production of income” were deductible under Sec. 23(a) (2). The court held that the question for decision involved the meaning of the words found in the statutory provision, and that (325 U.S. page 371, 65 S.Ct. 1235, 89 L.Ed. 1670) “They are therefore questions of law, decision of which is unembarrassed, by any disputed question of fact or any necessity to draw an inference of fact from the basic findings,” and that “Decision of which by the Tax Court does not foreclose their decision by appellate courts * * * although their decision by the Tax Court is entitled to great weight.”
Both petitioner and respondent cite a number of cases in support of their respective contentions, a study of which reveals that the line of demarcation between an “ordinary and necessary expense” as a deductible item and an expenditure incurred in defense of title to property.and therefore not deductible is extremely narrow. In fact, in some of the cases it appears to have been drawn on an arbitrary rather than on a basis of reason or logic.
Petitioner places much reliance upon Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, wherein the taxpayer claimed as a deduction money spent for legal services. The situation before the court was so strikingly similar to that of the instant case that it seems pertinent to quote 276 U.S. page 151, 48 S.Ct. 220, 72 L.Ed, 505: “The petition alleges that the latter sum was paid by petitioner for attorney’s fees incurred in the defense of a suit against him for an accounting instituted by his former co-partner, said suit growing directly out of the conduct of the partnership business, it being alleged by the co-partner that petitioner had collected fees or compensation for professional services performed during the existence of the partnership to a division to which the co-partner was entitled; that the alleged fees in fact consisted of stock in a corporation acquired subsequently to the dissolution of the partnership and not for services performed during its existence; that the defense to the suit was successful and the amount paid was a necessary expense incurred in connection with petitioner’s business * *
In that case the deduction was sought under a provision of the Revenue Act identical with the present Sec. 23(a) (1). The government contended (276 U.S. footnote page 147, 48 S.Ct. 219, 220, 72 L.Ed. 505), as the Commissioner does here, that the expenditures were not “ordinary and necessary expenses paid or incurred in carrying on any tráde or business,” that they were in defense of an accounting suit for the purpose of protecting property and that they were capital expenses. The Court of Claims sustained the government’s theory. In reversing, the Supreme Court stated (276 U.S. page 152, 48 S.Ct. 220, 72 L.Ed. 505) : “And it was an ‘ordinary and necessary’ expense, since a suit ordinarily and, as a general thing at least, necessarily requires the employment of counsel and payment of his charges.” The court, referring to certain opinions of the Revenue Department, stated (276 U.S. page 153, 48 S.Ct. 220, 72 L.Ed. 505): “The basis of these holdings seems to be that where a suit or action against a taxpayer is directly connected with, or, as otherwise stated, * * * proximately resulted from, his business, the expense incurred is a business expense within the meaning * * * of the act. These rulings seem to us to be sound and the principle upon which they rest covers the present case.” The court also noted (276 U.S. page 152, 48 S.Ct. 220, 72 L.Ed. 505) that it made no difference whether the accounting was for services performed by the taxpayer during the existence of the partnership or after its termination. “In either view, the compensation constituted business earnings.”
The Kornhauser case has been much cited. See Welch v. Helvering, 290 U.S. 111, 114, 54 S.Ct. 8, 78 L.Ed. 212; Deputy v. duPont, 308 U.S. 488, 495, 60 S.Ct. 363, 84 L.Ed. 416; Trust of Bingham v. Commissioner, supra, 325 U.S. 374, 65 S.Ct. 1232, 89 L.Ed. 1670. In the Welch case the court assumed that the expenses were necessary and, in considering whether they were ordinary, stated (290 U.S. page 114, 54 S.Ct. 9, 78 L.Ed. 212) : “A lawsuit affecting the safety of a business may happen once in a lifetime. The counsel fees may be so heavy that repetition is unlikely. None the less, the expense is an ordinary one because we know from experience that payments for such a purpose, whether the amount is large or small, are the common and accepted means of defense against attack. [Citing the Kornhauser case.]” In the Trust of Bingham case, supra, in discussing the provisions of the Revenue Act here in question, the court stated (325 U.S. page 373, 65 S.Ct. 1237, 89 L.Ed. 1670): “Such expenses need not relate directly to the production of income for the business. It is enough that the expense, if ‘ordinary and necessary,’ is directly connected with or proximately results from the conduct of the business. [Also oiling the Kornhauser case.]”
In Potter v. Commissioner, 20 B.T.A. 252, the taxpayer was interested in a chain of hotels, one of which was the Clarendon Hotel at Daytona Beach, Florida, in which he held a substantial stock interest. A mortgage foreclosure suit was instituted wherein the mortgage trustee sought an accounting, a receivership and the removal of Potter from control. In resisting such action Potter employed counsel and paid them from his own funds. The Tax Court stated the question involved thus (20 B.T.A. at page 254) : “ * * * whether an individual who is not named as a party defendant in an action, but who will be substantially affected by its result, may employ attorneys to defend it and protect his interests and deduct the expenditure as ordinary and necessary business expense.” On the same page the court noted that the form of the action was not only for the enforcement of a mortgage “but sought to take the management of the hotel away from petitioner and put it into the hands of a receiver, thus jeopardizing his investment in * * * its stock.” The court, in sustaining the taxpayer’s right to a deduction, stated: “We think that there was a necessity that petitioner protect his interests, as his interests would be vitally affected by the litigation, and that he had a right to employ counsel and deduct the expenditure as a business expense. Fees expended in suits of this character are allowable as business expenses. [Citing the Kornhauser case.]”
Again, in Leidesdorf v. Commissioner, 26 B.T.A. 881, the Tax Court overruled the Commissioner’s disallowance of a deduction claimed on account of attorney fees expended by the taxpayer. Without reciting the facts of the case, it is sufficient to quote the basis of the decision as follows (26 B.T.A. at page 883): “The proceeding instituted was an attack on his right to full enjoyment of his stock and was the direct result of a transaction forming a part of one of petitioner’s business ventures. The expense involved in defending the action is one within the rule announced in Korn-hauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, and is deductible as an expense paid in carrying on a trade or business.”
Certainly there can be no room for argument under these authorities, particularly the Kornhauser case, but that the expenses incurred by the petitioner in the instant case were “ordinary and necessary expenses” paid during the taxable year in carrying on his business. Even so, however, the Commissioner contends that such expenditures “were more than mere ordinary business expenses” and that they are not deductible because made in protecting and defending petitioner’s title to the partnership business and property. The Tax Court sustained this view. With all due deference thereto, we reach a contrary conclusion. In the first place, the factual basis for such a contention is more fanciful than real. Laying aside the legal question as to whether petitioner had any title to the partnership assets, it is perfectly plain, so we think, that the main and primary purpose of the suit which petitioner defended was for an accounting and any question of title was merely incidental thereto. This is borne out by the compromise which was finally effected, by which Campbell was awarded almost an infinitesimal and only a limited interest in the partnership.
In fact, there is less reason for holding that petitioner’s expenditures were in defense of title than were the expenditures by the taxpayer in the Kornhauser case. There, the taxpayer, if he had been unsuccessful in the litigation, would have been required to give up corporate stock in which had been invested the profits of the partnership for which the accounting was sought. In the Potter case, supra, it was necessary for the taxpayer to defend the mortgage foreclosure suit in order to pro-' tect the corporate stock owned by him. Likewise, in the Leidesdorf case, supra, the taxpayer was also defending a suit which involved the ownership of stock in a corporation.
Many cases, however, are cited by respondent in support of its contention. We think in the main they may be distinguished either on the ground that the expenses were not incurred in connection with a trade or business, or that the matter of title was directly involved and not merely incidental, as in the instant case. An analysis of all the cases cited would unduly prolong this opinion but we shall refer to a few as illustrative. Respondent states that “the fundamental distinction between capital expenditures on the one hand and expense deductions on the other is clearly illustrated in Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52.” There, the taxpayer was engaged in the business of buying and selling securities, and deducted from his gross income brokerage commissions paid and incurred in their purchase during the taxable year. The court held, favorable to the government’s contention, that such commissions were part of the cost of acquisition of the securities and hence not deductible from gross income. The holding appears to be reasonable and logical but we are unable to discern its applicability to the instant case.
In Jones Estate v. Commissioner, 5 Cir., 127 F.2d 231, the taxpayer as the executor of an estate paid attorney fees and other expenses in the prosecution of a suit to cancel a cloud upon title to certain realty. In holding that the expenses were not deductible, the court placed its decision upon two grounds, (1) that the expenses incurred in a suit to cancel a cloud on title to real •estate was a capital expenditure, and (2) that the taxpayer in the discharge of his duty as executor was not engaged in carrying on a trade or business within the purview of the statute. Thus it will be noted that the matter of title was directly involved ; in fact, it was the sole issue in litigation. The case is clearly distinguishable from the instant one. In Moynier v. Welch, 9 Cir., 97 F.2d 471, 473, the court held that legal fees paid in defending taxpayer’s right to royalties on land which he had leased to an oil company were not deductible because “Receiving royalties by the owner of land for oil produced by a company under an oil lease of the land is not within the intendment of the statutory expression ‘carrying on any trade or business.’ ”
In Murphy Oil Co. v. Burnet, 9 Cir., 55 F.2d 17, a law suit was brought against the taxpayer to rescind a sale of oil land on the ground of fraud. The case was compromised by payment to the vendor of a large sum of money which the court held was in substance a deferred payment for the property and therefore essentially a capital investment. In Williams v. Burnet, 61 App.D.C. 181, 59 F.2d 357, 358, the property of the taxpayer had been taken by the City of New York in a condemnation proceeding with leave to the taxpayer to file a claim for compensation. It was in connection with such claim that expenses were incurred for which a deduction was sought. The decision against the taxpayer rests on the premise that the expenses were not incurred “In carrying on any trade or business.” In Croker v. Burnet, 61 App.D.C. 342, 62 F.2d 991, the legal expenses which were held not to be deductible were incurred in defending a suit to set aside a deed transferring land from a husband to his wife (the taxpayer). In Commissioner v. Field, 2 Cir., 42 F.2d 820, the attorney fees were expended by the taxpayer in a suit to determine his interest under a will, and in Crowley v. Commissioner, 6 Cir., 89 F.2d 715, 718, the legal expenses were paid by the taxpayer, a minority stockholder under a testamentary trust, for services resulting in an acquisition of a greater interest in a corporation and in order to gain control thereof. The court held that the expenses were not incurred “As ordinary and necessary” business expenses.
We conclude that petitioner’s expenditures were ordinary and necessary, paid in carrying on his trade or business, and that they were properly deductible. The decision of the Tax Court is, therefore, reversed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 63.04 ACRES OF LAND, MORE OR LESS, SITUATE AT LIDO BEACH, NEAR CITY OF LONG BEACH, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, State of NEW YORK, and Irving A. Nemerov et al., Defendants-Appellants.
No. 251, Docket 24886.
United States Court of Appeals Second Circuit.
Argued March 14, 1958.
Decided June 24, 1958.
Paul Windels, Brooklyn, N. Y., for defendants-appellants. (On the brief: Nathan D. Shapiro, Brooklyn, N. Y., for Bessie N. Shapiro, Samuel Kresberg and Benjamin Kresberg; Jacob Patent, Brooklyn, N. Y., for Gilbert D. Paisner et al.; Leonard R. Fisher, New York City, for Irving A. Nemerov; Isidor E. Leinwand, New York City, for Sam H. Lipson, Trustee in Bankruptcy for William T. Nemerov and Joseph Margolis.)
Harry T. Dolan, Sp. Asst, to Atty. Gen., for petitioner-plaintiff-appellee. (On the brief: Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C.)
Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge.
PER CURIAM.
Shortly after the remand of this condemnation case as ordered in our earlier opinion, 245 F.2d 140, Chief Judge Inch, who had served as trier at the first trial, assigned the case for prompt hearing and announced that he construed the appellate order to require only a reopening of the judgment and of the record already made to permit of the introduction of evidence of the September 1954 sale, the exclusion of which had been the only ground of reversal. We think this interpretation not unreasonable: it is consistent with procedure sanctioned when a trial judge grants a “motion for a new trial” under Rule 59(a), Federal Rules of Civil Procedure. Even though the opinion several times spoke of a “new trial” and remanded “for a new trial on the valuation of the condemned property,” it also noted that the “new trial” was necessary only because of the exclusion of the September sale and thus might be deemed to imply that the proceedings on remand need go no further than to expand the record by proofs as to the September sale and a redetermination of the value on the record thus enlarged. This interpretation was obviously in harmony with considerations of expedition and of economy in judicial administration. Cf. United States v. City of New York, 2 Cir., 165 F.2d 526. And the practice which it envisaged had previously been utilized in this circuit. United States v. Brooklyn Union Gas Co., 168 F.2d 393 ; United States v. 25.4 Acres of Land, D. C., 83 F.Supp. 433; Gulbenkian v. Gulbenkian, 147 F.2d 173; Riordan v. Ferguson, 147 F.2d 983. If the defendants, when first informed of the Judge’s ruling, had promptly applied to the panel of this court which had handed down the former opinion for a clarification, cf. National Comics Publications v. Fawcett Publications, 2 Cir., 198 F.2d 927, it is highly likely, especially in view of the cases just above cited, that Judge Inch’s interpretation of the mandate would have been approved. In view of all the foregoing, we dispose of the defendants’ principal ground of appeal by sustaining Judge Inch’s action in limiting the scope of the proceedings on remand.
Other grounds of appeal are still less tenable. In view of the limited scope of the proceedings, we think the celerity with which the hearing was scheduled and held was not improper. The denial of the motion for trial by jury first made after the remand was not erroneous. And we find no error in denying on July 3, 1957 the other requests in the defendants’ motion of June 28, 1957.
Affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Winfred STOKES, Appellant, v. William ARMONTROUT, Appellee.
No. 89-1103.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1989.
Decided Dec. 28, 1989.
Richard H. Sindel, Clayton, Mo., for appellant.
Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges.
ARNOLD, Circuit Judge.
Winfred Stokes is under sentence of death in the Missouri State Penitentiary for the 1978 murder of Pamela Benda. He petitioned the District Court for a writ of habeas corpus under 28 U.S.C. § 2254. This was his second petition, the first having been denied. Stokes now alleged constitutional errors in the instructions guiding the jury during the sentencing phase of his trial. The District Court again denied relief, holding that the instructions passed constitutional muster. Stokes v. Armontrout, No. 88-1809C(6), slip op. (E.D.Mo. Jan. 13, 1989). The District Court also refused to grant Stokes a certificate of probable cause so that he could press an appeal of that Court’s decision. Judge Gunn found that any appeal would be frivolous because the law governing Stokes’s claims was “not susceptible to debate.” Stokes, No. 88-1809C(6), slip op. at 5. Upon petitioner’s motion, however, this Court issued such a certificate — limited to one issue: Stokes’s challenge to the jury instructions under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Mills governs the jury’s consideration of mitigating factors in the sentencing phase of a death-penalty case, and condemns an instruction that leaves a reasonable juror with the impression that a mitigating circumstance may not be considered unless the jurors first unanimously find that it exists.
Because Stokes failed to raise his Mills claim before the Missouri state courts, and because the record reveals no justification for that failure, we hold that he is precluded from urging the point now. The District Court’s judgment dismissing Stokes’s petition is therefore affirmed. Stokes’s procedural default bars him from raising his Mills claim in a federal habeas corpus proceeding. When the rehearing process in this Court has run its course, and if rehearing is denied, the stay of execution previously entered, Stokes v. Armontrout, No. 89-1103 (8th Cir. Jan. 23, 1989) (order), will be dissolved.
I.
When a criminal defendant failed to raise a constitutional claim in the state courts, and because of a state procedural rule is now precluded from doing so, federal habeas corpus review of the merits of the claim is barred, subject to certain exceptions. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Here, Stokes does not allege that his Mills claim was ever presented to the Missouri courts, or that there is any available state procedure for raising it now. Rather he argues his claim under the novelty-cause and probable-innocence exceptions to the general procedural-bar rule. We shall address those arguments in due course.
We begin by describing the procedural history of this case in the state courts. In October 1979 Stokes was convicted of capital murder by a jury in the Circuit Court of St. Louis County. He was sentenced to death. At trial Stokes specifically objected to only one of the jury instructions: No. 5, regarding capital murder. He also made a general objection to the instructions as a whole. T. 295-96. In his motion for a new trial Stokes objected to two jury instructions. But neither of these instructions (No. 5, on capital murder, and No. 19, on the aggravating circumstance of profiting from the murder) deals with the procedure for considering mitigating circumstances.
Stokes appealed, alleging multiple constitutional errors in his trial. More particularly, he alleged: (1) that the State’s late endorsement of witnesses, late notice of statutory aggravating circumstances, and pursuit of the death penalty after a broken plea bargain violated his right to due process; (2) that use of a death-qualified jury and application of a Missouri statute subjecting extenuating, mitigating, and aggravating evidence to the rules of evidence denied his Sixth Amendment right to a fair and impartial jury; and (3) that the Missouri statutory scheme for consideration and assessment of the death penalty violated the Eighth and Fourteenth Amendments. Stokes did not renew the jury-instruction challenges made in his new-trial motion. Instead, he challenged Instruction No. 21 — the instruction underlying his current petition before this Court. Stokes’s challenge, however, was not a Mills-type objection. He did not question the impact a mistaken unanimity requirement might have had on the consideration of mitigating circumstances; he urged the instruction’s ambiguity because it did not “adequately define statutory aggravating circumstances [or] adequately explain mitigating circumstances.” Appellant’s Statement, Brief and Argument on Direct Appeal 9. The substance of Stokes’s argument on this point is likewise bereft of any indication he had, or intended to raise, Mills-type concerns.
The Missouri Supreme Court rejected each of Stokes’s constitutional challenges to his trial and sentence. State v. Stokes, 638 S.W.2d 715 (1982) (en banc), cert. denied, 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983). The Court held that the petitioner had received due process, that his trial was fair, and that Missouri’s statutory scheme for the death penalty satisfied constitutional standards. Stokes, 638 S.W.2d at 720-22, 724. Relying on three of its recent cases, the Court summarily rejected Stokes’s vagueness attack on Instruction No. 21, along with all his general challenges to Missouri’s “statutory scheme for consideration of and assessment of the death penalty....” Stokes, 638 S.W.2d at 724. Justice Seiler’s dissent, joined by one other Justice, specifically reserved judgment on whether one of Missouri’s statutory aggravating circumstances was unconstitutionally vague. He noted that Stokes had argued the point, though the Court implicitly declined to rule on it. Id. at 725-26. The dissent, however, like the Court’s opinion, did not discuss at any length Stokes’s vagueness challenge to Instruction No. 21’s provisions about mitigating circumstances.
Following his unsuccessful direct appeal, Stokes collaterally challenged his conviction by filing a Rule 27.26 motion. This provision of the Missouri Supreme Court Rules was the substantial equivalent of a state habeas corpus proceeding. The trial court denied his motion after an evidentia-ry hearing. Stokes again appealed. He contended that the Rule 27.26 trial court erred in three respects: in upholding his conviction and death sentence, even though he was forced to trial when his plea bargain collapsed because of ineffective assistance of counsel; in not finding a speedy-trial violation when he was arraigned one year and thirty-one days after his indictment was filed; and in not finding he was generally denied effective assistance of counsel. An important aspect of Stokes’s ineffective-assistance claim was his lawyer’s failure to offer a jury instruction on the lesser included offense of first-degree murder.
The Missouri Court of Appeals affirmed the Rule 27.26 trial court on each ground. Stokes v. State, 688 S.W.2d 19 (Mo.App. 1985). The Court held that Stokes’s counsel was effective under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard during plea negotiations and during the sentencing phase of his trial. Stokes, 688 S.W.2d at 22-24. The Court further held, applying the analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that the sixteen-month delay between indictment and trial did not deny Stokes’s speedy trial right. Stokes, 688 S.W.2d at 23. The Court did not consider the instruction about mitigating circumstances. Stokes neither raised the instruction’s constitutionality in his Rule 27.26 motion nor asserted it as a new ground of objection in his appeal.
Stokes also moved the Missouri Supreme Court to recall its mandate in his direct appeal. Among numerous other points, he argued only one aspect of his jury instructions: the failure of either his trial counsel or the trial court to offer an instruction on the offense of felony murder. The Missouri Supreme Court denied his motion without an opinion. State v. Stokes, No. 61963 (Mo.Sup.Ct. Sept. 11, 1984) (order). After these Missouri court proceedings, Stokes petitioned the federal courts for ha-beas corpus relief. His first petition did not raise a Mills-type claim. Rather, Stokes renewed the severalty of arguments he made in his Rule 27.26 proceeding. This Court affirmed the District Court’s denial of his petition on each asserted ground. Stokes v. Armontrout, 851 F.2d 1085 (8th Cir.1988), cert. denied, - U.S.-, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989).
II.
Stokes now claims that Instruction No. 21 violates the precepts of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Instruction No. 21 is allegedly impermissible because it requires — or could be read by a reasonable juror to require — that jurors must unanimously find each particular mitigating circumstance before weighing that circumstance in the sentencing balance. We are precluded from reaching the merits of Stokes’s claim. True to his admission, our study of the five state-court proceedings reviewing his conviction reveals that Stokes’s Mills-type instruction claim was not raised at any time in the state courts. State procedural law would now bar Stokes from raising this issue in the state courts, and this bar would unquestionably be an adequate and independent state ground barring direct review by the Supreme Court of the United States. We hold that federal habeas review of this claim is also barred.
Stokes can overcome Missouri’s procedural bar in either of two ways: by showing “cause” sufficient to excuse his default and “prejudice” resulting from that default, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or (irrespective of cause and prejudice), by showing that the error complained of resulted in his death penalty despite his probable “innocence,” Murray v. Carrier, 477 U.S. 478, 106. S.Ct. 2639, 91 L.Ed.2d 397 (1986). The petitioner urges that his default should be excused under both rationales. First, Stokes asserts that the Supreme Court’s enunciation in Mills of a novel constitutional principle governing jury instructions satisfies the cause requirement. And second, Stokes asserts that he is “innocent” of the death penalty, and that the jury would probably have given him a life sentence if it had been correctly instructed. We consider his claims in turn.
In Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), the Supreme Court held that a recently announced and path-breaking rule of law — involving “a constitutional claim ... so novel that its legal basis [was] not reasonably available to counsel” — satisfies Wainwright’s “cause” requirement. Reed, 468 U.S. at 16, 104 S.Ct. at 2910; see also Dugger v. Adams, - U.S. -, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) (discussing but not finding novelty cause in an Eighth Amendment challenge to a jury instruction on grounds approved in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). Stokes claims that Mills was novel, that the case first established a new rule — the impermissibility of instructions that could be read to require unanimity for the consideration of relevant, mitigating evidence. In a recently decided case, Smith v. Armontrout, 888 F.2d 530 (8th Cir.1989), we rejected that argument.
If it be suggested that the point is a novel one ... the Mills opinion itself stands as refutation. The case is written as a standard application of the rule that juries must be free to consider any and all evidence as a mitigating factor. This has been a familiar feature of the legal landscape since 1978, when Lockett v. Ohio, 438 U.S. 586 [98 S.Ct. 2954, 57 L.Ed.2d 973] was decided.
Smith, at 545. Smith governs Stokes’s petition. “The tools with which to make a Mills argument were available in [1979], when this case was tried.” Ibid. Stokes’s failure to make a Mills -type argument before the Missouri courts bars our consideration of the claim now.
Stokes also invokes Murray’s “innocence” or “miscarriage of justice” exception to Missouri’s procedural bar. Here Stokes’s claim is not innocence of the crime but rather “innocence” of the penalty. We have made it clear that Murray’s innocence exception applies by analogy in such situations. “In the penalty-phase context, this exception will be available if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.” Smith, at 545.
But as was the case with his novelty-cause claim, Stokes’s effort to bring himself within the innocence exception fails. “The question is this: if the jury had been told, in compliance with Mills, that any mitigating circumstance, even if not unanimously found by the jury, could be weighed, would it probably have fixed the punishment at life in prison?” Ibid. This record can give only one answer — no. Stokes’s counsel chose not to offer any mitigating evidence during either the guilt phase or the penalty phase of the trial. (The former decision was clearly in line with Stokes’s complete-innocence defense.) After reviewing the whole trial transcript, we conclude that the jury had only one mitigating circumstance to weigh against Stokes’s brutal acts: a court-initiated instruction about Stokes’s possibly disturbed mental or emotional state. See Instruction No. 21; Mo.Rev.St. § 565.012.3. In our judgment, the death penalty would have been assessed “even if the jury had been instructed in the terms petitioner now claims are required by Mills.” Smith, at 546.
III.
We have carefully considered Stokes’s several state-court proceedings to make certain his Mills claim was never pressed in the state courts. We have also examined the suggested exceptions to the procedural bar Missouri asserts against his claim. But to no avail; Stokes’s constitutional claim is beyond our reach. The judgment of the District Court, dismissing Stokes’s habeas petition, is affirmed on the ground of procedural default. The stay of execution will remain in effect for the time being. If, however, no timely petition for rehearing is filed, or if one is filed and denied, we will dissolve the stay and issue our mandate.
It is so ordered.
. The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri.
. It is unnecessary for us to decide whether this petition is subject to dismissal for abuse of the writ. We express no view on that question.
. Instruction No. 21 reads as follows:
If you decide that a sufficient aggravating • circumstance or circumstances exist to warrant the imposition of death, as submitted in Instruction No. 20, it will then become your duty to determine whether a sufficient mitigating circumstance or circumstances exist which outweigh such aggravating circumstance or circumstances so found to exist. In deciding that question you may consider all of the evidence relating to the murder of Pamela R. Benda.
You may also consider whether the murder of Pamela R. Benda was committed while the defendant was under the influence of extreme mental or emotional disturbance.
You may also consider any circumstances which you find from the evidence in extenuation or mitigation of punishment.
If you unanimously decide that a sufficient mitigating circumstance or circumstances exist which outweigh the aggravating circumstance or circumstances found by you to exist, then you must return a verdict fixing defendant’s punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole until he has served a minimum of fifty years of his sentence.
. Stokes also alleged several state law errors: the number of peremptory strikes allowed each side pursuant to a new statute, the admission of photographs of the victim’s body into evidence, the exclusion of evidence that another person committed the crime, and the defectiveness of the indictment under which he was charged. The Missouri Supreme Court considered and rejected each of these contentions. Stokes, 638 S.W.2d at 722-23.
. Stokes actually filed two Rule 27.26 motions. The initial motion dealt only with the constitutionality of the events surrounding the withdrawn plea-bargain. The state Circuit Court denied Stokes’s motion, and the Missouri Court of Appeals affirmed. Stokes v. State, 671 S.W.2d 822 (Mo.App.1984). In spite of the statutory presumption against second Rule 27.26 motions, the Missouri state courts nonetheless accepted such a motion from Stokes. It is this second, more comprehensive motion, dealing with Stokes's several constitutional claims (including ineffective assistance of counsel at trial, on direct appeal, and on state collateral attack), that is detailed above.
.Rule 27.26 was repealed and replaced by Rule 29.15, effective January 1, 1988.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_casetyp1_6-3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
DANNER PRESS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16699.
United States Court of Appeals Sixth Circuit.
March 15, 1967.
Edward C. Kaminski, Akron, Ohio, Herman E. Rabe, Buckingham, Doolittle & Burroughs, Akron, Ohio, on brief, for petitioner.
Robert S. Hillman, N. L. R. B., Washington, D. C., for respondent.
Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
CELEBREZZE, Circuit Judge.
Petitioner, Danner Press, Inc., (hereinafter referred to as either Petitioner or Danner Akron), seeks review of an order of the National Labor Relations Board. The Board’s decision and order are reported at 153 N.L.R.B. No. 87. The Board, adopting the findings of the Trial Examiner, found that Danner Akron violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Union concerning its grievance that Danner Akron was assigning struck work to its employees in breach of their collective bargaining contract. The Board also found that the bindery employees of Danner Akron struck in protest against Danner Akron’s refusal to bargain, and that Danner Akron violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they abandoned their strike and offered unconditionally to return to work.
The record discloses the following facts: Petitioner operates a printing business as a job shop in the City of Akron, Ohio. Petitioner employs seven or eight full-time employees and eleven or twelve part-time employees. Approximately one third of Petitioner’s business is derived from Danner Press of Canton, Inc. (hereinafter referred to as Danner Canton), which operates a similar but larger job shop. Local No. 5 of the Bookbinders Union represents the binding employees of both Petitioner and Danner Canton, but in separate bargaining units; and the Union has separate collective bargaining contracts with each Company.
On February 3, 1964, the Danner Canton bookbinders’ bargaining unit commenced an economic strike against Danner Canton. A few days after the strike began, both the employees of Danner Akron and Canton believed that Danner Canton was sending strikebound work to Akron for completion by Danner Akron.
Consequently, on February 17, 1964, Mr. Glenn Moss, International Representative of the Bookbinders, and general employees of Danner Canton, talked to Mr. Swineford at the plant of Danner Akron. Mr. Moss testified that he told Mr. Swineford he was there on a grievance in regard to struck work being performed at Danner Akron. Mr. Swine-ford told Mr. Moss and the committee to leave as they were trespassing. Mr. Moss asked Mr. Swineford when he could get his answer on the grievance, and Mr. Swineford said “tomorrow”. Mr. Swine-ford denied that Mr. Moss asked to discuss or arrange a meeting to discuss with him negotiations concerning the performance of struck work in the Akron plant. Mr. Swineford testified that Mr. Moss asked him to shut down the bindery because they were doing struck work for the Canton plant.
On February 18, 1964, a Danner Akron employee arranged a meeting with Mr. Swineford and with Mr. Moss and Mr. Thur, President of Local No. 5. Mr. Moss, Mr. Thur and several employees of Danner Canton again met with Mr. Swineford. The same views of the conversation and the same result followed as in the meeting the previous day.
After this short meeting of February 18th, the bindery employees of Petitioner met with Petitioner’s President Under-man. Mr. Underman told his employees they had a contract and were obligated to do all the work or they would have to get out. Several employees told Mr. Underman they were doing struck work, and asked him why he would not meet with their Union officials.
On February 19, 1964, Danner Canton employees began picketing Danner Akron. Most of Petitioner’s employees refused to cross the picket line. Later that day, and until March 16, 1964, Petitioner’s employees remained out on strike and picketed Petitioner’s plant until the Danner Canton strike was settled. Neither the International nor the Local was aware of, or took any part in the placement of the original picket line at the Danner Akron plant on the morning of February 19th.
On March 16th, all the striking employees of Petitioner appeared at the plant to start their first shift. Mr. Swineford informed them they had been discharged and replaced.
The evidence of struck work was also conflicting. In September, 1963, Petitioner purchased a McCain machine for their bindery. Because of the large capacity of this machine, and the heavy capital investment, Petitioner agreed to purchase the machine with the understanding that Danner Canton would send more bindery work to Petitioner.
Approximately one-third of Petitioner’s bindery work during 1963 came from Danner Canton. From February 1, 1963 to March 31, 1964 Petitioner did 400 jobs for Danner Canton. Bindery work done for Danner Canton in February, 1963, totaled $861.51, in March, 1963, $7,042.41, in February, 1964, $5,966.42, and March, 1964, $2,480.52.
After the strike began at Danner Canton on February 3rd, the bindery operated only for one shift instead of the normal three shifts. The bindery was not operating at full capacity. On January 30, 1964, Danner Canton received material from Allied Graphic Arts to print and bind a spring and summer catalogue. The proofs were scheduled to go out on January 30th, but did not go out until February 3rd. The proofs came back on February 5th and the job went to press on February 7th. Binding was scheduled to start February 10th, Since the bindery work could not be done in time, the overflow went to Danner Akron. Approximately 1,300,000 pieces were run in Canton and approximately 300,000 pieces were run in Akron.
Mr. Hoffman, Customer Service Representative of Danner Canton, who testified to the above facts, was asked the following questions by the Trial Examiner:
“Q. With only one bindery shift working and with orders on hand which required prompt attention, was there any overflow work caused by this strike which resulted in your shipping work to Akron to be done ?
“A. On any given job or all jobs?
“Q. On any job?
“A. Yes.”
Immediately the Customer Service Representative was asked by Petitioner’s counsel on re-direct examination:
“Q. Mr. Hoffman, with regard to these orders that you had said were to be processed for Canton after February 3rd during the time that the strike was in progress, was the work that was sent to Akron in the nature of overflow work as you have testified?
“A. Yes, it was.
“Q. And are you able to say whether or not this work that went to Akron on the Atkins catalogue job would probably have gone there had there been no strike in the plant at Canton?
“A. Yes.
“Q. —Do you know of your own knowledge, whether the work which was sent to Akron from Canton, which I believe you characterized as overflow, was sent to Akron because of the strike that was in effect in the bindery at Canton ?
“A. No, I do not.”
Early in the proceeding before the Trial Examiner, a lengthy discussion developed between counsel and the Trial Examiner as to the nature of the charge against the Petitioner. The General Counsel for the National Labor Relations Board finally took the position they were trying the case on the theory that the Petitioner failed to bargain on a matter which had not been the subject of previous bargaining, rather than on the theory that the Petitioner failed to negotiate a grievance. The nature of the unfair labor practice charge was crystalized in the following colloquy between the Trial Examiner and counsel:
“Trial Examiner: Now tell me are you definitely ruling this projected theory concerning which I had heard comment from you earlier, namely that by the assignment of struck work to employees that the Respondent was violating the provisions of the contract that it would not require the employees to violate their constitution or bylaws?
“Mr. Szabo: That is correct. We are not.
“Trial Examiner: You are not pursuing it. So that this case may proceed as though this may never have been said by you ?”
The Trial Examiner then found that Petitioner violated Section 8(a) (5) and (1) of the Act by refusing to accept and negotiate the grievance of struck work, and that a finding that Petitioner assigned struck work to its employees was not essential to this holding. The Trial Examiner further found that the employees struck in protest of this unfair labor practice, and that the Petitioner violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they offered to return to work.
The pertinent provisions of the collective bargaining contract between Danner Akron and the Union required the parties
“(1) To appoint a Joint Standing Committee for the Conciliation, consisting of two representatives appointed by the Employer, and two representatives appointed by the Union, to which shall be referred all questions which may arise as to the construction to be placed on any section of this Contract, except as provided otherwise herein or alleged violations thereof, which cannot be settled otherwise herein, and such Joint Standing Committee shall meet when any question of difference shall have been referred to it for decision by the executive officers of either party to this Agreement.
“(2) To present immediately in writing any grievance to the Joint Standing Committee for conciliation. The Committee shall meet to consider any grievance within 48 hours after notice in writing has been filed by either party to the other party. Differences as to scales of wages shall not be considered to be grievances. If an understanding cannot be reached within ten full business days after the grievance has been presented, then the settlement of the grievance shall be left to a Board of Arbitration.”
The bargaining contract provided for certain procedures by which grievances were to be presented and settled. The record discloses these procedures were not followed. The meetings on February 17th and 18th with Danner Akron included the International Representative of the Union, the Local President of the Union and four employees of Danner Canton. No employees of Danner Akron were present at either meeting. No written grievance was presented to Danner Akron.
The Board now takes the position that Petitioner’s contention that the Union failed to file its grievance in accordance with the provisions of their collective bargaining agreement is foreclosed by the express declaration of Petitioner’s counsel that it was not defending the alleged refusal to bargain on this ground. The position of waiver is not well taken. This statement was made prior to the clarification sought by Petitioner’s counsel as to exactly what issues were being tried. Furthermore, this contention should not be available to the General Counsel when the Trial Examiner found that Petitioner refused to negotiate a grievance after the General Counsel said that issue was not in the case.
The confusion, which still persists, as to the nature of the Board’s charge would not have arisen had the provisions of the contract been followed. The parties agreed to an exclusive method of procedure for the presentation of grievances and unless the aggrieved party can show a waiver of such contract procedures, no relief can be obtained where that procedure was not followed. If this procedure had been followed, no question would have arisen as to the nature of the Union’s claim, and the matter may have been settled, or ultimately resolved by the intended and preferential method of arbitration. What was said by the Board in W. L. Mead, Inc., 113 N.L.R.B. 1040 (1955) and approved by the Supreme Court in Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961), as to the duty to arbitrate, is equally applicable here:
“Every encouragement should be given to the making and enforcement of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Relations Act as interpreted by the Courts of Appeals and the Supreme Court.”
We can see no difference between the failure to abide by the contractual requirement to arbitrate and the contractual requirement to follow certain procedures in the presentation of a grievance. See also Midwest Metallic Products, Inc., 121 N.L.R.B. 1317 (1958); and Sohio Chemical Co., 141 N.L.R.B. 810 (1963). While this may appear to be a harsh rule, it is necessary to maintain the integrity of the contract and to provide a uniform and orderly method for settlement of grievances.
The Trial Examiner found that when the picketing of Danner Akron began by Danner Canton employees on February 19th, the failure of Danner Akron employees to enter the plant and work was not due to their employer’s refusal to bargain but out of sympathy with Danner Canton’s employees. Thus the initial walkout and the refusal to cross the picket line was found by the Trial Examiner not to be in protest of the Petitioner’s refusal to entertain a grievance. The Trial Examiner then found that after February 19th, the Danner Akron employees continued to strike because Petitioner refused to meet and negotiate their grievance of struck work, and they then became unfair labor practice strikers.
If the employees of Petitioner were not unfair labor practice strikers when they refused to return to work, we do not see how a change in attitude or motive could cure the defect of their failure to follow the requirements of their contract. We find no evidence in the record that a grievance was filed in accordance with the provisions of the contract. Danner Akron had no obligation to discuss with the employees of Danner Canton a claimed grievance pertaining to the employees of Danner Akron. Nor was petitioner obligated by its contract to accept a grievance from the Danner Canton Union committee.
Since the employees did not follow the grievance procedure, and did not present a grievance in writing, their use of economic force could not be protected under the Act as an unfair labor practice strike. Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., supra. It follows that the Company did not commit an unfair labor practice in hiring replacements for the striking employees.
The Order of the Board is set aside and enforcement is denied.
. International Brotherhood of Bookbinders, Akron Bindery Workers Union, Local No. 5, AFL-CIO.
. While there are ties of management and ownership between the two Companies, the two Companies do not constitute a single employer for purposes of the Act.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_usc1sect
|
151
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
ALEXANDER SMITH & SONS CARPET CO. v. HERRICK et al.
No. 454.
Circuit Court of Appeals, Second Circuit.
July 13, 1936.
Burlingame, Nourse & Pettit, of New York City, and William J. Wallin, of Yonkers, N. Y. (Arthur E. Pettit, of New York City, of counsel), for appellant.
Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C., and Robert S. Erdahl, for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
Appellant is a carpet manufacturer with its sole manufacturing plant in Yonkers, N. Y., to which raw materials are shipped from outside New York State and from which appellant ships some finished products to customers outside New York State. The prayer in this suit is that appellees be enjoined from enforcement of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.) against the plaintiff, and from the further prosecution of, or the holding of hearings on, a complaint charging plaintiff with engaging in unfair labor practices affecting commerce within section 8 (1-3) of the act (29 U.S.C.A. § 158 (1-3) by discharging employees for union activity and by coercing employees in their selection of representatives for collective bargaining. Some of the employees are on strike. For the reasons stated in E. I. Du Pont De Nemours & Co. v. Boland (C.C.A.) 85 F.(2d) 12, decided this day, the appellant has not shown that any irreparable injury will be suffered if this injunction is denied, and under the provisions of the National Labor Relations Act, it has an adequate, complete, and exclusive remedy at law on a petition to the proper court for a subpoena, or for the enforcement or review of any order the board may enter.
Decree affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
BURROUGHS v. UNITED STATES.
No. 11359.
Circuit Court of Appeals, Fifth Circuit.
Oct. 30, 1945.
Laconia C. Burroughs, in pro. per., of Atlanta, Ga., for appellant.
Jim C. Smith, U. S. Atty., of Birmingham, Ala., for appellee.
Before SIBLEY and McCORD, Circuit Judges, and KENNAMER, District Judge.
PER CURIAM.
The appellant was convicted in 1941 on three counts for violation of the Mann Act, 18 U.S.C.A. § 397 et seq., and sentenced on each count. In 1941 the district judge set aside the imprisonment sentence on the third count, on the ground that it involved really the same transaction as the second count. On May 15, 1944, the case of Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331, was decided. Appellant, being in the penitentiary, moved in March, 1945, in the court of his conviction to set aside his conviction on the ground that the evidence on his trial, in the light of the Mortensen case, and others, did not warrant conviction. The evidence as he recited it in his motion tended to support his contention. But the trial judge in his order denying the motion stated that the evidence on the trial was quite otherwise, and the jury well warranted in their verdict of guilty. We have no other information as to what in truth the testimony was. We are bound to.accept the statement of the judge. Assuming, but not deciding, that he had jurisdiction at this late date thus to enquire into the correctness of the verdict, no error is shown in his denial of the motion.
Judgment affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellant, v. RABB, Wade Lee.
No. 81-3104.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) April 28, 1982.
Decided May 27, 1982.
Rehearing and Rehearing In Banc Denied June 28, 1982.
Certiorari Denied Oct. 4,1982.
See 103 S.Ct. 162.
J. Alan Johnson, U. S. Atty., Paul J. Brysh, Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
Bart M. Beier, Pittsburgh, Pa., for appel-lee.
Before ALDISERT, WEIS and BECKER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal by the United States from the district court’s order dismissing an indictment with prejudice requires us to decide whether a timely indictment returned by a grand jury whose term has expired, later superseded by an indictment returned by a valid grand jury, satisfies the Speedy Trial Act requirement that indictment occur within thirty days of arrest, 18 U.S.C. § 3161(b). We conclude that it does and therefore reverse.
I.
Appellee Wade Lee Rabb, who had been arrested on August 3, 1981, was indicted by a federal grand jury on August 10,1981, on charges of robbing a postal carrier and jeopardizing the carrier’s life with a dangerous weapon, 18 U.S.C. § 2114, and unlawful possession of stolen government checks, 18 U.S.C. § 1708. The United States Attorney subsequently discovered that the charging grand jury’s term had expired on May 8, 1981. On October 2, 1981, the government sought and obtained from an unexpired grand jury a superseding indictment identical in all material respects to the first, and advised defense counsel on October 4 of the reasons for this action. The district court dismissed the first indictment on the government’s motion.
Arguing that he had not been indicted within thirty days of his arrest as required by the Speedy Trial Act, 18 U.S.C. § 3161(b), Rabb moved for dismissal on November 5, 1981. The following day the court held a hearing which it focused on “the government’s mistake,” and at the close of the hearing it dismissed the indictment with prejudice pursuant to 18 U.S.C. § 3162(a)(1). Citing the jury supervisor’s testimony that she had advised the Assistant United States Attorney in charge of the grand jury to seek an extension of the grand jury’s term, the court found that the government’s failure to heed the advice was “gross negligence.”
On November 12, 1981, the government filed a notice of appeal from the order of dismissal, properly invoking our jurisdiction under 18 U.S.C. § 3731. The next day the district court, acting on its own motion, calendared for November 19 a “Hearing To Supplement The Record.” At that hearing the court summoned and interrogated witnesses, produced evidence and ordered it admitted into the record, and argued legal and factual issues with counsel and witnesses. At the close of testimony and without hearing formal argument, the court announced that it would reaffirm its previous decision to dismiss Rabb’s indictment with prejudice, concluding that the August 10 indictment was a nullity.
II.
The issue before us is solely one of statutory construction of the Speedy Trial Act. The Act requires speedy indictments as well as speedy trials following indictments: “Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). Section 3162 implements the command of § 3161(b) by requiring dismissal of charges upon which no indictment has been filed within the time limits. But whether an indictment returned by a grand jury whose term has expired satisfies § 3161(b) is apparently a question of first impression in the courts of appeal.
To discern Congress’ intent in § 3161(b), we begin with the language of the statute itself because we presume that the words Congress has chosen best reflect the legislative purpose. Consumer Products Safety Comm’n. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Nevertheless, the approach is not one of slavish literalism, for “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) (Holmes, J.). We reject a view that would make “a fortress out of a dictionary,” remembering instead that “statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned Hand, J.), aff’d, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Thus, although the literal meaning of the words chosen by Congress is respected, we no longer follow a rigid, semantic approach to statutory construction, lest we construe a statute within its letter, but beyond Congress’ intent.
The specific task before us is to determine whether the term “indictment” in § 3161(b) is broad enough to encompass an indictment returned by a grand jury whose term had expired, but regular in all other respects. Thus the specific question is to interpret an unclear norm; we are not faced with a lacuna, or a nonexistent norm. Viewed in light of its purpose in the statutory schema and with “an eye to the surrounding statutory landscape,” United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 521, 30 L.Ed.2d 488 (1971), we conclude that appellee’s reading of § 3161(b), although literally correct, is unsound, and that the August 10 indictment met the requirements of § 3161(b).
III.
In United States v. Goldstein, 502 F.2d 526, 529 (3d Cir. 1974) (in banc), this court identified the three functions of an indictment; the August 10 indictment performed all three. It put the defendant on notice of the exact nature of the charges he would be required to defend against; it would have protected him from a second trial on the same offense had he been acquitted, see United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); and it was returned by an independent body upon a finding of probable cause. The superseding indictment was identical to the one returned by the first grand jury, and there was no allegation that the government obtained either indictment fraudulently or in bad faith. Once Rabb was arraigned on that indictment he could begin to prepare his defense knowing exactly what the government had to prove. With this knowledge he could intelligently decide whether to face trial or attempt to plea bargain. The government, also considering the August 10 indictment to be valid, proceeded with the ease on the assumption that it was bound to bring it to trial within the time permitted by § 3161(c). Thus, Rabb has suffered no prejudice as a result of the defect in the indictment.
IV.
The legislative history of § 3161(b) reveals that its purpose was to accelerate the indictment phase of criminal proceedings, which at times did not occur until months after arrest. As originally proposed, the Speedy Trial Act provided for a blanket 120 day period from arrest (or indictment if returned before arrest) to trial but Congress eventually determined that pre-indictment delays required segmentation of this period to insure orderly disposition of criminal cases. As enacted, the statute prohibits indictments or informations brought more than 30 days after arrest, with trial to commence within 70 days thereafter, plus excludable time. Recognizing that § 3161(b) is essentially a congressional directive for the orderly conduct of criminal proceedings, we have not been convinced that Congress intended its bar to apply to superseding indictments made necessary by the type of defect present here. Cf. United States v. Wilks, 629 F.2d 669 (10th Cir. 1980) (§ 3161(b) time limitations do not apply to superseding indictments generally); see also United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981) (holding that date of original indictment, not that of superseding indictment, controls for purposes of determining whether Speedy Trial Act sanctions apply).
Our interpretation of Congress’ intent in § 3161(b) is supported by our examination of the surrounding “statutory landscape.” 18 U.S.C. § 3288 provides that an indictment dismissed because of “any error, defect, or irregularity with respect to the grand jury” is nevertheless sufficient to toll the statute of limitations for an offense and re-indictments are possible. The second circuit held in United States v. Macklin, 535 F.2d 191 (2d Cir. 1976), that an indictment returned by a grand jury whose term had expired, the precise situation present here, was sufficient under § 3288 to toll the statute of limitations. A construction of § 3161(b) that would render ineffective for Speedy Trial Act purposes a defective indictment that tolls the statute of limitations hardly makes for a pleasing statutory landscape.
V.
Appellee argues, however, that a more proximate feature of the statutory landscape is Speedy Trial Act § 3161(d)(1), which provides:
If any indictment ... is dismissed upon motion of the defendant ... and thereafter ... [an] indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of [subsection] (b) ... of this section shall be applicable with respect to such subsequent .. . indictment. .. .
Rabb contends that under § 3161(d)(1) the second indictment had to be returned within 30 days of his arrest, as required by § 3161(b). We find § 3161(d)(l)’s mandate less than crystal clear, however, because of its failure to indicate the starting date for the time limits. It therefore becomes necessary to resort to the legislative history of this section which reveals that Congress intended that the time limits of subsection (b) would begin to run anew from the date of the defendant’s second arrest or charge, if any, and not from the date of the first arrest or charge. See A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 78-79 (1980). See also United States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980). Thus, rather than being inconsistent, § 3161(d) reinforces our construction of § 3161(b).
VI.
We therefore hold that in the absence of bad faith on the part of the government or prejudice to the defendant, an indictment returned by a grand jury whose term has expired is sufficient to toll Speedy Trial Act § 3161(b) if it is followed by a valid indictment, identical in all material respects. Because the Speedy Trial Act was not violated by the government in this case, the district court’s dismissal was erroneous and we need not decide whether the dismissal with prejudice was appropriate.
The judgment of the district court will be reversed.
. Because this was a special grand jury, 18 U.S.C. § 3331, its term could have been extended before its expiration by order of the court; the U. S. Attorney had failed to obtain such an order.
. Section 3162(a)(1) provides:
If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
. 18 U.S.C. § 3288 provides:
Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, .. . after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment . .. which new indictment shall not be barred by any statute of limitations.
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_respond1_8_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
CHASE NAT. BANK OF NEW YORK et al. v. SAYLES et al.
(Circuit Court of Appeals, First Circuit.
March 29, 1926.)
No. 1882.
1. Courts <@=505 — Suit against executors and legatee to enforce assignment of interest in estate held within equity jurisdiction of federal court, though res was in possession of probate court.
Suit against executors and legatee to enforce assignment by legatee of interest in estate held within ■ equity jurisdiction of fed.eral court on, ground of diversity of citizenship, though res involved was already in possession of probate court having concurrent jurisdiction, the decree rendered being operative against executors personally.
2. Executors and administrators <@=75 — Gifts <@=>27— Relationship of executor to legatees is substantially that of trustee; legatee having equitable interest in property of estate which he may transfer by irrevocable gift.
The relationship of executor to legatees and creditors is substantially that of trustee, and legatee has such an equitable interest in the property of the estate that he may effectively transfer or assign the whole or a part thereof by irrevocable gift, which equity will uphold.
3. Wills <@=>723 — In equity, legatee has equitable interest in property of estate, though such interest may be subject to abatement.
In equity, legatee has, in addition to right in personam against executor, an equitable interest in property of estate to extent of his legacy, though such interest may be subject to abatement.
4. Gifts <@=>28(l) — Equitable interest in property may be assigned in whole or in part by gift, which is irrevocable, if intent to pass present interest and delivery so far as possible is shown.
Equitable-interests in property may be assigned in whole or in part by gift, and, if intent to pass, a present interest and such delivery as subject-matter permits is shown, gift is irrevocable.
5. Gifts <S=>27 — Though legatee’s right in estate may be only legal chose in action, he may make irrevocable gift thereof, which equity will uphold.
If legatee’s right to share in estate amounts to no more than a legal chose in action, he may nevertheless make a valid irrevocable gift of such right or interest, which equity will uphold.
6. Assignments <@=»58.
Assignment of part of a debt or demand is enforceable in equity against debtor, whether he accepts or assents to it or not.
7. Wills <S=»740(4)— Claimant of interest in estate under statutory compromise takes as legatee (Gen. Laws R. I. 1909, c. 3I2,'§ 23).
Right in estate arising from statutory compromise under Gen. Laws R. I. 1909, e. 312, § 23, is same as if will had originally made provision for claimant, who takes as a legatee.
Appeal from the District Court of the United States for the District of Rhode Island.
Action by the Chase National Bank of New York and another against Mary D. A. Sayles and others. From decree dismissing bill (6 F.[2d] 403), plaintiffs appeal.
Reversed and remanded.
This is a bill in equity, brought by the Chase National Bank of the City of New York, a national banking association having its principal place of business in New York City, and Frederick K. Ruppreeht, a resident and citizen of the state of Connecticut, against Charles 0. Read, James R. MaeCoIl, and Kenneth F. Wood, residents and citizens of the state of Rhode Island, individually and as executors of Frank A. Sayles, late of Pawtucket, in the state of Rhode Island, deceased, and Mary D. A. Sayles, a resident and citizen of Rhode Island. After stating the citizenship of the parties and that the matter in controversy exceeds $3,000, exclusive of interest and costs, the allegations of the bill are:
“Second. The said Frank A. Sayles died, domiciled in said Pawtucket, on March 9, A. D. 1920, leaving a last will with five codicils thereto, all of which, as modified by a certain agreement of compromise authorized and approved in and by a certain decree of the superior court for said county of Providence in said state of Rhode Island, entered on May 25, 1920, in a certain cause in equity numbered 5018 and entitled ‘Charles O. Read et al., Executors and Trustees, v. Mary D. A. Sayles et al.,’ were duly admitted to probate in the probate court of said Pawtucket.
“Third. Thereafter, on March 31, 1920, letters testamentary issued out of said probate court of Pawtucket to the defendants Charles O. Read, James R. MaeCoIl, and Kenneth F. Wood, the executors named in said will and codieüs, hereinafter called ‘said executors,’ and thereafter said executors duly accepted their appointment, and on April 2, 1920, first published in accordance with law the notice of their appointment as such executors in the Evening Times, a daily newspaper published in Pawtucket.
“Fourth. In and by said will and codicils of said Frank A. Sayles, as modified by said agreement of compromise, the defendant Mary D. A. Sayles was bequeathed the sum of four million dollars ($4,000,000), hereinafter called said ‘four million dollar legacy.’
“Fifth. Thereafter, on September 15, 1920, the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht a certain instrument in writing under seal, whereby she assigned and transferred to said Frederick K. Ruppreeht, his executors, administrators, and assigns, an interest in said legacy to the extent of fifteen hundred thousand dollars ($1,500,000), of which assignment said executors had immediate notice.
“Sixth. Prior to the time of the entry of the decree authorizing said agreement of compromise, all of the defendants had knowledge that the plaintiff Frederick K. Ruppreeht had and intended to assert a large claim against the said executors and the estate of the said Frank A. Sayles, and prior to September 15, 1920, when the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht the said instrument of assignment, the details of the said claim had been presented to the defendant executors, who had advised the defendant Mary D. A. Sayles thereof, and all of the defendants were aware that the said claim amounted to the sum of two million dollars ($2,000,000). Said assignment was made with the consent and approval of said executors, and, when the said assignment was made, the defendant Mary D. A. Sayles and the said executors intended that it should be accepted by the plaintiff Frederick K. Ruppreeht, and both she and the said executors were well aware that he intended to accept it, in full settlement of his said claim against said estate. Because of the said assignment to the plaintiff Frederick K. Ruppreeht by the said Mary D. A. Sayles, and in reliance thereon, the plaintiff Frederick K. Ruppreeht refrained from formally presenting the said claim for two million dollars ($2,-000,000) to the said executors, and refrained from filing the same as a claim against the estate of the said Frank A. Sayles within the time allowed by law for the presentation and filing of claims, and all of tbe defendants herein were well aware that the plaintiff Frederick K. Rupprecht failed to present and file, and refrained from formally presenting and filing, the said claim because, of said assignment to him by the said defendant Mary D. A. Sayles and in reliance thereon.
“Seventh. On July 6, 1921, in consideration of the sum of one million five hundred thousand dollars ($1,500,000) to him paid by the plaintiff the Chase National Bank, the plaintiff Frederick K. Rupprecht executed and delivered a certain instrument in writing under seal, whereby he sold, assigned, and transferred to the Chase National Bank, its successors and assigns, all his right, title, and interest to the extent of one million five hundred thousand dollars ($1,500,000) in and to said four million’ dollar legacy and all his right, title, and interest in and to said assignment dated September 15, 1920, and executed and delivered to him by the defendant Mary D. A. Sayles, as aforesaid, of which said assignment to said the Chase National Bank, said executors, and said Mary D. A. Sayles did thereafter receive due notice.
“Thereafter demand was duly made upon said executors on behalf of said Frederick K. Rupprecht and said the Chase National Bank for payment of the amount of said four million dollar legacy assigned by said Mary D. A. Sayles to said Frederick K. Rupprecht and thereafter assigned by said Frederick K. Rupprecht to said the Chase National Bank as aforesaid, namely, the sum of one million five hundred thousand dollars ($1,500,000), which demand was refused, and said executors have made no payment on account of said legacy, either to the plaintiff Frederick K. Rupprecht or to the plaintiff the Chase National Bank.
“After the time for filing claims against said estate had expired, the said Mary D. A. Sayles notified the said Frederick K. Ruppreeht and the said the Chase National Bank that she repudiated the said assignment to the said Rupprecht; on information and belief, the plaintiffs aver that such notice of repudiation was given by the said Mary D. A. Sayles at the instance and request of the said executors, and that, at the time when it was. given, all of the defendants herein were well aware that the time for filing claims against said estate had expired; and the plaintiffs aver that neither said the Chase National Bank nor said Frederick K. Ruppreeht had any notice prior to said assignment from said Frederick K. Rupprecht to said the Chase National Bank or prior to the expiration of said time for filing claims against said éstate either that the said Mary D. A. Sayles had any intention of attempting to repudiate her said assignment, or that said executors had any intention of declining to pay to the plaintiffs their interest in said four million dollar legacy.
“Eighth. On information and belief, the plaintiffs aver that said executors have paid to the defendant Mary D. A. Sayles a portion of said four million dollar legacy, to wit, the sum of two million five hundred thousand dollars ($2,500,000), and that at the time of making said payment both said executors and said Mary D. A. Sayles had due notice, as hereinbefore set forth, of said assignments to said Frederick K. Rupprecht and said the Chase National Bank respectively. And the plaintiffs fear that said executors will, unless restrained by order of this court, pay the balance of said four million dollar legacy, to wit, one million five hundred thousand dollars ($1,500,000), to said Mary D. A. Sayles.
“Ninth. On information and belief, the plaintiffs aver that, after all debts and other liabilities of said Frank A. Sayles and the expense of the administration of his estate are paid, there will remain in the hands of said executors sufficient property and funds to satisfy all general and specific legacies under said will, including the interest in said four million dollar legacy, assigned to’ said the Chase National Bank as aforesaid, to wit, the sum of- one million five hundred thousand dollars ($1,500,000), with lawful interest thereon, and that the administration of said estate has reached such a point that it is possible and proper for said executors to satisfy and pay all of said four million dollar legacy with lawful interest thereon.
“On information and belief, plaintiffs aver that the said executors have paid in full certain of the legacies bequeathed by the said Frank A. Sayles in his said last will and codicils thereto, and have failed to pay the said one million five hundred thousand dollars ($1,500,000) to the said the Chase National Bank, because, at their instance and request, the said Mary D. A. Sayles has notified plaintiffs herein that she repudiates her said assignment to the plaintiff Rupprecht as hereinabove averred and alleged.
“Tenth. On information and belief, plaintiffs aver that the defendant Mary I). A. Sayles does not own assets or property of the value of one million five hundred thousand' dollars ($1,500,000) other than assets or property which includes, or has been derived by her from the use of, the two million five hundred thousand dollars ($2,500,000) paid,to her on account of the said four million dollar legacy by the said executors as hereinabove averred; that she is without business experience or experience in investing funds, and that the disposition of said portion of said legacy so paid her is now subject solely to her personal inclination.”
The prayers were: (1) That the executors be restrained from making further payments out of the funds of the estate on account of the four million dollar legacy to the defendant Mary D. A. Sayles or her assigns or to any one other than the Chase National Bank, its successors and assigns; (2) that Mary D. A.‘ Sayles be enjoined from receiving from said executors any further payments on account of said legacy and that she be restrained from assigning or in any way incumbering or transferring her interest, if any, in and to such part of the legacy as now remains unpaid; (3) that the validity of said assignment now held by the plaintiff bank be determined; that it be determined whether the proper administration of the estate admits of present payment of said assignment; that, if it is determined that it does, the executors be required to pay said sum with lawful interest to the plaintiff bank; otherwise that the executors be directed to retain, subject to the order of the court, sufficient property and assets of the estate to pay said sum of $1,500,000, with lawful interest thereon, until such time as the administration of said estate will permit the payment of said sum, whereupon said executors be directed to pay said sum, with lawful interest, to the plaintiff bank; and that the defendant Mary-D. A. Sayles be required to take such action, in said probate court of Pawtucket or elsewhere, as will be necessary or convenient to facilitate such payment; (4) that said executors be required to make discovery of the property and assets in their hands as executors of the estate, and concerning the payments, if any, made by them on account of the' four million dollar legacy; (5) that the defendant Mary D. A. Sayles be required to account to the plaintiff bank with respect to any payments heretofore received by her from said executors on account of the legacy, and to pay to the plaintiff bank the sum of $1,500,-000, with lawful interest thereon; that she be enjoined from in any way incumbering or transferring the portion of said legacy received by her or any property or assets in which the same has been invested; and that pending the final hearing she be ordered to pay into court the sum of $1,500,000, together with a sum sufficient to cover interest thereon to the date of the order or decree herein requiring such payment, or that she be required to pay the same to a trustee to be appointed by the court, to be held subject to the order of the court; (6) that a preliminary injunction pendente lite be granted; and (7) that the plaintiffs may have such other and further relief as may be deemed just and equitable.
To this bill the defendants filed a motion to dismiss in the nature of a demurrer, setting out six grounds: (1) Because the court was without jurisdiction to hear and determine the suit; (2) -because the matter involv-. ed was a matter of probate subject to determination by the probate courts of Rhode Island; (3) because the controversy was one concerning a res which is already in the possession of another court of concurrent jurisdiction, to wit, the probate court of the city of Pawtucket; (4) because the plaintiffs seek to enforce the payment of a legacy by the executors of an estate, and it does not appear that the executors have filed in the office of the clerk of the probate court in which the will was probated a statement setting out the names of the legatees and the amounts to be paid and the property to be turned over to them respectively, or to be held by themselves as trustees, or that they have failed to comply with the statutes of Rhode Island relating to the filing of said statements; (5) because said bill of complaint does not state facts sufficient to entitle the plaintiffs or either of them to the relief prayed for or to any relief in equity; and (6) because it does not appear in and by said bill of complaint that any consideration was given' for said assignment alleged to have been made to the plaintiff Frederick K. Ruppreeht by the defendant Mary D. A. Sayles.
After hearing the motion, the District Judge filed a written opinion, in which he expressed the view that a total assignment of a pecuniary legacy by way of gift was enforceable in equity, but a partial assignment was not, unless made upon consideration, and entered a decree dismissing the bill, from which this appeal is prosecuted.
Eldon Bisbee, of New York City, and Charles F. Choate, Jr., of Boston, Mass. (Herbert M. Sherwood, Arthur M. Allen, Sidney Clifford, Roger T. Clapp, Sherwood, Heltzen & Clifford and Hinckley, Allen, Tillinghast & Phillips, all of Providence, R. I., on the brief), for appellants.
Robert B. Dresser and Claude R. Branch, both of Providence, R. I. (Samuel Williston, of Cambridge, Mass., and Edwards & Angell, of Providence, R. L, on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge
(after stating the facts, as above). The defendants have not briefed or argued the first four objections assigned in their motion to dismiss, and we do not purpose to consider them at length.
The jurisdiction of the court as a federal court is adequately stated, for the bill alleges diversity of citizenship, and that the amount in controversy exceeds, exclusive of interest and costs, the sum'of $3,000.
Then, again, if the validity of the assignment and the rights of the plaintiffs therein could be determined in the probate court of Rhode Island, that in no way affects the general chancery powers of this or of the District Court, the rights of citizens of different states being involved. Waterman v. Canal Louisiana Bank Co., 30 S. Ct. 10, 215 U. S. 33, 54 L. Ed. 80; Atwood v. Rhode Island Hospital Trust Co. (C. C. A.) 275 F. 513, 24 A. L. R. 156. The proceeding being of the nature stated, it in no way interferes with the due administration of the estate in the probate court, and any decree which may be entered will operate, so far as the exeeutors are concerned, against them personally. Allen v. United States (C. C. A.) 285 F. 678, 683, 684.
In support of the fifth and sixth grounds stated in the motion to dismiss, the defendants contend that, inasmuch as it appears in the bill of complaint that the exeeutors did not promise to pay the assignee, Rupprecht, or his assignee, the bank, there was no novation, and, as no consideration was paid for the assignment, and the assignment was not of the whole, but a part, of the legacy, this proceeding cannot be maintained. The reason asserted for this contention is that the right of a pecuniary legatee is not an equitable chose in action or an equitable right in property, but is a legal chose and a right of the same nature as that of a creditor against his debtor; that the legal title to such a chose cannot be parted with, and no equitable right or interest in or "to it passes by assignment without consideration, whether the assignment purports to be total or partial. In other words, their position is that the possessor of a legal title to property cannot part with an equitable title therein, except by way of a declaration of trust, or create therein an interest in the nature of an equitable lien, except by contract based upon consideration; that in this case there,was no declaration of trust, so no equitable property interest passed to the assignee, and that, no consideration having been paid, no equitable lien arose; that, had the assignment purported to have been of a total interest, the law would imply a power to sue in the name of the assignor and, if for consideration, the power would be irrevocable although no interest in the subject-matter passed; and that, if the assignment was partial and for consideration, although in such ease no authority at law would be implied to sue in the name of the assignor, equity would afford relief because of the consideration paid, but would not aid a volunteer. In its final analysis their contention amounts to this: That the interest of a pecuniary legatee is a legal chose in action; that it cannot be the subject of a gift by way of a total assignment, because no present interest in the subject-matter would pass and the power to sue would be revocable; that, if the gift was a partial assignment, no present interest in the subject-matter would pass, and, being without consideration, equity would not lend its aid.
The plaintiffs' contention is that the interest of a pecuniary legatee is an equitable interest in property; that the executors stand as trustees of the decedent's estate, at least as to the personalty, (1) to pay debts; (2) to carry out the specific legacies; (3) to pay the pecuniary legacies; and (4) to distribute the balance of the estate, if any, among the residuary legatees; or, if the relationship between an executor and a pecuniary legatee is not strictly that of trustee and cestui que trust, nevertheless the right is not a legal chose such as exists between debtor and creditor, but an equitable chose, which the legatee may part with, and that in either case he can pass a present equitable title or interest in the whole or in a part of such legacy by gift or by sale; that, inasmuch as the legatee may part with a present equitable interest, whether that interest be in property or in an equitable chose, if it is by way of gift, and the transaction is executed so far as the nature of the subject-matter permits, as it was by assignment under seal in this case, the gift cannot be revoked, any more than it could have been, had the subject of the gift been a mere chattel; that to establish a completed gift by way of assignment of a pecuniary legacy, whether of the whole or of a part, it is only necessary to show an intention on the part of the legatee to give the whole or a partial interest, and an execution of that intent by such delivery as the nature of the subject-ma,tter permits; that as the delivery of a deed of gift by the owner of chattels in the possession of a third party under a lease would be an adequate delivery in execution of the donor’s intention to make a completed gift (Corning v. Records, 46 A. 462, 69 N. H. 390, 76 Am. S't. Rep. 178), so here a delivery of a deed of assignment would be an adequate execution of the donor’s intent to constitute a completed gift of a part of the legatee’s interest in the legacy; that the essential feature of a gift is that its subject-matter be such that a present interest, legal or equitable, may be parted with by actual or symbolical delivery to the donee in execution of the donor’s intent to give; and that equity is not hampered as to remedy, as is the law, in the enforcement of a gift of a part any more than of a gift of the whole.
After an extended examination of the questions involved, we have reached the conclusion that the contention of the plaintiffs, as above stated, is correct. Without stating the early conception of the law as to the relationship of an executor to creditors and legatees, or wherein it differed from that of a strict trustee, we regard it now settled that it is substantially that of a trustee; that, while his powers in the management and disposition of the property of the estate in some respects, perhaps, may be broader than those of an ordinary trustee, and a person dealing with him in the disposition of its assets may safely assume that he is acting in the line of his duty, unless upon the face of the transaction the contrary appears or he has knowledge of the executor’s purpose to be guilty of a -breach of trust, nevertheless, in the main, the relationship is that of a trustee and cestui que trust, and the legatee has such an equitable interest in the property of the estate that he may transfer it.
In Jeremy, Eq. Jur. (1828) p. 103, it is said:
“The original and ordinary jurisdiction, in matters testamentary, belongs to the ecclesiastical courts, and it is by virtue of the probate, letters of administration, or letters of administration with the will annexed, that such appointee obtains complete power over the personal estate of the deceased person whom he thus represents. Prom the conscientious duty, however, which necessarily follows such appointments, this court construes a trust to arise in the executor or administrator for the persons who are entitled to the property or are beneficially interested therein, and, without infringing upon the jurisdiction of the ecclesiastical courts, it enforces execution thereof.”
In 1 Pomeroy, Eq. Jur. § 156, it is said:
“The theory of trusts, express and implied, having been established, it was easily extended to certain other analogous subjects, which were thus brought within the equitable jurisdiction. One of the most important of these was the administration of the estates of deceased persons. The relation subsisting between executors and administrators, on the one hand, and legatees, distributees, and creditors, on the other, has so many features and incidents of an express active trust, that it-has been completely embraced within the equitable jurisdiction in England, and also in the United States, where statutes have not interfered to take away or abridge the jurisdiction. * * * This jurisdiction at length became firmly established and practically exclusive on this ground of trusts: That the relation between the executor or administrator and the parties interested in the estate is virtually one of express trust, which equity has always the power to enforce.”
In Adair v. Shaw, 1 Sehoales & L. 243, 262, it is said:
“The only thing to be inquired in a court of equity is whether the property bound by the trust has come to the hands of the persons who were either bound to execute the trust, or to preserve the property for the persons entitled to it, and the whole jurisdiction of courts of equity in the administration of assets is founded on the principle that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator, who has the property in his hands, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in the ease of intestacy, according to the statute of distributions. The sole ground on which courts of equity proceed in cases of this kind is the execution of trusts, and, if we advert to the eases on the subject, we shall find that trusts are enforced, not only against.those persons who rightfully are possessed of the trust property as trustees, but also against all persons who come into possession of the property bound by the trust with notice of the trust, and whoever so comes into possession is considered as bound, with respect to that specific property, to the execution of the trust.”
In Green’s Adm’r v. Creighton, 23 How. 90, 106 (16 L. Ed. 419), it is said:
“In the court of chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them, in favor of creditors, legatees, and heirs, in reference to the proper execution of their trusts.”
In Smith v. Ayer, 101 U. S. 320, 327 (25 L. Ed. 955), the court said:
“The executor, though holding the title to the personal assets, is not absolute owner of them. They are not liable for his debts, nor can he dispose of them by will. He holds them in trust to pay the debts of the deceased, and then to discharge his legacies, and, as in all other cases of trust, he is personally responsible for any breach of duty; and property thus held, acquired from him by third parties with knowledge of his trust and his disregard of its obligations, can be followed and recovered. The law exacts the most perfect good faith from all parties dealing with a trustee respecting trust property. Whoever takes it for an object other than the general purposes of the trust, or such as may reasonably be supposed to be within its scope, must look to the authority of the trustee, or he will act at his peril.”
See, also, Sherburne v. Goodwin, 44 N. H. 271, 279, 280; M’Leod v. Drummond, 14 Ves. 353, on appeal 17 Ves. 152; Griffith v. Frazier, 8 Cranch. 9, 24, 3 L. Ed. 471; Blood v. Kane, 29 N. E. 994, 130 N. Y. 514, 15 L. R. A. 490; Marvel v. Babbitt, 9 N. E. 566, 143 Mass. 226; Mechanics’ Savings Bank v. Waite, 22 N. E. 915, 150 Mass. 234; Davis et al. v. Newton, 6 Metc. (Mass.) 537, 541; Kent v. Dunham, 106 Mass. 586, 590, 591; Story’s Eq. Jur. §§ 581, 593.
These decisions disclose the idea that a legatee has, in equity, in addition to a right in personam against the executor, an equitable interest in the property of the estate to the extent of his legacy, even though his interest may be subject to abatement in ease the assets remaining after payment of the debts and expenses of administration may be less than enough to pay his legacy in full.
In New Jersey, as early as 1834, in the case of King v. Berry, 3 N. J. Eq. 44, the matter here under consideration was involved. In that ease the assignee of a pecuniary legacy brought a bill in equity against the executors of an estate for an accounting and payment to him of the legacy, and was allowed to recover. The Chancellor, speaking for the court, said:
“They [the assignors] were legatees under a will. Their rights were not common-law rights. * * * For a long series of years legacies have been suable in the Court of Chancery, and that court has now, if it has not always had, a concurrent jurisdiction with the spiritual court. That they may now be sued for in the common-law, courts, by the statute, does not alter their essential character. They do not change their nature to suit the law of the court, but the court changes its law, and accommodates itself to their peculiar character. When suits for legacies were first prosecuted in Courts of Chancery they were obliged to adopt the law of the spiritual forums; and so it has been with the courts of common law. 3 Ridg. P. C. 243.
“The character of the right, then, is not altered by making it cognizable, under certain circumstances, in the common-law courts. It remains essentially an equitable interest. It is not barred by the statute of limitation; at least such was the law, and such it is still, in England. * * *
“The claim to a legacy is essentially an equitable, and not a legal claim. That it is an assignable interest cannot be doubted, and the assignment, if it passes anything, must pass the whole right of the assignor.” And therefore “it was not necessary to make the assignors parties to this suit.”
In 1864 the conclusion reached in King v. Berry was affirmed in Executors of Luse v. Parke, 17 N. J. Eq. 415. In that case it appeared that a pecuniary legatee, whose legacy was to be paid to him when he reached 23, became 23 on April 11, 1862; that in 1860, when he was 21 years old, he assigned his legacy to the petitioner, Parke; that January 29, 1861, he again assigned the legacy to one Vliet, who gave notice to the executors; and that Vliet assigned it to Kennedy, one of the executors. The right.of the first assignee was upheld. It was there said:
“The defense is based on the idea that the legacy, like any other chose in action, is not assignable at law; that a mere equitable interest passed by the assignment, the legal title remaining in the assignor; and that, the money having been paid by the executors to the second assignee, without notice of the first assignment, they cannot be prejudiced by the secret equity of the first assignee. But the title to the legacy is not a common-law right. It was held by the Chancellor, in King v. Ex’rs of Berry, 3 N. J. Eq. 54, that a claim to a legacy is essentially an equitable, not a legal, claim, and that the assignment must pass the whole right of the assignor; that there does not remain in the assignor, after the assignment of a legacy, a distinct, subsisting right, capable of being assigned, but that the entire interest passes.”
Jenkinson v. New York Finance Co., 82 A. 36, 79 N. J. Eq. 247, 258, was a case where a residuary legatee had made partial assignments of his legacy to four assignees, and the sum of the partial assignments exceeded the amount of the legacy. In that ease all the assignees, as well as the assignor and the executor, were made parties to the bill. And the two previous cases were affirmed. See Voyle v. Hughes, 2 Sim. & Gift. 18; Lambe v. Orton, 1 Dr. & Sm. 125; Matson v. Abbey, 36 N. E. 11,141 N. Y. 179; Orth v. Kaesche, 118 N. F. 1071, 222 N. Y. 612; Heise v. Wells, 104 N. F. 1120, 211 N. Y. 1; Ensign v. Kellogg, 4 Pick. (Mass.) 1; 1 Williston on Contracts, p. 839, § 439.
In contrasting the present view of the law with that formerly entertained, the court, in Henry v. Graves, 16 Grat. (Va.) 244, said:
“Formerly equitable estates and interests were considered as ehoses in action, and assignments- of them were treated only as ex-ecutory contracts. But a trust or equitable estate is not now considered a chose in action. It is a present interest or estate, and whatever would be the rule of law, if it were a legal estate, is applied in equity to a trust estate. The legal estate follows the trust op equitable' estate as its shadow, into whose hands soever the legal estate may descend or be conveyed, except it pass to a purchaser for valuable consideration without notice. Id. 875. A trust or equitable estate or interest may therefore now be assigned in equity, as a legal estate or interest of the same kind might be at law; and effect is given to the assignment as an executed, and not an executory, contract. So that a voluntary assignment of such an estate or interest is valid, if it be
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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).
UNITED STATES of America v. William Edward RABB et al. Appeal of William Edward RABB, Appellant.
No. 71-1368.
United States Court of Appeals, Third Circuit.
Argued Oct. 21, 1971.
Decided Dec. 13, 1971.
Aldisert, Circuit Judge, concurred and filed opinion.
John G. Graham, McGlynn, McGlynn, Ruprecht & Graham, Newark, N. J., for appellant.
William Braniff, Asst. U. S. Atty., Newark, N. J., for appellee.
Before ALDISERT, GIBBONS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
MAX ROSENN, Circuit Judge.
This is an appeal by William E. Rabb from a conviction in the District Court for the District of New Jersey for robbing a Federally insured bank, and putting lives in jeopardy during that robbery, in violation of 18 U.S.C. § 2113(a). Only one significant issue is raised in this appeal: Whether the district court was correct in denying the jury’s request to have a portion of the transcript read to them.
Rabb was tried together with a co-defendant, one James Phillips. A third defendant, also charged with the same offenses, was severed from the case because his attorney was not ready to proceed. As to Rabb and Phillips, the evidence presented at trial varied. Phillips was connected with the crime by hard physical evidence: a fingerprint, found on the car used in the commission of the robbery. Rabb, however, was convicted solely on the basis of identification evidence — the testimony of three witnesses, Edward Martini, a bank teller, Richard Weber, another bank employee, and Harry G. Stoothoff, Jr., who was driving past the bank at the time of the robbery. Weber and Martini both made their identifications although the person they claimed to be Rabb was wearing a white handkerchief around his face. Stoothoff saw a man he identified as Rabb in the getaway car without a mask.
After the jury had deliberated about two hours, they returned and requested a reading of the testimony of Weber and Stoothoff. The court refused the request, but read its summary of the testimony of the two witnesses, and added that if the jury had a different recollection of the testimony they should use it to guide them. Objections were taken both to variations in the judge’s summary from the testimony actually given and to the failure to read the full testimony of these two witnesses.
Some confusion exists in the testimony as to whether or not Rabb’s attorney objected specifically to the refusal of the trial judge to grant the request by the jury to have part of the transcript read. There is no doubt, however, that the attorney for Phillips did make such an objection. Our reading of the transcript convinces us that both attorneys were acting in unison at the time, and that the judge in fact understood that the objection made by Phillips’ attorney applied to both defendants.
The testimony which the jury desired to have read involved about forty pages. Rabb was convicted and sentenced to twenty years.
Normally, a request by the jury to have a portion of the transcript read back to them lies within the broad discretion of the trial judge. United States v. Chicarelli, 445 F.2d 1111 (3d Cir. 1971). The rationale behind a refusal on the part of trial judges to allow a reading of a portion of the testimony is twofold: first, because these requests may slow the trial; and second, because a reading of only one portion of the testimony may cause the jury to give that portion undue emphasis.
In the instant case, neither of these reasons could have provided a basis for the court’s refusal. The eye witness testimony of the three witnesses identifying appellant was the only evidence linking him to the crime. The testimony of all three witnesses tended to interrelate since they all described features and clothing allegedly those of appellant. Thus, the testimony which the jury asked to have read to them was absolutely crucial to their determination of appellant’s guilt or innocence.
This was not a case where, from a mass of dimly remembered data, the jury desired to cull and spotlight a small bit of fact. The entirety of the evidence presented against appellant, while presenting problems in terms of evaluation, was short: the testimony of only three witnesses. Reading the transcript of the testimony of two of these witnesses would not necessarily emphasize it or preclude consideration by the jury of the other testimony. In these circumstances, it must be assumed that the jury asked for a reading of this testimony because it was in doubt or in disagreement upon its proper evaluation.
United States v. Jackson, 257 F.2d 41 (3d Cir. 1958), is directly on point. The issue presented in Jackson was entrapment. The jury asked the court whether or not an informer involved with the defendant was a Government employee. The court told the jury that it was unable to remember whether or not the informer was a Government employee and directed them to return to the jury room for further deliberations without having read any of the testimony to the jury. Attorney for the defendant requested that the pertinent portion of the testimony be read to the jury. But before any action was taken the jury returned a guilty verdict.
This court noted that “[T]he point of the jury’s question was highly relevant.” It held that “in this particular situation we think the defendant was entitled to have the jury informed as a matter of right.” id., at 43.
The request by the jury for a reading of the testimony in the case sub judice is, in fact, even more compelling than in Jackson. In both cases, the evidence on which the jury wanted guidance was crucial to its verdict. In the case sub judice, however, the evidence was identification evidence. The dangers inherent in such testimony have many times been commented upon. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Courts must scrutinize this type of evidence especially carefully; juries must do the same.
Appellee argues that in Jackson the jury asked a question, and not explicitly for a reading of the transcript. This is a distinction of form, not substance. By asking for a reading of the transcript, the jury in the instant case merely showed that they were attentive and remembered the case well enough to know which parts of the testimony would be relevant to an implied question. That question was whether Weber’s and Stoothoff’s identification of Rabb was convincing beyond a reasonable doubt.
It is in this light that the length of the testimony which the jury was asked to have read must be considered. Although we have no evidence before us as to the amount of time required to read approximately forty pages of testimony, the court takes judicial notice that in normal circumstances, the reading would have taken considerably less than an hour. This is not such a delay, which could be held, per se, unreasonable.
The decision we reach is supported by the Standards Relating to Trial by Jury (ABA Project on Minimum Standards of Criminal Justice), § 5.2 and Commentary at 134-38 (Approved Draft 1968):
5.2 Jury request to review evidence, (a) If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the court, after notice to the prosecutor and counsel for the defense, shall have the requested parts of the testimony read to the jury and shall permit the jury to reexamine the requested materials admitted into evidence.
One final comment is in order. Not only did the trial court refuse to have the testimony read to the jury, but it also gave the jury its own summary of the testimony. This technique raises the possibility that the jury may be given an erroneous view of the testimony, and is therefore much less desirable than having the actual transcript read. The American Bar Association Minimum Standards of Criminal Justice specifically rejected this alternative for the reason we have stated. See Comment to Section 5.2(a), Standards, supra. Since the testimony requested by the jury went to the very heart of the case, could not have lead to an unjust emphasis on this testimony to the exclusion of other relevant testimony, and was not unduly long, we hold that it was error for the district court to deny the jury’s request.
The judgment of the district court will be reversed and a new trial ordered.
. The comment on Section 5.2(a) discloses that it was intended to have the judge’s discretion in this situation construed narrowly:
“The thrust of the second sentence of section 5.2(a) is that while the court need not grant every request received from the jury., its, discretion to deny jury review of evidence is strictly limited. The justification for this approach is well expressed in State v. Wolf, 44 N.J. 176, 185, 207 A.2d 670, 675 (1965):
“ ‘When a jury retires to consider their verdict, their discussion may produce disagreement or doubt or failure of definite recollection as to what a particular witness said in the course of his testimony. If they request enlightenment on the subject through the reading of his testimony, . . . the request should be granted. The true administration of justice calls for such action. When there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony of the witness. If ... a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement.’ ”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_numappel
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MOELLER et al. v. SCRANTON GLASS INSTRUMENT CO., Inc.
Circuit Court of Appeals, Third Circuit.
April 27, 1927.
No. 3555.
1. Patents <@=3I0(I) — Bill averring Issuance of patent, after full compliance with statutes, to original and sole inventor, sufficiently alleged grant of patent (equity rule 25).
Bill averring that patentee, who' was first, original, and sole inventor, and entitled to letters patent, having fully complied with statutes, patent was granted, held to sufficiently allege grant of patent, notwithstanding failure to show nonexistence of inventions for two years before application, in view of equity rule 25.
2. Patents <@=>310(2) — Profert in pleading of letters patent made them part of pleadings.
In patent infringement suit, profert of letters patent in pleading made letters themselves part of pleadings.
3. Patents <@=>310(1) — Bill showing patent issue, plaintiff’s ownership, and defendant’s infringement held not demurrable.
In patent infringement suit, bill averring patent issue, patent ownership by plaintiff, and advising defendant wherein there was infringement, held not demurrable.
In Error to the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge.
Suit by August E. Moeller and others, doing business under the firm name of A. E. Moeller) against the Scranton Glass Instrument Company, Inc. On demurrer the bill was dismissed (14 F.[2d] 120), and complainants bring error.
Reversed and remanded, with instructions.
Otto R. Barnett and Pereival H. Truman, both of Chicago, Ill., for plaintiffs in error.
Reese H. Harris (of Knapp, O’Malley, Hill & Harris) and Jerome I. Myers (of Tinkham & Myers), both of Scranton, Pa., for defendant in error. -
Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges.-
BUFFINGTON, Circuit Judge.
The -question involved in.this case is whether the bill in the patent ease complies with equity rule No. 25. The purpose of these rules was to define the issue the plaintiff was to try, and so advise the defendant as to enable him to prepare to meet such issue. This was to be done, as stated in the rule, by “a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statements of evidence.” On demurrer, the court below held the bill did not comply with the rule, and dismissed the bill. Thereupon this appeal was taken.
Now, as the ultimate facts upon which the plaintiff asks relief were, first, grant of a patent; second, ownership thereof by the plaintiff; third, infringement thereof by defendant — the question here involved is the plaintiff's bill, a short and simple statement of these ultimate facts which omits statements of evidence. We select one patent as typical, which the bill thus states:
“Max E. Moeller, being the first, original, and sole inventor of certain new and useful improvements in hydrometer, and being then as such inventor the person entitled by law to apply for and receive letters patent of the United States therefor, did in due form and apt time, and in full compliance with the statutes in such eases made and provided, on, to wit, May 26, 1915, file his application with the proper department of the government of the United States for the grant to him of United States letters patent upon and for the aforesaid invention.
“Thereupon such proceedings were had upon and pursuant to said application, and in due form and in full compliance of all the requirements of law then in force, that on, to wit, March 28, 1916, United States letters patent No. 1,177,128 were lawfully granted to said Max E. Moeller for said invention, which letters patent are now in full force and effect, and which letters patent, or a duly certified copy thereof, are ready in court to be produced as and when this honorable court may direct, and a eopy of which letters patent is attached hereto as Exhibit A and made a part hereof.”
The court below held that:
“The said bill of complaint is defective, in that it fails to set forth that the inventions at issue were not in public use nor on sale ■ in this country for two years before the application for letters patent thereon.
“The said bill of complaint is defective, in that it fails to allege that the inventions at issue were not patented nor described in a printed publication in this or any foreign country for two years before the application for letters patent thereon.”
We shall not discuss the case pro and eon on this question, but confine ourselves to stating why we hold the averments of the bill eomply with the rule. The first issue sought to be raised by the bill was the grant of a patent. Can there be any question that such issue was sufficiently averred? It was averred the patentee was “the first, original, and sole inventor”; theft as such inventor he was “entitled by law to apply for and receive letters patent of the United States therefor”; that “in full compliance with the statutes in such ease made and provided,” he did on May 26,1916, apply therefor; that on “March 28, 1916, United States letters patent No. 1,177;128 were lawfully granted” to him. In addition to these averments the bill made profert of the original letters patent or a certified copy thereof in these words: “Which letters patent, or a duly certified eopy thereof, are ready in court to be produced as and when this honorable court may direct, and a copy of which letters patent is attached thereto as Exhibit A, and made a part hereof.”
What more could be required in averment by demurrer, or in proof at trial ? By familiar principles of pleading, profert made the letters themselves part of the pleadings. If the letters patent themselves, or a certified eopy thereof, were offered and received in evidence, would they not establish the due grant of the patent? Occasionally a file wrapper is put in evidence, for the purpose of showing some procedural step, but in the trial of cases the usual course of court and counsel has been to treat the sheet office copy of specifications, drawings, and claims as evidencing the grant of a patent, without resorting to even the letters patent themselves, or a certified copy thereof. If the letters were offered in evidence, would an objection avail that it should not be received in evidence until the plaintiff had first proved, or offered to accompany by proof, that the invention had not been in public use or on sale in this country for two years, or was not patented or described abroad in a printed publication for two years before application. These are the negative requirements of the statute as to an inventive right to a patent; they are not requirements as to a patentee’s prima facie right of action on a patent granted.
Assuredly such use, sale, or publication was an affirmative fact, to be proved, by a defendant, and not one the plaintiff was called on to negative. His letters patent issued by the government was the ultimate fact on which, as the rule states, “the plaintiff asks relief,” and in no sense could this defense matter, which the defendant had to prove, be aptly described as “an ultimate fact upon which the plaintiff asks relief.” So, also, with regard to the assignment and consequent ownership of the patent. The bill avers that subsequent to the grant of said letters patent No. 1,177,128, “by an assignment in writing duly executed and recorded,” and proferí of which original assignment, or a duly certified copy thereof, plaintiff was vested with “all the right, title, and interest in, to and under said letters patent No. 1,177,128.”
On demurrer, therefore, the court had by these averments and proferís the ultimate facts of patent issue and patent ownership, which affirmatively and sufficiently would, in the absence of countervailing proof, show the plaintiff’s right to recover infringed. And the averments of the bill specified and thus advised the defendant wherein infringement was alleged. The patent was for a hydrometer, and the bill specified two types of hydrometer, which the defendant made and sold in the city of Scranton by the name of “Simplex,” “Kant Stick,” and “Sturdy,” as embodying and infringing certain specified and numbered claims. If these averred facts, patent issue, patent ownership, and patent infringement were proved as averred, and the defendant gave no countervailing defense, undoubtedly the plaintiff pleaded á sufficient case, and was entitled to recover, and in our judgment so construing and applying the rule in question is a step in furthering simplicity of statement, definition of issue, and information to the defendant.
The decree below will therefore be reversed, and the cause remanded, with instructions to reinstate the bill and proceed in due course.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Frank N. RAWLINGS, Appellant, v. NATIONAL MOLASSES CO., a corporation, Orita Land & Cattle Corporation, a corporation, Heber Cattle Feeders, a corporation, and Allied Cattle Feeders, a corporation, Appellees.
No. 21947.
United States Court of Appeals Ninth Circuit.
May 14, 1968.
Collins Mason (argued), William R. Graham, of Mason & Graham, Los Angeles, Cal., for appellant.
William J. Wier, Jr. (argued), Arthur G. Connolly, Sr., Earl Christensen, of Connolly, Bove & Lodge, Wilmington, Del., Herman Selvin, Charles E. Jones, of Kaplan, Livingston, Goodwin, Berko-witz & Selvin, Beverly Hills, Cal., for appellees.
Before HAMLEY and CARTER, Circuit Judges, and SMITH, District Judge.
The Honorable Russell E. Smith, District Judge, District of Montana, sitting by designation.
SMITH, District Judge.
Plaintiff below, appeals from a judgment dismissing his action for patent infringement.
In April, 1965, when this action was commenced, plaintiff and Feed Service Corporation (Feed Service) were the joint owners of a patent. Plaintiff believing that the patent had been infringed, sued the defendant, National Molasses Co., a corporation, and others. Feed Service, for business reasons of its own, would not join the action as a plaintiff and was made a party defendant.
Prior to April, 1966, Feed Service assigned to plaintiff all of its rights in the patent, and by a separate instrument-plaintiff granted to Feed Service the following:
“PATENT LICENSE GRANT
WHEREAS, the undersigned FRANK N. RAWLINGS, of Caldwell, Idaho, now owns the entire right, title and interest in and to the following United States Letters Patents and each thereof:
No. 2,748,001, dated May 29, 1956; and
No. 2,807,546, dated September 24, 1957; and
WHEREAS, FEED SERVICE CORPORATION, a Nebraska corporation, having its principal place of business in Crete, Nebraska, desires to acquire the hereinafter described nonexclusive license rights under said patents and each thereof;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, receipt and adequacy of which are - hereby acknowledged, the undersigned FRANK N. RAWLINGS does hereby grant and convey to said FEED SERVICE CORPORATION, an unlimited, royalty-free, non-exclusive, and non-cancellable right and license to make, use and sell the products and use the methods of said patents and each of them, and to sublicense others so to do. The right and license herein granted shall be effective until said letters patents and each of them shall expire.
IN WITNESS WHEREOF, the undersigned has executed this document at Caldwell, Idaho, this 27th day of December, 1965.
/s/ Frank N. Rawlings
FRANK N. RAWLINGS”
* * *
In April, 1966, after these documents had been executed, plaintiff dismissed the action with prejudice as to Feed Service and filed an amended and supplemental complaint alleging that he was the sole owner of the patents. Feed Service is not now a party. Defendants moved to dismiss the action for the reason that Feed Service was an indispensable party. The district court granted the motion.
The absence of Feed Service as a party does not leave the defendants subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because no matter what the outcome of this litigation there is no substantial risk of the defendants being troubled with actions brought by Feed Service. Feed Service has no capacity to sue strangers for infringement of the patent.
The common law and not the patent law gives an inventor the right to make, use and sell his invention. Patent law gives him the license to sue— the right to exclude others from using the invention. This monopoly right is the unique quality of the patent property right. The owner of the patent may transfer rights in the invention short of the right to exclude others from its use, and may retain for himself that right and the incidental right to collect damages for infringement. No words in the “Patent License Grant” convey any monopoly rights. The word “non-exclusive” appearing in the “Patent License Grant” points in the opposite direction. The right to use a patented device, with or without an accounting or the right to permit others to use it does not imply as a matter of law the right to exclude others. The cited decisions make it quite clear that an owner of something less than monopoly rights may not sue for patent infringement. This result is reached, not as a matter of semantics, but as a matter of policy.
Defendants urge that since under 35 U.S.C. § 262 a joint owner of a patent may make, use and sell the invention without accounting to the other joint owner, Feed Service, which under the “Patent License Grant” may make, use, sell and license others to make, use and sell without accounting, is a joint owner and hence an indispensable party. Since in the determination of problems relating to parties we are no longer concerned with “abstract classifications or obligations”, we simply say that if Feed Service is a joint tenant (which we doubt) it is a joint tenant of something less than the whole patent right (if there can be that kind of a joint tenancy); and that Feed Service did not receive a right to exclude third persons from the use of the invention and is not a potential litigant with the defendants.
Defendants make the further point that the arrangement between plaintiff and Feed Service was accomplished for the sole purpose of permitting plaintiff to bring this action without joining Feed Service as a party plaintiff or defendant. We assume that to be true. Defendants urge that the transaction was a sham. The documents were in fact executed and nothing in the record indicates that as between Feed Service and plaintiff they are either void or voidable. If not, then the purpose underlying their execution is of no concern to the defendants.
Defendants have moved to dismiss the appeal on the ground that there is no final judgment. We find this contention to be without merit and the motion is denied.
The judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent herewith.
. Fed.R.Civ.P. 19(a) (2) (ii).
. 35 U.S.C. § 154, Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 43 S.Ct. 254, 67 L.Ed. 516 (1923); Six Wheel Corporation v. Sterling Motor Truck Co., 50 F.2d 568 (9 Cir. 1931).
. Waterman v. Mackenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923 (1891); Independent Wireless Tel. Co. v. Radio Corporation of America, 269 U.S. 459, 466, 46 S.Ct. 166, 70 L.Ed. 357 (1926); Western Electric Co. v. Pacent Reproducer Corporation, 42 F.2d 116 (2 Cir. 1930) cert. den. 282 U.S. 873, 51 S.Ct. 78, 75 L.Ed. 771 (1930); Agrashell, Inc. v. Hammons Products Company, 352 F.2d 443 (8 Cir. 1965).
. Six Wheel Corporation v. Sterling Motor Truck Co., supra, note 2.
. See, Gayler v. Wilder, 51 U.S. (10 How.) 477, 13 L.Ed. 504 (1850); Crown Die & Tool Co. v. Nye Tool & Machine Works, supra, note 2.
. The fallacy in the defendants’ syllogism becomes apparent when it is translated into slightly more earthy terms. Thus: All judges have a right to use the lavatory in the court house. Bailiffs have a right to use the lavatory in the court house. Therefore, bailiffs are judges.
. See Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 n. 12 (1968).
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_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).
UNITED STATES of America, Appellee, v. Jerry WINSTON, Broome County Aviation, Inc., Commuter Airlines, Inc., and Theodore (Ted) Bell, Defendants-Appellants.
Nos. 1120, 1121, Dockets 76-1436, 76-1527.
United States Court of Appeals, Second Circuit.
Argued April 5, 1977.
Decided June 23, 1977.
Jay Topkis, New York City (Paul, Weiss, Rif kind, Wharton & Garrison, Marvin Wex-ler, M. Tracy Sillerman, New York City, of counsel), for defendants-appellants.
Arthur A. Chalenski, Jr., Asst. U. S. Atty., Syracuse, N. Y. (Paul V. French, U. S. Atty., N. D. N. Y., Albany, N. Y., Mark Vogel, Washington, D. C., of counsel), for appellee.
Before KAUFMAN, Chief Judge, VAN GRAAFEILAND, Circuit Judge, and POLLACK, District Judge.
Of the Southern District of New York, sitting by designation.
VAN GRAAFEILAND, Circuit Judge:
Appellants were convicted of violating § 2 of the Railway Labor Act, 45 U.S.C. § 152, which makes it a criminal offense for a railroad or airline to willfully influence or coerce its employees in matters involving unionization or employee representation. Because of errors in the District Court’s charge to the jury, we reverse and remand for a new trial.
The Facts
Appellant Winston is the sole stockholder of appellant Broome County Aviation, Inc., and his wife is the sole stockholder of appellant Commuter Airlines, Inc. Both corporations are located in Binghamton, New York. Broome provides charter service, sells fuel and does aircraft maintenance. Commuter provides scheduled airline service to several nearby cities. Appellant Bell is the chief pilot for the combined operation, which is operated substantially as a single business entity. The company is relatively small in size, employing approximately two dozen pilots, together with the necessary mechanics and ground staff.
In the Fall of 1974, a representative of the pilots contacted the Airlines and Aerospace Employees Union, Teamsters Local 732, to explore the possibility of organizing a pilots’ unión. At an organizational meeting held on October 2, 1974, a sufficient number of authorization cards were signed to permit the Teamsters to petition the National Mediation Board for an election. The company was opposed to unionization and so indicated in several general meetings with the pilots at which appellants Winston and Bell spoke. Winston also met individually with a number of the pilots, seeking to gain their support. Despite these efforts, three-quarters of the pilots voted for the union, which was certified as the pilots’ representative on December 4, 1974. During the months which preceded and followed the election, seven pilots were discharged — two prior to the election and five subsequent thereto. On July 2, 1975, the indictment herein was filed.
Count One charged all of the defendants with an 18 U.S.C. § 371 conspiracy to violate the Railway Labor Act by threatening reprisal if the pilots organized, by asking the pilots for their ballots and by firing a number of them. Winston and the corporate defendants were charged on seven counts with interfering with the pilots’ choice of representative and on seven counts with coercing against union membership. Each of these fourteen counts was based upon the discharge of a pilot. Appellants were convicted on all of these counts.
The Instructions to the Jury
Although Subsection Tenth of 45 U.S.C. § 152 was enacted in 1934, appellants are the first persons who have been tried criminally for violation of its provisions. The District Judge therefore had no helpful precedents to guide him and patterned his charge in the main upon one which would be appropriate in an N.L.R.A. § 8(a)(1) case, 29 U.S.C. § 158(a)(1). Unfortunately, cases decided under § 8(a)(1) do not reach the subject of criminal intent, and it was in this portion of his charge that the District Judge went astray.
Subsection Tenth proscribes “willful” failure to comply with the Act. The District Judge, however, charged the jury that the defendants were not required to know that their conduct violated the Railway Labor Act or any other law. He said that they only needed to be conscious of what they were doing and that their conduct was willful if it was performed knowingly, intentionally, purposefully, or deliberately, wholly or partly for the purpose of thwarting the objects of the law — to prohibit employers from interfering with employees’ free exercise of their protected rights to choose a representative, to organize and to bargain collectively with their employer.
The District Judge also instructed the jury that, although the Act does not prohibit an employer from discharging an employee, a discharge motivated wholly or partly by intention to punish the employee or retaliate or discriminate against him for exercising a statutorily protected right is prohibited. He charged that, if an employer knowingly and intentionally discharges an employee partly because of union activities and partly because of misconduct or loss of business, there is nevertheless a violation of the law. He said that, “even if there is otherwise a good and legally sufficient reason or justification for discharging an employee, the employer, nevertheless, violates the law by doing so if an intention to interfere with, influence or coerce an employee in exercising or because he had exercised a protected right, plays any part in the Defendant’s motivation.” We have concluded that these portions of the charge were prej-udicially erroneous.
Wilfullness Under the Act
The general rule under the common law was that scienter was a necessary element to be proved in every crime. United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922). “Actus non facit reum, nisi mens sit rea” is a descriptive quotation which garnished many opinions in the days when such Latin embellishments were the vogue. Although Congress has eliminated the requirement of criminal intent for certain offenses, see United States v. Park, 421 U.S. 658, 668, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975), mens rea continues to be “the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). Where an “evil state of mind” is intended to be a prerequisite to guilt, Congress describes it by the use of such terms as “intentional”, “willful”, “knowing”, “fraudulent” or “malicious”. Morissette v. United States, 342 U.S. 246, 264, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
When used in a criminal statute, “[willful] generally means an act done with a bad purpose . . . without justifiable excuse . . . stubbornly, obstinately, perversely . . . United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933) (citations omitted). “An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime." Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). In short, the defendant’s conduct must constitute a “voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976). Although Congress has, in malum prohibitum offenses, sometimes equated willfulness with purposefulness and awareness, as distinguished from negligence or inadvertence, United States v. Ricciardi, 357 F.2d 91, 99-100 (2d Cir., cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540 (1966), we are satisfied that such was not its intention in this instance.
At a hearing on the proposed § 152 amendments held before the Senate Committee on Interstate Commerce on April 12, 1934, a railroad representative objected to the penalty provisions of Subsection Tenth. Responding to these objections, Joseph B. Eastman, Federal Coordinator of Transportation, testified on April 19,1934 as follows:
Mr. Clement is much concerned about this penalty provision, and thinks it would require the presence of attorneys in negotiations between the men and the managements, in order that the railroad officers might have the safeguard of legal advice at all times. There would be no such need.
To abate Mr. Clement’s alarm further, he should note that the penalty paragraph contains the word “willful.” Experience has shown that it is a difficult matter to secure a conviction with that word in a statute and requires an array of most convincing evidence. If he will read the prohibitions to which they apply, I am sure that he will conclude that he can safely brave the dangers of these penalties without a lawyer constantly at his elbow to give him advice.
When questioned by the Committee Chairman as to whether without excising Subsection Tenth as Mr. Clement had recommended, something might be added “to show the liberal intent of Congress”, Mr. Eastman pointed to the word “willful” and stated that “you have to have a most convincing presentation of evidence to secure conviction with it in there.”
The paucity of criminal proceedings under § 152, when contrasted with the active pursuit of civil relief thereunder, strongly supports appellants’ contention that Congress intended criminal sanctions to apply only to the more egregious violations. Although the failure to enforce a statute over an extended period of time does not result in its repeal, District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113-14, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953), the “gloss which life has written upon it”, Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940), indicates in this instance that strict construction of its terms is appropriate. Cf. James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).
Insofar as the charge of criminal conspiracy is concerned, the provisions of the First Amendment lead to the same conclusion. Appellants were charged in the conspiracy count, not only with improper conduct, but also with illegal speech. Although the Supreme Court held in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 616-620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) that the. First Amendment does not preclude restrictions on employers’ speech which constitutes an unfair labor practice, NLRA cases such as Gissel involve civil penalties imposed by experienced labor officials having specialized expertise in the field. See Radio Officers’ Union v. N. L. R. B., 347 U.S. 17, 49, 74 S.Ct. 323, 98 L.Ed. 455 (1954). Here, a lay jury was asked to make an admittedly difficult analysis of the employer’s language, see N. L. R. B. v. Yokell, 387 F.2d 751, 756 (2d Cir. 1967), to determine whether a crime had been committed. See United States v. DeLaurentis, 491 F.2d 208, 213 (2d Cir. 1974). Accordingly, the statute which appellants are alleged to have violated had to be carefully construed so as not to infringe upon their right to protected expression. Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Assuming that statutory impreciseness permitted free choice between strict and liberal definition of the term willful, the trial court was bound to opt for the one which accomplished the statutory purpose with the less drastic impact on First Amendment freedoms. United States v. Robel, 389 U.S. 258, 268, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).
Examination of the term willful in the context of this case, see United States v. Bishop, 412 U.S. 346, 356, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), leads us to the conclusion that more was required to establish appellants’ mens rea than mere consciousness, intention and awareness of what they were doing. They must be found to have acted voluntarily and intentionally to violate a known legal duty. United States v. Pomponio, supra, 429 U.S. at 12, 97 S.Ct. 22; United States v. Bishop, supra, 412 U.S. at 360, 93 S.Ct. 2008. The District Court’s failure to so charge was error.
Motivation for Discharge of Employees
In drawing upon civil cases from the labor relations field for his charge on employer motivation, the District Judge chose those statements of the law which most rigidly circumscribe the employer’s freedom of choice. He instructed the jury that the employer was guilty if an intention to coerce played “any part in the Defendant’s motivation”. Language of this import can be found in our NLRA decisions. See, e. g., N. L. R. B. v. Milco, Inc., 388 F.2d 133, 138 (2d Cir. 1968). We have also said, however, that the issue was “whether the dismissal was in significant part motivated by proscribed [conditions].” N. L. R. B. v. D'Armigene, Inc., 353 F.2d 406, 409 (2d Cir. 1965).
Whatever may be the proper rule in a civil case it must be applied with circumspection where a criminal violation is charged. United States v. Bernstein, 533 F.2d 775, 805-06 (2d Cir. 1976) (Van Graafeiland, J., dissenting), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). “In no one thing does criminal jurisprudence differ more from civil than in the rule as to intent.” J. Bishop, Bishop on Criminal Law, Vol. I, § 286, at 192 (9th ed. 1923). The Railway Labor Act was not intended to interfere with the normal right of an employer to hire and fire, Texas & New Orleans R.R. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 571, 50 S.Ct. 427, 74 L.Ed. 1034 (1930), and appellants have produced substantial evidence in support of their contention that each of the discharged employees was dismissed for a sound business reason. As a general rule, justification under the criminal law means that the defendant had a sufficient lawful reason for acting. Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, 358, cert. denied, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121 (1938). Conduct which is justified is legal conduct. United States v. Barker, 168 U.S.App.D.C. 312, 514 F.2d 208, 230 (Bazelon, C. J., concurring), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Indeed, there is strong support for the argument that, once justification has been established, motivation is immaterial. See W. LaFave and A. Scott, Jr., Handbook on Criminal Law 206 (1972); J. Miller, Handbook on Criminal Law 213 (1934); Robinson, A Theory of Justification, 23 U.C.L.A.L.Rev. 266, 284-87 (1975).
The Supreme Court has had occasion to consider the question of dual motivation in two recent cases. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270-271 n. 21, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Court stated that proof that the denial of a rezoning request was motivated in part by a racially discriminatory purpose did not entitle plaintiffs to recover. The issue, according to the Court, was whether the same decision would have been reached had the impermissible purpose not been considered. “If this were established”, the Court said, “the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose.” In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 285, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), where plaintiff, a teacher, alleged that he was illegally discharged becauseibf conduct which was constitutionally protected, the Court again concluded that the issue was whether the Board “would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.”
We conclude that the proper test by which the legality of the defendants’ conduct should have been determined in the instant case was whether they “would have reached the same decision as to [their employees’ discharge] even in the absence of the protected conduct.” The jury should have been instructed that, if legitimate reasons existed which justified the discharge, the defendants could not be held criminally liable under the Act unless the government has proved that the legitimate reasons alone would not have led to the discharge. The District Court’s instructions concerning partial improper motivation and partial improper intent were confusing and improper and therefore prejudicially erroneous. Cf. Mt. Healthy City School District Board of Education v. Doyle, supra, 429 U.S. at 287, 97 S.Ct. 568.
In reaching our decision to direct a new trial, we are not unmindful of the difficulties which confronted the District Judge in this case of first impression. His problems were not made easier by the failure of defense counsel to take appropriate exceptions. The doctrine of plain error nonetheless mandates reversal. Screws v. United States, supra, 325 U.S. at 107, 65 S.Ct. 1031; United States v. Byrd, 352 F.2d 570, 574 (2d Cir. 1965). In the event the Government sees fit to retry this case, appropriate objection by defense counsel may obviate other alleged errors of lesser import which have been asserted for the first time in this Court. We see no need to consider their merit on this appeal.
Reversed and remanded.
. Section 152 provides in pertinent part as follows:
Third. Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.
Fourth. Employees shall have the right to organize .and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter. No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees any dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions ....
Tenth. The willful failure or refusal of any carrier, its officers or agents, to'comply with the terms of the third, fourth, fifth, seventh, or eighth paragraph of this section shall be a misdemeanor, and upon conviction thereof the carrier, officer, or agent offending shall be subject to a fine of not less than $1,000, nor more than $20,000, or imprisonment for not more than six months, or both fine and imprisonment, for each offense, and each day during which such carrier, officer, or agent shall willfully fail or refuse to comply with the terms of the said paragraphs of this section shall constitute a separate offense. .
. “An act does not make one guilty unless his mind is guilty.”
. See, e. g., Texas & New Orleans R.R. v. Brotherhood of Ry. Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930); Conrad v. Delta Airlines, Inc., 494 F.2d 914 (7th Cir. 1974); Burke v. Compania Mexicana De Aviacion, S. A., 433 F.2d 1031 (9th Cir. 1970); Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, 430 F.2d 957 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 456, 27 L.Ed.2d 440 (1971); Cunningham v. Erie R.R., 358 F.2d 640 (2d Cir. 1966).
. Some legal scholars maintain that a preexisting and protracted failure to enforce a statute creates due process problems analogous to those arising from vagueness in draftsmanship, because of the lack of fair notice or warning to the individual charged with its violation. See, e. g., Bonfield, The Abrogation of Penal Statutes by Nonenforcement, 49 Iowa L.Rev. 389, 415-18 (1964); see also United States v. Insco, 496 F.2d 204, 208-09 (5th Cir. 1974). Because we conclude that the history of nonenforcement supports the interpretation urged by appellants, we need not concern ourselves with that argument.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
FOREMOST INSURANCE CO. et al. v. RICHARDSON et al.
No. 80-2134.
Argued January 12, 1982
Decided June 23, 1982
Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist and O’Con-nor, JJ., joined, post, p. 677.
Arthur H. Andrews argued the cause and filed a brief for petitioners.
Dorsey C. Martin III argued the cause and filed a brief for respondents.
Justice Marshall
delivered the opinion of the Court.
The issue presented in this case is whether the collision of two pleasure boats on navigable waters falls within the admiralty jurisdiction of the federal courts. See 28 U. S. C. § 1333. We granted certiorari to resolve the confusion in the lower courts respecting the impact of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249 (1972), on traditional rules for determining federal admiralty jurisdiction. 454 U. S. 813 (1981). The United States Court of Appeals for the Fifth Circuit held that an accident between two vessels in navigable waters bears a sufficient relationship to traditional maritime activity to fall within federal admiralty jurisdiction. We affirm.
I
Two pleasure boats collided on the Amite River in Louisiana, resulting in the death of Clyde Richardson. The wife and children of the decedent brought this action in the United States District Court for the Middle District of Louisiana, alleging, inter alia, that petitioner Shirley Eliser had negligently operated the boat that collided with the vessel occupied by the decedent. Respondents also named petitioner Foremost Insurance Co., Eliser’s insurer, as a defendant. Jurisdiction was claimed under 28 U. S. C. § 1333(1), which gives federal district courts exclusive jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” Petitioners moved to dismiss, arguing that the complaint did not state a cause of action within the admiralty or maritime jurisdiction of the District Court.
In ruling on petitioners’ motion, the District Court found the following facts to be undisputed:
“(i) One boat was used for pleasure boating, such as boat riding and water skiing, and at the time of the accident the boat was actually pulling a skier on a zip sled;
“(2) The other boat was used exclusively for pleasure fishing and was described as a bass boat;
“(3) Neither boat had ever been used in any ‘commercial maritime activity’ before the accident;
“(4) At the time of the accident neither boat was involved in any ‘commercial maritime activity’ of any sort;
“(5) Neither of the two drivers of the boat were being paid to operate the boat nor was this activity in any way a part of their regular type of employment;
“(6) None of the passengers on either boat were engaged in any kind of ‘traditional maritime activity’ either before or at the time of the accident;
“(7) Neither of the boats involved were under hire in any traditional maritime form;
“(8) There is no evidence to indicate that any ‘commercial activity’, even in the broadest admiralty sense, had ever been previously engaged in by either of the boats in question, and in fact the two boats would have to be classified as ‘purely pleasure craft’, not in any way ‘involved in commerce’, and,
“(9) There was no other instrumentality involved in this accident that had even a minor relationship to ‘admiralty’ or ‘commerce’, i. e. a buoy, barge, oil drilling apparatus, etc.” 470 F. Supp. 699, 700 (1979).
After reviewing decisions of this Court and the Fifth Circuit, as well as relevant commentary, the District Court found that there must be some relationship with traditional maritime activity for an injury sustained on navigable water to fall within federal admiralty jurisdiction. The District Court held that commercial maritime activity is necessary to satisfy this relationship, and granted petitioners’ motion to dismiss the complaint for lack of subject-matter jurisdiction because the collision of these two pleasure boats did not involve any commercial activity.
The Court of Appeals reversed. 641 F. 2d 314 (1981). The Court of Appeals agreed that Executive Jet, supra, and relevant Fifth Circuit decisions establish that “admiralty jurisdiction requires more than the occurrence of the tort on navigable waters — that additionally there must be a significant relationship between the wrong and traditional maritime activity.” 641 F. 2d, at 315. It disagreed with the District Court, however, on the application of this principle to the undisputed facts of this case. Relying on the fact that the “Rules of the Road” govern all boats on navigable waters, and on the uncertainty that would accompany a finding of no admiralty jurisdiction in this case, the Court of Appeals held that “two boats, regardless of their intended use, purpose, size, and activity, are engaged in traditional maritime activity when a collision between them occurs on navigable waters.” Id., at 316.
II
Prior to our opinion in Executive Jet, there, was little question that a complaint such as the one filed here stated a cause of action within federal admiralty jurisdiction. Indeed, the Executive Jet Court begins its opinion by observing that, under the traditional rule of admiralty jurisdiction, “[i]f the wrong occurred on navigable waters, the action is within admiralty jurisdiction.” 409 U. S., at 253 (citing Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me. 1813) (Story, J., on Circuit). See also The Plymouth, 3 Wall. 20, 36 (1866) (“Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance”). Under this rule, an action arising out of a collision between two pleasure boats on navigable waters clearly falls within the admiralty jurisdiction of the district courts. When presented with this precise situation in the past, this Court has found it unnecessary even to discuss whether the district court’s admiralty jurisdiction had been properly invoked, instead assuming the propriety of such jurisdiction merely because the accident occurred on navigable waters. Levinson v. Deupree, 345 U. S. 648, 651 (1953). See also Just v. Chambers, 312 U. S. 383 (1941) (injury to guest from carbon monoxide poisoning in the cabin of a pleasure boat). Cf. Coryell v. Phipps, 317 U. S. 406 (1943). In light of these decisions, we address here only the narrow question whether Executive Jet disapproved these earlier decisions sub silentio.
In Executive Jet, this Court held that a suit for property damage to a jet aircraft that struck a flock of sea gulls upon takeoff and sank in the navigable-waters of Lake Erie did not state a claim within the admiralty jurisdiction of the district courts. In reaching this conclusion, the Court observed that the mechanical application of the locality rule as the sole test for determining whether there is admiralty jurisdiction had been widely criticized by commentators, and that the federal courts and Congress had been compelled to make exceptions to this approach in the interests of justice in order to include certain torts with no maritime locality. The Court determined that claims arising from airplane accidents are cognizable in admiralty only when the wrong bears a significant relationship to traditional maritime activity. 409 U. S., at 268. Given the realities of modern-day air travel, the Executive Jet Court held that, “in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States.” Id., at 274.
The express holding of Executive Jet is carefully limited to the particular facts of that case. However, the thorough discussion of the theoretical and practical problems inherent in broadly applying the traditional locality rule has prompted several courts and commentators to construe Executive Jet as applying to determinations of federal admiralty jurisdiction outside the context of aviation torts. See, e. g., Kelly v. Smith, 485 F. 2d 520 (CA5 1973); Calamari, The Wake of Executive Jet — A Major Wave or a Minor Ripple, 4 Maritime Law. 52 (1979). We believe that this is a fair construction. Although Executive Jet addressed only the unique problems associated with extending admiralty jurisdiction to aviation torts, much of the Court’s rationale in rejecting a strict locality rule also applies to the maritime context. Indeed, the Executive Jet Court relied extensively on admiralty and maritime decisions of this Court and on congressional action extending admiralty jurisdiction to torts with a significant relationship to traditional maritime activity, but with no maritime locality.
We recognize, as did the Court of Appeals, that the Executive Jet requirement that the wrong have a significant connection with traditional maritime activity is not limited to the aviation context. We also agree that there is no requirement that “the maritime activity be an exclusively commercial one.” 641 F. 2d, at 316. Because the “wrong” here involves the negligent operation of a vessel on navigable waters, we believe that it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction in the District Court.
We are not persuaded by petitioners’ argument that a substantial relationship with commercial maritime activity is necessary because commercial shipping is at the heart of the traditional maritime activity sought to be protected by giving the federal courts exclusive jurisdiction over all admiralty suits. This argument is premised on the faulty assumption that, absent this relationship with commercial activity, the need for uniform rules to govern conduct and liability disappears, and “federalism” concerns dictate that these torts be litigated in the state courts.
Although the primary focus of admiralty jurisdiction is unquestionably the protection of maritime commerce, petitioners take too narrow a view of the federal interest sought to be protected. The federal interest in protecting maritime commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaged in commercial maritime activity. This interest can be fully vindicated only if all operators of vessels on navigable waters are subject to uniform rules of conduct. The failure to recognize the breadth of this federal interest ignores the potential effect of noncommercial maritime activity on maritime commerce. For example, if these two boats collided at the mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to whether either boat was actively, or had been previously, engaged in commercial activity. Furthermore, admiralty law has traditionally been concerned with the conduct alleged to have caused this collision by virtue of its “navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters.” Executive Jet, 409 U. S., at 270. The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce.
Yet, under the strict commercial rule proffered by petitioners, the status of the boats as “pleasure” boats, as opposed to “commercial” boats, would control the existence of admiralty jurisdiction. Application of this rule, however, leads to inconsistent findings or denials of admiralty jurisdiction similar to those found fatal to the locality rule in Executive Jet. Under the commercial rule, fortuitous circumstances such as whether the boat was, or had ever been, rented, or whether it had ever been used for commercial fishing, control the existence of federal-court jurisdiction. The owner of a vessel used for both business and pleasure might be subject to radically different rules of liability depending upon whether his activity at the time of a collision is found by the court ultimately assuming jurisdiction over the controversy to have been sufficiently “commercial.” We decline to inject the uncertainty inherent in such line-drawing into maritime transportation. Moreover, the smooth flow of maritime commerce is promoted when all vessel operators are subject to the same duties and liabilities. Adopting the strict commercial rule would frustrate the goal of promoting the smooth flow of maritime commerce, because the duties and obligations of noncommercial navigators traversing navigable waters flowing through more than one State would differ “depending upon their precise location within the territorial jurisdiction of one state or another.” 641 F. 2d, at 316.
Finally, our interpretation is consistent with congressional activity in this area. First, Congress defines the term “vessel,” for the purpose of determining the scope of various shipping and maritime transportation laws, to include all types of waterborne vessels, without regard to whether they engage in commercial activity. See, e. g., 1 U. S. C. §3 (“‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”). Second, the federal “Rules of the Road,” designed for preventing collisions on navigable waters, see, e. g., 94 Stat. 3415,33 U. S. C. § 2001 et seq. (1976 ed., Supp. IV), apply to all vessels without regard to their commercial or noncommercial nature. Third, when it extended admiralty jurisdiction to injuries on land caused by ships on navigable waters, Congress directed that “[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury . . caused by a vessel on navigable water. ...” Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U. S. C. § 740.
In light of the need for uniform rules governing navigation, the potential impact on maritime commerce when two vessels collide on navigable waters, and the uncertainty and confusion that would necessarily accompany a jurisdictional test tied to the commercial use of a given boat, we hold that a complaint alleging a collision between two vessels on navigable waters properly states a claim within the admiralty jurisdiction of the federal courts. Therefore, the judgment of the Court of Appeals is
Affirmed.
The wife and children of the decedent also named respondent June Allen as a defendant. They alleged that Allen was operating the vessel at the time of the collision, and that the decedent’s death was caused by either the negligence of Allen or that of petitioner Eliser. Allen counterclaimed, alleging that the decedent had been operating the boat, and that her injuries were caused by his negligence. The factual dispute concerning whether the decedent or Allen was operating the boat is irrelevant to the jurisdictional issue. However, because of the divergent interests and claims of respondent Allen and the respondent family of the decedent below, we refer only to the decedent’s family when we use the term “respondents” throughout this opinion.
The District Court assumed that the Amite River is navigable at the site of the collision. Although the issue is not free from doubt, it appears from the opinion and the disposition of the Court of Appeals that the court found that the river is navigable at this site although seldom, if ever, used for commercial traffic. This opinion is premised on our understanding that the river at this point is navigable, see Brief for Petitioners 20, but we leave open the question whether petitioners have preserved the opportunity to argue this issue upon further development of facts in the District Court.
Judge Thornberry, concurring in part and dissenting in part, argued that federal admiralty jurisdiction could not be sustained if the river at the site of the accident, although navigable, did not also function as an integral or major “artery of commerce.” 641 F. 2d, at 317.
In addition to noting these examples where strict application of the locality rule would have deprived the courts of admiralty jurisdiction despite a clear connection to maritime activity, the Court noted the difficulties of extending jurisdiction to torts with a maritime locality, but absolutely no connection to maritime activity. See 409 U. S., at 255-256 (disapproving decisions sustaining admiralty jurisdiction over claims by swimmers injured by other swimmers or submerged objects in shallow waters near shore); id., at 256-257 (approving decisions requiring some connection with traditional maritime activity).
Not every accident in navigable waters that might disrupt maritime commerce will support federal admiralty jurisdiction. In Executive Jet, for example, we concluded that the sinking of the plane in navigable waters did not give rise to a claim in admiralty even though an aircraft sinking in the water could create a hazard for the navigation of commercial vessels in the vicinity. However, when this kind of potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity, as does the navigation of the boats in this case, admiralty jurisdiction is appropriate.
Petitioners argue that admiralty jurisdiction in the federal courts is unnecessary to ensure the uniform application of the Rules of the Road to boat navigation because state courts are bound by the construction federal courts give to statutes relating to navigation. Assuming that petitioners are correct, this fact does not negate the importance that Congress has attached to the federal interest in having all vessels operating on navigable waters governed by uniform rules and obligations, which is furthered by consistent application of federal maritime legislation under federal admiralty jurisdiction.
We refer to this language only to demonstrate that Congress did not require a commercial-activity nexus when it extended admiralty jurisdiction. We express no opinion on whether this Act could be construed to provide an independent basis for jurisdiction.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_applfrom
|
G
|
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).
EDDY et al. v. KELBY et al.
No. 153, Docket 20405.
Circuit Court of Appeals, Second Circuit.
July 22, 1947.
Writ of Certiorari Denied Dec. 8, 1947.
See 68 S.Ct. 219.
FRANK, Circuit Judge, dissenting in part.
Samuel Silbiger, for George E. Eddy and in pro per.
Charles M. McCarty, of New York City, for Prudence Bonds Corporation and pro se.
James F. Dealy, of New York City, for Reconstruction Finance Corporation.
George C. Wildermuth, of Brooklyn, pro. se.
Lulu R. Kelby, pro se.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
George E. Eddy and his attorney Samuel Silbiger have appealed from an order awarding compensation in connection with the judicial settlement of the accounts of the Manhattan Company as Trustees of Prudence-Bonds, Fifth and Ninth Series.
The applicants for allowances and the sums requested and awarded were the following :
The appellants have not appealed -from the allowances to Joseph Nemerov, the new Prudence-Bonds Corporation (hereinafter called “New Corporation”) and Prudence-Realization Corporation.
The allowances are payable out of the-Trust Funds securing the Fifth and Ninth. Series bonds. The appellant Eddy is the holder of a $1,000 Fifth Series bond. He did not hold any of the Ninth Series bonds but he did hold bonds of other series which were secured by Ninth Series bonds. The appellant Silbiger is the attorney for Eddy..
The services for which the allowances, were awarded resulted in the recovery from, the Bank of Manhattan on the objections to its accounts, as trustee, of the sum of $1,-781,124.09 for the benefit of the Fifth and Ninth Series Trust Funds, which recovery is subject to reduction by payment of subordinate liens totalling $173,949.88 obtained by the bank on payment of the surcharge. The allowances of $198,233.61 amount to 11.13% of the total recovery of $1,781,124.09.
The earnest argument of Mr Silbiger that the allowance to him of $40,000 is inadequate has prompted a review of his criticism of the award many times since the appeal was heard in order to see whether there could be any fair basis for increasing the allowance.
This court held in Central Hanover B. & T. Co. v. President and Directors of Manhattan Co., 2 Cir., 105 F.2d 130, that the trustees of the various series of mortgages were liable for restoration of assets improperly released by them and that the bankruptcy court had jurisdiction to settle their accounts and award restitution therefor. Prior to that decision, and in September 1938, the New Corporation set up under the Plans of Reorganization retained a firm of accountants to examine the books of the trustees of the various bond issues. As a result of this McCarty, counsel for the New Corporation, advised the court on October 28, 1938 that the Trustee of the Seventh Series had permitted withdrawals of large sums of cash, while mortgages in the trust fund were in default in the payment of principal, and that the same conditions might exist in some of the other series. This investigation seems to have been the basis for the surcharges of the trustees of the various series of bonds, including the Fifth and Ninth, involved in the case at bar.
After our decision in the Central Hanover case, cited above, the trial judge, who had directed the appeal from his order denying jurisdiction in the district court by the New Corporation — which resulted in that decision — requested the New Corporation and the trustees of the debtor to file objections to the accounts jointly. The objections were filed on October 2,1939 and were prepared by McCarty, on behalf of the New Corporation, and by Judge Kelby, one of the trustees of the debtor; by Wildermuth, the attorney for the trustees; and by Dealy, the attorney for the Reconstruction Finance Corporation. They were specific, related to alleged unlawful substitutions and withdrawals of cash and other collateral from the different trusts and furnished the details for the attack upon the accounts of the various series of bonds. The affidavit of Mr. Streeter, the president of the New Corporation, verified October 28, 1938, and filed in the Central Hanover record (p. 58) had disclosed withdrawals of cash in the Seventh Series in violation of the terms of the trust instrument and stated that a preliminary investigation indicated that a similar condition might exist in some of the other eighteen series of bonds.
It appears from the foregoing that the bases for the claims of restitution by the trustees of the various series of bonds were primarily unearthed and chiefly developed by the accountants and the counsel for the New Corporation. Silbiger and Nemerov added their support of the claims for restoration of the trusts to that of the others but the chief burden in preparing for trial the claims against the Manhattan Company as trustee of the bonds of the Fifth and Ninth Series, and in conducting the trial, was borne by McCarty and Judge Kelby. The same thing was done in Manufacturers Trust Co. v. Kelby, 2 Cir., 125 F.2d 650, and Brooklyn Trust Co. v. Kelby, 2 Cir., 134 F. 2d 105. In Central Hanover B. & T. Co. v. President, etc. of Manhattan Co., 2 Cir., 105 F.2d 130, the trustees for the debtor took no part, but McCarty representing the New Corporation, and Milbank Tweed & Hope and Larkin Rathbone & Perry representing trustees of various series of bonds contended that jurisdiction over the claims for restoration of the trusts was in the district court. Silbiger also appeared on the appeal and gave excellent support to those contentions but it would be extravagant to say that in the Central Hanover appeal his brief in any sense won the day. The New Corporation had been directed by the court to appeal and counsel from most experienced and eminent law firms were helping to maintain the claim of jurisdiction in the bankruptcy court and McCarty was active and efficient.
One of the chief contributions of Sil-biger to the success of the claims for restoration of the trusts in the Fifth and Ninth Series is said to have been his insertion of a point in his brief on appeal for the allowance of interest on the claims. The contention that interest should be allowed on the claims had been presented before the Master and the District Judge by the New Corporation, the trustees for the debtor and Mr. Nemerov, but after it was overruled and they had appealed from that decision, they did not press the point relating to interest as a separate one and cite authorities — as did Silbiger. He is entitled to consideration because of this, although the other parties seem to have preserved their rights. On the other hand, it does' not appear that Silbiger pressed the matter before the Master. The foundation for an award of interest was laid by all parties and the 3% finally allowed seems to have been the result of the contentions of McCarty, Wilder-muth, Nemerov and Dealy, as well as of Silbiger, after the decision of this court in President and Directors of Manhattan Co. v. Kelby, 147 F.2d 465, 479, that some interest should be allowed. In any event the special service of Silbiger in insisting at all times upon an award of interest, though important, neither consumed much time nor introduced novel arguments, and his claim to receive $105,000 therefor was all out of proportion to his deserts in the premises.
The result of the foregoing is that many persons at various stages contributed to the final award of restorations of principal and interest, and we cannot say that the allowance to Silbiger of such a substantial sum as $40,000 was insufficient and clearly erroneous. It is to be remembered that Nemerov, an experienced attorney who represented numerous bondholders and took part in all the litigations that Silbiger appeared in — except the Central Hanover case —received but $30,000, has not appealed, and is apparently content. Silbiger’s work was excellent, but his award is substantial and seems adequate.
Silbiger has appealed from allowances to the Estate of Judge Kelby, to McCai'ty and Wildexmuth. In connection with those allowances he made the following statement in his affidavit (Appendix, p. 242): “5. It is deponent’s considered opinion that a reasonable fee for the services rendered by all counsel in the recovery of $1,300,000.00, is $285,000.00, and that for his participation in such services, the fair and reasonable value of deponent’s services is $95,000.00, and that therefore, the limit that should be equitably apportioned among the other counsel entitled to compensation, should not exceed $190,000.00. For his services in obtaining the additional $481,000.00, the fair and reasonable compensation that should be awarded to deponent is $105,000.-00.”
From the above it appears that the aggregate 'amount which Silbiger said would be reasonable compensation for the other parties was far more than the $145,000 which the Estate of Kelby, McCarty, Nem-erov and Wildermuth were allowed in the aggregate. He made no objection to' the larger sxxms asked for and his appeal from the awards to them must be because they were granted sums relatively disproportionate to those which he received.
The allowance to McCarty was supported not only by his own proofs but by such disinterested opinions as those of the Reconstruction Finance Corporation. Likewise, Lyeth, the well known coxxnsel for the defeated bank, expressed the following view: “The Bank,makes no objection to the application of Mr. McCarty. * * * From my personal observation as the attorney who was beaten I testify without hesitation that Mr. McCarty contributed to my defeat more than all the counsel in the case put together.” There can be no doubt that the award to McCarty was justified.
The allowance to the Estate of Judge ’Kelby was for services in connection with the litigation with the Brooklyn Trust Co., 2 .Cir., 134 F.2d 105, and the trial of the case against the Manhattan Co. in which he acted as leading coxxnsel (147 F.2d 465), and the proceeding by Manufacturers Trust Co. v. Kelby, 125 F.2d 650, in which he was one of the trustees of the debtor. In the case against the Manhattan Co. (147 F.2d 465) the appeal was not heard until after his death. He assisted in preparing the original objections to the accounts and was chief counsel at the trial. Under the circumstances and in view of the amount realized and the protracted struggles to obtain it, it cannot be said that the award to his estate was without substantial basis. The same thing is true of the award to Wildermuth who argued the appeal for the trustees (reported in 147 F.2d 465) and performed other important services in connection with the litigation against the Manhattan Co.
For the above reasons the decree appealed from is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_numresp
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Tony Joe GALE, Appellant, v. Dick MOORE, Chairman, Missouri Board of Probation and Parole, Bill Duncan, Carolyn V. Atkins, Appellees.
No. 84-2011.
United States Court of Appeals, Eighth Circuit.
Submitted April 26, 1985.
Decided May 31, 1985.
Wilson Phillips, Jr., Kansas City, Mo., for appellant.
George W. Cox, III, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
PER CURIAM.
Appellant Tony Joe Gale appeals from a final order entered in the District Court, 587 F.Supp. 1491, for the Western District of Missouri dismissing his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(d). For reversal Gale contends that the district court erred in dismissing the complaint as frivolous and that the State of Missouri has denied him equal protection by creating different standards of parole for sexual offenders than that required of the rest of the prison population. We modify and affirm.
Gale is serving a ten-year sentence at the Missouri Department of Corrections for his conviction for sodomy, after which Gale is to serve two concurrent five-year sentences for additional sodomy and rape convictions.
Gale, whose petition for parole was rejected by the Missouri Board of Probation and Parole, filed this section 1983 action seeking a review of the last fifty paroles granted by the Board, the removal of the present members, a mandamus forcing the Board to demonstrate to the court why his parole was not granted and monetary damages from the individual Board members. In short, Gale contends that the Board has violated his constitutional rights by denying him parole because he is a sexual offender.
On due process considerations, the district court dismissed the complaint as frivolous because Gale had not established a liberty interest in parole protected by the due process clause.
In Parker v. Corrothers, 750 F.2d 653 (8th Cir.1984), this court held that, “... although there is no constitutional right to parole, a protected liberty interest may be created by the statutes governing parole in a given jurisdiction.” Id. at 655 (citing Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7-11, 99 S.Ct. 2100, 2103-05, 60 L.Ed.2d 668 (1979)).
This court concluded that there are two standards which determine whether a parole statute creates a protected liberty interest: (1) does the statute contain particularized substantive standards or criteria which significantly guide parole decisions; and (2) does the statute use mandatory language similar in substance and form to the Nebraska statute’s language at issue in Greenholtz. Parker, 750 F.2d at 661.
Missouri’s parole statute provides in part: “When in its opinion there is a reasonable probability that an inmate of a state correctional institution can be released without detriment to the community or to himself, the board may in its discretion release or parole such person.” Mo. Rev.Stat. § 217.690 (1983) (emphasis added).
The discretionary language was added in response to the Eighth Circuit’s opinion in Williams v. Missouri Board of Probation and Parole, 661 F.2d 697, 699 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982), in which the Eighth Circuit concluded “that the Missouri law providing that when the statutory and regulatory guidelines are met the inmate shall be released on parole gives rise to the same protectable entitlement as the Nebraska scheme providing that the prisoner shall be paroled unless certain findings are made.” Id. at 699 (emphasis in original). Missouri’s statute as reworded does not create a protected liberty interest in parole (i.e., the regulations do not mandate release on parole when certain criteria are met or establish an entitlement to parole). They merely provide guidelines enacted to assist in the exercise of the Board’s discretion.
However, in Green v. Black, 755 F.2d 687, 688 (8th Cir.1985) (per curiam), this court noted that even when statutes do not give rise to a protected liberty interest, a protected liberty interest may arise where particular regulations, practices or customs have been formally utilized through such devices as handbooks or inter-office memoranda or other standardized customs which limit the Board’s discretion. Id. at 688. But in the case at bar Gale has failed to point to any such customs, regulations or practice. Furthermore, despite his assertion that he could point to such customs, if he were given a chance to develop a record, it is far from clear that he would qualify for parole under the applicable policy guidelines used by the Missouri Parole Board for sex offenders, as set out in Green v. Black, 755 F.2d at 688-89.
The case at bar was decided in the district court and appellate briefs were written before Green was decided. We are not told the date of Gale’s convictions. From some material in the record we may speculate that he was convicted in 1979. The record does not reflect whether at the time of any parole hearing criteria similar to those set forth in Green were in effect, or whether subsequent to the filing of this suit in 1983 any further parole proceedings have transpired. We are told in the briefs, but not from the record, that appellant has successfully completed a special program for Missouri sex offenders.
In light of these recent developments and the possibility that a state of affairs now exists that differs extensively from that in existence at and before presentation to the trial court, we are constrained to hold that while the district court did not abuse its discretion in dismissing the action, we should make clear that the dismissal should be without prejudice to such new action, if any, as may appear to be appropriate in light of actions of the Missouri Board of Parole, if any, subsequent to appellant’s last amended pleading dated January 30, 1984.
Likewise, on the present record, there is no merit in Gale’s equal protection challenge. Legislative classifications regarding prisoners and parole ordinarily do not involve suspect classifications or fundamental rights. Therefore, to be valid, such classifications need only to be rationally related to a legitimate governmental purpose. Frazier v. Manson, 703 F.2d 30, 33-34 (2d Cir.), cert. denied, — U.S.-, 104 S.Ct. 339, 78 L.Ed.2d 308 (1983); Young v. United States Parole Commission, 682 F.2d 1105, 1109 (5th Cir.), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 517 (1982). The statute’s goal of preventing sex crimes through rehabilitation and deterrence apparently constitutes a rational basis and justifies the classification which may have been given thereunder. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. at 8, 99 S.Ct. at 2104.
Finally, it is clear that affirmance of the dismissal of the damage claims against the Parole Board members is indicated. Parole officers are entitled to absolute immunity while performing their official duties which, according to Gale’s allegations, they were doing. Evans v. Dillahunty, 711 F.2d 828, 830-31 (8th Cir.1983).
From what has been said, it follows that the judgment of dismissal is modified so as to be without prejudice to any similar cause of action arising in whole or in part out of facts or activities subsequent to January 30, 1984 and relating to appellant’s parole eligibility, and so modified the judgment of dismissal is affirmed.
. The Honorable Scott O. Wright, United States District Judge, Western District of Missouri.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMPANIA DE VAPORES INSCO, S.A., The Baloise Marine Insurance Co., Ltd., The Chrysler Corporation, Compania Importadora de Autos y Camiones, S.A., and Compania de Autos y Transportes, S.A., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Guy A. Thompson, Trustee, Missouri Pacific Railroad Company and Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, Appellees.
No. 15770.
United States Court of Appeals Filth Circuit.
April 20, 1956.
Rehearing Denied May 28, 1956.
Benjamin W. Yancey, New Orleans, La., Terriberry, Young, Rault, & Carroll, Edward S. Bagley, New Orleans, La., of counsel, for appellants.
C. Ellis Henican, Leonard B. Levy, Kalford K. Miazza, New Orleans, La., Dufour, St. Paul, Levy & Marx, Miazza & Drury, Henican, James & Cleveland, New Orleans, La., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.
RIVES, Circuit Judge.
This appeal is taken from the district court’s judgment exonerating appellees, as common carriers, from any liability for damage to 150 Chrysler Corporation automobiles, owned and insured by appellants, which had been shipped from Detroit, Michigan, to Westwego, Louisiana, and were being stored “on free time” in appellees’ Westwego warehouses awaiting export by ocean carrier to Cuba on April 4, 1952, when a severe windstorm struck the area, causing very extensive damage to the warehouses and the cars stored within.
The ultimate factual issue of whether the damage to the shipment was caused by an “act of God”, within the provision of the bill of lading exempting appelleecarriers from liability, was tried to the district court, sitting without a jury, and the court relieved appellees from liability upon subsidiary findings that (1) the April 4, 1952 weather disturbance was either “a small tornado” or a “line squall with tornadic characteristics”, and was not the type disturbance which builders and architects “usually anticipate” in the design and construction of buildings in this area, and (2) the warehouses were in “reasonably good condition” prior to the storm and a “reasonably prudent inspection” revealed no “apparent deterioration”, so that there was no negligent maintenance of the warehouse facilities by appellees contributing to the damage which would justify the recovery sought.
Appellants have invoked our duty of an extensive and laborious factual review by candid assertions that any “fair reading” of this voluminous record will reveal the trial court’s findings as “clearly erroneous”, and will prompt our reversal upon a “definite and firm conviction that a mistake has been committed”, within the rule of McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, and United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. In effect, they insist that the trial court, while acknowledging the guiding principles, has failed in their application to the instant proof to exact that high obligation from common carriers to safeguard property entrusted to their care which the authorities require.
Appellees insist, however, that any disturbance of the judgment would be inapropos, because appellants admittedly do no attack the rule relied upon; and the contested findings, making due allowance for the trial court’s credibility advantage in resolving conflicting testimony, are amply supported by the proof.
We agree with appellants and the district court that appellees, in order to exonerate themselves from liability for the damage, were required to prove not only that the “line squall” constituted an “act of God” within the exemption from liability provision of their bill of lading, but also that they were guilty of no negligence in the construction and maintenance of the warehouses which contributed to causing the damage. For by its very definition, an “act of God” implies “an entire exclusion of all human agency” from causing the loss or damage. Both parties rely mainly upon Louisiana decisions as controlling, appellants as supporting their contention that appellees had the burden of proof throughout, while appellees interpret them as requiring exoneration upon proof of an “act of God” within the ex-emptive proviso of their bill of lading. We think it unnecessary, however, for us to resolve this asserted conflict in local law, for notwithstanding any contrary language in the Supreme Court of Louisiana’s opinion in the National Rice Milling Co. case, supra, it seems to us that the issue of which party properly has the burden of proof to sustain a recovery under this federal statute, Carmack Amendment, Title 49 U.S.C.A. § 20 (11), is governed by federal law, rather than by any state rule purporting to fix the onus of proof.
As heretofore stated, however, we think appellees were properly charged with the burden of proof throughout, but in i any event we regard this inquiry ■as purely academic upon this record, for decision here does not turn upon the burden of proof, but .upon whether the record as a whole supports the district court’s '.finding that appellees were free from negligence contributing to cause the damage, or whether that finding should be reversed as “clearly erroneous.”
Almost any inclemency of weather causing property damage is an “act of ,God,”' in a limited sense, so that the problem is not solved 'by simply relying upon the conflicting testimony of experts as to whether this particular disturbance should technically be characterized as a “line squall”, or “line squall with tornadic characteristics.” From a realistic standpoint, we think decision in this type controversy should turn not upon technical; meteorological definitions, but upon the issue of whether the disturbance causing the damage, by whatever term it is described, is of such unanticipated force and severity as would fairly preclude charging a carrier with responsibility for damage occasioned by its failure to guard against it in the protection of property committed to its custody.
Thus far, this Court is substantially in agreement with the district court as to the controlling principles involved. The majority, however, are convinced that this record presents for review only a routine factual dispute, in which the district court’s acceptance of that portion of the proof tending to support its conclusion that the damage resulted solely from an act of God, within the exemption from liability provision of the bill of lading, and without contributing fault upon appellees’ part, is not reversible as “clearly erroneous.” Rule 52(a), Fed. Rules Civ.Proc., 28 U.S.C.A. Judge Rives is convinced that the more credible and convincing proof fails to show this weather disturbance was of such unanticipated and uncommon force and severity for the New Orleans area as would justify exonerating appellees, with their high obligation as common carriers toward protection of property in their custody, from liability based upon their contributing fault through the inadequate construction and negligent maintenance of these warehouse facilities prior to the storm, which he thinks is revealed by the testimony and particularly by the photographic proof. He would, therefore, reverse the district court’s findings exonerating appellees from liability in this instance as “clearly erroneous.”
In view of the majority conclusion, the judgment is
Affirmed.
APPENDIX
Appellees’ weather expert, Nash C. Roberts, Jr., testified, in part, that there was a definite relationship between the formation of line squalls, thunderstorms, and tornadoes, all these weather disturbances being precipitated by unstable atmospheric conditions; that tornadoes or cyclones are generally considered extreme low pressure systems with a counterclockwise rotation, and often reach a velocity of 300 or 400 miles per hour; that “line squalls” are composed of a series of thunderstorms of severe velocity and often have tornadic potential, though a “line squall” and “a tornado”, meteorologically speaking, are not the same; that “line squalls” usually have wind velocity of less than 75 miles per hour, though occasionally a severe line squall will get up to from 90 to 120 miles per hour, whereas tornadic velocity has been recorded as high as 500 or 600 miles per hour; that he recalled the weather disturbance on April 4, 1952, and had heard at that time the “characteristic roar that is associated with tornadoes”; that he inspected the damage the following morning near the Huey Long Bridge and considered it “devastating”, and characteristically similar to that caused by a tornado, leaving a path “roughly a mile wide * * * that was terribly damaged”; that he considered the line squall as displaying “tornadic characteristics” because there was evidence of counterclockwise rotation from the fact that the Gretna radio station tower was somewhat twisted and bent, and the debris from the Huey Long Bridge was also “rolled” to some degree; and in addition there was evidence of “skipping” along its path; that taking all factors into consideration, he had reached the conclusion that the maximum velocity of the wind in the direct path of damage actually exceeded 100 miles per hour; that (on cross-examination) he understood the Weather Bureau of New Orleans had “officially classified this (’52 disturbance) as a (line) squall and not * * * a tornado”, and that its report stated that it did not cut a path “in the sense a tornado cuts a path”, but that he did not agree with the report for the reasons previously stated, viz.: because of the extensive damage within a well defined one mile area, with some evidence of counterclockwise rotation, explosive damage, sharp dips and rapid rises on barographs not even in direct path of damage, etc.; that he knew that the weather report was made by a climatologist after making an investigation, but that he entertained a different professional opinion from that weather bureau employee (Mr. Ralph Sanders) as to the severity of the storm, which he considered as exhibiting “tornadic characteristics”, as evidenced by “skipping” and other indicia previously summarized.
Appellants, meteorologist, Alfred H. Glenn, gave contrary testimony to the effect that the damage was caused by “a severe line squall” with velocity “in the vicinity of 90 to 100 miles per hour”, and he saw no evidence whatsoever of tornadic winds; that wind velocity in a tornado exceeds that in a line squall considerably, a tornado’s velocity ranging between 300 and 800 miles per hour and the velocity of a “line squall” only infrequently attaining 100 miles per hour; that the maximum wind velocity of the April, 1952, disturbance, as recorded on the Huey Long Bridge anemometer was 91 miles per hour, which might vary “plus or minus 20 %” from the wind velocity at the damaged area on the Westwego wharf; that he neither saw, nor do the weather bureau reports show, any reliable evidence of tornadic rotation, “skipping”, or explosive damage which would justify characterizing the storm as a tornado, and in his opinion the photographic exhibits did not justify any such conclusion; that this April, 1952, storm was of approximately the same velocity and severity of previous hurricane winds experienced in the New Orleans area of from 92-100 miles per hour, and he felt the weather bureau had properly characterized this disturbance officially as a “line squall”; that at about 100 M.P.H. velocity any wind would have a “roar” or hum to it, not necessarily identifying it as a tornado; and that the path of damage was not any conclusive evidence that a tornado occurred, since tornadoes describe various paths, some of which are erratic, and a “line squall” itself will exhibit strong gusts of wind, successive increases and decreases in wind velocity, etc., and he felt the weather bureau report, stating that the path of damage “was not indicative of a tornado”, was justified.
Typical of the defensive testimony, offered by appellees to negative appellants’ contentions as to the faulty construction and deterioration of these warehouses, is that introduced through their witnesses, Huey, Lytle and Pennybaker. Huey testified that the warehouses were of a type construction frequently encountered in the New Orleans area, and though he found the usual evidences of decay therein (such as some dry rot, etc.), such partial deterioration was not uncommon in that locality for that class and type structure, and did not prohibit its adequacy to withstand the usual “heavy windstorms” normally experienced in that area; that (on cross-examination) the warehouse buildings did provide some rigidity of resistance to west winds, the direction from which the storm came, in that they had “knee braces” for each vertical post, i. e. 4 x 4 “knee braces” to each post; that the vertical reinforcing posts in the warehouses were “toenailed to the flooring” and were not secured with bolts or in any other way except for the diagonal “knee braces”; that the uprights and studs, etc. were also “toenailed”, and the sills were nailed to the floor, with the walls of the warehouses constructed from corrugated iron.
Lytle testified that he could not remember how long before the storm he had made a wharf inspection, but his maintenance crew had been on the wharf the day before; that, in his opinion, the wharf was in “good condition” before the storm, and he did not know of any “dry rot” or “termite damage” to the “superstructure”, though there was always some deterioration to the substructure, i. e. beneath the floor, which caused a “continuous maintenance problem”, but this portion of the warehouses was not damaged by this storm; that some additional anchorages and fastenings have been added in the reconstruction of the wharf since the April, 1952, storm, in that the two rows of posts on both sides have been bolted to the caps in the substructure, and Teco fasteners have been added at the top of the column, which' changes should make it more, secure and improve it considerably, but that its construction at the time of the storm did not render it “weak and insecure”, it then being “in good shape to stand a fairly severe windstorm” of about “90- miles an hour”; that “as much as 80%” of the $8,000 per month average allotment for, wharf and warehouse maintenance was expended for repairs to the wharf's substructure, rather than for maintenance of the roof and shed where the actual-damage occurred.
Pennybaker testified that, from his one or two inspections for a period of from six months to a year before the storm, he found the wharf “generally in good condition”; that some posts showed evidences of decay, but they were generally spliced or replaced, and there was some deterioration to the substructure which was corrected as it developed and the decking (flooring) had failed from time to time due to decay or excess loading, at which time it was replaced, so that he would say that about the time of the storm the wharf was in a state of “about 75 %” good condition or repair. On cross-examination, the witness refused to acknowledge that he knew of any instances where the warehouse posts actually came loose and hung free without fastening, but admitted that occasionally they were hit by trailers or stevedoring tractors, and some of them did show partial dry rot or decay at the bottom, but these were very few and were being replaced “as rapidly as possible”; that all the warehouses were typically “light mill type construction.”
Among appellants’ main witnesses were the elder McKee and Blessey. McKee testified that he had had some previous experience observing the decayed condition of these same warehouses from having been employed to survey great quantities of flour which had become badly infested by weevils and moths there in 1947 and 1951, and had then checked the wharves for evidences of infestation which might have originated in them and caused the damage to the flour shipments; that deterioration (i. e. dry rot, decayed timber, holes in the walls, etc.) was “very prevalent” and many of the posts which were supposed to hold the roof of the wharf up were either not straight or had been knocked out of line; and that the color slides and photographs taken by his son, showing misalignment of posts, holes in the walls, rotted and decayed conditions, etc., in his opinion, were “representative of the condition of the wharf befoi e the storm.”
Blessey testified that he had made a study of the structure and the design of the Westwego warehouses, with particular reference to their ability to withstand this severe type west-to-east wind at the time of the April, 1952, storm; that the warehouse type structure was normally considered a “temporary structure” with its corrugated walls, inadequate nailing, etc.; and that he considered the warehouses designed as exhibiting a “temporary structure” because “toenailing” was considered inadequate design for “permanent type structures”, and with holes in the walls and dry, rotted timber its resistance to winds of “significant” velocity was further reduced, especially its resistance to crosswise winds; that (on cross-examination) his computations were based on the assumption that the warehouses were new structures, i. e. in good state of repair, and with that assumption he applied a 100 M.P.H. wind stress to it, which would pull out the nails and knee braces, the critical spots in its design; and, in fact, at that wind velocity the nails would be loaded up to three or four times their normal stress resistance.
Rehearing denied: RIVES, Circuit Judge, dissenting.
. That provision, reads:
“No carrier * * * shall be liable for any loss * * * or damage * * * or delay caused by the act of God,” etc.
. Specifically, the court concluded from these and other subsidiary findings in pertinent part as follows:
“Where damage to a shipment is caused by an Act of God, the carrier is excused thereby from liability for the loss, unless the carrier is concurrently negligent. Memphis & O. R. Co. v. Reeves, 10 Wall. 176, 77 U.S. 176, 19 L.Ed. 909.
“A tornado or a line squall with tornadic characteristics (such as the weather disturbance, the proof of which was established in this case) is to be classed among the Acts of God which no human power can prevent or avert. Mistrot-Callahan Co. v. Missouri, K. & T. Railroad Co. of Texas, Tex.Civ.App., 209 S.W. 775; Western Millers Mut. Fire Ins. Co. v. Thompson, D.C., 95 F.Supp. 993, 997.
“Where a carrier proves, by a preponderance of evidence, that an alleged loss resulted from an Act of God (such as the weather disturbance that occurred in this case) and the evidence further shows that the carrier was in no way negligent, the carrier is not liable for the said loss. Memphis & Charleston Railroad Co. v. Reeves, 10 Wall. 176, 19 L.Ed. 909; Morrison v. Davis, 20 Pa. 171; Denny Co. v. New York Cent. R. Co., 13 Gray 481.
“After the establishment of the defense of an Act of God, the carrier has the burden of proceeding by establishing by a preponderance of the evidence the absence of any negligence on its part which might have contributed to the occurrence of the loss or damage. East Tennessee, V. & G. R. Co. v. Johnston, 75 Ala. 596; Agnew v. The Contra Costa, 27 Cal. 425; McGrath v. Northern P. R. Co., 121 Minn. 258, 141 N.W. 164, L.R.A.1915D, 644.
“The defendants in this case have proved to the satisfaction of this Court that at the time of the aforementioned weather disturbance the warehouses of the TP-MP Terminal were sound, and that the condition of the warehouses did not in any wise contribute to the damage to or destruction of the said warehouses by the severe wind which struck them on the morning of April 4, 1952. Accordingly, the defense of an Act of God, namely, the wind disturbance that defendants proved to have occurred was the proximate and sole cause of the damage to or destruction of plaintiffs’ automobiles, trucks and accessories.
“Consequently, the defendants are excused from their failure to have delivered the said automobiles, trucks and accessories in the same good order in which they were received at the point of shipment.”
. Indeed, appellees insist that the trial court’s conclusions of law, heretofore quoted in footnote (2), were more favorable to appellants than they should have been, in that they actually placed a greater burden upon them than they were required to discharge under the law. Specifically, they contend that, after making their prima facie showing below that the weather disturbance causing the damage constituted an “act of God” within the exemptive provision of their bill of lading, the burden should then have been placed upon appellants to establish that tile warehouses were inadequate and negligently maintained, which proof appellees assert appellants failed to introduce.
. See Texas & Gulf S.S. Co. v. Parker, 5 Cir., 263 F. 864, 868; Chicago & E. I. R. Co. v. Collins Produce Co., 7 Cir., 235 F. 857, 863; The Schickshinny, D.C., 45 F.Supp. 813, 817-818; Cf. American Sugar Ref. Co. v. Illinois C. R. Co., D.C., 103 F.Supp. 280, 286.
. 9 Am.Jur., Carriers, § 708, p. 850 et seq.; 13 C.J.S., Carriers, § 80, p. 159.
. Appellants cite Article 2754 of the LSA-Rovised Civil Codo, National Rice Milling Co. v. New Orleans & N. E. R. Co., 132 La. 615, 652, 61 So. 708; and Lehman Stern & Co. v. Morgan’s L. & T. R. & S. S. Co., 115 La. 1, 8, 38 So. 873, 70 L.R.A. 562.
Appellees seek to distinguish the National Rice Milling Co. case, supra, as inapplicable on tho question of burden of proof, and rely upon American Cotton Co-operative Ass’n v. New Orleans & Vicksburg Packet Co., 180 La. 836, 157 So. 733; E. Borneman & Co. v. New Orleans M. & C. R. Co., 145 La. 150, 81 So. 882.
. Southern Express Co. v. Byers, 240 U.S. 612, 614, 36 S.Ct. 410, 60 L.Ed. 825; Southern Ry. Co. v. Prescott, 240 U.S. 632, 640, 36 S.Ct. 469, 60 L.Ed. 836; Chicago & Northwestern Ry. Co. v. Davenport, 5 Cir., 205 F.2d 589; Thompson v. James G. McCarrick Co., 5 Cir., 205 F.2d 897, 900; Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., 6 Cir., 188 F.2d 343.
. Possibly the district court was correct in stating to counsel during a colloquy upon this issue below that the conflicting and inconsistent language of tho decisions stems from the use by many courts of the phrase, “burden of proof”, in lieu of the more precise phrase, “burden of going forward with the evidence.”
. We consider it unnecessary to amplify this divergency in the Court’s view by any extended analysis of the expert testimony as to the technical difference between line squalls, tornadoes, hurricanes, and the definition within which this particular disturbance is more appropriately embraced, from the eonflieting testimony as to the damage and aftermath indicia recounted at such length at the trial. Excerpts of the material testimony, both as to the severity of the disturbance and the construction and maintenance of appellees’ warehouses, are hereinafter separately abstracted as an appendix to this opinion.
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_counsel1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
FEMINIST WOMEN’S HEALTH CENTER, INC., a Florida non-profit Corporation, Plaintiff-Appellant Cross-Appellee, v. Mahmood MOHAMMAD, M. D., et al., Defendants-Appellees Cross-Appellants.
No. 77-1924.
United States Court of Appeals, Fifth Circuit.
Dec. 20, 1978.
Thornberry, Circuit Judge, filed opinion specially concurring.
See also, D.C., 415 F.Supp. 1258.
Betty Owen Stinson, Steven L. Seliger, Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.
Nadine Taub, Women’s Rights Litigation Clinic, Joan Friedland, Newark, N. J., amicus curiae for American Public Health Assoc., Nat’l Abortion Rights Action League & American Civil Liberties Union.
Murray M. Wadsworth, M. Stephen Turner, Tallahassee, Fla., for Curry.
John C. Cooper, Tallahassee, Fla., for Griner.
J. Lewis Hall, Jr., Anne C. Booth, Tallahassee, Fla., for Messer.
E. Harper Field, Frank J. Santry, Tallahassee, Fla., for Mohammad, Curry, Crane, and Griner.
Michael I. Schwartz, Stephen Marc Slepin, Tallahassee, Fla., for Palmer.
Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.
WISDOM, Circuit Judge:
This appeal from an antitrust summary judgment raises questions concerning the jurisdictional reach of the Sherman Act, the scope of the Noerr-Pennington defense, the Parker doctrine of state action immunity, and the applicability of Florida’s anticombination statute to the medical profession. The Feminist Women’s Health Center, Inc. (“the Center”), brought this action for injunctive and monetary relief against Drs. Mohammad, Curry, Knight, Crane, Griner, Messer, and Palmer (individually and in his capacity as Executive Director of the Florida Board of Medical Examiners (“BOME”)). The Center alleged that the doctors conspired to boycott the Center’s Tallahassee abortion clinic, and to fix the prices for abortions in the Tallahassee area in violation of federal and state antitrust laws. The Center further alleged that the doctors individually, and in combination, attempted to, and in fact did, monopolize the market for providing women’s health and abortion services in the Tallahassee area. In addition, the Center complained that certain tactics used by the defendants amounted under Florida law to tortious interference with the Center’s business relationships with its physicians. After extensive pretrial discovery, the trial court granted summary judgment in favor of all defendants on all counts, and the Center brought this appeal. The doctors cross-appeal the trial court’s early ruling denying their motion for summary judgment for lack of subject matter jurisdiction. We affirm the trial court’s jurisdictional ruling and its order with respect to the state law antitrust counts and reverse on all other points.
I
BACKGROUND
Because this appeal arises from a summary judgment, the statement of the background of the case is drawn from a record that reflects numerous disputed or potentially disputable issues of fact. Summary judgment having been entered against the plaintiff Center, the following discussion views disputed issues of fact in a manner favorable to the plaintiff.
The Feminist Women’s Health Center, Inc., a Florida nonprofit corporation, operates the Women’s Choice Clinic, a women’s health and first trimester elective abortions clinic in Tallahassee, Florida. The Center was incorporated in 1974 and opened its office in Tallahassee on June 29, 1974. The Center employs ten to fourteen lay “health workers” and occasionally a laboratory technologist, a registered nurse, and a nurse-practitioner. The Center does not keep full time physicians on its staff, but rather uses physicians on a part-time basis to perform abortions, and, when possible, to provide “back-up” emergency services when patients develop post-operative complications. The Center charges about $150 for an abortion, $25 to $35 of which is paid by the Center to the operating physician.
Defendants Mohammad, Curry, Crane, Knight, Griner, and Messer are Tallahassee physicians specializing in obstetrics and gynecology. All are members of the gynecology and obstetrics staff (“OB-GYN Staff”) of Tallahassee Memorial Hospital, the only hospital in Leon County, Florida, that has complete facilities for treating patients with obstetrical and gynecological problems. Defendant Palmer is a physician who practices in Tallahassee, and is Executive Director of the Florida Board of Medical Examiners, the body that licenses physicians and regulates the practice of medicine in the State of Florida.
Even before it opened its doors, the clinic was a matter of concern to the obstetrics and gynecological staff of Tallahassee Memorial. At its regular monthly staff meeting in May, 1974 the OB-GYN Staff adopted a resolution that it would not “approve” the Center if no member of the hospital staff were associated with the Center. The resolution, according to Dr. Brickler, the member of the OB-GYN Staff who first brought the Center to the staff’s attention, was intended to express the staff’s concern that the clinic have an “acceptable” local physician who would be available to take care of post-operative emergencies.
Despite some initial difficulties in recruiting physicians, the clinic operated without substantial controversy its first year. In the Spring of 1974, Lynn Heidelberg and Linda Curtis, two of the Center’s directors, approached Drs. Brickler and Mohammad about working at the clinic. According to Ms. Curtis, Dr. Mohammad initially expressed interest in doing so, but at a second meeting changed his mind, citing pressure from his colleagues as well as the May resolution of the OB-GYN Staff. Dr. Mohammad indicated that he might consider working at the clinic, but only at a fee of $100 per procedure, a figure that is approximately triple the fee customarily received by operating physicians at the clinic. Dr. Brickler, on the other hand, decided to work at the clinic after having initially expressed fears that the OB-GYN Staff would disapprove of his doing so. Dr. Brickler informed the Center, however, that he would associate with the clinic on the condition that the clinic not advertise its services. The Center agreed and Dr. Brickler began his work for the clinic. In April 1975 Dr. McWilliams, another member of the Tallahassee Memorial OB-GYN Staff, began performing abortions at the clinic and handling post-operative aftercare. Drs. Brickler and McWilliams performed 816 abortions at the clinic that first year.
The clinic’s difficulties began in June of 1975 when Linda Curtis gave an interview to the Tallahassee Democrat, the city’s daily newspaper. The interview resulted in the publication in the June 20 edition of the Democrat of an article in which Ms. Curtis described the clinic and favorably compared its services with hospital abortion procedures. In particular, the interview emphasized the relative inexpensiveness of first trimester elective abortions at the clinic, and the advantages to women of choosing a place where “women set the pace for what goes on”. The next day, Dr. Brickler terminated his relationship with the clinic, apparently because of the article.
The newspaper article succeeded in making the clinic, once again, a subject of great interest to the OB-GYN Staff at Tallahassee Memorial. At the July 1, 1975 meeting of the OB-GYN Staff, at which Drs. Messer, Griner, Crane, and Mohammad were present, Dr. Messer noted that Dr. Brickler was no longer working at the clinic and that an out-of-town physician was working there. The staff discussed the question of the ethics of the clinic’s advertising, and concluded that physicians should not associate with organizations that advertise their medical services. The staff decided to bring the matter of the clinic’s advertising to the attention of the State Board of Medical Examiners. The minutes of that meeting record that “Dr. Brickler commented he feels the local situation will collapse if it does not get support from the Obstetricians”. A day or so after that meeting, Dr. McWilliams, who had attended the meeting, called the Center to inform it that he could not continue working at the clinic unless the controversy concerning the clinic’s advertising was straightened out. He informed the clinic that Dr. Mohammad was upset about the newspaper article. In the days following the July 1 meeting Ms. Curtis met with Dr. Mohammad, who said that the Center should stop all advertising and that those associated with it should not make speeches about the Center. At that time Dr. Mohammad agreed to arrange an emergency meeting of the OB-GYN Department so that representatives of the Center could meet the other members of the staff. When Ms. Curtis and another director of the Center arrived for the emergency meeting on July 8 or 9 only Dr. Mohammad was present. Dr. McWilliams stated in his deposition that he was notified of a meeting earlier that day, but was not informed about the purpose of the meeting and therefore failed to attend. No further meeting was scheduled. Dr. McWilliams testified that he again raised the question of such a meeting with Dr. Mohammad, but Dr. Mohammad informed him that he had polled the other members of the staff and that no one wished to meet with representatives of the Center.
At the next monthly meeting of the 0B-GYN Service on August 5, 1975, the staff passed a motion that the Service write a letter to the Capitol Medical Society (“CMS”), a private organization of Tallahassee area physicians, expressing the doctors’ view that physicians in the CMS should not associate with organizations that advertise their medical services. Dr. McWilliams spoke up to explain that he was unaware when he began working for the Center that the clinic was controversial because of its advertising and its nonprofit status. He revealed to the staff that he had told the clinic of his plans to leave if the controversy was not settled. Four days later, he told the Center that he would have to leave, citing the controversy and his desire not to fall into disfavor with his colleagues. As Dr. McWilliams explained in his deposition, he chose to leave “because of something that I was doing that they [the Tallahassee OB-GYNs] considered unethical”. Shortly thereafter, Dr. McWilliams left the clinic.
About the time that Dr. McWilliams left the clinic, the Center called upon Dr. Brickler, who had severed his relations with the clinic some months earlier, in an effort to recruit him to handle backup or post-operative emergencies, either on a formal or an informal basis. Dr. Briekler, according to his deposition, told the Center that if it referred a patient to his office for post-operative care he would see the patient, just as he would see any other patient. He declined, however, to enter any formal arrangement with the Center. Briekler indicated that to do so would involve him in controversy with his fellow obstetricians. The OB-GYNs, according to Brickler’s deposition, “almost literally sleep together”, and his colleagues could make things very unpleasant for him; they could, for example, refuse to take his patients were he to leave town.
Beginning in July or August 1975, the clinic began to rely heavily on the services of residents-in-training at the University Hospital in Jacksonville. The Center had arrangements with the Jacksonville residents that they would come to Tallahassee one day a week to perform abortions at the clinic. On August 29 the OB-GYN Staff sent a letter to defendant Palmer, Executive Director of the BOME, stating that out-of-town doctors were performing surgery at the clinic without adequate provision for continuous aftercare, in possible violation of the Florida Medical Practice Act. The letter requested Dr. Palmer to take “appropriate corrective measures”. Acting on the staff’s complaint, as he was required to do by law, Dr. Palmer visited the clinic, accompanied by Ed McCollum, the Chief Investigator of the BOME, to view its operations and to determine what doctors were practicing there. He found that Dr. Walker Whaley, a resident physician from University Hospital in Jacksonville, was performing abortions at the clinic. Dr. Palmer inquired about aftercare coverage of the clinic’s abortion patients, and was told by Ms. Curtis that the clinic had arrangements with Tallahassee Memorial to take care of post-operative complications. Later that day, Dr. Palmer called the hospital concerning the clinic’s backup coverage. The hospital administrator informed Palmer that the backup arrangements were not formal, but that he had told Ms. Curtis that any clinic patient could come to the hospital’s emergency room for attention, as in the case of any person in need of immediate medical care.
Dr. Palmer then called Dr. Whaley on the telephone. After first identifying himself as the Executive Director of the BOME, and telling Dr. Whaley that the telephone call was personal in nature, Palmer told Whaley that his, Dr. Whaley’s, activities were not in his opinion illegal, but that his personal advice was that it might be in Whaley’s best interests to leave the clinic. Dr. Palmer thought that it was unwise for the young physician to get involved in something as controversial as the clinic. He pointed out that the aftercare arrangements were in his opinion' ’’questionable”, and that Dr. Whaley was running a risk of malpractice liability because he could not follow up on his patients at Tallahassee Memorial Hospital inasmuch as Whaley did not have staff privileges at Tallahassee Memorial, nor a Tallahassee or Leon County occupational license. Following his conversation with Dr. Whaley, Palmer called Dr. Mohammad to report his findings. On September 30, Dr. Palmer sent another investigator to the clinic to determine if the clinic, at that time, had a licensed physician performing abortions.
At the September 2, 1975 meeting of the OB-GYN Staff of Tallahassee Memorial, at which Drs. Crane, Curry, Griner, Messer, and Mohammad were present, the staff voted to send a letter to the residents at University Hospital in Jacksonville who were performing abortions at the clinic. The purpose of the communication was to inquire of the doctors whether proper aftercare was being provided for the patients on whom the doctors were performing abortions at the Tallahassee clinic. On September 10, a letter, signed by all the defendants with the exception of Dr. Palmer, was sent not to the residents but to Dr. Robert Thompson, the head of the residency program at University Hospital. The letter stated:
In the last monthly meeting of the OB-GYN Staff at Tallahassee Memorial Hospital, the subject of the Feminist Womens’ Health Clinic was brought up, and the fact that one or two of the residents from your program performed abortions without provision for possible complications and leave patients without provision for 24-hour coverage was discussed.
For your information, the Feminist Womens’ Health Center has no backup for abortions performed and there is no physician in town covering aftercare complications of procedures done.
Dr. Whaley returned to the clinic after Dr. Palmer’s call, but he told the Center that he could not work for them until the controversy was resolved. Dr. Whaley testified in his deposition that the aftercare problem was not the main reason that he left the clinic. His primary concern, he said, was the controversy between the clinic and the Tallahassee medical community. He ultimately left the clinic, he testified, because of the advice given him by several people.
Another of the residents at University Hospital in Jacksonville, Dr. Rhett, left the clinic in mid-September of 1975, following the staff’s communication to Dr. Thompson. According to Dr. Rhett’s deposition, he left the clinic because he could not get a straight answer from the clinic concerning its aftercare arrangements. He also testified that he felt threatened professionally by the controversy surrounding the Center.
The Center brought suit charging that the doctors had conspired to monopolize and restrain trade in the provision of abortions and related services, in violation of §§ 1 and 2 of the Sherman Act and § 542.05 of the Florida statutes. The Center also charged that the doctors had unlawfullyjnterfered with the Center’s contractual relations with its physicians. Following the GenterVTiling of the complaint, the Capitol-Medical Society passed a resolution, coauthoredrby Dr. Palmer, to support the defendq^its-dn the prosecution of this litigation. The-Genter, throughout this litigation, has citedJJie Capitol Medical Society’s resolution as the “consummation” of the alleged conspiracy. On June 9, 1976 the trial court denied the Center’s motion for a preliminary injunction. The court found that the plaintiff had demonstrated a substantial likelihood of prevailing on the merits of its claims against all defendants except Dr. Palmer, but that there was no likelihood that the Center would suffer irreparable harm pending adjudication of the cause. Feminist Womens’ Health Center v. Mohammad, 1976, N.D.Fla., 415 F.Supp. 1258. The court intimated, in that order, that the “state action” defense of Parker v. Brown, 1943, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, might be applicable to Dr. Palmer. In a pretrial order of September 3 the court granted Dr. Palmer’s motion for summary judgment. On December 3, the court rendered summary judgment in favor of the remaining defendants.
II
THE REACH OF THE SHERMAN ACT
At the outset we face the question whether the district court had subject matter jurisdiction of this action. Jurisdiction is predicated upon §§ 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, which grant the federal district courts jurisdiction of private actions for treble damages and injunctive relief, respectively, to redress injuries resulting from violations of the federal antitrust laws. The appellees argue that subject matter jurisdiction is lacking because the action complained of does not have the effect on interstate commerce requisite to liability under the Sherman Act. If the Center has not stated a claim under the Sherman Act, then the federal court, of course, lacks jurisdiction of the pendent state law claims.
Section 1 of the Sherman Act outlaws every combination or conspiracy “in restraint of trade or commerce among the several States”. Section 2 of the Act prohibits monopolization of, and attempts and conspiracies to monopolize “any part of the trade or commerce among the several States.” It has been said that “this language defines both the prohibited conduct and the jurisdictional range of the statute.” Comment, 21 Vill.L.Rev. 721, 725 (1976); see also Rasmussen v. American Dairy Ass’n, 9 Cir. 1972, 472 F.2d 517, 521. The Supreme Court has construed the Sherman Act as reaching the full extent of the Congress’s power under the commerce clause. Whether the conduct complained of falls within the scope of the Sherman Act’s “jurisdiction” turns on whether it has or could likely have a substantial effect on interstate commerce. E. g., International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665.
The district court determined, after a full evidentiary hearing on the matter, that it had jurisdiction of the Center’s claims. The court made the following findings. (1) Tallahassee, Florida, where the clinic is located, is within 30-35 miles of the Georgia state line. (2) Tallahassee is a center for health care in the northern Florida-southwestern Georgia area. (3) From June 1974 to September 1976, 2,177 abortions were performed at the plaintiff’s clinic, 176 (or 8%) of which were performed on persons who came from outside the state of Florida. Abortions for out-of-state patients brought the plaintiff roughly $26,400 in gross receipts. (4) From June 1974 through April 1976 the Center received $562.00 in payments from out-of-state insurance companies for abortions performed at the clinic. (5) From June 1974 through September 1976 the Center made out-of-state purchases of $10,017.34 of supplies and equipment to be used in connection with the provision of abortion services. At least $9,845.34 of these supplies were purchased in the period of June 1974 to April 1976. (6) In that same period the Center purchased $15,-493.79 of supplies from within the state of Florida. (7) From June 1974 through July 1976 the Center spent $4,340.65 on interstate travel by its officers and employees. (8) From the Center’s inception, the volume of patients and the gross income of the clinic steadily increased. The district court found that the clinic had developed significant contacts with interstate activity, and that its interstate connections are likely to grow as the business grows. Taking the allegations of the complaint as true, the court concluded, the clinic and its interstate business were seriously threatened by the defendants’ actions.
The defendants do not quarrel with the district court’s findings of fact, but do contest its conclusion that the facts show a quantum of interstate involvement sufficient to sustain Sherman Act jurisdiction. They argue that the Center’s business is not converted into an interstate business by virtue of the clinic’s treatment of patients who travel from other states to use its services. Indeed, they seem to maintain that the flow of out-of-state patients must be ignored altogether. Once the interstate flow of patients is discounted, the physicians contend, the interstate connection is de minimis and certainly far more tenuous than any that has been held sufficient for Sherman Act purposes in any reported case. We disagree with both contentions; we hold that the district court did not err.
Although the mere fact of dealings with out-of-state customers, whether or not those customers cross state lines for the purpose of buying a firm’s goods or services, might not of itself establish a sufficient interstate nexus, it does not follow that those dealings are of no pertinence whatsoever. The Sherman Act reaches conduct that is likely to have a substantial adverse effect on interstate commerce, a question, as we have emphasized in prior decisions, that is to be determined from the aggregate of factors. St. Bernard General Hospital, Inc. v. Hospital Service Ass’n, 5 Cir. 1975, 510 F.2d 1121, 1125; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, 48, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665. The plaintiff’s business with out-of-state patients is one of the factors to be considered. Were the Center forced to close the Tallahassee clinic, the flow of persons crossing state lines to avail themselves of the clinic’s services would cease. That the patients come to the plaintiff, and not the plaintiff to the patients, does not alter the interstate character of those transactions.
Looking to the aggregate of factors, including the clinic’s volume of out-of-state patients, we cannot say that the Center has failed to demonstrate a likelihood of substantial impact on interstate commerce. There is, of course, no ready and easy test for determining whether particular restraints have, or will likely have, the requisite effect on interstate commerce. As the Third Circuit Court of Appeals has observed, “the precedent in this area is unlikely to dictate the outcome in any given case. Instead, it is more likely to communicate a general sense as to how much of an impact local activities must have upon interstate commerce before they confer jurisdiction.” Doctors, Inc. v. Blue Cross of Greater Philadelphia, 3 Cir. 1973, 490 F.2d 48, 51. The interstate effects alleged here are well within the boundaries suggested by the “general sense” of our decisions on Sherman Act jurisdiction.
In Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665, this Court upheld jurisdiction in a case analogous to this one in its jurisdictional aspects. Lehrman was a private antitrust suit by a Gulf service station operator. Lehrman sought to recover damages that resulted from the effect on his business of Gulf’s wholesale pricing practices. He urged that Gulf's pricing policies, by preventing him from engaging in price competition with nearby competitors, forced him out of business. Although we assumed, for purposes of the appeal, that the gasoline sold by the plaintiff never moved in interstate commerce, we nevertheless held that Gulf’s conduct substantially affected interstate commerce. Two distinct and sufficient grounds for jurisdiction were set forth. First, we noted that Gulf’s pricing system affected dealers throughout the southwestern United States, many of whom, the evidence tended to show, did distribute gasoline that moved in interstate commerce. Thus the pricing system as a whole constituted a combination that substantially restrained interstate commerce. The alternative ground is of importance to this appeal. We pointed out that Lehrman sold not only gasoline, but also tires, batteries, and accessories, the largest part of which, unlike his gasoline, originated from outside the state of Texas. The termination of Lehrman’s business, we held, had an appreciable effect on the flow of tires, batteries, and accessories from outside Texas. We stated: “The effect was appreciable because, while small relative to total Gulf TBA sales, the gross amount of such sales would be significant over the extended period of time Lehrman might have been able to continue in business.” Id. at 35.
The case of Copper Liquor, Inc. v. Adolph Coors Co., 5 Cir. 1975, 506 F.2d 934 presented a similar situation. In Copper Liquor an owner of a retail liquor store sued the defendant brewing company complaining that the refusal of Coors’s local distributor to sell him Coors beer was part of a conspiracy to fix retail prices, and that his inability to secure the beer from other distributors was the consequence of an unlawful scheme of territorial market division. We upheld Sherman Act jurisdiction, pointing to evidence showing that the unavailability of Coors beer at the plaintiff’s retail store diminished customer demand for the plaintiff’s other products that did move in interstate commerce. Citing Lehrman, we observed: “This impact on other products has been held to have a sufficient effect on interstate commerce to bring the case within the federal antitrust laws.” Id. at 949.
The activities affected by the restraints alleged in this case have an interstate nexus at least as substantial as those involved in Lehrman and Copper Liquor, and those authorities therefore counsel affirmance of the district court’s ruling on jurisdiction. In Lehrman, jurisdiction was founded on the impact of Gulf’s activities upon the TBA items purchased and sold by a service station operator. That effect could hardly be more substantial than the cessation of the Center’s purchases of $4,000 or $5,000 worth of out-of-state supplies a year and of the clinic’s $12,000 worth of yearly business with out-of-state patients. The interstate nexus in Copper Liquor was even less substantial, for the plaintiff in that case did not contend, as the Center does here, that the challenged practices threatened to shut down his business, and with it his purchases of products in interstate commerce.
We conclude, from all the evidence adduced at the jurisdictional hearing before the district court, that the court ruled correctly. We recognize that there must be a limit on the reach of Sherman Act jurisdiction. This case, however, is within that limit.
Ill
THE MEMBERS OF THE OB-GYN STAFF
The district court granted summary judgment in favor of Drs. Mohammad, Curry, Crane, Knight, Griner, and Messer largely on the strength of the Noerr-Pennington doctrine. According to that doctrine, articulated in a line of Supreme Court decisions that began with Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, efforts to influence the government to take anticompetitive action cannot be made the basis of antitrust liability. Noerr itself concerned efforts to achieve anticompetitive ends by securing legislative action. Succeeding court decisions established that antitrust immunity extends to attempts to influence executive and adjudicative governmental bodies as well. The Court has held that petitioning activity is protected “regardless of intent or purpose.” United Mine Workers v. Pennington, 1965, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626. The petitioning activity, however, must be genuine. Protection does not extend to purported petitioning that is in fact “a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor....” Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. at 144, 81 S.Ct. 523, 533. Although the Court’s Noerr opinion suggested that petitioning activity is exempt because the Sherman Act was simply not designed to reach such conduct, it is now clear that the doctrine is rooted in the first amendment’s guarantee of the right to petition. See California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642; see generally Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the NoerrPennington Doctrine, 45 U.Chi.L.Rev. 80 (1977).
The trial court held the following conduct to be of the type protected by the Noerr-Pennington defense: (1) The OB-GYN Committee’s letter to Dr. Palmer and the BOME; (2) the Committee’s letter to Dr. Thompson, the head of the residency program at the Jacksonville hospital; (3) the Committee’s communications to the Capitol Medical Society regarding the Center’s abortion clinic; and (4) the discussions among the members of the OB-GYN staffs of Tallahassee Memorial and the Jacksonville hospital regarding their members’ medical practice. Since these communications, in the district judge’s opinion, make up the core of the Center’s case against the physicians, he ruled that the fate of the action turned on whether the Center could bring it within the “sham” exception adumbrated in the Supreme Court’s Noerr opinion. Finding that the plaintiff had insufficient evidence that the defendants’ petitioning activities were sham, the court granted the defendants’ motions for summary judgment.
The foundation of the trial court’s ruling was its determination that the defendants’ communications were protected petitioning activity. We hold, however, that the communications, with the exceptions of the physicians’ letter of complaint to the BOME and their post-complaint activities in support of their position in this lawsuit, are as a matter of law unprotected by the NoerrPennington doctrine. In addition, a triable issue of fact remains as to whether the OB-GYNs’ letter of complaint to Dr. Palmer was but a sham effort to influence government action. The district court’s misapplication of the Noerr doctrine necessitates reversal of the judgment.
The Committee’s letter of complaint to Dr. Palmer is a form of activity that is protected by the Noerr-Pennington doctrine absent proof of sham. The Board of Medical Examiners is a creature of state law. Section 458.1201 of the Florida Statutes authorizes the Board to discipline licensed physicians found guilty of any of the violations defined by chapter 458. The defendant doctors wrote Dr. Palmer requesting him to investigate possible violations of the Medical Practice Act. Whether the doctors’ petition is immune from antitrust attack turns on the factual determination whether it was genuinely intended to influence Dr. Palmer to take official action in his capacity as Executive Director of the BOME. It is the jury’s task to resolve this issue.
We agree with the district court, however, that the Center cannot base a right to recovery on the actions of Dr. Palmer and the other members of the Capitol Medical Society in adopting a resolution to provide moral and financial support to the doctors’ defense of this lawsuit. The plaintiff Center characterizes the medical society’s resolution of support as the “consummation” of the alleged conspiracy. In California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, the Supreme Court held that joint efforts of competitors to seek adjudicative action are protected. The first amendment right of competitors to join in petitioning courts and administrative bodies entails the right to band together for purposes of supporting litigation, as the physicians in the Capitol Medical Society have done here. Whether the action of the medical society can be linked to the alleged conspiracy that spawned the Center's original complaint is irrelevant, for petitioning activity according to Pennington “is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.” 381 U.S. at 670, 85 S.Ct. at 1593. The district court did not err in granting summary judgment in favor of the defendants on this issue. There is no genuine issue as to the physicians’ intent in adopting the resolution. It cannot be seriously urged that either the physicians’ defense of this lawsuit or the medical society’s resolution of support is a sham.
The district court’s determination that the other communications are protected rests on three statutes that, in its view, make the OB-GYN staffs and the Capitol Medical Society integral parts of the state’s apparatus for regulating the practice of medicine. Section 768.40 of the Florida Statutes immunizes “medical review committees”, such as local societies of health care providers and the medical staffs of licensed hospitals, from liability arising out of their actions taken in the course of evaluating the performance of health care providers. The statutes contemplate committees that concern themselves with the quality and cost of medical services rendered by providers. Section 395.065 authorizes the medical staff of licensed hospitals “to suspend, deny, revoke, or curtail the staff privileges of any staff member for good cause”. The statute enumerates a few nonexclusive grounds constituting “good cause” and immunizes the hospital, staff, and staff members from liability arising out of actions taken in good faith in carrying out the staff’s disciplinary function. Section 458.-1201, the statute setting forth the disciplinary powers of the BOME, authorizes the Board to impose penalties on licensed physicians who have been disciplined by a peer review association or a hospital medical staff, and requires such organizations to report all disciplinary actions to the BOME. § 458.1201(l)(p). The court felt that these statutes, in effect, make the OB~ GYN staffs and the Capitol Medical Society public regulatory bodies, and that the discussions at the OB-GYN Committee meetings and the Committee’s letters to the Jacksonville OB-GYN’s and the medical society were therefore protected solicitation of government action..
The defendants’ claim of Noerr protection, in our view, rests ultimately on § 458.1201. Section 768.40 does not recruit medical review committees into government service. The sole purpose of that provision is to confer limited immunity upon the actions of review committees within the scope of their functions, as defined by subsection (1) of § 768.40, and to bar the use of committee records and proceedings as evidence in civil actions. Section 395.065 recognizes the existence of hospital staff self-regulation, imposes a “good cause” limitation on disposition of staff privileges, and insulates good faith disciplinary action from civil liability. This falls short of conferring governmental status upon hospital medical staffs. Section 458.1201, however, affords a colorable basis for the defendants’ claim. The statute, by enabling the BOME to take disciplinary action against physicians who have been disciplined by medical review organizations, vests those organizations with a kind of quasi-legislative authority. The appellees’ strongest argument for Noerr protection is that communications between a review organization and its members looking towards possible disciplinary action constitutes the solicitation of action that, in the event it became the basis of BOME disciplinary action, would be legislative in character.
We are not persuaded, however, that § 458.1201 makes medical review organizations public regulatory bodies. The contention that § 458.1201 incorporates the disciplinary actions of such organizations into regulatory law is weakened by the statute’s permissive language. Subsection (1) does not require the BOME to take action against physicians disciplined by private professional groups; it merely authorizes the Board to do so. Subsection (3)(a) of the statute simply provides that the Board “may enter an order” penalizing physicians who are found to have violated the statute. Thus the Board is given broad discretion to decline to take action against physicians. Where the legislature, in § 458.1201, intended to command a certain course of action, it made its intentions quite clear by using the word “shall”. As we read the statute, disciplinary action by a medical peer group affords grounds for Board action but in no way binds the Board to act. Thus, ultimate authority to enact and enforce professional standards and to adjudicate violations of law rests with the Board. Hospital medical staffs and medical societies play an important role in Florida’s regulatory scheme, but that role is not a governmental one. Although the actions of such groups in reporting disciplinary findings and suspected violations to the BOME may be petitioning activity within the meaning of the first amendment, communications within those groups are not.
Evaluating the evidentiary materials on
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_casedisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
MINNESOTA v. CLOVER LEAF CREAMERY CO. et al.
No. 79-1171.
Argued November 3, 1980
Decided January 21, 1981
BrenNAN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, and Blackmun, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 474. Stevens, J., filed a dissenting opinion, post, p. 477. Rehnquist, J., took no part in the consideration or decision of the case.
Kenneth E. Raschke, Jr., Assistant Attorney General of Minnesota, argued the cause for petitioner. With him on the briefs were Warren Spannaus, Attorney General, Richard B. Allyn, Chief Deputy Attorney General, and D. Douglas Blanke, Special Assistant Attorney General.
Leonard J. Keyes argued the cause for respondents. With him on the brief were Douglas L. Skor and Andrea M. Bond.
Harlon L. Dalton argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Harriet S. Shapiro, Jacques B. Gelin, and Anne H. Shields.
Stephen J. Snyder filed a brief for the Sierra Club as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by C. Lee Cook, Jr., John C. Berghoff, Jr., and Stephanie W. Kanwit for the Can Manufacturers Institute et al.; by John M. Cannon for the Mid-America Legal Foundation; and by Michael L. Flanagan for the Minnesota Dairies Federation.
Justice Brennan
delivered the opinion of the Court:
In 1977, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard milk cartons. 1977 Minn. Laws, ch. 268, Minn. Stat. § 116F.21 (1978). Respondents contend that the statute violates the Equal Protection and Commerce Clauses of the Constitution.
I
The purpose of the Minnesota statute is set out as § 1:
“The legislature finds that the use of nonreturnable, nonrefillable containers for the packaging of milk and other milk products presents a solid waste management problem for the state, promotes energy waste, and depletes natural resources. The legislature therefore, in furtherance of the policies stated in Minnesota Statutes, Section 116F.01,[] determines that the use of nonreturnable, nonrefillable containers for packaging milk and other milk products should be discouraged and that the use of returnable and reusable packaging for these products is preferred and should be encouraged.” 1977 Minn. Laws, ch. 268, § 1, codified as Minn. Stat. § 116F.21 (1978).
Section 2 of the Act forbids the retail sale of milk and fluid milk products, other than sour cream, cottage cheese, and yogurt, in nonreturnable, nonrefillable rigid or semirigid containers composed at least 50% of plastic.
The Act was introduced with the support of the state Pollution Control Agency, Department of Natural Resources, Department of Agriculture, Consumer Services Division, and Energy Agency, and debated vigorously in both houses of the state legislature. Proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy. Relying on the results of studies and other information, they stressed the need to stop introduction of the plastic nonreturnable container before it became entrenched in the market. Opponents of the Act, also presenting empirical evidence, argued that the Act would not promote the goals asserted by the proponents, but would merely increase costs of retail milk products and prolong the use of ecologically undesirable paperboard milk cartons.
After the Act was passed, respondents filed suit in Minnesota District Court, seeking to enjoin its enforcement. The court conducted extensive evidentiary hearings into the Act’s probable consequences, and found the evidence “in sharp conflict.” App. A-25. Nevertheless, finding itself “as fact-finder . . . obliged to weigh and evaluate this evidence,” ibid., the court resolved the evidentiary conflicts in favor of respondents, and concluded that the Act “will not succeed in effecting the Legislature’s published policy goals . . . .” Id., at A-21. The court further found that, contrary to the statement of purpose in § 1, the “actual basis” for the Act “was to promote the economic interests of certain segments of the' local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry.” Id., at A-19. The court therefore declared the Act “null, void, and unenforceable” and enjoined its enforcement, basing the judgment on substantive due process under the Fourteenth Amendment to the United States Constitution and Art. 1, § 7, of the Minnesota Constitution; equal protection under the Fourteenth Amendment; and prohibition of unreasonable burdens on interstate commerce under Art. I, § 8, of the United States Constitution. App. A-23.
The State appealed to the Supreme Court of Minnesota, which affirmed the District Court on the federal equal protection and due process grounds, without reaching the Commerce Clause or state-law issues. 289 N. W. 2d 79 (1979). Unlike the District Court, the State Supreme Court found that the purpose of the Act was “to promote the state in terests of encouraging the reuse and. recycling of materials and reducing the amount and type of material entering the solid waste stream,” and acknowledged the legitimacy of this purpose. Id., at 82. Nevertheless, relying on the District Court’s findings of fact, the full record, and an independent review of documentary sources, the State Supreme Court held that “the evidence conclusively demonstrates that the discrimination against plastic nonrefillables is not rationally related to the Act’s objectives.” Ibid. We granted certiorari, 445 U. S. 949, and now reverse.
II
The parties agree that the standard of review applicable to this case under the Equal Protection Clause is the familiar “rational basis” test. See Vance v. Bradley, 440 U. S. 93, 97 (1979); New Orleans v. Dukes, 427 U. S. 297, 303 (1976). Moreover, they agree that the purposes of the Act cited by the legislature — promoting resource conservation, easing solid waste disposal problems, and conserving energy— are legitimate state purposes. Thus, the controversy in this case centers on the narrow issue whether the legislative classification between plastic and nonplastic nonreturnable milk containers is rationally related to achievement of the statutory purposes.
A
Respondents apparently have not challenged the theoretical connection between a ban on plastic nonreturnables and the purposes articulated by the legislature; instead, they have argued that there is no empirical connection between the two. They produced impressive supporting evidence at trial to prove that the probable consequences of the ban on plastic nonreturnable milk containers will be to deplete natural resources, exacerbate solid waste disposal problems, and waste energy, because consumers unable to purchase milk in plastic containers will turn to paperboard milk cartons, allegedly a more environmentally harmful product.
But' States are not required to convince the courts of the correctness of their legislative judgments. Rather, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U. S., at 111. See also Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 425 (1952); Henderson Co. v. Thompson, 300 U. S. 258, 264-265 (1937).
Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U. S. 144, 153-154 (1938), they cannot prevail so long as “it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.” Id., at 154. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.
The District Court candidly admitted that the evidence was “in sharp conflict,” App. A-25, but resolved the conflict in favor of respondents and struck down the statute. The Supreme Court of Minnesota, however, did not reverse on the basis of this patent violation of the principles governing rationality analysis under the Equal Protection Clause. Rather, the court analyzed the statute afresh under the Equal Protection Clause, and reached the conclusion that the statute is constitutionally invalid. The State contends that in this analysis the court impermissibly substituted its judgment for that of the legislature. We turn now to that argument.
B
The State identifies four reasons why the classification between plastic and nonplastic nonreturnables is rationally related to the articulated statutory purposes. If any one of the four substantiates the State’s claim, we must reverse the Minnesota Supreme Court and sustain the Act.
First, the State argues that elimination of the popular plastic milk jug will encourage the use of environmentally superior containers. There is no serious doubt that the plastic containers consume energy resources and require solid waste disposal, nor that refillable bottles and plastic pouches are environmentally superior. Citing evidence that the plastic jug is the most popular, and the gallon paperboard carton the most cumbersome and least well regarded package in the industry, the State argues that the ban on plastic nonreturnables will buy time during which environmentally preferable alternatives may be further developed and promoted.
As Senator Spear argued during the Senate debate:
“[T]his bill is designed to prevent the beginning of another system of non-returnables that is going to be very, very difficult [to stop] once it begins. It is true that our alternative now is not a returnable system in terms of milk bottles. Hopefully we are eventually going to be able to move to that kind of a system, but we are never going to move to a returnable system so long as we allow another non-returnable system with all the investment and all of the vested interest that that is going to involve to begin.” Transcript of the Full Senate Floor Discussion of H. F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs’ Exhibit J.
Accord, id., at 1-2 (statement of Sen. Luther).
The Minnesota Supreme Court dismissed this asserted state interest as “speculative and illusory.” 289 N. W. 2d, at 86. The court expressed doubt that the Minnesota Legislature or Pollution Control Agency would take any further steps to promote environmentally sound milk packaging, and stated that there is no evidence that paperboard cartons will cease to be used in Minnesota. Ibid.
We find the State’s approach fully supportable under our precedents. This Court has made clear that a legislature need not “strike at all evils at the same time or in the same way,” Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 610 (1935), and that a legislature “may implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” New Orleans v. Dukes, 427 U. S., at 303. See also Katzenbach v. Morgan, 384 U. S. 641, 657 (1966); Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955); Railway Express Agency, Inc. v. New York, 336 U. S. 106, 110 (1949). The Equal Protection Clause does not deny the State of Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the market, is permitted to continue in use. Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives.
Second, the State argues that its ban on plastic nonreturnable milk containers will reduce the economic dislocation foreseen from the movement toward greater use of environmentally superior containers. The State notes that plastic nonreturnables have only recently been introduced on a wide scale in Minnesota, and that, at the time the legislature was considering the Act, many Minnesota dairies were preparing to invest large amounts of capital in plastic container production. As Representative Munger, chief sponsor of the bill in the House of Representatives, explained:
“Minnesota’s dairy market is on the verge of making a major change over from essentially a paperboard container system to a system of primarily single use, throwaway plastic bottles. The major dairies in our state have ordered the blow-mold equipment to manufacture in plant the non-returnable plastic milk bottle. Members of the House, I feel now is an ideal time for this legislation when only one dairy in our state is firmly established in manufacturing and marketing the throwaway plastic milk bottle.” Transcript of the Debate of the Minnesota House of Representatives on H. F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs’ Exhibit J.
See also Transcript of the Full Senate Floor Discussion on H. F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs’ Exhibit J (statement of Sen. Milton); id., at 9 (statement of Sen. Schaaf); id., at 10-11 (statement of Sen. Perpich).
Moreover, the State explains, to ban both the plastic and the paperboard nonreturnable milk container at once would cause an enormous disruption in the milk industry because few dairies are now able to package their products in refillable bottles or plastic pouches. Thus, by banning the plastic container while continuing to permit the paperboard container, the State was able to prevent the industry from becoming reliant on the new container, while avoiding severe economic dislocation.
The Minnesota Supreme Court did not directly address this justification, but we find it supported by our precedents as well. In New Orleans v. Dukes, supra, we upheld a city regulation banning pushcart food vendors, but exempting from the ban two vendors who had operated in the city for over eight years. Noting that the “city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation,” we held that the city “could rationally choose initially to eliminate vendors of more recent vintage.” Id., at 305. Accord, United States v. Maryland Savings-Share Ins. Cory., 400 U. S. 4, 6 (1970). This case is not significantly different. The state legislature concluded that nonreturnable, nonrefillable milk containers pose environmental hazards, and decided to ban the most recent entry into the field. The fact that the legislature in effect “grandfathered” paperboard containers, at least temporarily, does not make the Act’s ban on plastic nonreturnables arbitrary or irrational.
Third, the State argues that the Act will help to conserve energy. It points out that plastic milk jugs are made from plastic resin, an oil and natural gas derivative, whereas paperboard milk cartons are primarily composed of pulpwood, which is a renewable resource. This point was stressed by the Act’s proponents in the legislature. Senator Luther commented: “We have been through an energy crisis in Minnesota. We know what it is like to go without and what we are looking at here is a total blatant waste of petroleum and natural gas . . . .” Transcript of the Pull Senate Floor Discussion on H. F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs’ Exhibit J. Representative Munger said in a similar vein:
“A sweep to the plastic throwaway bottle in the gallon size container alone would use enough additional natural gas and petroleum to heat 3,100 homes each year in Minnesota when compared to a refillable system and 1,400 compared to the present paperboard system. Plastic containers are made from a non-renewable resource while the paperboard is made from Minnesota’s forest products.” Transcript of the Debate of the Minnesota House of Representatives on H. F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs’ Exhibit J.
The Minnesota Supreme Court held, in effect, that the legislature misunderstood the facts. The court admitted that the results of a reliable study support the legislature’s conclusion that less energy is consumed in the production of paperboard containers than in the production of plastic nonreturnables, but, after crediting the contrary testimony of respondents’ expert witness and altering certain factual assumptions, the court concluded that “production of plastic nonrefillables requires less energy than production of paper containers.” 289 N. W. 2d, at 85.
The Minnesota Supreme Court may be correct that the Act is not a sensible means of conserving energy. But we reiterate that “it is up to legislatures, not courts, to decide on the wisdom and utility of legislation.” Ferguson v. Skrupa, 372 U. S. 726, 729 (1963). Since in view of the evidence before the legislature, the question clearly is “at least debatable,” United States v. Carotene Products Co., 304 U. S., at 154, the Minnesota Supreme Court erred in substituting its judgment for that of the legislature.
Fourth, the State argues that the Act will ease the State’s solid waste disposal problem. Most solid consumer wastes in Minnesota are disposed of in landfills. A reputable study before the Minnesota Legislature indicated that plastic milk jugs occupy a greater volume in landfills than other nonreturnable milk containers. This was one of the legislature’s major concerns. For example, in introducing the bill to the House of Representatives, Representative Munger asked rhe-torieally: “Why do we need this legislation?” Part of his answer to the query was that “the plastic non-refillable containers will increase the problems of solid waste in our state.” Transcript of the Debate of the Minnesota House of Representatives on H. F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs’ Exhibit J.
The Minnesota Supreme Court found that plastic milk jugs in fact take up less space in landfills and present fewer solid waste disposal problems than do paperboard containers. 289 N. W. 2d, at 82-85. But its ruling on this point must be rejected for the same reason we rejected its ruling concerning energy conservation: it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature.
We therefore conclude that the ban on plastic nonreturnable milk containers bears a rational relation to the State’s objectives, and must be sustained under the Equal Protection Clause.
Ill
The District Court also held that the Minnesota statute is unconstitutional under the Commerce Clause because it imposes an unreasonable burden on interstate commerce. We cannot agree.
When legislating in areas of legitimate local concern, such as environmental protection and resource conservation, States are nonetheless limited by the Commerce Clause. See Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 36 (1980); Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 350 (1977); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767 (1945). If a state law purporting to promote environmental purposes is in reality “simple economic protectionism,” we have applied a “virtually per se rule of invalidity.” Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). Even if a statute regulates “evenhandedly,” and imposes only “incidental” burdens on interstate commerce, the courts must nevertheless strike it down if “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). Moreover, “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Ibid.
Minnesota’s statute does not effect “simple protectionism,” but “regulates evenhandedly” by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down. E. g., Lewis v. BT Investment Managers, Inc., supra (Florida statutory scheme prohibiting investment advisory services by bank holding companies with principal offices out of the State); Hughes v. Oklahoma, 441 U. S. 322 (1979) (Oklahoma statute prohibiting the export of natural minnows from the State); Philadelphia v. New Jersey, supra (New Jersey statute prohibiting importation of solid and liquid wastes into the State); Hunt v. Washington Apple Advertising Gomm’n, supra (North Carolina statute imposing additional costs on Washington, but not on North Carolina, apple shippers).
Since the statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce by the Minnesota Act is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., supra, at 142. We conclude that it is not.
The burden imposed on interstate commerce by the statute is relatively minor. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of containers, the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. See Pacific States Box & Basket Co. v. White, 296 U. S. 176, 184 (1935). Within Minnesota, business will presumably shift from manufacturers of plastic nonreturnable containers to producers of paperboard cartons, refillable bot-ties, and plastic pouches, but there is no reason to suspect that the gainers will be Minnesota firms, or the losers out-of-state firms. Indeed, two of the three dairies, the sole milk retailer, and the sole milk container producer challenging the statute in this litigation are Minnesota firms.
Pulpwood producers are the only Minnesota industry likely to benefit significantly from the Act at the expense of out-of-state firms. Respondents point out that plastic resin, the raw material used for making plastic nonreturnable milk jugs, is produced entirely by non-Minnesota firms, while pulpwood, used for making paperboard, is a major Minnesota product. Nevertheless, it is clear that respondents exaggerate the degree of burden on out-of-state interests, both because plastics will continue to be used in the production of plastic pouches, plastic returnable bottles, and paperboard itself, and because out-of-state pulpwood producers will presumably absorb some of the business generated by the Act.
Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, we find that this burden is not “clearly excessive” in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems, which we have already reviewed in the context of equal protection analysis. See supra, at 465-470. We find these local benefits ample to support Minnesota’s decision under the Commerce Clause. Moreover, we find that no approach with “a lesser impact on interstate activities,” Pike v. Bruce Church, Inc., supra, at 142, is available. Respondents have suggested several alternative statutory schemes, but these alternatives are either more burdensome on commerce than the Act (as, for example, banning all nonreturnables) or less likely to be effective (as, for example, providing incentives for recycling). See Brief for Respondents 32-33.
In Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), we upheld a Maryland statute barring producers and refiners of petroleum products — all of which were out-of-state businesses — from retailing gasoline in the State. We stressed that the Commerce Clause “protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations.” Id., at 127-128. A nondiscriminatory regulation serving substantial state purposes is not invalid simply because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry. Only if the burden on interstate commerce clearly outweighs the State’s legitimate purposes does such a regulation violate the Commerce Clause.
The judgment of the Minnesota Supreme Court is
Reversed.
Justice Rehnquist took no part in the consideration or decision of this case.
Respondents, plaintiffs below, are a Minnesota dairy that owns equipment for producing plastic nonreturnable milk jugs, a Minnesota dairy' that leases such equipment, a non-Minnesota company that manufactures such equipment, a Minnesota company that produces plastic nonreturnable milk jugs, a non-Minnesota dairy that sells milk products in Minnesota in plastic nonreturnable milk jugs, a Minnesota milk retailer, a non-Minnesota manufacturer of polyethylene resin that sells such resin in many States, including Minnesota, and a plastics industry trade association.
Minnesota Stat. § 116F.01 (1978) provides in relevant part:
“Statement of policy. The legislature seeks to encourage both the reduction of the amount and type of material entering the solid waste stream and the reuse and recycling of materials. Solid waste represents discarded materials and energy resources, and it also represents an economic burden to the people of the state. The recycling of solid waste materials is one alternative for the conservation of material and energy resources, but it is also in the public interest to reduce the amount of materials requiring recycling or disposal.”
Minnesota is apparently the first State so to regulate milk containers. 289 N. W. 2d 79, 81, n. 6 (1979).
Transcript of the Debate of the Minnesota House of Representatives on H. F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs’ Exhibit J.
The principal empirical study cited in legislative debate, see, e. g., Transcript of the Full Senate Floor Discussion on H. F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs’ Exhibit J (statement of Sen. Luther), is Midwest Research Institute, Resource and Environmental Profile Analysis of Five Milk Container Systems, admitted into evidence as Plaintiffs’ Exhibit I.
Justice Stevens’ dissenting opinion argues that the Minnesota Supreme Court when reviewing a challenge to a Minnesota statute on equal protection grounds is not bound by the limits applicable to federal courts, but may independently reach conclusions contrary to those of the legislature concerning legislative facts bearing on the wisdom or utility of the legislation. This argument, though novel, is without merit. A state court may, of course, apply a more stringent standard of review as a matter of state law under the State’s equivalent to the Equal Protection or Due Process Clauses. E. g., Baker v. City of Fairbanks, 471 P. 2d 386, 401-402 (Alaska 1970); Serrano v. Priest, 18 Cal. 3d 728, 76A-765, 557 P. 2d 929, 950-951 (1976), cert. denied, 432 U. S. 907 (1977); State v. Kaluna, 55 Haw. 361, 368-369, 520 P. 2d 51, 58-59 (1974); see Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). And as the dissent correctly notes, post, at 479-481, the States are free to allocate the lawmaking function to whatever branch of state government they may choose. Uphaus v. Wyman, 360 U. S. 72, 77 (1959); Sweezy v. New Hampshire, 354 U. S. 234, 256-257 (1957) (Frankfurter, J., concurring in result); Dreyer v. Illinois, 187 U. S. 71, 83-84 (1902). But when a state court reviews state legislation challenged as violative of the Fourteenth Amendment, it is not free to impose greater restrictions as a matter of federal constitutional law than this Court has imposed. Oregon v. Hass, 420 U S. 714, 719 (1975).
The standard of review under equal protection rationality analysis— without regard to which branch of the state government has made the legislative judgment — is governed by federal constitutional law, and a state court’s application of that standard is fully reviewable in this Court on writ of certiorari. 28 U. S. C. § 1257 (3). Justice SteveNS concedes the flaw in his argument when he admits that “a state court’s decision invalidating state legislation on federal constitutional grounds may be reversed by this Court if the state court misinterpreted the relevant federal constitutional standard.” Post, at 489. And contrary to his argument that today’s judgment finds “no precedent in this Court’s decisions,” post, at 482, we have frequently reversed State Supreme Court decisions invalidating state statutes or local ordinances on the basis of equal protection analysis more stringent than that sanctioned by this Court. E. g., Idaho Dept. of Employment v. Smith, 434 U. S. 100 (1977); Arlington County Board v. Richards, 434 U. S. 5 (1977); Richardson v. Ramirez, 418 U. S. 24 (1974); Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). See also North Dakota Pharmacy Board v. Snyder’s Drug Stores, Inc., 414 U. S. 156 (1973); Dean v. Gadsen Times Publishing Corp., 412 U. S. 543 (1973); McDaniel v. Barresi, 402 U. S. 39 (1971). Never have we suggested that our review of the judgments in such cases differs in any relevant respect because they were reached by state courts rather than federal courts.
Indeed, Justice SteveNS has changed his own view. Previously he has stated that state-court decisions under the Fourteenth Amendment granting litigants “more protection than the Federal Constitution requires,” are in error. Idaho Dept. of Employment v. Smith, supra, at 104 (Stevens, J., dissenting in part). This is in agreement with the conclusion of one commentator:
“In reviewing state court resolutions of federal constitutional issues, the Supreme Court has not differentiated between those decisions which sustain and those which reject claims of federal constitutional right. In both instances, once having granted review, the Court has simply determined whether the state court’s federal constitutional decision is 'correct/ meaning, in this context, whether it is the decision that the Supreme Court would independently reach.” Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Bev. 1212, 1243 (1978) (footnote omitted).
Thus, Justice SteveNs’ argument in the dissenting opinion that today’s treatment of the instant case is extraordinary and unprecedented, see post, at 482, and n. 7, is simply wrong.
Respondents, citing the District Court’s Finding of Fact No. 12, App. A-19, also assert that the actual purpose for the Act was illegitimate: to “isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries.” Brief for Respondents 23. We accept the contrary holding of the Minnesota Supreme Court that the articulated purpose of the Act is its actual purpose. See 289 N. W. 2d, at 82. In equal protection analysis, this Court will assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces us to conclude that they “could not have been a goal of the legislation.” See Weinberger v. Wiesenfeld, 420 U. S. 636, 648, n. 16 (1975); Here, a review of the legislative history supports the Minnesota Supreme Court’s conclusion that the principal purposes of the Act were to promote conservation and ease solid waste disposal problems. The contrary evidence cited by respondents, see Brief for Respondents 29-31, is easily understood, in context, as economic defense of an Act genuinely proposed for environmental reasons. We will not invalidate a state statute under the Equal Protection Clause merely because some legislators sought to obtain votes for the measure on the basis of its beneficial side effects on state industry.
We express no view whether the District Court could have dismissed this case on the pleadings or granted summary judgment for the State on the basis of the legislative history, without hearing respondents’ evidence. See Vance v. Bradley, 440 U. S. 93, 109-112 (1979); Baydde Fish Flour Co. v. Gentry, 297 U. S. 422 (1936).
See n. 5, supra.
The court adopted the higher of two possible measurements of energy consumption from paperboard production, apparently because the lower figure contemplated the use of waste products, such as sawdust, for energy production. In addition, the court substituted a lower measurement of the energy consumption from plastic nonretumable production for that used in the study. 289 N. W. 2d, at 84-85.
This was the conclusion of the Midwest Research Institute study, see n. 5, supra. Brief for Petitioner 21.
The District Court also held that the Act violated substantive due process, and was apparently affirmed by the State Supreme Court on this ground. Conclusion of Law No. 1, App. A-23; 289 N. W. 2d, at 87, n. 20. From our conclusion under equal protection, however, it follows a fortiori that the Act does not violate the Fourteenth Amendment’s Due Process Clause. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 124-125 (1978); Ferguson v. Skrupa, 372 U. S. 726 (1963).
“The Congress shall have Power ... To regulate Commerce . . . among the several States . . . .” U. S. Const., Art. I, § 8, cl. 3.
The Minnesota Supreme Court did not reach the Commerce Clause issue. 289 N. W. 2d, at 87, n. 20. The parties and amici have fully briefed and argued the question, and because of the obvious factual connection between the rationality analysis under the Equal Protection Clause and the balancing of interests under the Commerce Clause, we will reach and decide the question. See New York City Transit Authority v. Beazer, 440 U. S. 568, 583, n. 24 (1979).
A court may find that a state law constitutes “economic protectionism” on proof either of discriminatory effect, see Philadelphia v. New Jersey, or of discriminatory purpose, see Hunt v. Washington Apple Advertising Comm’n, 432 U. S., at 352-353. Respondents advance a “discriminatory purpose” argument, relying on a finding by the District Court that the Act’s “actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plasties industry.” App. A-19. We have already considered and rejected this argument in the equal protection context, see n. 7, supra, and do so in this context as well.
Respondent Wells Dairy, an Iowa firm, sells 60% of its milk in plastic nonreturnable containers, and the remainder in other types of packages, including paperboard cartons. Tr. 419, 426, 439. The Chairman of the Board of respondent Marigold Foods, Inc., a Minnesota dairy, admitted at trial that his firm would continue to sell milk in plastic nonreturnable containers in other States, despite the passage of the Act. Id., at 474.
See n. 1, supra. The existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse. South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 187 (1938).
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_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.
Vencil PREWITT, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 15288.
United States Court of Appeals Sixth Circuit.
April 6, 1964.
Argued by and on the brief Ora F. Duval, Olive Hill, Ky., for appellant.
Moss Noble, Lexington, Ky. (Bernard T. Moynahan, Jr., U. S. Atty., William A. Watson, Asst. U. S. Atty., Lexington, Ky., on the brief), for appellee.
Before CECIL, O’SULLIVAN and PHILLIPS, Circuit Judges.
CECIL, Circuit Judge.
Appellant Vencil Prewitt seeks review of the order of the United States District Court for the Eastern District of Kentucky sustaining the final decision of the Secretary of Health, Education and Welfare holding that he was not entitled to disability benefits under the Social Security Act. (Title 42 U.S.C. § 401 et seq.)
The appellant, hereinafter called claimant, was severely injured in an automobile accident on February 20, 1960. His claim for benefits arises out of the injuries sustained in that accident. On October 13, 1960, the claimant made application to the Bureau of Old Age and Survivors Insurance of the Social Security Administration for a period of disability and disability insurance benefits. This application was denied on January 26, 1961, and subsequently an application for reconsideration was denied.
The claimant then made application for a hearing before a hearing examiner of the Social Security Administration. A hearing was conducted pursuant to this application by examiner L. Steele Trotter. The examiner disallowed the claim in a decision of October 30, 1961, and the Appeals Council declined to review the decision. The claimant then brought the action in the District Court which is now before us on appeal.
The scope of review of the District Court is limited to a transcript of the record upon which the administrative agency made its findings and decision. The district judge may remand the case to the Secretary for rehearing. Findings of fact made by the Secretary through his administrative agency are conclusive if supported by substantial evidence. (Section 405(g), Title 42, U.S.C.)
The only issue before the Social Security Administration was whether the claimant had established the degree of disability required for the allowance of insurance benefits. It is conceded that he met all other requirements. The issue before the district judge was whether the findings and decision of the Secretary denying disability benefits were supported by substantial evidence.
We look first to the medical reports since the allowance of disability benefits is conditioned on medically determined impairments. No oral medical evidence was taken in the hearing before the examiner. The claimant submitted reports of four physicians, Dr. William C. Roland, the orthopedic surgeon who attended the claimant at the time of the accident, Dr. Alec Spencer, the family physician, Dr. Harvey Chenault, a neuro surgeon, and Dr. James S. Rich, who submitted an x-ray report. The examiner-characterized these medical reports as meager and the district judge said they were not extensive. We agree with these appraisals of the reports.
Dr. Roland described the injury as of the date of the accident as follows: “He had been injured in an automobile wreck and suffered a supracondylar fracture of the left femur. Open reduction was carried out 3/16/60, after attempted closed reduction was unsuccessful, and the patient was discharged 4/5/60.” This is a meager description of bodily injuries to a man who was in a serious automobile accident in which his wife was badly injured and one man was killed.
The claimant has only a third grade education. He cannot read and can barely write his own name. In his early life he worked on a farm. For ten years before his injury he worked as a master carpenter. No one contends that the claimant can pursue his regular trade as a carpenter.
In view of the claimant’s physical condition and his obvious inability to pursue his normal work, his case ought not be decided on inadequate medical testimony. The hearing examiner advised the claimant at the time he was ready to start the hearing that he (the claimant) was entitled to be represented by a lawyer. This man was then fifty miles away from home. With his limited education and his limited financial means it should not be expected that he would be able to procure legal representation at that time. We think the examiner was fair but he was in the position of being both judge and advocate.
Medical evidence ought to show the practical effect of Dr. Roland’s report with reference to the degrees of flexion that the claimant has. It ought to show the degree of disability of the claimant and what limitations it imposes on his physical activities. There should be findings of fact consonant with the opinions of this court hereinafter cited. The claimant should be given an opportunity to develop his medical testimony with the assistance of legal counsel.
The examiner in his decision makes an inadequate findings of fact upon which to base a conclusion, so important to the claimant. The examiner says, "it would seem entirely possible for him to engage in some light activity requiring his carpentry skill.” (Emphasis added.) This is the crucial point in this case and it should not rest on supposition. “ ‘If there are other kinds of work which are available and for which the claimant is suited, it is the defendant’s burden to adduce some evidence from which a finding can be made that he can do some type-work; actually, not apparently. * * * Here, the Referee has made no such finding, %ohatsoever, based on evidence.’,r Rice v. Celebrezze, 315 F.2d 7, 17, C.A. 6; and Jones v. Celebrezze, 321 F.2d 192, 198, C.A. 6. The examiner concludes, “It is the opinion of this hearing examiner that this claimant’s impairments have not reached a point of severity to preclude substantial gainful activity.” This is a mere conclusion based on no adequate findings of fact.
In Kerner v. Flemming, 283 F.2d 916,. 921, C.A.2, the court said: “Mere theoretical ability to engage in substantial' gainful activity is not enough if no reasonable opportunity for this is available.” Two issues are involved: “What can applicant do, and what" employment opportunities are there for a man who can do-only what applicant can do?” Id. See also Hall v. Flemming, 289 F.2d 290, C.A. 6, and Hall v. Celebrezze, 314 F.2d 686, C.A. 6 (second appeal); Erickson v. Ribicoff, 305 F.2d 638, C.A. 6; Jarvis v. Ribicoff, 312 F.2d 707, C.A. 6; Rice v. Celebrezze, 315 F.2d 7, C.A. 6; Jones v. Celebrezze, 321 F.2d 192, C.A. 6; Butler v. Flemming, 288 F.2d 591, C.A. 5.
The district judge, in support of his conclusion, cited Jarvis v. Ribicoff, D.C., 202 F.Supp. 796, and Hall v. Flemming, D. C., 205 F.Supp. 770. These cases were subsequently reversed by our court. See Jarvis v. Ribicoff, 312 F.2d 707, C.A. 6 and Hall v. Celebrezze, 314 F.2d 686, 687.
The judgment of the District Court is reversed with instructions to remand the ease to the Secretary for an adequate development of medical testimony and findings of fact consistent with this opinion and prior opinions of this court above cited.
. Disability for the purpose of fixing a period of disability and for the allowance of disability insurance benefits means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, * * (Sections 416(i) and 423(c) (2), Title 42, U.S.C.)
. The patient was in a cast for about five months. “X-rays today (10/31/60) showed the fracture healed in good position and alignment. He now has approximately 90 degrees flexion, with maximum active flexion measuring 95 degrees, maximum active extension 160 degrees; that is, there is a 20 degree flexion deformity. This gives a total range of motion of the left knee of 65 degrees.”
. “Severe pain in left thigh, leg and back.” Ambulatory only part time. “1. Partial ankylosis of left knee — 40%. 2. Atrophy of muscles of left thigh. — 1" smaller than right. 3. Rheumatoid arthritis. 4. Probable ruptured disc L3014. Arthritis has involved the left knee at site of fracture. REMARKS: The defects listed .are permanent. There can be no improvement from the standpoint of the fracture. This man cannot do but little walking or standing.”
. “SPINE: In the erect position the patient has some tilt of Ms spine associated with the fact that he is unable to completely extend the left knee and stands with a slight pelvic tilt toward the left. The patient has some limitation of back movement by pain indicated in the upper lumbar region particularly on flexion and left lateral flexion without any true nerve radiation. In the prone position the tenderness is diffuse and largely upper lumbar. There is no focal tenderness over the lower lumbar interspaces even with quite deep and heavy pressure. EXTREMITIES : The left lower extremity has residual knee deformity and limitation of motion and operative sears about it. He (has) some 15 or 20 degrees of full range of flexion and at least this much defect of extension. I do not believe that the patient has any real sciatic pain on either straight leg raising and does not have Laseque sign on either side. MOTOR: There is diffuse atrophy throughout the left lower extremity. No certain focal neurogenic atrophy. No motor weakness demonstrable in the toes or feet. SENSORY: Intact throughout to the lumbrosacral dermatones. REFLEXES : Normal and equal including the knee jerks. The left knee jerk is even preserved.”
. “Examination of the lower dorsal spine, lumbar spine and sacrum by AP and lateral views and of the lumbosacral area by angled AP, spot lateral and two oblique views shows the following: There is moderate straightening of the lumbar curve and there is a very slight left lumbar scoliosis demonstrated. There is considerable asymmetry of the apophyseal joints at L4-L5 and at L5-S1. There are no isthmie defects. There are mild osteophytes involving the right lateral corners of the body of L4 and the anterior-superior corner of the body of L5. The lumbosacral joint space is-not narrowed, The sacroiliac joints have a normal appearance. I see no evidence of old or recent fracture or dislocation. Bone quality is good.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_authoritydecision
|
D
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CALIFORNIA v. AMERICAN STORES CO. et al.
No. 89-258.
Argued January 16, 1990
Decided April 30, 1990
Stevens, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 296.
H. Chester Horn, Jr., Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Karrvp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Michael J. Strumwasser, Special Assistant Attorney General, Sanford N. Grushin, Assistant Attorney General, and Lawrence R. Tapper and Ernest Martinez, Deputy Attorneys General.
Rex E. Lee argued the cause for respondents. With him on the brief were Carter G. Phillips, Mark D. Hopson, Donald B. Holbrook, and Kent T. Anderson.
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Jim Mattox, Attorney General of Texas, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, Aliene D. Evans, Assistant Attorney General, and Donna L. Nelson, Assistant Attorney General, Don Siegelman, Attorney General of Alabama, and Walter S. Turner, Chief Assistant Attorney General, Douglas B. Baily, Attorney General of Alaska, and Thomas E. Wagner, Assistant Attorney General, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Clarine Nardi Riddle, Attorney General of Connecticut, and Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and Jerome W. Hoffman, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, and Robert A. Marks and Ted Gamble Clause, Deputy Attorneys General, Jim Jones, Attorney General of Idaho, and Catherine K. Broad, Deputy Attorney General, Neil F. Hartigan, Attorney General of Illinois, Robert Ruiz, Solicitor General, and Christine H. Rosso, Senior Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General, James E. Tierney, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Michael F. Brockmeyer and R. Hartman Roemer, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and George K. Weber and Thomas M. Alpert, Assistant Attorneys General, Hubert H. Humphrey III, Attorney General of Minnesota, Stephen P. Kilgriff Deputy Attorney General, Thomas F. Pursell, Assistant Attorney General, and James P. Spencer, Special Assistant Attorney General, Brian McKay, Attorney General of Nevada, and J. Kenneth Creighton, Deputy Attorney General, Peter N. Perretti, Jr., Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, O. Peter Shenvood, Solieitor General, and Lloyd E. Constantine, Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Eugene F. Waye, Chief Deputy Attorney General, and Carl S. Hisiro, Senior Deputy Attorney General, James E. O’Neil, Attorney General of Rhode Island, and Edmund F. Murray, Jr., Special Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, and Jeffrey P. Hallem, Assistant Attorney General, Charles W. Bur son, Attorney General of Tennessee, and Perry Craft, Deputy Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, and Julie Brill, Assistant Attorney General, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, Roger W. Tompkins, Attorney General of West Virginia, Daniel N. Huck, Deputy Attorney General, and Robert William Schulenberg III, Senior Assistant Attorney General, and Joseph B. Meyer, Attorney General of Wyoming; and for the Center for Public Interest Law by Robert C. Fellmeth.
Briefs of amici curiae urging affirmance were filed for the Business Roundtable by Thomas B. Leary and Janet L. McDavid; for the California Retailers Association et al. by Theodore B. Olson, James R. Martin, Phillip H. Rudolph, and Adrian A. Kragen; and for the United Food and Commercial Workers International Union et al. by George R. Murphy, Nicholas W. Clark, Robert W. Gilbert, Laurence D. Steinsapir, and D. William Heine.
Justice Stevens
delivered the opinion of the Court.
By merging with a major competitor, American Stores Co. (American) more than doubled the number of supermarkets that it owns in California. The State sued, claiming that the merger violates the federal antitrust laws and will harm consumers in 62 California cities. The complaint prayed for a preliminary injunction requiring American to operate the acquired stores separately until the case is decided, and then to divest itself of all of the acquired assets located in California. The District Court granted a preliminary injunction preventing American from integrating the operations of the two companies. The Court of Appeals for the Ninth Circuit agreed with the District Court’s conclusion that California had made an adequate showing of probable success on the merits, but held that the relief granted by the District Court exceeded its authority under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U. S. C. § 26. In its view, the “injunctive relief... against threatened loss or damage” authorized by § 16 does not encompass divestiture, and therefore the “indirect divestiture” effected by the preliminary injunction was impermissible. 872 F. 2d 837 (1989). We granted certiorari to resolve a conflict in the Circuits over whether divestiture is a form of injunctive relief within the meaning of § 16. 493 U. S. 916 (1989). We conclude that it is.
I
American operates over 1,500 retail grocery stores in 40 States. Prior to the merger, its 252 stores in California made it the fourth largest supermarket chain in that State. Lucky Stores, Inc. (Lucky), which operated in seven Western and Midwestern States, was the largest, with 340 stores. The second and third largest, Von’s Companies and Safeway Stores, were merged in December 1987. 697 F. Supp. 1125, 1127 (CD Cal. 1988); Pet. for Cert. 3.
On March 21, 1988, American notified the Federal Trade Commission (FTC) that it intended to acquire all of Lucky’s outstanding stock for a price of $2.5 billion. The FTC conducted an investigation and negotiated a settlement with American. On May 31, it simultaneously filed both a complaint alleging that the merger violated § 7 of the Clayton Act and a proposed consent order disposing of the §7 charges subject to certain conditions. Among those conditions was a requirement that American comply with a “Hold Separate Agreement” preventing it from integrating the two companies’ assets and operations until after it had divested itself of several designated supermarkets. American accepted the terms of the FTC’s consent order. In early June, it acquired and paid for Lucky’s stock and consummated a Delaware “short form merger.” 872 F. 2d, at 840; Brief for Respondents 2. Thus, as a matter of legal form American and Lucky were merged into a single corporate entity on June 9, 1988, but as a matter of practical fact their business operations have not yet been combined.
On August 31, 1988, the FTC gave its final approval to the merger. The next day California filed this action in the United States District Court for the Central District of California. The complaint alleged that the merger violated § 1 of the Sherman Act, 15 U. S. C. § 1, and § 7 of the Clayton Act, 15 U. S. C. §18, and that the acquisition, “if consummated,” would cause considerable loss and damage to the State: Competition and potential competition “in many relevant geographic markets will be eliminated,” App. 61, and “the prices of food and non-food products might be increased.” Id., at 62. In its prayer for relief, California sought, inter alia, (1) a preliminary injunction “requiring American to hold and operate separately from American all of Lucky’s California assets and businesses pending final adjudication of the merits”; (2) “such injunctive relief, including rescission... as is necessary and appropriate to prevent the effects” alleged in the complaint; and (3) “an injunction requiring American to divest itself of all of Lucky’s assets and businesses in the State of California.” Id., at 65, 66-67.
The District Court granted California’s motion for a temporary restraining order and, after considering extensive statistical evidence, entered a preliminary injunction. Without reaching the Sherman Act claim, the court concluded that the State had proved a prima facie violation of § 7 of the Clayton Act. On the question of relief, the District Court found that the State had made an adequate showing “that Californians will be irreparably harmed if the proposed merger is completed,” 697 F. Supp., at 1134, and that the harm the State would suffer if the merger was not enjoined “far outweighs” the harm that American will suffer as the result of an injunction. Id., at 1135. The court also rejected American’s argument that the requested relief was foreclosed by a prior decision of the Court of Appeals for the Ninth Circuit holding that divestiture is not a remedy authorized by § 16 of the Clayton Act. American contended that the proposed injunction was “tantamount to divestiture” since the merger of the two companies had already been completed, but the District Court disagreed. It held that since the FTC’s Hold Separate Agreement was still in effect, the transaction was not a completed merger.
American filed an interlocutory appeal pursuant to 28 U. S. C. § 1292(a)(1). The Court of Appeals for the Ninth Circuit first held that the District Court had not abused its discretion in finding that California had proved a likelihood of success on the merits and the probability of irreparable harm. Nevertheless, on the authority of its earlier decision in International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F. 2d 913 (1975) (IT&T), it set aside the injunction. The Court of Appeals reasoned that its own prior decisions established both that “‘divestiture is not an available remedy in private actions under § 16 of the Clayton Act/” and that “section 16 does not permit indirect divestiture, that is, an injunction which on its face does not order divestiture but which has the same effect. IT&T, 518 F. 2d at 924.” 872 F. 2d, at 844. The Court of Appeals applied this rule to conclude that the injunction issued by the District Court was legally impermissible. Observing that under the injunction “these stores must operate as if Lucky had never been acquired by American Stores at all,” the Court of Appeals held that “[s]uch an injunction requires indirect divestiture.” Id., at 845. Finally, the Court of Appeals added that the District Court had “compounded its misapprehension of the law of divestiture” by misunderstanding “the legal status of the merger.” Specifically, the District Court erred by concluding that the “FTC’s consent order” undid “the legal effect of this merger” which “had already taken place” according to Delaware corporation law. Ibid.
On California’s application, Justice O’Connor entered a stay continuing the District Court’s injunction pending further review by this Court. 492 U. S. 1301 (1989). We then granted certiorari to resolve the conflict between this decision and the earlier holding of the Court of Appeals for the First Circuit in CIA. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F. 2d 404 (1985). We now reverse.
II
In its IT&T opinion, the Court of Appeals for the Ninth Circuit reasoned that the term “injunctive relief” as used in § 16 is ambiguous and that it is necessary to review the statute’s legislative history to determine whether it includes divestiture. Then, based on its reading of a colloquy during a hearing before a subcommittee of the Judiciary Committee of the House of Representatives, it concluded that the draftsmen of the bill did not intend to authorize the remedies of “dissolution” or “divestiture” in actions brought by private litigants. 518 F. 2d, at 921-922. The Court of Appeals for the First Circuit has rejected that reasoning. It found instead that a fair reading of the statutory text, buttressed by recognized canons of construction, required a construction of the words “injunctive relief” broad enough to encompass divestiture. Moreover, it doubted whether the references to “dissolution” in the legislative history referred to “divestiture,” and did not consider this evidence sufficiently probative, in any event, to justify a restrictive reading of the Act that seemed inconsistent with its basic policy. 754 F. 2d, at 415-428.
American endorses the analysis of the Court of Appeals for the Ninth Circuit, but places greater reliance on two additional arguments. First, it argues that there is a significant difference between the text of § 15 of the Act, which authorizes equitable relief in actions brought by the United States, and the text of § 16, which applies to other parties. Specifically, it argues that the former is broad enough to encourage “structural relief” whereas the latter is limited to relief against anticompetitive “conduct.” Second, reading § 16 in its historical context, American argues that it reflects a well-accepted distinction between prohibitory injunctions (which are authorized) and mandatory injunctions (which, American argues, are not).
American’s argument directs us to two provisions in the statutory text, and that is the natural place to begin our analysis. Section 15 grants the federal district courts jurisdiction “to prevent and restrain violations of this Act” when United States attorneys “institute proceedings in equity to prevent and restrain such violations” through petitions “praying that such violation shall be enjoined or otherwise prohibited.” Section 16 entitles “[a]ny person, firm, corporation, or association... to sue for and have injunctive relief... against threatened loss or damage by a violation of the antitrust laws... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity.”
It is agreed that the general language of § 15, which provides that antitrust violations “shall be enjoined or otherwise prohibited,” is broad enough to authorize divestiture. Indeed, in Government actions divestiture is the preferred remedy for an illegal merger or acquisition. As we wrote in the Du Pont case:
“Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is inter-corporate combination and control, and it is reasonable to think immediately of the same remedy when §7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated §7 cases which have been reported, most decreed divestiture as a matter of course. Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court’s mind when a violation of §7 has been found.” United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 329-331 (1961) (footnotes omitted).
On its face, the simple grant of authority in § 16 to “have injunctive relief” would seem to encompass divestiture just as plainly as the comparable language in § 15. Certainly § 16’s reference to “injunctive relief... against threatened loss or damage” differs from § 15’s grant of jurisdiction to “prevent and restrain violations,” but it obviously does not follow that one grant encompasses remedies excluded from the other. Indeed, we think it could plausibly be argued that § 16’s terms are the more expansive. In any event, however, as the Court of Appeals for the First Circuit correctly observed, § 16 “states no restrictions or exceptions to the forms of injunctive relief a private plaintiff may seek, or that a court may order.... Rather, the statutory language indicates Congress’ intention that traditional principles of equity govern the grant of injunctive relief.” 754 F. 2d, at 416. We agree that the plain text of § 16 authorizes divestiture decrees to remedy § 7 violations.
American rests its contrary argument upon two phrases in § 16 that arguably narrow its scope. The entitlement “to sue for and have injunctive relief” affords relief “against threatened loss or damage by a violation of the antitrust laws.” Moreover, the right to such relief exists “when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity....”
In this case, however, the requirement of “threatened loss or damage” is unquestionably satisfied. The allegations of the complaint, the findings of the District Court, and the opinion of the Court of Appeals all assume that even if the merger is a completed violation of law, the threatened harm to California consumers persists. If divestiture is an appropriate means of preventing that harm, the statutory reference to “threatened loss or damage” surely does not negate the court’s power to grant such relief.
The second phrase, which refers to “threatened conduct that will cause loss or damage,” is not drafted as a limitation on the power to grant relief, but rather is a part of the general reference to the standards that should be applied in fashioning injunctive relief. It is surely not the equivalent of a directive stating that unlawful conduct may be prohibited but structural relief may not be mandated. Indeed, as the Ninth Circuit’s analysis of the issue demonstrates, the distinction between conduct and structure — or between prohibitory and mandatory relief — is illusory in a case of this kind. Thus, in the IT&T case the court recognized that an injunction prohibiting the parent company from voting the stock of the subsidiary should not be treated differently from a mandatory order of divestiture. And in this case the court treated the Hold Separate Agreement as a form of “indirect divestiture.” In both cases the injunctive relief would unquestionably prohibit “conduct” by the defendants. American’s textual arguments — which rely on a distinction between mandatory and prohibitive relief — do not explain why such remedies would not be appropriate.
If we assume that the merger violated the antitrust laws, and if we agree with the District Court’s finding that the conduct of the merged enterprise threatens economic harm to California consumers, the literal text of § 16 is plainly sufficient to authorize injunctive relief, including an order of divestiture, that will prohibit that conduct from causing that harm. This interpretation is consistent with our precedents, which have upheld injunctions issued pursuant to § 16 regardless of whether they were mandatory or prohibitory in character. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 129-133 (1969) (reinstating injunction that required defendants to withdraw from patent pools); see also Silver v. New York Stock Exchange, 373 U. S. 341, 345, 365 (1963) (reinstating judgment for defendants in suit to compel installation of wire services). We have recognized when construing § 16 that it was enacted “not merely to provide private relief, but... to serve as well the high purpose of enforcing the antitrust laws.” Zenith Radio Corp., 395 U. S., at 130-131. We have accordingly applied the section “with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice ‘adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’” Ibid., quoting Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944).
Finally, by construing §16 to encompass divestiture decrees we are better able than is American to harmonize the section with its statutory context. The Act’s other provisions manifest a clear intent to encourage vigorous private litigation against anticompetitive mergers. Section 7 itself creates a relatively expansive definition of antitrust liability: To show that a merger is unlawful, a plaintiff need only prove that its effect “may be substantially to lessen competition.” Clayton Act § 7, 38 Stat. 731, 15 U. S. C. § 18 (emphasis supplied). See Brown Shoe Co. v. United States, 370 U. S. 294, 323 (1962). In addition, § 5 of the Act provided that during the pendency of a Government action, the statute of limitations for private actions would be tolled. The section also permitted plaintiffs to use the final judgment in a Government antitrust suit as prima facie evidence of liability in a later civil suit. Private enforcement of the Act was in no sense an afterthought; it was an integral part of the congressional plan for protecting competition. See Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, 318 (1965). Congress also made express its view that divestiture was the most suitable remedy in a suit for relief from a § 7 violation: In § 11 of the Act, Congress directed the FTC to issue orders requiring that a violator of § 7 “cease and desist from the violation,” and, specifically, that the violator “divest itself of the stock held” in violation of the Act. Section 16, construed to authorize a private divestiture remedy when appropriate in light of equitable principles, fits well in a statutory scheme that favors private enforcement, subjects mergers to searching scrutiny, and regards divestiture as the remedy best suited to redress the ills of an anticompetitive merger.
Ill
Although we do not believe the statutory language is ambiguous, we nonetheless consider the legislative history that persuaded the Ninth Circuit to place a narrow construction on § 16. To understand that history, however, it is necessary to place the statute in its historical perspective.
The Sherman Act became law just a century ago. It matured some 15 years later, when, under the administation of Theodore Roosevelt, the Sherman Act “was finally being used against trusts of the dimension that had called it into being, and with enough energy to justify the boast that the President was using a Big Stick.” W. Letwin, Law and Economic Policy in America 240 (1965). Two of the most famous prosecutions concluded in 1911, with decisions from this Court endorsing the “Rule of Reason” as the principal guide to the construction of the Sherman Act’s general language. Standard Oil Co. of New Jersey v. United States, 221 U. S. 1; United States v. American Tobacco Co., 221 U. S. 106. In consequence of the violations found in those two cases, wide-ranging injunctions were entered requiring the separation of the “oil trust” and the “tobacco trust” into a number of independent, but still significant, companies. The relief granted received mixed reviews. In some quarters, the cases were hailed as great triumphs over the forces of monopoly; in others, they were regarded as Pyrrhic victories.
Concern about the adequacy of the Sherman Act’s prohibition against combinations in restraint of trade prompted President Wilson to make a special address to Congress in 1914 recommending that the antitrust laws be strengthened. 2 The New Democracy, The Public Papers of Woodrow Wilson 81-89 (R. Baker & W. Dodd eds. 1926). Congressman Clayton, the Chairman of the House Judiciary Committee, promptly appointed a subcommittee to prepare the legislation. The bill drafted by the subcommittee contained most of the provisions that were eventually enacted into the law now known as the Clayton Act. The statute reenacted certain provisions of the Sherman Act and added new provisions of both a substantive and procedural character. Letwin, Law and Economic Policy in America, at 272-273; 2 A. Link, Wilson: The New Freedom 426 (1956). Thus, § 4 of the Sherman Act, which authorizes equitable relief in actions brought by the United States, was reenacted as § 15 of the Clayton Act, while § 16 filled a gap in the Sherman Act by authorizing equitable relief in private- actions. Section 7 of the Clayton Act made stock acquisitions of competing companies more vulnerable, and §§4 and 5 gave special procedural advantages to private litigants. The reform project had broad social significance, and it is obvious that the Act as a whole is fairly characterized as important remedial legislation.
Some proponents of reform, however, were critical of the bill for not going further. Thus, for example, proposals that were never enacted would have expressly authorized private individuals to bring suit for the dissolution of corporations adjudged to have violated the law and for appointment of receivers to wind up the corporation’s affairs. Samuel Untermyer, a New York lawyer who urged Congress to give private plaintiffs express authority to seek dissolution decrees, stated his views in a colloquy with Congressman John Floyd during a hearing on the bill before the House Judiciary Committee. Floyd told Untermyer that “We did not intend by section 13 to give the individual the same power to bring a suit to dissolve the corporation that the Government has,” and added that the committee Members had discussed the matter very thoroughly. Untermyer replied that “the very relief that the man needs nine times out of ten is the dissolution of the corporation, because... it may not be doing any specific act of illegality, but its very existence, in violation of law, is the thing that is injuring him.” Hearings on Trust Legislation before the House Committee on the Judiciary, 63d Cong., 2d Sess., 842-846 (1914) (House Hearings).
Two weeks later, Louis Brandéis, testifying on behalf of the administration before the same committee, was asked whether he favored a proposal “to give the individual the right to file a bill in equity for the dissolution of one of these combinations, the same right which the Government now has and which it is its duty to perform.” Brandéis responded that the proposal was not sound and added:
“It seems to me that the right to change the status [of the combination], which is the right of dissolution, is a right which ought to be exercised only by the Government, although the right for full redress for grievances and protection against future wrongs is a right which every individual ought to enjoy.
“Now, all of this procedure ought to be made so as to facilitate, so far as possible, the enforcement of the law in aid, on the one hand, of the Government, and in aid, on the other hand, of the individual. But that fundamental principle is correct, that the Government ought to have the right, and the sole right, to determine whether the circumstances are such as to call for a dissolution of an alleged trust.” Id., at 649-650.
American relies on these exchanges to support two slightly different arguments. First, it suggests that the committee recognized a distinction between relief directed at conduct and relief that is designed to change a company’s status or structure. Second, it suggests that Congressman Floyd’s statements permit an inference that the Congress as a whole rejected the possibility of a private dissolution remedy, and thereby rejected divestiture as well, because divestiture is a species of dissolution. Neither suggestion is persuasive.
We have already concluded that the suggested distinction between divestiture and injunctions that prohibit future conduct is illusory. These excerpts, moreover, from the legislative history provide even less support for such a categorical distinction than does the text of § 16 itself.
The flaw in American’s second suggestion is its assumption that the dissolution proposals submitted to Congress contemplated nothing more extreme than divestiture. Dissolution could be considerably more awesome. As the New York Court of Appeals ominously declared before affirming a decree against the North River Sugar Refining Company, dissolution was a “judgment... of corporate death,” which “representad] the extreme rigor of the law.” This meaning is evident from the text of the Senate amendment proposing private dissolution suits, which provided for a receiver to administer the doomed corporation’s assets.
The concept of dissolution, of course, also encompassed remedies comparable to divestiture, or to our present-day understanding of dissolution. It was one thing to dissolve a pool, trust, combination, or merger, and quite another to atomize, or to revoke the charter of, a large corporation. In the early part of this century, however, new forms of corporate organization were arising at a pace that outstripped the vocabulary used to describe them. Concern about monopoly and competition dominated domestic politics, but people disagreed about what these things were, and about why, and to what extent, they were good or bad. Men like McReynolds, Wilson’s Attorney General, and Brandéis, the President’s chief adviser on antitrust policy, could concur upon the need for forceful antitrust legislation and prosecution while finding themselves parted — as their later battles on this Court made clear — by a vast gulf in their understandings of economic theory and marketplace ethics. Absent agreement on the terms of debate, dissolution could mean the corporate death sentence, or the decrees of the Standard Oil and American Tobacco cases, or something else. So long as this ambiguity persisted, dissolution had to be considered a public remedy, one that encompassed a power peculiarly suited to transgressions so “material and serious” as to “harm or menace the public welfare” in a manner transcending the “quarrels of private litigants.” For those like Brandéis, who viewed dissolution as desirable only if treated not as a moral penalty but rather as a necessary economic remedy, it would be imprudent to allow private parties to control a weapon potentially so lethal. Although it may now be second nature to conceive of dissolution in economic terms compatible with the policy Brandéis championed, this view was anything but uncontroversial when the Act was drafted.
Once the historical importance of the distinction between dissolution and divestiture is understood, American’s argument from the legislative history becomes singularly unpersuasive. The rejection of a proposed remedy that would terminate the corporate existence of American and appoint a receiver to supervise the disposition of its assets is surely not the equivalent of the rejection of a remedy that would merely rescind a purchase of stock or assets. Dissolution was too vague and ill defined a remedy to be either incorporated into or excluded from § 16 as such; Congress instead sensibly avoided the problematic word and spoke in terms of equitable relief drawn to redress damage or loss which a private party might suffer by consequence of the Act’s violation. That divestiture was encompassed within the concept of dissolution as understood at the time of the Clayton Act’s framing does not imply that the equitable formulation of § 16 cannot permit divestiture while excluding more severe sanctions that also traveled under the name “dissolution.”
For similar reasons, we need not consider how much weight might otherwise be due to Graves v. Cambria Steel Co., 298 F. 761 (NY 1924), a brief District Court decision by Judge Learned Hand upon which American relies heavily. The suit appears to have been brought by dissatisfied shareholders of a target corporation who wished to dissolve the new merged entity. The plaintiffs sought relief under § 16 of the Clayton Act. Judge Hand remarked that the suit “is really a suit for the dissolution of a monopoly pro tanto. I cannot suppose that any one would argue that a private suit for dissolution would lie under section 16 of the Clayton Act.” 298 F., at 762. Not only does Hand, like Floyd, Untermyer, and Brandéis before him, refer to dissolution rather than divestiture, but, moreover, the state corporation law overtones of the inchoate complaint make it possible that the suit implicated the more drastic forms of dissolution.
The inferences that American draws from its excerpts from the subcommittee hearings simply are not confirmed by anything that has been called to our attention in the Committee Reports, the floor debates, the Conference Report, or contemporaneous judicial interpretations. Indeed, a fair reading of the entire legislative history supports the conclusion that § 16 means exactly what it says when it endorses the “conditions and principles” governing injunctive relief in courts of equity: that the provision should be construed generously and flexibly pursuant to principles of equity. See CIA. Petrolera Caribe, Inc., 754 F. 2d, at 418-427. As the Court stated in Hecht Co. v. Bowles, 321 U. S., at 329:
“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.”
More recently, in Weinberger v. Romero-Barcelo, 456 U. S. 305, 313 (1982), we observed that when Congress endows the federal courts with equitable jurisdiction, Congress acts aware of this longstanding tradition of flexibility. “ ‘Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.’” Ibid., quoting Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946). These principles unquestionably support a construction of the statute that will enable a chancellor to impose the most effective, usual and straightforward remedy to rescind an unlawful purchase of stock or assets. The fact that the term “divestiture” is used to describe what is typically nothing more than the familiar remedy of rescission does not place the remedy beyond the normal reach of the chancellor.
IV
Our conclusion that a district court has the power to order divestiture in appropriate cases brought under § 16 of the Clayton Act does not, of course, mean that such power should be exercised in every situation in which the Government would be entitled to such relief under § 15. In a Government case the proof of the violation of law may itself establish sufficient public injury to warrant relief. See Du Pont, 366 U. S., at 319-321; see also Virginian R. Co. v. Railway Employees, 300 U. S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved”); United States v. San Francisco, 310 U. S. 16, 30-31 (1940) (authorizing issuance of injunction at
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Oliver WILSON, Defendant-Appellant.
No. 80-5149.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 19, 1980.
Decided Jan. 22, 1981.
Charles S. Brown, Detroit, Mich, (court-appointed), for defendant-appellant.
James K. Robinson, U. S. Atty., Harold Z. Gurewitz, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
Before BROWN, KENNEDY and MARTIN, Circuit Judges.
PER CURIAM.
Charles Oliver Wilson appeals his conviction of eleven counts of violating 18 U.S.C. §§ 2 and 1341, and seven counts of violating 18 U.S.C. §§ 2 and 1001. Appellant was the principal operator and president of C. Wilson Laboratory Associates, Inc., which provided testing service for Detroit area doctors. It also referred, pursuant to an agreement, testing requests for those patients insured under the federally funded medicaid program to Advance Laboratory of Dearborn, Michigan. For each referred request, Advance paid the Wilson Laboratory amounts up to $28.00.
During the time period relevant to the indictment, the Michigan medicaid program paid laboratories which performed eligible testing services by means of Michigan Treasurer’s Warrants which were mailed to the laboratories. It was established at trial that the Wilson Laboratory personnel, at appellant’s direction, created fictitious test requests. On a daily basis, they referred to Advance Laboratory test requests when no tests had been ordered by the physician, or requests for more comprehensive testing than that ordered. Advance copied the information from the requisition forms onto the billing forms which it submitted to the state, which in turn mailed payments to Advance.
Appellant contends that the mailings by the state agency were not sufficiently related to his scheme of supplying Advance with fraudulent claims information to sustain a conviction under the mail fraud statute, 18 U.S.C. § 1341. He seeks support from United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). That case involved the § 1341 conviction of a man who obtained goods and services from motels by using a stolen credit card. The Supreme Court held that the mailings of the invoices by the motel operators to the bank which issued the credit card were insufficiently related to the defendant’s scheme to bring his conduct within the statute. The Court observed that “Respondent’s scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way upon which of his victims [the motel operator, the bank, or the credit card holder] ultimately bore the loss.” 414 U.S. at 402, 94 S.Ct. at 649 (footnote omitted).
We agree with the government’s argument that Maze is distinguishable. Appellant’s scheme to defraud had not come to fruition prior to the mailings of the payments to Advance. The mailings were an integral part of an ongoing scheme, and essential to its success. See United States v. Street, 529 F.2d 226 (6th Cir. 1976); United States v. Huber, 603 F.2d 387, 400 (2nd Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). That the Advance employees charged in connection with the scheme have been acquitted is irrelevant.
Appellant’s second contention challenges his conviction of violating 18 U.S.C. § 1001. He asserts that there was insufficient proof that the false requisition forms related to a “matter within the jurisdiction of any department or agency of the United States.” Appellant is raising this issue for the first time on appeal. The trial judge took judicial notice of this element of the offense, and instructed the jury accordingly. Having failed to object to this aspect of the charge at trial, appellant is precluded by Rule 30 of the Federal Rules of Criminal Procedure from arguing on appeal that it was error.
The judgment of the District Court, 490 F.Supp. 713, is affirmed.
. The applicable parts of the mail fraud statute provide as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do ... knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both.
A person “causes” the mails to be used when he “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended .... ” Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). There is abundant evidence to support the conclusion that appellant “caused” the use of the mails by the state agency.
. Section 1001 provides:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
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_caseorigin
|
160
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
MARTINEZ v. COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT
No. 98-7809.
Argued November 9, 1999
Decided January 12, 2000
Stevens, X, delivered the opinion of the Court, in which Rehnquist, C. X, and O’Connok, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JX, joined. Kennedy, X, post, p. 164, and Breyer, X, post, p. 164, filed concurring opinions. Scaua, X, filed an opinion concurring in the judgment, post, p. 165.
Ronald D. Maines, by appointment of the Court, 526 U. S. 1110, argued the cause and filed briefs for petitioner.
Robert M. Foster, Supervising Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Laura Whitcomb Halgren, Supervising Deputy Attorney General.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Barbara E. Bergman and Ephraim Margolin filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. In Faretta v. California, 422 U. S. 806 (1975), we decided that the defendant also “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” Id., at 807. Although that statement arguably embraces the entire judicial proceeding, we also phrased the question as whether a State may “constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.” Ibid. Our conclusion in Faretta extended only to a defendant’s “constitutional right to conduct his own defense.” Id., at 836. Accordingly, our specific holding was confined to the right to defend oneself at trial. We now address the different question whether the reasoning in support of that holding also applies when the defendant becomes an appellant and assumes the burden of persuading a reviewing court that the conviction should be reversed. We have concluded that it does not.
I
Martinez describes himself as a self-taught paralegal with 25 years’ experience at 12 different law firms. See App. 13. While employed as an office assistant at a firm in Santa Ana, California, Martinez was accused of converting $6,000 of a client’s money to his own use. He was charged in a two-count information with grand theft and the fraudulent appropriation of the property of another. He chose to represent himself at trial before a jury, because he claimed “‘there wasn’t an attorney on earth who’d believe me once he saw my past [criminal record].’ ” Id., at 15. The jury acquitted him on Count 1, grand theft, but convicted him on Count 2, embezzlement. The jury also found that he had three prior convictions; accordingly, under California’s “three strikes” law, the court imposed a mandatory sentence of 25-years-to-life in prison. See Cal. Penal Code Ann. §§ 667(d) and (e)(2) (West 1999). Martinez filed a timely notice of appeal as well as a motion to represent himself and a waiver of counsel. The California Court of Appeal denied his motion, and the California Supreme Court denied his application for a writ of mandate. While the California Supreme Court did not issue an opinion in this ease, the Court of Appeal previously had explained:
“There is no constitutional right to self-representation on the initial appeal as of right. The right to counsel on appeal stems from the due process and equal protection clauses of the Fourteenth Amendment, not from the Sixth Amendment, which is the foundation on which Faretta is based. The denial of self-representation at this level does not violate due process or equal protection guarantees.” People v. Scott, 64 Cal. App. 4th 550, 554, 75 Cal. Rptr. 2d 315, 318 (1998).
We granted certiorari because Martinez has raised a question on which both state and federal courts have expressed conflicting views. 526 U. S. 1064 (1999). We now affirm.
II
The Faretta majority based its conclusion on three interrelated arguments. First, it examined historical evidence identifying a right of self-representation that had been protected by federal and state law since the beginning of our Nation, 422 U. S., at 812-817. Second, it interpreted the structure of the Sixth Amendment, in the light of its English and colonial background, id., at 818-832. Third, it concluded that even though it “is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts,” a knowing and intelligent waiver “must be honored out of That respect for the individual which is the lifeblood of the law.’ Illinois v. Allen, 397 U. S. 337, 350-351 [(1970)].” Id., at 834. Some of the Court’s reasoning is applicable to appellate proceedings as well as to trials. There are, however, significant distinctions.
The historical evidence relied upon by Faretta as identifying a right of self-representation is not always useful because it pertained to times when lawyers were scarce, often mistrusted, and not readily available to the average person accused of crime. For one who could not obtain a lawyer, self-representation was the only feasible alternative to asserting no defense at all. Thus, a government’s recognition of an indigent defendant’s right to represent himself was comparable to bestowing upon the homeless beggar a “right” to take shelter in the sewers of Paris. Not surprisingly, early precedent demonstrates that this “right” was not always used to the defendant’s advantage as a shield, but rather was often employed by the prosecution as a sword. The principal ease cited in Faretta is illustrative. In Adams v. United States ex rel. McCann, 317 U. S. 269 (1942), the Court relied on the existence of the right of self-representation as the basis for finding that an unrepresented defendant had waived his right to a trial by jury.
It has since been recognized, however, that an indigent defendant in a criminal trial has a constitutional right to the assistance of appointed counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963). Thus, an individual’s decision to represent himself is no longer compelled by the necessity of choosing self-representation over incompetent or nonexistent representation; rather, it more likely reflects a genuine desire to “ 'conduct his own cause in his own words.’ ” Faretta, 422 U. S., at 823 (footnote omitted). Therefore, while Faretta is correct in concluding that there is abundant support for the proposition that a right to self-representation has been recognized for centuries, the original reasons for protecting that right do not have the same force when the availability of competent counsel for every indigent defendant has displaced the need — although not always the desire — for self-representation.
The scant historical evidence pertaining to the issue of self-representation on appeal is even less helpful. The Court in Faretta relied upon the description of the right in §35 of the Judiciary Act of 1789, 1 Stat. 92, which states that “the parties may plead and manage their own causes personally or by the assistance of such counsel....” 422 U. S., at 812. It is arguable that this language encompasses appeals as well as trials. Assuming it does apply to appellate proceedings, however, the statutory right is expressly limited by the phrase “as by the rules of the said courts.” 1 Stat. 92. Appellate courts have maintained the discretion to allow litigants to “manage their own causes” — and some such litigants have done so effectively. That opportunity, however, has been consistently subject to each court’s own rules.
We are not aware of any historical consensus establishing a right of self-representation on appeal. We might, nonetheless, paraphrase Faretta and assert: No State or Colony ever forced counsel upon a convicted appellant, and no spokesman ever suggested that such a practice would be tolerable or advisable. 422 U. S., at 832. Such negative historical evidence was meaningful to the Faretta Court, because the fact that the “[dog] had not barked” arguably demonstrated that early lawmakers intended to preserve the “long-respected right of self-representation” at trial. Ibid. Historical silence, however, has no probative foree in the appellate context because there simply was no long-respected right of self-representation on appeal. In fact, the right of appeal itself is of relatively recent origin.
Appeals as of right in federal courts were nonexistent for the first century of our Nation, and appellate review of any sort was “rarely allowed.” Abney v. United States, 431 U. S. 651, 656, n. 3 (1977). The States, also, did not generally recognize an appeal as of right until Washington became the first to constitutionalize the right explicitly in 1889. There was similarly no right to appeal in criminal eases at common law, and appellate review of any sort was “limited” and “rarely used.” Thus, unlike the inquiry in Faretta, the historical evidence does not provide any support for an affirmative constitutional right to appellate self-representation.
The Faretta majority’s reliance on the structure of the Sixth Amendment is also not relevant. The Sixth Amendment identifies the basic rights that the accused shall enjoy in “all criminal prosecutions.” They are presented strictly as rights that are available in preparation for trial and at the trial itself. The Sixth Amendment does not include any right to appeal. As we have recognized, “[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute.” Abney, 431 U. S., at 656. It necessarily follows that the Amendment itself does not provide any basis for finding a right to self-representation on appeal.
The Faretta majority’s nontextual interpretation of the Sixth Amendment also included an examination of British criminal jurisprudence and a reference to the opprobrious trial practices before the Star Chamber. 422 U. S., at 821-824. These inquiries into historical English practices, however, again do not provide a basis for extending Faretta to the appellate process, because there was no appeal from a criminal conviction in England until 1907. See Griffin v. Illinois, 351 U. S. 12, 21 (1956) (Frankfurter, J., concurring in judgment); 7 Edw. VII, ch. 23 (1907). Indeed, none of our many cases safeguarding the rights of an indigent appellant has placed any reliance on either the Sixth Amendment or on Faretta. See, e. g., Douglas v. California, 372 U. S. 353, 356-358 (1963); Griffin, 351 U. S., at 12.
Finally, the Faretta majority found that the right to self-representation at trial was grounded in part in a respect for individual autonomy. See 422 U. S., at 834. This consideration is, of course, also applicable to an appellant seeking to manage his own case. As we explained in Faretta, at the trial level “[t]o force a lawyer on a defendant can only lead him to believe that the law contrives against him.” Ibid. On appellate review, there is surely a similar risk that the appellant will be skeptical of whether a lawyer, who is employed by the same government that is prosecuting him, will serve his cause with undivided loyalty. Equally true on appeal is the related observation that it is the appellant personally who will bear the consequences of the appeal. See ibid.
In light of our conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause. Under the practices that prevail in the Nation today, however, we are entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a constitutional right of self-representation is a necessary component of a fair appellate proceeding. We have no doubt that instances of disloyal representation are rare. In both trials and appeals there are, without question, cases in which counsel’s performance is ineffective. Even in those cases, however, it is reasonable to assume that counsel’s performance is more effective than what the unskilled appellant could have provided for himself.
No one, including Martinez and the Faretta majority, attempts to argue that as a rule pro se representation is wise, desirable, or efficient. Although we found in Faretta that the right to defend oneself at trial is “fundamental” in nature, id., at 817, it is clear that it is representation by counsel that is the standard, not the exception. See Patterson v. Illinois, 487 U. S. 285, 307 (1988) (noting the “strong presumption against” waiver of right to counsel). Our experience has taught us that “a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.”
As the Faretta opinion recognized, the right to self-representation is not absolute. The defendant must “ Voluntarily and intelligently”’ elect to conduct his own defense, 422 U. S., at 835 (quoting Johnson v. Zerbst, 304 U. S. 458, 464-465 (1938)), and most courts require him to do so in a timely manner. He must first be “made aware of the dangers and disadvantages of self-representation.” 422 U. S., at 835. A trial judge may also terminate self-representation or appoint “standby counsel” — even over the defendant’s objection — if necessary. Id., at 834, n. 46. We have further held that standby counsel may participate in the trial proceedings, even without the express consent of the defendant, as long as that participation does not “seriously undermin[e]” the “appearance before the jury” that the defendant is representing himself. McKaskle v. Wiggins, 465 U. S. 168, 187 (1984). Additionally, the trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal “chores” for the defendant that counsel would normally carry out. Id., at 183-184. Even at the trial level, therefore, the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.
In the appellate context, the balance between the two competing interests surely tips in favor of the State. The status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict. We have recognized this shifting focus and noted:
“[T]here are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt....
“By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or a jury below.” Ross v. Moffitt, 417 U. S. 600, 610 (1974).
In the words of the Faretta majority, appellate proceedings are simply not a case of “halting] a person into its criminal courts.” 422 U. S., at 807.
The requirement of representation by trained counsel implies no disrespect for the individual inasmuch as it tends to benefit the appellant as well as the court. Courts, of course, may still exercise their discretion to allow a lay person to proceed pro se. We already leave to the appellate courts’ discretion, keeping “the best interests of both the prisoner and the government in mind,” the decision whether to allow a pro se appellant to participate in, or even to be present at, oral argument. Price v. Johnston, 334 U. S. 266, 284 (1948). Considering the change in position from defendant to appellant, the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta. Yet the overriding state interest in the fair and efficient administration of justice remains as strong as at the trial level. Thus, the States are clearly within their discretion to conclude that the government’s interests outweigh an invasion of the appellant’s interest in self-representation.
Ill
For the foregoing reasons, we conclude that neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self-representation on direct appeal from a criminal conviction. Our holding is, of course, narrow. It does not preclude the States from recognizing such a right under their own constitutions. Its impact on the law will be minimal, because a lay appellant’s rights to participate in appellate proceedings have long been limited by the well-established conclusions that he has no right to be present during appellate proceedings, Schwab v. Berggren, 143 U. S. 442 (1892), or to present oral argument, Price, 334 U. S., at 285-286. Meanwhile the rules governing appeals in California, and presumably those in other States as well, seem to protect the ability of indigent litigants to make pro se filings. See, e. g., People v. Wende, 25 Cal. 3d 436, 440, 600 P. 2d 1071, 1074 (1979); see also Anders v. California, 386 U. S. 738 (1967). In requiring Martinez, under these circumstances, to accept against his will a state-appointed attorney, the California courts have not deprived him of a constitutional right. Accordingly, the judgment of the California Supreme Court is affirmed.
It is so ordered.
See, e. g., Powell v. Alabama, 287 U. S. 45 (1932); Johnson v. Zerbst, 304 U. S. 458 (1938); Gideon v. Wainwright, 372 U. S. 335 (1963); Argersinger v. Hamlin, 407 U. S. 25 (1972).
Compare Myers v. Collins, 8 F. 3d 249, 252 (CA5 1993) (finding right of self-representation extends to appeals); Campbell v. Blodgett, 940 F. 2d 549 (CA9 1991) (same); Chamberlain v. Ericksen, 744 F. 2d 628, 630 (CA8 1984) (same); Commonwealth v. Rogers, 537 Pa. 581, 583, 645 A. 2d 223, 224 (1994) (same); State v. Van Pelt, 305 Ark. 125, 127, 810 S. W. 2d 27, 28 (1991) (same); Webb v. State, 274 Ind. 540, 542, 412 N. E. 2d 790, 792 (1980) (same); Webb v. State, 533 S. W. 2d 780, 784 (Tex. Crim. App. 1976) (same), with United States v. Gillis, 773 F. 2d 549, 560 (CA4 1985) (finding no right of self-representation on appeal); Lumbert v. Finley, 735 F. 2d 239, 246 (CA7 1984) (same); Hill v. State, 656 So. 2d 1271, 1272 (Fla. 1995) (same); State v. Gillespie, 898 S. W. 2d 738 (Tenn. Crim. App. 1994) (same).
“The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, ‘the lawyer was synonymous with the cringing Attorneys-General and Solidtors-General of the Crown and the arbitrary Justices of the King’s Court, all bent on the conviction of those who opposed the King’s prerogatives, and twisting the law to secure convictions.’ This prejudice gained strength in the Colonies where ‘distrust of lawyers became an institution.’ Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as ‘the lower classes came to identify lawyers with the upper class.’ The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a ‘sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class.’ ” Faretta, 422 U. S., at 826-827 (footnotes omitted).
Similarly, in the state eases cited by the Court in Faretta, see 422 U. S., at 813, n. 9, the defendant’s right to represent himself was often the predicate for upholding the waiver of an important right. See, e. g., Mackreth v. Wilson, 31 Ala. App. 191, 193, 15 So. 2d 112, 113 (1943) (failure of the defendant to request counsel equaled an “election” to proceed pro se); Lockard v. State, 92 Idaho 813, 822, 451 P. 2d 1014, 1023 (1969) (court relied on defendant’s right of self-representation to uphold an uncounseled guilty plea, despite claims that it was coerced); People v. Nelson, 47 Ill. 2d 570, 268 N. E. 2d 2, 3 (1971) (defendant’s pro se status is predicate for upholding waiver of indictment and jury trial and also to uphold guilty plea); Allen v. Commonwealth, 324 Mass. 558, 562-563, 87 N. E. 2d 192, 195 (1949) (life sentence upheld despite fact that indigent defendant was unable to procure counsel); Westberry v. State, 254 A. 2d 44, 46 (Me. 1969) (guilty plea upheld because defendant failed to claim indigency or to request counsel); State v. Hollman, 232 S. C. 489, 499, 102 S. E. 2d 873, 878 (1958) (right of defendant to represent himself used as basis for finding he had no right to appointed counsel). But see State v. Thomlinson, 78 S. D. 235, 237, 100 N. W. 2d 121, 122 (1960) (vacating conviction based on court’s failure to allow defendant to represent himself); State v. Penderville, 2 Utah 2d 281, 287, 272 P. 2d 195, 199 (1954) (same); Cappetta v. State, 204 So. 2d 913, 918 (Fla. App. 1967) (same), rerid, State v. Cappetta, 216 So. 2d 749, 760 (Fla. 1968) (finding voluntary and intelligent waiver of right to proceed pro sé).
See, e. g., SEC v. Sloan, 436 U. S. 103 (1978) (pro se respondent argued, briefed, and prevailed in the Court of Appeals for the Second Circuit and this Court).
A. Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes 383, 400 (1938).
See Lobsenz, A Constitutional Right to An Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget Sound L. Rev. 375,376 (1985). Although Washington was the first State to constitution-alize an appeal as of right, almost all of the States historically had some form of discretionary appellate review. See generally L. Orfield, Criminal Appeals in America 215-231 (1939).
1J. Stephen, A History of the Criminal Law of England 308-310 (1883).
Some critics argue that the right to proceed pro se at trial in certain cases is akin to allowing the defendant to waive his right to a fair trial. See, e. g., United States v. Farhad, 190 F. 3d 1097, 1106-1107 (CA9 1999) (Reinhardt, J., concurring specially), cert. pending, No. 99-7127.
Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_genresp2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
SECURITIES & EXCHANGE COMMISSION v. RALSTON PURINA CO.
No. 14611.
United States Court of Appeals Eighth Circuit.
Nov. 21, 1952.
Writ of Certiorari Granted March 9,1953.
See 73 S.Ct. 643.
David Ferber, Special Counsel, Securities and Exchange Commission, Washington, D. C. (Roger S. Foster, Gen. Counsel, Robert L. Randall, Atty., Securities and Exchange Commission, Washington, D. C, Alexander J. Brown, Jr., and Robert J. Su-grue, Attys., and Thomas B. Hart, Regional Acten’r, Securities and Exchange Commission, Chicago, 111., were with him on the brief), for appellant.
Thomas S. McPbeeters, St. Louis, Mo. (George W. Simpkins and Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., were with him on the brief) for appellee.
Before SANBORN, WOODROUGH, and COLLET, Circuit Judges.
SANBORN, Circuit Judge.
The Securities and Exchange Commission has appealed from a judgment dismissing an action brought by it in October, 1951, under Section 22(a) of the Securities Act of 1933, 48 Stat. 86, 15 U.S.C.A. § 77v (a), against the Ralston Purina Company, to enjoin it from using the mails or the instruments of interstate commerce in selling or offering to sell its common stock.
In its complaint the Commission alleged that the Company was engaged and was about to engage in acts or practices violative of Section 5(a) of the Act, 48 Stat. 77, 15 U.S.C.A. § 77e(a) ; that since the fall of 1947 the Company has been selling its 'common stock, and in the sale of the stock has been using the mails and instruments of interstate commerce, and that no registration statement with respect to the stock has been in effect with the Commission.
The Company denied that it was engag-' ing or was about to engage in acts and practices violative of Section 5(a) of the Act. It denied that it had sold or offered for sale its common stock except in limited quantities to carefully selected key employees pursuant to a long-established custom of the Company to encourage such employees to become owners of stock. The Company stated that it was of the opinion that what it had done in making its unregistered common stock available to key employees did not constitute a public offering and was not violative- of Section 5(a) of the Act; but that no sales of its stock offered in 1951 had been consummated pending a determination of its right to sell such unregistered stock to the key employees who had applied for it. The Company ad.-mitted using the mails or instruments of interstate commerce in offering its key employees an opportunity to purchase common stock.
The sole issue at the trial of the case in the District Court, and the sole question here, is whether the Company can follow its policy of making available each year for purchase a limited amount of its common stock to a select group of employees regarded as key employees, without registering the stock with the Commission.
The question turns upon the interpretation and scope of Section 4(1) of the Act as amended, 48 Stat. 77, 48 Stat. 906, IS U.S.C.A. § 77d(l), which exempts from the-provisions of Section 5(a) “transactions by-an issuer not involving any public offering”.. The District Court concluded that what the-Company had done in selling and offering-' to sell common stock to key employees involved a private and not a public offering-of stock, and that, by virtue of Section 4(1) of the Act, the Company was not required: to register its common stock with the Commission, D.C., 102 F.Supp. 964. This conclusion the Commission asserts is clearly wrong.
Since Congress has furnished no-precise standards for determining what constitutes a “public offering” of a security, it-seems apparent that every case in which the question as to whether an offering is. public or private arises will have to be decided largely upon the precise facts and dr-cumstances surrounding the offering. The evidence in the instant case is virtually undisputed, although the Commission questions the validity of certain inferences drawn by the District Court. It must be remembered, however, that the Company as the prevailing party is entitled to the benefit of all inferences which reasonably can be drawn in its favor. Clco Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 418, 150 A.L.R. 1056; Skelly Oil Co. v. Holloway, 8 Cir., 171 F.2d 670, 674.
The factual situation with which we are confronted is briefly as follows:
The Company was organized in 1894. It manufactures feeds and cereals. It has grown until in 1951 it was operating 36 feed mills, 6 soy bean processing plants, 3 cereal mills, many warehouses and elevators, and 7,000 retail outlets. It has about 7,000 employees. The net sales of the Company’s products in the fiscal year ending September 30, 1951, were in excess of $340,000,000. Its branches are scattered throughout the United States. It does a nation-wide -business. The most rapid growth of the Company has taken place since 1940.
The Company has had continuity of management. Its founder is still active in its management. Most of its officers have spent their entire business lives in its employ. Its policy has been to promote its personnel from within the organization.
From the inception of the Company it has ■encouraged stock ownership by employees, particularly by key employees, and has from time to time made stock available to •such employees. It sold stock to employees .as early as 1911. About 80% of the Company’s common stock is owned or controlled by employees, members of employees’ families, or former employees, about 1,000 to 1,500 employees being stockholders. The Company has never sold any of its common stock to the public nor for the purpose of raising money. Sales of stock by the Company to employees have been limited exclusively to key employees.
In 1942 the Company sold 1,269 shares of common stock to 59 key employees, and in 1943 it sold 2,000 shares to 109 such employees. Thereafter for several years it sold none of its stock to key employees because most of them were stockholders; but, with the expansion of its business, it again offered them stock in 1947. In that year, as of October 1, the Company sold 6,984 shares to 243 key employees (of whom 187 were already stockholders) at $47.50 a share. In 1948, as of September 30, the Company sold 1,120 shares to 20 key employees (of whom 18 were already stockholders) at $50 a share. In 1949, as of October 3, it sold 10,000 shares to 414 key employees (of whom 267 already owned stock) at $55 a share. In 1950, .as of September 22, the Company sold 9,659 shares to 411 key employees (300 of whom already were stockholders) at $70 a share. In September, 1951, the Company made 10,000 shares available for purchase by key employees at $80 a share. Of these employees, 167 applied for 3,769 shares of stock. Of the 167, 139 were stockholders. No stock has been sold to the applicants, due to this litigation.
The Company’s definition of a key employee is as follows:
“A key employee of course can be an officer or a department head or an assistant to a department head but is not confined to an organization chart. It would include an individual who is eligible for promotion, an individual who especially influences others or who advises others, a person whom the employees look to in some special way, an individual, of course, who carries some special responsibility, who is sympathetic to management and who is ambitious and who the management feels is likely to be promoted to a greater responsibility.”
Key employees are selected by the “top management” of the Company, after consulting with the men who manage the mills and have supervision over and direct contact with a substantial number of em-' ployees.
The reasons of the management for selling stock to key employees were stated to be as follows:
“We feel, sir, that that creates a greater efficiency with the company, because it draws employees of the company closer together. Many of our people come from the rural area, where proprietorship is a matter of great pride to them. The fact that they feel that they are owners, at least part owners, in the company, contributes to the morale, and we feel that the idea of breaking down the gap between the ownership and management is something that is highly desirable and something that contributed substantially to the success of the company.”
Notification that stock was available to key employees came to them through the managers under whom they worked. The managers were told not to solicit orders for stock, but “simply to acquaint the people who had indicated an interest or whom they felt it was fair to notify of the situation.”
During the past several years the Company has on September 30, the end of its fiscal year, paid bonuses to key employees. These have been substantially the same persons to whom stock was sold during these years. Many of them have wanted to invest their bonus money in the common stock of the Company. The common stock is an unlisted stock and there is only a limited over-the-counter market ' for it. Any substantial amount of competitive bidding might raise the market price artificially. That is one of the reasons why the Company attempted-to make common stock available to the employees to whom bonuses were paid.
Since. 1945 the Company has published a regular annual financial statement, which has been sent to all of its stockholders, furnished to banks and brokers more or less generally, and filed with the Securities and Exchange Commission, with which the Company’s preferred stock was registered in 1945. Bi-monthly sales and production .records are sent out to all the key people of the Company, and are available to any employee. The selection of key personnel to whom bonuses are paid and to whom stock is made available is not dependent upon payroll classification or the importance of the positions held. Stock has been purchased by those holding positions as trainees, clerks, and stenographers, as well as by those who are executives and managers. Those who have purchased stock from the Company have done so for purposes of investment. Resales of stock purchased by key employees have been negligible, — 317 shares in 1947, none in 1948, 89 in 1949, and 45 in 1950. Of those employees who sold their stock, most had left the Company’s employ.
The Company’s estimate of the number of key employees to whom common stock was offered in 1951 was about 500. Since the evidence showed that stock was made available to substantially the same persons who received bonuses, and since in 1951 $1,575,000 was paid out in bonuses to- 674 employees, it seems probable that the estimate of the Company was low. However, approximately 75% of the key employees to whom bonuses were paid, and to whom stock was offered, during the years 1947 to 1950, inclusive, were already stockholders of the Company. Presumably, they were advised of its financial condition through its annual reports. The other 25% might reasonably be believed to have* some knowledge of the Company’s progress from sales and production records. More than 80% of the employees who applied for stock in 1951 were already stockholders of the Company.
Lewis Stuart, a Vice-President, Secretary, and a Director of the Company, who testified in its behalf, said, in response to the question as to why the Company did not register the stock offered to employees in 1951:
“The reasons are very definite. Personally, I have been through a registration just once, and when we started to register our preferred stock, we started in January. It took until May 15th before we could get the schedules. It cost us tens of thousands of dollars. Now, when you are putting out an issue, or when you are selling to a group, to a small intimate group, if the sale is between three or four or t.en thousand shares and you have to spend for a hundred special accountants’ fees, lawyers’ fees, printing expenses, travel .expenses, clerical expenses — there is a host of expenses in connection with the registration which makes it entirely unwarranted to spend that much money to accommodate key employees. The big factor is a very important factor. We come to the end of the year; we cannot wait 3y2 months to know what we are going to do; we have to deal with our employees, pay our bonuses, and make our deals then. If we have to wait for 3% months, or if we have to wait for 2% months, which probably would be a pretty fair length of time, and then pay financial extras, legal people, accounting people, printing, long distance telephone and telephone calls, clerical expenses, travel, and pile all that expense on the sale of a few shares of stock to an intimate group, we feel that that is entirely unwarranted, and it is a matter of economy on our part * *
The Company had the burden of proving that its offering of stock to its key employees came within the exemption provided by Section 4(1) of the Act, which, being an exception to the general policy of the Act, is to be strictly construed and may not receive such a broad construction as would be destructive of the plain purpose which caused the Act to be adopted. Spokane & Inland Empire Railroad Co. v. United States, 241 U.S. 344, 350, 36 S.Ct. 668, 60 L.Ed. 1037; Securities and Exchange Commission v. Sunbeam Gold Mines Co., 9 Cir., 95 F.2d 699, 701. The purpose of the Act is to prevent, SO' far as possible, frauds in the sale of securities by requiring that investors be furnished with adequate information relative to securities offered to them. In Securities and Exchange Commission v. Chinese Consolidated Benevolent Association, Inc., 2 Cir., 120 F.2d 738, 740, the court said: “But the aim of the Securities Act is to have information available for investors. This objective will be defeated if buying orders can be solicited which result in uninformed and improvident purchases.” The rule requiring the strict construction of statutory language does not require that the words of an enactment be given their narrowest meaning or that the law makers’ evident intent be disregarded. United States v. Corbett, 215 U.S. 233, 242-243, 30 S.Ct. 81, 54 L.Ed. 173; United States v. Giles, 300 U.S. 41, 48, 57 S.Ct. 340, 81 L.Ed. 493.
In determining whether the Act requires that securities be registered, the honesty of the issuer, the soundness of the securities offered, or the delay and expense which may be involved in securing their registration, are not of material consequence.
The problem presented by this case is somewhat reminiscent of that considered by the Supreme Court in Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212, in which the Court was required to determine whether certain expenditures made by a taxpayer were “ordinary and necessary expenses”. In that case, Mr. Justice Cardozo said, pages 114-115 of 290 U.S., page 9 of 54 S.Ct.: “Here, indeed, as so' often in other branches of the law, the decisive distinctions are those of degree and not of kind. One struggles in vain for any verbal formula that will supply a ready touchstone. The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.”
It would, of course, be unreasonable to suppose that Congress, in exempting from the provisions of Section 5(a) of the Act “transactions by an issuer not involving any public offering”, intended that an offering not open to everyone was exempt. It would be equally unreasonable to rule that the language of Section 4(1) of the Act did not mean what it purported to mean or that no offering was exempt which the Commission might regard as a public offering.
The Commission is of the opinion that the exemption provided by Section 4(1), when read in the light of its legislative history, of the construction placed upon it by the Circuit Court of Appeals of the Ninth Circuit in Securities and Exchange Commission v. Sunbeam Gold Mines Co., 9 Cir., 95 F.2d 699, and of the Commission’s own administrative interpretation of the section, does not exempt offerings such as those in suit.
The legislative history upon which the Commission relies is that referred to by the Circuit Court of Appeals of the Ninth Circuit in the Sunbeam Gold Mines Co-, case, supra, in which it was held that an offering of securities by that company to its 323 stockholders and to 207 stockholders of another company to raise money to effect a mei'ger of the two companies was a public offering and was therefore not exempt from registration. In that case the court said on pages 701-702 of 95 F.2d:
“The bill as originally passed by the House, following the recommendation of the Committee on Interstate and Foreign Commerce, exempted from registration requirements the issuance of additional capital stock of the issuer among its own stockholders exclusively, where no commission or other remuneration was paid or given in connection with the sale or distribution, H.R. 5480, 73d Cong., 1st Sess., Sec. 4 (3). This original House draft also exempted ‘transactions by an issuer not with or through an underwriter and not involving any public offering. * * *’ Section 4(1). In reporting to the House, the Commerce Committee said of this exemption: ‘Paragraph (1) broadly draws the line between distribution of securities and trading in securities, indicating that the act is, in the main, concerned with the problem -of distribution as distinguished from trading. It therefore exempts all transactions except by an issuer, underwriter, or dealer. Again, it exempts transactions by an issuer unless made by or through an underwriter so as to permit an issuer to make a specific or isolated sale of its securities to a particular person, but insisting that if a sale -of the issuer’s securities should be made generally to the public that that transaction shall come within the purview of the act.’ (Italics supplied.) H.R.Rep. No. 85, 73d Cong., 1st Sess. p. 15.
“Thus on the first draft of the measure it is clear that neither the Committee nor the House considered the test of ‘public offering’ to be the inclusion or noninclusion of nonstockhold-ers of the issuer in the group to whom the security was to be issued.
“When the Senate received the measure, it eliminated the exemption contained in section 4(3), supra (including an exemption of stock dividends). The bill then went to conference, where the Senate’s elimination of this exemption was approved by the Managers on the Part of the House, who stated, H.R. Rep. No. 152, 73d Cong., 1st Sess. p. 25 : ‘The House provision (Section 4(3)) exempting stock dividends and the sale of stock to stockholders is omitted from the substitute since stock dividends are exempt without express provision as they do not constitute a sale, not being' given for value. Sales of stock to stockholders become subject to the act unless the stockholders are so small in-number that the sale to them does not constitute a public offering(Italics supplied.)
. “Again, in 1934, when the Securities Act was amended, 15 U.S.C.A. § 77b et seq. and notes, a proposal to exempt from registration securities offered by an issuer to its employees was rejected by the Committee of Conference of the two House's. In this connection, the Managers on the Part of the House stated: ‘The conferees eliminated the third proposed-amendment to this subsection on the ground that the participants in employees’ stock-investment plans may be .in as great need of the protection afforded by availability of information concerning the issuer for which they work as are most other members of the public.’ H.R.Rep. No.. 1838, 73d Cong., 2d Sess., p. 41.
“These Reports clearly demonstrate that the Congress did not intend the term ‘public offering’ to mean an offering to any and all members of the public who cared to avail themselves of the offer, and that an offering to stockholders, other than a very small number,, was a public offering.”
The District Court, in the instant case, in considering the legislative history of Section 4(1) of the Act quoted the colloquy between Senator Fletcher, a member of the Committee of Conference which considered the proposed amendment offered in 1934 to exempt the sale of stock by an issuer to its employees, and Senator Hastings who had submitted the amendment, see page 967 of 102 F.Supp. Senator Fletcher, in substance, advised the Senate that the proposed amendment was rejected because a majority of the members of the conference committee were of the opinion that Section 4 (1) of the Act already exempted an offer of stock by an employer to- its employees.
If Congress had intended that the exemption provided by Section 4(1) of the Act was to apply only to specific or isolated sales or offerings of securities by an issuer to a particular person or to a numerically small group, it is reasonable to believe that it would have said so, and would not have left the scope of the exemption to inferences to be drawn from committee reports or the rejection of a proposed amendment offered at a subsequent session of Congress. The Supreme Court has said: “Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, must give way to its language, or, rather, all the reasons that induced its enactment and all of its purposes must be supposed to be satisfied and expressed by its words, * * Mackenzie v. Hare, 239 U.S. 299, 308, 36 S.Ct. 106, 107, 60 L.Ed. 297. See, also, Warner v. Dworsky, 8 Cir., 194 F.2d 277, 279, certiorari denied 343 U.S. 965, 72 S.Ct. 1060; Missouri Pac. R. Co. 5J4% Secured Serial Bondholders’ Committee v. Thompson, 8 Cir., 194 F.2d 799, 803-804. It is fair to assume that the words used by Congress in expressing its intent more nearly reflect that intent than would any other words which were readily available. Assuming, however, that recourse properly may be had to the legislative history of Section 4(1) of the Act, we agree with the District Court that there is nothing in that history which demonstrates that the offerings in suit do not fall within the exemption provided by that Section.
We do not regard the decision of the District 'Court in the instant case as inconsistent with the opinion of the Ninth Circuit in the Sunbeam Gold Mines Co. case, the correctness of which as applied to the facts of that case we do not doubt. There are obvious distinctions between an offering of securities to all of the stockholders of two companies, parties to- a proposed merger, to raise funds to effectuate the merger, and an offering, without solicitation, of common stock to a selected group of key employees of the issuer, most of whom are already stockholders when the offering is made, with the sole purpose of enabling them to secure a proprietary interest in the company or to increase the interest already held by them.
The administrative interpretation of Section 4(1) of the Act, referred to by the Commission, is reflected by an opinion of John J. Burns, its General Counsel, in 1934, which is found in 11 Fed.Reg. (1946), § 231.285, page 10,952, and which, for convenience, we have set out in the margin.
This opinion discusses the factors to be whether an offering is public or private, considered in attempting to determine These factors are stated to be: (1) the number of offerees and their relationship to each other and to the issuer; (2) the number of units offered; (3) the size of the offering; and (4) the manner of offering.
It is evident that the Commission considers that the offerings in the instant case were made to too many employees and involved too many shares of stock to be nonpublic offerings, and that if Section 4(1) of the Act is construed to exempt such offerings the remedial purposes of the Act may be impaired. We sympathize with the efforts of the Commission to restrict the exemption granted by Section 4(1) to the narrowest possible scope, but we do not think that the intra-organizational offerings of stock by the Company, unaccompanied by any solicitation, which have resulted in a limited distribution of stock, for investment purposes, to a select group of employees considered by the management to be worthy of retention and probable future promotion, is to be excluded from the exemption of nonpublic offerings granted by Congress. There is, we think, virtually no possibility that these offerings, if continued, will frustrate or impair the purpose of the Act.
The judgment of a trial court will not be reversed by this Court unless it can demonstrate, at least to its own satisfaction, that the judgment is wrong. That we are unable to do in this case. Our opinion is strictly confined to the precise facts here involved, and is not to be taken as a ruling that employees’ stock investment plans are generally within the exemption granted by Section 4(1). If the offerings with which we are concerned were made to all employees or to employees selected at random or by lot or without any logical basis for the selection, a different question would be presented.
The judgment appealed from is affirmed.
, “Prohibitions relating to interstate commerce and the mails
“Sec. 5. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person,.directly or indirectly—
“(1) to make use of any means or instruments, of transportation or commu-' nication in interstate commerce or of the mails to sell or offer to buy such security through the use or medium of any prospectus-or otherwise; or
“(2) to carry , or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any su’ch security for the purpose -of,, sale- or' for delivery after-sale.”
. “The opinion has been previously expressed by this office that an offering of ■securities to an insubstantial number of persons is a transaction by the issuer not involving any public offering, and hence an exempted transaction under the provisions of Section 4 (1) of the Securities Act. Furthermore, the opinion has been expressed that under ordinary circumstances an offering to not more than approximately twenty-five persons is not an offering to a substantial number and presumably does not involve a public offering.
“As a result of such opinions there appears- to be developing a general practice on the part of issuers desiring to avoid registration of their securities to seek to dispose of the same to insurance companies or other institutions, which, at the time of purchase, state that they are acquiring such securities for investment and not with a view to distribution.
“I would call your attention to the fact that in previous opinions it has been expressly recognized that the determination of what constitutes a public offering is essentially a question of fact, in which all surrounding circumstances are of moment. In no sense is the question to be determined exclusively by the number of prospective offerees. I eonceive that the following factors in particular- should be considered in determining whether a public offering is involved in a given transaction :
“I. The number of offerees and their relationship to each other and to the issuer. You will note that this does not mean the number of actual purchasers, but the number of persons to whom the security in question is offered for sale. The word ‘offering’ in this sense should not be limited to those cases wherein a formal proposal for a firm commitment is submitted. Any attempt to dispose of a security should be regarded as an offer. I have very serious doubt as to whether in many of those cases where it is stated that an offering is to be made only to an insubstantial number of persons, there may not be preliminary conversations for the purpose of ascertaining which of various possible purchasers would be willing to accept an offer of the security in question if it were made to them. Any such preliminary negotiations or conversations with a substantial number of prospective purchasers would, in my opinion, cause the offering in question to be a public offering, thereby necessitating prior registration of the security in question.
“Again, in determining what constitutes a substantial number of offerees the basis on which the offerees are selected is of the greatest importance. Thus, an offering to a given number of persons chosen from the general public on the ground that they are possible purchasers may be a public offering even though an offering to a larger number of persons who are all the members of a particular class, membership in which may be determined by the application of some preexisting standard, would be a nonpublic offering. However, I have no doubt but that an offering restricted to a particular group or class may nevertheless be a public offering if it is open to a sufficient number of persons.
“I also regard as significant the relationship between the issuer and the of-ferees. Thus, an offering to the members of a class who should have special knowledge of the issuer is less likely to be a public offering than is an offering to the members of a class of the same size who do not have this advantage. This factor would be particularly important in offerings to employees, where a class of high executive officers would have a special relationship to the issuer which subordinate employees would not enjoy.
“2. The number of units offered. If the denominations of the units are such that only an insubstantial number of units is offered, presumably no public offering would be involved. But where many units are offered in small denominations, or are convertible into small denominations, there is some indication that the issuer recognizes the possibility, if not the probability, of a distribution of the security to the public generally. The purpose of the exemption of nonpublic offerings would appear to have been to make registration unnecessary in these relatively few cases where an issuer desires to consummate a transaction or a few transactions and where the transaction or transactions are-of such a nature that the securities in question are not likely to come into the-hands of the general public.
“In connection with a consideration of the number of units offered, I would also consider whether the same or other securities of the same issuer are being' offered at the same time. I' feel that this circumstance has a bearing on the character of the offering.
“3. The size of the offering. It should be noted that the exemption of Section 4(1) is of transactions by an issuer not involving any public offering. In view of this language, it would appear to be proper to consider not merely the specific transaction or transactions between the issuer and the initial purchasers, but also the extent to which a later public offering of all or part of the securities sold by the issuer is likely. Hence I feel that this exemption was intended to be applied chiefly to small offerings, which in their nature are less likely to be publicly offered even if redistributed.
“For the same reason I feel that a material consideration is whether the security in question is part of an issue already dealt in by the public, either on a national securities exchange or on the over-the-counter market, or, within the reasonable contemplation of the parties, is likely thus to be dealt in shortly after its issuance. This factor again may indicate whether public distribution of the security in question is likely within a reasonable time.
“4. The manner of offering. I have already indicated my opinion that the purpose of the exemption of monpublie offerings is largely limited to those cases wherein the issuer desires to consummate a few transactions with particular persons. Consequently, I feel that transactions which are effected by direct negotiations by the issuer are much more likely to be nonpublic than those effected through the use of the machinery of public distribution.
“I have gone into this matter at length in order that you may be apprised of the many elements which in -my opinion go into tlio determination of what constitutes a transaction not involving any public offering. There may be some situations where all the factors are so clear that it would be possible to express a definite opinion. In a situation such as you present, however-, I feel that the offering would be carefully scrutinized by any court before which it may come and that any letter which purported to describe the situation, and on which my opinion would necessarily be based, could not adequately advise as to the various factors which are involved.
“I call your attention to the fact that any dealer who might subsequently purchase from an initial purchaser the se-eux-ities which you propose to offer, would be required to satisfy himself that the initial purchaser had not purchased with a view to distribution. If the initial purchaser had purchased with this inteixt, he would be an underwriter, and sales by a dealer of securities bought by him from such an initial pux-chaser would, as a general rule, not be exempt until at least a year after the purchase of the securities by the dealer. The sale of unregistered securities to a limited number of initial purchasers, therefore, leads to a practical situation in which such initial purchasers may have difficulty in disposing of the securities purchased by them. Any opinion which I might render in connection with the proposed offering might, I fear, be availed of by the issuer ox- by an initial purchaser as a means of satisfying a dealer, at a later date, that he might purchase the securities in question and market them without risk of violating the Act. You will appreciate that my opinion would not actually have this effect, since in the case of each transaction there would be involved various matters of fact on which I am not in a position to express an opinion.
“Accordingly, it seems a much wiser policy for me not to express an opinion in the situation which you present as to whether a public offering is involved.”
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Harold KONIGSBERG, Appellant, v. Austin F. SHUTE.
No. 18821.
United States Court of Appeals, Third Circuit.
Submitted on Briefs Dec. 1, 1970.
Decided Dec. 22, 1970.
Frank A. Lopez, Brooklyn, N. Y., for appellant.
Gerald W. Conway, Schreiber & Lancaster, Newark, N. J., for appellee.
Before KALODNER, SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
We are reversing a summary judgment of the district court which dismissed a complaint filed in the district of New Jersey served on a defendant in the state of Missouri on the ground that “the defendant has not had sufficient minimum contact with the state of New Jersey to make him amenable to process under F.R.C.P. 4(e).” We hold that appellee waived his right to assert the defense of lack of jurisdiction over the person or insufficiency of process. Fed.R.Civ.Proc. 12(h) (1).
A complaint based on diversity was filed August 19, 1969, in the district of New Jersey. After being served with process in the state of Missouri, the defendant moved for a change of venue to which the plaintiff filed a reply opposing the change. Thereafter, on September 11 defendant filed an answer denying the allegations on the merits.
On October 9, 1969, the defendant moved for leave to file an amended answer which for the first time asserted the defense that the court lacked jurisdiction over the person of the defendant. An amended answer was then filed on December 18, pursuant to a court order dated December 15, 1969, granting leave.
Rule 12(h) (1) provides that “a defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived * * if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule IS (a) to be made as a matter of course.” (emphasis supplied)
Rule 15(a) provides that “a party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” (emphasis supplied)
Defendant-appellee’s original answer was served by mailing to his adversary on September 9, and was filed September 11. Under Rule 15(a) he had 20 days after service upon plaintiff-appellant to file an amendment as of course. This period expired before October 9, 1969, when application was made to the court for leave to file an amended answer; a fortiori the time period had long expired before December, when the amended answer was in fact filed. He therefore was no longer entitled to file an amended answer as a matter of course. He ' required leave of court, which he sought and received.
His court-authorized amended answer did not qualify as one described in waiver Rule 12(h) (1) as “an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”
In Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3 Cir., 1944) this court, speaking through Judge Maris stated:
If the defense of lack of jurisdiction of the person is not raised by motion before answer or in the answer itself it is by the express terms of paragraph (h) of Civil Procedure Rule 12 to be treated as waived, not because of the defendant’s voluntary appearance but because of his failure to assert the defense within the time prescribed by the rules.
The judgment of the district court in favor of the defendant will be reversed and the cause remanded for further proceedings.
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Christos LAGANAS et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5631.
United States Court of Appeals First Circuit.
Heard April 6, 1960.
Decided Aug. 16, 1960.
George C. Eliades, Lowell, Mass., and Timothy J. Driscoll, Boston, Mass., for petitioners.
Sharon L. King, Atty., Dept, of Justice, Washington, D. C., with whom Howard A. Heffron, Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Department of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This petition to review two decisions of the Tax Court involves the application of Helvering v. Clifford, 1940, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. The taxpayer for the year 1947 is Christos Laga-ñas hereinafter called the husband, who filed a separate return, and for the years 1948 and 1949 taxpayers are the husband and his wife, who filed joint returns. In 1946 the Christos Lagañas Shoe Company (stockholdings not shown) manufactured shoes in Lowell, Massachusetts in a leased building on Jackson Street. On November 30, 1946 the husband purchased the Jackson Street property from the lessor for $75,000. $30,000 was paid by a check drawn by him on the joint account of himself and his wife in the Middlesex County National Bank. At this time the joint account included at least $30,000 deposited by the wife out of her personal earnings in the shoe factory. The size of the husband’s deposits did not appear. The remaining $45,000 was advanced by the bank in consideration of a note signed by the husband secured by a first mortgage on the property. On the same day the husband executed an agreement and declaration of trust, to be known as the Lagañas Realty Trust and hereinafter called the trust, of which he was sole trustee, and transferred the property to himself as trustee. This real estate was at all material times the sole asset of the trust. On January 6, 1947, the husband, as trustee, appointed his wife as co-trustee. The Commissioner held that all of the income of the trust was taxable to the husband as grantor, and the Tax Court .affirmed his position.
We will summarize the trust’s relevant provisions. In an introductory, unnumbered paragraph it is recited that the purpose of the trust is to hold and develop real estate “as a common or joint investment for the common and equal benefit of the shareholders, ratably, according to their several holdings of shares * * *.” Paragraph (1) states that the husband shall be the trustee, but recognizes that there may be others, and provides that they shall hold the property as trustee or trustees under the agreement. Paragraph (2) defines a shareholder as one of record, and provides that shareholders shall not have “any interest in the Trust Property itself, real or personal, and shall have no right to call for any partition * * * or * * * distribution.” Paragraph (3) provides that the trustee(s) may issue additional shares for such consideration as they may determine, and that a shareholder may be a trustee. Paragraph (4) provides that the trustee(s) “shall have and exercise the exclusive management and control * * * in any manner that they shall deem for the best interests of the shareholders, with all the rights and powers of absolute owners thereof.” This, and the ensuing three paragraphs, grant explicit powers, which are broad, but not more so than the powers now customarily granted to testamentary and indenture trustees.
The balance of the trust contains nothing of present interest, except the following.
“(7) (a). The Trustee (or Trustees) may declare dividends from the net income of the Trust Fund among the cestuis que trustent as when and in such amounts as he (or they) deem proper, and may distribute such portion of the surplus, in such amounts and at such times as he (or they) may deem proper.”
“(17) This agreement and declaration may be amended or altered, except as regards the liability of the Trustees and shareholders by the Trustees for the time being, but no alteration or amendment shall affect any person not having actual notice thereof, until a certificate of such alteration or amendment has been recorded in said Registry of Deeds, nor shall any alteration or amendment, or other action affect previously acquired rights of any third person other than shareholders hereunder.”
“(19) The trust under this agreement may be terminated at any time by the trustee for the time being.”
“(21) Upon the termination of the Trust under this Agreement by the expiration of time, or for any other cause, the Trustee shall liquidate the Trust property as he may deem for the best interests of the shareholders, and divide the net proceeds among the shareholders in proportion to their holdings.”
Two hundred shares were issued, 20 to the husband, 20 to his wife, and 40 to each of their four minor children.
At the trial various facts were stipulated, and certain oral testimony was offered by taxpayers. The court disbelieved some of this testimony. We have no quarrel with that action. It found that no gift tax returns were filed, and that in each of the income tax returns the husband was described as the grantor of the Trust. It concluded that he was in fact the grantor. We do not regard this as plainly wrong.
The question is, therefore, whether the income (other than that distributed to him in his capacity as shareholder) is taxable to him either under Helvering v. Clifford, supra, or under section 166 of the Internal Revenue Code of 1939. As to the former, the court stated (citations and footnotes omitted):
“Considering the ability of the grantor, at least with the concurrence of his wife, to create additional trust interests which could reduce, increase or virtually ■eliminate the interests of the beneficiaries other than his wife, the broad and almost unrestricted powers of control expressly conferred upon the trustees, the fact that the husband’s business was the tenant of the sole asset of the trust, that the trust income might have been, and in fact probably was to some extent, used to defray the grantor’s legal obligations and to reduce indebtedness for which he was at least secondarily liable, and that .all of the trust income was merely reallocated within the immediate family group of the grantor, we think it would be difficult to conclude that petitioner-husband could have actually considered himself the poorer by reason of the creation of the trust. There was nothing to prevent the trustee-beneficiaries from greatly increasing their own shares at the expense, of course, of the other beneficiaries. And in such a case they would have no fiduciary obligation.”
We do not find this analysis convincing. While it is true that the general question is whether the grantor has retained so large a part of the bundle of rights that in practical effect he is the owner, it is not possible to disregard the restrictions imposed by the grantor’s assumption of fiduciary duties to the extent attempted by the Tax Court. It is now axiomatic in the income tax-field that state trust law governing fiduciaries is not necessarily determinative of the tax consequences, see, e. g., Wheeling Dollar Savings & Trust Co. v. Yoke, 4 Cir., 1953, 204 F.2d 410, 412, certiorari denied 346 U.S. 898, 74 S.Ct. 221, 98 L.Ed. 398; White v. Higgins, 1 Cir., 1940, 116 F.2d 312, 320, but this does not mean that the trustee’s status as such can be disregarded. See United States v. Morss, 1 Cir., 1947, 159 F.2d 142. Even the Treasury recognizes that administrative powers lead to taxing the grantor on trust income only if the powers can be used to the grantor’s advantage. Treas. Reg. 111, § 29.22(a)-21(e) 1946. For example, the fact that what was claimed to be the husband’s business was the tenant of the trust is irrelevant. Certainly the trustee had a duty to require a fair rent for the benefit of the trust beneficiaries. McIntire v. Mower, 1910, 204 Mass. 233, 90 N.E. 567. We think the court confused those cases in which it was found significant that the trust res consisted of stock in the grantor’s business. In that situation the grantor, through control of dividend policy, could control the income going to the trust. See, e. g., Chertoff v. Commissioner, 6 Cir., 1947, 160 F.2d 691. The court rightly considered actual use of trust income to discharge the grantor’s duty to support his children, but we think the record gives only very weak evidence that this was actually done. Of course distribution of all of the income within the “immediate family group of the grantor” is a factor of which the Clifford case itself compels consideration. But even as to this, courts must proceed with caution lest they let it stand for more than it is, for, as has often been pointed out, the family is not the unit of taxation. United States v. Morss, supra. Finally, we have grave doubts, to say the least, that the power to issue new shares can be exercised, as the Tax Court seems to say, in a non-fiduciary capacity. The power expressly calls for consideration for new shares, and we think a court of equity would require a fair consideration.
However, we believe the court’s decision is correct, although for another reason. Paragraph (17), supra, gave the trustees a power to amend. There is no indication that this power was limited to minor adjustments needed to carry out the purposes of the trust. See Kohnstamm v. Pedrick, 2 Cir., 1945, 153 F.2d 506, 509. Cf. Sinopoulo v. Jones, 10 Cir., 1946, 154 F.2d 648. A power to revoke is not held in a fiduciary capacity. Reinecke v. Smith, 1933, 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109; Welch v. Terhune, 1 Cir., 1942, 126 F.2d 695, certiorari denied 317 U.S. 644, 63 S.Ct. 37, 87 L.Ed. 519. Even if we were to conclude that a power to amend fell short of a power to revoke, and was a fiduciary power limited to the best interests of the beneficiaries, it could not mean less than a right to vary, or “spray,” the income between the beneficiaries, including the grantor. Thus, if the grantor were the sole holder of the power, he would clearly be taxable on the trust income. Stock-strom v. Commissioner, 8 Cir., 1945, 148 F.2d 491, certiorari denied 326 U.S. 719, 66 S.Ct. 23, 90 L.Ed. 425; Commissioner of Internal Revenue v. Buck, 2 Cir., 1941, 120 F.2d 775.
This brings a final question: Does the wife’s 10% interest in the income and corpus of the trust constitute such a “substantial adverse interest” that her joint holding of the power to amend precludes taxing the grantor on the trust income? As to all but 10% of the income, we hold without difficulty that it does not. Cf. Camp v. Commissioner, 1 Cir., 1952, 195 F.2d 999; Commissioner of Internal Revenue v. Prouty, 1 Cir., 1940, 115 F.2d 331, 133 A.L.R. 977. A substantial adverse interest precludes taxing the grantor on the theory that the holder of the interest will be so motivated to protect his interest that he will resist any attempt by the grantor to alter the trust. See Fulham v. Commissioner, 1 Cir., 1940, 110 F.2d 916. But here the taxpayer’s wife can preserve her 10% interest while joining in any redistribution of the other beneficiaries’ respective shares. Thus, the grantor, with a compliant co-power-holder, can readily give himself power to spray 90% of the income as he sees fit.
The remaining 10% is another matter. It has been said that because of “family solidarity” a wife’s interest in income is not truly adverse to her husband’s. Altmaier v. Commissioner, 6 Cir., 1940, 116 F.2d 162, certiorari denied 312 U.S. 706, 61 S.Ct. 827, 85 L.Ed. 1138; cf. Fulham v. Commissioner, supra. However, such a concept often counters reality. Is the commissioner to investigate the existing rapport, or lack of it, between a particular taxpayer and his wife before determining the incidence of the tax? We believe that a single rule must be adopted, and that the preferable one is to assume that each wife stands on her own feet. Commissioner of Internal Revenue v. Katz, 7 Cir., 1943, 139 F.2d 107, 110; Phipps v. Commissioner, 2 Cir., 1943, 137 F.2d 141, 144. Therefore in this case the wife had an adverse interest of 10%. As to the years in which joint returns were filed, this point is of no consequence, but as to the first year, there must be an adjustment.
Judgment will enter reversing the decision of the Tax Court for the year 1947, and affirming the decision for the years 1948 and 1949, and remanding the action for further proceedings consistent herewith.
. Termed by taxpayers a “familiar * * ‘Massachusetts’ or business trust with non-transferable certificates,” upon which circumstance they base certain claims. We do not consider these claims, as it is elementary that the “familiar ‘Massachusetts’ or business trust” has transferable shares. Mass.G.L. c. 182, § 1.
. Elsewhere the trust provides that there should be “not more than three” trustees; that in ease of death, resignation, or incapacity, vacancies shall be filled by the survivors, and that if there is more than one trustee, action by a majority for the time being shall be valid for all purposes. No special powers are given the husband as distinguished from any other trustee. We cannot accept the government’s antediluvian contention that while Christos and his wife were the trustees, “Christos was clearly a majority.” Cf. United States v. Dege, 1960, 364 U.S. 51, 80 S.Ct. 1589, 4 L.Ed.2d 1563.
. It is contended that this paragraph permits unequal distribution among shareholders. Such an interpretation would have to overcome the presumption that beneficiaries are to be treated equally, strengthened in this case by the opening recital as to equality and ratability. We are not called upon, however, to decide this question.
, The Tax Court neglected to note that because the wife released her dower interest in the Jackson Street property on March 27, 1947, she might to that extent be regarded as a grantor. Since the parties have not raised this matter, we will assume, without further consideration, that this did not make her a grantor during the period that none of the trust income was attributable to that release.
. “Where at any time the power to re-vest in the grantor title to any part of the corpus of the trust is vested—
“(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or
“(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom,
then the income of such part of the trust shall be included in computing the net income of the grantor.” Int.Rev.Code of 1939, § 166, 26 U.S.C.A. § 166.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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".
In re HALFERTY et al. BRADEN v. BUCYRUS-ERIE CO.
No. 8245.
Circuit Court of Appeals, Seventh Circuit.
June 26, 1943.
L. H. Jonas and Ralph E. Suddes, both of Centraba, 111., for appellant.
Roger S. Hoar, of South Milwaukee, Wis., for appellee.
Before SPARKS, KERNER, and MIN-TON, Circuit Judges.
SPARKS, Circuit Judge.
The question presented is whether the written instrument in issue is a conditional sales contract, or a chattel mortgage given as security for the payment of all or part of the account involved.
On January 6, 1941, the debtors accepted in writing a written proposal from appellee to sell to them an oil well drilling machine called a spudder. The purchase price of the spudder was $4,500, payable $1,125 cash, and the balance in fifteen monthly installments. The only controversy presented involves the following clause of the contract: “Conditions: Title to the machinery shall remain in us until the purchase price (including any modifications or extensions, and whether evidenced by notes or otherwise) and all other sums which may be or become due from you to us (our emphasis), which you hereby agree to pay when due, shall have been fully paid in cash.” The contract was never recorded as a chattel mortgage as required under Illinois Revised Statutes 1941, Chapter 95, sections 4 and 4a.
The contract further contained the following language: “If default be made by you in the payment of any installment when due, or in the performance of any of your agreements herein, or if a petition in bankruptcy, reorganization, composition, or insolvency be filed by or against you, then all deferred payments, and all notes and renewal notes given therefor, shall become immediately due and payable on demand; and all expenses of collection incurred by us, including attorney fees, shall be on you; and at our option, we may take possession of and remove the machine with your full co-operation, and all payments previously made shall be considered as liquidated damages and rental.”
On January 30, 1942, the debtors petitioned for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq., and subsequently were adjudicated bankrupts.
Appellee seasonably filed an intervening petition in the bankruptcy proceeding before the Referee, setting forth a copy of the contract, and alleging that there was still due on the purchase price of the spudder the sum of $2,025 with interest thereon from the date of the contract. It was further alleged that there was other indebtedness due and owing by the debtors to them, most of which was for repairs on the spudder, and the remainder was for repairs on a different machine. Appellee demanded immediate delivery of the spudder or the payment of the unpaid balance of the entire accounts with accrued interest. The trustee had previously'sold the spudder for $2,300.
The Referee in effect held that the instrument constituted a conditional sales contract and not a chattel mortgage, and he recommended a payment by the trustee to appellee of $2,262.97 in full of all demands of appellee. The District Court approved the Referee’s report, and from that decree this appeal is prosecuted.
Appellant contends that the contract here involved is, in effect, a chattel mortgage, which is invalid as to the trustee because it was not recorded. This argument is based upon negative conclusions drawn from what appellant states to be a definition of a conditional sales contract by the Supreme Court of Illinois in Gilbert v. National Cash Register Company, 176 Ill. 288, 294, 52 N.E. 22, 25. That court said: “It seems to be settled by the weight of authority that ‘where, by the written contract of the parties it is expressly provided that the title to the property shall remain in the vendor until the purchase money is fully paid, and there is no reservation of a lien, the transaction is a conditional sale and not a mortgage.’ ”
Assuming the quoted language to be an exclusive definition of a conditional sale, appellant concludes that unless the language of the instrument provides that the title of the thing sold shall pass to the purchaser immediately on the payment of the purchase price, then and in that event, the instrument cannot be' considered as a conditional sale. That is a non sequitur of the language quoted.
Immediately following the quotation referred to the court said:
“It is often difficult to determine whether a particular transaction constitutes a mortgage or a conditional sale. Ordinarily the question is to be determined by showing what the intention of the parties was in reference to the matter; and when it is doubtful whether the transaction is a mortgage or a conditional sale, the courts are inclined to solve the doubt in favor of its being a mortgage. * * * But the cases seem to hold, that there is no doubt as to the character of the instrument when, by its terms, personal property is delivered by the owner to another with the requirement that the title shall remain in the owner until the payment of the purchase price. In such case the transaction is uniformly held to be a conditional sale, and not a mortgage.”
It is clear that what appellant claims to be an exclusive definition of a conditional sale by the Supreme Court of Illinois is not and was not intended as such.
However, appellant argues that under such definition the instant contract is defective as a conditional sale in that it does not • provide that the title of the spudder shall pass to the purchaser on payment of the agreed price of it, but such transfer is deferred until further recited conditions are performed which in no way are connected with the sale of the spudder. He does not contend that the contract before us would not be a valid conditional sale if the words “and all other sums which may be or become due from you to us” were eliminated. In other words, he asserts that by the inclusion of those words, what would otherwise be a valid conditional sale is converted into a chattel mortgage. If this were true, it would constitute a lien upon property in favor of the appellee if recorded, but not having been recorded it would be invalid as against other creditors even as a mortgage.
We think there can be no doubt that both parties to this contract intended the instrument to be a conditional sale and not a mortgage, and the only question before us is whether they altered that intention by the insertion of the words above quoted.
To meet appellant’s contention appellee relies upon'the Uniform Sales Act of the State of Illinois, which was adopted by its Legislature in 1915. Chapter 121%, Ill.R.S., section 20 reads:
“Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer * * *.”
Section 74 of the same chapter is as follows :
“This act shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the laws of those states which enact it.”
This Act has been adopted by many states of the Union in order that there may be uniformity of the laws on this subject within the boundaries of the states adopting it. In the interpretation of similar uniform laws, the decisions of other jurisdictions on such points as have not been decided by the courts of the forum, are not merely persuasive, but are as binding as would be a decision of the highest court of the forum. This rule has in effect been adopted, with respect to uniform sales, by section 74 of the Illinois Act, which we have quoted. See also Sherer-Gillelt Co. v. Long, 318 Ill. 432, 149 N.E. 225.
Some states have subsequently enacted the Uniform Conditional Sales Act which in effect limits the scope of section 20 of the Uniform Sales Act, by requiring some form of public recordation of the contract. The purpose of such enactment is to protect those dealing with the possessor of personal property against secret trusts or claims of those having no connection with the possession and no apparent connection with the title. New Dells Lumber Company v. Pfiffner, 216 Wis. 638, 258 N.W. 375.
In all jurisdictions, where litigated, such contracts as the one now in issue have been construed to be conditional sale contracts rather than mortgages, and effective to postpone the transfer of title, regardless of whether the action was based on the Uniform Sales Act, or the Uniform Conditional Sales Act, or both, or neither, or regardless of whether there were one or more valid conditions precedent. See Faisst v. Waldo, 57 Ark. 270, 21 S.W. 436; Augusta Cooperage Company v. Parham, 139 Ark. 605, 213 S.W. 737; Brown v. Woods Motor Co., 239 Ky. 312, 39 S.W.2d 507; Hammans Co. v. Fricker, 184 Ark. 1193, 42 S.W.2d 1001; Municipal Corporation v. Canole, 342 Mo. 1170, 119 S.W.2d 820; Baring v. Galpin, 57 Conn. 352, 18 A. 266, 5 L.R.A. 300; Union Company v. Thompson, 98 Wash. 119, 167 P. 95; Studebaker Co. v. Witcher, 44 Nev. 442, 195 P. 334; Giligian v. New England Truck Co., 265 Mass. 51, 163 N.E. 651; Dunlop v. Mercer, 8 Cir., 156 F. 545; In re Craig Lumber Co., 9 Cir., 269 F. 755; In re Gelatt & Son, D.C., 24 F.2d 215; Webster Corp. v. Continental Bank, 3 Cir., 66 F.2d 558; Continental Bank v. Webster Corp., D.C., 4 F.Supp. 337.
Appellant relies on Dunn v. Archer, 150 Tenn. 440, 265 S.W. 678, and Bucyrus-Erie Co. v. Casey, 3 Cir., 61 F.2d 473, as supporting a contrary doctrine. In the Dunn case, the court held that the contract was not a conditional sale of personal property because the property involved was not personal property as defined and contemplated by the Statute of Tennessee. In the Bucyrus case, the court held the contract to be one of conditional sale, but held that under the Pennsylvania Act the words “any other condition” meant any other condition incident to the sale, and did not include as a condition precedent the payment of an open account not related to the sale. Later, however, in Webster Corp. v. Continental Bank, supra, the same court affirmed the decision of the District Court and recognized as a valid condition precedent the paying of a real estate mortgage separate and distinct from the purchase price, which was not at all involved as a precedent condition. Those facts are not set forth in the opinion of the Circuit Court of Appeals, but are fully set forth in the opinion of the District Court. The Circuit Court, however, held that the contract constituted a valid conditional sale and was not defeated because it contained other conditions unrelated to the sale of the property involved. In the Bucyrus case, supra, the court merely eliminated what it regarded as an invalid condition, and enforced all conditions which were incident to the sale.
Before the adoption of the Illinois Uniform Sales Act, conditional sales in that State were void as against third parties, although they were valid between the parties. However, since the enactment, and its construction under Sherer-Gillett Co. v. Long, supra, all contracts within the scope of section 20 are valid against third parties without recording. This is the last legislative enactment on this subject in that State.
The language of section 20 is clear and unambiguous. It states that the seller may reserve the right of possession or property in the goods until certain con ditions have been fulfilled, and it further states that the right of possession or property may be reserved by the seller notwithstanding the delivery of the goods to the buyer. It- is clear from this language that the seller may impose as many conditions as he desires. He is not confined solely to the condition of payment of the purchase price, nor in fact at all unless the contract so states, for that condition is not specifically mentioned in the section. It must be borne in mind that the title to the property proposed to be sold is in the.seller, and he can determine for himself upon what conditions he'will transfer it, and if the buyer agrees to those conditions they must all be fulfilled before a transfer can be enforced. Appellant contends that under the Illinois law there can be only one condition imposed, and that it must be certain. The language of the section does not warrant this conclusion. The plural word “conditions” is used and there is nothing in the contract to indicate any uncertainty. To be sure, the amount due under the contract would no doubt vary from day to day but the amount due at any time is not uncertain, for it could be easily ascertained, and the law regards that as certain which can be made certain.
Since the enactment by Illinois of the Uniform Sales Act, its courts have not had occasion to pass upon the validity of a plurality of precedent conditions in a conditional sale as specifically authorized by section 20 of that Act. They have frequently, however, specifically and clearly drawn the distinctions between a conditional sale of personal property and a chattel mortgage. Maxcy-Barton Co. v. Glen Corporation, 355 Ill. 228, 189 N.E. 326, 95 A.L.R. 321; Southern Co. v. Peoples Bank, 332 Ill. 362, 163 N.E. 659, 61 A.L.R. 273; Gilbert v. National Cash Register Co., 176 Ill. 288, 52 N.E. 22; Citizens Bank v. Senesac, 267 Ill.App. 288. These rulings, and many other analogous ones, unquestionably warrant us in holding the instrument in issue to be a conditional sale and not a chattel mortgage. Just why there may not be a plurality of precedent conditions to such a contract is not apparent. The only reason suggested is that it would be against public policy. Illinois, however, declared its public policy in this respect when.its Legislature enacted the Uniform Sales Act, and we think our interpretation conforms to that policy. This it can change at any time, but thus far it has failed to do so. Other states, by subsequent enactment, have expressed a public policy different from that contained in section 20, and by that act they have, inferentially at least, construed section 20 as we are now construing it in that they sought relief therefrom by such enactment.
Appellant further contends that section 75 of this Act renders section 20 inapplicable to the contract. It recites that the provisions of the Act relating to contracts- to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security. We think this contention is without merit. It is clear to us that no such intention was manifested by the contract.
The decree of the District Court 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:
|
sc_caseorigin
|
025
|
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.
BENNETT, SECRETARY OF EDUCATION v. KENTUCKY DEPARTMENT OF EDUCATION
No. 83-1798.
Argued January 8, 1985
Decided March 19, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Rehnquist, and Stevens, JJ., joined, and in Parts I, II, IV, and V of which White and Blackmun, JJ., joined. Powell, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Getter argued the cause for petitioner. With him on the briefs were Solicitor General Lee and Harriet S. Shapiro.
Robert L. Chenoweth, Assistant Deputy Attorney General of Kentucky, argued the cause for respondent. With him on the brief was David L. Armstrong, Attorney General.
FredH. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Norman J. Chachkin filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Richard L. Arnett, Jim Mattox, Attorney General of Texas, David Richards, Executive Assistant Attorney General, J. Patrick Wiseman, Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, Stephen H. Sachs, Attorney General of Maryland, PaulL. Douglas, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, William E. Isaeff, Chief Deputy Attorney General, andL. DuaneWoodard, Attorney General of Colorado; and for the National Association of Counties et al. by Joyce Holmes Benjamin and Stewart A. Baker.
Justice O’Connor
delivered the opinion of the Court.
This case, like Bennett v. New Jersey, ante, p. 632, concerns an effort by the Federal Government to recover Title I funds that were allegedly misused by a State. There is no contention here that changes in statutory provisions should apply to previous grants. Instead, the dispute is whether the Secretary correctly demanded repayment based on a determination that Kentucky violated requirements that Title I funds be used to supplement, and not to supplant, state and local expenditures for education. Although the Court of Appeals for the Sixth Circuit found that the Secretary’s determination was based on a reasonable interpretation of Title I and its implementing regulations, the court nonetheless excused the State from repayment on the grounds that there was no evidence of bad faith and the State’s programs complied with a reasonable interpretation of the law. Kentucky v. Secretary of Education, 717 F. 2d 943, 948 (1983). We granted certiorari, 469 U. S. 814 (1984), and because we disagree with the standard adopted by the Court of Appeals, we reverse.
H-1
As explained more fully in Bennett v. New Jersey, ante, at 634-636, Title I of the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 27, as amended, 20 U. S. C. §2701 et seq., provided federal grants to support compensatory education programs for disadvantaged children. In order to assure that federal funds would be used to support additional services that would not otherwise be available, the Title I program from the outset prohibited the use of federal grants merely to replace state and local expenditures. This prohibition initially was contained in regulations, see 45 CFR § 116.17(f) (1966); 45 CFR § 116.17(h) (1968), and explained in a program guide distributed to state education agencies. Office of Education, Title I Program Guide No. 44, ¶¶ 4.1, 7.1 (1968). Despite the regulations, the Office of Education received public complaints that Title I funds were being used to replace state and local funds that otherwise would have been spent for participating children. See S. Rep. No. 91-634, pp. 9-10 (1970). Congress responded by amending Title I in 1970 to add a provision that specifically prohibited supplanting. Id., at 9-10, 14-15. That provision, in effect when the grants involved in this case were made, required that Title I funds be used
“(i) as to supplement and, to the extent practical, increase the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and (ii) in no case, as to supplant such funds from non-Federal sources.” 20 U. S. C. § 241e(a)(3)(B) (1970 ed.).
Title I regulations elaborated upon the statutory prohibition on the use of federal funds to supplant state and local funds:
“Each application for a grant... shall contain an assurance that the use of the grant funds will not result in a decrease in the use for educationally deprived children residing in that project area of State or local funds, which, in the absence of funds under Title I of the Act, would be made available for that project area and that neither the project area nor the educationally deprived children residing therein will otherwise be penalized in the application of State and local funds because of such a use of funds under Title I of the Act.... Federal funds made available... (1) will be used to supplement, and to the extent practical increase, the level of State and local funds that would, in the absence of such Federal funds, be made available for the education of pupils participating in that project; (2) will not be used to supplant State and local funds available for the education of such pupils.” 45 CFR § 116.17(h) (1974).
In 1976, federal auditors found that Kentucky had approved Title I programs for fiscal year 1974 that violated the prohibitions on supplanting. App. 11-21. The disputed programs involved “readiness classes” offered by 50 local education agencies for educationally disadvantaged children in place of regular first- and second-grade classes. App. to Pet. for Cert. 22a. Participating students received their entire academic instruction in the readiness classes, and a substantial number of the students were expected to be promoted to the next higher grade level the following year. App. 16-17. Title I funds were used to pay all the instructional salaries and a portion of the administrative support costs for the readiness classes. App. to Pet. for Cert. 22a. Students in these classes did receive locally funded “enrichment services,” i. e., art, physical education, music, and library, that were available to students enrolled in regular classes. Ibid. It is not disputed, however, that Title I funds defrayed substantially all the costs of educating students in the readiness classes. App. 15, 17. The auditors concluded that supplanting of state and local expenditures had occurred for children in readiness classes who were promoted to the next higher regular grade. Id., at 17, 19; App. to Pet. for Cert. 30a. Based on this finding, the auditors estimated that $704,237 in Title I funds had been misused, and the Department issued a final determination letter demanding repayment. App. 22-23.
Kentucky sought further administrative review. The Education Appeal Board (Board), after extensive proceedings, issued an initial decision in 1981 sustaining the auditors’ findings. App. to Pet. for Cert. 17a-32a. The Board rejected the State’s argument that the supplanting provisions were satisfied because state and local funding was not reduced for the school districts, schools, or grade levels involved. Id., at 24a. The statutory and regulatory provisions, the Board concluded, clearly required that state and local expenditures be maintained for pupils participating in programs supported by Title I. Id., at 24a-25a. On remand from the Secretary, id., at 33a-35a, the Board reaffirmed its initial decision. Id., at 36a-37a. The Secretary subsequently affirmed the Board’s finding that supplanting had occurred, but reduced the demanded repayment to $338,034 to reflect the benefits presumed to result from smaller pupil-teacher ratios in the readiness classes. Id., at 38a-42a.
In reviewing the final order demanding repayment, the Court of Appeals acknowledged that the Secretary’s interpretation of the supplanting prohibition was reasonable and would govern subsequent grants. 717 F. 2d, at 946-947, 948. Nonetheless, the court concluded that Kentucky was not liable for misusing Title I funds during fiscal year 1974. The Court of Appeals viewed the issue to be “the fairness of imposing sanctions upon the Commonwealth of Kentucky for its ‘failure to substantially comply’ with the requirements [of Title I].” Id., at 947, quoting 20 U. S. C. §§1234b(a), 1234c(a). The statute and regulations concerning supplanting, the court maintained, were not “unambiguous.” 717 F. 2d, at 948. Moreover, Congress specifically gave state and local officials discretion to develop particular programs to be supported by Title I funds. Ibid. In these circumstances, the Court of Appeals concluded that it would be unfair to assess a penalty against Kentucky where there was no evidence of bad faith and the disputed programs complied with a reasonable interpretation of the law. Ibid. Relying on Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981), the court further reasoned that the State did not accept Title I funds with “knowing acceptance” of the condition the Secretary now seeks to impose, and therefore the Federal Government was not justified in demanding repayment. 717 F. 2d, at 950.
II
We note initially that the Court of Appeals erred in.characterizing the issue to be the fairness of imposing sanctions against the State for its failure to comply substantially with the requirements of Title I. Although recovery of misused Title I funds clearly is intended to promote compliance with the requirements of the grant program, a demand for repayment is more in the nature of an effort to collect upon a debt than a penal sanction. See Bell v. New Jersey, 461 U. S. 773, 782 (1983). The State gave certain assurances as a condition for receiving the federal funds, and if those assurances were not complied with, the Federal Government is entitled to recover amounts spent contrary to the terms of the grant agreement. Id., at 791. More specifically, the State gave assurances that Title I funds would be used only for programs which had been reviewed and approved by the state education agency and which met applicable statutory and regulatory requirements. 20 U. S. C. §241f(a)(l) (1976 ed.). The issue in this case is not the fairness of imposing punitive measures, but instead whether the Secretary properly determined that Kentucky failed to fulfill its assurances by approving programs that violated the requirements of Title I.
Because of the nature of the obligation to repay misused funds, we also disagree with the suggestion by the court below that substantial compliance with applicable legal requirements affects liability. The Court of Appeals relied on provisions which authorize the Secretary, pursuant to specified procedures, to withhold funds or to issue cease-and-desist orders if a recipient fails to comply substantially with the law. 20 U. S. C. §§ 1234b(a), 1234c(a). Cf. §2836 (specific authority to withhold Title I funds). These references to substantial compliance in provisions governing prospective relief do not by their own terms apply to the recovery of misused funds. Cf. § 1234a(c) (filing of application by recipient for review of audit determination does not affect authority of Secretary to take other adverse actions); 124 Cong. Rec. 20612 (1978) (remarks of Rep. Corrada) (noting that post-audit recovery and withholding are distinct enforcement mechanisms). Other provisions that address the Secretary’s authority to demand repayment do not limit liability to instances where there is failure to comply substantially with grant obligations. See §§1226a-l, 1234a, 2835(b). This silence cannot be ascribed to legislative inattention to the details concerning recovery of misused funds. Congress specifically limited liability for repayment to expenditures made in the five years preceding the final written notice of liability and also authorized the Secretary, in certain circumstances, to settle claims involving less than $50,000. §§1234a(f), 1234a(g). Given the detailed provisions concerning audit determinations contained in § 1234a, we do not believe that Congress intended impliedly to engraft upon that section the “substantial compliance” standard expressly stated in §§ 1234b and 1234c for prospective relief.
Nor do we think that the absence of bad faith absolves a State from liability if funds were in fact spent contrary to the terms of the grant agreement. In Bell v. New Jersey we explained that where a State obtains grants by providing assurances that the funds will be used on programs that comply with Title I, the State has no right to retain funds that are in fact misused, 461 U. S., at 787, 790-791. See also S. Rep. No. 91-634, at 10,. 84 (assurances must be enforced and misused funds recovered). Our discussion in no way suggested that the “misuse” of Title I funds depended on any subjective intent attributable to grant recipients. Instead, Bell v. New Jersey indicates that funds were misused if the State did not fulfill its assurances that it would abide by the conditions of Title I. 461 U. S., at 790-791. Provisions of the 1978 Amendments clarifying the Secretary’s right to recover misused funds also do not condition that right on a recipient’s bad faith. Indeed, Congress expressly placed on the grantees the burden of “demonstrat[ing] the allowability of [disputed] expenditures” in proceedings before the Education Appeal Board. 20 U. S. C. § 1234a(b). There is no indication that grantees may avoid repayment by showing that improper expenditures were made in good faith.
Finally, we do not agree that Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), bars recovery of misused Title I funds because the State did not accept the grant with “knowing acceptance” of its terms. In Pennhurst, we rejected the argument that acceptance of federal grants under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. §6000 et seq., required States to provide mentally handicapped persons with appropriate treatment in the least restrictive environment. Such a requirement, we noted, would have imposed a “massive” and “largely indeterminate” financial obligation on the States. 451 U. S., at 24. We observed: “Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Ibid. The requisite clarity in this case is provided by Title I; States that chose to participate in the program agreed to abide by the requirements of Title I as a condition for receiving funds. Bell v. New Jersey, 461 U. S., at 790, and n. 17. There was no ambiguity with respect to this condition, and Pennhurst does not suggest that the Federal Government may recover misused federal funds only if every improper expenditure has been specifically identified and proscribed in advance.
J — I I — I I — (
In reviewing a determination by the Secretary that a State has misused Title I funds, a court should consider whether the findings are supported by substantial evidence and reflect an application of the proper legal standards. Bennett v. New Jersey, ante, at 646; Bell v. New Jersey, supra, at 792. The disagreement in this case concerns whether the Secretary properly determined that the readiness programs approved by Kentucky violated assurances that Title I funds would be used to supplement state and local expenditures. The Government argues that a reviewing court should simply defer to the Secretary’s interpretation of the requirements of Title I so long as it is reasonable. Without disputing the reasonableness of the interpretation advanced by the Secretary, Kentucky contends that because the grant program was in the nature of a contract, any ambiguities with respect to the obligations of the State must be resolved against the party who drafted the agreement, i. e., the Federal Government. Thus, the parties dispute the fundamental nature of the obligations assumed under Title I: the Government suggests that the State guaranteed that the use of the funds would satisfy whatever interpretation of the program requirements the Secretary might reasonably adopt; the State argues that liability for the misuse of funds results only if grants were spent in violation of an unambiguous requirement.
The contentions of the parties can be properly evaluated only against the background of the actual operation of Title I. The grant program provided federal aid for compensatory education for disadvantaged children, but expressly left the selection and development of particular projects to local control. State education agencies approved program applications and monitored compliance by local school districts, obtained funds from the Federal Government, and subsequently channeled the money back to the local level. Thus, the States essentially served as conduits for what became a massive flow of federal funds. Title I grew from an annual appropriation of $959 million in 1966 to more than $3 billion by 1981, and assisted compensatory education programs in every State and in more than 14,000 school districts. See 2 U. S. Dept, of Education, Fiscal Year 1981 Annual Evaluation Report 3 (1981); National Institute of Education, Administration of Compensatory Education xiii (1977) (hereinafter NIE Report). During the period involved in this case, fiscal year 1974, Kentucky received more than $32 million in Title I funds. App. 11.
Although Congress in 1965 articulated the general goals of Title I, the statute and the initial regulations did not precisely outline the permissible means for implementing those goals. Uncertainty in this regard was compounded by the fact that during the first years following the passage of Title I, the Office of Education did not vigorously enforce the requirements of the program. See L. McDonnell & M. McLaughlin, Education Policy and the Role of the States 13, 90-91 (1982); Murphy, Title I of ESEA: The Politics of Implementing Federal Education Reform, 41 Harv. Ed. Rev. 35, 41-45 (1971). In 1970, Congress acknowledged that funds had been misused because of weaknesses in administration, and directed the Office of Education to strengthen its monitoring of the program requirements. S. Rep. No. 91-634, at 8-10. Management of Title I by the Office of Education improved during the 1970’s, but problems in clarifying the program requirements remained. See J. Berke & M. Kirst, Federal Aid to Education: Who Benefits? Who Governs? 377-378 (1972). Congress in 1974 directed the NIE to conduct a comprehensive 3-year study of federal compensatory education programs, including Title I. Pub. L. 93-380, §821, 88 Stat. 599.
The NIE study was the primary impetus for the Education Amendments of 1978. In considering those Amendments, Congress noted evidence that the Office of Education was “implementing administrative requirements in a manner which is neither clear nor consistent, and that this inconsistency is confusing States and local education agencies about their obligations.” H. R. Rep. No. 95-1137, p. 49, (1978); S. Rep. No. 95-856, p. 27 (1978). This confusion, Congress observed, resulted in part from the diffuse legal framework for Title I. In addition to the statutory provisions and the regulations, the Office of Education sent program guides to state education agencies explaining the requirements and their application to particular situations. Id., at 34; H. R. Rep. No. 95-1137, at 55. Office of Education Program Review teams visited local Title I projects and provided advice, and the Office also sent interpretative letters in response to state and local inquiries. NIE Report 18, 27; Office of Education, Title I Program Guide No. 24 (1968) (compilation of interpretative letters).
Congress accepted the NIE’s conclusion that many of the questions concerning the requirements of Title I would be resolved if the various materials prepared by the Office of Education were “assembled, summarized, and interrelated.” S. Rep. No. 95-856, at 34; H. R. Rep. No. 95-1137, at 55. Accordingly, the 1978 Amendments directed the agency to prepare a policy manual compiling the applicable statutes, regulations, advisory opinions, and other materials. 20 U. S. C. §2837. Congress indicated that such a manual would help to “ensure that federal officials uniformly interpret, apply, and enforce Title I requirements throughout the country.” S. Rep. No. 95-856, at 138; H. R. Rep. No. 95-1137, at 161. The NIE study and the extensive review of Title I’s administration by Congress indicate that the requirements of the program, while not always clear, evolved and became more specific over time and were explained in materials beyond the statute and its implementing regulations.
Although we agree with the State that Title I grant agreements had a contractual aspect, see Bennett v. New Jersey, ante, at 638, the program cannot be viewed in the same manner as a bilateral contract governing a discrete transaction. Cf. United States v. Seckinger, 397 U. S. 203, 210 (1970) (“[A] contract should be construed most strongly against the drafter, which in this case was the United States”). Unlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy. See R. Cappalli, Rights and Remedies Under Federal Grants 53-55 (1979). Title I, for example, involved multiple levels of government in a cooperative effort to use federal funds to support compensatory education for disadvantaged children. The Federal Government established general guidelines for the allocation and use of funds, and the States agreed to follow those guidelines in approving and monitoring specific projects developed and operated at the local level. Given the structure of the grant program, the Federal Government simply could not prospectively resolve every possible ambiguity concerning particular applications of the requirements of Title I. Cf. Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 64 (1984). Moreover, the fact that Title I was an ongoing, cooperative program meant that grant recipients had an opportunity to seek clarification of the program requirements. Accordingly, we do not believe that ambiguities in the requirements should invariably be resolved against the Federal Government as the drafter of the grant agreement.
We find it unnecessary here to adopt the Government’s suggestion that the Secretary may rely on any reasonable interpretation of the requirements of Title I to determine that previous expenditures violated the grant conditions. Our review of the operation of Title I explains how the States assumed an intermediary role in monitoring compliance with requirements that were not always clear. In this particular context, we are reluctant to conclude that the States guaranteed that their performance under the grant agreements would satisfy whatever interpretation of the terms might later be adopted by the Secretary, so long as that interpretation is not “arbitrary, capricious, or manifestly contrary to [Title I].” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). As we noted in Bennett v. New Jersey, ante, at 639, 646, the State agreed to comply with, and its liability is determined by, the legal requirements in place when the grants were made. Consequently, in evaluating past expenditures, the Secretary’s interpretation of the requirements of Title I should be informed by the statutory provisions, regulations, and other guidelines provided by the Department at that time. As explained infra, we have no occasion in this case to address the circumstances, if any, in which the Secretary could impose liability for expenditures made in reliance upon an earlier interpretation provided by the Department, cf. Bell v. New Jersey, 461 U. S., at 794 (White, J., concurring), or to decide if a State may be held liable where its interpretation of an ambiguous requirement is more reasonable than an interpretation advanced by the Secretary after the grants were made.
We agree with the Secretary that the readiness classes approved by Kentucky clearly violated existing statutory and regulatory provisions that prohibited supplanting. It is undisputed that Title I funds were used to pay substantially all
I — I <1 the costs for the basic education of students in the readiness classes. Absent these classes funded by Title I, the participating students would have received instruction in regular classes supported by state and local funds. Both the statutory provision and the implementing regulations expressly required that Title I funds not be used to supplant state and local funds for the pupils participating in Title I programs. The statute declared that Title I funds must be used “to supplement... the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and... in no case,... to supplant such funds from non-Federal sources.” 20 U. S. C. § 241e(a)(3)(B) (1970 ed.). The applicable
Question: What is the court in which the case originated?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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sc_partywinning
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B
|
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.
EDWARDS v. PACIFIC FRUIT EXPRESS CO.
No. 465.
Argued March 14, 1968.
Decided April 8, 1968.
Arne Werchick argued the cause for petitioner. With him on the briefs was David S. Levinson.
John J. Corrigan argued the cause for respondent. With him on the brief was Donald O. Roy.
Clifton Hildebrand filed a brief for the Brotherhood of Railway Carmen of America et al., as amici curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The Federal Employers’ Liability Act provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages for the injury or death of its employees resulting in whole or in part from the negligence of the railroad or its agents or resulting from defects in its equipment due to its negligence. The question in this case is whether the respondent Pacific Fruit Express Company is a “common carrier by railroad.”
The respondent is the largest company of its kind in the United States. It owns, maintains, and leases refrigerator cars to railroads to transport perishable products in commerce. Because it repairs its own cars, it also owns buildings, plants, switching tracks, and equipment to make these repairs. While the railroads to which its cars are leased transport them as directed, the respondent Express Company reserves the right to have the cars diverted to carry out its own business plans. The petitioner Edwards works as an iceman at one of respondent’s repair and concentration plants. His duties are to transport ice and help store it in cars for carriage by the railroads. While driving a company motor vehicle in the performance of his duty as an employee for respondent, he was thrown violently to the ground, covered with burning gasoline and severely burned. He later brought this action against respondent, charging it was a “common carrier by railroad” and liable for damages under the Federal Employers’ Liability Act. Contending that it was not a railroad within the meaning of the Act, respondent company moved for a summary judgment which the District Court granted. The Court of Appeals affirmed, 378 F. 2d 54, and we granted cer-tiorari. 389 U. S. 912. We agree with both courts and affirm.
In conducting its business of providing and servicing insulated railroad cars for the carriage of perishable commodities, it is undoubtedly true that respondent performs some railroad functions. For example, it maintains and takes care of railroad cars which are leased to railroads for transportation in interstate commerce. It services these cars while in transit and controls their eventual destination. And respondent has yards and facilities for the repair and storage of its refrigerator cars. The question is whether such functions as these are sufficient to constitute respondent a “common carrier by railroad.” For the answer to this question we must look to past judicial decisions interpreting the Federal Employers’ Liability Act and also the legislative history surrounding the Act.
This Court has held that the words “common carrier by railroad” mean “one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad . . . .” Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187-188. (Emphasis added.) This interpretation of the Act with its references to “operat[ing] a railroad” and a “going railroad” would indicate that the business of renting refrigerator cars to railroads or shippers and providing protective service in the transportation of perishable commodities is not of itself that of a “common carrier by railroad.” And indeed the Wells Fargo decision held that express companies were not within the coverage of the Act. In an even earlier case, Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, this Court held that a Pullman car porter was not an employee of a railroad, hence, not within the coverage of the Act. These decisions are based on the rationale that there exist a number of activities and facilities which, while used in conjunction with railroads and closely related to railroading, are yet not railroading itself. In fact, this Court pointed out in the Robinson case, in discussing the coverage of the Federal Employers’ Liability Act, that, “It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the Act.” 237 U. S., at 94.
In 1939 Congress substantially amended the Federal Employers’ Liability Act. Because of such decisions as Wells Fargo, supra, and Robinson, supra, one of the proposed amendments would have changed the coverage language of § 1 of the Act to read as follows: “Every common carrier by railroad, including every express company, freight forwarding company, and sleeping-car company, engaged in commerce . . . .” Obviously the proposal was designed to nullify this Court’s construction of the Act which had excluded employees of sleeping-car companies and express companies. In committee the proposal received little support and was even opposed by certain segments of organized labor, and it failed to pass. By refusing to broaden the meaning of railroads, Congress declined to extend the coverage of the Act to activities and facilities intimately associated with the business of common carrier by railroad.
Equally significant is the fact that in the years immediately preceding the 1939 amendment to the Federal Employers’ Liability Act, Congress had enacted other major labor and social transportation legislation in which refrigerator car companies were expressly included. For example, in the decade of the 1930’s Congress passed the following Acts which specifically extend coverage to “any company . . . which operates any equipment or facilities or performs any service ... in connection with . . . refrigeration or icing ... of property transported by railroad . . (1) An amendment to the Railway Labor Act, 48 Stat. 1185 (1934), 45 U. S. C. § 151. The Act as originally passed, 44 Stat. 577 (1926), did not specifically include refrigerator car companies. Congress amended it to do so. (2) The Railroad Retirement Act of 1934, 48 Stat. 1283, held unconstitutional in Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935). (3) The Railroad Retirement Act (1935), 49 Stat. 967, and (4) The Carriers’ Taxing Act, 49 Stat. 974 (1935), both of which were passed to overcome the constitutional objection to the Act of 1934. (5) The Railroad Retirement Act of 1937, 50 Stat. 307, 45 U. S. C. § 228a et seq. (1937). (6) The Carriers’ Taxing Act of 1937, 50 Stat. 435. (7) The Railroad Unemployment Insurance Act, 52 Stat. 1094, 45 U. S. C. § 351 et seq. (1938). Yet in 1939, when it came to the amendment of the Federal Employers’ Liability Act, Congress made no mention of refrigerator car companies.
In light of this history it is not surprising that there are only four reported cases where suits have been filed alleging that refrigerator car companies like respondent are covered by the Federal Employers’ Liability Act— all refusing to hold liability under the Act. The first was Gaulden v. Southern Pacific Co., 174 F. 2d 1022 (C. A. 9th Cir. 1949), where suit was brought by an iceman employed by the very refrigerator car company involved here. The Court of Appeals affirmed the District Court’s opinion (78 F. Supp. 651) holding that such a refrigerator car company was not a “common carrier by railroad.” In a subsequent case the Third Circuit, citing the Gaulden opinion, held that another refrigerator car company “which conducted a business similar in all critical aspects to that of” Pacific Fruit Express Company, was not a “common carrier by railroad.” Hetman v. Fruit Growers Express Co., 346 F. 2d 947 (C. A. 3d Cir. 1965). There have also been two state cases involving this very respondent which denied liability. In both Aguirre v. Southern Pacific Co., 232 Cal. App. 2d 636, 43 Cal. Rptr. 73, and Moleton v. Union Pac. R. Co., 118 Utah 107, 219 P. 2d 1080, cert. denied, 340 U. S. 932, the courts concluded that respondent was not a “common' carrier by railroad.”
Thus, for 60 years the Federal Employers’ Liability Act has been administered with the understanding that refrigerator car companies are not included within the terms of the Act. During that time injured employees have been taken care of under state compensation laws. In fact the petitioner here has already drawn more than $6,000 under the California compensation law. The question of whether employees shall rely on state compensation or on the Federal Employers’ Liability Act is a pure question of legislative policy, concerning which apparently even the labor organizations most interested have been divided. Under these circumstances we do not think this Court should depart from 60 years of history to do what is a job for Congress.
Affirmed.
35 Stat. 65, as amended, 45 U. S. C. § 51.
Express companies were again excluded in the subsequent case of Jones v. New York Cent. R. Co., 182 F. 2d 326 (C. A. 6th Cir. 1950), relying on the Wells Fargo decision.
S. 1708, 76th Cong., 1st Sess. (1939).
Hearings before Subcommittee of the Senate Committee on the Judiciary on Amending the Federal Employers’ Liability Act, 76th Cong., 1st Sess., 57, 58 (1939).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
LOCAL 620, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Dura Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 16698, 16724.
United States Court of Appeals Sixth Circuit.
April 8, 1967.
Richard M. Goldberg, Milwaukee, Wis., for petitioner, Local, 620, etc., David Leo Uelman, Goldberg, Previant & Uel-man, Milwaukee, Wis., on the brief.
Donald S. Young, Detroit, Mich., for petitioner, Dura Corp., James D. Tracy, Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, Mich., on the brief.
Peter M. Giesey, A tty., National Labor Relations Board, Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., on the brief.
Before WEICK, Chief Judge, and O’SULLIVAN and PECK, Circuit Judges.
O’SULLIVAN, Circuit Judge.
The NLRB has found certain conduct of the Dura Corporation and Local 620 of the Allied Industrial Workers (AIW) violative of Sections 8(a) (1) and (2) and 8(b) (1) (A) and (2) of the National Labor Relations Act. Dura and AIW petition this Court for review of the Board’s decision, and the Board cross-petitions for enforcement of the order it has entered in the case. The issue before us is whether conduct of Dura and the AIW union and their making of a bargaining agreement coercively interfered with the rights of employees in one of Dura’s plants to choose their own bargaining representative.
Dura Corporation manufactures and sells automobile parts, lawn mowers, farm implements, and service station equipment at some thirteen locations throughout the United States. Its Motor State Products Division (Ypsilanti plant) in Ypsilanti, Michigan, manufactured exclusively, until June, 1964, convertible top frame assemblies for each of the major American automobile com-nanies.. Currently, it works mainly on tops for Ford Motor Company. Employees at the Ypsilanti plant have been represented by AIW since 1946.
In late 1963, executives at Dura concluded that the Ypsilanti plant was run on an excessive overtime basis; employees worked a 7 day week on two twelve-hour shifts, beyond the endurance and capacity of the workers and the plant’s machinery. Various proposals to ease the situation were suggested, and finally in April, 1964, a plant was acquired in Adrian, Michigan, some 45 to 50 miles from Ypsilanti, to be operated as an additional facility. It was anticipated that the Ford line of convertible tops, constituting fifty percent of Dura’s business in this field, would be retained in Ypsilanti, while the Fisher, Chrysler and American Motors lines would be transferred to Adrian.
News of the planned expansion reached the AIW, which reacted to what it considered a threat of reduction in jobs at the Ypsilanti plant if the move to Adrian took place. Dura was warned that it could expect a strike if it attempted to begin operations at the new site before any agreement had been reached protecting the Ypsilanti employees. Heated meetings and discussions ensued. Ways to meet the problem were suggested, considered and dropped. Finally a supplemental agreement to the existing master contract between Dura and AIW was drafted and executed. Its terms provided that employees at Ypsilanti, laid off because of seasonal lows in the automobile industry, would have the right, to bump junior employees at the Adrian plant; all Ypsilanti employees had the right to bid in to jobs as they became available at the new installation. Dura also agreed to recognize the AIW as the bargaining representative of all its new Adrian employees. In exchange for these concessions the AIW allowed Adrian workers to be paid on a day rate, rather than according to the incentive-wage plan in effect at Ypsilanti. Life and health insurance benefits were higher at Ypsilanti, but other provisions of the master contract — vacation, holiday and pension benefits — were carried over intact to Adrian. Transferees from Ypsilanti, however, in general would retain all the advantages they had enjoyed previously.
The supplemental agreement was reached on August 3, 1964. At that time the Adrian plant had begun operations and employed some 40 workers, all ■“new hires” from the Adrian area. AIW, which now purported to represent these employees, never made any claim to Dura that a majority of them had designated it as their bargaining agent. Nevertheless, on August 4, the Adrian workers were called together and informed by Dura’s Ypsilanti director of industrial relations that a contract covering the Adrian plant had been negotiated between Dura and the AIW.
Two days later Dura received a letter from the United Auto, Aerospace and Agricultural Implements Workers of America, AFL-CIO (UAW) informing it that agents of the UAW had commenced an organizational drive among the Adrian plant workers, and that a majority of them had chosen it as their exclusive representative for purposes of collective bargaining. Prior to this time, the company had no knowledge of UAW’s organizing activities. The letter advised Dura that no other union represented the involved Adrian employees and requested that negotiations leading to a contract begin.
Notwithstanding the UAW letter, Dura and AIW formally executed the supplemental agreement on August 14, 1964. Additional terms of that agreement, arrived at earlier, required Adrian plant employees be members of the AIW as a condition of employment; there was provision also for dues check-off by Adrian workers, but only ten or twelve ■employees ever signed a dues check-off authorization. No dues, however, were ■ever deducted by Dura on behalf of the AIW, and the union informed the company that it waived enforcement of the AIW membership requirement.
The accuracy of the foregoing facts is disputed in part by appellants; but such facts, and those hereinafter recited, were found by the Board, and we cannot say that they are not supported by substantial evidence. We, therefore, accept them. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Both the Adrian and Ypsilanti plants are currently run as separate divisions of Dura Corporation, each reporting to Dura’s vice-president in charge of manufacturing and sales activities.. Each has its own plant superintendent and industrial relations director and does its own hiring, handles its own payroll and administers its own grievance procedures. Some tooling and dies were originally transferred from Ypsilanti to the Adrian plant, but most of the machinery the new installation uses in making convertible tops was acquired elsewhere. With the exception of the bows, components of the convertible frame assembly, that are made exclusively at Ypsilanti, the Adrian division does not depend on the Ypsilanti plant for any of its material or processing. The initial complement of manpower at Adrian went from 40 employees in August, 1964, to around 300 in December, 1964, and then leveled off to between 250 and 270. Ten workers from Ypsilanti transferred temporarily to Adrian in October-December of 1964, but none remained longer than a month or so; there has been no other interchange of employees between the two divisions. Petitioners attribute this fact, first, to the introduction of Ford’s Mustang in the summer of 1964, the success of which kept the Ypsilanti plant in full time operation, without the anticipated cut-back in production; when seasonal layoffs did occur, transfers of any employees from Ypsilanti to Adrian were refused by Dura after the issuance of the unfair labor charge and pending the outcome of this action.
From these facts the Board found that the Adrian plant was not an accretion to the Ypsilanti plant and that there was not such a community of interest and functional integration between the two facilities as to require them to be viewed as a single bargaining unit. It concluded that Dura Corporation and the AIW violated, respectively, Sections 8(a) (2) and (1) and Sections 8(b) (2) and (1) (A) of the Act, by executing the supplemental agreement at a time when AIW was not the majority representative of the Adrian plant employees. It held that such conduct accorded unlawful recognition of the union by the employer, and infringed upon the statutory right of Adrian employees to choose freely their own bargaining representative.
In attacking the Board’s determination appellants argue, first, that under the facts of this case the Adrian plant must be regarded as an accretion to the Ypsilanti plant, that a sufficient “community of interest” exists between the employees at the two facilities 'as to require that they bargain through the same representative. Second, the appellants urge that the issue properly before the Board was only whether Dura and AIW entered into a contract covering an appropriate unit in which the union represented a majority of the employees; and that the Board did not, in this case, have discretion to choose the appropriate unit.
We find it difficult to keep these contentions separate. Whether or not the Adrian plant was an accretion to the Ypsilanti plant, or whether the two facilities could be considered an appropriate single unit for collective bargaining is precisely the sort of issue to be left to the Board’s discretion by Section 9(b) of the Act. A unit is not a flexible thing, as broad or narrow as an employer and union care to make it. It is for the Board to decide, once the scope of a bargaining unit is called into question, whether or not such unit is appropriate for the purposes of collective bargaining. And this Court has said, in Metropolitan Life Ins. Co. v. NLRB, 330 F.2d 62, 65 (C.A. 6, 1964), rev’d and remanded on other grounds, 380 U.S. 525, 85 S.Ct. 1326, 14 L.Ed.2d 265:
“The Board has the authority under the Act to determine the appropriate units for collective bargaining. (Section 159(b), Title 29, U.S.C.) It has wide discretionary powers in this respect. What is an appropriate unit is a question of fact to be determined by the Board upon the facts of each case. Its decision will not be disturbed except for an abuse of discretion or violation of the statute. Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; N.L.R.B. v. Prudential Ins. Co., 154 F.2d 385, 388, C.A. 6; N.L.R.B. v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, C.A. 4.”
See also NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750, 756 (C.A. 6, 1965), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.
That this is not a representation case does not change the role of the Board. Nor is this a case where an appropriate unit was already in existence, and the Board attempted to bypass the procedural requirements of Section 9(c) of the Act (which allows dissatisfied minority employees to seek separate representation) by holding that a new operating division within the unit did not constitute an accretion thereto. See NLRB v. Appleton Electric Co., 296 F.2d 202, 206 (C.A. 7, 1961). Here the question was whether the boundaries of a valid bargaining unit could be contractually extended by an employer and union to cover employees at a distant plant who never indicated their support of that union. The Board found that the new facility did not constitute an accretion to the old plant, and that there was not a sufficient community of interest demonstrated between the Adrian workers and the Ypsilanti workers to justify the former being represented, without their acquiescence, by the same bargaining agent. From the facts detailed in the record before us — the existence of separate administrative units, the geographical distance between the plants, their lack of significant functional integration, the contractual differences governing the two groups of workers, the failure of any substantial interchange of employees to take place, even in the period preceding the lodging of the unfair labor complaint — we are not able to conclude that the Board’s findings constituted an abuse of discretion.
We do not fault the vigorous effort of Dura and AIW to resolve the problems engendered by the transfer of operations from Ypsilanti. From the evidence it is clear that the AIW union employed strong pressures on the company —threats of a strike if any equipment was transferred for operations commenced at Adrian before a contract giving AIW exclusive bargaining rights at Adrian was concluded — but surrender to these pressures would not exculpate the company if by so doing the law was violated. Even assuming that the doctrine announced in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) required the two parties to bargain over the consequences of such a transfer, we do not believe that any settlement which emerges is necessarily invulnerable to Board inspection. Indeed the Supreme Court in Fibreboard acknowledged that it was not possible to say whether a satisfactory solution could be reached in every instance that an issue was subjected to the process of collective bargaining. 379 U.S. at 214, 85 S.Ct. 398. As found by the Board, the agreement entered into by petitioners cannot be regarded as a satisfactory solution. The rights of the employees at Adrian to choose their own bargaining representative cannot be abrogated by the contract executed between Dura and AIW. See International Ladies’ Garment Workers’ Union AFL-CIO v. NLRB, 366 U.S. 731, 738, 739, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961).
Enforcement of the order of the Board is granted.
. § 8(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; * * *
(b) It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of membership therein; or * * *
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.
. Section 9(b) states that “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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sc_certreason
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K
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
FRANCHISE TAX BOARD OF CALIFORNIA, Petitioner
v.
Gilbert P. HYATT
No. 17-1299.
Supreme Court of the United States.
Argued January 9, 2019
Decided May 13, 2019
Seth P. Waxman, Washington, DC, for the petitioner.
Erwin Chemerinsky, Berkeley, CA, for the respondent.
William C. Hilson, Jr., Scott W. DePeel, Ann Hodges, Franchise Tax Board of the State of California, Sacramento, CA, James W. Bradshaw, Pat Lundvall, Debbie Leonard, McDonald Carano LLP, Las Vegas, NV, Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Joshua M. Koppel, James Barton, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for petitioner.
Erwin Chemerinsky, University of California, Berkeley School of Law, Berkeley, CA, Mark D. Rosenbaum, Alisa Hartz, Public Counsel, Donald J. Kula, Perkins Coie LLP, Los Angeles, CA, Paul Hoffman, Schonbrun Seplow Harris & Hoffman LLP, Hermosa Beach, CA, Joel W. Nomkin, Perkins Coie LLP, Phoenix, AZ, for respondent Gilbert P. Hyatt.
Justice THOMAS delivered the opinion of the Court.
This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979).
I
In the early 1990s, respondent Gilbert Hyatt earned substantial income from a technology patent for a computer formed on a single integrated circuit chip. Although Hyatt's claim was later canceled, see Hyatt v. Boone, 146 F. 3d 1348 (C.A. Fed. 1998), his royalties in the interim totaled millions of dollars. Prior to receiving the patent, Hyatt had been a long-time resident of California. But in 1991, Hyatt sold his house in California and rented an apartment, registered to vote, obtained insurance, opened a bank account, and acquired a driver's license in Nevada. When he filed his 1991 and 1992 tax returns, he claimed Nevada-which collects no personal income tax, see Nev. Const., Art. 10, § 1 (9)-as his primary place of residence.
Petitioner Franchise Tax Board of California (Board), the state agency responsible for assessing personal income tax, suspected that Hyatt's move was a sham. Thus, in 1993, the Board launched an audit to determine whether Hyatt underpaid his 1991 and 1992 state income taxes by misrepresenting his residency. In the course of the audit, employees of the Board traveled to Nevada to conduct interviews with Hyatt's estranged family members and shared his personal information with business contacts. In total, the Board sent more than 100 letters and demands for information to third parties. The Board ultimately concluded that Hyatt had not moved to Nevada until April 1992 and owed California more than $ 10 million in back taxes, interest, and penalties. Hyatt protested the audit before the Board, which upheld the audit after an 11-year administrative proceeding. The appeal of that decision remains pending before the California Office of Tax Appeals.
In 1998, Hyatt sued the Board in Nevada state court for torts he alleged the agency committed during the audit. After the trial court denied in part the Board's motion for summary judgment, the Board petitioned the Nevada Supreme Court for a writ of mandamus ordering dismissal on the ground that the State of California was immune from suit. The Board argued that, under the Full Faith and Credit Clause, Nevada courts must apply California's statute immunizing the Board from liability for all injuries caused by its tax collection. See U.S. Const., Art. IV, § 1 ; Cal. Govt. Code Ann. § 860.2 (West 1995). The Nevada Supreme Court rejected that argument and held that, under general principles of comity, the Board was entitled to the same immunity that Nevada law afforded Nevada agencies-that is, immunity for negligent but not intentional torts. We granted certiorari and unanimously affirmed, holding that the Full Faith and Credit Clause did not prohibit Nevada from applying its own immunity law to the case. Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 498-499, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003) ( Hyatt I ). Because the Board did not ask us to overrule Nevadav.Hall, supra, we did not revisit that decision. Hyatt I, supra, at 497, 123 S.Ct. 1683.
On remand, the trial court conducted a 4-month jury trial that culminated in a verdict for Hyatt that, with prejudgment interest and costs, exceeded $ 490 million. On appeal, the Nevada Supreme Court rejected most of the damages awarded by the lower court, upholding only a $ 1 million judgment on one of Hyatt's claims and remanding for a new damages trial on another. Although the court recognized that tort liability for Nevada state agencies was capped at $ 50,000 under state law, it nonetheless held that Nevada public policy precluded it from applying that limitation to the California agency in this case. We again granted certiorari and this time reversed, holding that the Full Faith and Credit Clause required Nevada courts to grant the Board the same immunity that Nevada agencies enjoy. Franchise Tax Bd. of Cal.v.Hyatt, 578 U.S. ----, ---- - ----, 136 S.Ct. 1277, 1280-1283, 194 L.Ed.2d 431 (2016) ( HyattII ). Although the question was briefed and argued, the Court was equally divided on whether to overrule Hall and thus affirmed the jurisdiction of the Nevada Supreme Court. Hyatt II, supra, at ----, 136 S.Ct. at 1278. On remand, the Nevada Supreme Court instructed the trial court to enter damages in accordance with the statutory cap for Nevada agencies. 133 Nev. ----, 407 P. 3d 717 (2017).
We granted, for a third time, the Board's petition for certiorari, 585 U.S. ----, 138 S.Ct. 2710, 201 L.Ed.2d 1095 (2018). The sole question presented is whether Nevadav.Hall should be overruled.
II
Nevadav.Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent. We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States.
A
Hall held that the Constitution does not bar private suits against a State in the courts of another State. 440 U.S. at 416-421, 99 S.Ct. 1182. The opinion conceded that States were immune from such actions at the time of the founding, but it nonetheless concluded that nothing "implicit in the Constitution" requires States "to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted." Id., at 417-418, 424-427, 99 S.Ct. 1182. Instead, the Court concluded that the Founders assumed that "prevailing notions of comity would provide adequate protection against the unlikely prospect of an attempt by the courts of one State to assert jurisdiction over another." Id., at 419, 99 S.Ct. 1182. The Court's view rested primarily on the idea that the States maintained sovereign immunity vis-à-vis each other in the same way that foreign nations do, meaning that immunity is available only if the forum State "voluntar[ily]" decides "to respect the dignity of the [defendant State] as a matter of comity." Id., at 416, 99 S.Ct. 1182 ; see also id., at 424-427, 99 S.Ct. 1182.
The Hall majority was unpersuaded that the Constitution implicitly altered the relationship between the States. In the Court's view, the ratification debates, the Eleventh Amendment, and our sovereign-immunity precedents did not bear on the question because they "concerned questions of federal-court jurisdiction." Id., at 420, 99 S.Ct. 1182. The Court also found unpersuasive the fact that the Constitution delineates several limitations on States' authority, such as Article I powers granted exclusively to Congress and Article IV requirements imposed on States. Id., at 425, 99 S.Ct. 1182. Despite acknowledging "that ours is not a union of 50 wholly independent sovereigns," Hall inferred from the lack of an express sovereign immunity granted to the States and from the Tenth Amendment that the States retained the power in their own courts to deny immunity to other States. Ibid.
Chief Justice Burger, Justice Blackmun, and Justice Rehnquist dissented.
B
Hall's determination that the Constitution does not contemplate sovereign immunity for each State in a sister State's courts misreads the historical record and misapprehends the "implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers." Id., at 433, 99 S.Ct. 1182 (Rehnquist, J., dissenting). As Chief Justice Marshall explained, the Founders did not state every postulate on which they formed our Republic-"we must never forget, that it is a constitution we are expounding." McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819). And although the Constitution assumes that the States retain their sovereign immunity except as otherwise provided, it also fundamentally adjusts the States' relationship with each other and curtails their ability, as sovereigns, to decline to recognize each other's immunity.
1
After independence, the States considered themselves fully sovereign nations. As the Colonies proclaimed in 1776, they were "Free and Independent States" with "full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." Declaration of Independence ¶4. Under international law, then, independence "entitled" the Colonies "to all the rights and powers of sovereign states." McIlvaine v. Coxe's Lessee, 4 Cranch 209, 212, 2 L.Ed. 598 (1808).
"An integral component" of the States' sovereignty was "their immunity from private suits." Federal Maritime Comm'n v. South Carolina Ports Authority, 535 U.S. 743, 751-752, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) ; see Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) ("[A]s the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today..."). This fundamental aspect of the States' "inviolable sovereignty" was well established and widely accepted at the founding. The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison); see Alden, supra, at 715-716, 119 S.Ct. 2240 ("[T]he doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified"). As Alexander Hamilton explained:
"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union." The Federalist No. 81, at 487 (emphasis deleted).
The Founders believed that both "common law sovereign immunity" and "law-of-nations sovereign immunity" prevented States from being amenable to process in any court without their consent. See Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 581-588 (1994) ; see also Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1574-1579 (2002). The common-law rule was that "no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him." 1 W. Blackstone, Commentaries on the Laws of England 235 (1765) (Blackstone). The law-of-nations rule followed from the "perfect equality and absolute independence of sovereigns" under that body of international law. Schooner Exchange v. McFaddon, 7 Cranch 116, 137, 3 L.Ed. 287 (1812) ; see C. Phillipson, Wheaton's Elements of International Law 261 (5th ed. 1916) (recognizing that sovereigns "enjoy equality before international law"); 1 J. Kent, Commentaries on American Law 20 (G. Comstock ed. 1867). According to the founding era's foremost expert on the law of nations, "[i]t does not... belong to any foreign power to take cognisance of the administration of [another] sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it." 2 E. de Vattel, The Law of Nations § 55, p. 155 (J. Chitty ed. 1883). The sovereign is "exemp[t]... from all [foreign] jurisdiction." 4 id., § 108, at 486.
The founding generation thus took as given that States could not be haled involuntarily before each other's courts. See Woolhandler, Interstate Sovereign Immunity, 2006 S. Ct. Rev. 249, 254-259. This understanding is perhaps best illustrated by preratification examples. In 1781, a creditor named Simon Nathan tried to recover a debt that Virginia allegedly owed him by attaching some of its property in Philadelphia. James Madison and other Virginia delegates to the Confederation Congress responded by sending a communique to Pennsylvania requesting that its executive branch have the action dismissed. See Letter from Virginia Delegates to Supreme Executive Council of Pennsylvania (July 9, 1781), in 3 The Papers of James Madison, 184-185 (W. Hutchinson & W. Rachal eds. 1963). As Madison framed it, the Commonwealth's property could not be attached by process issuing from a court of "any other State in the Union." Id., at 184. To permit otherwise would require Virginia to "abandon its Sovereignty by descending to answer before the Tribunal of another Power." Ibid. Pennsylvania Attorney General William Bradford intervened, urging the Court of Common Pleas to dismiss the action. See Nathan v. Virginia, 1 Dall. 77, 78, 1 L.Ed. 44 (C. P. Phila. Cty. 1781). According to Bradford, the suit violated international law because "all sovereigns are in a state of equality and independence, exempt from each other's jurisdiction." Ibid. "[A]ll jurisdiction implies superiority over the party," Bradford argued, "but there could be no superiority" between the States, and thus no jurisdiction, because the States were "perfect[ly] equa[l]" and "entire[ly] independen[t]." Ibid. The court agreed and refused to grant Nathan the writ of attachment. Id., at 80.
Similarly, a Pennsylvania Admiralty Court that very same year dismissed a libel action against a South Carolina warship, brought by its crew to recover unpaid wages. The court reasoned that the vessel was owned by a "sovereign independent state." Moitez v. The South Carolina, 17 F. Cas. 574 (No. 9697) (1781).
The Founders were well aware of the international-law immunity principles behind these cases. Federalists and Antifederalists alike agreed in their preratification debates that States could not be sued in the courts of other States. One Federalist, who argued that Article III would waive the States' immunity in federal court, admitted that the waiver was desirable because of the "impossibility of calling a sovereign state before the jurisdiction of another sovereign state." 3 Debates on the Constitution 549 (J. Elliot ed. 1876) (Pendleton) (Elliot's Debates). Two of the most prominent Antifederalists-Federal Farmer and Brutus-disagreed with the Federalists about the desirability of a federal forum in which States could be sued, but did so for the very reason that the States had previously been "subject to no such actions" in any court and were not "oblige[d]" "to answer to an individual in a court of law." Federal Farmer No. 3 (Oct. 10, 1787), in 4 The Founders' Constitution 227 (P. Kurland & R. Lerner eds. 1987). They found it "humiliating and degrading" that a State might have to answer "the suit of an individual." Brutus No. 13 (Feb. 21, 1788), in id., at 238.
In short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution's use of the term "States" reflects both of these kinds of traditional immunity. And the States retained these aspects of sovereignty, "except as altered by the plan of the Convention or certain constitutional Amendments." Alden, 527 U.S. at 713, 119 S.Ct. 2240.
2
One constitutional provision that abrogated certain aspects of this traditional immunity was Article III, which provided a neutral federal forum in which the States agreed to be amenable to suits brought by other States. Art. III, § 2; see Alden, supra, at 755, 119 S.Ct. 2240. "The establishment of a permanent tribunal with adequate authority to determine controversies between the States, in place of an inadequate scheme of arbitration, was essential to the peace of the Union." Principality of Monaco v. Mississippi, 292 U.S. 313, 328, 54 S.Ct. 745, 78 L.Ed. 1282 (1934). As James Madison explained during the Convention debates, "there can be no impropriety in referring such disputes" between coequal sovereigns to a superior tribunal. Elliot's Debates 532.
The States, in ratifying the Constitution, similarly surrendered a portion of their immunity by consenting to suits brought against them by the United States in federal courts. See Monaco, supra, at 328, 54 S.Ct. 745 ; Federal Maritime Comm'n, 535 U.S. at 752, 122 S.Ct. 1864. "While that jurisdiction is not conferred by the Constitution in express words, it is inherent in the constitutional plan." Monaco, supra, at 329, 54 S.Ct. 745. Given that "all jurisdiction implies superiority of power," Blackstone 235, the only forums in which the States have consented to suits by one another and by the Federal Government are Article III courts. See Federal Maritime Comm'n, supra, at 752, 122 S.Ct. 1864.
The Antifederalists worried that Article III went even further by extending the federal judicial power over controversies "between a State and Citizens of another State." They suggested that this provision implicitly waived the States' sovereign immunity against private suits in federal courts. But "[t]he leading advocates of the Constitution assured the people in no uncertain terms" that this reading was incorrect. Alden, 527 U.S. at 716, 119 S.Ct. 2240 ; see id., at 716-718, 119 S.Ct. 2240 (citing arguments by Hamilton, Madison, and John Marshall). According to Madison:
"[A federal court's] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts." Elliot's Debates 533.
John Marshall echoed these sentiments:
"With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a state will be called at the bar of the federal court.... The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words." Id., at 555 (emphasis in original).
Not long after the founding, however, the Antifederalists' fears were realized. In Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), the Court held that Article III allowed the very suits that the "Madison-Marshall-Hamilton triumvirate" insisted it did not. Hall, 440 U.S. at 437, 99 S.Ct. 1182 (Rehnquist, J., dissenting). That decision precipitated an immediate "furor" and "uproar" across the country. 1 J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 734, 737 (1971); see id., at 734-741. Congress and the States accordingly acted swiftly to remedy the Court's blunder by drafting and ratifying the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 660-662, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ; see also Federal Maritime Comm'n, supra, at 753, 122 S.Ct. 1864 (acknowledging that Chisholm was incorrect); Alden, supra, at 721-722, 119 S.Ct. 2240 (same).
The Eleventh Amendment confirmed that the Constitution was not meant to "rais[e] up" any suits against the States that were "anomalous and unheard of when the Constitution was adopted." Hans v. Louisiana, 134 U.S. 1, 18, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Although the terms of that Amendment address only "the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision," the "natural inference" from its speedy adoption is that "the Constitution was understood, in light of its history and structure, to preserve the States' traditional immunity from private suits." Alden, supra, at 723-724, 119 S.Ct. 2240. We have often emphasized that "[t]he Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). In proposing the Amendment, "Congress acted not to change but to restore the original constitutional design." Alden, 527 U.S. at 722, 119 S.Ct. 2240. The "sovereign immunity of the States," we have said, "neither derives from, nor is limited by, the terms of the Eleventh Amendment." Id., at 713, 119 S.Ct. 2240.
Consistent with this understanding of state sovereign immunity, this Court has held that the Constitution bars suits against nonconsenting States in a wide range of cases. See, e.g., Federal Maritime Comm'n, supra (actions by private parties before federal administrative agencies); Alden, supra (suits by private parties against a State in its own courts); Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (suits by Indian tribes in federal court); Monaco, 292 U.S. 313, 54 S.Ct. 745 (suits by foreign states in federal court); Ex parte New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) (admiralty suits by private parties in federal court); Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900) (suits by federal corporations in federal court).
3
Despite this historical evidence that interstate sovereign immunity is preserved in the constitutional design, Hyatt insists that such immunity exists only as a "matter of comity" and can be disregarded by the forum State. Hall, supra, at 416, 99 S.Ct. 1182. He reasons that, before the Constitution was ratified, the States had the power of fully independent nations to deny immunity to fellow sovereigns; thus, the States must retain that power today with respect to each other because "nothing in the Constitution or formation of the Union altered that balance among the still-sovereign states." Brief for Respondent 14. Like the majority in Hall, he relies primarily on our early foreign immunity decisions. For instance, he cites Schooner Exchangev.McFaddon, in which the Court dismissed a libel action against a French warship docked in Philadelphia because, under the law of nations, a sovereign's warships entering the ports of a friendly nation are exempt from the jurisdiction of its courts. 7 Cranch at 145-146. But whether the host nation respects that sovereign immunity, Chief Justice Marshall noted, is for the host nation to decide, for "[t]he jurisdiction of [a] nation within its own territory is necessarily exclusive and absolute" and "is susceptible of no limitation not imposed by itself." Id., at 136. Similar reasoning is found in The Santissima Trinidad, 7 Wheat. 283, 353, 5 L.Ed. 454 (1822), where Justice Story noted that the host nation's consent to provide immunity "may be withdrawn upon notice at any time, without just offence."
The problem with Hyatt's argument is that the Constitution affirmatively altered the relationships between the States, so that they no longer relate to each other solely as foreign sovereigns. Each State's equal dignity and sovereignty under the Constitution implies certain constitutional "limitation[s] on the sovereignty of all of its sister States." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980). One such limitation is the inability of one State to hale another into its courts without the latter's consent. The Constitution does not merely allow States to afford each other immunity as a matter of comity; it embeds interstate sovereign immunity within the constitutional design. Numerous provisions reflect this reality.
To begin, Article I divests the States of the traditional diplomatic and military tools that foreign sovereigns possess. Specifically, the States can no longer prevent or remedy departures from customary international law because the Constitution deprives them of the independent power to lay imposts or duties on imports and exports, to enter into treaties or compacts, and to wage war. Compare Art. I, § 10, with Declaration of Independence ¶4 (asserting the power to "levy War, conclude Peace, contract Alliances, [and] establish Commerce"); see Kansas v. Colorado, 185 U.S. 125, 143, 22 S.Ct. 552, 46 L.Ed. 838 (1902).
Article IV also imposes duties on the States not required by international law. The Court's Full Faith and Credit Clause precedents, for example, demand that state-court judgments be accorded full effect in other States and preclude States from "adopt[ing] any policy of hostility to the public Acts" of other States. Hyatt II, 578 U.S., at ----, 136 S.Ct., at 1281 (internal quotation marks omitted); see Art. IV, § 1. States must also afford citizens of each State "all Privileges and Immunities of Citizens in the several States" and honor extradition requests upon "Demand of the executive Authority of the State" from which the fugitive fled. Art. IV, § 2. Foreign sovereigns cannot demand these kinds of reciprocal responsibilities absent consent or compact. But the Constitution imposes them as part of its transformation of the States from a loose league of friendship into a perpetual Union based on the "fundamental principle of equal sovereignty among the States." Shelby County v. Holder, 570 U.S. 529, 544, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) (emphasis in original and internal quotation marks omitted).
The Constitution also reflects implicit alterations to the States' relationships with each other, confirming that they are no longer fully independent nations. See New Hampshire v. Louisiana, 108 U.S. 76, 90, 2 S.Ct. 176, 27 L.Ed. 656 (1883). For example, States may not supply rules of decision governing "disputes implicating the[ir] conflicting rights." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). Thus, no State can apply its own law to interstate disputes over borders, Cissna v. Tennessee, 246 U.S. 289, 295, 38 S.Ct. 306, 62 L.Ed. 720 (1918), water rights, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110, 58 S.Ct. 803, 82 L.Ed. 1202 (1938), or the interpretation of interstate compacts, Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 278-279, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). The States would have had the raw power to apply their own law to such matters before they entered the Union, but the Constitution implicitly forbids that exercise of power because the "interstate... nature of the controversy makes it inappropriate for state law to control." Texas Industries, supra, at 641, 101 S.Ct. 2061. Some subjects that were decided by pure "political power" before ratification now turn on federal "rules of law." Rhode Island v. Massachusetts, 12 Pet. 657, 737, 9 L.Ed. 1233 (1838). See Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1322-1331 (1996).
Interstate sovereign immunity is similarly integral to the structure of the Constitution. Like a dispute over borders or water rights, a State's assertion of compulsory judicial process over another State involves a direct conflict between sovereigns. The Constitution implicitly strips States of any power they once had to refuse each other sovereign immunity, just as it denies them the power to resolve border disputes by political means. Interstate immunity, in other words, is "implied as an essential component of federalism." Hall, 440 U.S. at 430-431, 99 S.Ct. 1182 (Blackmun, J., dissenting).
Hyatt argues that we should find no right to sovereign immunity in another State's courts because no constitutional provision explicitly grants that immunity. But this is precisely the type of "ahistorical literalism" that we have rejected when "interpreting the scope of the States' sovereign immunity since the discredited decision in Chisholm." Alden, 527 U.S. at 730, 119 S.Ct. 2240 ; see id., at 736, 119 S.Ct. 2240 ("[T]he bare text of the Amendment is not an exhaustive description of the States' constitutional immunity from suit"). In light of our constitutional structure, the historical understanding of state immunity, and the swift enactment of the Eleventh Amendment after the Court departed from this understanding in Chisholm, "[i]t is not rational to suppose that the sovereign power should be dragged before a court." Elliot's Debates 555 (Marshall). Indeed, the spirited historical debate over Article III courts and the immediate reaction to Chisholm make little sense if the Eleventh Amendment were the only source of sovereign immunity and private suits against the States could already be brought in "partial, local tribunals." Elliot's Debates 532 (Madison). Nor would the Founders have objected so strenuously to a neutral federal forum for private suits against States if they were open to a State being sued in a different State's courts. Hyatt's view thus inverts the Founders' concerns about state-court parochialism. Hall, supra, at 439, 99 S.Ct. 1182 (Rehnquist, J., dissenting).
Moreover, Hyatt's ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice-including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176-180, 2 L.Ed. 60 (1803) ; intergovernmental tax immunity, McCulloch, 4 Wheat. at 435-436 ; executive privilege, United States v. Nixon, 418 U.S. 683, 705-706, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ; executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755-758, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) ; and the President's removal power, Myers v. United States, 272 U.S. 52, 163-164, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Like these doctrines, the States' sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.
C
With the historical record and precedent against him, Hyatt defends Hall on the basis of stare decisis. But stare decisis is " 'not an inexorable command,' " Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and we have held that it is "at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment," Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). The Court's precedents identify a number of factors to consider, four of which warrant mention here: the quality of the decision's reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision. See Janusv.State, County, and Municipal Employees, 585 U.S. ----, ---- - ----, 138 S.Ct. 2448, 2478-2479, 201 L.Ed.2d 924 (2018) ; United States v. Gaudin, 515 U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
The first three factors support our decision to overrule Hall. We have already explained that Hall failed to account for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered the States' relationships with one another. We have also demonstrated that Hall stands as an outlier in our sovereign-immunity jurisprudence, particularly when compared to more recent decisions.
As to the fourth factor, we acknowledge that some plaintiffs, such as Hyatt, have relied on Hall by suing sovereign States. Because of our decision to overrule Hall, Hyatt unfortunately will suffer the loss of two decades of litigation expenses and a final judgment against the Board for its egregious conduct. But in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel1_3_2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
NATIONAL LABOR RELATIONS BOARD v. SWIFT & CO.
No. 9228.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 18, 1947.
Decided June 11, 1947.
Elizabeth Weston, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Coxmsel, Morris A. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Leonard Appel and Charles Ryan, Attys., N.L.R.B., all of Washington, D. C., on the brief), for appellant.
Bernard G. Segal, of Philadelphia, Pa. (Wm. A. Schnader,. Irving R. Segal, and Schnader, Kenworthey, Segal and Lewis, all of Philadelphia, Pa., on the brief), for ap-pellee.
Before O’CONNELL and KALODNER, Circuit Judges, and FOLLMER, District Judge.
KALODNER, Circuit Judge.
Three questions are presented by this petition of the National Labor Relations Board for enforcement of its order of August 31, 1945, against the respondent, an Illinois corporation operating a meat packing plant at Jersey City, New Jersey. The Board’s jurisdiction is conceded.
The three questions involved are: (1) whether certain plant clerks and standards department checkers are “employees” within the meaning of the Act; (2) whether the Board could properly certify as the exclusive bargaining representative of a. unit including the plant clerks and checkers a union, of which a coaffiliate represents respondent’s production and maintenance employees, a.nd order respondent to bargain collectively with the union so certified; (3) whether the Board in its discretion xnay require respondent to bargain collectively with the Union which represented a majority of the employees in the certified unit at the time of respondents refusal to bargain, despite the Union’s loss of majority status after respondent failed to bargain for an unbroken period of approximately two years.
The Board’s order was based on findings that respondent, in violation of Section 8(1) and (5) of the Act, refused to bargain collectively with United Packinghouse Workers of America, Local 49-A (C.I.O.), herein called the Union, as the exclusive representative of what the Board determined to be an appropriate unit composed of clerical employees at its Jersey City plant. The Board’s order required respondent to cease and desist from the unfair labor practices found and from any related conduct, to bargain collectively with the Union upon request, and to post notices as hereinafter discussed.
It appears that on December 2, 1943, the Union filed its representation petition under Section 9 of the Act with respect to a group of employees', including plant clerks and standards department checkers. The Trial Examiner of the Board conducted a hearing on February 16, 1944, attended by Iho Union and the respondent. On April 29, 1944, the Board issued a Decision and Direction of Election in which it found that the plant clerks and standards department checkers were not managerial employees as contended by respondent and that these employees, together with certain other employees constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
On May 24, 1944, an election was conducted and the Board on June 5, 1944, issued a certificate of representation in which it found that of approximately 29 eligible voters, 20 cast valid votes for the Union and three against it. It may be noted that no objections to the election were filed by the respondent. The certification of the Union as the exclusive bargaining representative of the employees in the unit was in conformity with the provision of Section 9(a) and (c) of the Act.
On November 16, 1944, the respondent advised the Union of (a) its refusal to bargain with it on matters relating to plant clerks, and of (b) its intention to seek Court review of any Board order that might issue because of respondent’s refusal to negotiate. The respondent in doing so took the position that the unit included individuals who were part of management and whose duties were supervisory in character, so that they were not “employees” under the Act; further, that in any event they should not be represented by the same union as the company’s production employees, and finally that the unit was too heterogeneous to be valid. The Union thereupon filed charges that respondent had refused to bargain with it and proceedings were commenced under Section 10(c) of the. Act.
The Board thereupon issued a complaint against the respondent and on March 21 and 22, 1945, hearings were held before a Trial Examiner. At the hearings' upon the complaint, respondent admitted its refusal to negotiate with the Union. On April 6, 1945, the Intermediate Report of the '¡’rial Examiner was filed. The report found that “ * * * the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid bargaining unit * * * ” and was therefore “ * * * the exclusive representative * * It also found that the respondent “ * * * has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.”
Subsequently, on August 31, 1945, the Board issued its Decision and Order affirming its previous finding in the representation proceedings and finding further that the respondent’s refusal to bargain with the Union constituted a statutory violation. The respondent was ordered, among other things, to bargain collectively with the Union upon request. For the reasons previously stated the respondent continued to refuse to do so.
The Board did not file its petition for enforcement of its order and a transcript of the record in the representation and the complaint proceedings until September 12, 1946.
The respondent’s answer raised a number of objections to the Board’s order and to the conduct of proceedings before the Board.
On November 14, 1946, before respondent’s brief on these issues was due for filing, a communication was presented to Mr. W. R. Moffat, Superintendent of the Jersey City plant of the company. This communication read as follows: “We the undersigned plant clerks and checkers do hereby state, that we do not wish to be represented by unionism in this plant.”
The communication was signed by 20 of the 25 persons in the positions comprising the unit which the Board found appropriate in its decision of April 29, 1944.
In view of this communication the respondent, on November 25, 1946, filed with this Court a motion for leave to adduce additional evidence material to this cause, under Section 10(e) of the Act, 29 U.S.C.A. § 160(e).
In its motion, respondent averred as follows : that of the 20 persons who signed the above communication,. 13 were not on its payroll at the time of the election on May 24, 1944; of these, 9 were former employees who were serving in the armed forces of the United States at the time of the election and who had since returned to its staff; seven of these 9 occupied positions which would have rendered them eligible to vote at the time of the election if they had not been in military service — -two of them occupied such positions since their return' from military service; another of these 13 persons was in its employ at the time of the election but was not in the alleged unit and was therefore ineligible to vote; he was subsequently transferred to a position which placed him within the alleged unit; two additional persons in this group of 13 were hired and one was transferred to its Jersey City plant since the election and after all hearings were concluded in these proceedings ; the remaining seven of the 20 persons who signed the communication were eligible to vote in the election of May 24, 1944.
Argument on the respondent’s motion was heard by this Court on December 16, 1946. At the time the respondent asserted that it was prepared to prove that the foregoing changes in personnel occurred in the normal course of business, replacement of women— who had temporarily occupied these positions during wartime — by men. Respondent urged that the purposes' of the Act would not be served by compelling it to bargain with the Union as the sole representative of its employees in complete disregard of the wishes of the majority of these employees. In reply, counsel for the petitioner advised the Court that assuming that the respondent established by evidence adduced at a hearing all of its allegations as to the Union’s loss of majority, the petitioner would reaffirm its order of August 31, 1945, and again direct the respondent to bargajn with the Union.
In view of the position taken by the petitioner, this Court on December 20, 1946, 158 F.2d 670, deferred ruling on respondent’s motion, stating: “ * * * It appears to us that a remand for the purpose of adducing additional testimony would be a useless gesture, at this point, and result only in delay in a case which has already been pending too long. It is, therefore, our conclusion not to grant the motion at this time, but to preserve the right of the respondent to argue his legal point as though the evidence had been adduced.”
The parties are agreed that in determining the question of change of status “ * * the case is now to be treated as if the requested remand had taken place, the facts sought to be adduced had been found by the Board, and the Board had formally decided that it would effectuate the policies of the Act for respondent to bargain collectively on request with the Union * * * ” (page 1, Petitioner’s Reply Brief).
Discussion
As to the first question presented — whether certain plant clerks and standards department checkers are “employees” within the meaning of the Act:
The core of the respondent’s contention with respect to this issue is that the plant clerks and standards department checkers perform duties supervisory in character so as to “ * * * clearly align these employees on the management side * * * ” and that they are not “employees” but rather “employers” under the Act, and therefore not subject to the collective bargaining provisions of the Act.
The petitioner takes the position that none of the employees involved perform supervisory duties and that there was ample evidence to sustain the finding that they were not invested with managerial functions. In support of its position petitioner cited National Labor Relations Board v. Armour & Co., 10 Cir., 1,54 F.2d 570, cer-tiorari denied 67 S.Ct. 92, as being “on all fours” with the instant case.
The ruling of the Supreme Court in Packard Motor Car Company v. National Labor Relations Board, 67 S.Ct. 789, 791, makes discussion of this question academic. In that case, it was contended that foremen are not “employees” because they perform supervisory functions. Rejecting the contention the Supreme Court held that they were stating: “The privileges and benefits of the Act are conferred upon employees, and § 2(3) of the Act, so far as relevant, provides ‘The term “employee” shall include any employee * * * ’ 49 Stat. 450. The point that these foremen are employees both in the most technical sense at common law as well as in common acceptance of the term, is too obvious to be labored. The Company, however, turns to the Act’s definition of employer, which it contends reads foremen out of the employees class and into the class of employers. Section 2(2) reads: ‘The term “employer” includes any person acting in the interest of an employer, directly or indirectly * * ’ 49 Stat. 450. The context of the Act, we think, leaves no room for a construction of this section to deny the organizational privilege to employees because they act in the interest of an employer.”
Further, the Supreme Court in its most recent expression on the subject has ruled that “it is elementary that the Board has the duty of determining in the first instance who is an employee for purposes of the National Labor Relations Act and that the Board’s determination must be accepted by reviewing courts if it has a reasonable basis in the evidence and is not inconsistent with the law.” (Emphasis supplied.) National Labor Relations Board v. E. C. Atkins and Company, 67 S.Ct. 1265, 1268.
Citing the Packard Motor Car Company decision, the Supreme Court in the Atkins case sustained the Board’s ruling that private plant guards who were civilian auxiliaries to the Army’s military police were “employees” within the meaning of the Act.
Said the Court in discussing the question of the Board’s primary power to determine who is an “employee” under the Act: “ * * * Realizing that labor disputes and industrial strife are not confined to those who fall within ordinary legal classifications. Congress has not attempted to spell out a detailed or rigid definition of an employee or of an employer. The relevant portion of § 2(3) simply provides that ‘The term “employee” shall include any employe, * * *.’ In contrast, § 2(2) states that ‘The term “employer” includes any person acting in the interest of an employer, directly or indirectly, * * *.’ As we recognized in the Hearst case [National Labor Relations Board v. Hearst Publications, 322. U.S. 111, 64 S.Ct. 85, 88 L.Ed. 1170], the terms ‘employee’ and ‘employer’ in this statute carry with them more than the technical and traditional common law definitions. They also draw substance from the policy and purposes of the Act, the circumstances and background of particular employment relationships, and all the hard facts of industrial life.
“And so the Board, in performing its delegated function of defining and applying these terms, must bring to its task an appreciation of economic realities, as well as a recognition of the aims which Congress sought to achieve by this statute. This does not mean that it should disregard the technical and traditional concepts of ‘employee’ and ‘employer’. But it is not confined to those concepts. It is free to take account of the more relevant economic and statutory considerations. And a determination by the Board based in whole or in part upon those considerations is entitled to great respect by a reviewing court, due to the Board’s familiarity with the problems and its experience in the administration of the Act.
“ * * * In the absence of some compelling evidence that the Board has failed to measure up to its responsibility, courts should be reluctant to overturn the considered judgment of the Board and to substitute their own ideas of the public inter-gst ^ ^ ^
It is clear that under the rulings in the Packard Motor Car Company and the Atkins cases the respondent’s contentions must fail. The record discloses that there was a “reasonable basis” for the Board’s determination and that it was in accordance with the law as declared in the two cases cited.
As to the second question presented: Whether the Board could properly certify as the exclusive bargaining representative of a unit including the plant clerks and checkers a union, of which a coaffiliate represents respondent’s production and maintenance employees, and order respondent to bargain collectively with the union so certified.
The respondent’s position on this question may be summarized as follows:
The plant clerks and standards department checkers are not “employees” under the Act; the clerks and checkers' are supervisory employees and the Board itself had excluded from the supervisory unit “all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action” ; the clerks, checkers, storeroom clerk and commissary employees performed different duties and functions and their inclusion in one unit was erroneous, the clerks and checkers could not, in any event, be represented by a union 'or affiliate of a union which also represented the production or maintenance workers because they would otherwise be subjected to conflicting interests.
Petitioner’s position is as follows:
The Board’s finding that the clerks and checkers, together with the storeroom clerk and commissary employees constituted a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act was amply supported by the evidence; the Board had no power to deny certification to the Union solely because its coaffiiliate also represented respondent’s production employees; the Board’s certification of the Union as the exclusive representative of respondent’s clerical employees was a reasonable exercise of discretion.
Recent decisions by the Supreme Court on the question of certification are dispositive of the respondent’s contentions.
Discussing the Board’s discretion to determine appropriate units the Supreme Court in the Packard Motor Car Company case, supra, stated: “Section 9(b) of the Act confers upon the Board a broad discretion to determine appropriate units. * * Our power of review also is circumscribed by the provision that findings of the Board as to the facts, if supported by evidence, shall be conclusive. § 10(e), 49 Stat. 454. So we have power only to determine whether there is substantial evidence to support the Board, or its order oversteps the law. (citing cases) * * * The issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion and the decision of the Board, if not final, is rarely to be disturbed. * * * ” (Emphasis supplied.)
The respondent’s contention that the petitioner erred in grouping in the same unit clerks and checkers with the storeroom clerk and commissary employees and permitting them to be represented by a union or affiliate of a union which also represented production and maintenance workers, is effectively disposed of by the Supreme Court’s ruling in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 67 S.Ct. 1274, 1278.
Said the Court:
“Unanswered by the Atkins decision, (supra), however, is the question whether the militarization of the plant guards precluded the Board from grouping the guards in a separate unit and permitting them to choose as their bargaining representative a union which also represented production and maintenance employees. To that issue, which is the primary one raised by this case, we now turn.
“The Board, of course, had wide discretion in performing its statutory function under § 9(b) of deciding ‘the unit appropriate for the purposes of collective bargaining.’ Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251. It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate. Its determinations in these respects are binding upon reviewing courts if grounded in reasonableness. May Department Stores Co. v. National Labor Relations Board, 326 U.S. 376, 380, 66 S.Ct. 203, 206, 90 L.Ed. 145. A proper determination as to any of these matters, of course, necessarily implies that the Board has given due consideration to all the relevant factors and that it has correlated the policies of the Act with whatever public or private interests may allegedly or actually be in conflict”. (Emphasis supplied.)
Applying the rules staled we find that there was substantial evidence supporting the Board’s unit determination and its certification of the Union as the exclusive bargaining representative of the unit, and further that such certification was a reasonable exercise of discretion on the part of the Board, and consistent with the law.
As to the remaining question — the Union’s loss' of majority status :
The respondent’s position is that the change of status occurred due to re-employment of veterans and changes in personnel in the normal course of business without any interference, coercion or even suggestion on its part; that the purposes of the Act would not be served by compelling it to bargain with the Union in complete disregard of the wishes of the majority of its present employees; that the respondent has had a good labor record; that the sole “unfair labor practice” charged against it was its refusal to abide by the Board’s alleged invalid finding that the clerks and checkers were “employees'” under the Act and its alleged improper certification of the unit and Union; that its refusal to abide by the result of the representation proceeding under Section 9(c) and the complaint proceeding under Section 10(b) of the Act was “necessitated by the procedure set forth in the Act to test the validity of the Board’s unit determination”; that, for the latter reason, the doctrine that an intervening loss of majority does not relieve an employer of the remedial obligation to bargain with a union in compliance'with the Board’s prior order is inapplicable.
The petitioner’s position isThe petitioner’s position is that the Board may in its discretion require respondent to bargain collectively with the certified un-iou which suffered a loss of majority following respondent’s refusal to bargain; that the Board properly found that respondent’s initial refusal to bargain with the Union was in violation of the Act and that it properly determined that there was a direct causal relationship between respondent’s refusal to bargain and the Union’s failure to retain its majority.
The vulnerable point in respondent’s position is its contention that under the Act it could only test the validity of the Board’s determinations and orders in the representation and complaint proceedings by refusing compliance. That is not the law. Under Sectidn 10(f) of the Act, 29 U.S.C.A. § 160(f) “Any person aggrieved by a final order of the Board * * * may obtain a review of such order in any circuit court of appeals of the United States * * * b} filing in such court a written petition praying that the order of the Board be modified or set aside.”
The Board’s order of August 31, 1945 was a final order within the meaning of Section 10(f) of the Act. The record discloses that more than a year intervened between the issuance of the order and September 12, 1946 when the Board petitioned this Court for enforcement. During this period the respondent was in non-compliance and it failed to apply for modification or vacation of the Board’s order. The asserted, change of status did not occur until November 14, 1946.
The rule that a Board’s certification cannot be disregarded by an employer and that the certification is valid until declared invalid or replaced by the Board, is well-settled: National Labor Relations Board v. May Department Stores Company, 8 Cir., 146 F.2d 66, 70 and the cases cited therein, (affirmed with modifications 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145).
In view of the above the respondent’s position must be considered in the light of the principles enunciated by the Supreme Court in International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50, and Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020.
In the Machinists case, the Supreme Court sustained the established policy of the Board with reference to change of status, as enunciated in the Matter of Karp Metal Products Company, 51 N.L.R.B. 621.
Said the Court, 311 U.S. at page 82, 61 S.Ct. at page 89, 85 L.Ed. 50:
“ * * * Where as a result of unfair labor practices a union cannot be said to represent an uncoerced majority, the Board has the power to take appropriate steps to the end that the effect of those practices will be dissipated. That necessarily involves an exercise of discretion on the part of the Board — discretion involving an expert judgment as to ways and means of protecting the freedom of choice guaranteed to the employees by the Act. It is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396. It cannot be assumed that an unremedied refusal of an employer to bargain collectively with an appropriate labor organization has no effect on the development of collective bargaining. See National Labor Relations Board v. Pacific Greyhound Lines, 303 U.S. 272, 275, 58 S.Ct. 577, 578, 82 L.Ed. 838. Nor is the conclusion unjustified that unless the effect of the unfair labor practices is completely dissipated, the employees might still be subject to improper restraints and not have the complete freedom of choice which the Act contemplates. Hence the failure of the Board to recognise petitioner's notice of change was wholly proper. National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318, 339, 340, 60 S.Ct. 918, 929, 84 L.Ed. 1226.
“Sec. 9 of the Act provides adequate machinery for determining in certification proceedings questions of representation after unfair labor practices have been removed as obstacles to the employees’ full freedoxn of choice.” (Emphasis supplied.)
In the Franks Bros. Co. case, supra, the Supreme Court held that the Board acted within its statutory authority in ordering the employer to bargain collectively with the Union which had lost its majority after the employer had refused to bargain with it. In that case the change of status occurred during the pendency of the complaint proceedings'. The Board found that the Union’s lack of a majority was “not determinative of the remedy to be ordered” [321 U.S. 702, 64 S.Ct. 818], Discussing the Board’s action the Court stated, 321 U.S. at page 704, 64 S.Ct. at page 818, 88 L.Ed. 1020:
“ * * * Out of its wide experience, the Board many times has expressed the view that the unlawful refusal of an employer to bargain collectively with its employees’ chosen representatives disrupts the employees’ morale, deters their organizational activities, and discourages their membership in unions. The Board’s study of this problem has led it to conclude that, for these reasons, a requirement that union membership be kept intact during delays' incident to hearings would result in permitting employers to profit from their own wrongful refusal to bargain. See e. g., Matter of Inland Steel Co., 9 N.L.R.B. 783, 815, 816; Matter of P. Lorillard Co., 16 N.L.R.B. 684, 699, 701. One of the chief responsibilities of the board is to direct such action as will dissipate the unwholesome effects of violations of the Act. See 29 U.S.C. § 160(a) and (c), 29 U.S.C.A. § 160(a,c). And, Tt is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged.’ International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 82, 61 S.Ct. 83, 85 L.Ed. 50.
“That determination the Board has made in this case and in similar cases by adopting a form of remedy which requires that an employer bargain exclusively with the particular union which represented a majority of the employees at the time of the wrongful refusal to bargain despite that union’s subsequent failure to retain its majority. * * * That the Board was zoithin its statutory authority in adopting the remedy zohich it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement. See 29 U.S.C. § 160(a) and (c), 29 U.S.C.A. § 160(a, c). * * *” (Emphasis supplied.)
In Oughton v. National Labor Relations Board, 3 Cir., 118 F.2d 486, at page 497, in which we applied the ruling in the Machinists case relating to change of status, we said: " * * * The Machinists case points out the immateriality of an asserted loss of a bargaining agent’s majority to the issue raised by a complaint based upon the employer’s unfair labor practices, except, of course, in so far as the Board in its uncontrolled discretion may deem the agent’s status worthy of investigation and consequent action. And, where the Board passes over the agent’s support as being presently of no moment, the Act, as observed in the Machinists case, provides other procedure for the resolution of the independent prob» lem. * * * ”
The respondent attempts to distinguish the instant case from the Franks Bros. Co. and Oughton cases. It urges that here it is not charged with any unfair labor practice except a “technical” refusal to bargain with the Union, based on its desire to obtain a judicial determination of the validity of the certified unit, whereas in the cases mentioned there was active opposition by the employer to the Union, including threats to shut down if the employees joined the Union. We cannot subscribe to the respondent’s urging on this score. The excerpt above quoted from the Franks Bros. Co. case clearly discloses that the Supreme Court directly and unequivocally premised its decision on the employer’s refusal to bargain.
In the Oughton case we too, premised our ruling on the employer’s refusal to bargain.
In Semi-Steel Casting Company of St. Louis v. National Labor Relations Board, 160 F.2d 388, 392, the United States Court of Appeals for the Eighth Circuit held that “ * * * the union’s loss of majority status, during the course of the proceedings before the Board on the charge of unfair labor practices against the company, if established, does not invalidate the order of the Board.” The Court cited National Licorice Company v. National Labor Relations Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 the Franks Bros. Co. and Machinists cases, and Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007.
In the Semi-Steel Casting Company case the only unfair labor practice involved was the refusal to bargain. The latter was premised on the employer’s contention that the Board had erred in the conduct of an election to select the bargaining representative.
Similarly in National Labor Relations Board v. Central Dispensary & Emergency Hospital, 79 U.S.App.D.C. 274, 145 F.2d 852, certiorari denied 324 U.S. 847, 65 S.Ct. 684, 89 L.Ed. 1408, no unfair labor practice —other than the refusal to bargain — was involved.
The instant situation is singularly akin to that in the Central Dispensary case.
There a charitable institution refused to recognize the Board’s certification in December, 1942," under the belief that it was not subject to the Act. Six months later the Board issued its "Cease and Desist order and a year thereafter instituted enforcement proceedings before the United States Court of Appeals, District of Columbia. In the enforcement proceeding, the Court refused to grant a motion for leave to adduce additional evidence designed to establish the Union’s loss of majority status. Said the Court, 145 F.2d at page 854:
“ * * * We consider this evidence irrelevant under the circumstances of the present case. The certification of the union which contains the finding that at that time the union was representative was issued by the Board in December, 1942. Six months later the Board'issued an order to cease and desist from refusing to bargain collectively. At that time the respondent had the right to appeal to this court under Section 10(f) of the Act. Respondent also had a right to petition the Board at that time for a hearing on whether the six months’ delay in issuing the order had created a change in the representative character of the union. Respondent took neither of these steps. While the Board delayed over a year in bringing the case before us for enforcement, respondent cannot now take advantage of that fact because during the entire period it lay within its own power to seek relief.
“There is, therefore, nothing in this case which takes it out of the rule laid down by the Supreme Court in Franks Brothers Co. v. National Labor Relations Board, where the Court held that there was no requirement that union membership be kept intact during delays incident to hearing on the question of union representation. * * * ” (Emphasis supplied.)
The respondent relies on National Labor Relations Board v. Inter-City Advertising Company, 154 F.2d 244, where the United States Circuit Court of Appeals for the Fourth Circuit denied the Board’s petition for enforcement. While the petitioner has stressed several distinguishing factors we need only say that we are not in accord with the majority view in the Inter-City case and agree instead with the views expressed by Judge Dobie in his dissenting opinion.
Finally, the respondent urges that granting of the petition for enforcement of the Board’s order will deprive the respondent’s employees of the exercise “of full freedom of association, self-organization, and designation of representatives of their own choosing” as prescribed by Section 1 of the Act.
The Supreme Court in the Franks Bros. Co. case, supra, gave dispositive answer to that specific contention in the following statement, 321 U.S. at page 705, 64 S.Ct at page 819, 88 L.Ed. 1020:
“* * * Contrary to petitioner’s suggestion, this remedy, as embodied in a Board order, does not involve any injustice to employees who may wish to substitute for the particular union some other bargaining agent or arrangement. For a Board order which requires an employer to bargain with a designated union is not intended to fix a permanent bargaining relationship without regard to new situations that may develop. See Great Southern Trucking Co. v. National Labor Relations Board, 4 Cir., 139 F.2d 984, 987. But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed. See National Labor Relations Board v. Appalachian Electric Power Co., 4 Cir., 140 F.2d 217, 220-222; National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 133 F.2d 876, 881, 882. After such a reasonable period the Board may, in a proper proceeding and upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships. Id.; see 29 U.S.C. § 159(c), 29 U.S.C.A. § 159(c). * * *” (Emphasis supplied.)
It may well be that the Board after a reasonable period has elapsed may reappraise the situation and take appropriate action in view of the fact that the respondent has been guilty of no “unfair labor practice” other than the failure to comply with the Board’s order for the express purpose of testing its validity, but as pointed out in the Central Dispensary case, “This is a matter lying within the discretion of the Board.”
In view of the foregoing, we conclude that the Board was within its statutory authority in requiring the respondent to bargain exclusively with the Union despite its failure to retain its majority.
One final question remains — the scope of the Board’s order.
The respondent takes vigorous exception to Paragraph 1(b) of the Board’s order, asserting that it was completely unjustified and unsupported by the evidence. That paragraph, together with Paragraph 1(a), which enjoins refusal to bargain, is set out below.
The challenged order was made prior to the decision of the Supreme Court in May Department Stores Co. v. National Labor Relations Board, supra. The petitioner, in conformity with the delimitation of the Board’s order by the Court in that case, suggests the modification of the Board’s existing order by striking Paragraph 1(b) and adding to Paragraph 1 (a) of the order the clause “or from any other acts in any manner interfering with the representative’s efforts to negotiate for or represent the above-named employees as bargaining agent.”
In support of its objections to Paragraph 1(b) the respondent stresses that the only unfair labor practice charged is its refusal to bargain collectively with the Union, the purpose of which was to test the validity of the Board’s unit determination.
The applicable rule is stated as follows in National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, at page 437, 61 S.Ct. 693, 700, 85 L
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
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.
CARLUCCI, SECRETARY OF DEFENSE, et al. v. DOE
No. 87-751.
Argued October 11, 1988
Decided December 6, 1988
Michael K. Kellogg argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Cohen, Barbara L. Herwig, and Freddi Lipstein.
John G. Gill, Jr., argued the cause and filed a brief for respondent.
David I. Shapiro, George Kaufmann, Peter W. Morgan, John A. Powell, and Steven R. Shapiro filed a brief for the American Civil Liberties Union Foundation as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
The issue in this case is whether the National Security Agency (NSA) invoked the proper statutory authority when it terminated respondent John Doe, an NSA employee. The Court of Appeals held that NSA did not — a decision with which we disagree. We first describe the statutes relevant to this case.
Section 7532 of Title 5 of the United States Code, on which the Court of Appeals relied, was passed in 1950 and reenacted and codified in 1966, as part of Chapter 75 of Title 5, the Chapter that deals with adverse actions against employees of the United States. See 5 U. S. C. §7532. The section provides that the head of an agency “may suspend without pay” an employee when he considers such action “necessary in the interests of national security,” see § 7532(a), and “may remove” the suspended employee if such action is “necessary or advisable in the interests of national security.” § 7532(b). Subsection (c) of §7532 specifies the procedural protections to which a suspended employee is entitled prior to removal.
The National Security Agency Act of 1959 (1959 NSA Act) empowers the Secretary of Defense, or his designee, to establish NSA positions and appoint employees thereto “as may be necessary to carry out the functions of such agency.” Note following 50 U. S. C. § 402. By virtue of the 1959 NSA Act, NSA employees who are not preferred eligible veterans are in the “excepted” service, hence not covered by the removal provisions of the Civil Service Reform Act of 1978. 5 U. S. C. §§7511-7513. Pursuant to the Defense Department Directive No. 5100.23 (May 17, 1967), as printed in App. in No. 86-5395 (CADC), p. 60, the Secretary delegated his 1959 NSA Act appointment authority to the NSA Director, who promulgated internal personnel regulations. See National Security Agency Central Security Service Personnel Management Manual 30-2 (PMM), Ch. 370 (Aug. 12, 1980), App. to Pet. for Cert. 36a. Chapter 370 of these regulations describes procedures for removing employees, and states generally that removal is permissible for “such cause as will promote the efficiency of the service,” §3-4, App. to Pet. for Cert. 39a. Dismissals proposed under Chapter 370 guarantee employees various procedural protections, such as 30-day advance notice, an opportunity to respond and to have legal representation, and a written final decision. Although Chapter 370 assigns to some employees the further right to appeal an adverse action to the Merit Systems Protection Board, nonveterans like Doe at NSA do not have this right; nor does Chapter 370 provide for a hearing or review by the Secretary of Defense.
In 1964, Congress amended the Internal Security Act of 1950 by passing an Act relating to “Personnel Security Procedures in the National Security Agency.” 78 Stat. 168, 50 U. S. C. §§831-833 (NSA Personnel Security Procedures Act). Section 831 requires the Secretary of Defense to promulgate regulations assuring that no person will be employed or continue to be employed by NSA or have access to classified information unless such employment or access is “clearly consistent with the national security.” The Secretary’s determination is final. The Secretary’s authority under §831 has been delegated to the NSA Director and implemented through regulations, including a regulation requiring security clearance for employment at NSA. See PMM, Ch. 371, §§1-1, 1-3. Section 832(a) proscribes NSA employment to any person not subjected to a full field investigation and “cleared for access to classified information.” In addition, Congress directs that boards of appraisal are to assist in appraising the loyalty and suitability of persons for access to classified information in those cases where the NSA Director doubts such suitability. § 832(b). Section 833(a) gives the Secretary authority to terminate the employment of any NSA officer or employee whenever he considers that action “to be in the interest of the United States” and determines that the procedures stated in other provisions of the law “cannot be invoked consistently with national security.”
This case began in 1982 when John Doe, a cryptographic material control technician at NSA for 16 years, disclosed to NSA officials that he had engaged in homosexual relationships with foreign nationals. Doe was notified of his proposed removal pursuant to Chapter 370 of the PMM, which governs NSA’s procedures for removal for cause. The notification letter of Virginia C. Jenkins, Director of Civilian Personnel, was dated November 23, 1982, and explained that Doe’s “indiscriminate personal conduct with unidentified foreign nationals” makes impossible his continued — and essential to NSA employment — access to classified information. See App. in No. 86-5395 (CADC), p. 83. The notice also advised Doe of his adjudicatory rights to contest the decision, which rights he exercised through counsel, including in his answer the results of a psychiatric evaluation as to his security threat. Pursuant to 50 U. S. C. § 832(b), the NSA Director convened a board of appraisal, which ultimately con-eluded that Doe’s access to classified material was “clearly inconsistent with the national security.” See App. in No. 5395 (CADC), p. 108. After a hearing before the Director, Doe was notified that his security clearance was being revoked. Because this clearance is a condition of NSA employment, the Director, pursuant to the authority delegated to him under the 1959 NSA Act, removed Doe. Relying on 5 U. S. C. § 7532, Doe then requested a hearing before the Secretary of Defense, claiming that the 1959 NSA Act does not authorize removals and that he could only be discharged by the Secretary after a hearing before that official or his designee. Both the Secretary and the Director replied that Doe’s removal was “for cause” under Chapter 370 of the PMM and was not pursuant to the Secretary’s §7532 summary authority.
Doe brought suit in the District Court challenging his removal on constitutional and statutory grounds. He charged, inter alia, that the 1959 NSA Act’s appointment authority delegated by the Secretary of Defense to the NSA Director does not include the authority to remove employees; hence NSA is required to apply 5 U. S. C. § 7532’s termination procedures that guarantee NSA employees a preremoval hearing before the Secretary or his designee, the NSA Director. The District Court denied this argument and granted summary judgment for petitioners. Acknowledging that the NSA Director could have elected to proceed under either § 833 or § 7532 summary authority, the court held that the Director could also proceed under the authority provided by the 1959 NSA Act. Doe v. Weinberger, Civ. Action No. 85-1996 (DC, Apr. 25, 1986).
The Court of Appeals reversed as to the optional applicability of §7532 and vacated the remainder of the District Court’s decision. Doe v. Weinberger, 820 F. 2d 1275 (1987). The Court of Appeals was of the view that the chronology of congressional action indicates that § 7532, which predates the establishment of NSA, must control NSA employee dismissals on national security grounds. The court acknowledged § 833’s parallel summary removal scheme, but held that because the NSA Director disclaimed reliance on that section, remand to NSA for compliance with §7532 was obligatory. We granted the Secretary’s and Director’s petition for certiorari. 485 U. S. 904 (1988).
The 1959 NSA Act authorizes the Secretary of Defense, or his designee, “to establish such positions, and to appoint thereto, without regard to the civil service laws, such officers and employees, in the National Security Agency, as may be necessary to carry out the functions of such agency.” Note following 50 U. S. C. §402. The Secretary, in turn, issued Defense Department Directive No. 5100.23 to delegate this appointment authority to the NSA Director, which authority was implemented by regulations covering both the hiring and removal of NSA employees. Although the 1959 NSA Act does not refer to termination, the Court has held, as a matter of statutory interpretation, that, absent a “specific provision to the contrary, the power of removal from office is incident to the power of appointment.” Keim v. United States, 177 U. S. 290, 293 (1900); see also Crenshaw v. United States, 134 U. S. 99, 108 (1890); Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961). Neither the Court of Appeals nor respondent questions this general proposition, nor have they shown that Congress expressly or impliedly indicated a contrary purpose in the 1959 NSA Act or its subsequent amendments.
The Court of Appeals, however, held that removals for national security reasons must occur under either 5 U. S. C. §7532 or 50 U. S. C. §833 and that because NSA disclaimed reliance on § 833, resort to § 7532 rather than NSA’s for-cause removal regulations was mandatory. In our view, however, §833 and §7532 are not the exclusive means to remove NSA employees for national security reasons, but instead contemplate alternative recourse to NSA’s ordinary removal mechanisms pursuant to the 1959 NSA Act. This discretionary aspect of §§833 and 7532 is manifest in both the express statutory language and also the legislative history of these provisions.
Section 833(a) states: “[Notwithstanding sections 7512 and 7532 of title 5, or any other provision of law,” the Secretary of Defense “may” remove an employee provided that he finds that “the procedures prescribed in other provisions of law that authorize the termination . . . cannot be invoked consistently with the national security.” Petitioners correctly argue that where the for-cause procedures for removal under §7512 or under the regulations adopted under the 1959 NSA Act do not jeopardize national security, recourse may, even must, be had to those other procedures.
Section 7532 also is not mandatory. It provides that “[notwithstanding other statutes,” the head of an agency “may” suspend and remove employees “in the interests of national security.” This language declares that even though other statutes might not permit it, the Secretary may authorize removals pursuant to § 7532 procedures, rather than those governing terminations under those other laws. The Court of Appeals did not expressly address the permissive character of the section and construed the statute to require the Secretary, in all cases of removal based on national security, to resort to the removal procedures of § 833 or § 7532, notwithstanding other available statutory removal regimes.
The Court of Appeals reached this conclusion by relying on two sentences from the House Report on the bill that ultimately became the predecessor to § 7532. These sentences state that the bill guarantees employees in various agencies, including the Department of Defense, the right to appeal to the head of the department in removal cases covered by §7532. This passage, however, does not indicate that §7532 procedures are the exclusive means for removals on national security grounds or that § 7532 displaces the otherwise applicable removal provisions of the agencies covered by the section. Read as the Court of Appeals understood them, the two sentences confound the permissive language of the statute and are inconsistent with other evidence from the legislative history.
Congress enacted the §7532 and §833 summary removal measures to supplement, not narrow, ordinary agency removal procedures. Section 7532, like § 833, applies to a special class of national security cases, and authorizes summary suspension and unreviewable removal at the Secretary’s personal initiative after a hearing of unspecified scope. The removal provisions apply only to an employee who has been suspended. An employee so removed is ineligible for employment elsewhere in the Government without approval by the Office of Personnel Management. See 5 U. S. C. § 7312. The Court has held that in light of its summary nature, Congress intended § 7532 to be invoked only where there is “an immediate threat of harm to the ‘national security’ ” in the sense that the delay from invoking “normal dismissal procedures” could “cause serious damage to the national security.” Cole v. Young, 351 U. S. 536, 546 (1956). Were §7532 the exclusive procedure in this case and like cases, no national security termination would be permissible without an initial suspension and adherence to the Cole v. Young standard. We are unconvinced that Congress intended any such result when it enacted § 7532.
Indeed, when Congress passed the NSA Personnel Security Procedures Act in 1964, 50 U. S. C. §§831-833, Congress must have intended that § 7532 did not impose this restriction on the various affected agencies. The stringency would conflict with the provisions of that Act that require the Secretary to apply general security considerations in selecting NSA employees. Just as the Secretary need only find “inconsistency” with national security to reject an applicant seeking the necessary NSA clearance for classified information, see §831, so too the boards of appraisal that assist in this determination are authorized to recommend denial or cancellation of such clearance if the NSA Director “doubt[s]” that clearance is consistent with national security. See § 832(b). The Secretary, in turn, must adhere to a board’s recommendation unless he makes the affirmative finding that clearance is in the national interest. See ibid. Under the construction adopted by the Court of Appeals, however, the revocation of a security clearance ordered by NS A pursuant to a board’s recommendation will not suffice for the dismissal mandated by § 832(a), but rather would require further review by the Secretary under the more stringent standard imposed by § 7532.
The Court of Appeals was of the view that its construction of §7532 is necessary to provide employees sought to be removed on national security grounds with procedures equivalent to those provided by that section. This approach assumes that NSA’s ordinary clearance revocation and for cause dismissal procedures are less protective than those guaranteed by § 7532. This is a doubtful proposition, to say the least. The section, as we have said, provides for summary suspension without pay, affords a hearing of undefined scope before the agency head, and attaches to a removal order the sanction that the employee is ineligible for other governmental employment. NSA’s for-cause removals neither are preceded by suspension nor entail a collateral bar from federal employment. In this case, Doe was on the payroll until removed, and the record does not indicate that the hearing Doe received, or the other procedural protections accorded to him, were inferior to those that would have been available under § 7532. Indeed, in Department of the Navy v. Egan, 484 U. S. 518, 533 (1988), we rejected the argument that § 7532 would have provided more protections than the Navy’s ordinary for-cause removal procedures. More significantly, the Court of Appeals’ view that Congress enacted §7532 to extend new protections to all employees sought to be dismissed on national security grounds runs counter to explicit congressional statements that the legislation was proposed “to increase the authority of the heads of Government departments engaged in sensitive activities to summarily suspend employees considered to be bad security risks, and to terminate their services if subsequent investigation develops facts which support such action.” S. Rep. No. 2158, at 2; see also H. R. Rep. No. 2330, at 2.
We thus agree with the conclusion of the Merit Systems Protection Board in a similar case that “section 7532 is not the exclusive basis for removals based upon security clearance revocations,” Egan v. Department of the Navy, 28 M. S. P. R. 509, 521 (1985), and with the Court of Appeals for the Federal Circuit that “[t]here is nothing in the text of section 7532 or in its legislative history to suggest that its procedures were intended to preempt section 7513 procedures whenever the removal could be taken under section 7532. The language of section 7532 is permissive.” Egan v. Department of the Navy, 802 F. 2d 1563, 1568 (1986).
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Title 5 U. S. C. § 7532(c) accords the suspended employee the following procedural rights before removal: “(A) a written statement of the charges against him within 30 days after suspension, which may be amended within 30 days thereafter and which shall be stated as specifically as security considerations permit; (B) an opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits; (C) a hearing, at the request of the employee, by an agency authority duly constituted for this purpose; (D) a review of his case by the head of the agency or his designee, before a decision adverse to the employee is made final; and (E) a written statement of the decision of the head of the agency.”
See Defense Department Directive No. 5210.45, p. 3 (May 9, 1964), as printed in App. in No. 86-5395 (CADC), p. 75 (emphasis added), which reads: “When the two conditions [in §833 — i. e., (1) other statutory removal provisions, which (2) will safeguard the national security — ] do not exist, the Director, NSA shall, when appropriate, take action pursuant to other provisions of law, as applicable, to terminate the employment of a civilian officer or employee. The Director shall recommend to the Secretary of Defense the exercise of the authority of [§ 833] only when the termination of the employment of a civilian officer or employee cannot, because of paramount national security interests, be carried out under any other provision of law.”
The relevant sentences in the House Report state: “Under the present law, with respect to [the Departments of State and Defense,] the officer or employee who is suspended or terminated as a security risk is not entitled as a matter of right to an appeal to the head of the agency concerned. This legislation extends this appeal right to employees [of these agencies].” H. R. Rep. No. 2330, 81st Cong., 2d Sess., 3 (1950).
The Court of Appeals also noted that 5 U. S. C. §7533 provides that § 7532 does not “impair the powers vested in the Atomic Energy Commission [AEC] — or the requirement — that adequate provision be made for administrative review” of a termination by that Agency, yet does omit any similar exception for the pre-existing powers of any other agency. The Court of Appeals extrapolated that except in the case of the AEC, § 7532 supplants the removal authority of all agencies covered by the section in all cases involving national security. This conjecture extracts far more meaning than is warranted from the special mention by Congress that it intended to preserve the unique, expansive removal powers of the AEC, particularly in light of § 7532’s language indicating that its applicability is permissive.
Numerous congressional reports and statements indicate that §7532 and its legislative antecedents were proposed as extraordinary, supplementary measures to enable the Secretary of Defense, and other agency heads responsible for United States security, to respond to rare, urgent threats to national security. See, e. g., S. Rep. No. 2158, 81st Cong., 2d Sess., 2, 6 (1950); H. R. Rep. No. 2330, 81st Cong., 2d Sess., 2, 6 (1950); S. Rep. No. 1155, 80th Cong., 2d Sess., 2 (1948); Hearing on S. 1561 and S. 1570 before the Subcommittee of the Senate Committee on Armed Services, 80th Cong., 2d Sess., 2-3, 4 (1948).
Respondent defends the result reached by the Court of Appeals on the alternative ground that NSA violated its own regulations in removing him. That claim, as well as others argued to the Court of Appeals, was not passed on by that court, and we prefer to leave the matter to the Court of Appeals in the first instance.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_issue_12
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
COMMISSIONER OF INTERNAL REVENUE v. STANDARD LIFE & ACCIDENT INSURANCE CO.
No. 75-1771.
Argued March 30, 1977
Decided June 23, 1977
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. White, J., filed an opinion concurring in the judgment, in which Burger, C. J., joined, post, p. 163. Stewart, J., took no part in the consideration or decision of the case.
Stuart A. Smith argued the cause for petitioner. With him on the briefs were former Solicitor General Bork, Acting Solicitor General Friedman, Acting Assistant Attorney General Baum, Stephen M. Gelber, and Jeanne L. Dobres.
Vester T. Hughes, Jr., argued the cause for respondent. With him on the brief were Gene A. Castleberry and W. John Glaney.
Matthew J. Zinn argued the cause for the American Council of Life Insurance as amicus curiae. With him on the brief were William B. Harman, Jr., Kenneth L. Kimble, and Francis A. Goodhue, Jr.
Edward, J. Schmuck and Carolyn P. Chiechi filed a brief for the Lincoln National Life Insurance Co. as amicus curiae.
Mr. Justice Stevens
delivered the opinion of the Court.
In this case, for the second time this Term, we are required to construe the complex portion of the Internal Revenue Code concerning life insurance companies. The issue in this case is the extent to which deferred and uncollected life insurance premiums are includable in “reserves,” “assets,” and “gross premium income,” as those concepts are used in the Life Insurance Company Income Tax Act of 1959.
I
Premiums on respondent’s policies are often payable in installments. If an installment is not paid when due, the policy will lapse, generally after a grace period. However, there is no legally enforceable duty to pay the premiums. An installment falling due between the end of the tax year and the policy’s anniversary date is called a “deferred premium.” In 1961, the most recent year in issue, respondent had $1,572,763 of deferred premiums. Pet. for Cert. 4a. An installment which is overdue at the end of the tax year is called an “uncollected premium” if the policy has not yet lapsed. In 1961, respondent had $231,969 of uncollected premiums. Ibid. For convenience, we shall refer to both deferred and uncollected premiums simply as “unpaid premiums.”
The amount charged a policyholder — the “gross premium”^ — includes two components. Under state law, the company must add part of the premium to its reserves to ensure that it will have sufficient funds to pay death benefits. This amount, the “net valuation premium,” is determined under mortality and interest assumptions. The rest of the gross premium is called “loading,” and covers profits and expenses such as salesmen’s commissions, state taxes, and overhead.
Under normal accounting rules, unpaid premiums would simply be ignored. They would not be properly accruable since the company has no legal right to collect them. Nevertheless, for the past century, insurance companies have added an amount equal to the net valuation portion of unpaid premiums to their reserves, with an offsetting addition to assets. State law uniformly requires this treatment of unpaid premiums, as does the accounting form issued by the National Association of Insurance Commissioners (NAIC). This national organization of state regulatory officials, which acts on behalf of the various state insurance departments, performs audits on insurance companies like respondent which do business in many States. The NAIC accounting form, known in the industry as the “Annual Statement,” is used by respondent for its financial reporting. In effect, in calculating its reserves, the company must treat these premiums to some extent as if they had been paid.
This case involves the tax treatment of respondent’s unpaid premiums for the years 1958, 1959, and 1961. In its returns for each of those years, it included the net unpaid premiums in reserves, just as it did in its annual NAIC statement. In 1959 and 1961, it also followed the NAIC statement by including the net premiums in assets and premium income. In 1958, however, it excluded the entire unpaid premium from assets. The Commissioner assessed a deficiency because respondent did not, in any of these years, include the entire unpaid premium — loading as well as net premium — in calculating assets and income. In his view, if reserves are calculated on the fictional assumption that these premiums have been paid, the same assumption should apply to the calculation of assets and gross premium income. The Tax Court upheld the deficiency; but the Court of Appeals reversed. It held that respondent’s reserve calculation was correct because it was required by state law. The court further held that in accord with normal accounting practices, the premiums could not be considered as either assets or income before they were actually collected.
The Courts of Appeals have taken varying approaches to this problem. The position taken by the Tenth Circuit in this case conflicts with decisions of four other Circuits. For this reason, and because the question is important to the revenue, we granted certiorari. 429 U. S. 814.
Although the problem is a perplexing one, as indicated by the diversity of opinion among the Circuits, we find guidance in 26 U. S. C. § 818 (a), which governs the method of accounting by life insurance companies. In our view, § 818 (a) requires deference in this case to the established accounting procedures of the NAIC. In accordance with the NAIC procedures, we therefore hold that the net valuation portion of unpaid premiums, but not the loading, must be included in assets and gross premium income, as well as in reserves.
Resolution of the problem before us requires some understanding of how reserves, assets, and premium income enter into the calculation of a life insurance company's taxable income. We therefore begin with a summary of past legislation and of the method by which the tax is now calculated. We then turn to a discussion of § 818 (a) and its application to-this case.
II
Throughout the history of the federal income tax, Congress has taken the view that life insurance companies should not be taxed on the amounts collected for the purpose of paying death benefits. This basic theme has been implemented in different ways.
A
From 1913 to 1920, life insurance companies, like other companies, were taxed on their entire income, but were allowed a deduction for “the net addition . . . required by law to be made within the year to reserve funds . ..." In that period the Government first challenged, but then accepted, the industry practice of deducting additions to reserves based on unpaid premiums without taking those premiums into income.
Beginning with the Revenue Act of 1921, Congress taxed only the investment income of life insurance companies; premium income was not included in their gross income. The companies were allowed to deduct a fixed percentage of their total reserves from their total investment income. The computation of this deduction was based on the company’s entire policy reserves, including the portion attributed to unpaid premiums. This use of this portion of the reserves apparently was not questioned during that period. There was no occasion to consider whether unpaid premiums should be treated as “income” since all premium income was exempt from tax in this period.
The 1959 statute applies to all tax years after 1957. It preserves the basic concept of taxing only that portion of the life insurance company’s income which is not required to meet policyholder obligations. It makes two important changes, however, in the method of computing that amount. First, whereas the preceding statutes assumed an industrywide rate of return for the purpose of calculating the reserve deduction, the 1959 Act requires a calculation based on each company’s own earnings record. Second, in addition to imposing a tax on investment income, the new Act also taxes a portion of the company’s premium income. Although the computations are more complex, the basic approach of the 1959 Act is therefore somewhat comparable to the,pre-1921 “total income” concept.
B
In order to understand the implications of the Commissioner’s argument that unpaid premiums should be consistently treated in calculating “assets” and “gross premium income,” as well as “reserves,” it is necessary to explain how these concepts are employed in the present statute.
The 1959 Act adds §§801 through 820 to the Internal Revenue Code of 1954 (26 U. S. C.). Section 802 (b) defines three components of “life insurance company taxable income,” of which only the first two are relevant to this case. Generally, the taxable income is the sum of (1) the company's “taxable investment income” and (2) 50% of its other income (defined as the difference between its total “gain from operations” and its taxable investment income) ,
A company’s total investment income is regarded as including a share for the company, which is taxable, and a “policyholders’ share,” which is not. The policyholders’ share is a percentage which is essentially determined by the ratio of the company’s reserves to its assets. An increase in reserves will therefore reduce the company’s taxable investment income, whereas an increase in its assets will increase its tax.
The company’s “gain from operations” includes, in addition to its share of investment income, the “gross amount of premiums,” § 809 (c) (1). Obviously, if unpaid premiums are regarded as part of this gross amount, the company’s gain from operations will be increased to that extent. Moreover, since a deduction is allowed for the net increase in reserves, §809 (d)(2), the contribution of unpaid premiums to the reserves diminishes the company’s gain.
h — I hH I — I
In a sense the case presents a question of timing. Respondent claims the right to treat unpaid premiums as creating reserves, and therefore a tax deduction, in one year, but wishes not to recognize the unfavorable tax consequences of increased “assets” and “premium income” until the year in which the premiums are actually paid. As the Commissioner forcefully argues, the respondent’s position lacks symmetry and the lack thereof redounds entirely to its benefit.
A
We start from the premise that unpaid premiums must be reflected in a life insurance company’s reserves. This has been the consistent and unbroken practice since the inception of the federal income tax on life insurance companies in 1913. Moreover, the uniform practice of the States since before 1913 has been to require that reserves reflect unpaid premiums. State law is relevant to the statutory definition of reserves, since life insurance reserves generally must be required by state law in order to be recognized for tax purposes. § 801 (b) (2). As a matter of state law, a genuine contingent liability exists and must be reflected on the company’s financial records. This liability has effects on the company’s business which transcend its income tax consequences. In view of the critical importance of the definition of reserves in the entire statutory scheme, as well as in the conduct of the company’s business, the practice of including net unpaid premiums in reserves cannot have been unknown to Congress. It is clear, we think, that no radical departure from past law was intended.
Having decided that unpaid premiums must be treated to some extent as though they had actually been paid, the more difficult question is how far to apply this fictional assumption. Since this is essentially an accounting problem, our inquiry is governed by § 818. As its title indicates, § 818 contains the “Accounting provisions” relating to this portion of the Code. Section 818 (a) provides:
“(a) Method of accounting.
“All computations entering into the determination of the taxes imposed by this part shall be made—
“(1) under an accrual method of accounting, or
“(2) to the extent permitted under regulations prescribed by the Secretary or his delegate, under a combination of an accrual method of accounting with any other method permitted by this chapter (other than the cash receipts and disbursements method).
“Except as provided in the preceding sentence, all such computations shall be made in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners.”
The legislative history makes it clear that the accounting procedures established by the NAIC apply if they are “not inconsistent” with accrual accounting rules. In other words, except when the rules of accrual accounting dictate a contrary-result, NAIC procedures “shall” apply.
With the statutory test in mind, we consider the various proposed solutions to this accounting problem.
B
Essentially, the problem in this case is to decide the scope to be given a fictional assumption. Four solutions have been proposed.
First, as the company argues, the assumption of prepayment could be applied in calculating the reserves, but ignored when calculating assets and income. This was the position taken by the Court of Appeals in this case. That position significantly distorts the tax equation in favor of the taxpayer and against the Government. Although we do not accept the notion that there must be perfect symmetry in the tax laws, there should be a measure of consistency in the accounting treatment of an item affecting interrelated elements in a formula such as that used to calculate the policyholders’ share of investment income. We think the Commissioner, and the other Courts of Appeals, see n. 4, supra, properly rejected the entirely one-sided use of the fictional assumption proposed by the taxpayer in this case.
Second, we could assume that the entire premium has been paid, but that none of the associated expenses have been incurred. Thus, the fictional assumption would be applied when determining reserves, assets, and gross premium income, but not when determining expenses. This is the position taken by the Commissioner. See Treas. Regs. §§ 1.805,1.809-4, 26 CFR §§ 1.805-5, 1.809-4 (1976). It is obvious that requiring the companies to treat the premium (including loading) as an asset and as income would improperly accelerate their tax payments; for a major share of loading is applied, when it is received, to deductible items such as sales commissions. Thus, to tax the entire loading portion of an unpaid premium is doubly objectionable: It imposes a tax on income the company has not received; and it treats the entire loading as income even though most of it will be disbursed for deductible expenses. The result of accepting the Commissioner’s position would be that the insurance company would have a greater tax liability on unpaid premiums than if the premiums had actually been paid. This result is also unacceptable.
Third, some Courts of Appeals have extended the fiction somewhat further to include an assumption that certain expenses associated with the unpaid premiums have been incurred. These courts allow a deduction for some expenses such as salesmen’s commissions, which are payable upon receipt of the premium. It is not clear, however, precisely what expenses would receive this treatment. The approach adopted by these courts eliminates much of the unfairness of the Commissioner’s position. But their approach would take us far from the statute. Since there is nothing in the statute directing that any portion of unpaid loading be treated as an asset or as income, the statute obviously cannot provide guidance in fashioning a set of deductions to be credited against the fictional assumption that such loading is income.
The fourth approach, in contrast, does have support in the statute. This approach has been adopted by the NAIC for the purpose of preparing the Annual Statement, and therefore is firmly anchored in the text of § 818 (a) which establishes a preference for NAIC accounting methods. Under this view, the net valuation portion of the unpaid premiums is included in reserves, assets, and gross premium income, while the loading portion is entirely excluded. This approach might be described as adopting the fictional assumption that the net valuation portion of the premium has been paid, but that the loading portion has not. This accounting treatment has been consistently applied throughout the industry for decades, and was regarded as the correct approach by the Tax Court when it first confronted this problem area. Western Nat. Life Ins. Co. of Texas v. Commissioner, 51 T. C. 824 (1969), modifying 50 T. C. 285 (1968), rev’d, 432 F. 2d 298 (CA5 1970). By including the net valuation portion of the unpaid premium — and only that portion — on both sides of the relevant equations, it satisfies in large measure the Commissioner’s quest for symmetry. It also avoids the uncertainty and confusion that would attend any attempt to segregate unpaid loading into deductible and nondeductible parts. Finally, it provides a practical rule which should minimize the likelihood of future disputes.
Under § 818 (a), rejection of the NAIC approach would be justified only if it were found inconsistent with the dictates of accrual accounting. But the general rules of accrual accounting simply do not speak to the question of the scope to be given the entirely fictional assumption required by this statute. Any one of the four approaches has an equally good — or equally bad — claim to being “an accrual method.” Since general accounting rules are not controlling, the statute requires use of the NAIC approach to fill the gap.
Accordingly, we conclude that unpaid premiums must be reflected in the computation of respondent’s tax liabilities “in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners.” To the extent that the Secretary’s regulations require different treatment of unpaid premiums, we hold that they are inconsistent with § 818 (a) and therefore invalid.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. Justice Stewart took no part in the consideration or decision of this case.
See United States v. Consumer Life Ins. Co., 430 U. S. 725.
26 U. S. C. §§801-820.
525 F. 2d 786 (CA10 1975).
See Jefferson Standard Life Ins. Co. v. United States, 408 F. 2d 842 (CA4 1969), cert. denied, 396 U. S. 828; Western Nat. Life Ins. Co. of Texas v. Commissioner, 432 F. 2d 298 (CA5 1970); Western & Southern Life Ins. Co. v. Commissioner, 460 F. 2d 8 (CA6 1972), cert. denied, 409 U. S. 1063; Franklin Life Ins. Co. v. United States, 399 F. 2d 757 (CA7 1968), cert denied, 393 U. S. 1118.
We are informed that substantially more than $100 million is in dispute. Pet. for Cert, 8.
See, e. g., Tariff Act of 1913, § II (G)(b), 38 Stat. 173; Revenue Act of 1916, § 12 (a) Second, 39 Stat. 768; Revenue Act of 1918, § 234 (a) (10), 40 Stat. 1079.
In Prudential Ins. Co. of America v. Herold, 247 F. 681 (NJ 1918), the Government argued that the taxpayer was not entitled to credit for the full value of its reserves because the deferred and uncollected premiums had not been included in its taxable income. The court examined and rejected the argument:
“The question to be decided, therefore, is whether the plaintiff, in figuring its net addition to the reserve funds which it was required by law to make, was justified in including the value of such policies. The argument upon which the defendant’s contention in this respect is based seems to be that as part of the assets making up the plaintiff’s 'reserve’ consisted of these uncollected and deferred premiums, and as they are not included in the plaintiff’s gross income (as, clearly, they should not be so included, Mutual Benefit Life Ins. Co. v. Herold [198 F. 199 (NJ 1912)]; Conn. Gen. Life Ins. Co. v. Eaton [218 F. 188 (Conn. 1914)]), that the value of such policies should not be included, for purposes of taxation, in its net addition to reserve funds. But this argument, I think, begs the question, which is, as clearly defined by the Supreme Court in McCoach v. Insurance Co. of North America, 244 U. S. 585, . . . what sum or sums in the aggregate did the state laws require the plaintiff to maintain as a reserve fund, not the character of the assets making up the actual 'reserve funds’. No matter what their character, they were as effectively withdrawn from the plaintiff’s use as if they had been expended. If therefore the law of New Jersey, or any other state in which it did business, made it obligatory on the part of the plaintiff to maintain a ‘reserve’ on account of the policies of the character in question, it is of no materiality what the ‘reserve funds’ actually consisted of, whether cash, securities, real estate, or due and uncollected premiums.” Id., at 685-686.
Subsequently, the Bureau of Internal Revenue acquiesced. In a bulletin issued to its employees the Bureau said: “The legal reserves . . . can not be reduced by the net uncollected and deferred premiums.” Treas. Dept., Bureau of Internal Revenue, Bulletin H, Income Tax Rulings Peculiar to Insurance Companies (1921), Ruling 14, p. 9. See also Ruling 8, p. 7.
See, e. g., Revenue Act of 1921, §244 (a), 42 Stat. 261.
The tax was levied only on net investment income, that is, the excess over the amount deemed necessary to pay death claims. If, for example, the amount of the net valuation premium had been calculated on the assumption that the company would receive a 4% return on its investment of premiums between the time of its payment and the death of the policyholder, and it actually realized 5%, the tax applied to the net of 1%. This deduction reflects the assumption that interest on net premiums, as well as the premiums themselves, would be needed to satisfy death claims, and that only investment income greater than the amount projected in the determination of net premiums should be taxed. Revenue Act of 1921, §245 (a)(2), 42 Stat. 261; Revenue Act of 1924, §245 (a) (2), 43 Stat. 289; Revenue Act of 1926, § 245 (a) (2), 44 Stat. (pt. 2) 47; Revenue Act of 1928, § 203 (a) (2), 45 Stat. 843; Revenue Act of 1932, §203 (a)(2), 47 Stat. 224; Revenue Act of 1934, §203 (a)(2), 48 Stat. 732; Revenue Act of 1936, §203 (a)(2), 49 Stat. 1711; Revenue Act of 1938, § 203 (a) (2), 52 Stat. 523; Internal Revenue Code of 1939, § 203 (a), 26 Ü. S. G §203 (a) (1952 ed.).
Like the parties, we will emphasize the role of these concepts in the relevant calculations. Other factors involved in the calculations, such as pension plan reserves and real estate transactions, have little significance for the purpose of decision of this case.
Section 802 (b) provides:-
“Life insurance company taxable income defined.
“For purposes of this part, the term ‘life insurance company taxable income’ means the sum of—
“(1) the taxable investment income (as defined in section 804) or, if smaller, the gain from operations (as defined in section 809),
“(2) if the gain from operations exceeds the taxable investment income, an amount equal to 50 percent of such excess, plus
“(3) the amount subtracted from the policyholders surplus account for the taxable year, as determined under section 815.”
For the purpose of this discussion, we assume that the gain from operations is greater than investment income. As the statute makes clear, §802 (b)(1), only the gain from operations is taxed if that figure is less than the taxable investment income, a situation which would probably arise only if the company lost money on its noninvestment operations.
“The 1959 Act defines life insurance company reserves, provides a rather intricate method for establishing the amount which for tax purposes is deemed to be added each year to these reserves and in § 804 prescribes a division of the investment income of an insurance company into two parts, the policyholders’ share and the company’s share. More specifically, the total amount to be added to the reserve — the policy and other contract liability requirements — is divided by the total investment yield and the resulting percentage is used to allocate each item of investment income, including tax-exempt interest, partly to the policyholders and partly to the company. In this case, approximately 85% of each item of income was assigned to the policyholders and was, as the Act provides, excluded from the company’s taxable income.” United States v. Atlas Ins. Co., 381 U. S. 233, 236-237 (footnotes omitted).
Actually, the computation is made in two steps. An earnings rate is determined by dividing the company’s investment yield by its assets (§ 805 (b) (2)). This earnings rate must be derived from a four-year average of earnings if such an average is lower than the current earnings rate (§805 (b)(1) and (3)). The adjusted life insurance reserves are determined by comparing the company’s actual earnings rate with the rate which was assumed when the reserves were calculated; for each one point of additional earnings rate there is a 10% decrease in the value of the reserve account, and vice versa (§805 (c)(1)). The earnings rate is multiplied by the adjusted life insurance reserve (§805 (a)(1)), and added with some other factors not germane here to yield the “policy and other contract liability requirements” (§ 805 (a)).
In the second step of the computation, the “policy and other contract liability requirements” are divided by the investment yield to determine the percentage which is the policyholders’ share (§ 804 (a) (1)). The investment yield is the gross investment income less deductible expenses, depreciation and depletion (§ 804 (e)).
For purposes of determining gain from operations, the company’s share is determined under §§ 809 (a) and (b) (3). Section 809 (a) defines the policyholder's share as the percentage obtained by dividing the required interest (the rate of interest used to calculate the reserves, multiplied by the amount of the reserves) by the investment yield. This formula is somewhat simpler than that used in §§ 804 and 805 for purposes of caculating taxable investment income.
In this case, although the Commissioner recomputed respondent’s tax for the entire period from 1958 through 1961, the adjustments resulted in no deficiency for 1960.
We therefore reject the Commissioner’s alternative position, that unpaid premiums should be ignored in calculating reserves, assets, and gross premium income.
The Commissioner does not contend otherwise. Tr. of Oral Arg. 19.
For example, the definition is also controlling on the question whether a company qualifies as a “life insurance company” within the meaning of the statute. See United States v. Consumer Life Ins. Co., 430 U. S. 725.
The Senate Report describes the provision as follows:
“(a) Method of accounting. — Subsection (a) of section 818, which is identical with the House bill, provides the general rule that all computations entering into the determination of taxes imposed by the new part I of subchapter L shall be made under an accrual method of accounting. This subsection further provides that, to the extent permitted under regulations prescribed by the Secretary or his delegate, a life insurance company may determine its taxes under a combination of an accrual method of accounting with any other method permitted by chapter 1 (other than the cash receipts and disbursements method). For example, the Secretary or his delegate may determine that the use of the installment method for reporting sales of realty and casual sales of personalty (see sec. 453 (b)) may, in combination with an accrual method of accounting, properly reflect life insurance company taxable income. To the extent not inconsistent with the provision of the 1954 Code and an accrual method of accounting, all computations entering into the determination of taxes imposed by the new part I shall be made in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners.” S. Rep. No. 291, 86th Cong., 1st Sess., 72-73 (1959).
The same language is used in the House Report. H. R. Rep. No. 34, 86th Cong., 1st Sess., 42 (1959).
The mandatory language contained in the provision requiring consistency with the NAIC statement is to be contrasted with the permissive language used to describe accounting methods covered by the Secretary’s regulations. Section 818 (a) (2) merely allows the Secretary to permit deviations from accrual accounting. Since this case does not concern any optional method allowed by the Secretary, this provision does not concern us here.
These Regulations cite unpaid premiums as examples of assets (§ 1.805-5, Example (1)) and include these premiums as part of the “gross premiums” used in calculating gain from operations (§ 1.809-4 (a)(1)).
In addition, § 1.801-4 (f) provides that "[i]n the event it is determined on the basis of the facts of a particular case that [unpaid premiums] are not properly accruable for the taxable year . . . and, accordingly, are not properly includible under assets . . . appropriate reduction shall be made in the life insurance reserves.” Based on the latter Regulation, the Commissioner makes an alternative argument that unpaid premiums should be disregarded for all purposes, including computations of reserves. We reject this argument for the reasons stated in Part III-A.
Great Commonwealth Life Ins. Co. v. United States, 491 F. 2d 109 (CA5 1974); Federal Life Ins. Co. v. United States, 527 F. 2d 1096 (CA7 1975); North American Life & Cas. Co. v. Commissioner, 533 F. 2d 1046 (CA8 1976).
Evidence of congressional respect for NAIC accounting methods is not limited to the portion of the Code concerning life insurance companies. In defining “gross income” and “expenses incurred” for purposes of taxing certain other insurance companies, Congress expressly requires computations to follow “the annual statement approved by the National Convention of Insurance Commissioners.” 26 U. S. C. §§832 (b)(1)(A), (b)(6).
The American Council of Life Insurance has filed a brief as amicus curiae and made oral argument urging adoption of this position.
The first Court of Appeals to consider this argument rejected it on the ground that Congress would not have intended “to relegate the substantive matter of offsetting or excluding loading on deferred and uncollected premiums, with its concomitant impact on the resulting tax, to the NAIC.” Franklin Life Ins. Co. v. United States, 399 F. 2d, at 760. We think that § 818 (a) gives the NAIC precisely this role of filling the gaps in the statutory treatment of accounting problems like this one.
Question: What is the issue of the decision?
A. federal taxation, typically under provisions of the Internal Revenue Code
B. federal taxation of gifts, personal, business, or professional expenses
C. priority of federal fiscal claims: over those of the states or private entities
D. miscellaneous federal taxation (cf. national supremacy: state tax)
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.
Alexander DESIMONE, Appellant, v. UNITED STATES of America, Appellee.
No. 519, Docket 33421.
United States Court of Appeals, Second Circuit.
Argued March 17, 1970.
Decided May 1, 1970.
Francis J. Pavetti, New London, Conn. (Dupont, Pavetti & Dupont, New London, Conn., on the brief), for appellant.
Richard L. Winter, Asst. U. S. Atty. (Stewart H. Jones, U. S. Atty. for District of Connecticut, Richard P. Crane, Jr., Asst. U. S. Atty., on the brief), for appellee.
Before MOORE and FEINBERG, Circuit Judges, and BONSAL, District Judge.
Of the Southern District of New York, sitting by designation.
FEINBERG, Circuit Judge:
This case is one of the many after the Marchetti-Grosso-Haynes trilogy in which the scope and effect of those decisions must be assessed. Alexander Desimone appeals from denial by the United States District Court for the District of Connecticut, Robert C. Zampano, J., of his petition under 28 U.S.C. § 2255 to set aside a plea of guilty of conspiring to violate section 5821 of the National Firearms Act. Finding no infringement of appellant’s right not to incriminate himself, we affirm Judge Zampano’s decision, which is reported at 303 F.Supp. 406.
I.
Appellant was indicted in 1966 on three counts: two charged unlawful possession of a silencer in violation of section 5851 of the National Firearms Act, and one charged conspiracy to make a quantity of silencers without paying the tax required by section 5821, thus violating 18 U.S.C. § 371. After trial began, appellant pleaded guilty to the third count. After some backing and filling, including an oral motion to vacate the guilty plea, appellant was sentenced in July 1967; the two section 5851 counts were dismissed. Some six months later, the Supreme Court decided Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). Within a few months appellant filed a section 2255 petition, claiming that he was convicted of violating an unconstitutional statute. Judge Zampano held that Haynes was not retroactive and that, in any event, the requirements of section 5821 did not violate appellant’s fifth amendment rights.
Appellant contends that the district judge was wrong on both issues. A third question is raised by the Government’s argument that appellant waived the self-incrimination claim by his voluntary guilty plea. We do not find it necessary to resolve all of these issues. We hold, as will be seen below, that 26 U.S.C. § 5821 does not violate appellant’s constitutional rights. Accordingly, we do not consider the retroactivity of the Supreme Court opinions cited above or the effect of appellant’s guilty plea, although we note that these questions have occasioned differences of opinion between the circuits.
II.
At the time appellant pleaded guilty, section 5821 contained five subdivisions. Subsections (a) and (b) provided for a tax of $200 upon the making of any firearm by any person not “engaged * * * in the business of manufacturing firearms.” Such a maker of the firearm, under subsections (c) and (d), paid the tax in advance; payment was represented by stamps provided by the Treasury. Finally — and it is to this that appellant particularly points — subsection (e) provided :
It shall be unlawful for any person subject to the tax imposed by subsection (a) to make a firearm unless, prior to such making, he has declared in writing his intention to make a firearm, has affixed the stamp described in subsection (d) to the original of such declaration, and has filed such original and a copy thereof. The declaration required by the preceding sentence shall be filed at such place, and shall be in such form and contain such information, as the Secretary or his delegate may by regulations prescribe. * * * If the person making the declaration is an individual, there shall be included as part of the declaration the fingerprints and a photograph of such individual.
Under the then applicable Treasury Regulations, the declaration of intent had to be “supported by a certificate of the local chief of police” or other acceptable person, and the certificate had to indicate that the fingerprints and photograph were those of the declarant, and that the firearm was intended “for lawful purposes.” Treas. Reg. § 179.78 (1955), 20 Fed.Reg. 6739 (Sept. 14, 1955). It is conceded that under section 5848(1) a silencer falls within the definition of a firearm.
The constitutionality of section 5821 has not been passed upon by the Supreme Court. Haynes v. United States, supra, upon which appellant relies, did not deal with section 5821, but with the relationship between sections 5851 and 5841 of the National Firearms Act and the unconstitutional effect of the registration requirement thereunder. Section 5841 obliged any person possessing a firearm to register it; section 5851 made it unlawful to possess an unregistered firearm. The Court held that the “elements of the offenses created by the two sections are * * * identical,” 390 U.S. at 94, 88 S.Ct. at 729, and that the provision requiring registration of the firearm would in most eases cut across the right not to incriminate oneself ; accordingly, “a proper claim of the constitutional privilege * * * provides a full defense to prosecutions” under either section. Id. at 100, 88 S.Ct. at 732. The heart of the Court’s opinion appears to be the following, id. at 96-97, 88 S.Ct. at 730:
The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5851 and 5861. They are unmistakably persons “inherently suspect of criminal activities.” Albertson v. S.A.C.B., 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act’s requirements; there are situations, which the United States itself styles “uncommon,” in which a possessor who has not violated the Act’s other provisions is obliged to register. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are “remote possibilities out of the ordinary course of law.” Heike v. United States, 227 U.S. 131, 144, [33 S.Ct. 226, 228, 57 L.Ed. 450]; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed “real and appreciable.” Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599-600 [16 S.Ct. 644, 647-648, 40 L.Ed. 819]. [Footnotes omitted.]
The other two cases in the trilogy— Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)— dealt with the federal occupational and excise taxes on gambling rather than with the National Firearms Act. In Marchetti, the Court held that the requirement of registering a present intent to commence gambling activities and paying a special tax was incriminatory in the face of comprehensive state prohibitions on gambling, which made wagering “an area permeated with criminal statutes.” 390 U.S. at 47, 88 S.Ct. at 702. On similar grounds, the Court in Grosso reversed a conviction for failure to pay the gambling excise tax.
Appellant claims that under these decisions section 5821 puts him to an unconstitutional choice if he makes a firearm: either remaining silent and suffering the penalties of the act or registering thereunder and incriminating himself. The incrimination results, according to appellant, because he thus identifies himself as a member of “a highly selective group inherently suspect of criminal activities.” Haynes v. United States, 390 U.S. at 98, 88 S.Ct. at 731.
Similar arguments have met with a mixed reception in the courts. There are, it is true, authorities supporting appellant. In DePugh v. United States, 401 F.2d 346 (1968), the Eighth Circuit dismissed an indictment which alleged, inter alia, a conspiracy to violate section 5821 by making firearms (apparently machine guns) without paying the tax. The court noted that the? law of Missouri, where the offense was committed, made illegal the sale, delivery or possession of a machine gun. A similar result was reached in United States v. Stevens, 286 F.Supp. 532 (D.Minn. 1968); the court there also looked to state law to show the risk of self-incrimination. However, the bulk of recent authority points the other way. In United States v. Benner, 417 F.2d 421, 424-425 (1969), the Ninth Circuit specifically disagreed with DePugh and Stevens, cited above. In holding that the declaration of intent to manufacture required by section 5821 does not require self-incrimination, the court said, id.:
Even so, it is not the manufacture of the firearms at which the law was aimed — the manufacture in and of itself is harmless. The concern is with the use of the firearm in the commission of murders, robberies and other crimes of violence. The maker of the firearm does not, by declaring his intent to make a firearm, make any declaration of an intention to do any illegal act. A firearm could be legally possessed in most states, and we specifically note that it could be legally possessed in Oregon, by a non-felon. We perceive a difference between a law which requires the declaration that one is engaged in an activity which is in itself criminal and one which requires a person to declare an intention to engage in an activity which is not in itself criminal and which does not of necessity lead to any criminal act. For this reason and because the area of the firearm is not permeated to the same extent with criminal statutes as are the wagering and marijuana areas, we do not believe that this case is governed by Marchetti, Grosso and Leary, [395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57]. [Footnote omitted.]
The court went on to consider Benner’s argument that his status as a prior felon was a significant factor in weighing the possibility of self-incrimination. The court agreed, and pointed out that in Oregon one convicted of a felony against the person and property of another may not “own” or “control” any firearm “capable of being concealed upon the person.” Id. 417 F.2d at 425. Since the sawed off rifle involved in Benner fit that definition, the court remanded to determine whether at the time of manufacture Benner had such a prior conviction. If so, then the indictment could not constitutionally stand; compliance with section 5821 would have required Benner to “declare his intention to violate the laws of Oregon,” id. at 425, an impermissible result. But otherwise Benner’s constitutional claim would fail.
This view of section 5821 in Benner was approved by the Third Circuit in United States v. Thompson, 420 F.2d 536 (3d Cir. 1970). The district court in that case had quoted from United States v. Casson, 288 F.Supp. 86, 89 (D.Del.1968), to the effect that compliance with section 5821 “establishes the legality rather than illegality of possession of a firearm” and “no past or present incriminating implication could flow from * * * compliance * * The Third Circuit approved this reasoning, pointing out that the district court had “left open to the defendant to show that [he] * * * made the gun * * * in a state which at the time prohibited such weapons and provided criminal sanctions. * * * The Government points out that such a weapon as the defendant possessed is legal in Delaware where it was possessed and seized.” 420 F.2d at 542.
A similar result was reached in Lewis v. United States, 408 F.2d 1310 (10th Cir. 1969), which held that section 5821 did not require self-incrimination. In the course of its opinion, the court referred to the distinction set forth in earlier opinions, Mares v. United States, 319 F.2d 71 (10th Cir. 1963), and Russell v. United States, 306 F.2d 402 (9th Cir. 1962), between the registration required under section 5841 and the declaration of intent called for by section 5821. Registration under section 5841
amounted to an admission that the registrant possessed a firearm and that he did not make or acquire it in compliance with the Act. Thus, registration disclosed a violation of other laws.
408 F.2d at 1313, while under section 5821 “no violation of other laws was * * * compelled to be disclosed.” Id.
III.
This review of the cases indicates that the question whether section 5821 is constitutionally infirm is by no means simple. We have not decided it since Haynes, Grosso, and Marchetti. Certainly, the case is not governed by the square holding of Haynes, which dealt primarily with the constitutionality of the registration called for by section 5841. That registration is not required in most cases from a person who has acquired a firearm legally, i.e., if he obtained it by transfer or importation or made it and there was compliance with other provisions of the Act covering those situations. Therefore, section 5841, as applied to most persons, requires registration only from one who, if he registers, admits that he possesses a firearm and that he acquired it or made it illegally. It is true, as the Government argued in Haynes, that there are a few situations in which a possessor who has not violated the Act has to register, e.g., if he found an abandoned firearm. But the Court disposed of that contention by pointing out that "the correlation between obligations to register and violations can only be regarded as exceedingly high,” and held that:
The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions * * *.
Haynes, 390 U.S. at 96, 88 S.Ct. at 730. This is all in sharp contrast to the effect of section 5821, the portion of the statute appellant attacks. A declaration under section 5821 of intention to make a firearm does not simultaneously admit a violation of another section of the National Firearms Act.
To be fair to appellant, however, he does not rely on the holding of Haynes, but on the emanations from that case and others, including Grosso and Marchetti. Thus, he points to the likelihood that a person like appellant who makes silencers will transfer them without complying with section 5814 of the Act; accordingly, his registration under section 5821 will facilitate his prosecution. Appellant also argues that silencers are meant to be used on other firearms and his declaration would make him a prime suspect on possible charges involving other weapons. It may be conceded that a person like appellant does not ordinarily make silencers for his own amusement, but we do not think that the incrimination issue is so easily decided. In Varitimos v. United States, 404 F.2d 1030, 1034 (1st Cir. 1968), cert. denied, 395 U.S. 976, 89 S.Ct. 2126, 23 L.Ed.2d 765 (1969), the claim was made that:
[E]ven though a firearm is acquired lawfully, its acquisition focuses suspicion on the transferee because of the legislative purpose of the Act. Thus, should a transferee subsequently engage in illegal activity involving a firearm, the order form would provide a link in the chain leading to conviction.
The court rejected the argument:
[T]he protection of the Fifth Amendment privilege is inapplicable to prospective acts involving only a speculative and insubstantial hazard of incrimination. * * *
In Marehetti the fact that 49 states prohibited the very activity disclosed by payment of the tax constituted a real hazard of incrimination. But here there is no prohibition, either state or federal, against possession of a firearm lawfully acquired under the National Firearms Act. Necessarily, a question of incrimination can arise only if a wholly different criminal act is performed at some point in the future. To accept appellant’s argument would be tantamount to saying that a pharmacist should not be required to acknowledge receipt of certain drugs since he may secretly intend to distribute them without a prescription, and would therefore be supplying evidence of receipt which would incriminate him. [Footnote omitted.]
It is true that a registrant under section 5821 may subsequently transfer a silencer without obtaining the order form required by section 5814, thus violating that section, or that one of his customers may use the silencer in committing a crime. But we agree with the First Circuit that the possibility that appellant or one of his customers may decide to commit a different criminal act in the future is not enough to support the fifth amendment claim.
Moreover, as the above quotation makes clear, the analogy to Marchetti is not compelling. The Court in that case stressed that “in Connecticut and throughout the United States, wagering is ‘an area permeated with criminal statutes.’ ” 390 U.S. at 47, 88 S.Ct. at 702. A similar point was made with respect to state laws on marijuana in Leary v. United States, 395 U.S. 6, 16-18, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and to the risk under federal criminal laws flowing from an admission of membership in the Communist Party. See Albertson v. S.A.C.B., 382 U.S. 70, 77, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). In contrast, there is no other federal statute or law in appellant’s home state of Connecticut which makes criminal the manufacture or possession of silencers.
Finally, we recognize that exemption from the coverage of section 5821 of those engaged in the business of manufacturing firearms raises a serious problem, since it supports the inference that Congress was aiming at “a relatively small group, many of whom are engaged in activities made unlawful by state and federal statutes.” See Grosso, 390 U.S. at 74, 88 S.Ct. 716, 717 (Brennan, J., concurring). But on balance we agree with the view of the Third, Ninth and Tenth Circuits that the hazard of incrimination here falls short of that in the decisions appellant relies upon. In short, on this record we hold that section 5821 did not compel appellant to incriminate himself and that his guilty plea should not be set aside on the ground urged.
Judgment affirmed.
. E. g., compare Meadows v. United States, 420 F.2d 795 (9th Cir. 1969), pet. for cert. filed 38 U.S.L.W. 3341 (Feb. 20, 1970); United States v. Lucia, 416 F.2d 920 (5th Cir. 1969); United States v. Miller, 406 F.2d 1100 (4th Cir. 1969); with Eby v. United States, 415 F.2d 319 (10th Cir. 1969); Mackey v. United States, 411 F.2d 504 (7th Cir.), cert. granted, 396 U.S. 954, 90 S.Ct. 426, 24 L.Ed.2d 419 (1969); Graham v. United States, 407 F.2d 1313 (6th Cir. 1969); cf. United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968).
. The Gun Control Act of 1968, P.L. 90-618, 82 Stat. 1213, amended and substantially changed the National Firearms Act, including 26 U.S.C. § 5821.
. A person in the business paid a special occupational tax, 26 U.S.C. §§ 5801, 5802. For statistics on the number of taxpayers under these sections, see Powell & Jones, Self-Incrimination and Fair Play — Marchetti, Grosso and Haynes Examined, 18 Am.U.L.Rev. 114, 124 n. 45 (1968).
. The firearm involved was a “sawed off” rifle. The statutes cited were Minn.Stat. 609.66, subd. 1(1, 5) and 609.67.
. Also relied on by Judge Zampano in this case.
. Before those cases, see United States v. Della Rocca, 388 F.2d 525 (2d Cir.), vacated per curiam, 390 U.S. 745, 88 S.Ct. 1443, 20 L.Ed.2d 274 (1968).
. 26 U.S.C. § 5841 provides:
Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with.
. 26 U.S.C. § 5814(a) provides:
It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Secretary or his delegate. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this chapter: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof.
. We note that in amending the National Firearms Act in 1968, Congress restricted the prosecutorial use of information submitted in connection with registration, 26 U.S.C. § 5848, as amended, which may make the problem presented here less difficult to resolve in the future. See Haynes, 390 U.S. at 98, 88 S.Ct. 722.
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:
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songer_subevid
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Robert SCHISLER, Mary Miceli, Paulette Beard, Frank Powroznik, Rose Reese, Harry Delandro, Marjorie Hilts, Cinda Coleman, Rose Mitchell and Kathran Tennant, on behalf of themselves and all other individuals similarly situated, Plaintiffs-Appellees, v. Otis R. BOWEN, Secretary of the United States Department of Health and Human Services; Barbara Blum, as Commissioner of the New York State Department of Social Services; Sidney Houben, as Director of the New York State Department of Social Services Bureau of Disability Determinations, Defendants-Appellants.
No. 714, Docket 87-6244.
United States Court of Appeals, Second Circuit.
Argued Feb. 1, 1988.
Decided June 23, 1988.
Opinion on Petition for Rehearing Sept. 19, 1988.
Frank A. Rosenfeld, Attorney, Civil Div., Appellate Staff, Dept, of Justice, Washington, D.C. (Richard K. Willard, Asst. Atty. Gen., Roger P. Williams, U.S. Atty., William Kanter, Attorney, Civil Div., Appellate Staff, Dept, of Justice, Washington, D.C., of counsel), for defendants-appellants.
Catherine M. Callery, Rochester, N.Y. (Bryan D. Hetherington, Monroe County Legal Assistance Corp., Rochester, N.Y., Lewis Golinker, Frederick Stanczak, Legal Services of Cent. New York, Inc., Syracuse, N.Y., Olney Clowe, Neighborhood Legal Services, Buffalo, N.Y.), for plaintiffs-ap-pellees.
Joan Bauer, Vermont Legal Aid, Inc., Montpelier, Vt., for plaintiffs in Aldrich v. Bowen as amici curiae.
Peter L. Zimroth, Corp. Counsel of the City of New York (Alice Morey, Alexandra S. Bowie, Attys., Corp. Counsel City of New York, New York City, of counsel), David Udell, M.F.Y. Legal Services, Inc., New York City, Nancy Morawetz, Michael Kink, Legal Intern, Washington Square Legal Services, New York City, Burt Neu-borne, New York University School of Law, New York City, for New York City and the Stieberger Class as amici curiae.
Before WINTER, PRATT and ALTIMARI, Circuit Judges.
WINTER, Circuit Judge:
This appeal follows proceedings in the district court subsequent to our remand in Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986) (“Schisler I”). Pursuant to that remand, the Secretary of Health and Human Services proposed a draft Social Security Ruling (“SSR”) that purported to embody the “treating physician rule.” Judge Elf-vin made extensive revisions of this draft SSR and ordered the Secretary to issue the SSR as revised. Because the district court’s revisions did no more than eliminate material outside the scope of the remand and, with two exceptions, restate our case-law on the treating physician rule, we affirm in part and reverse in part.
This opinion assumes familiarity with our decision in Schisler I. Briefly stated, that decision confronted chronic problems with the Secretary’s compliance with the so-called treating physician rule. Although the Secretary had never sought to challenge this rule by petitioning for certiorari in the Supreme Court, the volume of appeals from the Secretary implicating the rule raised a serious question as to whether the Secretary was actually following the rule. See DeLeon v. Secretary of Health and Human Services, 734 F.2d 930, 937-38 (2d Cir.1984). We were specifically assured at oral argument in Schisler I that the then-Secretary had adopted our rule as her policy. 787 F.2d at 83. However, the volume of litigation implicating the rule made it clear that Social Security Administration (“SSA”) adjudicators had no clue that the treating physician rule was the Secretary’s established policy. To remedy the situation, we ordered “that SSA tell its adjudicators what it has told us about” the Secretary’s adoption of that rule. Id. at 84.
After remand to the district court, the Secretary produced a twelve-page draft SSR entitled “Development and Consideration of Medical Evidence.” The draft included, inter alia, several pages of legislative history, definitions of terms found elsewhere in SSA regulations, a section on the “Need for Medical Evidence” and another section on the use of “Consultative Medical Source Evidence.” The proposed draft’s section on “Evaluating the Evidence and Resolving Conflicts” did not begin until page nine and the statement of the treating physician rule did not appear until page ten. Many aspects of the draft SSR contained what the Secretary describes as “elaborations” on that rule. These so-called elaborations included a formulation that made the rule merely one of many factors, including the consistency of the physician’s opinion with other medical reports, to be considered by the adjudicator, and a requirement that the treating physician’s opinion be supported by clinical or laboratory diagnostic evidence.
The district court concluded that the proposed SSR “fails to reflect, in significant respects, the treating physician rule recognized and effective here and to be in place nationwide,” and “is rambling and ambiguous, and not to a small degree unedifying to those in the field who must make the important decisions delegated to the Secretary. There lurks in its lengthy and discursive text bases for not applying the treating physician rule.” Accordingly, the district court edited the draft SSR, deleting for the most part material dealing with statutory background, definitions, the development of medical evidence, and the proposed requirement that treating physician’s opinions be supported by clinical and/or laboratory evidence. The district court also revised the statement of the treating physician rule, largely by using language from Schisler I. Finally, the district court modified somewhat the SSR’s definition of “treating source” and added a definition of “substantial evidence” under which “[t]he opinions of non-examining medical personnel cannot, in themselves and in most situations, constitute substantial evidence to override the opinion of a treating source.”
On appeal, the Secretary argues that the district court exceeded its authority by undertaking to rewrite the draft SSR. He asks us to accord the draft SSR the traditional deference shown to administrative rulings and to restore it in its elaborate detail. We decline to do so and, but for certain minor changes not worthy of discussion and two changes discussed infra, adopt the district court’s deletions and revisions.
Our remand did not direct the Secretary to exercise administrative judgment on any matter other than the selection of the best means of conveying to SSA adjudicators his adoption of this circuit’s treating physician rule. We deliberately limited the relief ordered in Schisler I so as to minimize any “intrusion on SSA processes” while mitigating what had become an abuse of judicial processes resulting from SSA adjudicators’ ignorance of the treating physician rule. 787 F.2d at 84. Thus, the remand in this case was not a proper occasion for the Secretary to issue a regulation covering subjects not at issue in this litigation or to elaborate on the treating physician rule in ways not expressly authorized by our caselaw. To the extent that the Secretary seeks to issue rulings covering such subjects or to elaborate on that rule, he should resort to the customary administrative processes. We therefore affirm the deletions made by the district court but decline to reach the merits of the positions taken by the draft SSR in the deleted portions. We have also revised the title of the SSR in order to limit it to the treating physician rule. See Appendix A.
Moreover, the deference traditionally shown to administrative rulings is not appropriate in view of the limited goal of the remand. So far as the choice of the means of publication are concerned, we agree with the Secretary that an SSR is appropriate. So far as the content of the SSR is concerned, the Secretary has some leeway with regard to particular language but none with regard to substance. Having taken the position that he has adopted the treating physician rule of this circuit, the Secretary is thereby bound to offer a formulation of that rule based on our caselaw. On appeal, the Secretary does not contest the fact that the revision of the formulation ordered by the district court was based directly on that caselaw. Instead, he urges upon us two changes in the district court’s statement of the treating physician rule, both of which have some limited merit.
First, the Secretary would delete from the definition of “treating source” language stating that the physician’s ongoing relationship with the claimant may be “of a short time span and [may] commenc[e] before or after the claimant has filed for disability benefits.” He fears that this statement will make the treating physician rule “even more rigid and mechanical” than it already is. However, the challenged language merely insures that SSA adjudicators will focus on the nature of the ongoing physician-treatment relationship, rather than its length. Cf. Mongeur v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir. 1983) (treating physician rule does not apply where no continuous physician/patient relationship developed). Far from making the rule more rigid and mechanical, the language forbids adjudicators from resorting to a test based on a legally fixed period of time rather than inquiring into the actual nature of the physician-patient relationship.
The Secretary also argues that the challenged language may lead to special weight being given to opinions of doctors who are “no more than nominally a treating physician.” To avoid this danger, we have revised the language to read, “The nature of the physician’s relationship with the plaintiff, rather than its duration or its coincidence with a claim for benefits, is determinative.”
Second, the Secretary challenges the district court’s addition of language on the meaning of “substantial evidence” that was taken largely from our decision in Havas v. Bowen, 804 F.2d 783, 786 (2d Cir. 1986). The language added by the district court states, “[t]he opinions of non-examining medical personnel cannot, in themselves and in most situations, constitute substantial evidence to override the opinion of a treating source.” We agree with the Secretary.
Havas certainly does contain language that would justify such a statement, although the district court’s addition of the qualification “in most situations” is not derived from that decision and is rather ambiguous. We believe, however, that that statement in Havas is dictum (for which the author takes responsibility). We therefore have deleted the sentence in question so that the SSR will contain nothing that is not clearly authorized by our caselaw.
The version of the SSR we approve is printed in full in Appendix A.
Affirmed in part, reversed in part.
APPENDIX A
Titles II and XVI: Consideration of the Opinions of Treating Sources
PURPOSE: To clarify the Social Security Administration’s (SSA) policy on developing medical evidence from treating sources and describe how SSA evaluates such evidence, including any opinion about disability, in determining whether an individual is disabled in accordance with the provisions of the Social Security Act. Particularly, this Ruling clarifies when a medical opinion by a treating source will be conclusive as to the medical issues of the nature and severity of an impairments) individually or collectively bearing on the claimant’s ability to engage in substantial gainful activity, and indicates how the determination or decision rationale is to reflect the evaluation of evidence from a treating source.
The preferred source of medical evidence is the claimant’s treating source(s). Medical evidence from a treating source is important because it will often provide a medical history of the claimant’s impairment based on the ongoing treatment and physician-patient relationship with the claimant.
In addition to providing medical history, a treating source often provides an opinion about disability, i.e., diagnosis and nature and degree of impairment. Such opinions are carefully considered in evaluating disability. Although the decision as to whether an individual is disabled under the Act is made by the Secretary, medical opinions will be considered in the context of all the medical and other evidence in making that decision.
Section 223(d)(5) of the Act, as amended by the Social Security Disability Benefits Reform Act of 1984, requires the Secretary to make every reasonable effort to obtain from the individual’s treating source all medical evidence, including diagnostic tests, needed to make properly a determination regarding disability, prior to evaluating medical evidence obtained from any other source on a consultative basis.
A claimant’s treating source is his or her own physician, osteopath or psychologist (including an outpatient clinic and health maintenance organization) who has provided the individual with medical treatment or evaluation and who has or had an ongoing treatment and physician-patient relationship with the individual. The nature of the physician’s relationship with the patient, rather than its duration or its coincidence with a claim for benefits, is determinative.
Medical evidence and opinion from claimant’s treating source is important because the treating source, on the basis of the ongoing physician-patient relationship, is most able to give a detailed history and a reliable prognosis. Therefore, treating source evidence should always be requested and every reasonable effort should be made to obtain it. Treating sources should be requested to provide complete medical reports consisting of a medical history, clinical findings, laboratory findings, diagnosis, treatment prescribed and response to any treatment, prognosis, and a medical assessment; i.e., a statement of the individual’s ability to do work-related activities. If the treating source provides an incomplete medical report, the adjudicator will request the necessary additional information from the treating source. Where SSA finds that the opinion of a treating source regarding medical issues is inconsistent with other evidence in file, including opinions of other sources, the adjudicator must resolve the inconsistency, according to the principles set forth below. If necessary to resolve the inconsistency, the adjudicator will secure additional evidence and interpretation or explanation from the treating source(s) and/or consulting source(s).
Once the adjudicator has made every reasonable effort to obtain the medical evidence and to resolve all conflicts, the adjudicator must evaluate all of the evidence in file in arriving at a determination. Initially, the adjudicator must review the record to determine what is the treating source’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment. The adjudicator should then examine the record for conflicting evidence. Upon finding conflicting evidence, the adjudicator should compare the probative value of the treating source’s opinion with the probative value of the conflicting evidence.
The treating source’s opinion on the subject of medical disability — i.e., diagnosis and nature and degree of impairment — is (1) binding on the fact-finder unless contradicted by substantial evidence and (2) entitled to some extra weight, even if contradicted by substantial evidence, because the treating source is inherently more familiar with a claimant’s medical condition than are other sources. Resolution of genuine conflicts between the opinion of the treating source, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder.
Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.
Where the opinion of a treating source is being rejected or overridden, there must be a discussion documented in the file of the opinion(s) and medical findings provided by the medical sources, an explanation of how SSA evaluates the reports, a description of any unsuccessful efforts to obtain information from a source(s), the pertinent nonmedical findings, and an explanation as to why the substantial medical evidence of record contradicts the opinion(s) of a treating souree(s). This discussion must be set out in a determination or decision rationale.
. The district court correctly eliminated the draft SSR’s requirement that the treating physician’s opinion be supported by clinical or laboratory evidence. We have eliminated similar language concerning medical opinions from doctors other than a treating physician.
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
BOSTON TERMINAL CO. v. MUTUAL SAVINGS BANK GROUP COMMITTEE et al.
No. 3760.
Circuit Court of Appeals, First Circuit
April 23, 1942.
B. A. Brickley, of Boston, Ma?s. (Oliver R. Waite and Brickley, Sears & Cole, all of Boston, Mass., on the brief), for appellant.
Damon E. Hall, of Boston, Mass. (Thomas M. Reynolds, George B. Rowlings, Tyler, Eames & Reynolds, James N. Clark, Philip N. Jones, Hurlburt, Jones, Hall. & Bickford, and Rutherford E. Smith, all of Boston, Mass., on the brief), for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
- These are consolidated appeals from six orders. of the District Court entered in proceedings for the reorganization of appellant, the Boston Terminal Company, under § 77 of the Bankruptcy Act, 11 U.S. C.A. § 205. Appeals from some of these orders have now become moot; and for an understanding of the question presented it will be necessary to refer in detail only to the, order of November 17, 1941, entered on petition of appellees herein, the holders of the greater portion of the outstanding bonds of the - debtor corporation, which order extended for a period of six months to and including May 20, 1942, the time within which the debtor shall, file its plan of reorganization, and enjoined the debtor from filing any such plan prior to or during the said period of extension until further order of the court.
As -appears from appellant’s statement of points, the sole question presented is whether the District Court has power to enjoin the filing of a plan of reorganization by the debtor in proceedings under § 77 of the Bankruptcy Act relating to railroad reorganizations. Appellant explicitly disclaims any suggestion of abuse of discretion by the District Court if it should be decided that the issuance of an injunction against the filing of a plan by a debtor in proceedings under § 77 is within the power of the District Court.
The Boston Terminal Company was incorporated in 1896 by a special act of the Massachusetts legislature, with power to construct and maintain a union passenger station in Boston (now called South Station), and to provide and operate terminal facilities for the several railroad companies authorized by the Act to hold the stock of the Terminal Company. The relationship of the Terminal Company to the New York, New Haven & Hartford Railroad and the other participating railroads is set forth in Palmer v. Webster & Atlas National Bank, 1941, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. 642, and need not be elaborated in this opinion. It is sufficient to say that according to the last apportionment made by the Department of Public Utilities of , Massachusetts in 1931, it was determined that the New Haven, as lessee of the Old Colony Railroad Company, was using the South Station and its facilities to the extent of 70%, and that the New York Central Railroad Company, as lessee of the Boston & Albany Railroad Company, was making such use to the extent of 30%. Under the Massachusetts, Act of 1896 the New Haven and the New York Central, in those proportions, were required to pay to the Terminal Company for such use the amounts needed to cover the Terminal Company’s expenses, including interest upon its bonds, and taxes. Further, the New Haven, having the appointment of three of the five trustees or directors of the Terminal Company, was in effective control of the latter company.
In 1935 the New Haven filed a petition for reorganization under § 77 in the United States District Court for the District of Connecticut. For a time the New Haven continued to make its proportion of the payments to the Terminal Company for the use of South Station. However, on October 30, 1939, the District Court for Connecticut, on petition of the New Haven trustees, entered its Order No. 398 directing the New Haven trustees to withhold payments to the Boston Terminal Company on account of the latter’s taxes and bond interest.
As a result of this suspension of payments the Terminal Company was left without means to pay its obligations as they matured, and it defaulted in payment of interest due on its bonds November 1, 1939. The Terminal Company not having filed a petition for reorganization, certain of the appellees, as they were permitted to do by § 77 sub. a, filed a petition in the court below on November 3, 1939, for reorganization of the debtor company. On November 20, 1939, the court entered an order approving this petition, and later the court duly appointed a trustee for the debtor.
In § 77, sub. d, it is provided that: “The debtor, after a petition is filed as provided in subsection (a) of this section, shall file a plan of reorganization within six months of the entry of the order by the judge approving the petition as properly filed, * * * and not thereafter unless such time is extended by the judge from time to time for cause shown, no single extension at any one time to be for more than six months.” Thus, in the absence of an extension of time, it would have been the duty of the debtor to file it's plan of reorganization on or before May 20, 1940.
Meanwhile, the Circuit Court of Appeals for the Second Circuit, on appeal, reversed the aforementioned Order No. 398 of the District Court for Connecticut, holding that the New Haven trustees, while operating the Old Colony Railroad pursuant to the court’s order under § 77, sub. c(6), were bound to continue payments on account of the taxes and interest charges of the Terminal Company. Webster & Atlas National Bank v. Palmer, 2 Cir., 1940, 111 F.2d 215. The situation then was, that unless this decision of the Second Circuit should be reversed on certiorari the Boston Terminal Company would have ample funds promptly to meet all of its obligations and therefore there would be no occasion to proceed with the reorganization of the debtor company.
Notwithstanding this, the bondholders of the debtor expressed apprehension that a plan of reorganization would be filed in the name of the Terminal Company, and that such plan would be likely to be drawn in the interest of the New Haven rather than in the interest of the debtor and its bondholders, in view of the New Haven’s control, as aforesaid, over the Terminal Company. Accordingly the appellees on April 18, 1940, filed in the court below a petition asking the court to extend for a further period of six months from May 20, 1940, the time within which the debtor might file a plan of reorganization and meanwhile to enjoin the debtor from filing a plan. At a hearing on this petition on May 6, 1940, counsel for the debtor was unable to give assurances that no such plan would be filed by the debtor in the circumstances then existing. Therefore, the District Court, on the same day, entered an order granting the extension, and the injunction, as prayed by appellees’ petition. For the same reasons, on November 14, 1940, upon petition by appellees, the District Court entered an order extending for a further period of six months from November 20, 1940, the time within which the debtor might file a plan of reorganization and enjoining the debtor from filing such a plan during the extended period without further order of the court, the case of Webster & Atlas National Bank v. Palmer, supra, being then pending before the Supreme Court on certiorari.
On February 3, 1941, the Supreme Court in Palmer v. Webster & Atlas National Bank, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. 642, reversed the judgment of the Second Circuit and reinstated Order No. 398 of the District Court for Connecticut. The situation was then back where it was before, and because the payments from the New Haven were no longer forthcoming the Terminal Company was unable to meet its debts as they matured.
But on February 27, 1941, the Interstate Commerce Commission pursuant to § 77, sub. d, filed with and certified to the District Court for Connecticut a plan for reorganization of the New Haven. This plan, if approved by the said court, would have rendered the Terminal Company solvent and able to meet its debts as they matured and thus would have removed the necessity for a reorganization of that company. It therefore seemed to the bondholders of the Terminal Company desirable that proceedings for the reorganization of that company should be further held in abeyance until Judge Hincks should have acted upon the pending plan for the reorganization of the New Haven. Hence, the court below, on May 19, 1941, upon petition of appellees,, further extended for a period of six months to and including November 20, 1941, the time within which the Terminal Company should file its plan of reorganization, and continued in effect for the period of such extension the injunction against the filing of a plan of reorganization by the debtor. Judge Hincks not yet having acted on the New Haven plan of reorganization, the court below on November 17, 1941, again on petition by appellees, extended the time within which the Terminal Company should file a plan of reorganization for a further period of six months to and including May 20, 1942, and enjoined the Terminal Company from filing any plan of reorganization during the period of such extension until further order of the court. The validity of this order of November 17, 1941, is now before us for consideration.
It is the contention of appellant that the District Court is utterly without power, in proceedings under § 77, to enjoin a debtor from filing a plan of reorganization. As above noted, if such power is found to exist, appellant does not contend that the District Court committed an abuse of discretion,' under the circumstances disclosed, in entering the order of November 17, 1941.
We have no doubt that the District Court had power, upon petition of the bondholders, to extend the time for filing by the debtor of a plan of reorganization. As originally enacted, § 77 contained no time limit within which the debtor must file a plan. See § 77, sub. c(7), 47 Stat. 1476. As a result, the Interstate Commerce Commission in its 48th Annual Report, dated December 1, 1934, at page 18, reported to the Congress that “The proceedings have been delayed in many cases by an apparent reluctance on the part of the debtor corporations to present plans of reorganization.” Accordingly § 77 was amended in 1935 so as to provide in subsection d, 49 Stat, 917, that the debtor must file a plan of reorganization within six months after the entry of the order by the judge approving the petition for reorganization, “and not thereafter unless such time is extended by the judge from time to time for cause shown.” This mandatory provision was obviously inserted for the benefit of the creditors rather than of the debtors; and since the subsection does not say that the court has power to grant an extension only upon petition by the debtor, it is a fair inference that the judge may ■also extend the time, for cause shown, upon petition by the creditors. But whether he may, in addition, enjoin the debtor from filing its plan until further order of the court during the period of such extension, is the question now before us.
There is no express provision of law specifically authorizing the judge to enjoin the debtor from filing a plan. This omission, however, is without significance. Continental Bank v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 675, 676, 55 S.Ct. 595, 79 L.Ed. 1110.
The district courts as courts of bankruptcy by § 2 a of the Bankruptcy Act, 11 U.S.C.A. § 11 are invested “with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings.” After the enumeration in § 2, sub. a of specific powers in courts of bankruptcy, it is provided in subsection b of the same section that “Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.” It may be deduced, therefore, that a court of bankruptcy has power to issue an injunction to protect its jurisdiction, since such a power is inherent in the court as a duly established court of equity. Moreover, by § 2 sub. a(15), courts of bankruptcy may “make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this Act [title].” 52 Stat. 843. Further, § 262 of the Judicial Code, 28 U.S.C.A. § 377, provides that “the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”
Appellant insists, however, that the power to issue injunctions, which may be deduced from the foregoing provisions of law, must be limited to cases where the injunction is issued in aid of the purpose for which the district court is vested within jurisdiction under § 77, namely, the preparation and consummation of a plan of reorganization; and that where the injunction, as in the case at bar, does not aid in the reorganization of the debtor but actually brings it to a standstill, it is necessarily in conflict with § 77, citing Guaranty Trust Co. v. Henwood, 8 Cir., 1936, 86 F.2d 347, 108 A.L.R. 1020. Appellant also relies upon a statement in Continental Bank v. Chicago, Rock Island Ry., 1935, 294 U.S. 648, 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110: “But a proceeding under section 77 * * * is not an ordinary proceeding in bankruptcy. It is a special proceeding which seeks only to bring about a reorganization, if a satisfactory plan to that end can be devised. And to prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.”
We are not persuaded by the foregoing argument. It assumes that the sole function of the district court under § 77 is to drive through with the utmost speed a plan, some plan, of reorganization, regardless of the existence of temporary conditions which may make the devising of a satisfactory plan difficult, or impossible, or undesirable from the standpoint of the debtor corporation and its creditors. The Supreme Court itself recognized, in the Rock Island case, supra, 294 U.S. page 685, 55 S.Ct. page 610, 79 L.Ed. 1110, that doubts and uncertainties due to pending litigation may justify a delay in reorganization where, until the doubts are finally resolved, “the consummation, or even the preparation, of any definite plan is plainly impracticable.” And the Congress has recognized that there may be situations where a hasty reorganization is undesirable, and that considerable discretion must necessarily be vested in the judge. House Rep. No. 1283, 74th Cong., 1st Sess., p. 3. Furthermore, it is the duty of the court under § 77 to preserve the debtor’s estate from wastage and unnecessary expense. Counsel for the debtor conceded, at the hearing before the District Court on May 6, 1940, that after the decision of the Second Circuit in Webster & Atlas National Bank v. Palmer, 111 F.2d 215, supra, it would have been “nonsensical” for the debtor to file a plan without waiting for the decision of the Supreme Court on certiorari. The filing of a plan of reorganization by the debtor initiates administrative proceedings before the Interstate Commerce Commission under § 77, sub. d, proceedings which may burden the debtor’s estate with heavy expenses in the hiring of experts, attorneys, etc., in lengthy hearings on the plan. After the decision of the Second Circuit in the case mentioned, it was obviously to the interest of the Terminal Company’s bondholders that the filing of a plan of reorganization should be delayed, even though the creditors themselves remained under the customary injunction forbidding them to enforce their liens pending the reorganization proceedings. And it was equally to the true interest of the debtor, the Boston Terminal Company, not to file a plan at that juncture.
Accordingly it seems clear to us that the extensions of time and the injunctions contained in the orders of the court below dated May 6, 1940, and November 14, 1940, were in aid of the court’s jurisdiction and in pursuance of its duty to preserve the debtor’s estate from needless expense. Counsel for appellant practically conceded this at the oral argument. But if this is so, it cannot be said flatly, as contended in appellant’s brief, that a district court has no power to enjoin the filing of a plan of reorganization by the debtor in proceedings under § 77. The subsequent orders of May 19, 1941, and November 17, 1941, further extending' the time and continuing the injunction, cannot be challenged for lack of power, but only for abuse of discretion in its exercise. Since appellant does not claim that there was any abuse of discretion we need not go into this. It may be noted, however, that the considerations which justified the orders of May 6, 1940, and November 14, 1940, were comparable to the considerations which moved the court to issue the orders of May 19, 1941, and November 17, 1941. The situation when the first two of these orders were entered was that if the Supreme Court should affirm the decision of the Second Circuit in Webster & Atlas National Bank v. Palmer, supra, the debtor would be amply solvent and in no need of reorganization. The situation when the second two of these orders were entered was that if the pending plan of New Haven reorganization should be consummated, the Terminal Company would be amply solvent and in no need of reorganization. However, in the latter situation the case for delay was somewhat weaker perhaps, because even if the judge should approve the plan there was. another hurdle to be surmounted before the plan could become effective; under § 77, sub. d, the plan might thereafter fail of acceptance by a two-thirds majority in interest of creditors in each class, and the judge might deem it not to be a proper case for putting the plan into effect notwithstanding such non-acceptance. But if in the circumstances the creditors of the Terminal Company were willing to await the outcome, it is difficult to see how the debtor, the Terminal Company, would have just cause for complaint.
It happened that shortly after the court below entered its order of November 17, 1941, now appealed from, Judge Hincks (on December 8) announced his decision refusing to approve the New Haven plan. This may alter the picture; it may be, as a result, that the proceedings for reorganization of the New Haven will be protracted for an indefinite time, and that even if a plan is ultimately consummated, it may not be as favorable to the position of the Terminal Company as was the plan of the Interstate Commerce Commission disapproved by the judge. Meanwhile, the Terminal Company is “unable to meet its debts as they mature.” This is one of the situations in which a debtor railroad is entitled to try for a reorganization under the procedure of § 77. As the Rock Island case pointed out (294 U.S. at page 272, 55 S.Ct. 595, 79 L.Ed. 1110), § 77 is applicable not only where the debtor is “insolvent” within the meaning of § 1(19) of the Bankruptcy Act but also where the debtor, although unable to pay promptly, may be able to pay if time to do so be sufficiently extended. Undoubtedly, the uncertainty as to the outcome of the New Haven reorganization introduces a complicating factor rendering it difficult to draft a satisfactory plan for reorganization of the Terminal Company. But if the New Haven proceedings continue to drag along there may come a time when the court below will deem it proper to permit the Terminal Company to try its hand at drafting and submitting a plan of reorganization which will take due aocount of the possibilities of a reorganization of the New Haven in terms favorable to the Terminal Company, and thus will be fair to the Terminal Company creditors. After all, the debtor, too, has an interest in the consummation of its reorganization without undue delay, for as long as the proceedings under § 77 are pending, the operation of its business is taken out of its hands and lodged in the hands of a trustee appointed by the court. These, and other considerations, will no doubt be weighed by the court below, in the exercise of its discretion, if the debtor, upon our remand of the case, should petition that court for an order vacating the injunction in view of the change in the situation, or if the bondholders should later petition for a still further extension of the time for filing a plan and for a continuation of the injunction during such extended period.
The appeals from the three orders of May 19, 1941, are dismissed as moot. The two orders dated November 17, 1941, and the order dated December 8, 1941, denying the debtor’s petition of November 19, 1941, to vacate the injunction, are each affirmed, with costs to the appellees.
Act of June 9, 1896, Mass. Acts and Resolves, 1896, c. 516.
Judge Hincks, in the District Court for Connecticut, in tin opinion on December 8, 1941, refusing to approve the plan of the Interstate Commerce Commission for reorganization of the New Haven, had this to say of the plan as it bore on the situation of the Terminal Company: “As a result the reorganized New Haven under the plan would be left forever liable to fulfill the obligations imposed by the Boston Terminal Act upon the New Haven, the Old Colony and the Boston & Providence. For under the plan the New Haven is "called ■upon to pay the obligations of Old Colony and Boston & Providence which are already due the Terminal Company and are now in default, and through assumption of their charters to assume their future obligations to the Terminal Company in perpetuity. Thus if the proposed plan became effective, all ground for the reorganization of the Terminal Company would disappear; its debtors would then be solvent and able to pay all the debts of the Terminal Company in full as they accrue.”
See also Craven and Puller, “The 1935 Amendments of the Railroad Bankruptey Law,” 49 Harv.L.Rev. 1254, 1262-65 (1936).
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_capric
|
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 civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. 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".
Chuck STONE et al., Appellants, v. FEDERAL CUMMUNICATIONS COMMISSIONS, Appellee. The Evening Star Broadcasting Company, Intervenor.
No. 71-1166.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 25, 1972.
Decided June 30, 1972.
Rehearing Denied Sept. 1, 1972.
Mrs. Jean Camper Cahn, Washington, D. C., with whom Messrs. Joseph M. Beck, Washington, D. C., G. Dan Bowling, Arlington, Va., and John F. Banzhaf, III, Washington, D. C., were on the brief, for appellants.
Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Richard E. Wiley, Gen. Counsel, F.C.C., John H. Conlin, Associate Gen. Counsel at the time the brief was filed, and Charles M. Firestone, Counsel, F.C.C., were on the brief, for appellee.
Mr. Howard F. Roycroft, Washington, D. C., with whom Messrs. Peter F. Rousselot and Marvin J. Diamond, Washington, D. C., were on the brief, for intervenor. Mr. William S. Reyner, Jr., Washington, D. C., also entered an appearance for intervenor.
Before BAZELON, Chief Judge, WIL-KEY, Circuit Judge, and MATTHEWS U. S. Senior District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S. C. § 294(c) (1970).
WILKEY, Circuit Judge:
The essential issue raised by this appeal is whether the Federal Communications Commission could reasonably find that the plaintiffs had not raised substantial and material questions of fact which would show prima, facie that Commission renewal of WMAL-TY’s license would not serve the public interest. For the reasons stated hereafter, we hold that the Commission could so find, and therefore affirm the Commission’s approval of WMAL-TV’s license renewal application and dismissal of the plaintiffs’ Petition to Deny the Renewal Application for a Television License.
I. Background
Plaintiffs, sixteen Washington, D. C., community leaders, challenge the Commission’s dismissal of their Petition to Deny the Renewal Application for a Television License, filed with the FCC 2 September 1969, and grant of the renewal application of the licensee-intervenor, the Evening Star Broadcasting Company, for a regular three-year term from 1 October 1969 to 1 October 1972. In their Petition to Deny plaintiffs requested the Commission to refuse the licensee-intervenor’s renewal request on the following grounds:
(1) That the licensee-intervenor’s station WMAL-TV did not adequately survey the black community in its efforts to ascertain the needs of the Washington, D. C., area;.
(2) That it misrepresented facts to the Commission;
(3) That its programming did not serve the public interest, specifically in that it did not meet the needs of the Washington, D. C., black community;
(4) That its employment practices were discriminatory against blacks; and
(5) That renewal of its license would lead to excessive concentration in the Washington, D. C., communications media.
On receiving this Petition to Deny, the Commission delayed renewal of WMALTV’s license until it had decided whether to hold a hearing on WMAL-TV’s application. This in turn depended on whether substantial and material questions of fact were present and whether plaintiffs had made a prima facie case for denial of the license.
The licensee-intervenor filed an Opposition to the Petition to Deny with the Commission 3 October 1969, seeking to rebut plaintiffs’ contentions. Plaintiffs filed a Reply to the licensee’s Opposition, responding to the licensee’s arguments. While the FCC was considering these issues, the licensee amended its renewal application to include a new survey of the needs of the residents of Washington, D. C., and the surrounding area. Plaintiffs responded with a Motion to Strike and Remove the amendment from consideration by the Commission. This motion was denied by the FCC 14 August 1970 on the grounds that any application can be amended as a matter of right prior to its designation for hearing, and that the Commission’s rules require applicants to amend in the event of significant changes in the information contained in their applications. The Commission also refused to strike material in the licensee’s amendment pertaining to events transpiring after 30 September 1969, the expiration date of WMAL-TV’s previous license, but permitted plaintiffs to sift through this material to specify precisely what they did not want the Commission to consider. Plaintiffs filed these comments 4 September 1970, and the licensee answered a week later.
On 3 February 1971 the Commission issued its decision which forms the basis for this appeal, finding no remaining substantial or material questions of fact and granting WMAL-TV’s license renewal request. The FCC specifically stated:
(1) That, taking into account the licensee’s amendment as well as the original application, it found the licensee’s survey met the Commission’s ascertainment requirements;
(2) That the record demonstrated that the licensee had not intentionally misrepresented facts submitted to the Commission concerning contacts between the licensee and certain Washington, D. C., community leaders;
(3) That plaintiffs had failed to make a prima facie case that WMAL-TV was unresponsive to community, especially black community, needs, since the station’s programming came within the discretion afforded licensees with respect to program content;
(4) That grant of the renewal application would not result in excessive concentration in the communications media and that, in any..event, this was a subject for rulemaking, then under progress ; and
(5) That no substantial question of fact remained with respect to the licensee’s uncontroverted employment statistics and that plaintiffs had not made a prima facie showing of discriminatory employment practices on the part of the licensee.
Plaintiffs thereupon brought this appeal.
II. Standards for Judicial Review
It is important at the outset to delineate the standards under which the FCC operates, which thereby become the focal point for our review of the agency’s decision.
The standards applicable to FCC conduct with respect to broadcast license applications are contained in Section 309 (d) of the Communications Act of 1934. Section 309(d) provides for granting such applications where the Commission finds, after full consideration of all pleadings submitted, that there “are no substantial and material questions of fact and that a grant of the application would be consistent with [the public interest].” In those instances where a petition to deny such an application is filed by a party, it must “contain specific allegations of fact sufficient to show... that a grant of the application would be prima facie inconsistent with [the public interest].” Where the Commission finds that such a showing has not been made, it may refuse the petition to deny on the basis of “a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by this petition.”
The legislative history accompanying the 1960 amendment of Section 309(d) indicates Congress’ intent that petitions to deny filed under the amended Section 309(d) should make
a substantially stronger showing of greater probative value than is now necessary in the case of a post grant [of initial license] protest. The allegation of ultimate, conclusionary facts or more general allegations on information and belief, supported by general affidavits, as is now possible with protests, are not sufficient.
In the event, then, that a petition to deny does not make substantial and specific allegations of fact which, if true, would indicate that a grant of the application would be prima facie inconsistent with the public interest, the petition may be denied without hearing on the basis of a concise statement of the Commission’s reasons for denial. While this court in West Michigan Telecasters, Inc. v. FCC remanded a decision of the Commission in order that the FCC might either state with particularity the reasons for its grant of a broadcast application or hold a hearing, we recognized:
Admittedly, the scope of our review is quite narrow; we defer to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or unreasonable... [a]nd it is clear that the decision of when hearings are necessary or desirable to clarify issues is one which lies in the first instance with the Commission.
Aside from the sufficiency of a petition to deny, the FCC is not required to hold a hearing where it finds, on the basis of the application and other pleadings submitted, no substantial and material questions of fact to exist and that granting the application would serve the public interest. Nor is a hearing required to resolve undisputed facts. And, where the facts required to resolve a question are not disputed and the “disposition of [an appellant’s] claims [turn] not on determination of facts but inferences to be drawn from facts already known and the legal conclusions to be drawn from those facts,” the Commission need not hold a hearing. Finally, a hearing is not required to resolve issues which the Commission finds are either not “substantial” or “material,” regardless of whether the facts involved are in dispute.
We now turn to plaintiffs’ specific objections, in order to determine whether the Commission was correct in dismissing plaintiffs’ Petition to Deny and granting WMAL-TV’s license renewal application without a hearing.
III. Plaintiffs’ Specific Objections
A. WMAL-TV’s Ascertainment Efforts
It is important to recognize the sequence of events pertaining to WMALTV’s efforts to ascertain community needs and interests, before determining whether any substantial and material questions of fact were raised as to the adequacy of those efforts. On 7 August 1969 WMAL-TV filed its application for renewal of its broadcast license; on 2 September 1969 plaintiffs filed their Petition to Deny. In December 1969 a Notice of Inquiry was issued by the Commission proposing a primer on the ascertainment of community needs by broadcast applicants. The FCC stated that this primer was intended to clarify the Commission’s requirements regarding ascertainment and that applicants whose ascertainment showings were deficient under the interim guidelines set forth in the Notice of Inquiry “can amend as a matter of right prior to designation for hearing.” On 12 May 1970 WMALTV amended Part I, Section IV-B of its renewal application, which deals with ascertainment of community needs.
Plaintiffs challenge the adequacy of WMAL-TV’s ascertainment efforts on three grounds: (1) that WMAL-TV’s initial ascertainment efforts, as reflected in their application for renewal filed 7 August 1969, failed to meet the required standards of representativeness; (2) that the FCC’s admission and use of WMAL-TV’s “amendment” filed 12 May 1970 was improper in view of prior Commission and judicial practice; and (3) that the ascertainment efforts reported in this “amendment” failed to comply with Commission requirements.
It may be true that WMALTV’s initial ascertainment procedures failed to meet the required standards of representativeness. This initial failure, however, is not dispositive of the case. If the FCC’s admission and use of the “amendment” is found to be proper, it is not enough for the plaintiffs to establish the existence of substantial and material questions of fact regarding the first ascertainment. If the amendment is permitted, the plaintiffs must show instead that even after the amendment a substantial and material question of fact still existed.
With respect to the second objection, plaintiffs assert first that WMAL-TV’s “amendment” was actually a supplemental pleading whose admissibility was barred by the FCC’s Rules and, second, that Commission acceptance of the “amendment” violated its own policy against “upgrading.” As for the first ground, that WMAL-TV’s “amendment” qualified as a supplemental pleading and should have been barred in the absence of FCC approval of its being filed as such, plaintiffs’ assertion overlooks the fact that the Commission was not required to make such a determination. Section 1.522(a) of the Commission’s Rules states that “any application may be amended as a matter 'of right prior to the adoption date of an order designating such application for hearing.” and that “[i]f a petition to deny... has been filed, the amendment shall be served on the petitioner.”
Clearly then, Section 1.522(a) is intended to apply to an application against which a petition to deny has been filed. And, as the Commission indicated in its Notice of Inquiry proposing a new primer on the ascertainment of community needs by broadcast applicants, “Mpplicants whose showings [with respect to ascertainment] are deficient can amend as a matter of right prior to designation for hearing.... ” When the FCC subsequently adopted the final version of its Primer on Ascertainment of Community Problems by Broadcast Applicants, it specifically permitted applicants in hearing to amend their applications “...if deemed necessary in view of our action here.. ” Prior and subsequent Commission practice accords with this interpretation. The Commission has even requested this court to remand several cases in which the applicants were contesting adverse FCC decisions regarding ascertainment showings, in order to afford those applicants an opportunity to amend their community surveys.
As for plaintiffs’ assertion that Commission acceptance of WMAL-TV’s amendment violated its own policy against “upgrading,” the FCC’s policy against last-minute upgrading pertains to programming performance, not ascertainment. The ascertainment of community needs and interests is prospective in orientation; it is directed at proposals for future programming, not past programming. There is thus a reasonable distinction between allowing last-minute upgrading of ascertainment performance, as opposed to last-minute improvements in programming; the Commission’s rule in favor of amendments to ascertainment findings works no harm to the public interest.
Plaintiffs’ third objection — that WMAL-TV’s ascertainment efforts as amended failed to comply with Commission requirements — relates both to the content and manner of WMAL-TV’s ascertainment efforts. As for the former, plaintiffs emphasize WMAL-TV’s obligation to serve the needs and interests of the community of license, primarily in their view Washington, D. C., and secondarily the surrounding communities within WMAL-TV’s Grade A contour. While the proper obligation in this respect is treated in detail infra,, it is not necessary to reach it here, as it is clear that WMAL-TV did in fact primarily survey Washington, D. C. Of 104 community leaders contacted in the amended survey by the Evening Star Broadcasting Company, 49 represented the District of Columbia, 34 nearby Maryland counties, and 21 nearby Virginia counties. These figures reflect each area’s percentage of the metropolitan area population, except for Washington, D. C. As the Commission noted, “Since Washington, D. C., is WMAL-TV’s city of license, WMAL-TV doubled the number... of community leaders to be interviewed in Washington.”
As for plaintiffs’ other objections with respect to the content of WMAL-TV’s ascertainment efforts, none raise substantial and material questions of fact making a prima facie case for FCC denial of WMAL-TV’s license renewal application. The combination of the scientific statistical survey of Washington area residents, the Fisher survey (focusing on interviews with inner city residents) and the emphasis placed by WMAL-TV on interviewing Washington, D. C., community leaders — in relation to population nearly double the number (49) of those interviewed from suburban Maryland (34) and Virginia (21) —demonstrate that plaintiffs’ objections are unavailing in this regard.
With respect to the methods employed by WMAL-TV to fulfill its ascertainment obligations, plaintiffs complain first of WMAL-TV’s use of preprinted forms for consulting both community leaders and the general public. However, this neglects the fact that the questionnaires were used in lieu of, but in conjunction with, personal interviews, as a means of compiling and digesting the variety of information collected. The FCC’s Primer, as finally adopted, provides that “ [a] questionnaire [or preprinted form] may serve as a useful guide for consultations with community leaders, but cannot be used in lieu of personal consultations.” Furthermore, it was permissible, indeed desirable, to use the same forms to summarize interviews with the general public as well as with community leaders. While the purpose of consulting members of the general public is “to further ascertain community problems which may not have been revealed by consultations with community leaders,” a random sample of the general public is sufficient to meet this requirement and the use of different forms is not required. In addition, both the proposed and final Primers also state that it is not necessary that the information elicited from a community leader be set forth after his name, but simply that “the information can be set forth in a general list of community problems.”
[Djirect consultation with community leaders by the licensee’s management personnel is important to our ascertainment process. The licensee maintains close personal association with federal state, and local officials, civic leaders, and representatives of religious, business, educational, and cultural organizations. Station executives, the news staff, the editorial director, the public affairs staff, and air personalities communicate with these community leaders throughout the year in order to broaden our understanding of the needs of our community. The associations WMALTV personnel maintain with the individuals and organizations listed here represent a daily and continuing activity and result from active and regular participation in their civic and charitable efforts. (Appendix, pp. 31-32 (emphasis supplied).)
B. WMAL-TV’s Alleged Misrepresentation of Fact
Plaintiffs allege that WMAL-TV misrepresented the extent of its contact with black Washington, D. C., community leaders in regard to the station’s ascertainment of community needs. In Exhibit C of its original application, WMAL-TV used the words “close personal association” and “daily and continuing activity” to describe this contact. Plaintiffs submitted affidavits from eight of the leaders listed in Exhibit C to the effect that WMALTV did not maintain “close personal associations” with each of them individually on a daily or continuing basis. WMAL-TV responded to these allegations by presenting affidavits from its staff members detailing their contacts with these and community leaders in general.
The Commission concluded on the basis of these statements that the use of the words “close personal association” and “daily and continuing activity” did not raise a substantial question of a deliberate attempt on the part of WMAL-TV to deceive the Commission. In the context of the application as a whole and on the basis of the affidavits submitted by WMAL-TV in its Opposition, the FCC concluded that the station’s contact with Washington, D. C., community leaders, including black community leaders, was sufficiently regular to qualify as “continuing.” Nor was it1'reasonable to interpret the word “daily” as meaning that the licensee claimed to keep contact daily with each of the community leaders. While use of these words was perhaps careless on the part of WMAL-TV, the only issue is whether the licensee intended to mislead the FCC. It was well within the discretion of the Commission to decide that there was no intent on the part of the station to deceive. As this court has stated on this very point:
[Q]uestions respecting misrepresentations of fact are, perforce, fact questions peculiarly within the province of the Commission to consider. As long as the Commission is cognizant of the issue raised and, upon the record, reasonably resolves that issue on behalf of an applicant, this court will not, and cannot, set that determination aside.
C. Responsiveness of WMAL-TV’s Programming
The determination of whether WMAL-TV’s programming raises a substantial and material question of fact with respect to its responsiveness to community needs and interests requires first delineating the station’s service area obligations. In the situation presented by the case at bar, WMAL-TV’s service area.consists of its city of license, Washington, D. C., and the surrounding areas of Maryland and Virginia. While plaintiffs argue that WMAL-TV has a primary obligation to serve the needs and interests of its city of license, with its 70% black population, and that the station’s programming should therefore be commensurate with this figure, it is not necessary for us to resolve this issue. In the first place, the Commission in the case at bar recognized “... the fact that the problems of most cities are particularly complex and pressing and require great efforts on the part of the licensee to fulfill its responsibilities.” The FCC further stated:
Petitioners assert... that the special problems of the District of Columbia (problems enumerated in the Petition to Deny) give rise to a need for specific programming designed to meet the needs and interests of the community. With this contention there is no dispute, but we are of the opinion that the licensee has, by the programming noted in the foregoing paragraphs and in its Opposition, clearly shown that it has broadcast numerous programs which are of particular interest to the District of Columbia’s majority Black population.
In the second place, it is clear that a broadcast licensee has an obligation to meet the needs and interests of its entire area of service. This is particularly the case with respect to television stations, in view of the limited number of stations. Suburban and other outlying area are not cities of license, although their needs and interests must be met by television stations licensed to central cities.
How a broadcast licensee responds to what may be conflicting and competing needs of regional or minority groups remains largely within its discretion. It may not flatly ignore a strongly expressed need; on the other hand, there is no requirement that a station devote twenty percent of its broadcast time to meet the need expressed by twenty percent of its viewing public. Until this problem is addressed in a rule-making procedure, the scope of FCC review remains whether or not the licensee has reasonably exercised its discretion.
The Commission, after considering plaintiffs’ objections in regard to the alleged lack of WMAL-TV responsiveness to community, particularly black community, needs and interests, found that they did not raise questions of fact of such a material and substantial nature to require a hearing. What the Commission found to be in dispute were not the facts, but rather the conclusions to be drawn as to whether the renewal of WMAL-TV’s license would be contrary to the public interests. For example, in the record there is a one-month sample news program of WMAL-TV, which arguably shows a concentration on the District of Columbia proper. The Commission found that this programming was responsive to community needs. There was no challenge to the fact that these programs were broadcast. The plaintiffs made the argument before the FCC that this programming was inadequate, and this argument was rejected. We fail to see that a full-scale hearing would have added anything for either the Commission or this court to consider.
The Commission found, and we agree, that plaintiffs’ objections here lack the requisite specificity. They are largely conclusory and in most instances are not tied to specific programming deficiencies. Where they are so tied, they fail to indicate whether non-blacks are accorded different, more positive treatment For plaintiffs simply to object to the quality of WMAL-TV’s programming in general and conclusory terms offers the Commission little assistance in terms of the guidelines which it requires to implement policy changes. Furthermore, such generalized criticisms run the risk of turning the FCC into a censorship board, a goal clearly not in the public interest. Of course, there must exist in this area a delicate balance between the maintenance of a free competitive broadcast system and reasonable restrictions on such freedom in the public interest, in view of the scarcity of airwaves for broadcasting. In the absence of a competing broadcast application situation, where a hearing is required, plaintiffs bear a substantial burden of specificity, a burden they have not met in the case at bar. The Commission’s interpretation of its policies not being arbitrary or unsupported by substantial evidence, must be permitted to stand.
Plaintiffs’ specific objections as to the number of blacks who have appeared on WMAL-TV religious programming are not borne out in view of the following: First, of the 55 needs and problems suggested by 104 community leaders in WMAL-TV’s amended ascertainment showings, and of the 21 needs suggested by the random sampling of 200 private citizens, none related to religious programming. At least some doubt is thus shed on plaintiffs’ conclusory statements as to the relative importance of religion for members of the black community.
Secondly, a number of black clergymen and laymen did in fact participate in WMAL-TV’s religious programming, as well as in a wide variety of other public affairs programming. This participation was of a sufficiently high order to remove the FCC’s findings from the category of arbitrary or capricious.
A more fundamental objection made by plaintiffs — to the quality of television programming in general, both with respect to black and all citizens’ needs and interests- — is more suitable for rule-making, where all viewpoints may be aired.
D. WMAL-TV’s Employment Policies and Practices
As the figures with respect to minority group employment submitted by WMAL-TV in its Opposition to the Petition to Deny were not controverted by plaintiffs and no specific instances of refusal by WMAL-TV to hire on racial grounds were alleged, the sole question before the Commission in this regard was whether the aggregate picture presented by WMAL-TV’s employment policies and practices made a prima facie case for refusing to renew the station’s license. Under Section 73.680 of the Commission’s Rules, television licensees are prohibited from discriminating on the basis of, inter alia, race in employment policies and practices. However, as the Commission noted in an earlier case, “Simply indicating the number of Blacks employed by the licensee, without citing instances of discrimination or describing a conscious policy of exclusion, is not sufficient to require an evidentiary exploration.”
In that case, as in the one at bar, the affidavits of the licensee regarding recruitment of minority group members and their placement in a variety of positions, not simply menial jobs, were sufficient to rebut any allegations of discrimination in that respect.
E. Concentration in the Washington Area Communications Media
While plaintiffs allege no specific abuses resulting from the fact that the Evening Star Broadcasting Company, the licensee of WMAL-TV, also owns two radio stations in Washington, D. C., and is in turn owned by the publishers of The Evening Star, one of the city’s daily newspapers, they contend that these facts in themselves warrant a hearing on the question of undue concentration in the communications media.
Commission renewal of WMAL-TV’s broadcast license, initially awarded in 1946, is in accord with its present multiple ownership rules. These rules do provide that the facts of each case are to be considered in terms of the number of people served and the extent of competition, in order to determine whether there is a concentration detrimental to the public interest. This has been interpreted by the FCC to mean that hearings are appropriate where specific abuses are alleged to have resulted from the nature of the ownership structure.
In the absence of allegations of specific abuses arising from the Evening Star Broadcasting Company’s ownership of WMAL-TV, and since the situation presented by the case at bar falls within the scope of the Commission’s present multiple ownership rules, concentration of ownership of the communications media is not a proper basis for disapproving a license renewal request.
What plaintiffs are actually challenging is the wisdom of the Commission’s multiple ownership rules. However, as noted above, the FCC is currently investigating — in the context of a rule-making proceeding — -whether it should adopt rules which would require divestiture by newspapers or other multiple owners in a given market. And, as this court has stated, rulemaking proceedings are the most appropriate forum for Commission consideration of basic changes in policy.
IV. Conclusion
For the reasons discussed above, the action of the Commission approving WMAL-TV’s license renewal application and dismissing plaintiffs’ Petition to Deny is accordingly Affirmed.
ON APPELLANTS’ PETITION FOR REHEARING
ORDER
On consideration of appellants’ petition for rehearing, it is
Ordered by the Court that appellants’ aforesaid petition is denied.
PER CURIAM:
Petitioners, sixteen Washington area community leaders, ask this panel to reexamine its decision affirming the Federal Communications Commission’s approval of WMAL-TV’s license renewal and dismissal of petitioners’ Petition to Deny the Renewal Application. Petitioners contend that four major issues require reconsideration:
(1) The court failed to recognize that WMAL violated its special and separate duty to ascertain the tastes, needs and desires of its community of service during its license period.
(2) The court improperly rejected petitioners’ statistical prima facie showing of employment discrimination by WMAL during 1966-1969.
(3) The court failed to respond to petitioners’ contentions that WMAL’s programming was not responsive to the tastes, needs and desires of the majority black community in Washington, D. C.
(4) The court applied an inappropriate standard of review in holding that petitioners were not entitled to a hearing on whether WMAL had misrepresented its contacts with black community leaders in its license renewal application.
We hold that none of these contentions requires a rehearing of this case, but we take this opportunity to make the following comments.
In our panel opinion, we held that it was not harmful to the public interest to allow a licensee to submit an amendment to its prospective ascertainment findings, even after a Petition to Deny has been filed. The FCC’s rule permitting such amendments is clear and has been consistently implemented. Such a rule is not contrary to the public interest because of the prospective nature of renewal ascertainment efforts, particularly when in the interim the ascertainment standards are refined and codified.
However, it would be unreasonable and harmful to the public interest for the FCC to acquiesce in a pattern of this behavior. If in the future any individual licensee persists in waiting for a Petition to Deny, or withholds ascertainment findings of its own to remedy its prospective efforts, this could amount to bad faith and should not be countenanced. At the very least it would raise an issue requiring designation for hearing, since allowing repeated submission of last minute amendments might well encourage some licensees to run the risk of engaging in similar dilatory conduct on the chance that no one would be watching.
Furthermore, acquiescence in a pattern of such conduct might discourage representatives of the public from submitting Petitions to Deny, since it would convey the message that the renewal process is a meaningless exercise, or a never-ending battle for which they have insufficient resources. This is not our view. The participation of petitioners in this case was effective in forcing WMAL to conform its prospective ascertainment to current FCC standards, and in pointing out that future deviation will not be tolerated. We do not view this as defeat for petitioners, but as successful public intervention which this court has consistently welcomed as serving the public interest.
Although a petitioner may not succeed in depriving a broadcaster of its license, there remain numerous ways— for example, more vigorous ascertainment responses, and economic, moral and social pressures — in which a unified community can shape the programming of a licensee, and which effectively supplement the constitutional and statutory authority of the FCC.
Finally, our opinion does not hold that statistical evidence of an extremely low rate of minority employment will never constitute a prima facie showing of discrimination, or “pattern of substantial failure to accord equal employment opportunities.” Petitioners’ evidence was not an adequate showing in this case because their assertion that WMAL’s record stood at 7% black employment in an area 70% black was somewhat misleading. In evidence before the FCC was data that approximately 24% of the entire Washington, D. C. metropolitan area is black. WMAL’s employment of approximately 7% blacks out of this total metropolitan area is within the zone of reasonableness.
Petitioners’ remaining contentions are adequately dealt with in our original opinion. Accordingly, the petition for rehearing is Denied.
. Appendix, pp. 266-499.
. The plaintiffs are Chuck Stone, Julius W. Hobson, Charles I. Cassell, Isaac Long, Kenneth C. Kennedy, John M. Thornton, Etta M. Horn, Douglas Moore, Channing E. Phillips, Roena J. Rand, Julius Mack, Willie P. Hardy, William D. Wright, Calvin W. Rolack, Marion Barry, Jr., and Walter E. Fauntroy, as individuals and as representatives of certain organizations listed in Brief for Appellants, p. 3.
. Evening Star Broadcasting Company, 27 F.C.C.2d 316 (1971).
. As required by 47 Ü.S.C. § 309(d) (1), as amended 1960.
. Appendix, pp. 500-679.
. Id., at 680-825.
. Id., at 826-907, pursuant to the Commission’s Rules, 47 C.F.R. §§ 1.65, 1.522.
. Evening Star Broadcasting Company, 24 F.C.C.2d 735 (1970).
. See note 3, supra.
. 47 U.S.C. § 309(d), as amended 1960.
. Id., at § 309(d) (1).
. Id., at § 309(d) (2).
. S.Rep. No. 690, 86th Cong., 1st Sess. 3 (1959). See also H.Rep. No. 1800, 86th Cong., 2d Sess. 12 (1960). The protest after initial grant of license referred to above was that provided for in then Section 309(c), which required ‘-‘merely an articulated statement of Boms' fact or situation which would tend to show, if established at a hearing, that the grant of the license contravened public interest, convenience and necessity, or that the licensee was technically or financially unqualified, contrary to the Commission’s initial finding.” Federal Broadcasting System v. FCC, 96 U.S.App.D.C. 260, 263, 225 F.2d 560, 563, cert. denied, WHEC Inc. v. Federal Broadcasting System, 350 U.S. 923, 76 S.Ct. 212, 100 L.Ed. 808 (1955).
. 130 U.S.App.D.C. 39, 42, 396 F.2d 688, 691 (1968). See also Southwestern Operating Co. v. FCC, 122 U.S.App.D.C. 137, 138, 351 F.2d 834, 835 (1965), where this court expressed “no doubt that Congress intended to vest in the FCC a large discretion to avoid time-consuming hearings in this field whenever possible, and we would ordinarily defer to that purpose.”
Furthermore, plaintiff’s reliance on Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), is misplaced. In the first place, there is no dispute in the case at bar as to plaintiffs’ standing to challenge WMAL-TV’s license renewal application. More importantly, plaintiffs’ allegations lack the specificity which characterized those in United Church of Christ: There is no evidence presented from any monitored week, nor a long history of complaints requesting a certain type programming. There is no pattern of facts presented which points to the existence on the part of WMAL-TV of a policy of racial discrimination. In addition, in contrast to United Church of Christ, the FCC has not granted WMAL-TV merely a short-term renewal of its license while finding that the facts before it would not justify a determination that the public interest would be served by approving full renewal. Instead, the Commission has here found that full renewal of WMAL-TV’s license would be in the public interest.
. See note 12, supra.
. See Marsh v. FCC, 140 U.S.App.D.C. 384, 387-388, 436 F.2d 132, 135-136 (1970), where we noted “Only where the public interest cannot be determined without a resolution of disputed facts has Congress dictated that the Commission must conduct a hearing.”
. Anti-Defamation League v. FCC, 131 U.S.App.D.C. 146, 148, 403 F.2d 169, 171 (1968).
. See 47 U.S.C. § 309(d) (2), (e), as amended 1960. The legislative history provides a definition of “material question of fact”:
For the purposes of sections 309(d) and (e) a “material question of fact” is a question of fact which is material to determination of the question whether the public interest, convenience, or necessity would be served by the granting of the application with respect to which such question is raised.
H.Rep.No. 1800, 86th Cong., 2d Sess. 12 (1960) U.S.Code Cong. & Admin.News, p. 3520.
. 20 F.C.C.2
Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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 v. Calvin L. RANDOLPH, Appellant.
No. 23222.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1970.
Decided Dec. 22, 1970.
Bazelon, Chief Judge, concurred in part and dissented in part and filed opinion.
Mr. Grant Stetter, Washington, D.C. (appointed by this court), for appellant.
Mr. John O’B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
The office of Lea’s Green Meadows, Inc. (Lea’s), a wholesale food enterprise, was held up and robbed at about 11 A. M. on November 8, 1968 by two men. Appellant Calvin Randolph was subsequently convicted by a jury on two counts and sentenced to a term of imprisonment for robbery and assault with a dangerous weapon. He appeals and we affirm.
I
At trial, the single contested issue was the identification of the accused and the Government presented an abundance of proof that Randolph was the robber in the dark raincoat who participated in the holdup using a sawed-off shotgun.
Otis Davis, a truck driver for Lea’s, testified that he had known Randolph for about one or two years, had seen him quite a few times, had been in games with him, they had loaned each other money, and he identified Randolph as the defendant. He further testified that between 10:30 A.M. and 11 A.M. on the day of the robbery he saw Randolph with Anthony McDonald (also later identified as one of the robbers) about two blocks away from Lea’s Green Meadows; that Randolph was wearing a dark green or black coat; that Randolph asked him where he was going and he told him he was going back to the plant (Lea’s Green Meadows), whereupon Randolph asked if he had any money and Davis said no and they parted going in opposite directions, Davis toward the plant.
Mr. Lea, the proprietor of Lea’s Green Meadows, testified he and others in his plant were held up at about 11 A.M. on November 8, 1968, that Randolph was one of the robbers, that the lighting was good in the plant at the time of the robbery, that Randolph first engaged him in conversation from a distance of about two feet before he held him up, that he had a good opportunity to view Randolph at that time and once or twice later in the holdup and that Randolph was not disguised. Later in the day of the robbery, Mr. Lea looked at several albums of pictures of possible suspects shown him by the Robbery Squad but did not identify any of the photographs and also did not identify any of the suspects he saw at Randolph’s apartment that same day. Within about a week of the crime, without any assistance, Lea identified a photograph of Randolph from nine or ten photographs shown to him at that time. He also made a lineup identification of Randolph and Me- ‘ Donald on December 10, 1968 and an in-eourt identification of Randolph at trial. Mr. Lea further testified that Randolph wore a (a) dark raincoat at the time of the robbery, that he held him up with a (b) sawed-off shotgun and carried away the proceeds of the robbery (over $500) in an (c) El Producto cigar box. These details assumed particular significance as the trial progressed.
Rogers, the shipping clerk at the plant, who was also held up corroborated Mr. Lea’s testimony of the circumstances of the robbery, the time of the holdup, the use by one robber of the sawed-off shotgun and that one of the robbers wore a black or dark green raincoat. Rogers, also without any assistance, from about 15 or 20 photographs shown him within the week after the robbery, made a photographic identification of Randolph (“[T]his is him.”) as being the robber in the dark raincoat who used the sawed-off shotgun (about two feet long) and made an in-court identification of Randolph. However, Rogers did not attend the lineup on December 10, 1968 when Mr. Lea testified he identified Randolph and McDonald.
Further significant evidence supporting the conclusion that Randolph was one of the robbers was adduced through the testimony of Officer Charles A. Mussomele (a 7-year veteran police officer) who testified that he knew Randolph previously, that on the day of the robbery at about 10:55 A.M. he was cruising in a police car about two blocks away from Lea’s Green Meadows when he saw two men walking very hurriedly on the side of the street; they appeared nervous as they kept looking around, their manner aroused his suspicions and he decided to stop them; he cruised to within about 14 feet of them and called to appellant “Calvin” [Randolph] by name to stop but both suspects ran away. He had observed Randolph carrying (a) something black under his arm (it looked about the way a black raincoat looks rolled up), and a (b) sawed-off shotgun under the light trench coat he was wearing at that time. Randolph was in the company of the other man who was carrying an (c) El Producto cigar box. Mussomele testified further that he chased the two men but was not able to apprehend them at that time. He made an in-court identification of Randolph and testified that the other man with him was about 21 years old, about 6 feet tall and had a mustache, goatee and light skin. The description fit that of McDonald.
There was thus ample evidence, both direct and circumstantial, that Randolph committed the offenses of which he stands convicted.
II
The principal issue on this appeal concerns the introduction in evidence of Lea’s identification of appellant at the lineup held on December 10, 1968. Specifically, appellant argues that he was not represented by counsel at the lineup and that the introduction of the identification at trial therefore violates the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
On December 10, Lillian Havenner, a bookkeeper at Lea’s Green Meadows, and Lea viewed a lineup in which both appellant and McDonald appeared. At the time of the lineup, appellant had not been arrested for the instant robbery and consequently did not have counsel in this case. However, he had been arrested previously on another robbery charge and counsel had been appointed to represent him on that charge. Appellant had been ordered to appear in the December 10 lineup in connection with the second robbery charge and his counsel on the other charge had been notified of the lineup and invited to attend. This he did not do. A lawyer for the Legal Aid Agency, Mr. Christensen, was present at the lineup, however, and testified that he
was a general representative lawyer there to represent those defendants who were unrepresented by counsel for purposes of that line-up.
Appellant does not contest the fact that Mr. Christensen was present at the lineup but argues instead that Christensen was not representing him for purposes of the lineup. On this issue, the evidence was somewhat ambiguous. Christensen testified twice on the matter, first, at the pretrial hearing held on appellant’s motion to suppress Lea’s lineup identification and, secondly, at the trial which followed. At the pretrial hearing, his testimony was that he attended a great many lineups, that he had no independent recollection of the instant one and that such testimony as he could give was based exclusively on the notes he had contemporaneously written on the separate cards he used to record the circumstances surrounding each lineup. He further testified that he had attended 14 lineups on the night of December 10, that his notes reflected that appellant was present on the stage but that he interpreted his notes to indicate that he “did not conduct a line-up” with appellant and that he “never had [appellant] particularly in mind as the defendant [he] represented.” He did, however, represent other persons suspected of participation in the same robbery who were present in the lineup, and made no objection to the lineup itself.
At trial the next day, Christensen modified his pretrial suppression hearing testimony somewhat to indicate that, although his attention was focused on another person in the lineup, he was representing appellant in a “general” way. On his cross-examination, it was also elicited that among the notes he made of the lineups he attended on December 10th was one which had appellant’s name at the top of the card relating to lineup 19. He further testified that it was his general practice to place the name of the person whom he was representing at the top of the card on which he wrote his notes concerning the lineup in which that person was involved.
Both at the pretrial hearing and at trial, Christensen testified that his lineup notes indicated that Lea did identify McDonald at the lineup. There was no indication on his notes that Lea had identified appellant, however, and from the absence of such indication, Christensen concluded that Lea had not identified appellant. However, Lea and two detectives who were present at the lineup testified that Lea did identify appellant and the police records of the lineup, which were admitted in evidence, indicated that he had.
Based on the foregoing, we are of the opinion that it was not erroneous for the trial court to conclude that appellant was represented by counsel at the lineup and therefore it was not error for testimony to be admitted concerning Lea’s lineup identification of appellant. Since Christensen had no independent recollection of the circumstances surrounding the lineup, great weight must be placed on his contemporaneous notes which recorded certain facts. See generally Zassenhaus v. Evening Star Newspaper Co., 131 U.S.App.D.C. 384, 387 n.18, 404 F.2d 1361, 1364 n.18 (1968); United States v. Riccardi, 174 F.2d 883 (3d Cir.), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The notes themselves were admitted into evidence without objection and, when Christensen’s testimony concerning his function at lineups is added to them, we think that it was permissible for the trial court to rely upon them and to conclude that he was representing appellant at the lineup.
The fact that Christensen’s notes do not indicate whether or not Lea identified appellant does not alter this conclusion. Obviously it would have been better if Christensen’s recollection of the circumstances surrounding the lineup were such that he could made a definite statement as to whether Lea did or did not identify appellant. See United States v. Wade, 388 U.S. 218, 230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, 1234, cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). However, Christensen could have missed hearing Lea’s identification in the general atmosphere surrounding the lineup. Even if his testimony is taken as indicating that Lea did not identify appellant, this testimony would be for the jury to evaluate in determining how much weight should be given to the identification in reaching its ultimate conclusion. Cf. United States v. Williams, 137 U.S.App.D.C. 231, 232-233, 421 F.2d 1166, 1167-1168 (1970).
Assuming, however, that appellant was not represented by Christensen, and that the admission of Lea’s lineup identification was error, we conclude that the error was harmless.
To summarize the testimony, Randolph was observed, by a person who knew him, near Lea’s Green Meadows shortly before it was robbed and was observed, again by a person who knew him, minutes after the crime, about two blocks from the scene of the crime, carrying a sawed-off shotgun, in the company of a person who was carrying an El Producto cigar box, the same brand of cigar box which was taken in the robbery. Mr. Rogers, an employee at Lea’s identified Randolph from photographs as being one of the men who robbed him and was able also to identify Randolph in court even though he had not viewed the lineup. In addition, there was testimony of three witnesses that Randolph was wearing a dark raincoat at the time and one testified he was carrying what could have been such a raincoat; the same three witnesses testified that the man with Randolph at the time was McDonald or at least a man who met McDonald’s description. The five identifications of appellant (excluding Lea’s lineup and in-court identifications) were unequivocal. Finally, Lea had an excellent opportunity to observe appellant under good lighting conditions at the time of the crime and without any assistance selected appellant’s photograph from a group of photographs shortly after the robbery. We are of the opinion that his in-court identification of appellant had a source independent of the lineup and was therefore admissible on its own. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; Clemons v. United States, supra, 133 U.S.App.D.C. at 34, 408 F.2d at 1237.
There was thus strong uncontroverted testimony (appellant did not testify) connecting appellant with the crime and the admission of Lea’s lineup identification was cumulative. If the admission of the lineup identification constituted error, based on our evaluation of its impact on the minds of the jury, we conclude that it did not contribute to their verdict and was thus harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gilbert v. California, supra, 388 U.S. at 274, 87 S.Ct. 1951; Chapman v. California, 386 U.S. 18 at 24, 87 S.Ct. 824, 17 L.Ed. 2d 705; Willard v. United States, 421 F.2d 59, 60 (9th Cir. 1969), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 572 (1970); see Long v. United States, 137 U.S.App.D.C. 311, 316-317, 424 F.2d 799, 804-805 (1969); Taylor v. United States, 134 U.S.App.D.C. 246, 248-249, 414 F.2d 1142, 1144-1145 (1969); Solomon v. United States, 133 U.S.App.D.C. 103, 106, 408 F.2d 1306, 1309 (1969).
We have carefully examined appellant’s other contention and find no error.
Affirmed.
. There was conflicting testimony on this point. See pp. 731-732, infra.
. Mrs. Havenner worked in the back room in Lea’s Green Meadows and saw only one of the robbers. She testified at trial that the robber she saw had a pistol (not the sawed-off shotgun which the testimony of other witnesses indicated that appellant was carrying), that he wore a brown scarf over his face from his nose down and that one of the men she saw at appellant’s apartment shortly after the robbery “looked like the one [she] saw” during the robbery. At the suppression hearing, there was testimony that she identified a person other than appellant or McDonald at the lineup. She made no in-eourt identification and no testimony was elicited concerning her participation in the lineup.
. Appellant was exhibited to witnesses in the instant case pursuant to an “Adams” order issued by the Court of General Sessions. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).
. Christensen was thus a “substitute” counsel. See United States v. Wade, 388 U.S. 218, 219, 237 n. 27, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Russell v. United States, 133 U.S.App.D.C. 77, 80, 408 F.2d 1280, 1283, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). We have indicated that the right to counsel extends to pre-indictment lineups, such as the one here and have discussed substitute counsel in that context. Mason v. United States, 134 U.S.App.D.C. 280, 282, 414 F.2d 1176, 1178 (1969). See also, United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970).
. Transcript, Vol. I, at 24:
Q. You have no independent recollection who the officer was?
A. I have no independent recollection of the line-up.
Q. No independent recollection of the line-up at all?
A. Correct.
Q. Everything you told us came from these notes?
A. That is correct.
. In Christensen’s terms, however, a “lineup * * * [is] when a witness comes in the line-up room and looks at the line-up men.” His testimony that he attended 14 lineups does not mean that he attended 14 separate arrays of suspects but merely that 14 separate witnesses looked at the lineups.
. Prom the pictures of the lineup, it does not appear to have been suggestive in any way and appellant does not contend here that it was.
. We express no view on the question of whether, in a different case, a substitute counsel’s inability to recall more of the circumstances surrounding a lineup than Mr. Christensen recalled here would meet the constitutional requirement of effective assistance of counsel. In such a case, the questions posed by Judge Bazelon may well be crucial. See page 734 infra. Here, however, the only issue raised concerning the events which took place at the lineup was whether Lea did or did not identify appellant. At its strongest, Mr. Christensen’s testimony indicates that he did not, thus presenting a jury question.
. Davis, Lea and Rogers indicated that appellant was wearing the coat and Mussomele said he had it rolled under his arm. Davis and Mussomele knew appellant previously.
. Davis as to his presence on the street two blocks away from Lea’s Green Meadows prior to the robbery; Rogers as to his photographic and in-court identifications; Lea as to his photographic identification; and Mussomele as to his identification two blocks away from Lea’s Green Meadows on the street after the robbery.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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".
SOUTHWEST OFFSET, INC., Plaintiff-Appellant, v. HUDCO PUBLISHING CO., INC., Defendant-Appellee.
No. 79-3071
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 23, 1980.
Jack Hill, Dallas, Tex., for plaintiff-appellant.
Freytag, Marshall, Beneke, Laforce, Rubinstein & Stutzman, Stephen L. Hubbard, Karl L. Rubinstein, Dallas Tex., for defendant-appellee.
Before GEE, HENDERSON and HATCHETT, Circuit Judges.
Fed.R.App.P. 34(a); 5th Cir. R. 18.
PER CURIAM:
Southwest Offset, Inc. (“Southwest”), a Texas contract printer, appeals the dismissal for want of jurisdiction of its diversity suit on a series of contracts against Hudco Publishing Company, Inc. (“Hudco”), an Alabama publisher of suburban telephone directories operating in Alabama and Mississippi only.
After we remanded for clarification of its findings of fact, the district court found, among other things, that Southwest, a Texas corporation, solicited Hudco’s business through Southwest’s sales representative in Alabama. After the initial order was placed with the sales representative, Hudco placed subsequent orders, approximately eight, either in writing or over the phone. No one associated with Hudco ever came to Texas in connection with the orders placed with Southwest. Payment for the orders was to be made at Southwest’s office in Dallas, Texas, and Hudco did mail some payments for these orders to Dallas. As a necessary part of Southwest’s printing process, Hudco mailed to Southwest’s office camera-ready copy of the telephone directories. Southwest, after preparing printing plates from the camera-ready copy, would print proofs and send them to Hudco for corrections. After Hudco examined the proofs, it would return corrected proofs to Southwest. The books would then be printed and shipped to Hudco F.O.B. Dallas. All the directories that are the subject matter of this suit were printed in Texas, and Hudco knew from the outset that Southwest’s only printing plant was located in Texas.
On the basis of the above facts, the court below concluded that personal jurisdiction was lacking over defendant, although the literal provisions of Texas’ long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b, were satisfied. The trial court held:
It would not be fair and reasonable to require the Defendant to come into Texas and defend this action considering the lack of purposeful activity by Defendant in Texas, the relative convenience of the parties (Defendant only doing business in two southeastern states balanced against the larger operations of Plaintiff which is soliciting orders throughout the United States), and the lack of minimum contacts with Texas. Moreover, Defendant has not purposefully availed itself of the privilege of conducting activity in Texas, and thus has not invoked the benefits and protections of its laws.
In so holding, the trial court rejected the applicability of Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), and considered U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), to be controlling. We disagree and reverse.
As an initial matter, we reaffirm the principle that, in the determination of whether a foreign corporation should be required to defend itself in a suit in Texas arising out of a contract between it and a Texas corporation, each case must be decided on its own facts. See Product Promotions, Inc. v. Cousteau, 495 F.2d at 499; see also Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Nonetheless, guiding principles may be found in the facts of other cases. In Cousteau, for example, a foreign corporation (CEMA) entered into a contract with a Texas corporation to test a device designed to attract fish. The contract was held to have been made in Texas, see 495 F.2d at 495, and under its terms, CEMA was to test the device and prepare a report and a film for television and other advertising promotions. The film and reports were sent to Dallas, and although CEMA had performed no physical act within the state, its activities in sending the report and film to Texas were adequate to support an inference of an “affirmative, purposeful decision ... to avail itself of the privilege of conducting some business in Texas.” Id. at 496.
By contrast, the parties in U-Anchor Advertising, Inc. v. Burt, supra, entered into a single written contract in Oklahoma, the contract having been solicited by a salesman in Oklahoma for U-Anchor. Defendant Burt agreed to pay U-Anchor $80 a month at its office in Amarillo, Texas, and U-Anchor constructed the signs in Amarillo and erected them in Oklahoma. Aside from mailing monthly payment checks to U-Anchor in Amarillo, Burt had no other contact with Texas. The Texas Supreme Court held that
Burt’s contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. . . . Simply stated, Burt was a passive customer of a Texas corporation who neither sought, initiated, nor profited from his single and fortuitous contact with Texas.
553 S.W.2d at 763. Since Burt’s only Texas activity consisted of the preparation of and mailing of checks from his place of business in Oklahoma to Amarillo, the court found that the exercise of in personam jurisdiction over him would be offensive to due process.
We find the case at bar to be controlled by Cousteau, not by U-Anchor, for several reasons. First, Texas is probably the place of most of the contracts, since all except the first of Hudco’s offers to print were accepted by Southwest in Texas. See Cousteau, 495 F.2d at 495. This court has already held, in its remand order in this case, that the contracts are governed by Texas law. See also id. at n.20. While Burt might have expected that the contract he signed in Oklahoma with U-Anchor might be enforced according to Oklahoma law, see 553 S.W.2d at 763, Hudco, like the defendant in Cousteau, could expect that Texas law might govern the enforcement of their contracts, since a substantial part of the expected performance would occur in Texas.
Second, Hudco, unlike Burt, was no mere passive customer of a Texas corporation. Hudco repeatedly placed orders with the Texas corporation for the “manufacture” of telephone directories, from which Hudco expected to profit, and Hudco several times mailed camera-ready copy and proofs to Texas in order to facilitate the manufacturing process. Thus, Hudco did considerably more than Burt, whose “single and fortuitous,” 553 S.W.2d at 763, Texas contact consisted of mailing payments to an office in Amarillo. Rather, Hudco more resembles defendant CEMA in Cousteau, who was required to send certain items to Texas under the contract. Hudco does not argue that Southwest could have manufactured its product without the camera-ready copy. Thus, the sending of the copy to Texas was a necessary part of Hudco’s contract performance.
Third, even if we were to assume arguendo that the facts of this case were closer to those found in U-Anchor, we would not be bound by that court’s holding on lack of minimum contacts. This is so because the Texas Supreme Court’s holding in U-Anchor was predicated on the due process clause of the United States Constitution, and the federal courts are not bound by state court determinations of what the Constitution requires. We are, however, bound by the precedent of our own holding in Cousteau.
Finally, the district court’s holding that “it would be more burdensome for Defendant to come to Texas than for Plaintiff who solicited the contract in Alabama to go to Alabama and bring suit” is not supported by the evidence. We note that our decisions establish a two-pronged standard for determining whether constitutional due process requirements have been met. Defendant must have some minimum contacts with the state resulting from an affirmative act or acts on its part, and it must not be unfair or unreasonable to require the nonresident defendant to defend the suit in the forum. See Cousteau, 495 F.2d at 494, 497-98. The second prong, or “fairness” factor, requires the court to consider, among other things, the interest of the state in providing a forum for the suit, the relative conveniences and inconveniences to the parties, and the basic equities. Id. at 498. Southwest, as the party seeking to invoke the jurisdiction of the federal court, had the burden of establishing the district court’s jurisdiction over Hudco, id. at 490, and we believe that Southwest has carried that burden. It has proved that the contracts were made in Texas and would be governed by Texas law and thus that Texas has an interest in providing a forum for this suit. See id. at 498 and n.27. Notwithstanding the trial court’s holding, it would be just as inconvenient for Southwest to litigate in Alabama as it would be for Hudco to litigate in Texas. The fact that Southwest maintained a sales force in Alabama tells us nothing about its ability to prosecute a suit there. Thus, the convenience factor is a “stand-off.” See id. at 498. And, as in Cousteau, Hudco has pointed to no particular inequity that would result if a court in Texas exercises jurisdiction over its person in this suit.
Indeed, there seems to be more purposeful activity in Texas by Hudco than by CEMA, a French corporation over which this court in Cousteau approved the exercise of in personam jurisdiction in Texas. In light of the facts and our precedent, we could hardly hold that it would be unfair or unreasonable to require Hudco to defend against this suit in a Texas court.
REVERSED and REMANDED.
. See note 2, infra.
. In our remand order, we indicated that we were unable to determine from the trial court’s findings whether the suit involved one omnibus agreement or a series of contracts. The trial court on remand used the term “contracts” several times and made no finding regarding any overall agreement calling for several printing jobs. Thus, we will treat each printing order as a separate contract.
. Art. 2031b reads, in pertinent part:
Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.
The Texas courts construe this provision as reaching “as far as the federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977). Since we agree with the trial court’s holding that the Texas statutory requirements are met, we must proceed to inquire into whether the exercise of in personam jurisdiction over Hudco by a Texas federal court sitting in diversity satisfies the requirements of the due process clause of the United States Constitution. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 489 (5th Cir. 1974).
. Indeed, the testing of the fish call was carried out halfway around the globe, off the coasts of France and Monaco. Id. at 488.
. We realize that if the trial court is correct in its implicit holding that a Texas state court would not exercise in personam jurisdiction over Hudco, on the authority of U-Ánchor, this case will have a different result than if filed in state court. But Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny have not removed from the shoulders of federal judges the onus of authoritatively interpreting our federal Constitution when that document’s meaning must be found. This and like ironies, see, e. g., Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), are unavoidable consequences of our dual court system.
. See id. This language in Cousteau appears to place the burden of proving the relative equities at least partially on defendant, despite the court’s earlier holding placing the burden of proving jurisdiction on plaintiff. This appears a fair allocation, since defendant would have unique knowledge of any particular hardships making it inequitable for it to defend in a foreign forum.
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_const2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Ronald SANTELLA, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
No. 89-3188.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 7, 1990.
Decided July 9, 1991.
John L. Gubbins, Gubbins & Associates, Robert P. Sheridan, Chicago, Ill., for plaintiff-appellant.
Kelly R. Welsh, Ruth M. Moscovitch, Appeals Div., Jean Dobrer, Asst. Corp. Counsel, and L. Anita Richardson, Corp. Counsel, Office of the Corp. Counsel, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges.
BAUER, Chief Judge.
It has been said that when it comes to getting a city job in Chicago, quite often “It ain’t what you know, but who you know.” Although he thought he did, Appellant Ronald Santella did not know the right people — or, at least, not enough of them. Santella was hired by the Motor Maintenance Division (“Division”) of the Chicago Police Department (“CPD”) on June 1, 1980. His brother Rick just happened to be the director of the Division. Santella thought he was going to be a motor maintenance supervisor, a “career service” position that carries with it certain job protections, including a grievance procedure and for-cause disciplinary procedure with notice and hearing. Santella soon found out, however, that only one motor maintenance supervisor position existed, and it already was filled. So Santella was appointed instead to a vacant slot, that of electrical mechanic (now a career service position, but not at the time Santella was hired).
In the ordinary world, when one applies for a job that is held by someone else, that is the end of the matter. The City of Chicago takes a somewhat different approach. When it chooses to do so, the City will hire individuals into a vacant title “in lieu of” another, unavailable position. The individual is paid out of funds allocated to the department for personnel services. The “true” title is assigned after it is included in the following year’s budget.
The hiring “in lieu of” scheme commonly is used, even though the City has a perfectly good set of Personnel Rules in place. The Rules are promulgated by the City Director of Personnel pursuant to the Chicago Municipal Code. They require that a person complete seven steps prior to appointment to a career service position. Briefly, the applicant first must fill out an employment application. Then, he must take and pass a career service examination. Next, his name must be placed on the general employment list in rank order based on his examination score. Once these steps have been completed, an applicant becomes eligible for appointment to an existing career service title, but no appointment may be made until the Personnel Commissioner sends the department head a list of eligible candidates for the position and the applicant’s name is selected from the list. Thus, according to the Rules, the Superintendent of Police — the department head of the CPD — is the only official with the authority to make career service appointments within the CPD. If the department head selects one of the certified applicants from the list, then the following individuals must sign off on the appointment on a “PER-14” form: the department head, the Personnel Commissioner, the Budget Director, and the Comptroller.
Santella did not jump through any of these hoops because he was an electrical mechanic “in lieu of” of the motor maintenance supervisor position. All in all, it was not a bad deal; he received the higher motor maintenance supervisor’s salary. At first, he was reluctant to take the job because of the somewhat ephemeral nature of the title and because he wanted the added protection of career service status. James Zurawski, the Deputy Superintendent of the Police Department’s Bureau of Administrative Services (the organizational unit that included Santella’s department), assured Santella that an additional motor maintenance supervisor title would be included in the 1981 budget and that he would be appointed to that title. Santella’s brother Rick told him the same thing. Both were half right. Another supervisory title was added to the City’s Annual Appropriations Ordinances for 1981 through 1984. Rick Santella even prepared the official form to facilitate his brother’s reclassification to “Supervisor of Motor Maintenance.” Although the form was approved by all levels of the CPD and was submitted to the Department of Personnel, the position remained vacant.
While waiting for reclassification, both Santella and his brother made sure that City officials were kept aware of the situation. Several of them were prodded into action. The City Budget Director reviewed the matter with the patronage chief, the union, and Santella’s brother, and then approved the reclassification. After Santel-la’s department underwent a reorganization and became the Bureau of Technical Services, CPD Deputy Superintendent Matt Rodriguez, who had been appointed to oversee the Bureau, assured Santella (through Rick) that he would receive the supervisory title. Both the Administrative Assistant to the Mayor and the City Comptroller were told by CPD higher-ups that Richard Brzeczek (one of the three individuals who held the post of Superintendent of Police during these events) had approved Santella’s change of title. That information was relayed to Santella. In reality, not Brzeczek, Joseph DiLeonardi (his predecessor), or Fred Rice (his successor) ever authorized the appointment.
In 1984, Rick was replaced as head of the Division by Richard Grishaber. Grishaber assured Santella that he could continue to perform supervisory duties, but mere assurances were not enough for Santella. After patiently waiting for reclassification for more than four years, he decided to file a grievance. When Grishaber got wind of this plan, he informed Santella that he would not be receiving the motor maintenance supervisor title after all because of department reorganization. Grishaber also told Santella that another employee would be assuming Santella’s supervisory duties and responsibilities. Grishaber ordered Santella to work as an electrical mechanic (a job, by the way, for which Santella was unqualified) or face termination. Since then, things have not gone well for Santel-la. He did not win his grievance. He never worked as an electrical mechanic because he suffered a job-related injury on October 24, 1984. He has been on disability leave ever since.
Santella filed a three-count complaint against the City and Grishaber, individually and in his official capacity as Commander of the Motor Maintenance Division of the CPD. He alleged that defendants breached his employment agreement and violated 42 U.S.C. § 1983 by depriving him of the supervisory title that he had been promised and by demoting him in violation of the Due Process Clause of the Fourteenth Amendment. Santella further claimed that the demotion violated the First Amendment because it was taken in retaliation for his filing a grievance. In two opinions, Santella v. Grishaber, 654 F.Supp. 428 (N.D. Ill.1987) and Santella v. Grishaber, 672 F.Supp. 321 (N.D.Ill.1987), the district court dismissed Grishaber from the case and dismissed Santella’s first amendment count. Many of Santella’s other claims either were dismissed or withdrawn. The breach of employment contract claim survived “to the extent it [was] based on alleged contractual commitments made while appropriations for the Supervisor position were in place.” 672 F.Supp. at 330. The district court directed Santella to file an amended complaint to clarify exactly what commitments were made to him during the relevant period.
Santella did just that. In a second amended complaint, he listed the several occasions on which City officials had promised him the supervisory title. He alleged that, through these promises, he had acquired a property interest in the title and was deprived of that interest without due process of law and in violation of state contract law. As before, he asked for declaratory and injunctive relief and lost compensation and benefits. The district court granted the City’s motion for summary judgment on the grounds that Santella could not have acquired a property interest in the title because the City officials who promised it to him did not have the authority to make such a promise. The court also ruled that Santella failed to qualify for the position under the City’s Personnel Rules. Santella v. City of Chicago, 721 F.Supp. 160, 167 (N.D.Ill.1989). The pendent state breach of contract claim was dismissed without prejudice to allow Santella to pursue it in state court.
We review de novo the district court’s grant of summary judgment to the City. “[W]e must decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989). A genuine issue of material fact exists only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the evidence presented by the nonmovant is merely colorable or is not significantly probative, summary judgment is proper. Id. at 249-50, 106 S.Ct. at 2510-11.
Did Santella have a protected property interest in the supervisory title? The district did not think so because “the only person with ultimate authority to have made the appointment was and is CPD’s Superintendent, and no Superintendent (including Brzeczek) has ever appointed San-tella to the Supervisor’s title.” Santella, 721 F.Supp. at 165. To counter that argument, Santella primarily relies on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a case in which a nontenured college professor was denied renewal of his annual contract without a hearing. The professor alleged that he had a property interest in his employment fostered by the college administration having written in its official faculty guide that a faculty member should feel secure that he had permanent employment as long as his work was satisfactory. The Supreme Court stated that, “A person’s interest in a benefit is a ‘property’ interest for due process purpose if there are such rules or mutually explicit understandings that support his claim of entitlement to the ben-efit_” Id. at 601, 92 S.Ct. at 2699 (emphasis supplied).
The assurances given to Santella that he would be reclassified cannot be considered such “mutually explicit understandings.” We indicated in Wolf that it is now “firmly established” that “the ‘mutually explicit understandings’ that constitute property interests under the holding of Perry cannot be based on the representations of government officials who are not authorized to make such representations.” 870 F.2d at 1334. See also Shlay v. Montgomery, 802 F.2d 918, 923 (7th Cir.1986) (city corporation counsel’s promise that a new hire would have a career position is unenforceable against the city and thus does not give rise to a property right); Hadley v. County of DuPage, 715 F.2d 1238, 1242 (7th Cir.1983) (no entitlement to public employment where county board not bound by unauthorized assurances of continued employment by individual board members), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). The City Personnel Rules unequivocally state that the department head —here, the Superintendent of Police—is the only individual vested with the authority to make career service appointments within his own departments. Promises may have been made to Santella. They might even have been made by some very influential people. But because they were not made by the only person who counted, they were unauthorized, nonbinding, and without legal effect.
The district court had yet another reason for holding that Santella could not have had a legitimate expectation of receiving the supervisory title: the officials who assured him that the reclassification was a “done deal” were acting in contravention of City regulations that mandate a set procedure for career service appointments. The district court put it succinctly: “Promises, however well-intended and sincere, cannot take the place of the required formal action.” Santella, 721 F.Supp. at 165. Santella agrees with the district court that career service positions must be secured by the procedures set forth in the Personnel Rules, but he and the court part company over the role of the hiring “in lieu” scheme. Santella contends that in addition to the procedures provided in the Personnel Rules, hiring “in lieu” represents a second, de facto method of obtaining a job title in Chicago and that he had every right to rely upon it to support his claim of entitlement. He believes that the district court fundamentally misunderstood how hiring “in lieu” works, in that the court concluded that “the title was something independent from the position it described, and that reclassification was a special undertaking which was, under the system, contingent and uncertain even though hiring to the position had been accomplished.” Appellant’s Brief at 32. Santella suggests that, in his case, appointment to a nonconforming title in lieu of his “actual” title was purely for budgetary reasons. The reclassification of title was “to reflect the reality” of the position that he already held. Id. at 31. He insists that because he was hired de facto for the position of supervisor, and performed the role of supervisor, he was entitled to enjoy the benefits of the position.
Santella’s argument seems to be that “in lieu” hiring results in automatic accession to a position once it is created, funded, or included in the annual budget. The district court disagreed and determined that merely giving someone a job “is not the same as conferring the legal title of Supervisor (the only thing in which Santella could even arguably seek to assert the ‘property’ interest needed to implicate the Due Process clause).” Id. (emphasis in original). Like the district court, we find that Santella has come up empty-handed. He has failed to muster any facts to support a theory that title “in lieu” is tantamount to an actual appointment to a career service position. Santella’s evidence describes in detail how the “in lieu” system works and suggests that “in lieu of” hiring was for payroll purposes only, but nowhere does it state that movement to a career service title is a fait accompli once a hiree starts drawing a salary and the “proper” title is added to the annual budget. A good example is the affidavit of Anthony Fratto, former City Comptroller. Fratto stated that after a City department requests that the individual be hired into a specific job title “in lieu of” a vacant title, his salary comes out of the department’s personnel service account. The title then is included in the next appropriation ordinance and the paperwork at City Hall reflects the change. This much we know, but there is no statement to the effect that a person in such a position somehow magically ascends to the title reflecting his actual job duties. To the contrary, Fratto acknowledged that such a hiring arrangement would fall apart if there were no available funds in the personnel services account and the City intended to pay for the services from an account earmarked for items other than personnel services.
Hiring “in lieu” is an established policy that has provided the City of Chicago with greater flexibility to handle personnel problems. The City’s Personnel Policy manual refers to hiring “in lieu” and even provides forms for the process. With hiring “in lieu,” a department head need not be hampered by rigid appropriation rules when a particular person is essential for a job and no position is available. With hiring “in lieu,” it also is possible to endrun the bureaucracy in order to finagle a spot on the City payroll for a close relative. Despite the fact that the practice has been around for a while, it is no substitute for personnel rules providing for formal application and approval by a department head. Nor is it sufficiently certain to give rise to a legitimate property interest in the titles to which “in lieu” hirees aspire. Thus, for the reasons discussed in this opinion, the judgment of the district is
Affirmed.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_civproc1
|
57
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
STATE FARM MUT. AUTO. INS. CO. v. MOSSEY et al.
No. 10500.
United States Court of Appeals Seventh Circuit.
Jan. 30, 1952.
Rehearing Denied April 15, 1952.
Louis L. Anderson, South Bend, Ind., for appellant.
Aaron H. Huguenard, William F. McInerny, South Bend, Ind., for appellees.
Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.
KERNER, Circuit Judge.
This appeal by Charles DuBois is from a judgment or decree declaring that a certain insurance policy issued by appellee to one Mossey was null and void, and that neither Mossey nor appellant DuBois is entitled to recover from appellee because of the issuance of the policy.
Appellee, an Illinois corporation, filed its complaint under the Declaratory Judgments Act, 28 U.S.C.A. § 2201, against Clifford Mossey and Charles Du'Bois, residents and citizens of Indiana, praying that the court declare the rights of the parties and decree that the policy in suit is null and void, and that neither Mossey nor appellant DuBois is entitled to recover from appellee the amount of the policy or any part thereof, on the ground that it was procured by fraud.
The case was tried by the court without a jury. The trial judge found that on August 18, 1948, defendant Mossey applied to appellee for a policy of automobile insurance which provided that appellee would pay on Mossey’s behalf all sums up to $10,-000 which Mossey should become legally obliged to pay as damages for bodily injury sustained by any person, caused by accident and arising out of the ownership or use of a certain automobile; that at the time Mos-sey applied for the insurance appellee’s agent asked Mossey his age, and Mossey then falsely represented that he was born on March 25, 1923, and was then, August 18, 1948, 25 years of age, when in fact he was 20 years of age; that Mossey’s representation as to his age was a material misrepresentation and was made to induce ap-pellee to issue the policy; that appellee relied on Mossey’s representation and believed that he had correctly represented his age, and on August 18, 1948, issued the policy as applied for by Mossey, but that it would not have accepted Mossey’s application or issued the policy had it known his true age; that appellee did not learn of Mossey’s true and correct age until February 20, 1950, when Mossey for the first time told appellee’s agent that he was born on March 25, 1928.
On August 24, 1948, Mossey, while operating his automobile in South Bend, Indiana, collided with appellant DuBois, and DuBois sustained injuries for which he seeks damages from Mossey in excess of $10,000 in an action filed October 11, 1949, in an Indiana State Court; when Mossey was served with summons in that suit he demanded that appellee furnish him a defense and pay any judgment that might be entered against him within the limits provided for by the terms of the policy; ap-pellee employed counsel and is now defending that action, but after it learned Mos-sey’s true age, Mossey, on March 2, 1950, executed an agreement which provides that any action taken by appellee in defending appellant’s suit against Mossey should not be construed as a waiver of appellee’s rights to deny liability under the policy. Based on these findings, the court concluded that appellee had not waived its right to have the policy declared null and void, nor was it estopped from denying liability on the policy, and that Mossey’s misrepresentation as to his age was a misrepresentation of fact as to the risk to be assumed by ap-pellee, hence the policy was null, and void and neither of defendants was entitled to recover ifrom appellee.-
Before an action may be entertained under the Declaratory Judgments Act, the controversy must be justiciable. A declaration of nonliability is within the ambit of justiciability, Maryland Casualty Co. v. Hubbard, D.C., 22 F.Supp. 697, 699. Because in Indiana (§ 39-3005 Burns’ Ind. St.) an injured person may not join an insurer in an action against the insured, or proceed directly against the insurer before he has obtained a judgment against the insured, appellant contends that since he has not yet obtained a judgment against Mos-sey, no justiciable or actual controversy exists between the parties warranting relief under the Declaratory Judgments Act. Unfortunately for appellant this identical question has been decided adversely to appellant in a case where, as here, the injured person sued the insured. While that suit was pending and before it had proceeded to judgment, the insurer filed its complaint in which it sought a decree that it was not liable to defend the insured or to indemnify him if the injured person recovered. The court held that an actual controversy existed and that the complaint stated a cause of action. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826.
Appellant next contends that on proper realignment of the parties there would be no diversity of citizenship and the court would lack jurisdiction. The argument is that Mossey is a necessary party to the action, and since he failed to defend the present action, and has signed an agreement with appellee that it did not waive any rights or defenses which it might have, and has accepted the return of the premium paid for the policy, Mossey’s interests coincide with the interests of appellee, and thus it is claimed there was no justiciable controversy between appellee and Mossey, and he should have been realigned as a party plaintiff and the complaint should have been dismissed.
In support of his 'contention appellant cites, among other cases, State Farm Mutual Automobile Ins. Co. v. Hugee, 4 Cir., 115 F.2d 298, 132 A.L.R. 88; Maryland Casualty Co. v. Boyle Construction Co., 4 Cir., 123 F.2d 558; and Till v. Hartford Accident & Indemnity Co., 10 Cir., 124 F.2d 405.
In the Hugee case the policy covered a truck of the insured while being operated for commercial purposes. An accident occurred between the insured truck and a bus, and both the insured and the insurer contended that at the time of the accident the truck was being operated by the driver of the truck for purposes purely personal to himself. In the Boyle case, again the insured and the insurer contended there was no liability to the injured person because his claim was subject to the provisions of the Workmen’s Compensation Act, and in the Till case the policy insured not only the named insured but also any other person while using the automobile, provided the .actual use was with the permission of the named insured, and both the insurer and the insured were mutually interested in obtaining a judgment that the driver was not operating the automobile on behalf of the insured or with her consent. It is clear that in these cases there was no controversy as to the liability of the insurance companies to the persons insured. In fact the insurance company in each case admitted it was obligated to defend any suit brought against the insured. They involved the question Whether the injured person was entitled to recover against the insured, and it was clear that the interests of the insured and the insurer were the same. Hence we believe they are inapplicable for the reason that here appellee claims that regardless o'f whether Mossey is liable to appellant, the injured person, appellee is not obligated to defend Mossey and is not obligated to pay any judgment which may be rendered against him. In this state of the record we perceive no error in the court’s refusal to align Mossey with appellee.
Appellant admits that an insurer may maintain an equitable action to rescind or cancel a contract of insurance because of false representations made by the insured to induce its execution, but he insists that after the loss insured against has occurred, the fraud is available to the insurer as a defense in an action at law upon the policy, and he malees the point that the court abused its discretion in failing to sustain his motion to dismiss the complaint on the ground that appellee had a complete and adequate remedy at law.
It is true that fraud in the procurement of insurance is provable as a defense in an action at law upon the policy, but there are exceptions which have been followed with impressive uniformity. American Life Ins. Co. v. Stewart, 300 U.S. 203, 212, 57 S.Ct. 377, 81 L.Ed. 605. For example, in Massachusetts Bonding & Ins. Co. v. Anderegg, 9 Cir., 83 F.2d 622, the insurer sued to rescind an automobile insurance policy on the ground that Anderegg, the insured, had procured the policy iby means of false declarations. Before the suit was brought Anderegg had been involved in an accident, and the injured party had commenced an action against him. The court held that the insurer did not have an adequate legal remedy. In the instant case, as already observed, the action brought by DuBois against Mossey has not yet been submitted to trial. In this situation we think that what was said, 83 F.2d at page 625, in the Anderegg case is applicable here. Moreover, even if appellee had an adequate remedy at law, it could still bring an action for a declaratory judgment under Rule 57 of the Federal Rules of Civil Procedure, 28 U.S.C.A. See Mutual Life Ins. Co. of New York v. Krejci, 7 Cir., 123 F.2d 594, and Employers’ Liability Assur. Corp. v. Ryan, 6 Cir., 109 F.2d 690, 691.
The trial judge denied appellant’s demand for a jury trial because he was of the opinion that the action was an equitable one. This, appellant says, was an error. He calls attention to the Declaratory Judgments Act which provides that issues of fact shall be tried by a jury. He cites, among other cases, Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 137 F.2d 62, and Piedmont Fire Ins. Co. v. Aaron, 4 Cir., 138 F.2d 732, and argues that fraud in the procurement of a policy of insurance is primarily a question of fact.
Even so, it yet remains for the court to say whether the action is legal or equitable. To be entitled to a trial by the court, a litigant must present a claim which is equitable in nature. Borchard, Declaratory Judgments, 2nd Ed. p. 241. If the issues are not truly equitable, the case must be submitted to a jury; otherwise they must be determined by the judge. Liberty Oil Co. v. Condon National Bank, 260 U.S. 235, 43 S.Ct. 118, 67 L.Ed. 232.
The Enelow case began as an action at law upon a life insurance policy on the life of plaintiff’s deceased husband. The defendant claimed that the policy was procured by fraud and prayed for cancellation of the policy, and the question was whether the insurance company was entitled to have the issue on fraud determined by the court in equity before action at law proceeded on the policy. The court held that since the defense of fraud was a valid defense to the action on the policy, i. e., defendant had an adequate remedy at law, it could not insist upon having its defense of fraud determined in equity. The Ettelson and the Piedmont cases are to the same effect. They stand for the proposition that where an insurance company has an adequate remedy at law and can interpose a complete defense to an action on the policy, it cannot be said that the issues are truly equitable.
In considering whether an action is equitable or legal, the court may consider the nature of the prayer for relief. And whether a claim is truly equitable in nature depends upon whether the party asserting the claim would have been entitled to bring a suit in equity on the same claim, which he could not do if he had an adequate remedy at law. Compare Enelow v. New York Life Ins. Co., 293 U.S. 379, 383, 55 S.Ct. 310, 79 L.Ed. 440. We have already concluded that appellee did not have an adequate remedy at law, and since appellee could have brought an action in equity for the cancellation of the policy in question, it cannot be said that the court erred in denying appellant’s motion for a jury trial.
Appellant also contends (1) that appellee did not rely on the misrepresentation, (2) that the misrepresentation was not material to the risk, and (3) that the findings of fact were not supported by the record.
In addition to the facts found by the court, there was evidence that Mossey’s application for the policy was made on August 18, 1948. The policy was issued on August 25, effective as of August 18, and the accident occurred on August 24. In September, 1948, appellee’s adjuster reported to appellee that Mossey appeared to be a poor risk, and recommended that his record be reviewed. On September 16, 1948, appellee received a report on Mossey from an independent investigation which gave Mos-sey’s age as twenty-five years.
As to the second point, the argument is that appellee does issue policies to persons-under 21 years of age, for which it charges a higher premium. However, there was-evidence tending to prove that a driver under 21 years of age is a more dangerous driver than an older person; that insurance companies generally either refuse such a risk or, if they accept it, charge a higher rate of premium; and that appellee would not have issued the policy in question if it. had known Mossey’s true age.
The crucial question is, was the-representation that Mossey was twenty-five years of age material or immaterial to-the risk? The test is, was the representation such as might reasonably have influenced the insurer in deciding whether it should reject or accept the risk. Mutual Benefit Life Ins. Co. v. Miller, 39 Ind. 475; Metropolitan Life Ins. Co. v. Head, 86 Ind. App. 326, 157 N.E. 448; and New York Life Ins. Co. v. Kuhlenschmidt, 213 Ind. 212, 11 N.E.2d.673. And where, the evidence is such that reasonable men might differ in their conclusions as to whether the false representation is material, it becomes a question of fact for the jury or for the trial judge. Metropolitan Life Ins. Co. v. Becraft, 213 Ind. 378, 12 N.E.2d 952, 115 A.L.R. 93.
Here the court found as a fact, amply supported by the evidence, that Mossey falsely represented that he was twenty-five years of age on August 18, 1948, when in fact he was twenty years of age; that Mossey’s representation as to his age was a material misrepresentation upon which appellee relied, and that appellee would not have accepted the application or issued the policy 'had it known Mossey’s true age. When these facts are considered with the other evidence in the record, it is clear that reasonable minds could differ in their conclusions as to whether the representation was material, hence we would not be justified in saying that appellee did not rely on the misrepresentation, or that the representation was not material to the risk, or that the findings were not supported by the record. Obviously the findings are not clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure.
Appellant raises several other points including (a) the only remedy available to appellee is to sue Mossey for a higher premium; (b) appellee has waived its rights to avoid the policy; (c) appellee was negligent in insuring Mossey; and (d) the court erred in admitting, evidence. All of these we have considered, but since they do not convince us that any error occurred therein warranting a reversal, we see no need to discuss them.
Affirmed.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
RUSH PRUDENTIAL HMO, INC. v. MORAN et al.
No. 00-1021.
Argued January 16, 2002
Decided June 20, 2002
Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scaua and Kennedy, JJ., joined, post, p. 388.
John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were Clifford D. Stromberg, Craig A. Hoover, Jonathan S. Franklin, Catherine E. Stetson, James T Ferrini, Michael R. Grimm, Sr., and Melinda S. Kollross.
Daniel R Albers argued the cause for respondents. With him on the brief for respondent Moran were Mark E. Rust and Stanley C. Fickle. James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, and John Philip Schmidt and Mary Ellen Margaret Welsh, Assistant Attorneys General, filed a brief for respondent State of Illinois.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, James A. Feldman, Howard M. Radzely, Allen H. Feld-man, Nathaniel I. Spiller, and Elizabeth Hopkins
Miguel A Estrada and Andrew S. Tulumello filed a brief for the American Association of Health Plans, Inc., et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Howard G. Baldwin, Jr., First Assistant Attorney General, Jeffrey S. Boyd, Deputy Attorney General, Julie Parsley, Solicitor General, Christopher Livingston, Assistant Attorney General, and David C. Mattax, and by the Attorneys General for their respective jurisdictions as follows: Janet Napolitano of Arizona, Bill Lockyer of California, Gregory D’Auria of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Steve Carter of Indiana, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, Betty D. Montgomery of Ohio, W. A Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, Mark L. Shurt-leff of Utah, William H. Sorrell of Vermont, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, Hoke MacMillan of Wyoming, and Anabelle Rodriguez of Puerto Rico; for AARP et al. by Mary Ellen Signorille, Michael R. Schuster, Paula Brantner, Ronald Dean, and Judith L. Lichtman; for the American Medical Association et al. by Jack R. Bierig, Richard G. Taranto, Jon N. Ekdahl, Leonard A. Nelson, and Saul J. Morse; for the National Association of Insurance Commissioners by Jennifer R. Cook, Mary Elizabeth Senkewicz, and Marc I. Machiz; and for Texas Watch et al. by George Parker Young.
Briefs of amici curiae were filed for the California Consumer Health Care Council et al. by Sharon J. Arkin; and for United Policyholders by Arnold R. Levinson.
Justice Souter
delivered the opinion of the Court.
Section 4-10 of Illinois’s Health Maintenance Organization Act, 215 Ill. Comp. Stat., ch. 125, §4-10 (2000), provides recipients of health coverage by such organizations with a right to independent medical review of certain denials of benefits. The issue in this ease is whether the statute, as applied to health benefits provided by a health maintenance organization under contract with an employee welfare benefit plan, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. We hold it is not.
I
Petitioner, Rush Prudential HMO, Inc., is a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefit plans covered by ERISA. Respondent Debra Moran is a beneficiary under one such plan, sponsored by her husband’s employer. Rush’s “Certificate of Group Coverage,” issued to employees who participate in employer-sponsored plans, promises that Rush will provide them with “medically necessary” services. The terms of the certificate give Rush the “broadest possible discretion” to determine whether a medical service claimed by a beneficiary is covered under the certificate. The certificate specifies that a service is covered as “medically necessary” if Rush finds:
“(a) [The service] is furnished or authorized by a Participating Doctor for the diagnosis or the treatment of a Sickness or Injury or for the maintenance of a person’s good health.
“(b) The prevailing opinion within the appropriate specialty of the United States medical profession is that [the service] is safe and effective for its intended use, and that its omission would adversely affect the person’s medical condition.
“(c) It is furnished by a provider with appropriate training, experience, staff and facilities to furnish that particular service or supply.” Record, PI. Exh. A, p. 21.
As the certificate explains, Rush contracts with physicians “to arrange for or provide services and supplies for medical care and treatment” of covered persons. Each covered person selects a primary care physician from those under contract to Rush, while Rush will pay for medical services by an unaffiliated physician only if the services have been “authorized” both by the primary care physician and Rush’s medical director. See id., at 11,16.
In 1996, when Moran began to have pain and numbness in her right shoulder, Dr. Arthur LaMarre, her primary care physician, unsuccessfully administered “conservative” treatments such as physiotherapy. In October 1997, Dr. LaMarre recommended that Rush approve surgery by an unaffiliated specialist, Dr. Julia Terzis, who had developed an unconventional treatment for Moran’s condition. Although Dr. La-Marre said that Moran would be “best served” by that procedure, Rush denied the request and, after Moran’s internal appeals, affirmed the denial on the ground that the procedure was not “medically necessary.” 230 F. 3d 959, 963 (CA7 2000). Rush instead proposed that Moran undergo standard surgery, performed by a physician affiliated with Rush.
In January 1998, Moran made a written demand for an independent medical review of her claim, as guaranteed by §4-10 of Illinois’s HMO Act, 215 Ill. Comp. Stat., ch. 125, § 4-10 et seq. (2000), which provides:
“Each Health Maintenance Organization shall provide a mechanism for the timely review by a physician holding the same class of license as the primary care physician, who is unaffiliated with the Health Maintenance Organization, jointly selected by the patient..., primary care physician and the Health Maintenance Organization in the event of a dispute between the primary care physician and the Health Maintenance Organization regarding the medical necessity of a covered service proposed by a primary care physician. In the event that the reviewing physician determines the covered service to be medically necessary, the Health Maintenance Organization shall provide the covered service.”
The Act defines a “Health Maintenance Organization” as
“any organization formed under the laws of this or another state to provide or arrange for one or more health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers.” Ch. 125, § 1-2.
When Rush failed to provide the independent review, Moran sued in an Illinois state court to compel compliance with the state Act. Rush removed the suit to Federal District Court, arguing that the cause of action was “completely preempted” under ERISA. 230 F. 3d, at 964.
While the suit was pending, Moran had surgery by Dr. Terzis at her own expense and submitted a $94,841.27 reimbursement claim to Rush. Rush treated the claim as a renewed request for benefits and began a new inquiry to determine coverage. The three doctors consulted by Rush said the surgery had been medically unnecessary.
Meanwhile, the federal court remanded the case back to state court on Moran’s motion, concluding that because Moran’s request for independent review under § 4-10 would not require interpretation of the terms of an ERISA plan, the claim was not “completely preempted” so as to permit removal under 28 U. S. C. § 1441. 230 F. 3d, at 964. The state court enforced the state statute and ordered Rush to submit to review by an independent physician. The doctor selected was a reconstructive surgeon at Johns Hopkins Medical Center, Dr. A. Lee Dellon. Dr. Dellon decided that Dr. Terzis’s treatment had been medically necessary, based on the definition of medical necessity in Rush’s Certificate of Group Coverage, as well as his own medical judgment. Rush’s medical director, however, refused to concede that the surgery had been medically necessary, and denied Moran’s claim in January 1999.
Moran amended her complaint in state court to seek reimbursement for the surgery as “medically necessary” under Illinois’s HMO Act, and Rush again removed to federal court, arguing that Moran’s amended complaint stated a claim for ERISA benefits and was thus completely preempted by ERISA’s civil enforcement provisions, 29 U. S. C. § 1132(a), as construed by this Court in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987). The District Court treated Moran’s claim as a suit under ERISA, and denied the claim on the ground that ERISA preempted Illinois’s independent review statute.
The Court of Appeals for the Seventh Circuit reversed. 230 F. 3d 959 (2000). Although it found Moran’s state-law reimbursement claim completely preempted by ERISA so as to place the case in federal court, the Seventh Circuit did not agree that the substantive provisions of Illinois’s HMO Act were so preempted. The court noted that although ERISA broadly preempts any state laws that “relate to” employee benefit plans, 29 U. S. C. § 1144(a), state laws that “regulat[e] insurance” are saved from preemption, § 1144(b)(2)(A). The court held that the Illinois HMO Act was such a law, the independent review requirement being little different from a state-mandated contractual term of the sort this Court had held to survive ERISA preemption. See 280 F. 3d, at 972 (citing UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 375-376 (1999)). The Seventh Circuit rejected the contention that Illinois’s independent review requirement constituted a forbidden “alternative remedy” under this Court’s holding in Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987), and emphasized that § 4-10 does not authorize any particular form of relief in state courts; rather, with respect to any ERISA health plan, the judgment of the independent reviewer is only enforceable in an action brought under ERISA’s civil enforcement scheme, 29 U. S. C. § 1132(a). 230 F. 3d, at 971.
Because the decision of the Court of Appeals conflicted with the Fifth Circuit’s treatment of a similar provision of Texas law in Corporate Health Ins., Inc. v. Texas Dept. of Ins., 215 F. 3d 526 (2000), we granted certiorari, 533 U. S. 948 (2001). We now affirm.
II
To “safeguard]... the establishment, operation, and administration” of employee benefit plans, ERISA sets “minimum standards... assuring the equitable character of such plans and their financial soundness,” 29 U. S. C. § 1001(a), and contains an express preemption provision that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” § 1144(a). A saving clause then reclaims a substantial amount of ground with its provision that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” § 1144(b)(2)(A). The “unhelpful” drafting of these antiphonal clauses, New York State Confer ence of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995), occupies a substantial share of this Court’s time, see, e. g., Egelhoff v. Egelhoff, 532 U. S. 141 (2001); UNUM Life Ins. Co. of America v. Ward, supra; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). In trying to extrapolate congressional intent in a case like this, when congressional language seems simultaneously to preempt everything and hardly anything, we “have no choice” but to temper the assumption that “‘the ordinary meaning... accurately expresses the legislative purpose,’” id., at 740 (quoting Park ’N Fly v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985)), with the qualification “ ‘that the historic police powers of the States were not [meant] to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Travelers, supra, at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).
It is beyond serious dispute that under existing precedent § 4-10 of the Illinois HMO Act “relates to” employee benefit plans within the meaning of § 1144(a). The state law bears “indirectly but substantially on all insured benefit plans,” Metropolitan Life, 471 U. S., at 739, by requiring them to submit to an extra layer of review for certain benefit denials if they purchase medical coverage from any of the common types of health care organizations covered by the state law’s definition of HMO. As a law that “relates to” ERISA plans under § 1144(a), §4-10 is saved from preemption only if it also “regulates insurance” under § 1144(b)(2)(A). Rush insists that the Act is not such a law.
A
In Metropolitan Life, we said that in deciding whether a law “regulates insurance” under ERISA’s saving clause, we start with a “common-sense view of the matter,” 471 U. S., at 740, under which “a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry.” Pilot Life Ins. Co. v. Dedeaux, supra, at 50. We then test the results of the commonsense enquiry by employing the three factors used to point to insurance laws spared from federal preemption under the McCarran-Ferguson Act, 15 U. S. C. § 1011 et seq, Although this is not the place to plot the exact perimeter of the saving clause, it is generally fair to think of the combined “commonsense” and McCarran-Ferguson factors as parsing the “who” and the “what”: when insurers are regulated with respect to their insurance practices, the state law survives ERISA. Cf Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 211 (1979) (explaining that the “business of insurance” is not coextensive with the “business of insurers”).
1
The commonsense enquiry focuses on “primary elements of an insurance contract^ which] are the spreading and underwriting of a policyholder’s risk.” Ibid. The Illinois statute addresses these elements by defining “health maintenance organization” by reference to the risk that it bears. See 215 Ill. Comp. Stat., ch. 125, § 1-2(9) (2000) (an HMO “provide[s] or arrange[s] for... health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers”).
Rush contends that seeing an HMO as an insurer distorts the nature of an HMO, which is, after all, a health care provider, too. This, Rush argues, should determine its characterization, with the consequence that regulation of an HMO is not insurance regulation within the meaning of ERISA.
The answer to Rush is, of course, that an HMO is both: it provides health care, and it does so as an insurer. Nothing in the saving clause requires an either-or choice between health care and insurance in deciding a preemption question, and as long as providing insurance fairly accounts for the application of state law, the saving clause may apply. There is no serious question about that here, for it would ignore the whole purpose of the HMO-style of organization to conceive of HMOs (even in the traditional sense, see n. 1, supra) without their insurance element.
“The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed.” Pegram v. Herdrich, 530 U. S. 211, 218 (2000). “The HMO thus assumes the financial risk of providing the benefits promised: if a participant never gets sick, the HMO keeps the money regardless, and if a participant becomes expensively ill, the HMO is responsible for the treatment....” Id., at 218-219. The HMO design goes beyond the simple truism that all contracts are, in some sense, insurance against future fluctuations in price, R. Posner, Economic Analysis of Law 104 (4th ed. 1992), because HMOs actually underwrite and spread risk among their participants, see, e. g., R. Shouldice, Introduction to Managed Care 450-462 (1991), a feature distinctive to insurance, see, e. g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65, 73 (1959) (underwriting of risk is an “earmark of insurance as it has commonly been conceived of in popular understanding and usage”); Royal Drug, supra, at 214-215, n. 12 (“[U]nless there is some element of spreading risk more widely, there is no underwriting of risk”).
So Congress has understood from the start, when the phrase “Health Maintenance Organization” was established and defined in the HMO Act of 1973. The Act was intended to encourage the development of HMOs as a new form of health care delivery system, see S. Rep. No. 93-129, pp. 7-9 (1973), and when Congress set the standards that the new health delivery organizations would have to meet to get certain federal benefits, the terms included requirements that the organizations bear and manage risk. See, e. g., Health Maintenance Organization Act of 1973, § 1301(c), 87 Stat. 916, as amended, 42 U. S. C. § 300e(c); S. Rep. No. 93-129, at 14 (explaining that HMOs necessarily bear some of the risk of providing service, and requiring that a qualifying HMO “as-sum[e] direct financial responsibility, without benefit of reinsurance, for care... in excess of the first five thousand dollars per enrollee per year”). The Senate Committee Report explained that federally qualified HMOs would be required to provide “a basic package of benefits, consistent with existing health insurance patterns,” id., at 10, and the very text of the Act assumed that state insurance laws would apply to HMOs; it provided that to the extent state insurance capitalization and reserve requirements were too stringent to permit the formation of HMOs, “qualified” HMOs would be exempt from such limiting regulation. See § 1311, 42 U. S. C. §300e-10. This congressional understanding that it was promoting a novel form of insurance was made explicit in the Senate Report’s reference to the practices of “health insurers to charge premium rates based upon the actual claims experience of a particular group of subscribers,” thus “raising costs and diminishing the availability of health insurance for those suffering from costly illnesses,” S. Rep. No. 93-129, at 29-30. The federal Act responded to this insurance practice by requiring qualifying HMOs to adopt uniform capitation rates, see § 1301(b), 42 U. S. C. § 300e(b), and it was because of that mandate “pos[ing] substantial competitive problems to newly emerging HMOs,” S. Rep. No. 93-129, at 30, that Congress authorized funding subsidies, see §1304, 42 U. S. C. § 300e-4. The Senate explanation left no doubt that it viewed an HMO as an insurer; the subsidy was justified because “the same stringent requirements do not apply to other indemnity or service benefits insurance plans.” 5. Rep. No. 93-129, at 30. In other words, one year before it passed ERISA, Congress itself defined HMOs in part by reference to risk, set minimum standards for managing the risk, showed awareness that States regulated HMOs as insurers, and compared HMOs to “indemnity or service benefits insurance plans.”
This conception has not changed in the intervening years. Since passage of the federal Act, States have been adopting their own HMO enabling Acts, and today, at least 40 of them, including Illinois, regulate HMOs primarily through the States’ insurance departments, see Aspen Health Law and Compliance Center, Managed Care Law Manual 31-32 (Supp. 6, Nov. 1997), although they may be treated differently from traditional insurers, owing to their additional role as health care providers, see, e. g., Alaska Ins. Code § 21.86.010 (2000) (health department reviews HMO before insurance commissioner grants a certificate of authority); Ohio Rev. Code Ann. § 1742.21 (West 1994) (health department may inspect HMO). Finally, this view shared by Congress and the States has passed into common understanding. HMOs (broadly defined) have “grown explosively in the past decade and [are] now the dominant form of health plan coverage for privately insured individuals.” Gold & Hurley, The Role of Managed Care “Products” in Managed Care “Plans,” in Contemporary Managed Care 47 (M. Gold ed. 1998). While the original form of the HMO was a single corporation employing its own physicians, the 1980’s saw a variety of other types of structures develop even as traditional insurers altered their own plans by adopting HMO-like cost-control measures. See Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 83 (Spring 1993). The dominant feature is the combination of insurer and provider, see Gold & Hurley, supra, at 47, and “an observer may be hard pressed to uncover the differences among products that bill themselves as HMOs, [preferred provider organizations], or managed care overlays to health insurance,” Managed Care Law Manual, supra, at 1. Thus, virtually all commentators on the American health care system describe HMOs as a combination of insurer and provider, and observe that in recent years, traditional “indemnity” insurance has fallen out of favor. See, e. g., Weiner & de Lissovoy, supra, at 77 (“A common characteristic of the new managed care plans was the degree to which the roles of insurer and provider became integrated”); Gold, Understanding the Roots: Health Maintenance Organizations in Historical Context, in Contemporary Managed Care, supra, at 7,8,13; Managed Care Law Manual, supra, at 1; R. Rosenblatt, S. Law, & S. Rosenbaum, Law and the American Health Care System 552 (1997); Shouldice, Introduction to Managed Care, at 13, 20. Rush cannot checkmate common sense by trying to submerge HMOs’ insurance features beneath an exclusive characterization of HMOs as providers of health care.
2
On a second tack, Rush and its amici dispute that § 4-10 is aimed specifically at the insurance industry. They say the law sweeps too broadly with definitions capturing organizations that provide no insurance, and by regulating noninsurance activities of HMOs that do. Rush points out that Illinois law defines HMOs to include organizations that cause the risk of health care delivery to be borne by the organization itself, or by “its providers.” 215 Ill. Comp. Stat., ch. 125, § 1-2(9) (2000). In Rush’s view, the reference to “its providers” suggests that an organization may be an HMO under state law (and subject to §4-10) even if it does not bear risk itself, either because it has “devolve[d]” the risk of health care delivery onto others, or because it has contracted only to provide “administrative” or other services for self-funded plans. Brief for Petitioner 38.
These arguments, however, are built on unsound assumptions. Rush’s first contention assumes that an HMO is no longer an insurer when it arranges to limit its exposure, as when an HMO arranges for capitated contracts to compensate its affiliated physicians with a set fee for each HMO patient regardless of the treatment provided. Under such an arrangement, Rush claims, the risk is not borne by the HMO at all. In a similar vein, Rush points out that HMOs may contract with third-party insurers to protect themselves against large claims.
The problem with Rush’s argument is simply that a reinsurance contract does not take the primary insurer out of the insurance business, cf. Hartford Fire Ins. Co. v. California, 509 U. S. 764 (1993) (applying McCarran-Ferguson to a dispute involving primary insurers and reinsurers); id., at 772-773 (“[Pjrimary insurers... usually purchase insurance to cover a portion of the risk they assume from the consumer”), and capitation contracts do not relieve the HMO of its obligations to the beneficiary. The HMO is still bound to provide medical care to its members, and this is so regardless of the ability of physicians or third-party insurers to honor their contracts with the HMO.
Nor do we see anything standing in the way of applying the saving clause if we assume that the general state definition of HMO would include a contractor that provides only administrative services for a self-funded plan. Rush points out that the general definition of HMO under Illinois law includes not only organizations that “provide” health care plans, but those that “arrange for” them to be provided, so long as “any part of the risk of health care delivery” rests upon “the organization or its providers.” 215 Ill. Comp. Stat., ch. 125, § 1-2(9) (2000). See Brief for Petitioner 38. Rush hypothesizes a sort of medical matchmaker, bringing together ERISA plans and medical care providers; even if the latter bear all the risks, the matchmaker would be an HMO under the Illinois definition. Rush would conclude from this that §4-10 covers noninsurers, and so is not directed specifically to the insurance industry. Ergo, ERISA’s saving clause would not apply.
It is far from clear, though, that the terms of § 4-10 would even theoretically apply to the matchmaker, for the requirement that the HMO “provide” the covered service if the independent reviewer finds it medically necessary seems to assume that the HMO in question is a provider, not the mere arranger mentioned in the general definition of an HMO. Even on the most generous reading of Rush’s argument, however, it boils down to the bare possibility (not the likelihood) of some overbreadth in the application of § 4-10 beyond orthodox HMOs, and there is no reason to think Congress would have meant such minimal application to noninsurers to remove a state law entirely from the category of insurance regulation saved from preemption.
In sum, prior to ERISA’s passage, Congress demonstrated an awareness of HMOs as risk-bearing organizations subject to state insurance regulation, the state Act defines HMOs by reference to risk bearing, HMOs have taken over much business formerly performed by traditional indemnity insurers, and they are almost universally regulated as insurers under state law. That HMOs are not traditional “indemnity” insurers is no matter; “we would not undertake to freeze the concepts of ‘insurance’... into the mold they fitted when these Federal Acts were passed.” SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S., at 71. Thus, the Illinois HMO Act is a law “directed toward” the insurance industry, and an “insurance regulation” under a “commonsense” view.
B
The McCarran-Ferguson factors confirm our conclusion. A law regulating insurance for McCarran-Ferguson purposes targets practices or provisions that “ha[ve] the effect of transferring or spreading a policyholder’s risk;... [that are] an integral part of the policy relationship between the insurer and the insured; and [are] limited to entities within the insurance industry.” Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129 (1982). Because the factors are guideposts, a state law is not required to satisfy all three McCarran-Ferguson criteria to survive preemption, see UNUM Life Ins. Co. v. Ward, 526 U. S., at 373, and so we follow our precedent and leave open whether the review mandated here may be described as going to a practice that “spread[s] a policyholder’s risk.” For in any event, the second and third factors are clearly satisfied by § 4-10.
It is obvious enough that the independent review requirement regulates “an integral part of the policy relationship between the insurer and the insured.” Illinois adds an extra layer of review when there is internal disagreement about an HMO’s denial of coverage. The reviewer applies both a standard of medical care (medical necessity) and characteristically, as in this case, construes policy terms. Cf Pegram v. Herdrich, 530 U. S., at 228-229. The review affects the “policy relationship” between HMO and covered persons by translating the relationship under the HMO agreement into concrete terms of specific obligation or freedom from duty. Hence our repeated statements that the interpretation of insurance contracts is at the “core” of the business of insurance. E. g., SEC v. National Securities, Inc., 393 U. S. 453, 460 (1969).
Rush says otherwise, citing Union Labor Life Ins. Co. v. Pireno, supra, and insisting that that case holds external review of coverage decisions to be outside' the “policy relationship.” But Rush misreads Pireno. We held there that an insurer’s use of a “peer review” committee to gauge the necessity of particular treatments was not a practice integral to the policy relationship for the purposes of McCarran-Ferguson. 458 U. S., at 131-132. We emphasized, however, that the insurer’s resort to peer review was simply the insurer’s unilateral choice to seek advice if and when it cared to do so. The policy said nothing on the matter. The insurer’s contract for advice from a third party was no concern of the insured, who was not bound by the peer review committee’s recommendation any more, for that matter, than the insurer was. Thus it was not too much of an exaggeration to conclude that the practice was “a matter of indifference to the policyholder,” id., at 132. Section 4-10, by contrast, is different on all counts, providing as it does a legal right to the insured, enforceable against the HMO, to obtain an authoritative determination of the HMO’s medical obligations.
The final factor, that the law be aimed at a “practice... limited to entities within the insurance industry,” id., at 129, is satisfied for many of the same reasons that the law passes the commonsense test. The law regulates application of HMO contracts and provides for review of claim denials; once it is established that HMO contracts are, in fact, contracts for insurance (and not merely contracts for medical care), it is clear that §4-10 does not apply to entities outside the insurance industry (although it does not, of course, apply to all entities within it).
Even if we accepted Rush’s contention, rejected already, that the law regulates HMOs even when they act as pure administrators, we would still find the third factor satisfied. That factor requires the targets of the law to be limited to entities within the insurance industry, and even a matchmaking HMO would fall within the insurance industry. But the implausibility of Rush’s hypothesis that the pure administrator would be bound by § 4-10 obviates any need to say more under this third factor. Cf. Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 39 (1996) (holding that a federal statute permitting banks to act as agents of insurance companies, although not insurers themselves, was a statute regulating the “business of insurance” for McCarran-Ferguson purposes).
Ill
Given that §4-10 regulates insurance, ERISA’s mandate that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance,” 29 U. S. C. § 1144(b)(2)(A), ostensibly forecloses preemption. See Metropolitan Life, 471 U. S., at 746 (“If a state law ‘regulates insurance,’... it is not preempted”). Rush, however, does not give up. It argues for preemption anyway, emphasizing that the question is ultimately one of congressional intent, which sometimes is so clear that it overrides a statutory provision designed to save state law from being preempted. See American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 227 (1998) (AT&T) (clause in Communications Act of 1934 purporting to save “the remedies now existing at common law or by statute,” 47 U. S. C. § 414 (1994 ed.), defeated by overriding policy of the filed-rate doctrine); Adams Express Co. v. Croninger, 226 U. S. 491, 507 (1913) (saving clause will not sanction state laws that would nullify policy expressed in federal statute; “the act cannot be said to destroy itself” (internal quotation marks omitted)).
In ERISA law, we have recognized one example of this sort of overpowering federal policy in the civil enforcement provisions, 29 U. S. C. § 1132(a), authorizing civil actions for six specific types of relief. In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), we said those provisions amounted to an “interlocking, interrelated, and interdependent remedial scheme," id., at 146, which Pilot Life described as “representing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans,” 481 U. S., at 54. So, we have held, the civil enforcement provisions are of such extraordinarily preemptive power that they override even the “well-pleaded complaint” rule for establishing the conditions under which a cause of action may be removed to a federal forum. Metropolitan Life Ins. Co. v. Taylor, 481 U. S
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HARDEN MORTGAGE LOAN CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 2700.
Circuit Court of Appeals, Tenth Circuit.
July 20, 1943.
George E. H. Goodner, of Washington, D. C. (Scott P. Crampton, of Washington, D. C., on the brief), for petitioner.
Warren F. Wattles', Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before PHILLIPS, BRATTON, and F^UXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals, now the Tax Court of the United States. It involves Federal income taxes for the year 1938 of the Harden Mortgage Loan Company. In 1938, the taxpayer made certain expenditures for which in its return it claimed deductions as ordinary and necessary business expenses. The Commissioner disallowed the deductions and proposed a deficiency. The Tax Court sustained the ruling of the Commissioner and decided that there was a deficiency of income taxes for the year 1938 of $8,298.08.
The United States Asphalt Company owns a rock asphalt mine located at Dougherty, Oklahoma. Rock asphalt is a blend of limestone rock and asphalt and of sand rock and asphalt and is used as a road-building material. It is sold principally to cities, counties, and states. From prior to 1936 to and including 1938, John J. Dempsey was the president of United and devoted a portion of his efforts to creating a demand for the product of the mine.
From January 1, 1936 through 1938, the taxpayer operated the rock asphalt mine as lessee of United. During that period the taxpayer had the exclusive right to sell the output of the mine in Oklahoma and Louisiana. There was no other mine in Oklahoma or in states adjacent thereto which produced rock asphalt of a like quality. However, the taxpayer sold rock asphalt in competition with other road-building materials.
The lease provided that the lessee should mine and deliver at cost, f. o. b. cars at Dougherty, Oklahoma, all material for which United should furnish orders from states other than Oklahoma and Louisiana.
In 1934, the taxpayer entered into an oral contract with C. S. Beekman whereby Beekman agreed to act as sales agent for the taxpayer in Oklahoma and to promote sales of rock asphalt produced by the taxpayer. The contract provided that Beekman should receive a commission of 10 per cent on sales in Oklahoma, and that such commissions should be due and payable when the taxpayer received payment for the rock asphalt sold. It continued through the year 1938. It was Beekman’s specific duty to get the State Highway Commission of Oklahoma to specify rock asphalt for highway construction projects or to prescribe specifications that only rock asphalt could meet and to secure contracts for the purchase of rock asphalt. Rock asphalt was sold at a uniform price of $4.25 per ton f. o. b. the mine. It was immaterial to the taxpayer whether the material was sold to the contractor or directly to the state and it paid Beekman a commission on all rock asphalt purchased for use on highways in Oklahoma.
In the early part of 1938, Beekman’s eyesight failed and he needed assistance in carrying on his business. His brother assisted him for a short time. Shortly after the Oklahoma State Legislature adjourned in the early part of 1938, Beekman formed a partnership under the name and style of C. S. Beekman & Co., composed of Allen G. Nichols, J. C. Nance, Howard Drake, Beekman, and two other persons. Nichols was a member of the Oklahoma Senate and the majority leader thereof. Nance was a member of the Oklahoma House of Representatives and the majority leader thereof. Both the Senate and House were Democratic. Drake was a prominent member of the Democratic party in Oklahoma and active in state politics. He had managed the campaign for the election of Ernest W. Marland who was Governor of Oklahoma from 1935 to 1938, inclusive, and a member of the Democratic party.
In January, 1938, Beekman was short of funds and requested the taxpayer to make an advance to him on commissions earned but not due. The taxpayer did not have funds with which to pay Beekman but assigned to the partnership, at face value, certain claims which it had against the state, aggregating $16,893.70. In 1938, the taxpayer also paid to the partnership $16,044.05 as commissions on other sales made by Beekman in 1938. The claims were assigned and the payments made to the partnership at Beekman’s request. Nichols and Nance each received one-fourth of the profits of the partnership. The record does not disclose how the remaining profits were divided. One of the amounts deducted as ordinary and necessary business expense was the $32,937.75 paid to the partnership.
One method employed to promote the sale of rock asphalt was to induce the people living in the vicinity of a proposed highway project to demand the construction of the highway and the use of rock asphalt as road material. In 1938, Nichols, Nance, and Drake engaged in that activity and caused many delegations of citizens to go to the Highway Commission and request the construction of highways and the use of rock asphalt in their construction.
The record discloses that while the contract fixed the commission at 10 per cent, in 1938 commissions on sales to the State Highway Commission were paid on the basis of 15 per cent and on sales to private contractors on a basis of 17% per cent.
Nichols, Nance, and Drake were very active in promoting the specification of rock asphalt by the State Highway Commission and in increasing the sale of rock asphalt.
The Tax Court found that a portion of the claimed deduction was paid for the exertion of political influence. The rate of commissions paid in 1938 on sales to the Highway Commission was 50 per cent in excess of the contract rate and on sales to private contractors 75 per cent in excess of such rate. No explanation was given for this increase. R. D. Farmer, vice-president and general manager of the taxpayer, knew Nichols, Nance, and Drake and was fully cognizant of their political prominence and their influence in Democratic party circles. Beekman was largely incapacitated and was unable to carry on his usual duties. It is obvious that Beekman, in selecting the personnel of the partnership, was largely dominated by considerations of political influence. In 1938, he united, in behalf of the taxpayer, powerful political forces; and for the sales on which commissions accrued in 1938, the taxpayer paid the partnership amounts very largely in excess of the contract commission rate. The proven facts and the reasonable inferences deductible therefrom justified the finding of the Tax Court.
Payments made for exerting political influence are not ordinary and necessary business expenses. The burden was upon the taxpayer to establish its right to the deduction. It may be that some portion of the amounts paid to the partnership was actual selling commissions, but the burden of proving the deductible amounts and segregating them from the non-deductible was upon the taxpayer and it did not meet that burden. We conclude that the Tax Court did not err in disallowing the deduction of the amounts paid the partnership, as ordinary and necessary business expenses.
In 1938, the taxpayer paid lo Dempsey $6,000. Payments were made by checks, one for $2,000 issued in July, one for $1,000 issued in July, two for $1,000 each issued in August, and one for $1,-000 issued in October. The $6,000 paid Dempsey was the other amount claimed as a deduction for ordinary and necessary business expenses. The $6,000 was charged on the books of the partnership to entertainment and travel expenses. The proof established that Dempsey, from time to time, rendered services to the taxpayer in connection with freight rates and demur-rage claims. There was no proof that Dempsey actually rendered any services to the partnership in 1938. The taxpayer wholly failed to establish that the payments made to Dempsey in 1938 were for ordinary and necessary business expenses. Hence, the taxpayer failed to carry the burden of proving facts establishing its right to the deduction.
The decision of the Tax Court is affirmed.
Hereinafter referred to as the Tax Court.
Hereinafter called the taxpayer.
Hereinafter called United.
Tr.Reg. 101, Art. 23(q)-l; Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 336-339, 62 S.Ct. 272, 86 L.Ed. 249; Rugel v. Commissioner, 8 Cir., 127 F.2d 393, 395.
Birnbaum v. Commissioner, 7 Cir., 117 F.2d 395, 396; Long Island Drug Co. v. Commissioner, 2 Cir., 111 F.2d 593, 595; National Cottonseed Products Corp. v. Commissioner, 6 Cir., 76 F.2d 839, 841.
Commissioner v. Hills Corporation, 10 Cir., 115 F.2d 322, 324; Josey v. Commissioner, 10 Cir., 104 F.2d 453, 455; Blackwell Oil & Gas Co. v. Commissioner, 10 Cir., 60 F.2d 257, 258; Houston Natural Gas Corp. v. Commissioner, 4 Cir., 90 F.2d 814, 817; Richmond Hosiery Mills v. Commissioner, 5 Cir., 29 F.2d 262, 263.
Birnbaum v. Commissioner, 7 Cir., 117 F.2d 395, 396, and cases cited in Note 5.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond1_8_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
CLAUSON, Collector of Internal Revenue, v. VAUGHAN.
No. 4020.
Circuit Court of Appeals, First Circuit.
Jan. 29, 1945.
L. W. Post, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., J. Louis Monarch, Helen R. Carloss, and James P. Garland, Sp. Assts. to the Atty. Gen., John D. Clifford, Jr., U. S. Atty., and Edward J. Harrigan, Asst. U.S. Atty., both of Portland, Me., on the brief), for appellant.
Earle W. Carr, of Boston, Mass. (Philip G. Willard, of Portland, Me., and Gaston, Snow, Rice & Boyd, of Boston, Mass., of counsel), for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This in an appeal by the defendant, a collector of internal revenue, from a judgment entered by the court below for the plaintiff in an action to recover a deficiency in federal estate tax assessed against her as executrix of the estate of her deceased husband, Henry G. Vaughan, and paid under protest. The case was heard by the District Court on the pleadings and a stipulation of facts. Its opinion is reported in 54 F.Supp. 8.
The facts can be stated briefly.
Benjamin Vaughan, father of Henry, died on July 2, 1912, leaving a will, by a codicil to which dated February 12, 1911, he left certain property to his daughter Bertha in trust “for the benefit of my son Henry and the income of said trust shall be payable to him only in the absolute discretion of the trustee and he shall have no rights whatsoever therein at his decease the trust shall terminate and the principal and any income thereof shall be disposed of as my son Henry may by will appoint. But no portion whatsoever of the income or principal of said trust shall ever go or be paid directly or indirectly to the present wife of said Henry or to any of her family or assigns whether by voluntary or involuntary assignment transfers or appointment or whether by any judgment or de■cree of any court or in any way whatever and any appointment or assignment to said persons shall be void and of no effect.”
The “present wife” of Henry at the time Benjamin’s will and codicil were executed was Olea Bull Vaughan, who divorced Henry on May 11, 1911, and died on July 18 following. In April, 1915, Henry married plaintiff-appellee herein and on November 21, 1938, he died leaving a will in which he appointed the property referred to in his father’s will to this second wife. At the time of Llenry’s death there were living an illegitimate child of his first wife as well as five first cousins and some other more distant relatives of hers. Also, such illegitimate child had two living children.
The sole question presented on this appeal is whether the property over which Henry had a power of appointment under his father’s will should be included as part of his gross estate under section 302 (f) of the Revenue Act of 1926, 44 Stat. 9, as amended by section 404 of the Revenue Act of 1934, 48 Stat. 680, 26 U.S.C.A.Int. Rev.Code, § 811 (f), which provides so far as material:
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated. * * *
“(f) To the extent of any property passing under a general power of appointment exercised by the decedent (1) by will *
Clearly Congress intended by this statute that only property over which a decedent’s power of appointment was general should be included for estate tax purposes and since Congress did not define “a general power of appointment” as distinguished from a special or other kind of power, the quoted phrase must be taken in its generally accepted sense, that is, as meaning an unrestricted power to appoint to anyone the donee of the power might select.
“None of the revenue acts has defined the phrase ‘general power of appointment’. The distinction usually made between a general and a special power lies in the circumstance that, under the former, the donee may appoint to anyone, including his own estate or his creditors, thus having as full dominion over the property as if he owned it; whereas, under the latter, the donee may appoint only amongst a restricted or designated class of persons other than himself.
“We should expect, therefore, that Congress had this ’ distinction in mind when it used the adjective ‘general’. The legislative history indicates that this is so.” Morgan v. Commissioner, 309 U.S. 78, 81, 626, 60 S.Ct. 424, 426, 84 L.Ed. 585. See also Christine Smith Kendrick v. Commissioner, 34 B.T.A. 1040, 1042; Fidelity Trust Co. v. McCaughn, D.C., 1 F.2d 987, 988; Whitlock-Rose v. McCaughn, D. C., 15 F. 2d 591, 592; Leser v. Burnet, 4 Cir., 46 F. 2d 756, 758.
But the collector contends that the power of appointment exercised by the decedent here was a general power within the meaning of the taxing statute for two reasons; first because the limitation was so trivial as to be virtually non-existent and second because it did not prevent appointment either to the decedent’s estate or to his creditors. In other words, he says that the power given to the decedent was of such a general character that he was “with respect to disposition of the property at his death, in a position not unlike that of its owner” and hence that Congress must have intended to tax the property covered by the power to the decedent’s estate. We cannot agree.
For present purposes we may concede that the classic definition of a general power of appointment is too broad for application to a case involving a trivial or fake limitation obviously imposed for the purpose of tax evasion. However, we can postpone decision of this question until it arises, if it ever does (section 403 of the Revenue Act of 1942, 26 U.S.C.A.Int.Rev. Code, § 811, drastically amended the section we are considering), because in the case at bar there could have been no tax evasion or even tax avoidance motive present when the donor of the power drew his will in 1911, more than five years before the Revenue Act of 1916, 39 Stat. 756, and in addition there is every indication of the existence of a strong family reason for the limitation imposed. Nor can we say that the limitation was trivial or of no practical consequence to Henry. To be sure, we do not know his attitude toward his first wife, or her descendants, or her family, and it is useless to inquire into such transitory matters, but from the vehement language of Benjamin’s will and the fact that Henry allowed his first wife to divorce him in spite of her conduct, it is safe to infer that he may have been favorably disposed toward at least some of his first wife’s family in spite of her dereliction. At any rate on the facts before us we cannot say that the limitation was not genuinely imposed for valid family reasons and not patently wholly ineffective to limit Henry in the exercise of his power of appointment, and this it seems to us is enough to make the power not a general one within the meaning of the statute.
But the collector advances the view that whenever property may be appointed to a donee’s estate or to his creditors the power must be deemed general, whatever other restrictions may be placed upon a donee with respect to eligible appointees, and he cites for authority the applicable regulation (Regulation 80 (1937 Ed.) art. 24) which reads:
“Only property passing under a general power should be included. Ordinarily a general power is one to appoint to any person or persons in the discretion of the donee of the power, or, however limited as to the persons or objects in whose favor the appointment may be made, is exercisable in favor of the donee, his estate, or his creditors.”
Earlier regulations did not contain the provisions embodied in the last part of the second sentence quoted above but provided: “Only property passing under a general power should be included. Ordinarily a general power is one to appoint to any person or persons in the discretion of the donee. Where the donee is required to appoint a specified person or class of persons, the property should not be included in his gross estate.” So this contention of the Collector poses the question whether the 1937 Regulation can affix a new meaning to the statute in spite of the fact that with the earlier regulations outstanding Congress repeatedly re-enacted the statute without change and thus may be said to have adopted its administrative construction. See Morgan v. Commissioner, supra.
But we do not need to consider this question because any appointment or any other action by Henry with respect to the property in question was at all times subject to the father’s vigorously and sweepingly worded injunction that none of it was ever directly or indirectly to be enjoyed by any member of the first wife’s family, so that Henry was not free to appoint the property to his estate and dispose of his estate as he wished, or to his creditors and arrange who his creditors were to be. Thus Henry’s power to dispose of the property at his death was by no means substantially as broad as it would have been had he owned it, and from this we conclude, as did the District Court, that the power of appointment was not a general one, even though article 24 of the 1937 regulations is valid, and in consequence that the property subject to the power did not form a part of the decedent’s gross estate.
The judgment of the District Court is affirmed.
Report of the Ways and Means Committee on the Revenue Bill of 1918, H. Rep. No. 767, 65th Cong., 2nd Sess., pp. 21-22 (1939-1 Cum. Bull. (Part 2) 86, 101)
“There has also been included in the gross estate the value of property passing under a general power of appointment. This amendment as well as that preceding is for the purpose of clarifying rather than extending the existing statute. A person having a general power of appointment is, with respect to disposition of the property at his death, in a position not unlike that of its owner. The possessor of the power has full authority to dispose of the property at his death, and there seems to be no reason why the privilege which he exercises should not be taxed in the same degree as other property over which he exercises the same authority. The absence of a provision including property transferred by power of appointment makes it possible, by resorting to the creation of such a power, to effect two transfers of an estate with the payment of only one tax.”
This word was added to the original regulation (article 30 of Regulations 37 of 1918) by article 24 of Regulations 70 of 1926.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_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.
Ezra Taft BENSON, Secretary of Agriculture of the United States, and Commodity Credit Corporation, Appellants, v. UNITED STATES of America et al., Appellees. J. G. BOSWELL AND COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.
Nos. 15359, 15360.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 24, 1960.
Decided June 10, 1960.
Petition for Rehearing Denied July 19, 1960.
Mr. Donald A. Campbell, Atty., Dept, of Agriculture, with whom Messrs. Oliver Gasch, U. S. Atty., and Neil Brooks, Asst. Gen. Counsel, Dept, of Agriculture, were on the brief, for appellants in No. 15,359.
Mr. Walter D. Matson, Washington, D. C., with whom Mr. James K. Knudson, Washington, D. C., was on the brief, for appellants in No. 15,360.
Mr. C. H. Johns, Jr., Associate General Counsel, Interstate Commerce Commission, for appellee Interstate Commerce Commission.
Mr. Frederick G. Pfrommer, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. John Guandolo, Washington, D. C., was on the brief, for appellees Railroad Companies. Messrs. Lawrence Cake and Raymond A. Negus also entered appearances for appellees Railroad Companies.
Mr. Samuel D. Slade, Chief, Appellate Section, Civil Division, Dept, of Justice, entered an appearance for appellee United States of America.
Before Mr. Justice Reed, retired, and Fahy, and Burger, Circuit Judges.
Sitting by designation pursuant to Sec. 294(a), Title 28 U.S.C.
Mr. Justice REED,
sitting by designation.
These are appeals from an order of the United States District Court for the District of Columbia granting a motion for summary judgment by the Interstate Commerce Commission and the intervening railroad carriers, and dismissing a complaint. Judge Sirica held that the action of the Commission in approving certain railroad tariffs on cotton as hereinafter described was based on substantial evidence, and reasonable. The complaint in the present proceeding was filed January 3, 1958, in the United States District Court for the Southern District of New York by Mr. Benson as Secretary of Agriculture under the authority of the Agricultural Adjustment Act of 1938. Many shippers of cotton from the Southwest United States to Gulf and Pacific ports, and Eastern states, joined as plaintiffs. Many carriers intervened as defendants. The case was later transferred for the convenience of the parties to the District Court for the District of Columbia.
The complaint sought to annul and set aside actions of the Interstate Commerce Commission in denying reparations in an administrative proceeding brought under 49 U.S.C.A. § 9 against numerous railroad companies that had carried baled cotton at rates alleged inapplicable because they were higher than those authorized.by the Commission. The District Court’s judgment left the ruling of the Commission intact.
The rates challenged in the reparations proceeding and here were the final result of a ruling by the Interstate Commerce Commission in proposed general increases of tariffs which became effective February 25, 1956. An additional six percent rate increase over several former percentage increases was there allowed because of actual increases in the cost of performing transportation services. All increases were directed to be made on the “basic freight rates and charges of the railroads.” The quoted words have been the standard direction for applying raises in the Increased Freight Rate Cases.
The heart of the controversy is the method that is to be applied in calculating the increases in the existing tariffs ■ for the cotton shipments. Freight charges on cotton have always been calculated upon the hundred pounds. Since cotton weighs lightly but bulks large, the shippers and carriers found it mutually profitable to compress cotton for transportation. The development of the powered compress in the nineteenth century made a contribution in simplifying the handling of cotton comparable to that made by Whitney’s invention of the gin to remove the seed from the lint in the eighteenth century, or the development of the mechanical picker in the twentieth century. To encourage compression the railroads many years ago introduced into their tariffs as an item an allowance for compression frequently limited to “not to exceed twenty-five cents per hundred pounds.” Compression ordinarily costs the shipper more than this allowance. The cost varies according to the charge at the particular compress. Tariffs were developed called compression-in-transit tariffs, abridged to “c.i.t.” Whatever their precise form, there was a freight rate or charge to the shipper of so much per hundred pounds for the carriage of the cotton, and an allowance to the shipper of not to exceed so many cents per cwt for compression, whether the cotton was compressed prior to or in the course of shipment.
As stated above, when subsequent increases of rates were approved, the Commission always directed that the increases were to be applied to “the basic freight rates and charges of the railroads.” The railroads carried out the order by adding the allowed percentage increase each time to their freight charge, continuing to deduct on their freight bills the unincreased compression allowance. The shippers urged that the allowance for compression should be deducted before the allowed percentage increase is calculated. Following is an example of the difference in result. This is drawn from an exhibit and brief for appellants J. G. Boswell and Company, et al., shippers of cotton. It is:
“a shipment of 100 bales of cotton from Bakersfield to the port of Long Beach, California. In making out this freight bill the railroad agent made the following entries:
(Freight Bill No. 005, as rendered)
Weight Rate Prepaid
53575 40 214.30
IC 15% 32.14
246.44
Less O85! CWT comp Allowance 42.86
203.58 Tax 6.11
209.69
The rate of 40 cents per 100 pounds is the gross c.i.t. rate from Bakersfield to Long Beach. The c.i.t. rate minus the stated compression allowance of 8 cents per 100 pounds was applicable to a shipment of cotton which “originated” at the Bakersfield compress. Since it was “compressed in transit at point of origin,” the railroad did not advance the compression charges to the compress company. It will be observed that the railroad agent added the 15-percent Ex Parte 175 surcharge before he deducted the 8 cents per 100 pounds compression allowance, but that the 3-percent transportation excise tax was computed after the deduction of the compression allowance. The shippers contend that the freight bill entries, in accordance with the above quoted governing rules in the general increase tariffs, should have been as follows:
(Freight Bill No. 005, as revised by shippers)
Weight Rate Prepaid
(c.i.t) 40
Less comp, allowance 08 /
53575 (net) 32 171.44
Ex Parte 175 surcharge 15%' 25.72
197.16
Tax 3% 5.91
203.07
On this shipment the Southern Pacific Company collected and retained for transportation services $203.58. The shippers contend the amount paid should have been $197.16 and that they were overcharged in this instance $6.42.
The validity of the claim for reparations turns on the meaning of the terms “basic freight rates and charges.” The shippers assert that the basic rate is the net amount paid by the shipper to the carrier after deduction of the carrier’s allowance to the shipper for compression. That is the c.i.t. rate, less the compression allowance times the weight. The railroads say the basic rate is the c.i.t. rate and the compression allowance is a charge against that basic rate. The method urged by the shippers has been called by the litigants the net rate method ; that urged by the railroads the gross rate method for calculating the allowed rate increase.
In the reparation cases, the Commission, which granted the increase, construed its language as the railroads interpret it. “We believe .that the defendants’ [the railroads] method of applying the general increases was proper and produced the legal rates.” “The c.i.t. rate is a specifically published freight rate to which the findings in the ex parte proceedings contemplated that the authorized increases would be applied.” Following each one of the Increased Freight Rate series of decisions, after the cost rises subsequent to World War II, the railroads have of necessity amended their tariffs to show the addi-
tional percentage allowed them by the then current increase. Under the Interstate Commerce Act, 49 U.S.C.A. § 15(7), the Commission had the duty in supervising the tariffs to satisfy itself of the “lawfulness” of such rate. The method of calculation here under attack was accepted by the Commission. In the Allenberg case, the Commission said, “The assailed rates * * * called c.i.t. rates, are the basic rates in effect on June 30, 1946, subject to subsequent general increases.” Revenue adjustments are normally superimposed on existing rate structures.
The Commission was conscious, at the time the rate increases were being considered, of this very problem of applying the general increases to cotton tariffs subject to a compression allowance. Their opinion in the rate increase proceeding involved here considers the question and decides on a method other than that pressed by appellants to alleviate any inequities. The method selected by the Commission was a rate increase hold-down setting an upper limit on the amount of increase possible by application of the percentage increase. Appellants do not attack the reasonableness of the overall rate and there is no indication, therefore, that the hold-down method of preventing inequality has proven inadequate.
This consideration and approval by the Commission lends impressive weight to the railroads’ contention that they followed the purpose and direction of the Commission in filing their tariffs. The Commission had power, legislative in character, to choose any reasonable method to calculate the proposed increase. In dealing with the interpretation by the Commission, courts accept its factual findings with reasonable support in the record. Even if not a fine question of fact, the meaning of “basic freight rates and charges” is one that depends upon the Commission’s intention in employing the term, seemingly devised by it for use in this very situation. Therefore courts will be slow to adopt any other meaning than the gloss put upon the phrase by the Commission, its author.
The Commission’s interpretation of the proper means of applying the rate increase was confirmed by it after the in-, crease was granted at the time the carriers submitted their revised tariffs to the Commission for approval. The purpose of the increases was to compensate the railroads for rising operating expenses. The new tariffs, after application of the increases showed the rate in terms of the charge per cwt subject to deduction for the unincreased carrier’s allowance for compression under the following note covering transit compression:
“Note 1. — When the shipper has paid the compression charges direct to the compress plant on a shipment of compressed cotton tendered at a compress, such compression charges not to exceed 25 cents per 100 lbs. may be deducted from the total freight charges computed on' the total weight at the CIT rate upon evidence of payment of such compression charges to the compress plant where the shipment was loaded.”
A tariff defined “CIT rate” as follows:
“The term ‘CIT rate’ refers to a commodity rate on cotton, in bales, which rate includes the cost of compression or any proportion thereof or which includes an allowance for the cost of compression.”
The increased tariffs took the “existing rates in cents per 100 lbs” and added to that figure the percentage of increase allowed. In Item No. 10 of such a tariff in Ex Parte 175, 284 I.C.C. 589, these directions appear:
“Item No. 10. — Application of Increased Rates and Charges — Section 1. All charges for line-haul transportation services, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, as provided in tariffs making reference to this tariff, * * * are increased 15 percent, * * *.
“In determining the applicable charge, first ascertain without reference to this tariff the amount of the line-haul transportation charges, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, and then increase the amount so ascertained 15 percent, * * * >>
It will be noted that Item 10 does not refer in any way to the compression charge. Thus they applied the percentage increases to the rate which had been used for the gross cost to the shipper for transportation. These tariffs were approved by the Commission.
The Commission deemed the compression charge a part of the line-haul rate but a non-carrier service. The line-haul rate is the charge for furnishing the line-haul transportation services, that is, those services or allowances that are considered a normal incident to the uninterrupted carriage of the goods from the origin to the destination. This is the transportation rate for carriage-and is to be distinguished from “accessorial” or “terminal” services, for which additional charges are made. The Commission is clearly empowered to determine what is embraced within the line-haul rate.
It is true, as pointed out by Commissioner Murphy, the single dissenter in the Allenberg case, 289 I.C.C. at 587, that when the shipper himself pays for compression before loading or ships c.i.t., he deducts the allowable compress charges from the gross rate, but that does not make the net result the basic freight rate or charge.
The Commission’s • interpretation of the words “basic rates and charges” is consonant with the Commission's purpose in granting the increase. Additional revenue was sought for the carriers. Only the tariff items that brought profit were increased, not the disbursement items.
“As a basis for their contention that only the net rate was increased by the general-increase tariffs, the complainants refer to the following statement in J. G. Boswell Co. v. Alabama G. S. R. Co., 276 I.C.C. 761, concerning such tariffs: ‘It is obvious that the tariffs contemplated only increases in rates and charges from which the carriers were to derive revenue.’ There is nothing in the later finding which requires application of the general increases to the net rate. This is true because the word ‘revenue’ as used in that finding is not synonymous with profit or net income. In other words, the defendants derive revenue from the gross rate as published in their rate tariff, and the disbursement of such revenue, through allowances or otherwise, can have no retroactive effect on the applicability of the general increases. The complainants also refer to decisions wherein a rate is defined as the net cost to the shipper of the transportation of his property. Such decisions were made concerning violations of the Elkins Act. Thus, while the net cost to the shipper is of primary importance in determining if a rebate has been given, it is of no moment in determining an applicable rate under section 6 of the act.”
It is suggested by the appellants that, as is shown in the freight bills set out above, at page 37 of 281 F.2d, the fact that the transportation tax is paid in these bills on the “net” sum is significant in showing that the “basic rate” is the “net” rate. Section 4271 of the Internal Revenue Code, 26 U.S.C.A. § 4271, puts the tax “upon the amount paid * * * for the transportation of property * * * by rail.” Federal Tax Regulations 1955, Part 143, § 13, applies the tax “to any payment, not specifically exempted, for the transportation of property.” But the basic freight rate is not determined by what the Government uses to calculate taxes. Nor is there any indication that the method used in the freight bills is a proper interpretation by the railroads making out the bills of the pertinent tax regulations. In any event, the definition of terms for purposes of taxation is irrelevant to the problem of defining the basic freight rate for purposes of the Interstate Commerce Act.
In view of our agreement with the District Judge’s determination as to the correctness of the railroads’ application of the rate increases, we do not reach the additional question presented below as to whether the Commission was correct in its view that § 16(3) of the Interstate Commerce Act barred the award of reparations on claims of the Commodities Credit Corporation relating to shipments delivered or tendered for delivery more than two years prior to the date of filing of the petition to intervene.
After the argument the court requested counsel to comment on the significance of a change in the method of stating tariff rates on cotton made by the carriers, effective in 1957. The effect is to state a rate for cotton by using the net rate. This eliminates the compression allowance as a factor in the basic freight rate. We think the change shows a simpler method for calculating the payments due the carriers, but we do not see that it affects the problem of what the Commission meant by the basic freight rate or charges.
The basic freight, we conclude, was, as the Commission ruled, the gross amount that was placed in the tariff for the line-haul transportation. The allowance was a charge against that rate. The Commission ruling upon that question is not only within its power to determine rate increases but seems to us to be a reasonable method of separating basic rates or line-haul rates from charges assumed by railroads that are, like compression, incidental to their services but beyond the carrier’s power to control as to cost or method of operation. Where the assailed rate is the result of the application of internally consistent definitions and general criteria and the overall result reached is not unreasonable, there is no basis for disturbing the Commission’s result.
Affirmed.
No. 15,360, J. G. Boswell and Co., et al. v. United States, is an appeal by the private shippers of cotton, affected by the increased rate orders, from the same order of dismissal. As the errors alleged are substantially the same, no separate opinion is necessary.
. Benson et al. v. United States, D.C.D.C. 1959, 175 F.Supp. 264.
. 52 Stat. 36, 7 U.S.C.A. § 1291; Administrative Procedure Act, 5 U.S.C.A. § 1009; Interstate Commerce Act, 49 U.S.C.A. § 17(9).
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71; 298 I.C.C. 577.
. Ex Parte No. 196, Increased Freight Rates 1956, 298 I.C.C. 279, 283.
. 298 I.C.C. at 347. In the orders there were limitations of a maximum of 9 cents per hundred pounds increase on cotton rates. This maximum is not involved in this controversy. Id., at 319. It was used to relieve any undue burden on the shippers. See Ex Parte 206, 299 I.C.C. at 444.
. No. 168 (1948), 272 I.C.C. 695, 717; 276 I.C.C. 9, 113; No. 175 (1951), 280 I.C.C. 179. 189; 281 I.C.C. 557. 639.
Recovery of the extra 20 cents in transportation excise tax (3 percent of the $6.42) is beyond the scope of this action.”
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 298 I.C.C. 577, 584. Cf. A. Levy & J. Zentner Co. v. Southern Pacific Co., 293 I.C.C. 279, for a determination involving a similar problem in the shipment of bananas.
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71, 77.
. This method was necessitated by the complications incident to the republication of new general tariffs. See The Fifteen Per Cent Case (1917) Ex Parte No. 57, 45 I.C.C. 303.
. 298 I.C.C. at 579. See also id., at 316-319. State of New York v. United States, 331 U.S. 284, 350, 67 S.Ct. 1207, 91 L.Ed. 1492.
. 298 I.C.C. at 317-319:
“These interests also assail the lawfulness of the proposed application of the percentage increase on compressed-in-transit (c.i.t) rates on cotton in carloads originating in California and Arizona. * * * The gist of the protest is that the percentage increases in these c.i.t. rates now proposed would be based on the full amount of the rates without regard for the fact that they include these allowances, which are not permanently retained by the carriers. The net result of the proposal is to increase these c.i.t. rates by amounts which are more than 7 percent of the revenues actually retained. * * *
* * * * *
“We believe that there is some merit to the contentions of these protestants, but the suggested remedy of requiring the carriers to eliminate the amounts which they assume for compression from the rates before applying the increases would not be practicable or reasonable for general application in this proceeding. A much more practical and reasonable solution would be to fix a maximum increase on cotton which would accord the same treatment to all cotton in bales, in carloads.”
. “When * * * the Commission declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the legislature, and its pronouncement has the force of a statute.” Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 386, 52 S.Ct. 183, 185, 76 L.Ed. 348:
. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 86 L.Ed. 301; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 180, 187, 59 S.Ct. 160, 83 L.Ed. 111; Levinson v. Spector Motor Service, 330 U.S. 649, 662, 672, 67 S.Ct. 931, 91 L.Ed. 1158.
. Pacific Southcoast Freight Bureau Circular No. 14-W, Agent J. P. Haynes, I.C.C. No. 1529, Effective December 22, 1951, Item 50.
. Id., Item 20.
. Supplement 2, Condensed Tariff of Increased Rates and Charges, No. X-175 A, I.C.C. Docket 30937.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 289 I.C.C. 71, 73, 75. See definition of CIT, supra, note 15.
. Whether as to particular situations a specific service is part of the line haul, or is accessorial or terminal is a frequently litigated issue. Cf. United States v. I.C.C., 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211; Secretary of Agriculture of United States v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015; United States ex rel. Arlington & F. Auto R. Co. v. Elgen, 1938, 68 App.D.C. 393, 98 F.2d 264.
. United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 57 S.Ct. 804, 81 L.Ed. 1186; United States v. Wabash R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 88 L.Ed. 827; United States v. United States Smelting, Refining & Min. Co., 339 U.S. 186, 189-190, 70 S.Ct. 537, 94 L.Ed. 750.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 298 I.C.C. at 583.
. Cf. Armour & Co. v. United States, Ct.Cl.1959, 169 F.Supp. 521.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_direct1
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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 determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
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
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
John S. SORENSON and T. S. B. Nielsen, Copartners Trading under the Firm Name and Style of Sorenson & Nielsen, Appellants, v. BELTS WHARF WAREHOUSE, Inc., Curtis Bay Towing Company, and Monarch Stevedore Company, Appellees. J. ARON & COMPANY, Inc., on Behalf of Itself and of Its Automobile Insurance Company, Intervening Petitioner, Appellant, v. BELTS WHARF WAREHOUSE, Inc., Curtis Bay Towing Company and Monarch Stevedore Company, Appellees.
(Circuit Court of Appeals, Fourth Circuit.
January 15, 1926.)
Nos. 2405, 2406.
Appeals from the District Court of the United States for the District of Maryland, at Baltimore.
Frank B. Ober and Stuart S. Janney, both of Baltimore, Md. (Janney, Ober, Slingluff & Williams, of Baltimore, Md., and Bigham, Englar & Jones, of New York City, on the brief), for appellants.
L. Vernon Miller and Frank Gosnell, both of Baltimore, Md. (Marbury, Gosnell & Williams, of Baltimore, Md., on the brief), for appellees.
Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.
PER CURIAM.
These appeals bring up for review no questions of law. They turn upon matters of fact, or upon what are the inferences properly to he drawn from facts admitted or supposed to be proved. Wo have examined the record, and are satisfied with the conclusion below.
Affirmed.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_juryinst
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Roy GREEN, Defendant-Appellant.
No. 90-2239.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 10, 1990.
Decided March 21, 1991.
Ruth M. Heitz, Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.
Daniel W. Hildebrand, Ross & Stevens, Madison, Wis., for defendant-appellant.
Before CUDAHY, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge.
Defendant Roy Green was convicted of two counts of assaulting a federal officer in violation of 18 U.S.C. § 111. He appeals, challenging the district court’s jury instruction concerning the duties ' of the federal officers who were the victims of the assaults, the district court’s failure to instruct the jury that the assault must be willful, and its instruction that the government does not have to prove that the assaults caused injury. We affirm the convictions but remand the case for resentenc-ing.
I. FACTS AND PRIOR PROCEEDINGS
Roy Green is a prisoner who on December 4, 1989 was serving his sentence at the Federal Correctional Institution in Oxford, Wisconsin. On the morning of December 4, the food administrator at Oxford, Thomas Buchberger, complained to Randall White, a cook-foreman at the prison, about the cleanliness of a hallway outside the prison dining hall. White supervised a group of inmates who were responsible for sanitation in the dining hall area. The inmate responsible for maintaining the hallway that attracted Buchberger’s attention was Martin Fitzgerald, whom White ordered to clean it. Fitzgerald refused to comply with this request, and White and Fitzgerald began to argue. A crowd of inmates gathered at the scene, including the defendant in this case, Roy Green.
White sought to disperse the group of prisoners, and was for the most part successful. Green, however, was one of several inmates who refused to leave the scene. When White attempted to use his walkie-talkie to call for guards to break up the remaining inmates, Green punched him in the jaw, knocking him to the floor. Another cook-foreman, Rick Gruen, came to White’s assistance and restrained Green. While he was being restrained, Green hit Gruen as well.
A grand jury returned an indictment against Green, charging him with two counts of violating 18 U.S.C. § 111, the first relating to the blow to White’s jaw, the second to the fight with Gruen. Following a one-day jury trial, Green was found guilty under both counts. He was sentenced to thirty-seven month concurrent sentences on each count, to be served after he completed the remainder of the sentence he was serving when the assaults occurred.
II. THE DUTIES OF A FEDERAL CORRECTIONS OFFICER
Section 111(a)(1) makes it a crime to forcibly assault a federal employee who falls within a large number of protected categories while that employee is “engaged in or on account of the performance of official duties.” The protected categories include officers and employees “of any United States penal or correctional institution.” 18 U.S.C. § 1114. The duties of a federal employee are a question of federal law, United States v. Kelley, 850 F.2d 212, 213 (5th Cir.), cert. denied, 488 U.S. 911, 109 S.Ct. 267, 102 L.Ed.2d 255 (1988), but whether an assaulted federal employee is “engaged in” official duties when he is assaulted, or whether the assault takes place “on account of” these duties, are questions of fact. United States v. Hoffer, 869 F.2d 123, 126 (2d Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1989); United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir.1983). Proof beyond a reasonable doubt that at the time of the assault the victim was engaged in the performance of his official duties or was attacked on account of these duties is an essential element of a violation of § 111. United States v. Hohman, 825 F.2d 1363, 1365 (9th Cir.1987); United States v. Boone, 738 F.2d 763, 765 (6th Cir.), cert. denied, 469 U.S. 1042, 105 S.Ct. 528, 83 L.Ed.2d 416 (1984).
Green alleges that the district court improperly removed the factual question of whether the government had satisfied this element of the offense from the jury by instructing it that
The duties of a federal correctional employee include providing for the safekeeping, protection, and discipline of all persons housed within federal correctional institutions.
You may find that the victims were engaged in the performance of official duties if you find that at the time of the alleged assault they were acting within the scope of what they were employed to do.
Record Entry (“R.”) 40. The district court derived this instruction from 18 U.S.C. § 4042, which lists the duties of the Bureau of Prisons. Green argues that the duties of the Bureau of Prisons are broader than the duties of the individual prison employees he assaulted and that the district court’s instruction ignored this distinction. He contends that this error prevented the jury from reaching the factual question of whether in seeking to discipline Fitzgerald and disperse the gathered group of prisoners White and Gruen went beyond the performance of their official duties.
We agree that not every employee of the Bureau of Prisons performs the full range of the Bureau’s duties as set out in § 4042. The resolution of the issue Green raises on appeal depends, however, not on the abstract possibility that the duties of a Bureau employee would not extend to discipline and maintaining order but on the question of whether the district court’s instruction accurately represented the duties of White and Gruen and left it for the jury to determine whether they were fulfilling these duties when Green assaulted them. We conclude that it did both.
Green points to the fact that both White and Gruen were prison food service workers rather than guards to argue that when White disciplined Fitzgerald and attempted to disperse the group of inmates, and when Gruen came to White’s aid, they went beyond the scope of their duties. Cases interpreting the phrase “engaged in or on account of the performance of official duties” in § 111, however, do not support this kind of occupational pigeonholing, opting instead for an interpretation of this phrase that is broad enough to fulfill Congresses goals of protecting federal officers and facilitating the accomplishment of federal functions. See, e.g., United States v. Reid, 517 F.2d 953, 964 (2d Cir.1975) (Friendly, J.); Hoffer, 869 F.2d at 125-26; Boone, 738 F.2d at 765; Lopez, 710 F.2d at 1074. Given the sweep of the phrase “official duties,” the district court did not err in instructing the jury that the duties of a federal prison employee, even a food service worker, extend to “safekeeping, protection and discipline.” Having been accurately apprised as to the scope of a prison employee’s duties, the jury was instructed to determine whether White and Gruen remained within the admittedly broad roles federal law assigns prison employees when Green used force against them.
III. WILLFULNESS INSTRUCTION
The second ground Green raises on appeal is the district court’s refusal to instruct the jury that in order to convict it had to conclude that his assaults were willful and to define willful as knowing, intentional, and voluntary. Green argues that the alleged assault on Gruen was not willful because it occurred inadvertently when Gruen, having come to White’s assistance, had Green in a bear-hug. He also observes that other circuits which, unlike this one, have jury instructions for violations of § 111, include a willfulness instruction. The government responds that Gruen testified that the blows he received were from actual punches and not incidental contact. It also points out that the statute does not contain a willfulness requirement and this Circuit’s pattern jury instructions discourage instructions defining willfulness when it is not an element of the offense.
Green’s argument is not wholly without merit. Assaults are specific intent crimes, requiring proof that the defendant intended to frighten or inflict harm upon his victim. It is true that in dicta in United States v. Streich, 759 F.2d 579 (7th Cir.), cert. denied, 474 U.S. 860, 106 S.Ct. 172, 88 L.Ed.2d 142 (1985), we expressed the view that willfulness is not an element of an offense under § 111. Id. at 585. However, in that case a willfulness instruction was given, and the issue on appeal was the district court's refusal to give an instruction defining the word “willfully,” a practice we have criticized as unnecessary where the word does not appear in the statute. 1 Federal Criminal Instructions of the Seventh Circuit § 6.03 (1980); United States v. Valencia, 907 F.2d 671, 683 (7th Cir.1990).
However, we are not convinced by defendant’s argument that the failure to give a willfulness instruction left the jury in the dark about the mental state they had to find Green possessed in order to convict him of assault. In defining the term “forcible assault” used in § 111, the district court told the jury that the term meant “any intentional display of force such as would give the victim reason to fear or to expect immediate bodily harm.” R. 40 (emphasis supplied). Thus, viewing the instructions as a whole, see, e.g., United States v. McNeese, 901 F.2d 585, 607 (7th Cir.1990), the jury was told that to find that Green committed a forcible assault on Gruen it had to find that Green acted intentionally, a mental state akin to willfulness. Furthermore, the evidence that Green acted willfully was overwhelming. All three witnesses to the attack on Gruen—the victim himself, White, and Buchberger—testi-fied that though Gruen sought to restrain Green, Green’s arms remained free and he used them to punch Gruen repeatedly in the ribs. This uncontradicted evidence negates any inference that Green’s contact with Gruen was inadvertent.
IV. INJURY INSTRUCTION
The last argument Green raises in this appeal also concerns a jury instruction. In defining the term “forcible assault” the district court instructed the jury that the government did not have to prove that the “defendant injured or intended to injure” his victims. Green argues that this instruction was error because it unduly emphasized the possibility of non-injurious assault, drawing the jury’s attention away from those elements of “forcible assault” the government did have to prove. As defendant concedes, however, the instruction that § 111 imposes no requirement of injury or intended injury is a correct statement of the law. Indeed, numerous cases have affirmed convictions under § 111 where all the defendant has done is to brandish a weapon or otherwise threaten the federal officer or employee. See, e.g., United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987) (force element of § 111 “may be satisfied by proof that there was such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death”); Streich, 759 F.2d at 582 (affirming conviction where defendant held gun in presence of IRS agents). “ ‘As long as the instructions treat the issues fairly and adequately, they will not be interfered with on appeal.’ ” McNeese, 901 F.2d at 607 (quoting United States v. Fournier, 861 F.2d 148, 150 (7th Cir.1988)). The district court’s instruction that the government need not prove injury was a fair and adequate statement of the law.
V. SENTENCE
The district court sentenced Green to 37 months on each count of violating § 111, with the two sentences to be served concurrently. However, the maximum sentence allowed under the statute for each violation of § 111 is three years. 18 U.S.C. § 111(a). We therefore remand this case to the district court for resentencing.
VI. CONCLUSION
For the foregoing reasons, defendant’s convictions are affirmed, but the case is remanded to the district court for the entry of a new sentence.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_petitioner
|
178
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL v. O’NEILL ET AL.
No. 89-1493.
Argued January 14, 1991
Decided March 19, 1991
Stevens, J., delivered the opinion for a unanimous Court.
Laurence Gold argued the cause for petitioner. With him on the briefs were Harold G. Levison, Jed S. Rakoff, David Silberman, Gary Green, and John A. Irvine.
Marty Har-per argued the cause for respondents. With him on the brief were John P. Frank, Allen R. Clarke, and Janet Napolitano.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and James A. Feldman; and for Continental Airlines, Inc., by John J. Gallagher and Charles L. Warren.
Justice Stevens
delivered the opinion of the Court.
We granted certiorari to clarify the standard that governs a claim that a union has breached its duty of fair representation in its negotiation of a back-to-work agreement terminating a strike. We hold that the rule announced in Vaca v. Sipes, 386 U. S. 171, 190 (1967)—that a union breaches its duty of fair representation if its actions are either “arbitrary, discriminatory, or in bad faith” — applies to all union activity, including contract negotiation. We further hold that a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a “wide range of reasonableness,” Ford Motor Co. v. Huffman, 345 U. S. 330, 338 (1953), as to be irrational.
> — I
This case arose out of a bitter confrontation between Continental Airlines, Inc. (Continental), and the union representing its pilots, the Air Line Pilots Association, International (ALPA). On September 24, 1983, Continental filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. Immediately thereafter, with the approval of the Bankruptcy Court, Continental repudiated its collective-bargaining agreement with ALPA and unilaterally reduced its pilots’ salaries and benefits by more than half. ALPA responded by calling a strike that lasted for over two years. See 886 F. 2d 1438, 1440 (CA5 1989).
Of the approximately 2,000 pilots employed by Continental, all but about 200 supported the strike. By the time the strike ended, about 400 strikers had “crossed over” and been accepted for reemployment in order of reapplication. App. to Brief for Continental Airlines, Inc., as Amicus Curiae All, and n. 8. By trimming its operations and hiring about 1,000 replacements, Continental was able to continue in business. By August 1986, there were 1,600 working pilots and only 1,000 strikers. 886 F. 2d, at 1440.
The strike was acrimonious, punctuated by incidents of violence and the filing of a variety of lawsuits, charges, and countercharges. In August 1985, Continental notified ALPA that it was withdrawing recognition of ALPA as the collective-bargaining agent for its pilots. ALPA responded with a federal lawsuit alleging that Continental was unlawfully refusing to continue negotiations for a new collective-bargaining agreement. In this adversary context, on September 9, 1985, Continental posted its “Supplementary Base Vacancy Bid 1985-5” (85-5 bid) — an act that precipitated not only an end to the strike, but also the litigation that is now before us. Ibid.
For many years Continental had used a “system bid” procedure for assigning pilots to new positions. Bids were typically posted well in advance in order to allow time for necessary training without interfering with current service. When a group of vacancies was posted, any pilot could submit a bid specifying his or her preferred position (captain, first officer, or second officer), base of operations, and aircraft type. Ibid. In the past, vacant positions had been awarded on the basis of seniority, determined by the date the pilot first flew for Continental. The 85-5 bid covered an unusually large number of anticipated vacancies — 441 future captain and first officer positions and an undetermined number of second officer vacancies. Pilots were given nine days — until September 18, 1985 — to submit their bids. Id., at 1441.
Fearing that this bid might effectively lock the striking pilots out of jobs for the indefinite future, ALP A authorized the strikers to submit bids. Several hundred did so, as did several hundred working pilots. Although Continental initially accepted bids from both groups, it soon became concerned about the bona fides of the striking pilots’ offers to return to work at a future date. It therefore challenged the strikers’ bids in court and announced that all of the 85-5 bid positions had been awarded to working pilots. Ibid.
At this juncture, ALP A intensified its negotiations for a complete settlement. ALPA’s negotiating committee and Continental reached an agreement, which was entered as an order by the Bankruptcy Court on October 31, 1985. See App. 7-41. The agreement provided for an end to the strike, the disposition of all pending litigation, and reallocation of the positions covered by the 85-5 bid. See id., at 10-34.
The agreement offered the striking pilots three options. Under the first, pilots who settled all outstanding claims with Continental were eligible to participate in the allocation of the 85-5 bid positions. Under the second option, pilots who elected not to return to work received severance pay of $4,000 per year of service (or $2,000 if they had been furloughed before the strike began). Under the third option, striking pilots retained their individual claims against Continental and were eligible to return to work only after all the first option pilots had been reinstated. See 886 F. 2d., at 1441-1442.
Pilots who chose the first option were thus entitled to some of the 85-5 bid positions that, according to Continental, had previously been awarded to working pilots. The first 100 captain positions were allocated to working pilots and the next 70 captain positions were awarded, in order of seniority, to returning strikers who chose option one. App. 13. Thereafter, striking and nonstriking pilots were eligible for captain positions on a 1-to-l ratio. Id., at 13-14. The initial base and aircraft type for a returning striker was assigned by Continental, but the assignments for working pilots were determined by their bids. 886 F. 2d, at 1441. After the initial assignment, future changes in bases and equipment were determined by seniority, and striking pilots who were in active service when the strike began received seniority credit for the period of the strike. See App. 22.
f-H HH
Several months after the settlement, respondents, as representatives of a class of former striking pilots, brought this action against ALPA. See App. 1. In addition to raising other charges not before us, respondents alleged that the union had breached its duty of fair representation in negotiating and accepting the settlement. After extensive discovery, ALPA filed a motion for summary judgment. See id., at 3. Opposing that motion, respondents identified four alleged breaches of duty, including the claim that “ALPA negotiated an agreement that arbitrarily discriminated against striking pilots.”
The District Court granted the motion, relying alternatively on the fact that the Bankruptcy Court had approved the settlement and on its own finding that, even if the October 31 settlement was merely a private agreement, ALPA did not breach its duty of fair representation. In his oral explanation of his ruling, the District Judge opined that “the agreement that was achieved looks atrocious in retrospect, but it is not a breach of fiduciary duty badly to settle the strike.” App. 75.
The Court of Appeals reversed. 886 F. 2d 1438 (CA5 1989). It first rejected ALPA’s argument that a union cannot breach its duty of fair representation without intentional misconduct. The court held that the duty includes “‘three distinct’ ” components. Id., at 1444 (quoting Tedford v. Peabody Coal Co., 533 F. 2d 952, 957, n. 6 (CA5 1976)). A union breaches the duty if its conduct is “‘arbitrary, discriminatory, or in bad faith.’” 886 F. 2d, at 1444 (quoting Vaca v. Sipes, 386 U. S., at 190). With respect to the arbitrariness component, the Court of Appeals followed Fifth Circuit precedent, stating:
“‘We think a decision to be non-arbitrary must be (1) based upon relevant, permissible union factors which excludes the possibility of it being based upon motivations such as personal animosity or political favoritism; (2) a rational result of the consideration of these factors; and (3) inclusive of a fair and impartial consideration of the interests of all employees.’” 886 F. 2d, at 1444 (quoting Tedford, 533 F. 2d, at 957) (footnotes omitted and emphasis added by the Court of Appeals).
Applying this arbitrariness test to the facts of this case, the Court of Appeals concluded that a jury could find that ALPA acted arbitrarily because the jury could find that the settlement “left the striking pilots worse off in a number of respects than complete surrender to [Continental].” 886 F. 2d, at 1445. That conclusion rested on the court’s opinion that the evidence suggested that, if ALPA had simply surrendered and made an unconditional offer to return to work, the strikers would have been entitled to complete priority on all the positions covered by the 85-5 bid. Relying on a District Court decision in litigation between ALPA and another airline, the court rejected ALPA’s argument that the 85-5 bid positions were arguably not vacancies because they had already been assigned to working pilots. Id., at 1446. In addition, the Court of Appeals ruled that the evidence raised a genuine issue of material fact whether the favored treatment of working pilots in the allocation of 85-5 bid positions constituted discrimination against those pilots who had chosen to strike. Id., at 1446-1447.
The court held that respondents had raised a jury question whether ALPA had violated its duty to refrain from “arbitrary” conduct, and the court therefore remanded the case for trial. Id., at 1448-1449. Because it reversed the District Court’s grant of summary judgment on the arbitrariness component, the Court of Appeals did not decide whether summary judgment on the fair representation claim might be precluded by the existence of other issues of fact.
We granted certiorari to review the Court of Appeals’ statement of the standard governing an alleged breach of a union’s duty of fair representation and the court’s application of the standard in this case. 498 U. S. 806 (1990).
III
ALPA's central argument is that the duty of fair represen tation requires only that a union act in good faith and treat its members equally and in a nondiscriminatory fashion. The duty, the union argues, does not impose any obligation to provide adequate representation. The District Court found that there was no evidence that ALPA acted other than in good faith and without discrimination. Because of its view of the limited scope of the duty, ALPA contends that the District Court’s finding, which the Court of Appeals did not question, is sufficient to support summary judgment.
The union maintains, not without some merit, that its view that courts are not authorized to review the rationality of good-faith, nondiscriminatory union decisions is consonant with federal labor policy. The Government has generally regulated only “the process of collective bargaining,” H. K. Porter Co. v. NLRB, 397 U. S. 99, 102 (1970) (emphasis added), but relied on private negotiation between the parties to establish “their own charter for the ordering of industrial relations,” Teamsters v. Oliver, 358 U. S. 283, 295 (1959). As we stated in NLRB v. Insurance Agents, 361 U. S. 477, 488 (1960), Congress “intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.” See also Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 219 (1979).
There is, however, a critical difference between governmental modification of the terms of a private agreement and an examination of those terms in search for evidence that a union did not fairly and adequately represent its constituency. Our decisions have long recognized that the need for such an examination proceeds directly from the union’s statutory role as exclusive bargaining agent. “[T]he exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf.” Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 202 (1944).
The duty of fair representation is thus akin to the duty owed by other fiduciaries to their beneficiaries. For example, some Members of the Court have analogized the duty a union owes to the employees it represents to the duty a trustee owes to trust beneficiaries. See Teamsters v. Terry, 494 U. S. 558, 567-568 (1990); id., at 584-588 (Kennedy, J., dissenting). Others have likened the relationship between union and employee to that between attorney and client. See id., at 582 (Stevens, J., concurring in part and concurring in judgment). The fair representation duty also parallels the responsibilities of corporate officers and directors toward shareholders. Just as these fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a union owes employees a duty to represent them adequately as well as honestly and in good faith. See, e. g., Restatement (Second) of Trusts § 174 (1959) (trustee’s duty of care); Strickland v. Washington, 466 U. S. 668, 686 (1984) (lawyer must render “adequate legal assistance”); Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F. 2d 264, 274 (CA2 1986) (directors owe duty of care as well as loyalty).
ALPA suggests that a union need owe no enforceable duty of adequate representation because employees are protected from inadequate representation by the union political process. ALPA argues, as has the Seventh Circuit, that employees “do not need... protection against representation that is inept but not invidious” because if a “union does an incompetent job...its members can vote in new officers who will do a better job or they can vote in another union.” Dober v. Roadway Express, Inc., 707 F. 2d 292, 295 (CA7 1983). In Steele, the case in which we first recognized the duty of fair representation, we also analogized a union’s role to that of a legislature. See 323 U. S., at 198. Even legislatures, however, are subject to some judicial review of the rationality of their actions. See, e. g., United States v. Carolene Products Co., 304 U. S. 144 (1938); Department of Agriculture v. Moreno, 413 U. S. 528 (1973).
ALPA relies heavily on language in Ford Motor Co. v. Huffman, 345 U. S. 330 (1953), which, according to the union, suggests that no review of the substantive terms of a settlement between labor and management is permissible. In particular, ALPA stresses our comment in the case that “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id., at 338. Unlike ALPA, we do not read this passage to limit review of a union’s actions to “good faith and honesty of purpose,” but rather to recognize that a union’s conduct must also be within “[a] wide range of reasonableness.”
Although there is admittedly some variation in the way in which our opinions have described the unions’ duty of fair representation, we have repeatedly identified three components of the duty, including a prohibition against “arbitrary” conduct. Writing for the Court in the leading case in this area of the law, Justice White explained:
“The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210, and was soon extended to unions certified under the N. L. R. A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U. S., at 342. It is obvious that Owens’ complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action.” Vaca v. Sipes, 386 U. S., at 177.
This description of the “duty grounded in federal statutes” has been accepted without question by Congress and in a line of our decisions spanning almost a quarter of a century.
The union correctly points out, however, that virtually all of those cases can be distinguished because they involved contract administration or enforcement rather than contract negotiation. ALPA argues that the policy against substantive review of contract terms applies directly only in the negotiation area. Although this is a possible basis for distinction, none of our opinions has suggested that the duty is governed by a double standard. Indeed, we have repeatedly noted that the Vaca v. Sipes standard applies to “challenges leveled not only at a union’s contract administration and enforcement efforts but at its negotiation activities as well.” Communications Workers v. Beck, 487 U. S. 735, 743 (1988) (internal citation omitted); see also Electrical Workers v. Foust, 442 U. S. 42, 47 (1979); Vaca v. Sipes, 386 U. S., at 177. We have also held that the duty applies in other instances in which a union is acting in its representative role, such as when the union operates a hiring hall. See Breininger v. Sheet Metal Workers, 493 U. S. 67, 87-89 (1989).
We doubt, moreover, that a bright line could be drawn between contract administration and contract negotiation. Industrial grievances may precipitate settlement negotiations leading to contract amendments, and some strikes and strike settlement agreements may focus entirely on questions of contract interpretation. See Conley v. Gibson, 355 U. S. 41, 46 (1957); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 581 (1960). Finally, some union activities subject to the duty of fair representation fall into neither category. See Breininger, 493 U. S., at 87-89.
We are, therefore, satisfied that the Court of Appeals correctly concluded that the tripartite standard announced in Vaca v. Sipes applies to a union in its negotiating capacity. We are persuaded, however, that the Court of Appeals’ further refinement of the arbitrariness component of the standard authorizes more judicial review of the substance of negotiated agreements than is consistent with national labor policy.
As we acknowledged above, Congress did not intend judicial review of a union’s performance to permit the court to substitute its own view of the proper bargain for that reached by the union. Rather, Congress envisioned the relationship between the courts and labor unions as similar to that between the courts and the legislature. Any substantive examination of a union’s performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities. Cf. Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (court does “not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare”); United States v. Carolene Products, 304 U. S., at 154 (where “question is at least debatable,” “decision was for Congress”). For that reason, the final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a “wide range of reasonableness,” Ford Motor Co. v. Huffman, 345 U. S., at 338, that it is wholly “irrational” or “arbitrary.”
The approach of the Court of Appeals is particularly flawed because it fails to take into account either the strong policy favoring the peaceful settlement of labor disputes, see, e. g., Groves v. Ring Screw Works, Ferndale Fastener Div., 498 U. S. 168, 174 (1990), or the importance of evaluating the rationality of a union’s decision in light of both the facts and the legal climate that confronted the negotiators at the time the decision was made. As we shall explain, these factors convince us that ALPA’s agreement to settle the strike was not arbitrary for either of the reasons posited by the Court of Appeals.
IV
The Court of Appeals placed great stress on the fact that the deal struck by ALPA was worse than the result the union would have obtained by unilateral termination of the strike. Indeed, the court held that a jury finding that the settlement was worse than surrender could alone support a judgment that the union had acted arbitrarily and irrationally. See 886 F. 2d, at 1445-1446. This holding unduly constrains the “wide range of reasonableness,” 345 U. S., at 338, within which unions may act without breaching their fair representation duty.
For purposes of decision, we may assume that the Court of Appeals was correct in its conclusion that, if ALPA had simply surrendered and voluntarily terminated the strike, the striking pilots would have been entitled to reemployment in the order of seniority. Moreover, we may assume that Continental would have responded to such action by rescinding its assignment of all of the 85-5 bid positions to working pilots. After all, it did rescind about half of those assignments pursuant to the terms of the settlement. Thus, we assume that the union made a bad settlement — one that was even worse than a unilateral termination of the strike.
Nevertheless, the settlement was by no means irrational. A settlement is not irrational simply because it turns out in retrospect to have been a bad settlement. Viewed in light of the
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_respondentstate
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01
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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 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.
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: 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:
|
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. RYAN.
No. 281.
Argued January 19, 1956.
Decided February 27, 1956.
Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Richard J. Blanchard.
Louis Waldman argued the cause for respondent. With him on the brief were Seymour M. Waldman and Martin Markson.
Pierce Butler, John C. Benson and M. J. Doherty filed a brief, as amici curiae, supporting respondent.
Mr. Justice Clark
delivered the opinion of the Court.
The question for decision in this case is whether the president and principal negotiator of a labor union is a “representative” of employees within the meaning of § 302 (b) of the Labor Management Relations Act of 1947. 61 Stat. 136, 29 U. S. C. § 141. That section makes it unlawful for “any representative of any employees” to receive money or other thing of value from the employer. The District Court, 128 F. Supp. 128, held that respondent Joseph P. Ryan was a “representative” within the meaning of § 302 (b), but the Court of Appeals for the Second Circuit reversed, Judge Hand dissenting. 225 F. 2d 417. Because of the importance of this question in the administration of the Act, we granted certiorari, 350 U. S. 860.
Ryan was president of The International Longshoremen’s Association (ILA) during the years 1950 and 1951. The ILA and its affiliated groups were the recognized collective-bargaining agents for longshore labor in the Port of New York, and bargained through a wage scale committee of which Ryan was a member. He signed the agreements negotiated during that period. J. Arthur Kennedy & Son, Inc., and Daniels & Kennedy, Inc., were concerns engaged in stevedoring operations; their employees were members of the ILA, and they were bound by the agreements negotiated with that union by the New York Shipping Association. The District Court found that James C. Kennedy, president of both Kennedy companies, had given Ryan $1,000 in December of each year from 1946 through 1951, and $500 in April 1951. These findings are not disputed. Ryan was indicted under § 302 (b) for accepting the one 1950 and two 1951 payments. He was found guilty and sentenced to six months’ imprisonment on each of the three counts, the sentences to run concurrently, and fined $2,500.
The Court of Appeals reversed solely on its interpretation of the term “representative” in § 302 (b) of the LMRA. It concluded that the term had a technical meaning in labor legislation and was limited to “the exclusive bargaining representative” of the employees, which in this case was the ILA itself. Since the section applied only to the “representative,” payments to Ryan individually were not covered even though as president of the representative union, he was a member of its wage scale committee and signed all negotiated agreements. We do not decide whether any official of a union is ex officio a representative of employees under § 302. We believe, however, that respondent’s relationship brings him within that term.
The LMRA provides that the term “representative” shall have “the same meaning as when used in the National Labor Relations Act as amended by this Act.” §501 (3). The pertinent definition appears in §2(4) of the NLRA: “The term 'representatives’ includes any individual or labor organization.” 49 Stat. 449, 450, 29 U. S. C. §§ 151, 152 (4).
The Board has held that employees may choose to elect an individual as exclusive or sole bargaining representative. The Court of Appeals, laying much stress on these holdings, assumes that the possibility of such a one-man exclusive bargaining representative, though extremely rare, is the only reason for the inclusion of the word “individual” in this definition. We cannot accept such an anomalous view. It is obvious that any labor organization, even when serving as an exclusive bargaining representative, can negotiate, speak, and act only through individuals. All collective bargaining is conducted by individuals who represent labor and management. Many limitations or prohibitions upon labor organization action can be effective only if there are corresponding limitations or prohibitions on the individuals who act for the labor organization. Congress, we believe, placed the identical limitations on both individuals and organizations by terming both “representatives” of employees in § 2 (4). We agree with Judge Hand that in using the term “representative” Congress intended that it include any person authorized by the employees to act for them in dealings with their employers.
Considering the precise words of the statute — “any representative of any employees” — it is plain that their literal meaning strongly suggests that they were meant to include someone in the position of respondent Ryan who represented employees both as a union president and principal negotiator. And this interpretation is strengthened by a consideration of the full text of § 302. ' Paragraphs (a) and (b) of § 302 make it unlawful for any employer to offer, or any representative to accept, money or other thing of value. Paragraph (c) lists five exceptions to these broad prohibitions. The first exempts payments as compensation for services “to any representative who is an employee” of the employer. Thus it is clear that § 302 anticipates that a “representative” may be an individual. Of the remaining four exceptions, one could apply only to unions but each of the other three could apply as readily to individuals.
Further, a narrow reading of the term “representative” would substantially defeat the congressional purpose. In 1946 Congress was disturbed by the demands of certain unions that the employers contribute to “welfare funds” which were in the sole control of the union or its officers and could be used as the individual officers saw fit. The United Mine Workers’ demand that mine operators create a welfare fund for the union by contributing 10 cents for each ton of coal mined, caused the Congress to act. The Case Bill, H. R. 4908, 79th Cong., 2d Sess., which regulated welfare funds in a manner similar to § 302, was enacted in 1946, but was vetoed by the President. The following year the Taft-Hartley Act containing § 302 was passed over another veto. But, if “representative” means only the “exclusive bargaining representative,” the explicit limitations on welfare funds in § 302 (c) (5) may be easily evaded. Payments made directly to union officials, or to other individuals as trustees, would apparently be excluded from § 302. Thus, a narrow construction would frustrate the primary intent of Congress.
Nor can it be contended that in this legislation Congress was aiming solely at the welfare fund problem. Such a suggestion is supported neither by the legislative history nor the structure of the section. The arrangement of § 302 is such that the only reference to welfare funds is contained in § 302 (c)(5). If Congress intended to deal with that problem alone, it could have done so directly, without writing a broad prohibition in subsections (a) and (b) and five specific exceptions thereto in subsection (c), only the last of which covers welfare funds. As the statute reads, it appears to be a criminal provision, malum prohibitum, which outlaws all payments, with stated exceptions, between employer and representative.
The legislative history supports these conclusions. As passed by the House of Representatives, the Hartley Bill forbade employer contributions to union welfare funds, and made it an unfair labor practice to give favors to “any person in a position of trust in a labor organization . . . .” H. R. 3020, 80th Cong., 1st Sess., § 8 (a) (2). The scope of this bill was enlarged when it'reached the Senate to include, in the words of Senator Taft, a “case where the union representative is shaking down the employer . . . 93 Cong. Rec. 4746. The resulting Senate amendment made it criminal both for the employer and the “representative” of employees to engage in such practices.
It is not disputed that the plain language of the Senate version of the bill brought within its coverage any individual who dealt with an employer on behalf of two or more of the latter’s employees concerning employment matters. As passed by the Senate, § 302 contained a special definition of the term “representative.” The Joint Conference Committee substituted for it the definition of that term in the NLRA, as amended. § 501 (3). This substitution was among those described by the Joint Conference Committee Report as “minor clarifying changes.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., at 67.
We cannot read this history as supporting the conclusion that the scope of § 302 was limited by the Joint Conference to include only the “exclusive bargaining representative” of employees. Such a change would have drastically reduced the scope of the section, and could hardly be described as a “minor clarifying” change. Certainly, in the face of this legislative history, we should not reduce the legislation to a practical nullity.
It is insisted that this interpretation clashes with the use of the term “representative” in various sections of the NLRA. In the majority of the examples given, the scope of the term is made clear by other words in the provisions themselves. But further, the provision in the LMRA that “representative” shall have its NLRA meaning is no more applicable to § 302 than to any other section of the LMRA, and in several other sections of that Act it is patent that “representative” cannot be construed to include only the exclusive bargaining representative. For example, § 204 (a) refers to “employers and employees and their representatives,” and § 211 (a) refers to “interested representatives of employers, employees, and the general public.” There are other examples, but these are sufficient. If the severely restricted construction contended for the word “representative” is inapplicable to one section of the LMRA, there is no compulsion to apply it to any other section.
We conclude, therefore, that § 302 prohibits payments by employers to individuals who represent employees in their relations with the employers. The judgment is
Reversed and remanded.
Mr. Justice Harlan took no part in the consideration or decision of this case.
The previous section, 302 (a), makes it unlawful for any employer “to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce.” The record does not disclose whether the Government has taken any action under this section against the employers involved.
See The Robinson-Ransbottom Pottery Co., 27 N. L. R. B. 1093; Louisville Sanitary Wiper Co., 65 N. L. R. B. 88.
Statistics supplied by the NLRB for the last two years show that one-man exclusive bargaining representatives constitute less than 0.1 % of all representatives certified by the Board. In fiscal year 1955, the Board, certified 1 individual in 2,904 elections in which representatives were chosen. There were 10 petitions for certification filed by individuals in 4,372 elections. In fiscal 1954, 5 individuals were certified in 3,108 elections in which representatives were chosen. There were 11 such petitions and a total of 4,813 elections.
“Sec. 302. (a) It shall be unlawful for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce.
“(b) It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.
“(c) The provisions of this section shall not be applicable (1) with respect to any money or other thing of value payable by an employer to any representative who is an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer; (2) with respect to the payment or delivery of any money or other thing of value in satisfaction of a judgment of any court or a decision or award of an arbitrator or impartial chairman or in compromise, adjustment, settlement or release of any claim, complaint, grievance, or dispute in the absence of fraud or duress; (3) with respect to the sale or purchase of an article or commodity at the prevailing market price in the regular course of business; (4) with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner; or (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents) : Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of the employees may agree upon and in the event the employer and employee groups dead-dock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust” fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.
“(d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both. . . .” 61 Stat. 157, 29 U. S. C. §186.
Subsection (4), relating to check-off payments for union dues, presupposes that the “representative” is the labor union itself. Subsections (2), relating to payments of judgments or arbitration awards, (3), relating to purchase or sale of goods in the ordinary course of business, and (5), relating to payments to trust or welfare funds, however, are consistent with either interpretation of the term “representative.”
Section 302 (g) of the Senate version stated, “For the purposes of this section, the term 'representative’ means any labor organization which, or any individual who, is authorized or purports to be authorized to deal with an employer, on behalf of two or more of his employees, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work . . .
Examples are, § 1, “designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment,” § 7, “to bargain collectively through representatives of their own choosing,” § 8 (b) (4) (B) and (C), “a labor organization as the representative of his employees,” § 8 (b) (4) (D), “bargaining representative for employees.”
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LOS ALAMOS SCHOOL BOARD, Plaintiff-Appellee, v. Harry WUGALTER, Chief of the Public School Finance Division of the Department of Finance and Administration, Vince Montoya, Director of the Department of Finance and Administration, Leonard J. Delayo, Superintendent of Public Instruction of the State of New Mexico, Jesse D. Kornegay, State Treasurer of the State of New Mexico, Defendants-Appellants.
No. 75-2000.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 16, 1976.
Decided May 31, 1977.
Rehearing Denied July 27, 1977.
Jeff Bingaman of Campbell & Bingaman, Santa Fe, N. M., for appellants.
Richard C. Minzner of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., (on the brief Robert L. Schwartz, Albuquerque, N. M.), for appellee.
Before LEWIS, Chief Judge and BARRETT and DOYLE, Circuit Judges.
LEWIS, Chief Judge.
Plaintiff school board brought this action in United States District Court for the District of New Mexico challenging one subsection of the New Mexico Public School Finance Act on the ground it conflicts with the Atomic Energy Community Act of 1955 (“AECA”), 42 U.S.C. §§ 2301-94, and is therefore unconstitutional under the supremacy clause, U.S. Const, art. VI, cl. 2. The defendants are the responsible New Mexico education officials. The district court entered judgment for plaintiff declaring subsection 19(G) unconstitutional and ordering defendants to fund the school district under the general funding formula applicable to all other school districts.
Los Alamos, New Mexico, was originally established by the federal government as one of three federally-owned communities to house employees and their families who were involved in atomic energy research. In 1955 Congress approved legislation, the AECA, providing for the gradual termination of government ownership and management of two of these communities, Oak Ridge, Tennessee, and Richland, Washington. Los Alamos was included in this legislation in 1962.
The federal government transferred without cost the public schools it had built to the newly-created Los Alamos School District. The federal government originally through the Atomic Energy Commission and now through the Energy Research and Development Administration (ERDA), however, continued to make assistance payments to the school district pursuant to 42 U.S.C. §§ 2391-94. These payments to the school district have averaged more than two million dollars annually. In 1974 the school district received more than $2.4 million from the federal government in AECA funds.
Prior to 1974 New Mexico gave money to local school districts including Los Alamos to assist them in financing public education. Under this plan Los Alamos received about $2.3 million from the state for the 1973-74 school year. In 1974 the Public School Finance Act was amended in an attempt to equalize educational expenditures and opportunities state-wide. This general “equalization funding formula” is now codified in N.M. Stat. Ann. §§ 77-6-19(A)-(F) (Supp.1975). This general formula applies to every school district in the state except Los Alamos. Los Alamos receives state funds for education under subsection 19(G) expressly because it receives education funds from ERDA under the AECA.
In exhibits presented to the district court, it was estimated the Los Alamos School District would receive more than $2.3 million from the state for the 1974-75 school year under subsection 19(G). Under the general funding formula applicable to all other school districts Los Alamos would have been entitled to approximately $2.8 million during the same period. It was also projected that Los Alamos would receive more than $2.5 million in state funding for 1975-76 under subsection 19(G), which is $475,000 less than it would receive if the general funding formula applied to Los Alamos.
The general funding formula determines the level of state funding by calculating each school district’s basic program cost and subtracting 95 percent of the school district’s local and certain specified federal revenues. Subsection 19(G) provides Los Alamos would receive an increase in state funding to match increased enrollment for the 1974-75 school year and additional increases in subsequent years to match both increases in enrollment and program costs.
The statutory scheme provides that if Los Alamos received no AECA funds for education in a given year then it would come within the general funding formula. Thus Los Alamos is singled out for special treatment merely because it receives AECA funds.
Los Alamos is unquestionably the wealthiest school district in the state. Among school districts of comparable size Los Ala-mos was ranked first in the state in operational revenue per pupil, in expenditures per pupil, in average teacher salary, in lowest pupil/teacher ratio, in lowest pupil/adult ratio, and in summer school and after school expenditures per pupil. Los Alamos has developed this superior and expensive educational program through the infusion of millions of dollars in AECA funds.
Since Los Alamos does not contend New Mexico has denied it equal protection by singling it out for special treatment, it is unnecessary to mention the reasons and justifications New Mexico advances for the special treatment. Instead, Los Alamos argues subsection 19(G) is unconstitutional under the supremacy clause because it conflicts with the AECA. The district court entered a judgment for plaintiff declaring subsection 19(G) unconstitutional and ordering defendants to give state educational funds to the Los Alamos School District under the general funding formula applicable to all other school districts. Defendants appeal this judgment. The only issue confronting us is whether Congress in adopting the AECA intended to prohibit New Mexico from funding Los Alamos in a different manner from other school districts solely because it receives educational funds under the AECA.
The supremacy clause provides the “ . Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . .” U.S.Const. art. VI, cl. 2. It establishes as a principle of our federalism that state and local laws are not enforceable if they impinge upon an exclusive federal domain. This impermissible impingement is diversely described as “preemption” and “conflict.” The application of those terms means the state or local government has attempted to exercise power which it does not possess because of an express or implied denial of that authority in the Constitution or valid federal laws and regulations promulgated thereunder. See Northern States Power Co. v. Minnesota, 8 Cir., 447 F.2d 1143, 1146, aff’d, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576. Compare Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447, with Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233.
Plaintiff contends subsection 19(G) conflicts with the AECA. In order to reach our determination of this issue, we review the leading cases of Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581, and Perez v. Campbell, supra. In Hines, the Supreme Court was confronted with an alleged conflict between the Pennsylvania Alien Registration Act of 1939 and the Federal Alien Registration Act of 1940. The Court ultimately held the federal act formed a comprehensive integrated scheme for the regulation of aliens and precluded the enforcement of state alien registration acts such as that adopted by Pennsylvania. In so holding, the Court had to make a determination of “whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 312 U.S. at 67, 61 S.Ct. at 404.
This language is instructive in two respects. First, the Court uses the language “in this particular case” indicating these matters must be decided on a case by case basis. The Court makes this clearer by saying “[t]here is not . . any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress.” Id. at 67, 61 S.Ct. at 404. Second, it indicates there must be an inquiry into congressional purpose and objective and a comparison with the state law purpose and objective. In making such a comparison in Hines, the Court says “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law or enforce additional or auxiliary regulations.” Id. at 66-67, 61 S.Ct. at 404.
At first blush, this is strong, confining language. “[I]nconsistently with the purpose of Congress,” however, seems to be somewhat of a qualifying phrase indicating that in some cases where the state and federal purposes are not necessarily inconsistent, certain conflicts between state and federal law will not necessarily render the state law invalid. It should be noted Hines offers no absolute test. The Court points out there is no “infallible constitutional test or an exclusive constitutional yardstick.” Id. at 67, 61 S.Ct. at 404.
Perez interpreted Hines as establishing a “controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.” 402 U.S. at 652, 91 S.Ct. at 1712. In Perez the Court held Arizona’s Motor Vehicle Safety Responsibility Act conflicted with section 17 of the Bankruptcy Act, 11 U.S.C. § 35, which says a discharge in bankruptcy discharges all but certain specified judgments. The state statute called for the suspension of the license of a driver who was involved in an automobile accident .and who failed to post sufficient security with respect to potential liability. This suspension was to continue until any judgment debt incurred as a result of the accident was paid and proof of financial responsibility was given. The state law expressly said that release from the judgment debt through federal bankruptcy proceedings would not terminate the license suspension. In determining there was a conflict, the Court said:
As early as Gibbons v. Ogden, 9 Wheat. 1, [6 L.Ed. 23] (1824), Chief Justice Marshall stated the governing principle—that “acts of the State Legislatures . [which] interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution,” are invalid under the Supremacy Clause. Id., at 211 (emphasis added). Three decades ago Mr. Justice Black, after reviewing the precedents, wrote in a similar vein that, while “[t]his Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, ha[d] made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference^] [i]n the final analysis,” our function is to determine whether a challenged state statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).
402 U.S. at 649, 91 S.Ct. at 1711 (emphasis added).
In carrying out our function of deciding whether subsection 19(G) is in conflict with the AECA, we must go through a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. Perez, supra at 644, 91 S.Ct. 1704. Turning first to the state statute, since -the New Mexico Public School Finance Act has not been authoritatively construed by the New Mexico Supreme Court we will rely heavily on the construction of the district court. The district court described the Public School Finance Act generally as “an equalization formula designed to eliminate adverse educational effects caused by disparities in financial resources available to individual school districts.” The general funding formula considers the qualifications and experience of the teachers in each school district in determining the program costs of each school district. In explaining the rationale for treating Los Alamos differently under subsection 19(G), the district court said “[AECA] funds used to retain highly qualified and experienced teachers gives the [Los Alamos] school district a higher teacher training and experience factor, thereby increasing the state’s equalization guarantee” to Los Alamos if the Los Alamos School District received state aid under the general funding formula. Thus, instead of taking credit for AECA funds, New Mexico gives Los Alamos school aid under an entirely different formula. It is also clear ¿s the district court pointed out, “[i]f AEC aid was discontinued, Los Alamos would come under the general formula.” In summation, the effect of the challenged subsection 19(G) is to give plaintiff approximately $500,000 less in state aid than it would receive in each of the first two fiscal years. Furthermore, in subsequent years under subsection 19(G), state aid to Los Alamos will increase proportionately as its enrollment and program costs rise.
Turning to the federal statute, the construction of the AECA is less clear. There is no express statement in either the statutory language or the legislative history what Congress intended with regard to state aid to school districts receiving AECA funds. See generally the legislative history of the AECA at 1955 U.S. Code Cong. & Admin.News, pp. 2620-45. The broad, general purposes of the AECA are more easily discernible. Congress declared that its policy is to terminate the government ownership and management of the atomic energy communities in an expeditious manner that would not impede the atomic energy program. This is to be accomplished by the AEC and now ERDA assisting in the formation of local self-governing units to which municipal installations, including schools, would be transferred. 42 U.S.C. § 2301. Because the morale of project-connected persons is essential to the common defense and security of the United States, Congress found the federal government could not totally divorce itself from the new civilian communities. Therefore, it authorized funds for assistance in operating the communities. 42 U.S.C. § 2302. The declared purposes of Congress in enacting the AECA are contained in 42 U.S.C. § 2303.
It is the purpose of this chapter to effectuate the policies set forth above by providing for—
(a) the maintenance of conditions which will not impede the recruitment and retention of personnel essential to the atomic energy program;
(b) the obligation of the United States to contribute to the support of municipal functions in a manner commensurate with—
(1) the fiscal problems peculiar to the communities by reason of their construction as national defense installations, and
(2) the municipal and other burdens imposed on the governmental or other entities at the communities by the United States in its operations at or near the communities;
(c) the opportunity for the residents of the communities to assume the obligations and privileges of local self-government; and
(d) the encouragement of the construction of new homes at the communities.
The germane purpose for the instant case is “the maintenance of conditions which will not impede the recruitment and retention of personnel essential to the atomic energy program.” See 1955 U.S. Code Cong. & Admin.News at 2635.
We proceed now to the constitutional question whether subsection 19(G) is in conflict with the AECA. The exercise of federal supremacy is not lightly to be presumed. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intent to do so. Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348; New York Dept. of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688; Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163. These recent decisions of the Supreme Court suggest that' where the conflict is only a potential one or peripheral to the purpose of the federal statute, state legislation will be allowed to stand. As was made clear in our earlier discussion of Hines and Perez, federal supremacy issues must be decided on a case by case basis and certain conflicts between state and federal law will not necessarily render the state law invalid.
In deciding the constitutional question, if the plain and inevitable effect of the state statute is to impair the operation of the federal statute, the state statute may not stand. Perez, supra 402 U.S. at 652, 91 S.Ct. 1704. Plaintiff argues and we agree that the primary reason AECA funds are given to plaintiff is to provide Los Alamos with a high quality school system “which will not impede the recruitment and retention of personnel essential to the atomic energy program.” The effect of the challenged subsection is to provide plaintiff with less school aid solely because it receives AECA funds.
We are confronted with the problem whether the failure of the state to give funds to plaintiff under the same formula used for other districts stands as an obstacle to Congress’ attempt not to impede the recruitment and retention of necessary personnel. Had Congress focused on the problem presented herein, the supremacy issue might well be different. However, the parties have not cited any indication that Congress addressed or resolved this question. Compare Perez, supra at 655, 91 S.Ct. 1704. Thus, this court must dispose of the matter without the assistance of legislative consideration.
We conclude subsection 19(G) does not “frustrate the full effectiveness” of the AECA. In reaching our conclusion we are guided by several considerations: We are reluctant to strike down state legislation in the face of complete congressional silence; plaintiff made no attempt to show that New Mexico’s level of funding has impeded or would impede the recruitment or retention of necessary personnel; subsection 19(G) provides for increases in state aid as plaintiff’s enrollment and program costs increase; the New Mexico statutory scheme does not impair Congress’ policy of completely removing itself from the managing and funding of atomic energy communities since plaintiff would be eligible for increased state aid if AECA funds were terminated; and in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 36 L.Ed.2d 16, the Supreme Court emphasized that state school finance laws “should be entitled to respect.” Since we have been directed to no congressional manifestation of intent to limit the manner in which states give educational aid to atomic energy communities, we conclude subsection 19(G) does not offend the supremacy clause.
In striking down subsection 19(G) the district court relied primarily on five so-called Impact Aid Act cases. Carlsbad Union School Dist. v. Rafferty, S.D.Cal., 300 F.Supp. 434, aff’d, 9 Cir., 429 F.2d 337; Triplett v. Tiemann, D.Neb., 302 F.Supp. 1244; Hergenreter v. Hayden, D.Kan., 295 F.Supp. 251; Douglas Independent School Dist. v. Jorgenson, D.S.D., 293 F.Supp. 849; Shepheard v. Godwin, E.D.Va., 280 F.Supp. 869. These five cases held that state laws which provide for the deduction of certain percentages of federal impact funds, 20 U.S.C. § 236 et seq., from the amount of state aid which would otherwise have been allocated by the state to impacted school districts were violative of the supremacy clause. These Impact Aid Act cases are readily distinguished from the instant case. In those cases the Congress had expressly manifested its intent in H.R.Rep.No. 1814, 88th Cong. (1966):
Fifteen States offset the amount of [Impact Aid Act] funds received by their school districts by reducing part of their State aid to those districts. This is in direct contravention to congressional intent.
1966 U.S. Code Cong. & Admin.News, p. 3878. All five cases relied on this expression of congressional intent to hold the state laws violated the supremacy clause. We are here guided by no similar manifestation of congressional intent. In the absence of any evidence that Congress intended to limit the manner in which states fund school districts in atomic energy communities, and the further lack of evidence that the avowed intent of Congress to create far superior schools has been frustrated or will be frustrated, we hold that subsection 19(G) does not unconstitutionally conflict with the AECA. To hold otherwise, that federal aid was intended as a supplement to state funds, begs the question. In fact, when the federal plan to finance Los Alamos was originated there was nothing to supplement.
REVERSED.
. N.M. Stat. Ann. § 77-6-19(F) (1953). Since entry of judgment by the district court the New Mexico Public School Finance Act has been amended and the challenged subsection is now codified as N.M. Stat. Ann. § 77-6-19(G)(Supp.l975). The challenged subsection will be referred to as subsection 19(G) in this opinion.
. These subsections provide:
A. The state equalization guarantee distribution is that amount of money distributed to each school district to ensure that the school district’s operating revenue, including its local and federal revenues as defined in this section, is at least equal to the school district’s program cost.
B. “Local revenue” as used in this section means ninety-five per cent [95%] of receipts to the school district derived from the following:
(1) that amount produced by a school district property tax at the rate of eight dollars ninety-two and one-half cents ($8,925) per one thousand dollars ($1,000) of net taxable value of property allocated to the school district; and
(2) the school district’s share of motor vehicle fees distributed in accordance with section 77-6-35 NMSA 1953.
C. “Federal revenue” as used in this section means ninety-five per cent [95%] of receipts to the school district derived from the following:
(1) the school district’s share of forest reserve funds distributed in accordance with section 77-6-35 NMSA 1953;
(2) grants from the federal government as assistance to those areas affected by federal activity authorized in accordance with sections 236 through 240 of Title 20 of the United States Code (commonly known as “PL 874 funds”) or an amount equal to the revenue the district was entitled to receive if no application were made for such funds; and
(3) grants from the federal government to public secondary schools authorized by the United States Vocational Education Act of 1963, as amended (20 U.S.C. 1241-1391).
D. To determine the amount of the state equalization guarantee distribution the chief shall:
(1) calculate the number of program units to which each school district is entitled using membership and other required reports for the first forty [40] days of the school year and for the first eighty [80] days of the school year;
(2) using the higher number of the result of the calculation in paragraph (1) of this subsection, establish and total program cost of the school district; and
(3) calculate the local and federal revenues as defined in this section; and
(4) deduct the sum of the calculations made in paragraph (3) of this subsection from the program cost established in paragraph (2) of this subsection.
E. The amount of the state equalization guarantee distribution to which a school district is entitled is the balance remaining after the deduction made in paragraph (4) of subsection D of this section.
F. The state equalization guarantee distribution shall be distributed prior to June 30 of each fiscal year. The calculation shall be based on the local and federal revenues specified in this section received from June 1 of the previous fiscal year through May 31 of the fiscal year for which the state equalization guarantee is being computed. In the event that a district has received more state equalization guarantee funds than its entitlement, a refund shall be made by the district to the state general fund.
. Subsection 19(G) provides:
G. Notwithstanding the methods of calculating the state equalization guarantee distribution in section 77-6-19 NMSA 1953 and Laws 1974, chapter 8, section 22, if a school district receives funds, under section 2391 of Title 42 U.S.C.A., and if the federal government takes into consideration grants authorized by sections 236 through 240 of the United States Code and all other revenues available to the school district in determining the level of federal support for the school district, the amount of the state equalization guarantee distribution for the sixty-third fiscal year shall be the same as the amount of state revenues except for transportation and textbook revenues provided in the sixty-second fiscal year multiplied by the save harmless percentage of subsection F of Laws 1974, chapter 8, section 22, and further multiplied by the ratio of the full-time equivalent ADM for the sixty-third fiscal year to the full-time equivalent ADM for the sixty-second fiscal year. For the sixty-fourth and succeeding fiscal years, the state equalization guarantee distribution for school districts receiving funds under this subsection shall be computed as follows:
fiscal year program cost for the year for which the state equalization guarantee distribution is being computed prior fiscal year -X state equalization = prior fiscal year program cost guarantee distribution
fiscal year state equalization guarantee distribution for the year which the state equalization guarantee distribution is being computed.
. Under New Mexico’s general funding formula, factors such as the experience and education level of the school district’s faculty and the costs and types of educational programs offered by the school district are considered in determining the level of state funding. As a result of the infusion of federal funds, plaintiff school district has developed a highly qualified faculty and high quality education programs, thus qualifying it for a high level of state funding under the general formula. If plaintiff received state funds under the general formula, it would receive a disproportionately high level of state funds, vis-a-vis other New Mexico school districts, as a direct result of the prior infusion of federal funds.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond1_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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).
Anton FATOVIC, Appellee, v. NEDERLANDSCH - AMERIDAANSCHE STOOMVAART, MAATSCHAPPIJ, also known as Holland America Line, Appellant and Third-Party Appellee (Jarka Corporation, Third-Party Appellant).
No. 106, Docket 25531.
United States Court of Appeals Second Circuit.
Argued Jan. 5, 1960.
Decided Feb. 15, 1960.
Chester A. Hahn, New York City (Sylvia Miller, New York City, on the-brief), for appellee.
Edmund F. Lamb, New York City (Purdy, Lamb & Catoggio, New York City, on the brief), for appellant and third-party appellee.
Albert S. Commette, New York City (George Conway, New York City, on the brief), for third-party defendant-appellant.
Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.
LUMBARD, Chief Judge.
Anton Fatovic brought this action to-recover damages for injuries he suffered on April 7, 1953 when struck in the hip-by a cargo boom while working as a stevedore on the S.S. Veendam, a ship belonging to Holland America Line, and which was then docked at Hoboken, New Jersey. The complaint alleged both the unseaworthiness of the ship and the negligence of the defendant’s servants as proximate causes of the accident. The-defendant impleaded The Jarka Corporation, plaintiff’s employer, claiming that Jarka was bound to indemnify defendant under their stevedoring contract, since-the accident was caused by the negligence of Fatovic’s fellow workers. The negligence claim against Holland America was dismissed at the close of the evidence, and the plaintiff’s case was submitted to the jury solely on the theory of unseaworthiness. The jury returned a general verdict for Fatovie for $75,000 and a verdict in favor of Holland America over against Jarka in the same amount.
The dispositive question on appeal is whether the trial judge erred in charging the jury that the existence of certain conditions would have rendered the ship unseaworthy. We conclude that, as to at least two of the five conditions, there was no evidence from which the jury could have found that their existence made the ship unseaworthy. It was therefore error to submit the case to the jury on these claims, and we must reverse the judgment and order a new trial.
The evidence introduced at the trial showed that on the day of the accident Fatovie and six other stevedores were engaged in cradling the cargo booms of the Veendam prior to the ship’s departure from Hoboken. The booms, each 38 feet long, were constructed so to move both vertically and horizontally, pivoting at the base upon a “gooseneck” about seven feet above the level of the deck. The gooseneck was built into a platform —the sampson table — which extended out from the “kingpost.” A ladder ran up the kingpost to the sampson table. The booms could be moved horizontally either by the use of two guys which extended from near the head of the boom on each of its sides down to winches on the deck. By paying out cable on one guy while taking in on the other a boom could be swung around. In the present case, there was evidence, however, that one guy was lacking entirely. Alternatively, a boom could be swung by pulling upon the cargo rope, which hung down from the head of the boom. Two of Fatovic’s fellow employees were engaged in swinging the boom in question by this latter method when the boom stuck. Three additional men lent assistance but the five pulling together on the cargo rope were unable to make the boom move further. The three other men then went back to other tasks. A few moments later, while the boom was still frozen, Fatovie was ordered to climb the ladder up the kingpost so as to detach a length of rope from the tackle there. When he had climbed to the fifth rung of the ladder and was about at the level of the sampson table, the boom suddenly broke free, swung clockwise 180 degrees, and struck Fatovie on the right hip, crushing him between the kingpost and the boom. The boom swung back a short distance and then struck him a second time.
There was also evidence that there was rust in the metal framework in which the gooseneck was housed, that there was no stopping arrangement to prevent the boom, if it were not held by the cargo rope or the two guys, from swinging full force against the kingpost, and that shortly after the accident the ship’s instruments showed that the Veendam had a list of approximately one degree to starboard.
Upon this evidence, the plaintiff asserted and the court charged that there were five separate theories upon which the jury might find the ship unseaworthy. First, plaintiff claimed that the absence of a guy on the starboard side of the boom prevented the use of the guys in swinging the boom. Second, plaintiff claimed that he climbed into a position of danger solely because the ship’s tackle was defective in that a rope needed to be attached. Third, plaintiff said that the absence of a stopping arrangement to prevent the boom’s swinging against the kingpost rendered the ship unseaworthy. Fourth, he claimed that the boom froze due to the rusty condition of the gooseneck, upon which it pivoted. Fifth and last, he claimed that the boom was defective in that it swung freely after it had frozen and that the slight list of the ship caused it to swing in the direction of Fatovic. We think that as to the third and fifth of these •claims there was no evidence upon which the jury could have found that their existence created an unseaworthy condition.
There was no evidence of any kind in the record to support the view that a stopping arrangement could feasibly be constructed to prevent the boom from swinging against the kingpost or that its absence made the ship unseaworthy. Indeed, the only evidence on this point was given by one of defendant’s witnesses who said that he had never seen or heard of such a device and doubted that one could be built without limiting the usefulness of the boom in loading and unloading cargo. In any •event, the question was one of nautical architecture about which jurors lack the knowledge to form an intelligent judgment in the absence of expert testimony. Martin v. United Fruit Co., 2 Cir., 272 F.2d 347. Since there was no expert •testimony on the matter, it should not have been submitted to the jury.
Nor was there any evidence to support the claim that the fact that the boom moved freely after it had frozen rendered the ship unseaworthy. The boom was supposed to move freely; ordinarily, one or two men could move it without difficulty. While the freezing of the boom might have rendered the ship unseaworthy, surely its subsequent free movement, possibly the result of the negligence of the stevedores in failing to maintain a firm hold on the cargo rope, could not. Moreover, there was no showing that the slight list of the ship, although it may have caused the boom to swing around as it did, made the ship unseaworthy. Indeed, the evidence was that a slight list of this kind was common and might have been caused by such a factor as the waves created by another ship passing near the Veendam.
The defendant and third-party defendant also assert that it was error to submit th# other three claims of unseaworthiness to the jury. But we think that these were proper. The lack of a guy on the starboard side of the boom prevented use of the guys in turning the boom and the stevedores were thereby required to use the less secure method of pulling by hand upon the cargo rope. The evidence of rust in the housing of the gooseneck warranted an inference by the jury that this defect extended into the gooseneck itself and that it had been a cause of the freezing. Finally, although the evidence as to the tackle is rather unclear in the record, we think that the jury might have found that the tackle was improperly rigged by the ship’s crew members and that the ship was unseaworthy as a result.
Since we cannot determine from the general verdict brought in by the jury whether they relied upon a proper or improper claim of unseaworthiness in reaching their decision, we must reverse the judgment and order a new trial. North American Graphite Co. v. Allan, 1950, 87 U.S.App.D.C. 154, 184 F.2d 387, 389; Travelers’ Insurance Co. v. Wilkes, 5 Cir., 76 F.2d 701, 705, certiorari denied Hirsig v. Travelers Ins. Co., 1935, 296 U.S. 604, 56 S.Ct. 120, 80 L.Ed. 428.
Because there must be a new trial at which the question of indemnity between Holland America and Jarka may be presented in a different factual context, we do not now decide the issues as between these two parties.
Reversed and remanded for a new trial.
. The relevant portion of the court’s charge is as follows:
“It is claimed that the vessel was unseaworthy in certain of its tackle; that there was no guy rope on the starboard side of the boom — that is the right side of the boom — and that the tackle attached to the topping lift was insufficient, being too short or improperly placed, requiring the attachment of an additional line by the plaintiff, as a result of which he climbed the kingpost into a position of danger. It is also claimed that an unseaworthy condition existed because of the absence of a stopping arrangement to prevent the boom from swinging up against the king-post. It is further claimed that the boom itself was defective, in that it stuck or froze while the longshoremen were pulling it around to the cradle position. Finally, it is claimed that after the boom stuck, it proceeded to swing around either because of some defect in itself or because of the conditions of trim and list of the vessel, which thereby deviated from the level and facilitated the swing, and that this situation was aggravated by a movement of vibration of the vessel caused by engine trials.
You must determine whether any or all of these conditions existed, and if so, whether or not they rendered the ship unseaworthy, that is, not reasonably fit for the operation of stripping the booms.” Counsel for Holland America took due and proper exception to these portions of the charge.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Michael Joseph FALLON, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction; Bill Clinton, Governor; W.H. Sargent, Warden, Cummins Unit; William M. Stricklin, Chairman; Jerry Gasaway; Robert Clark, ADC Publications Review Committee; James L. Mason, Chairman; Morris H. Dreher; David C. McClinton; Hezekiah D. Stewart, Jr., Rev.; Henry Oliver; Mike Gaines; Larry Morris, Arkansas Department of Correction Board, Appellees.
No. 90-2441.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 18, 1990.
Decided Nov. 26, 1990.
Michael Joseph Fallon, appellant pro se.
Appellees were not represented by counsel.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
PER CURIAM.
Michael J. Fallon, an Arkansas inmate, appeals from the district court’s judgment dismissing as legally frivolous his 42 U.S.C. § 1983 action prior to service of process. Concluding that no error of law appears in the record, we affirm on the basis of the district court’s order, which adopted the magistrate’s findings and recommendation. See 8th Cir. Rule 47B.
. The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.
. The Honorable John F. Forster, Jr., United States Magistrate for the Eastern District of Arkansas.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
James W. SWAIN, Jr., Appellant, v. ISTHMIAN LINES, INC.
No. 15327.
United States Court of Appeals Third Circuit.
Argued Dec. 10, 1965.
Decided April 13, 1966.
Rehearing Denied May 17, 1966.
Sidney J. Smolinsky, Philadelphia, Pa., for appellant.
James F. Young, Krusen Evans & Byrne, Philadelphia, Pa., for Isthmian Lines, Inc., appellee.
Before KALODNER, Chief Judge, and STALEY and FORMAN, Circuit Judges.
FORMAN, Circuit Judge.
In the admiralty action brought by a seaman, James W. Swain (hereinafter appellant), against Isthmian Lines, Inc. (hereinafter appellee), the United States District Court for the Eastern District of Pennsylvania granted summary judgment for appellant and awarded $570 in damages. This appeal contests the amount of the damage award and the method of its determination. No cross appeal has been filed by the appellee contesting the entry of summary judgment adverse to it.
On May 27, 1963, appellant signed articles for a foreign voyage aboard the ship “Steel Designer” in the capacity of a utility messman at $284.52 monthly ($9.48 daily). In the port of Suez, on August 16, 1963, appellant reported ill. On the following day he was diagnosed as having syphilis in its primary stage, and was relieved of his duties as of August 16, 1963. The ship incurred a medical bill of $43.02 at Suez for appellant’s needed drugs and medical treatment. With the ship’s return to the United States on September 3, 1963, appellant signed off the vessel’s articles. Appellee paid him wages for the foreign voyage from May 27, 1963 to August 16, 1963. From these wages were deducted, among other things, the $43.02 medical expense incurred by the ship at Suez. Appellant protested this deduction. Appellant retained a proctor on September 10, 1963. On September 19 his proctor sent a letter to appellee formally protesting the propriety of the deduction of $43.02 from appellant’s wages and asserting, among other things, a claim for penalties for the wrongful withholding. A week later, September 26, 1963, appellant received appellee’s mailed reply denying appellant’s claim. Some three and a half months later, January 10, 1964, appellant’s libel, asserting the impropriety of the deduction and demanding penalties under Section 596 of 46 U.S.C. was filed in the District Court. Appellee answered the libel on February 19, 1964, in which it defended the propriety of the $43.02 deduction from appellant’s wages. On April 1, 1964 appellee paid appellant $43.02 to terminate the running of the penalty period. Appellant then limited his claim for penalties to the period September 3, 1963-April 1, 1964. Summary judgment having been moved on July 9, 1964 and an affidavit in support thereof filed on December 10, 1964, the District Court in an opinion and order of March 1, 1965, granted appellant’s motion and assessed $570 damages.
This case thus concerns a claim to a statutory penalty for an alleged wrongful withholding from a seaman’s wages. In such a case there are three pertinent questions for a court’s consideration: (1) Was an improper deduction taken from a seaman’s wages considering the limited statutory instances when a deduction by a ship is proper ? ; (2) If a deduction were improper, was it “without sufficient cause” within 46 U.S.C. § 596 so that a penalty was triggered?; and (3) If a penalty runs, what is the standard for the determination of its amount?
As to the first consideration, the District Court found, supported by appellee’s concession thereof, that the withholding of the $43.02 for medical expenses from appellant’s wages was contrary to law. It has been eminently clear in the law, at the very least since the Supreme Court case of Isbrandtsen Co. v. Johnson in 1952 that a deduction from wages for medical expenses such as were incurred by appellee in the instant ease is wrongful as falling outside the proper deductible instances enumerated in 46 U.S.C. § 701. This question, therefore, has been closed for some time.
Despite its finding that appellee’s action in withholding the $43.02 from appellant’s wages was neither arbitrary nor unscrupulous, the District Court did assess a penalty. Therefore, it must have answered the second question by con-eluding that appellee, nevertheless, did not have sufficient cause to subtract the $43.02 from appellant’s wages. Appellee does not contest before us the District Court’s implicit finding of no sufficient cause for the wage deduction. Given the unmistakable clarity of the law at the time of the deduction, any successful contesting of the District Court’s implicit finding on this point would certainly have been precluded in this case.
This brings us to the third inquiry, controlling within the facts of this case. What standard is determinative of the amount of the penalty to be assessed? The District Court employed an equitable yardstick to limit appellant’s recovery to $570. The question of how to measure the statutory penalties once an absence of sufficient cause for a wage deduction is determined is by no means of recent vintage, although, considering the age of the statutory provision involved, there are relatively few reported cases on the matter. It is indeed a novel point of lav/ for our court.
Section 596, the penalty provision at issue herein, states that once a master or owner withholds a seaman’s wages without sufficient cause, the master or owner “shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed * * which sum shall be recoverable as wages in any claim made before the court * *.” This penalty provision has undergone certain evolutionary changes. As originally enacted the master or owner was liable to pay the seaman a sum not more than the amount of two days’ pay for each day, not exceeding ten, during which the payment was delayed. Such a provision left the courts with a significant latitude in setting the rate for which such a penalty would run. In 1898, Congress seemingly legislated this discretion out of the Shipping Commissioner’s Act by amending the penalty provision to provide for the payment of a sum equal to one day’s pay for each day during which payment was delayed without sufficient cause. Finally, in 1915, the penalty rate was adjusted upward, Congress awarding two days’ pay for each day of delay in wage payment by a master or shipowner without sufficient cause. This penalty has remained in effect since that time.
The “not more than” form of penalty, which explicitly reposes in the judiciary a significant measure of discretion in tailoring penalties to the equities of each case, is the language found in many of the penalty provisions of the Shipping Commissioner’s Act. A few sections, however, such as Section 596 involved herein, speak in, what is on their faces, mandatory language, seemingly vesting no discretion in the judiciary to reduce the amount of the penalty to be computed in accordance with the statutory formula. This court, in construing one of these apparently mandatory penalty provisions, Section 594, has characterized such a provision as one providing for damages “which have been liquidated by legislative enactment.” Despite this rather precise statutory directive, of those eases which we have uncovered, where the question — whether Section 596 of the statute may still be read with a measure of judicial discretion when supposed equitable considerations present themselves — was considered, all have found proper the balancing of the statutory language with a judicial sense of the equities of each case. The presence of this unanimity, however, has not eliminated discomfort occasionally felt by the courts in exercising such discretion. In Dahl v. The S.S. Amigo the anomaly of this situation emerges from the following language of the court:
“Although the statute would seem to indicate that the penalty provision should run until actual payment is in fact made, it appears to be the accepted rule of law that the time for which the penalty provision runs shall rest within the sound discretion of the court, depending upon and to be determined by the equities. * * * Upon review of the many cases holding that the penalty provision should run to various and different specified periods of time, it appears that an effort should be made to stabilize this feature of the penalty wage statute. Unless the particular equities in the given case would dictate otherwise, I believe the rule should be that the penalty provision shall run until such time as the libel-lant with the exercise of due diligence could have brought his action on to be heard in court.”
In essence, though the Dahl court recognized the imperative feature of the statute, and was uncomfortable in adding to it, the urge to superimpose equitable considerations upon it was not restrained.
Where have the federal courts, with such unanimity, derived the authority to intrude equitable considerations into their reading of Section 596? The early case of Mystic S.S. Co. v. Stromland, the later case of Mavromatis v. United Greek Shipowners Corporation, and the more recent case of Southern Cross Steamship Co. v. Firipis, all have relied on the Supreme Court’s ruling in Pacific Mail S.S. Co. v. Schmidt, as the source of their authority to exercise discretion in the interpretation of Section 596. Other cases have relied on these intermediate court decisions and there is now a solid net of precedent in support of the exercise of such discretion. Pacific Mail does, however, appear to be the considered foundation for such precedents. As it seems to be the only Supreme Court ruling relating to the issue, an examination of it is desirable.
In Pacific Mail, the seaman, at the conclusion of a foreign voyage, was paid in full on September 24, 1913 and that date noted as the date of the termination of the voyage. The seaman, however, remained on board working until, on October 1, 1913, he was notified of his discharge. On his demanding his wages for those services on board ship while in port, the seaman was told that silverware to the amount of $32.90 was missing, that he was accountable for it, and that this sum was greater than that of $30.33, his wages due and owing. No wages were paid. Such withholding was found by the courts to be “without sufficient cause.” The District Court assessed penalties up to the date of its entry of a final decree. The Court of Appeals allowed penalties from that date to its affirmance of the District Court’s decree. The case then went to the Supreme Court.
The shipowner argued that penalties were inappropriate and should not be applied at all, not because there were countervailing equities or because the withholding was with sufficient cause, but because the penalty provision was in a statute dealing with voyages and did not apply to wages accumulated by labor disassociated from a voyage, as was this seaman’s work effort. Justice Holmes, in speaking for a unanimous Supreme Court, and though approving the application of penalties, emphasized the closeness of the question of whether the penalty provisions should apply at all to an unwarranted deduction from wages for work performed outside the course of a voyage. The only issue, as the Supreme Court saw it, was whether penalties could then run after the entry of a District Court’s decree. The Court ruled that the date of the District Court’s decree terminated the running of the penalty provision, for the appeals taken by the shipowner from that adverse District Court determination were based upon a reasonable ground in believing that the appellate courts would rule that the penalty provision was not at all applicable to post-voyage labor. The decision explicitly speaks of “sufficient cause for the neglect to pay after the decree of the district court.” The Supreme Court thus found it unnecessary to consider whether, under other circumstances, “there would be any escape from Massachusetts v. .West. Un. Tel. Co.” which seemed to indicate that under any circumstances the penalties would terminate with the District Court’s decree.
Pacific Mail is sui generis and does not, as urged by the appellee, stand for the bald proposition that the judiciary has authority to exercise discretion in adjusting admittedly applicable penalties accruing during the period prior to the entry of a District Court’s decree. Indeed, the converse of a right to exercise discretion in the name of equitable considerations may be gleaned from Pacific Mail, for despite the fact that the question of the applicability of the penalty provision was such a close one, the Supreme Court did not see fit to remand the cause to the District Court for consideration of this factor for the purpose of mitigating the penalties which had accrued prior to entry of the District Court’s decree. Therefore, as we see it, Pacific Mail is in no way a foundation upon which the subsequent cases, noted above, may rest.
We must now inquire whether there is a reasonable independent basis sanctioning judicial discretion to tailor the penalty provision of Section 596 to the equities of a particular case. The District Court considered the equitable basis to be found in the following factors:
“ * * * [Ljibellant had contracted a dangerous and virulent disease, apparently — although we do not so decide — through his own misconduct. Proper regard for the health and safety of the ship’s company, as well as libellant himself, dictated prompt remedial measures. Respondent’s expenditure undeniably enured to libellant’s own benefit.”
The appellee also^ stresses, as one basis for affirmance, these factors.
In none of the above mentioned eases did the issue of equitable discretion turn on factors surrounding the motivation of a shipowner in making a wage deduction. There is, however, a somewhat oblique concern as to the desirability of such factors being weighed in Mystic S.S. Co. v. Stromland where, in the opinion denying rehearing, it was stated:
“ * * * It was certainly not the intention of Congress that the statute should be construed in such way as virtually to deny to shipowners the right to contest liability in cases of this sort, by making the penalties so great in case of failure to maintain the defense asserted as to deter them from making any defense at all.”
The answer to this concern, however, is not to consider equitable factors in mitigation of the statutory penalty. Such factors are those which were meant to be considered by a court in determining only whether there was an absence of sufficient cause for the wage deduction. If these equitable considerations carry the day on that issue, no penalty will be assessed at all. When Congress chose not to legislate a penalty for all cases in which the deduction was legally wrongful, as falling outside the categories in 46 U.S.C. § 701, it meant to have the equitable considerations — those separate and apart from the legal impropriety of the deduction — weighed in determining whether the Section 596 penalty should be applied. Thus, when such considerations fail to establish the existence of sufficient cause for the deduction under Section 596, those same equitable considerations may not be reevaluated when the assessment of the penalty is considered. Any other conclusion would certainly misplace such equitable considerations in the statutory scheme.
Appellee does stress an alternative point, however, a point which has appeared in a few of the cases approving use of equitable considerations in mitigating the statutory penalty. The period of three and a half months between the time of appellee’s formal denial of appellant’s claim, September 26, 1963, and his bringing suit, January 10, 1964, is urged as inordinate delay prejudicial to the appellee, for which the District Court might properly have reduced the penalty. Aside from the fact that it would not justify as substantial a reduction as the District Court made, we do not think that the time in which a libellant brings his suit should have any bearing on the amount of the penalty assessed. As is recognized by all the parties here, Section 596 seeks to deter a master or shipowner from improperly making a deduction from a seaman’s wages. The section provides that the penalty “shall be recoverable as wages in any claim made before the court.” Such wage recovery is only limited by the running of the applicable statute of limitations and such a rule should, as applied to the assessment of penalties, run parallel. Delay by a seaman in his instituting suit will not place an oppressive burden on a shipowner. After all, if sufficient cause for the deduction is found to be lacking, the shipowner or his agent has either been overtly culpable in reducing a seaman’s wages, or significantly inattentive in his duties vis-a-vis the seaman’s wage rights. As we view it, it is precisely the possibility that large penalties will accrue that should motivate a shipowner to exercise care in computing wages due a seaman. We think that this deterrent was what Congress had in mind in providing for a penalty in the form of inflexible liquidated damages.
In conclusion, as was aptly stated in the dissenting Court of Appeals opinion in Pacific Mail, upon considering the penalty provision of Section 596:
“ * * * as to the severity of the penalty, there is, of course, no thought of suggesting that a court can properly decline to enforce a statute because it may seem to be unnecessarily harsh.”
In our view, those cases supporting the superimposition of equitable concepts onto Section 596 have, in fact, mitigated the statutory penalty in the name of the alleviation of supposed unnecessary harshness. We have concluded that these cases rest on no firm precedents, that such alleged harshness is illusory, that there is no compelling independent reason to lessen the statutory penalty case by ease and, therefore the language of Section 596 must be read as a mandatory command to the judiciary. Thus the judgment of the United States District Court for the Eastern District of Pennsylvania will be affirmed to the extent that it grants judgment in favor of James W. Swain, Jr., the appellant herein, but in so far as it fixes the amount of that judgment in the sum of $570 it will be vacated and the case remanded to the District Court for the purpose of assessing the damages in conformity with this opinion, reflecting the computation of penalties from September 8, 1963 to April 1, 1964.
. Congress has provided that:
“ * * * Every master or owner who refuses or neglects to make payment (of wages) in the manner here-inbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court * * 46 U.S.C. § 596 (1965). (Emphasis added.)
. In an April 8, 1964 amendment to his libel appellant added a wage claim, asserting a wrongful and unlawful non-payment of wages from August 16, 1963 to September 3, 1963. This demand was included in appellant’s summary judgment motion. The issue has, however, apparently dropped out of the ease. It is neither dealt with in the District Court’s opinion and order on the summary judgment motion nor has it been raised by appellant on appeal.
. Swain v. Isthmian Lines, Inc., 239 F. Supp. 672 (E.D.Pa.1965).
. These instances are set forth in 46 U.S.C. § 701 (1965) and are exclusive as to the propriety of any deduction from wages. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 789, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952).
. It is well settled that the mere existence of an unlawful withholding does not, in and of itself, establish the absence of sufficient cause for that withholding. See Johnson v. Isbrandtsen Co., 190 F. 2d 991, 993 (3 Cir. 1951), aff’d, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952); Chambers v. Moore McCormack Lines, 182 F.2d 747, 749 (3 Cir. 1950).
. Supra note 4.
. Swain v. Isthmian Lines, Inc., supra note 3 at 674.
. These appear to be the only reported cases focusing on, or dealing with in passing, this question, as distinguished from cases such as Collie v. Fergusson, 281 U.S. 52, 50 S.Ct. 189, 74 L.Ed. 696 (1930), concerned with the question of the existence or absence of sufficient cause for a wage deduction: McConville v. Florida Towing Corporation, 321 F.2d 162, 168 n. 11 (5 Cir. 1963): Caribbean Federation Lines v. Dahl, 315 F.2d 370, 374 (5 Cir. 1963): Southern Cross Steamship Co. v. Firipis, 285 F.2d 651, 656-658 (4 Cir. 1960); Prindes v. The S.S. African Pilgrim, 266 F.2d 125, 128-129 (4 Cir., 1959); Mavromatis v. United Greek Shipowners Corporation, 179 F. 2d 310, 316 (1 Cir. 1950); Mystic S.S. Co. v. Stromland, 20 F.2d 342, 344-345, rehearing denied, 21 F.2d 607 (4 Cir. 1927); Kontos v. S.S. Sophie C., 236 F.Supp. 664, 674 (E.D.Pa.1964): Dahl v. The S.S. Amigo, 202 F.Supp. 890, 894 (S.D.Ala.1962); Spero v. Steamship The Argodon, 150 F.Supp. 1, 6 (E.D.Va. 1957); Samad v. The Etivebank, 134 F.Supp. 530, 542 (E.D.Va.1955); Forster v. Oro Navigation Company, 128 F.Supp. 113, 116-117 (S.D.N.Y.1954), aff’d, 228 F.2d 319 (2 Cir. 1955); The Victoria, 76 F.Supp. 54, 56 (S.D.N.Y.1947), rev'd on other grounds, Usatorre v. The Victoria, 172 F.2d 434 (2 Cir. 1949); The Chester, 25 F.2d 908, 911 (D.Md.1928); The Lake Galewood, 21 F.2d 987, 989 (D.Md.1927).
. Supra note 1. (Emphasis added.)
. 46 U.S.C. § 596 (1965) (codification explanation).
. Ibid.
. Ibid.
. See, 46 U.S.C. §§ 546, 562, 563, 567, 568, 571, 577, 599, 623(1965).
. See, 46 U.S.C. §§ 575, 576, 578, 594 (1965).
. Newton v. Gulf Oil Corporation, 180 F. 2d 491, 494 (3 Cir.), cert. denied, 340 U.S. 814, 71 S.Ct. 42,95 L.Ed. 598 (1950).
. Supra note 8. (Emphasis added.) See The Victoria, supra note 8.
. Supra note 8.
. Supra note 8.
. Supra note 8.
. 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982 (1916).
. Id. at 250, 36 S.Ct. at 583.
. 141 U.S. 40, 11 S.Ct. 889, 35 L.Ed. 628 (1891). See Pacific Mail S.S. Co. v. Sclimidt, supra note 20 at 251, 36 S.Ct. at 583.
. Swain v. Isthmian Lines, Inc., supra note 3 at 674.
. Supra note 8.
. Mystic S.S. Co. v. Stromland, supra note 8; Dahl v. The S.S. Amigo, supra note 8; The Lake Galewood, supra note 8.
. The textual discussion above is disposi-tive of this appeal. However, of those cases set forth in note 8 supra, by far the larger number deal with two problems not at issue herein. As some of these eases have been relied upon by both the District Court and the appellee, a brief mention of these two matters seems appropriate.
The absence of a demand for wages by a seaman lias been an equitable consideration having a bearing on the amount of the penalty assessed. In McCrea v. United States, 294 U.S. 23, 30-31, 55 S. Ct. 293, 79 L.Ed. 735 (1935), the failure to demand, under the peculiar facts of the case, went to the issue of whether sufficient cause existed, in the first instance, for the deduction. That case has no bearing on whether, once sufficient cause is found to be absent, a failure to demand may servo to mitigate the statutory penalty. As has been discussed in the text above, a wage deduction will be found to be without sufficient cause if a shipowner or his agent has been overtly culpable in reducing a seaman’s wages, or significantly inattentive in his duties vis-á-vis a seaman’s wage rights, such conduct providing a shipowner with notice of the transgression of his obligations to a seaman. Under such circumstances, Congress could not have intended that a demand for wages by a seaman should be a factor in mitigation of the statutory penalties.
A number of cases cited in note 8 supra, mitigate the statutory penalty if a seaman, once a libel has been filed, has not been diligent in expediting disposition of the case. We do not believe that Congress meant to leave to the judiciary discretion in judging such a seaman’s conduct in mitgation of the statutory penalty. Indeed, in our view, the most adequate protection a shipowner has against accumulating penalties once a libel is filed is to place in the hands of the court the allegedly unlawfully withheld wages. A similar approach was taken and made mandatory in Southern Cross Steamship Co. v. Firipis, supra note 8. Such a fund will terminate the running of the penalties as of the date of its creation, just as appellee’s actual payment of appellant’s wages on April 1, 1964 terminated the running of the penalty provision.
. Pacific Mail S.S. Co. v. Schmidt, 214 F. 513, 521 (9 Cir. 1914), rev’d, 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982 (1916).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_prejud
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
PORT ANGELES TELECABLE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
No. 22627.
United States Court of Appeals Ninth Circuit.
Aug. 7, 1969.
Robert D. L’Heureux (argued), E. Stratford Smith, of Smith, Pepper, Shack & L’Heureux, Washington, D. C., for petitioner.
Henry Geller (argued), Gen. Counsel, John H. Conlin, Associate Gen. Counsel, William L. Fishman, Counsel F.C.C., Donald F. Turner, Asst. Atty. Gen., Howard E. Shapiro, Dept. of Justice, Washington, D. C., for respondents.
Paul Dobin, Roy R. Russo, Washington, D. C., for intervenor; Marcus Cohn, Washington, D. C., of counsel.
Before BROWNING and ELY, Circuit Judges, and VON DER HEYDT, District Judge.
Honorable James A. von der Heydt, United States District Court for the District of Alaska, sitting by designation.
BROWNING, Circuit Judge:
This is a petition to review an order of the Federal Communications Commission denying Port Angeles Telecable, Inc.’s petition for waiver of the Commission’s nonduplication rule. 47 C.F.R. § 74.1103(f). We affirm.
With one exception, petitioner’s arguments either were not presented to the Commission, or have been rejected in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968); Total Telecable, Inc. v. FCC, 411 F.2d 639 (9th Cir. 1969); or Great Falls Community TV Cable Co., Inc. v. FCC, 416 F.2d 238 (9th Cir. 1969).
The sole unresolved issue properly before us is whether the petition stated grounds for waiver of the non-duplication rule.
Petitioner’s cable television system carries the signals of eight television stations to approximately three thousand subscribers in Port Angeles, Washington. The signals are those of four Seattle stations, including KIRO-TV, a CBS affiliate; KVOS-TV, a CBS affiliate in Bellingham, Washington; and three Canadian stations.
Port Angeles lies within the predicted Grade A contour of KVOS-TV, the Bellingham CBS affiliate. KVOSTV requested full protection against same-day duplication of its programming on petitioner’s system, and petitioner, in turn, sought a waiver of the rule from the Commission.
We held in Total Telecable, Inc. v. FCC, supra, 411 F.2d at 643, that a petition for waiver should show: “(1) the economic effect of waiver on the local TV station * * * and (2) that in the petitioner’s * * * case, nonduplication will have an unduly disruptive effect on its service.”
The present petition for waiver alleges that a range of mountains “severely impedes” reception in Port Angeles of signals from stations in Seattle and other cities in the United States, but not those from KVOS-TV in Bellingham. It alleges that although Port Angeles is nearer Bellingham than Seattle in straight-line miles, it is nearer Seattle in terms of travel time and convenience; and, as a result, that the citizens of Port Angeles have “become dependent upon Seattle in all regards.” It asserts that Seattle advertisers, but not those in Bellingham, cater to the Port Angeles market; and that petitioner’s CATV subscribers “enjoy, desire and are dependent upon the signals from the Seattle stations; especially KIRO-TV.” It alleges that compliance with the nonduplication rule would require petitioner to “delete substantial portions of the KIRO-TV programming; and, possibly, totally delete KIRO-TV from its system.” Finally, the petition asserts that waiver of the rule “certainly” would not prejudice KVOSTV, alleging that the non-network programming and advertising of KVOS-TV is aimed “for the most part” at that station’s Canadian audience, that published figures indicate that KVOS-TV reaches many more Canadian than United States homes, and that KVOS-TV’s network base hourly rate is $300.00 “whereas its Class AA rate is $650.00, which is obviously attributable to KVOS-TV’s substantial Canadian audience.”
The Commission denied the petition on two grounds. The first was that the allegations are conclusory and not supported by recitals of fact.
The Commission requires that waiver petitions “state fully and precisely all pertinent facts and considerations relied upon to demonstrate the need for the relief requested and to support a determination that a grant of such relief would serve the public interest.” 47 C.F.R. § 74.1109(c) (1) (emphasis added); see Titusville Cable TV, Inc. v. United States, 404 F.2d 1187, 1190, 1192 (3d Cir. 1968).
The justification for this requirement is clear. The Commission reasonably anticipated a deluge of waiver requests from the large number of formerly unregulated CATV systems to which the new rules applied. It therefore formulated summary procedures to permit “expeditious processing of such requests” and announced that it would, “where possible, promptly dispose of the matter on the basis of * * * written submissions.” Second Report and Order, 2 F.C.C.2d 725, 764 (1966). This procedure could be made effective only by requiring a high degree of specificity in the written submissions.
As a survey of the petition in this case has shown, the allegations relevant to the critical issues are, for the most part, no more than bare, highly generalized assertions.
Petitioner argues that the Commission could have ordered a further written submission or other proceedings to cure the defect, and this is undoubtedly true. See 47 C.F.R. § 74.1109(f). However, for reasons already stated, we think the Commission could properly require individual, petitioners to allege specific facts sufficient to establish a prima facie case for waiver in their initial written submission.
The Commission rejected the petition on a second ground as well: namely, that it did not allege, even generally, a prima facie case for waiver. We agree.
As the Commission stated, petitioner’s allegations of injury to itself and to Port Angeles viewers “are not persuasive.” Petitioner can continue to carry all of the non-network programming of KIRO-TV and the full schedules of the other three Seattle stations. Since petitioner carries CBS network programs on the channel it allots to KVOS-TV, the only service which non-duplication withdraws from petitioner’s subscribers is an unspecified amount of advertising by Seattle retailers which KIRO-TV transmits with these network programs. Thus a large majority of petitioner’s Seattle programming, including the advertising by Seattle retailers which accompanies it, will still be available on petitioner’s system. It is impossible to conclude that elimination of an unspecified but undoubtedly minor amount of Seattle advertising will substantially inconvenience Port Angeles viewers or unduly disrupt petitioner’s CATV service.
Petitioner also failed to carry its burden of showing that waiver would not prejudice KVOS-TV. Petitioner’s allegations suggest no more than that KVOSTV’s American audience is substantially smaller than its Canadian audience and that the larger share of its income is dependent upon the existence of the latter. But as the Commission pointed out, the petition itself discloses that KVOS-TV’s network base hourly rate is $300.00; and this rate depends entirely upon KVOSTV’s American audience for the very programs which petitioner seeks to duplicate. It cannot be assumed that impairment of this source of income would not substantially affect KVOS-TV’s net-profit position.
The Commission’s order is affirmed. The interlocutory injunction heretofore entered is vacated.
. In material part, the rule provides:
“Where a station i.s entitled to program exclusivity, the CATV system shall, upon the request of the station * * * refrain from duplicating any program broadcast by such station, on the same day as its broadcast by the station. * * * ”
. For reasons similar to those involved in Great Falls Community TV Cable Co. v. FCC, 416 F.2d 238 (9th Cir. 1969), we decline to review the contentions in this case upon which the Commission “has been afforded no opportunity to pass.” 47 U.S.C. § 405.
. Cf. Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C.Cir. 1968) :
“When an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which warrant such action. The Commission staff must process annually thousands of applications. It cannot be expected to do research for applicants or to probe the underlying engineering or economic data to see whether they will support a greater claim than that made by experts or counsel. If the Commission staff were required to assume such a burden, little or nothing would be accomplished.”
. The record contains a suggestion that because KVOS-TV carries some NBO programming, petitioner may have to delete certain programs carried by NBC’s Seattle affiliate KING-TV, but no point has been made of this possible limitation.
. Other contentions made in this court by petitioner on this issue were not presented to the Commission, and we do not consider them. See note 2.
. The Commission stated, in this connection, that duplication of KVOS-TV’s programming would disrupt that station’s audience in Port Angeles. Petitioner challenges this assertion as a finding of fact which is not supported by substantial evidence in the record. We do not so view it.
In both the First and Second Reports, the Commission made the general determination that unregulated CATV operations threatened to have “a substantial negative effect upon station audiences.” Second Report and Order, 2 F.C.C.2d at 737. See also First Report and Order, 38 F.C.C. 683, 710-11 (1965). Absent any support for a different conclusion in petitioner’s waiver application, the Commission could reasonably assume that a condition it has found to be true generally would also obtain in Port Angeles. Indeed, petitioner’s allegations regarding the strong appeal of KIROTV to Port Angeles viewers supports tlie Commission’s assumption.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_appel1_7_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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 citizenship of this litigant as indicated in the opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Lendale HEARN and Murray Taylor, Defendants-Appellants.
Nos. 73-1603, 73-1604.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 4, 1973.
Decided May 7, 1974.
Edward Witt Chandler, McKenzie, Tenn. (Court Appointed), for Lendale Hearn.
Allen J. Strawbridge, Jr., Martin, Tenn., for Murray Taylor.
Glen Reid, Jr., Asst. U. S. Atty., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.
Before CELEBREZZE, Circuit Judge, McALLISTER, Senior Circuit Judge, and WILSON, District Judge
The Honorable Frank W. Wilson, Chief Judge, of Tennessee, sitting by designation. U. S. District Court for the Eastern District
FRANK W. WILSON, District Judge.
Lendale Hearn and Murray Taylor were convicted of having engaged in a criminal conspiracy to receive and conceal stolen goods moving in interstate commerce in violation of 18 U.S.C. § 371. In addition, Taylor was convicted of the substantive offense of receiving and concealing stolen goods moving in interstate commerce in violation of 18 U.S.C. § 2315. Hearn received a three year sentence, with all but six months having been suspended, and with 30 months probation to follow. Taylor received two concurrent sentences of a year and a day, together with a fine of $500.00 upon each of the two counts upon which he was convicted. The principal contentions of error made by each appellant in these appeals, which have been consolidated for hearing, center around the admissibility of evidence obtained in the course of certain searches and seizures and the sufficiency of the evidence to warrant their respective convictions.
The record upon these appeals reflects • that the appellants were indicted jointly with two other individuals, L. J. Griffin and Dewey Berryhill, in a four-count indictment. The first count charged all four defendants with having engaged in a conspiracy to transport, receive and conceal stolen property and stolen motor vehicles moving in interstate commerce. The second and third counts charged the co-defendant Griffin with the substantive offense of receiving and concealing stolen property moving in interstate commerce. The fourth count charged the appellant Taylor with the substantive offense of receiving and concealing stolen property moving in interstate commerce. Upon the trial of the case the jury found Hearn, Taylor and Griffin guilty upon the conspiracy count but acquitted the co-defendant Berryhill on that count. In addition, Griffin was found guilty upon the second and third counts and Taylor was found guilty upon the fourth count. No appeal was taken by the co-defendant Griffin in regard to his convictions.
The appellants, Hearn and Taylor, contend, among other matters, that the evidence was insufficient to support their respective convictions. The settled rule, in this regard, is that in reviewing the sufficiency of the evidence to support a conviction this Court “ . cannot weigh the evidence but we must take the view of it, and the inferences reasonably and justifiably to be drawn from it, most favorable to the Government and determine therefrom whether a verdict against the appellant might have been lawfully rendered . . .” United States v. Wolfenbarger, 426 F.2d 992 (6th Cir. 1970).
When all reasonable inferences are accorded and the evidence is viewed in the light most favorable to the Government, the jury could have found the following facts, having reference to the charges in the first count of the indictment, to have been established beyond a reasonable doubt. Sometime during the evening of Sunday, October 3, 1971, a Model #2200 Massey-Ferguson tractor, having a front end loader on one end and a baekhoe on the other and having a value of $5,500.00 (which equipment will hereinafter be referred to simply as a backhoe), was stolen from the premises of its owner, the McBride Construction Company, in Paris, Tennessee. The baekhoe, which was painted yellow and had certain distinctive features, including plastic sleeves placed over the hydraulic lines by the owner to afford additional protection to those lines, was loaded at the time of the theft upon a yellow 3-axle metal trailer, which in turn was hitched to a yellow truck. All three pieces of equipment were stolen upon the occasion of October 3,1971.
Sometime during the first part of October, 1971, the defendant Hearn, accompanied by the co-defendant Berryhill, was observed driving a truck and trailer loaded with a baekhoe, all of the equipment being of the same description as the stolen equipment, in Weakley County, Tennessee, which adjoins Henry County where Paris, Tennessee is located. Upon this occasion the defendant Hearn was observed making a delivery of the baekhoe to the co-defendant Griffin at his farm in Weakley County, Tennessee. Hearn and Griffin conversed for some 30 minutes at the time of this delivery and then Hearn left, driving the truck and trailer, but leaving the‘backhoe with Griffin. About a week after the theft occurred, the truck and trailer were discovered abandoned along the highway in Weakley County, Tennessee, and were returned to their owner.
The defendant Taylor also lived on a farm in Weakley County, Tennessee, his farm being some three miles from the farm of the defendant Griffin. During the months of October and November 1971, Taylor was observed to have on his farm a baekhoe of the same make, model and description, and having the same distinctive features as the stolen backhoe. He told an acquaintance that he had obtained the baekhoe from a certain individual. Upon the trial that individual denied the statement. During the time that Taylor had the baekhoe he allowed a neighbor to use it. Several persons who observed the baekhoe on this occasion testified that it was the same piece of equipment as the baekhoe that they inspected at the McBride Construction Company when the stolen baekhoe was recovered. When Taylor retrieved the baekhoe from his neighbor, he stated that he had to deliver it to someone else. In February of 1972, after the stolen baekhoe had been recovered, Taylor was interviewed by the F.B.I. and denied that he had ever had a baekhoe in his possession or on his farm.
In late December 1971, the defendant Griffin delivered the baekhoe to an equipment dealer in Marion, Arkansas, with instructions that he rent it or sell it for him. On this occassion, Griffin, quoted such a low price on the equipment that the dealer asked if it were “hot,” to which Griffin replied, “It may be a little warm.” In another conversation Griffin advised the dealer that he would get rid of the baekhoe “if I have to run it off in the river.”
On January 8, 1972, Griffin picked up the baekhoe in Marion, Arkansas, and transported it back to his farm in Weakley County, Tennessee. On January 14, 1972, the baekhoe was found in a tool shed on Griffin’s farm by local law enforcement officers in the course of a search of the premises.
In addition to the foregoing evidence regarding the baekhoe, evidence was introduced in regard to a motorcycle referred to in one of the overt acts alleged in the conspiracy count. That evidence reflected that a Honda motorcycle, bearing a certain identification number, was stolen in LaFayette, Louisiana, on a date believed by the owner to have been in about October of 1971. The defendant Hearn was shown to have returned from the vicinity of LaFayette, Louisiana, to Weakley County, Tennessee, in an enclosed truck during the latter part of September of 1971. In December of 1971 Griffin traded the Honda for another piece of equipment at a motorcycle shop in Union City, Tennessee.
The fourth count of the indictment charged the appellant Taylor with the substantive offense of receiving and concealing a stolen traxeavator moving in interstate commerce. When the evidence in regard to this count is viewed in a light most favorable to the Government, the jury could find the following facts to have been established beyond a reasonable doubt. Upon March 17, 1971, a new Caterpillar traxeavator, Model No. 955K, bearing a certain identification number and having a value of $31,000 was stolen from the S & W Construction Company in Memphis, Tennessee. Upon October 15, 1971, the traxeavator was recovered by the police in Gary, Indiana. Two days later the traxeavator was again stolen, this time from the lot where the police had stored the equipment. Upon January 12, 1972, the traxcavator was located in a barn upon the farm of the appellant Taylor in Weakley County, Tennessee, during the course of a search of the premises by local law enforcement officers. Bales of hay had been placed around the traxeavator to conceal its presence in the barn. Taylor had purchased the hay some months previous to feed two horses which he kept in the barn lot. When shown the traxeavator following its discovery, Taylor remarked to the officers “You would-n’t believe that somebody could put this in my barn and me not know it.”
Upon the foregoing state of the record it is clear that sufficient evidence exists to support the verdict as to both Hearn and Taylor upon the conspiracy count. It is contended that evidence of a conspiratorial agreement is lacking. While the evidence may be insufficient to establish a conspiratorial agreement regarding the transportation of the motorcycle, there is a clear sufficiency of the evidence to establish a conspiratorial agreement regarding the receiving and concealing of the backhoe. It is not necessary that the proof establish a formal agreement in this regard. It is sufficient if the unlawful agreement may be inferred from all of the circumstances. As stated by this Court in the case of Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956);
“Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a development and collocation of circumstances.”
It is likewise clear that the evidence is sufficient to support the jury vefdict finding the appellant Taylor guilty of receiving and concealing the traxeavator as charged in the fourth count of the indictment.
However, with respect to each of; the foregoing counts it is contended by the appellants that evidence obtained as a result of an unlawful search was improperly admitted in the course of their trial, and that the verdict was rendered invalid accordingly. Regarding the conspiracy count, it is contended that the trial court was in error in failing to sustain the motion of each defendant seeking to suppress evidence obtained as a result of the search of the co-defendant Griffin’s farm, which search led to the discovery of the backhoe in his tool shed. Regarding the fourth count, it is contended that the trial court was in error in failing to sustain the motion of the defendant Taylor to suppress evidence obtained as a result of a search leading to the discovery of the traxcavator in his barn. This Court must accordingly turn its attention to these contentions.
With respect to the search which led to the discovery of the stolen backhoe in the tool shed of the co-defendant Griffin, certain additional facts become relevant. As previously noted, upon January 8, 1972, Griffin returned the backhoe from Marion, Arkansas, to Weakley County, Tennessee. There was also evidence in the record which would reflect that upon the same weekend Griffin stole a Model B-4 Caterpillar Bulldozer from the dealer in Marion, Arkansas, and transported it to Weakley County, Tennessee, where he concealed it on an abandoned farm near his home, a matter for which he was convicted as charged in the second count of the indictment. When local law enforcement officers received information regarding the theft of the bulldozer, they obtained a warrant to search the Griffin farm for it. In the course of an unsuccessful search for the bulldozer, they discovered a backhoe in the tool shed and secured its identification number. Using this means to confirm that the backhoe was stolen, they obtained a search warrant and returned to the premises and seized the backhoe, which was the stolen equipment referred to in the conspiracy count.
It appears, however, as asserted by the appellants, that each of the above referred to search warrants was defective in one or more respects, including the fact that they each recited that the information contained therein had been obtained from an informant whose identity was not stated and whose reliability was not reflected so as to enable the magistrate to form a judicial opinion thereon, all as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
In response to this contention, it is the position of the Government that the appellants had no interest in the premises where the backhoe was found, and therefore have no standing to question the legality of the search of those premises. It is true, as contended by the Government, that neither Hearn nor Taylor has ever asserted any interest in the backhoe or in the Griffin premises that were searched.
It is well settled, of course, that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In order to have standing to object to an unlawful search, a person must have been the victim of the unlawful search. That is, he must have been the person against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search directed at another.
As a basis for asserting the right to object to the search of Griffin’s premises, the appellants make two contentions. Relying upon McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L. Ed. 153 (1948), they assert that if one co-defendant has standing to challenge an unlawful search, all other co-defendants likewise have standing. Relying upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1968), they assert that where possession is an essential element of the offense charged, all defendants charged with such possession have standing to challenge an unlawful search regardless of any lack of personal interest in the premises searched or the property seized.
The foregoing general propositions are not, however, an accurate statement of the present law. Any bases for drawing such general propositions of law from the cases of McDonald v. United States, swpra, and Jones v. United States, supra, have been largely, if not wholly, removed by the later cases of Alderman v. United States, 394 U.S. 165, 173 n. 7, 89 S.Ct. 961, 22 L.Ed.2d 176, 186 n. 7 (1968) (limiting the automatic standing rule of McDonald to guests “on the premises searched”) and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (forbidding the use upon trial of pretrial admissions against interest made to achieve Fourth Amendment standing in a motion to suppress evidence, thereby removing much of the rationale for the automatic standing rule enunciated in Jones v. United States).
Furthermore, the present case, involving as it does co-defendants to a conspiracy charge seeking to assert Fourth Amendment standing through a co-conspirator, would come within the rules only recently laid down in the case of Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In Brown two defendants were convicted of conspiring with a third to transport stolen goods in interstate commerce. Evidence obtained from an unlawful search of the co-conspirator’s premises was admitted in the separate trial of the other two defendants. Concluding that no- error was made in thus admitting the evidence as to the two defendants who “failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized,” the Court stated:
“[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure . . .” 411 U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed.2d at 214.
The appellants seek to avoid the rules laid down in Brown and maintain standing to assert Fourth Amendment rights with regard to the search of their co-defendant’s premises both by distinguishing the facts in Brown from the present case and by asserting that possession at the time of the search was an essential element of the offense with which they were charged and convicted.
In seeking to distinguish Brown they assert that no prior illegal search was there involved, that, unlike the present case, the conspiracy charged was limited to a date prior to the date of the search under attack and that the offense charged in Brown was a conspiracy to transport, and not a conspiracy to receive and conceal, the contention here being that, unlike Brown, possession is an essential element of the offense for which the appellants were charged and convicted. These distinctions, however, are of no avail. The appellants would no more have' standing to complain of a prior search of the Griffin premises than they would to complain of the search under attack. All other attempted distinctions are predicated either upon the assumption that a co-conspirator’s claim of constructive possession is sufficient to accord him standing, an invalid assumption and one implicitly rejected in footnote number 4 of the Brown opinion, or upon the assumption that possession at the time of seizure is an essential element of the crime of conspiracy to receive and conceal, an invalid legal deduction. Possession, on the day of seizure or otherwise, is not an essential element of the crime of conspiracy to receive and conceal. The crime of conspiracy is not the same as the substantive crime which is the objective of the conspiracy. The gist of the crime of conspiracy to receive and conceal is the unlawful agreement to receive and conceal, accompanied by one or more acts in furtherance of the unlawful agreement. United States v. Ketola, 455 F.2d 83, 85 (9th Cir. 1972).
Applying the rules laid down in Brown v. United States, supra, to the facts of this case, the appellants were without standing to object to the search of their co-defendant’s premises and the evidence obtained as a result of the search was properly admitted as to them.
Turning to the contention of the appellant Taylor that the trial court was in error in failing to suppress evidence obtained as a result of the search leading to the discovery of the traxcavator in his barn, certain facts additional to those heretofore stated become relevant. Upon January 12, 1972, local law enforcement officers obtained a state warrant to search the defendant Taylor’s premises for a stolen Hobart Welder. Having located the welder at one outbuilding, they continued the search by going to a barn some 150 yards away where they located the traxcavator concealed behind bales of hay. Taylor was not present on the farm at the time of this search. He returned shortly thereafter, however, and was told by the officers of their seizure of the stolen welder. A warrant of arrest having been procured in the meanwhile by one of the officers, Taylor was advised of his arrest and of his constitutional rights in regard thereto. Without disclosing their prior search of his barn, the officers then proceeded to interrogate Taylor regarding the traxcavator. Although there is some variance in the testimony at this point, the following testimony of one of the officers is representative of that which occurred:
“The best I remember, one of us asked him about the caterpillar and he said that he didn’t know anything about a caterpillar being in the barn, that he put that hay in there some time ago, six or eight months, and had not been back in that barn since that time and knew nothing about it. So I believe I made the statement to him then: Well, Mr. Taylor, we don’t want to charge you with anything that you don't know anything about, so let’s go look at it.’ ”
In response to this, Taylor said, “Well, let’s go see it.” With Taylor leading the way, he and the officers then went to the barn. Upon observing the traxcavator concealed behind the hay, Taylor remarked, “You wouldn’t believe that somebody could put this in my barn and me not know it.” At no time during these proceedings was Taylor physically restrained in any manner. After the traxcavator was “discovered,” he was permitted to go on his way and turn himself in at the jail later in the day.
Since the search warrant for the Hobart Welder was defective in that it, too, failed to provide adequate facts in regard to the reliability of the informer, as required by Aguilar v. Texas, supra, and Spinelli v. United States, supra, and since it is clear that the continuation of the search after location of the Hobart Welder did not comport with constitutional standards, Marron v. United States, 275 U.S. 192, 48 S.Ct. 741, 72 L.Ed. 231 (1927); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the admission of evidence concerning the location and discovery of the traxcavator can only be supported upon the theory that Taylor’s statements and actions in going to the barn rendered the search on that occasion a consential one.
The trial court found the search to have been a consential one. Before this finding can be overruled, it must be found to have been clearly erroneous. See United States v. Rose, 415 F.2d 742 (6th Cir. 1969), cert. denied, 396 U.S. 971, 90 S.Ct. 458, 24 L.Ed.2d 438 (1969).
It has long been recognized that consential searches are “reasonable” and thus may lawfully be made without a search warrant. Nor does a prior unlawful search render evidence obtained by a subsequent consential search inadmissible, United States v. Willis, 473 F. 2d 450 (6th Cir. 1973), although, as shall be shortly noted, the use of unlawfully obtained information in procuring consent is a relevant fact to consider in determining the voluntary nature of the consent.
The guidelines for testing the validity of a search asserted to have been made with the consent of the accused are those set forth in the recent case of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). As stated by the Court in that case: “The constitutional question in the present case concerns the definition of ‘consent’ in the Fourth and Fourteenth Amendments context.” Starting with the premises that “when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given,” 412 U.S. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 860, the Supreme Court rejected the theory that to establish “consent” the prosecution must establish a constitutional “waiver,” that is, “an intentional relinquishment or abandonment of a known right or privilege.” Rather, the Court concluded that voluntariness “is a question of fact to be determined from the totality of all the circumstances.” and “it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the ■ unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.” 412 U.S. at 227, 93 S.Ct. at 2048, 36 L.Ed.2d at 863.
Thus, the presence or absence of a single consential or coercive factor is not of itself controlling as a matter of law. As illustratively pointed out by the Court:
“Some of the factors taken into account have included the youth of the accused . . . his lack of education ... or his law intelligence; * * * the lack of any advice to the accused of his constitutional rights, the length of detention . . . the repeated and prolonged nature of the questioning and the use of physical punishment, such as the deprivation of food or sleep ... In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted.” (Citations omitted) 412 U.S. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.
Applying the guidelines in Schneckloth v. Bustamonte to the facts 'of the present case, the factors tending to establish a voluntary and uncoerced consent on the part of the appellant Taylor to the search of his premises include: (a) his having been initially given his Miranda advice of rights incident to his arrest on the stolen welder charge; (b) his continued freedom of movement and the lack of any physical restraint incident to his arrest upon the stolen welder charge; (c) his presence on his own farm and in familiar surroundings; (d) his acquiescence in the officer’s suggestion to “go look at it” (i. e., the traxcavator) and his affirmative response, “Well, let’s go see it”; and (e) his leading the way to the barn and in mounting the bales of hay in advance of the others.
Upon the other hand, factors tending to establish an involuntary and coercive consent search include: (a) the presence of three law enforcement officers on his farm; (b) his initial arrest upon the stolen welder charge; (c) the suggestion by the officers that the barn be inspected for the presence of the traxcavator; (d) the use by the officers of information gained by a prior unlawful search as the predicate for their suggestion that the barn be inspected for the presence of the traxcavator; and (e) the absence of any warning to the appellant that he had a constitutional right to refuse to consent to a search of the barn.
An evaluation of the foregoing would indicate to this Court that the coercive factors, though some of them are subtle and implicit, would nevertheless substantially outweigh the non-coercive ones. As stated in the Schneckloth case:
“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents’” 412 U.S. at 229, 93 S.Ct. at 2049, 36 L.Ed.2d at 864. Bearing in mind that consent must be proved by “clear and positive testimony,” Amos v. United States 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and “must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion,” Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965), this Court is of the opinion that such consent as was here involved was not “freely and voluntarily” given and that the conclusion of the trial court to the contrary was clearly erroneous. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (consent held invalid where given on officer’s representation that he had a search warrant). See also Villano v. United States, 310 F.2d 680 (10th Cir. 1962) citing United States v. Page, 302 F.2d 81 (9th Cir. 1962) (“The Government’s burden is greater where consent is claimed to have been given while the defendant is under arrest”).
Furthermore, under the facts of this case, the same result would be required by the application of the legal principle that information gained by law enforcement officers during an illegal search cannot be used in a derivative manner to obtain other evidence, the so-called “fruit of the poisonous tree” doctrine. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). See also Fike v. United States 449 F.2d 191 (5th Cir. 1971); United States v. Brandon, 467 F.2d 1008 (9th Cir. 1972); United States v. Cole, 463 F.2d 163 (2nd Cir. 1972) .
Other matters of less import are complained of by the appellants. These have been considered by this Court and are found to be without merit.
The conviction of each appellant upon Count I of the indictment (conspiracy) will be affirmed. The conviction of the appellant Taylor upon Count IV of the indictment (receiving and concealing) will be set aside and a new trial granted upon that count.
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 citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer:
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songer_appel1_1_3
|
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 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.
UNIFIED SEWERAGE AGENCY OF WASHINGTON COUNTY, OREGON, a municipal corporation and County Service District, on behalf of and for the use and benefit of Teeples & Thatcher Inc., a corporation, Plaintiffs-Appellees, v. JELCO INCORPORATED, a corporation, and Seaboard Surety Company, a corporation, Defendants-Appellants.
No. 78-1920.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 15, 1980.
Decided June 1, 1981.
Robert D. Maack, Salt Lake City, Utah, argued for defendants-appellants; Wayne Wadsworth, Watkiss & Campbell, Salt Lake City, Utah, Lindsay, Hart, Neil & Weigler, Portland, Or., on brief.
Dwight L. Schwab, Schwab, Burdick & Hilton, Daniel J. Seifer, Portland, Or., for plaintiffs-appellees.
Before GOODWIN, FLETCHER and PREGERSON, Circuit Judges.
GOODWIN, Circuit Judge.
Jelco moved to disqualify the plaintiff’s law firm on the theory that the attorneys were suing their own client in violation of Canons 4, 5 and 9 of the Code of Professional Responsibility of the State of Oregon (1980). The trial judge denied the disqualification motion and Jelco appealed.
We treat the appeal as a petition for mandamus.
Jelco, based in Salt Lake City, was the prime contractor on a sewer plant project in Oregon. Teeples & Thatcher was the subcontractor for concrete work, and Ace Electric Co. was an electrical subcontractor. Kobin & Meyer is a Portland law firm experienced in representing construction companies. Kobin & Meyer had represented Teeples & Thatcher for ten years prior to this litigation.
In 1975, a dispute arose between Ace Electric and Jelco over Ace’s claim for additional compensation under its subcontract. Ace contended that a change Jelco made in suppliers constituted a change in the terms of the subcontract. Jelco’s Salt Lake City counsel, one Beesley, and another Jelco agent contacted Paul Meyer of Kobin & Meyer in mid-1975, and asked that firm to join in Jelco’s representation in the Ace Electric controversy.
Meyer told Beesley that Kobin & Meyer represented Teeples & Thatcher in what was then an embryonic dispute between Teeples & Thatcher and Jelco. Teeples & Thatcher’s expressions of dissatisfaction with Jelco’s scheduling and sequence of concrete work had reached the stage of lawyer discussions. Beesley nonetheless recommended to Jelco management that Kobin & Meyer be retained to assist in the Ace Electric litigation. Jelco’s management, with full knowledge of Jelco’s potential conflict with Teeples & Thatcher on the same project, and with full knowledge of Kobin & Meyer’s long-standing relationship with Teeples & Thatcher, retained Kobin & Meyer.
In mid-1976, after a proposed settlement of the Teeples-Jelco dispute collapsed, Meyer told Beesley that the Teeples-Jelco dispute could ripen into a lawsuit. Meyer asked Beesley, and through him, Jelco’s management, to re-evaluate whether Jelco wished Kobin & Meyer to continue to represent Jelco in the Ace Electric litigation. Meyer made it clear that if it came to a choice, Kobin & Meyer preferred to keep Teeples as a client. Jelco, through Beesley, replied unequivocally that it desired Kobin & Meyer to continue as counsel in the Ace litigation regardless of what happened in the Jelco dispute with Teeples & Thatcher.
The liability issues in the Ace litigation were tried in July 1976, and were determined adversely to Jelco. In December 1976, Kobin & Meyer filed an action for Teeples & Thatcher against Jelco.
In March 1977, with the damages issue in the Ace litigation still to be tried, Meyer again asked Beesley and Jelco’s house counsel if Jelco desired to have Kobin & Meyer continue to represent Jelco against Ace. Meyer repeated his firm’s expressed desire to avoid prejudicing Kobin & Meyer’s representation of Teeples. Jelco again decided to continue with Kobin & Meyer in the Ace litigation.
In May 1977, Jelco discharged Beesley, obtained new Salt Lake City counsel, and discharged Kobin & Meyer from the Ace Electric litigation as soon as a substitute attorney could take over that case. In December 1977, Jelco filed this motion to disqualify Kobin & Meyer from further representation of Teeples & Thatcher in the action against Jelco.
I. JURISDICTION
Denial of a motion to disqualify counsel is not an appealable order under the test set forth in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Firestone Tire & Rubber Co. v. Risjord, 449 U.S.-, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); Chugach Elec. Ass’n v. United States D. C. for Dist. of Alaska, 370 F.2d 441 (9th Cir. 1966), cert. denied, 389 U.S. 820, 88 S.Ct. 40, 19 L.Ed.2d 71 (1967); Cord v. Smith, 338 F.2d 516, 521 (9th Cir. 1964), clarified, 370 F.2d 418 (1966). See also, United States v. State of Wash., 573 F.2d 1121, 1122 (9th Cir. 1978) (order denying motion to disqualify a judge is not appealable).
From time to time, however, this circuit has treated an appeal from a nonappealable order as a petition for a writ of mandamus and has undertaken discretionary review under the All Writs Act, 28 U.S.C. § 1651 (1976). Whether we will do so in a particular case depends upon whether the order qualifies for extraordinary relief under the guidelines set forth in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Those guidelines are:
“... (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.... (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.... (3) The district court’s order is clearly erroneous as a matter of law.... (4) The district court’s order is an oft-repeated error, or manifests a persistent, disregard of the federal rules.... (5) The district court’s order raises new and important problems, or issues of law of first impression.... ” (Citations omitted) 557 F.2d at 654-55.
The Bauman court emphasized that all factors would not be relevant in every case, and that the factors might point in different directions in any one case.
Mandamus relief is appropriate here. First, Jelco has no other adequate means of seeking relief. A denial of a motion to disqualify is not an appealable order, and this court has held that certification under 28 U.S.C. § 1292(b) is not available. Trone v. Smith, 553 F.2d 1207 (9th Cir. 1977). Second, Jelco could suffer irremediable damage if forced to wait until after trial to appeal. Any advantage Kobin & Meyer possesses as a result of its representation of Jelco could be put to use at trial. Information once used or exposed would not be forgotten and could be used against Jelco on retrial. More important, the public perception of the profession could be damaged.
If the district court’s refusal to disqualify Kobin & Meyer is an error, it comes under the purview of review for errors of law.
Finally, we note that this circuit has not heretofore addressed the issues raised in this case. They are important. The profession and the public will benefit by clear direction from this court. This case is, therefore, appropriate for mandamus relief.
II. THE MERITS
The trial court viewed the case as one involving an attorney’s acceptance of employment adverse to a former client, and therefore tested Kobin & Meyer’s actions against the standards set forth in Canon 4. In general Canon 4 prohibits an attorney from divulging confidences and secrets of a client. Under Canon 4 an attorney may not represent interests adverse to a former client if the factual context of the later representation is similar or related to that of the former representation. Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). See generally, Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 270-71 (D.Del.1980).
The case, however, is one in which the attorney undertook representation adverse to a present client. The questions
thus raised are more appropriately treated under Canon 5. In contrast to representation undertaken adverse to a former client, representation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients. See American Bar Foundation, Annotated Code of Professional Responsibility 229 (1979); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976). See also, Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 271 (D.Del.1980).
Disciplinary Rule 5-105(B) provides that: “A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).” Code of Professional Responsibility of the State of Oregon (1980).
In International Business Machines Corp. v. Levin, 579 F.2d 271 (3rd Cir. 1978), the Third Circuit did not require that “adverse effect” be specifically demonstrated. It presumed that adverse effect resulted when an attorney took an adverse position to a present client. We agree that a specific adverse effect need not be demonstrated to trigger DR5-105(B) if an attorney undertakes to represent a client whose position is adverse to that of a present client. See also In re Hedrick, 258 Or. 70, 481 P.2d 71, 73-74 (1971) (attorney’s legal relationship with client provided him with information which would adversely affect client in action brought against client by the attorney). Accordingly, Kobin & Meyer’s dual representation of Teeples & Thatcher and Jelco triggers DR5-105(B) because the representation is presumed to affect adversely Kobin & Meyer’s representation of each.
Teeples & Thatcher argues, however, that Kobin & Meyer should not be disqualified under DR5-105(B) because of the exception set forth in DR5-105(C). To avoid disqualification under DR5-105(B), an attorney must satisfy DR5-105(C)’s two conditions. First, each client must consent to the multiple representation after full disclosure of the risks. Second, it must be “obvious” that the attorney can adequately represent the interests of each client.
A. Consent.
The leading case on the meaning of “consent” in Canon 5 of the disciplinary rules of the State Bar of Oregon is In re Boivin, 271 Or. 419, 533 P.2d 171 (1975). The court stated that the consent must be an “informed consent” made after full disclosure of all of the material facts. 533 P.2d at 174. The court further said:
“To satisfy the requirement of full disclosure by a lawyer before undertaking to represent two conflicting interests, it is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of them, but he must explain to them the nature of the conflict of interest in such detail so that they can understand the reasons why it may be desirable for each to have independent counsel, with undivided loyalty to the interests of each of them.” Id.
Jelco asserts that it did not give “informed consent” because Kobin & Meyer merely “informed” it of the conflict, rather than explained to it the “implications” of the conflict. The district court, on the other hand, found that “there was an informed and knowing waiver by Jelco of any conflict or apparent conflict....” This finding does not offend Fed.R.Civ.P. 52(a).
The record shows that Jelco knew from the beginning that Kobin & Meyer represented Teeples & Thatcher in a long-standing client relationship and that Teeples & Thatcher was involved in an embryonic dispute, with Jelco. Jelco also knew that Kobin & Meyer would accept Jelco as a client only if that relationship would not inhibit Kobin & Meyer in continuing to act as Teeples & Thatcher’s counsel.
As the dispute between Teeples & Thatcher and Jelco developed, Kobin & Meyer twice alerted Jelco’s counsel to the potential conflict and asked whether Jelco wished to continue Kobin & Meyer’s retainer. After consulting with Jelco’s management, Jelco’s counsel assured Kobin & Meyer that Jelco wished Kobin & Meyer to continue representing Jelco.
We have no doubt that Jelco consented to the representation after full disclosure was made to Jelco and its own attorney. The record shows that after Kobin & Meyer’s disclosure, Jelco discussed the two actions and the possible conflict which would result with its own attorney, and then agreed to Kobin & Meyer’s multiple representation. Consent was expressed not just on one occasion, but on two occasions.
Thus, the “consent” prong of DR5-105(C) is satisfied.
B. “Adequate Representation ”.
The requirements of DR5-105(C) are not satisfied, however, by a mere showing of consent after full disclosure. The rule also requires that it be “obvious that [the lawyer] can adequately represent the interest of each [client].... ” As the Oregon Supreme Court said in In re Porter, 283 Or. 517, 584 P.2d 744, 749 n.5 (1978), “[t]his is troubling language.” The Porter court acknowledged, but did not resolve, the very issue confronting the court in this case—the meaning of the “adequate representation” part of DR5-105(C). The court said:
“Because we have found that the full disclosure requirement of DR 5-105(C) was not met, we need not address the apparent further requirement of DR 5-105(C) that it be ‘obvious that he [the lawyer] can adequately represent the interest of each.’
This is troubling language. The Bar contends that DR 5-105(C) states a two-part test. The issue of consent after full disclosure is not even reached until the initial requirement that ‘it is obvious that he [the lawyer] can adequately represent the interest of each’ is satisfied. The Bar argues that this requirement embodies the policy that differing interests may be represented only in rare cases. The following ethics opinions provide support [for] the Bar’s position by treating the requirement that adequate representation be obvious as a separate standard: Opinions of the Committee on Legal Ethics of the Oregon State Bar numbers 218 and 376; ABA Formal Opinion number 331 (12/15/72); ABA Informal Opinions number* 1235 (8/24/72) and 1282 (11/21/73). To read the language of DR 5-105(C) literally, however, would make the representation of conflicting interests nearly impossible. The difficulty lies in the word ‘obvious.’ Once it is shown that the exercise of the lawyer’s independent professional judgment would be or would likely be adversely affected (DR 5-105(A)), how could it ever be ‘obvious’ that he could adequately represent the interest of each party?” 584 P.2d 749, n.5.
Our analysis of the history of DR5105(C), the structure of the Code, and the relevant policy considerations convinces us that the latter approach mentioned by the Porter court (i. e., that if adverse affect is shown, it is never obvious that an attorney can adequately represent both) is not the correct approach to DR5-105(C).
1. Legislative History of DR5-105(C).
The history of the consent provision in the Code of Professional Responsibility’s conflict of interest section indicates that consent was never intended to be meaningless or ineffective. Canon 6 of the 1908 Code of Professional Responsibility, provided that:
“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client required him to oppose.”
Although Canon 6 seemingly allowed multiple representation whenever the clients consented, the courts have interpreted it in a more restrictive manner. In Kelly v. Greason, 23 N.Y.2d 368, 378-79, 244 N.E.2d 456, 462, 296 N.Y.S.2d 937, 945-46 (1968), for example, the court remanded on the issue of whether there was consent, but indicated in dicta that even with consent multiple representation is not always appropriate. The court noted that although Canon 6 expresses the general policy that a client who is fully cognizant of potential or actual conflicts is entitled to take his chances, multiple representation is not always allowed. The court stated that instances where the multiple representation would not be allowed would be when the public interest was involved or where the likelihood of prejudice to one party is extremely great. 23 N.Y.2d at 378, 244 N.E.2d at 462, 296 N.Y.S.2d at 945-46. See, e. g., In re A. and B., 44 N.J. 331,209 A.2d 101 (1965) (held, no conflicting dual representation, but a municipality’s attorney may not also represent a land developer in that municipality. Consent is irrelevant when public' interest is involved). Indeed, Henry Drinker, one of the leading authorities on the old Code, argued that “[Canon 6] does not sanction representation of conflicting interests in every case where such consent is given, but merely forbids it except in such cases.” H. Drinker, Legal Ethics 120 (1953).
Despite the restrictive interpretation of Canon 6’s expansive language, consent was still available to justify representation which would otherwise be improper. See, e. g., Opinions of the Comm, on Legal Ethics of the Oregon State Bar, No. 57 (1957) (citing Canon 6 to say that with consent, an attorney may represent an insurance company and also sue it in an unrelated case on behalf of another client); Arden v. State Bar of California, 52 Cal.2d 310, 341 P.2d 6 (1959) (held, multiple representation of adopting parents and natural mother was not improper even though a conflict later developed because the attorney had obtained consent). Moreover, the ABA committee repeatedly refused to approve an amendment deleting the “express consent” clause in Canon 6. See H. Drinker, Legal Ethics 120, n.16 (1953); ABA Comm, on Professional Ethics, Informal Opinions No. 296 (unpublished, cited in ABA Opinions on Professional Ethics p. 28 (1967)).
Thus, Canon 6 of the old Code of Professional Responsibility contemplated that consent would be available to authorize multiple representation which would otherwise be inappropriate.
In 1969, a new Model Code of Professional Responsibility was enacted. Disciplinary Rule 5-105(C), which differed from old Canon 6 in several respects, provided that:
“[A] lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent judgment on behalf of each.”
DR5-105(C) has a broader scope than Canon 6. Canon 6 only applied to “conflicting interests” which arose when the lawyer had a “duty to contend for that which duty to another client required him to oppose.” DR5-105(C), in contrast to Canon 6, applies whenever the attorney’s representation of one client is likely to be adversely affected by his representation of another client, or when it would involve him in representing “differing interests.” Moreover, whereas Canon 6 on its face would have allowed representation of conflicting interests if there were “consent after full disclosure,” DR5-105(C) requires that it also be “obvious” that an attorney can “adequately represent” the clients with differing interests. The changes in the new Code appear to be changes in substance, not merely form.
The case law and bar association opinions have continued, however under DR5105(C), to allow multiple representation in certain situations if there has been consent after full disclosure. See Opinions of the Comm, on Legal Ethics of the Oregon State Bar, No. 218 (1972) (attorney can represent both parties in a divorce if there are no children and if there is no property of significant value); Fulton v. Woodford, 26 Ariz.App. 17, 545 P.2d 979, 982 (1976) (insurer’s reservation of rights created a conflict of interest, but dual representation of insured and insurer was proper because there was consent; thus, no malpractice or bad faith cause of action available to insured against insurer); Matter of Farr, 264 Ind. 153, 340 N.E.2d 777, 782-83 (1976) (held, in a case involving a conflict against insurer and insured, that case did not fall within category of cases where multiple representation is absolutely prohibited; thus, representation would have been proper had disclosures been made, but none were); see also, In re Hansen, 586 P.2d 413, 415 (Utah 1978) (held, attorney must return fee where he did not obtain consent to advocate against a present client in an unrelated manner); Matter of Kali, 116 Ariz. 285, 569 P.2d 227, 229 (1977) (dual representation improper because no consent); In re Taylor, 567 F.2d 1183 (2nd Cir. 1977) (if consent is given, the court may not unilaterally interfere with a person’s choice of counsel).
2. Structure of the Code.
Giving effect to both elements of DR5105(C) is not inconsistent with the remainder of the Code of Professional Responsibility. We note that although an attorney’s actions are generally governed by the Code, with the attorney deciding the propriety of his actions, a few limited situations exist under the Code in which client consent justifies certain actions. See DR5-104(A) (business transactions with a client); DR5101(A), DR5-105(A) and (B) (declining or discontinuing employment when judgment on behalf of a client is likely to be affected); DR4-101(B) (revealing confidences of a client); DR5-105 (settling similar claim of clients). DR5-105(C) is one of those few cases when consent can justify otherwise improper actions. This section has remained in the Code despite objections.
3. Policy Grounds.
Policy reasons support our decision not to interpret DR5-105(C)’s “adequate representation” language in such a way as to abolish consent. It is true that from its representation of Jelco in the Ace matter, Kobin & Meyer was likely to gain information and insights from Jelco about such things as Jelco’s institutional attitudes towards negotiation and settlement and Jelco’s method of doing business. Such information undoubtedly could prove useful to an opponent. Nevertheless, while the practice of suing a client can be neither condoned nor encouraged, we are not prepared to enunciate a per se rule that a client must forego in all circumstances his choice of a particular attorney merely because there is the foreseeability of a future conflict with one of the attorney’s existing clients.
It is true that the court has an obligation to safeguard the integrity of the judicial process in the eyes of the public. See Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 267 (D.Del.1980); see also, Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751, 754, 759 (2nd Cir. 1975), and at p. 759 (Adams, J., concurring), overruled on other grounds Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980), vacated McAlpin v. Armstrong,-U.S.-, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). But the impact upon the public’s respect for lawyers may be too speculative to justify overriding the client’s right to take a calculated risk and, with full knowledge, engage the attorney of his choice. We do not find it necessary to create a paternalistic rule that would prevent the client in every circumstance from hiring a particular attorney if the client knows that some detriment may result from that choice in a later suit. Clients who are fully advised should be able to make choices of this kind if they wish to do so. Our responsibility is to preserve a balance, delicate though it may be, between an individual’s right to his own freely chosen counsel and the' avoidance of representations where undivided loyalty is impossible. See Trone v. Smith, 621 F.2d 994, 1001 (9th Cir. 1980); Silver Chrysler, supra, 518 F.2d at 753. We think the Code strikes a balance on the side of an individual’s right to choose his own counsel and against a per se rule forbidding multiple representation. See also, In re Taylor, 567 F.2d 1183, 1191 (2nd Cir. 1977) (stating that once the court decides that client consent was given, the court is without power to unilaterally obstruct the choice of counsel).
4. Defining “Adequate Representation”.
Of course, saying that there will be situations in which it is appropriate for an attorney to represent a client who is suing another client is much easier than defining when the representation will meet DR5105(C)’s “adequacy” requirements. Under both Canon 6 and DR5-105(C), the courts have consistently said that representation is unavailable where the public interest is impaired or where there is a great likelihood that one party will be prejudiced. Examples of such cases include a government attorney’s representation of a client who is suing the government, and an attorney’s representation of both the plaintiff and the defendant in a particular suit. We believe the “public interest” and “prejudice” language used on occasion by the courts is merely another way of saying that “adequate representation” could not be provided in those cases.
None of the cases, however, sets forth the specific factors to use in determining when the representation is adequate. In determining whether it is obvious that an attorney can represent adverse parties, the court should look at factors such as: the nature of the litigation; the type of information to which the lawyer may have had access; whether the client is in a position to protect his interests or know whether he will be vulnerable to disadvantage as a result of the multiple representation; the questions in dispute (e. g., statutory construction versus disputes over facts) and whether a government body is involved.
Thus, the court will undoubtedly look at some of the factors which are considered in deciding whether representation against a former client is appropriate. See Gas-a-Tron of Arizona v. Union Oil of California, 534 F.2d 1322 (9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); T. C. Theater Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.), reh. den., 125 F.Supp. 233 (1953).
5. The Merits of this Case.
We now consider whether it was “obvious” that Kobin & Meyer could adequately represent each of its clients in this instance. As a preliminary matter, we must decide whether the findings of fact made by the district court may be relied upon in deciding whether it was obvious that Kobin & Meyer could provide adequate representation. The district court found that there was “no substantial or close relationship between the subject matter of the Ace litigation and the subject matter of the Teeples & Thatcher litigation,” and “no evidence to justify a finding that Kobin & Meyer [had] any special insight or advantage arising on account of its representation of Jelco in the Ace case which would give to Teeples & Thatcher any unfair advantage over Jelco.” These findings of fact are consistent with Fed.R.Civ.P. 52(a).
Although the two actions arose out of the same construction contract between Jelco and Unified Sewerage, the nature of the cases is quite different. The action which Kobin & Meyer handled for Jelco involved only a narrow issue of contract interpretation. The issue was whether the use of a certain aeration equipment manufacturer constituted a change in Jelco’s subcontract with Ace because Ace allegedly had to provide different and additional equipment than originally planned. The facts were virtually undisputed.
. The action which Kobin & Meyer handled for Teeples & Thatcher and against Jelco involved the scheduling and sequencing of concrete work which was to be performed by Teeples & Thatcher for Jelco. Each party claimed that the other party delayed and interfered with its work. The only information furnished by Jelco to Kobin & Meyer in connection with the first action concerned the pre-bid proposals on aeration equipment and electrical work, project specifications for aeration work, the subcontract negotiations between Jelco and Ace, the shop drawings and submittals prepared by Ace and expert testimony relative to costs differentiations for electrical installations. We conclude that the district court’s findings of fact are not clearly erroneous.
The next question this court must address is whether the district court abused its discretion in denying the motion to disqualify, given the above findings of fact. The appropriate standard for reviewing a district court’s ruling on a motion for attorney disqualification is whether the ruling was an abuse of discretion. See Gas-a-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1325 (9th Cir. 1976). The rationale is that the primary responsibility for controlling the conduct of lawyers practicing before the district court lies with that court, not with us. Id.; see Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980).
We find that the district court did not abuse its discretion. It is sufficiently obvious, for the purposes of the canon, that Kobin & Meyer could adequately represent both Jelco and Teeples & Thatcher in the several actions. The litigation in the two cases was quite different; one involved a question of contract interpretation and the other was a highly disputed factual claim concerning each party’s performance. Although one umbrella contract covered each case, the individual contracts involved were quite different. As the findings of fact indicate, Kobin & Meyer did not have access to any specific information that would help Teeples & Thatcher prevail against Jelco (other than general information concerning the personality of a client, which is always helpful in later suits against that client). Jelco, fully advised by its regular counsel, was in a position to know all the risks it was taking in employing Kobin & Meyer.
We find no facts that suggest that Kobin & Meyer would be tempted to “soft pedal” the rights of one client in these cases so as not to jeopardize the position of another client. Nothing suggests that Kobin & Meyer had an incentive not to represent zealously the interests of each client in their respective cases. Accordingly, we find that it was as “obvious” as necessary that Kobin & Meyer could adequately represent Jelco and Teeples & Thatcher within the meaning of the canon.
III. CANON 9 AND THE APPEARANCE OF IMPROPRIETY
Jelco has argued that Kobin & Meyer should be disqualified because the challenged multiple representation carries the appearance of impropriety. The point does, of course, raise questions. But, to paraphrase the Silver Chrysler court, we do not believe Canon 9 was intended to override the delicate balance created by Canon 5 and the decisions thereunder. Silver Chrysler, supra, '518 F.2d at 757. Having decided that Canon 5 was written to allow multiple representation in exceptional cases if all clients consented after full disclosure and if the attorney could adequately represent both parties, we do not read Canon 9 as an implied repeal of the multiple representation language in Canon 5 because it has “the appearance of impropriety.”
The district court’s failure to disqualify Kobin & Meyer was not an abuse of discretion on the facts of this case. Jelco consented after full disclosure and the court found that Kobin & Meyer could adequately represent both parties.
Accordingly, the ruling of the district court will not be disturbed.
Affirmed.
. Cord v. Smith, 338 F.2d 516 (9th Cir. 1964), clarified, 370 F.2d 418 (1966), involved an appeal from the denial of a motion to disqualify plaintiffs attorney. The court rejected the plaintiffs argument that state law applied. It said:
“[W]e do not think that the rule of Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, compels the federal courts to permit, in proceedings before those courts, whatever action by an attorney-at-law may be sanctioned by the courts of the state. When an attorney appears before a federal court, he is acting as an officer of that court, and it is that court which must judge his conduct.” 388 F.2d at 524.
In this case, the United States District Court for the District of Oregon has adopted as its rules the disciplinary rules of the State Bar of Oregon. See Local Rule 3(d) of the District Court for the District of Oregon. Therefore, in deciding whether the district court properly denied Jelco’s motion to disqualify the plaintiffs law firm, we must decide whether the district court properly applied the Code of Professional Responsibility adopted by the State Bar of Oregon. See Chugach Elec. Ass’n v. U.S.D.C. for the District of Alaska, 370 F.2d 441, 442 n.1 (9th Cir. 1966), cert. denied, 389 U.S. 820, 88 S.Ct. 40, 19 L.Ed.2d 71 (1967).
We express no opinion on the law to apply where the district court has not designated the applicable rules of professional responsibility (e. g., state law, the Model Code of Professional Responsibility, or a federal common law of professional responsibility).
Canons 4, 5 and 9 of the Code of Professional Responsibility adopted by the Oregon State Bar, and the disciplinary rules pertaining to those canons, are identical to the canons and disciplinary rules contained in Canons 4, 5 and 9 of the American Bar Association’s Model Code of Professional Responsibility (1980). Hence, our discussion refers to decisions from jurisdictions adopting Canons 4, 5 and 9 of the Model Rules and to ABA opinions.
The reporter for the ABA Committee that drafted the Code of Professional Responsibility recently noted that the Code’s Disciplinary Rules were drafted for use in disciplinary proceedings and were not intended to be used as rules governing disqualification motions. Sutton, How Vulnerable is the Code of Professional Responsibility?, 57 N.C.L.Rev. 497, 514-16 (1979). Nevertheless, the Code will continue to provide guidance to the courts in determining whether a case would be tainted by the participation of an attorney or firm as shown by the District of Oregon’s Local Rule
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_prejud
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America v. Flemming ANDERSON, Appellant. UNITED STATES of America v. William G. HALE, Appellant.
Nos. 72-1848 and 72-2066.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1973.
Decided May 21, 1974.
Rehearing En Banc Denied Aug. 1,1974.
Louis J. Briskman, Pittsburgh, Pa., with whom Sherman L. Cohn, Washington, D. C., Larry J. Ritchie, Washington, D. C., and Alan S. Gover, Houston, Tex., (all appointed by this court) were on the brief, for appellants.
David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, WISDOM, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.
Entered appearances as student counsel pursuant to Rule 20 of the General Rules of this court.
Sitting by designation pursuant to Title 28 U.S.C. § 291(a).
BAZELON, Chief Judge:
In a joint trial appellants were convicted by. a jury of robbery. Anderson received a two to eight year sentence ; imposition of Hale’s sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale’s closing argument. We reverse Hale’s conviction, and affirm Anderson’s.
I
The government’s case rested largely on the testimony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to chat with Hale, whom he had seen in the neighborhood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was accosted and robbed by a group of men. He immediately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted, “there go [sic] a guy that was in the robbery.” When the police ran toward the two men, they fled. Upon their capture, Arrington identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identified him at a lineup.
The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, “that he believed one of [the robbers] was a man by the name of Billy Hale.” This testimony directly contradicted Arrington’s earlier testimony to the effect that he did not “tell the police [Hale’s name], because I didn’t know if it was [him] or not.”
Hale took the stand in his own defense and testified that he had encountered Arrington on the day in question. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he “didn’t know.” Hale claimed that he then went to the Narcotics Treatment Center where he remained during the time of the alleged robbery. He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men were approached by the police, and Hale fled because he feared another drug conviction.
Hale also testified that his estranged wife had received her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her, as he had done in the past. His wife corroborated this testimony.
Anderson presented no evidence.
II — HALE’S CLAIM
Appellant Hale argues that the trial court committed reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examination, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor’s question was constitutionally impermissible; and (B) the court’s failure to declare a mistrial was prejudicial error.
The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including his “right to remain silent.” He was then searched and found in possession of $158. A police interrogator thereupon asked “[w]here did you get the money ?” Hale made no response.
At trial, in an effort to impeach Hale’s testimony that he was carrying a large sum of money because his wife had received her welfare check and had asked him to purchase some money orders for her, the prosecutor led Hale to admit that he had not offered that explanation to the police at the time of his arrest:
Prosecutor: Did you in any way indicate [to the police] where the money came from?
Hale: No, I didn’t.
Prosecutor: Why not?
Hale: I didn’t feel it was necessary at the time.
In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note:
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed at his privilege in the face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied).
Relying on this dictum, several Circuits, including our own, have held that cross-examination of the sort in question in this case was improper.
Recently, however, one Circuit has held, and another has implied, that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a defendant’s refusal to offer an alibi or explanation to his police interrogators.
In Harris the Court held that a defendant could be impeached by “prior inconsistent utterances” made at the time of his arrest even when they were made before the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris rationale to approve “the right of the prosecution to show [a defendant’s] prior inconsistent act of remaining silent The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that:
silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification.
We agree with the Tenth Circuit.
The premise underlying Harris is that if a defendant voluntarily gives statements to the police that contradict his trial testimony those statements are admissible because they are obviously relevant for assessing credibility. When, however, a defendant is informed that he has a right to remain silent, and then exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). There, petitioner refused to answer several questions put to him before the grand jury “on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer.” At trial these same questions were answered “in a way consistent with innocence,” and “the Government was then allowed [for impeachment purposes] ... to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions.” The Court found that the exercise of the privilege was “wholly consistent with innocence,” and therefore concluded, without dissent, that there was “no inconsistency” to support the cross-examination. The Court relied on three factors: (a) petitioner repeatedly maintained his innocence before the grand jury; (6) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and “[i]nnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings . . . ”; (c) “most important,” at the time petitioner appeared before the grand jury he was “already considered a potential defendant” and therefore “it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.”
These reasons have even greater validity in the present case: (a) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly maintained his innocence throughout the proceedings; (6) police interrogation may be viewed as more “secret” than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda’s rules were aimed precisely at dangers presented by the secret nature of police interrogation; (c) Hale was more clearly a “potential defendant” then Grünewald since he had been identified by the victim as one of the robbers, and had been arrested by the police on suspicion of the instant offense.
In sum, application of the principles enunciated in Grünewald compels a finding that, as a matter of law, there was nothing inconsistent between Hale’s silence in interrogation and his alibi at trial. Thus, the basic premise required for triggering the Harris rationale is absent.
Even if it could be said that appellant’s silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exerciee his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, "the accused explicitly availed himself of his right to remain silent. The Supreme Court has proscribed comment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment “cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The Court, relying upon this analysis, then ruled in Miranda that it is “impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” The rationale for this rule was articulated by Justice Black in his Grünewald concurrence:
[There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. 353 U.S. at 425-426.
Nothing in Harris undercuts this fundamental constitutional principle since Harris did not "involve assertion of the constitutional right.
Our conclusion that the prosecutor’s question was improper is buttressed by the fact it would be grossly unfair to advise an accused simply that he had “a right to remain silent,” and then use his silence against him at trial without at the very least having also informed him that if he chooses to exercise his right he may subsequently be impeached by that. fact. The Sixth Circuit noted almost fifty years ago that if an accused’s silence is to be used against him he “should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” The Supreme Court embraced these principles in Johnson v. United States, 818 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), where a defendant who testified was allowed to assert his privilege against self-incrimination as to some questions without having been told that the prosecutor would be permitted to comment upon this assertion. The Court ruled that even if it was error to allow petitioner to invoke his privilege, it was nonetheless improper to permit prosecutorial comment because the defendant was thereby “deprive [d] . . . of an intelligent choice between claiming or waiving his privilege.”
B.
The government argues that the error was harmless since the trial court interrupted the prosecutor and informed the jury that Hale “was not required to indicate where the money came from You may disregard it, ladies and gentlemen.” To avoid reversal, however, the error, being of constitutional magnitude, must be harmless beyond a reasonable doubt.
The government’s case against Hale rests on three limbs: (I) the testimony of the complaining witness; (2) appellant’s flight at the time of arrest; and (3) appellant’s possession of $158.
(1) The testimony of the complaining witness was confused and contradictory.
The trial court characterized it as follows:
[O]ne view . . . with respect to this complainant might be that he has been contradicted to such a point that he wouldn’t be believed. Another perfectly fair view ... is that he is an entirely sincere witness who has a limited intellectual ability, [and] who was in part confused and misled in some of his answers. . .
(2) With respect to appellant’s flight upon apprehension, he explained that his companion had purchased heroin, and, since he had a prior narcotics conviction, he was afraid. He claimed that his former narcotics conviction arose in the same circumstances; that is, when he was not himself in possession of drugs.
(3) In the face of the weak testimony by the complaining witness, and the limited probity of the evidence on flight, evidence of the large sum of money found on appellant played a central part in the government’s case. Appellant attacked this evidence in two ways: first, by showing that the sum of money found on him was much greater than the amount allegedly stolen; and second, by offering an alibi, corroborated by his wife, explaining his possession of the large sum. In this context the improper question by the prosecutor leading to Hale’s admission that he did not offer his alibi to the police was calculated to break a critical point in the defense since it was apparently intended to indicate that the alibi had been fabricated sometime between arrest and trial.
In Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), petitioner, who had been convicted three times — his first two convictions having been reversed by this court — declined to testify at the first two trials, but took the stand at the third “in an apparent effort to bolster [his] contention of insanity [the sole issue in the case].” On cross-examination, after the defendant admitted that he had been “tried on two other occasions,” the prosecutor asked: “This is the first time you have gone on the stand, isn’t it ?” The Court found the question improper and concluded that the error was not harmless. Speaking of a potential cautionary instruction to the jury, such as the one given in this case, the Court said:
[T]he danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury’s attention to petitioner’s prior failure to testify. 366 U.S. at 10.
Thus, the error in the present case, when considered in light of the evidence against appellant, cannot be deemed harmless beyond a reasonable doubt.
Ill — ANDERSON’S CLAIM
Appellant Anderson contends that his constitutional right to remain silent was abridged by Hale’s closing argument to the jury:
All they can do — all people can do is come in and tell you exactly what they did that day. . . . That is all they are required to do. They are not even required to do that, ladies and gentlemen.
And, of course, Mr. Hale took the stand and did just that.
Anderson maintains that this statement urged the jury to draw a negative inference from Anderson’s failure to testify. We have studied Hale’s closing argument, and find that this statement, by itself, did not “invite an inference of [Anderson’s] guilt.” United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1335-1336 (1971) (Bazelon, C. J„ dissenting). Indeed, shortly after completion of Hale’s closing argument, the court instructed the jury that it “must not draw any inference of guilt against the defendant because he did not testify.” In these circumstances, we find no error warranting reversal of Anderson’s conviction.
So ordered.
. Both appellants argue that the trial court’s refusal to grant a motion for judgment of acquittal was erroneous since the testimony of the complaining witness was “inherently incredible.” We find sufficient evidence to sustain the verdicts. The question of credibility was for the jury. See, e. g., Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967).
. Arrington also stated that there was a witness to the robbery, who was never identified, who had told him that one of the robbers was named “Billy Hale or Bobby Hale.” Although he initially testified that he did not identify Hale by name to the police, his subsequent testimony is confused. Counsel for Hale asked: “So you neglected to mention to the police that one of the individuals had given you the name of one of the robbers, is that right?” And Arrington answered, “I told them.” The record does not reveal what it is that Arrington told the police.
. An administrator from the Center testified that his records indicated that Hale had visited the Center on the day in question, but that they did not reveal the time of the visit.
. Hale claimed that his previous conviction resulted from being arrested in the presence of a friend who was in possession of narcotics.
. The owner of a local liquor store testified that he knew Hale, and that Hale had purchased money orders from him on several occasions.
. Tr. at 259.
. Tr. at 262.
. Tr. at 259.
. See also Schmerber v. California, 384 U.S. 757, 765-766, 86 S.Ct. 1826, 16 L.Ed.2d 908 n. 9 (1966).
. See, e. g., Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); United States v. Semensohn, 421 F.2d 1206 (2nd Cir. 1970). See also Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). But see Sharp v. United States, 410 F.2d 969 (5th Cir. 1969). The Sharp majority inexplicably omits reference to the portion of Miranda at issue despite forceful reliance on it by Chief Judge Brown in dissent. 410 F.2d at 972.
. Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968).
. Our dissenting colleague argues that the Miranda dictum is inapplicable to the facts of this case. The record, however, clearly indicates otherwise. Appellant was under police interrogation, the sort of “accusation” to which Miranda referred. See 384 U.S. at 444 & 468 n. 37. And, when he was asked “[w]here did you get the money?” he stood "mute.” This fact was then “use[dY’ against him “at trial." As the eases cited in note 10 supra demonstrate, the Miranda dictum applies precisely to these facts. Nor would it matter, despite the suggestion by the dissent, that Hale answered some questions before remaining silent: “[Tjhere is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent .” Miranda supra, 384 U.S. at 475-476. In fact, the record does not reveal whether appellant answered any questions or made any statements.
. United States v. Ramirez, 441 F.2d 950 (5th Cir. 1971).
. In United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir. 1973), a defendant was arrested for a crime other than the homicide at issue in the appeal before the Third Circuit. At trial he explained that the homicide was accidental. The court held that defendant was properly impeached by his silence at the police station because he had not been accused of committing any homicide, and therefore should have notified the police if he knew about an accidental homicide. Two judges issued a concurring opinion seemingly on the ground that Harris allows impeachment by prior silence at the police station.
In a subsequent case a different panel of the same Circuit held that it was improper to impeach a defendant by pointing out that he invoked another of his Miranda rights, namely, the right to an attorney. United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973). In the face of these two decisions a district court in the Third Circuit has recently held that a defendant can, be impeached by his prior silence only when police interrogation does not concern the crime for which the defendant is subsequently indicted. The district court then concluded that cross-examination of the sort at issue in this case was improper notwithstanding Harris. United States v. Holland, 360 F.Supp. 908 (E.D.Pa.1973).
. United States v. Ramirez, 441 F.2d 950, 954 (5th Cir. 1971) (emphasis supplied).
. Johnson v. Patterson, 475 F.2d 1066, 1068 (10th Cir. 1973). With respect to Ramirez supra, the Tenth Circuit said, “[t]he premise of Ramirez is that silence at the time of arrest is an act inconsistent with the testimony given at trial. . . . We simply deny the validity of the premise.” 476 F.2d at 1068 n. 3. See also Deats v. Rodriguez, 477 F.2d 1023 (10th Cir. 1973).
. 353 U.S. at 416. In the instant case Hale did not decline to answer on the ground that his answers might tend to incriminate him, but simply remained silent in the face of the police interrogator’s instruction that he had “a right to remain silent.”
. 353 U.S. at 417.
. 353 U.S. at 421, 422. See also Stewart v. United States, 366 U.S. 1, 7 n. 14, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).
. 353 U.S. at 422-423.
. 353 U.S. at 423.
. See Miranda supra, 384 U.S. at 445 (“The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.”).
. The Grünewald Court acknowledged that “the question whether a prior statement is sufficiently inconsistent to be allowed to go 'to the jury on the question of credibility is usually within the discretion of the trial court. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court’s supervisory control . . . ” 353 U.S. at 423-424.
. See Fowle v. United States, 410 F.2d 48, 51 (9th Cir. 1969) (“Surely . . . [petitioner’s] silence was no more contradictory of his later testimony than was the silence of [the petitioner m Grünewald].”) ; Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973).
. 384 U.S. at 468 n. 37. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 587 (1968) (“The distance between [Grif/m] and the prosecutor’s comments here ... is infinitesimal.”); Fowle v. United States, 410 F.2d 48, 51-55 (9th Cir. 1969); Johnson v. Patterson, 475 F.2d 1066, 1067-1068 (10th Cir. 1973). See generally Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3rd Cir. 1973) (“Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct . . .”) (emphasis in original).
. The dissent relies heavily on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where the Court held that a defendant who testifies at his second trial, but who did not testify at the first trial, may be impeached by his prior silence when his purpose in testifying is to deny some statements attributed to him by a witness who has offered the same testimony at both trials. In Grünewald supra, the Court explicitly declined to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring .in Grünewald indicated that Raffel should be overruled. The rationale of that concurrence provided the framework for the Court’s subsequent decision in Griffin. Accordingly, there is a serious question whether Raffel has any remaining vitality. See Note, Use of Silence, 33 Md.L.Rev. 363, 367 n. 21 (1973). See also Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (cannot attack witness’s demeanor by introducing fact that he failed to testify at former trials).
In any event, Raffel is clearly distinguishable from the present circumstances because there the petitioner was impeached hy his refusal to testify at a former trial, whereas in the instant case appellant declined to speak with police interrogators. There are good reasons why a • defendant would refuse to speak to the police in a proceeding that is off the record, and at a time when he is without the advice of counsel, and then decide to testify at trial. See Grünewald supra.
. McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). See also Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969).
. 318 U.S. at 198. The Court noted :
Elementary fairness requires that an accused not be misled on th [is] score. If advised by the court that his claim of privilege though granted would be used against him, he well might never claim it. Id. at 197.
This rationale is equally compelling in the face of police interrogation and advice.
. Tr. at 259.
. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 n. 8 (1968).
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Tr. at 187.
. See generally Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1114 & n. 29 (1969); Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767 (1963).
. Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954); Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957).
. 366 U.S. at 3.
. 366 U.S. at 4.
. See, e. g., United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-617 (3rd Cir. 1973); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 (1968). Compare Leake v. Cox, 432 F.2d 982 (4th Cir. 1970) (“overwhelming evidence of guilt”); United States v. Wick, 416 F.2d 61 (7th Cir. 1969) (“overwhelming evidence against the defendant”).
. Tr. at 294.
. Anderson argues that this statement was particularly prejudicial because other parts of Hale’s closing argument attempted to place the blame on Anderson while exonerating Hale. Anderson cites several statements in Hale’s argument indicating that Arringtonhad testified before the grand jury that Hale had committed certain inculpatory acts, whereas at trial he testified that Anderson, did these acts. The record, however, does not support Anderson’s claim. When placed in context, it is clear that the statements in Hale’s closing argument were aimed solely at convincing the jury that Arrington was wholly incredible since he continually changed his story. Thus, Anderson was not harmed. See DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962); United States v. Barney, 371 F.2d 166 (7th Cir. 1966). Compare United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1971), with id. at 1335 (Bazelon, C. J., dissenting).
. In Hines, counsel for one co-defendant argued “you and I, if we were innocent, we would take the stand to try to exonerate ourselves.” 455 F.2d at 1334.
. Tr. at 308.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appfiduc
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2
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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.
BANK OF NEW YORK et al. v. HELVER-ING, Com’r of Internal Revenue.
No. 21.
Circuit Court of Appeals, Second Circuit.
Jan. 4, 1943.
William Mason Smith, of New York City (Lewis A. Spence, of New York City, of counsel), for petitioners.
Earl C. Crouter, Sp. Asst, to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., for respondent.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
The executors of Demarest appeal from an order of the Tax Court, assessing a deficiency against them upon their testator’s income tax for a part of the year 1937: i.e., for the period between January 1 and July 11, the day on which the testator died. At the time of his death Demarest had qualified and he and one, Hotaling, were acting as executors of Jennie E. Read, who had died in New York on February 22, 1936, and upon whose will letters testa'mentary were issued to them on April 6, 1936. For the purposes of this case the important words of the will were as follows : “I direct that each of them so specifically named above by me as executors and trustees shall receive, and I give to 'each of them in lieu of statutory commissions for his services five percent (5%) of the principal of my estate and. five percent (5%) each year upon the income.” 'If either or both should die before her, or •should “fail to qualify, or resign or be removed or die before completing either as executors or trustees the administration of my Will and trusts thereunder,” the testatrix appointed a bank as substitute, and directed that it should receive only statutory commissions. At the time of the execution of the will — June 4, 1934 — Demarest was over 70 years old, Hotaling was 77. While Demarest lived he received as executor and trustee within the period mentioned, over $81,000, and after his death his executors collected $8,000 more, making nearly $90,000 in all: five percent of the estate. His executors included in his gross income for 1937 two-fifths of this sum, two percent being the statutory commission allowed by the New York statute; they regarded the remaining three percent as a legacy and as not taxable for that reason. The Commissioner assessed a deficiency upon this three percent on the theory that the whole •five percent was “compensation for personal service” under § 22(a) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 825; and the Tax Court affirmed his ruling.
In United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240, 29 A.L.R. 1547, a wealthy testator bequeathed to six persons by the eleventh article of his will, legacies: two of $500,000, one of $250,000, two of $200,000; and by the sixteenth article he appointed the legatees his executors and trustees, and concluded as follows: “The bequests herein made to my said executors are in lieu of all compensation or commissions to which they would otherwise be entitled as executors or trustees.” Both the district court — 275 F. 109, 110-— and the Supreme Court (though not this court — 282 F. 851) assumed that, although the executors were obliged in good faith to qualify in order to become entitled to the legacies, they needed to do no more. In the district court I had thought that the legacies were within the statutory phrase, “compensation for personal service,” because the testator had bequeathed them to some extent — -“in part, anyway” — as compensation for services which he expected the executors to render; but the Supreme Court held that the test was, not whether the testator gave the legacies for services, but whether the legatees had to perform the services in order to earn the bequests. This result apparently did not depend upon the fact that the legacies were bequests eo nomine, that they were in a separate and earlier article of the will, and that they were of unequal amounts. The last factor could scarcely have been controlling, because the court apparently thought that no part of the bequests were taxable. Moreover, it is possible that the testator might have rated his executors’ services at different values, or have expected them to give different amounts of time to their duties.
In Ream v. Bowers, 2 Cir., 22 F.2d 465, we came to an opposite conclusion, where the relevant provision of the will was: “I direct that my executors shall each be paid and shall each receive in full payment for all commissions, percentages, and allowances by statute or otherwise, for acting as executors of this my will, the sum of fifty thousand dollars.” We held (22 F.2d at 468) that “the direction * * * to pay $50,000 to each executor ‘for acting’ as such contemplated payment for rendering the entire service.” Judge Sibley in the district court followed that decision in a case where the will read: “For his compensation as executor and trustee under this will, I give and bequeath to my son * * * twenty-five thousand dollars, which shall be in full for all services as executor and trustee.” Grant v. Rose, D.C., 24 F.2d 115, 116. See also Murray v. Commissioner of Internal Revenue, 38 B.T.A. 26. We cannot follow the Tax Coiirt in depending upon the form of the will: that is, that there was no independent and separate bequest; on the other hand, we own that the phrase: “I give to each of them in lieu of statutory commissions for his services five percent (5%),” is very close to the phrase in Ream v. Bowers, supra: “I direct that my executors shall each be paid * * * in full payment for all commissions * * * for acting as executors.” We allocate the words: “for his services,” to the words : “I give to each of them,” as though the phrase read: “I give to each of them for his services in lieu of statutory commissions”; that is, we do not understand the testator to have used the words: “statutory commissions for his services,” as a unitary phrase. Therefore, except for the fact that the executors were so old, that the legacies were “in lieu of” both executors’ and trustees’ commissions, and that the trusts were to run for the lives of young people, we might have held that they were given as “compensation for personal service” within § 22(a). But it is a cardinal canon of testamentary, as well as of any other documentary, interpretation that words shall be read in their setting, and the controlling facts here appear to us to be: first, what we have already mentioned, the age of the legatees and the expected duration of the trusts; and, second, that the testatrix in her will mentioned as an apparent reason for their appointment that they had already acted as executors of her husband. On the whole we are therefore disposed to read the will as not disturbing the usual result that such provisions require no more of the executor than qualifying. It is perhaps unnecessary to add that we have assumed with The Tax Court that United States v. Merriam, supra, still governs such situations; if it is to be overruled, the Supreme Court, not we, must " overrule it.
Order reversed; deficiency expunged.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
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, Appellee, v. William S. ALESSIO, Defendant, Appellant.
No. 7774.
United States Court of Appeals, First Circuit.
March 11, 1971.
Gordon C. Mulligan, Warwick, R. I., by appointment of the Court, for defendant-appellant.
Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Defendant’s appeal raises three questions, two of which are so lacking in merit as to require no mention. The third is more troublesome. The defendant was indicted for larceny of government property. 18 U.S.C. § 641. One of the items he was charged with taking was certain U. S. currency, allegedly belonging to the petty cash fund of a government installation. In the course of the trial at which defendant was convicted, it was sought to show on cross-examination of two government witnesses that this money belonged to a government employee who was merely indebted to the government therefor, as distinguished from being directly owned by the government. This would have been fatal to that aspect of the government’s case. At one stage of the interrogation the court sustained a government objection, stating that indisputably the money in the fund constituted government property.
The relevant portions of the testimony include the following. On cross-examination a Mr. Clark, a government witness, testified as follows.
A. I think I said personally responsible.
Q. Personally responsible for. And that money becomes your money, and you owe the money to the United States by accounting for how it is spent?
A. That is correct.
Later, when co-defendant’s counsel referred to this testimony, the following colloquy occurred.
The COURT. I think not, Mr. Berk. The money didn’t belong to Mr. Clark. It wasn’t usable for Mr. Clark’s purposes; it was merely a trust fund of money belonging to the Government. I don’t find any merit in that contention.
Mr. BERK. Does the Court make that finding?
The COURT. I do. It was the property of the United States Government.
Defendant noted his objection.
The court could properly make a ruling of law with respect to title, predicated upon findings of fact which it left to the jury. However, it is clear that the court did more. It left nothing to the jury. It made a “finding” that the money belonged to the government, which was not only an essential element in the government’s case, but depended upon an acceptance of the testimony of the government witnesses. The court cannot make a finding accepting the government’s testimony, no matter how clear it may be; the burden still remained on the government to prove the money in the fund belonged to it. Testimony, though unchallenged, may still be disbelieved. As we said in DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797, at 798, “No matter how persuasive the government’s evidence may seem to the court, there is no burden on a defendant to dispute it.” We held it to be error in DeCecco for the court to inform the jury that it did not have to make a finding as to a certain element in the government’s case because the defendant did not dispute it. It was even greater error for the court here to make such a statement when counsel had, although possibly ineffectively, sought to make an issue of the matter.
Reversed, new trial ordered.
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_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.
ROCKFORD LIFE INSURANCE CO. v. ILLINOIS DEPARTMENT OF REVENUE et al.
No. 86-251.
Argued March 31, 1987
Decided June 8, 1987
Stevens, J., delivered the opinion for a unanimous Court.
Erwin N. Griswold argued the cause for appellant. With him on the briefs were Karl L. Kellar, Ira L. Burleson, and John C. McCarthy.
Patricia Rosen, Assistant Attorney General of Illinois, argued the cause for appellees. With her on the brief for ap-pellees Illinois Department of Revenue et al. were Neil F. Hartigan, Attorney General, and Roma Jones Stewart, Solicitor General. Charles J. Prorok filed a brief for appellee Aurand.
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Olsen, Alan I. Horowitz, Michael L. Pawp, and Ernest J. Brown; for the National Governor’s Association et al. by Benna Ruth Solomon, Beate Bloch, and Alan S. Madans; and for the California Franchise Tax Board by Benjamin F. Miller and Anna Jovanovich.
Justice Stevens
delivered the opinion of the Court.
This case involves financial instruments commonly known as “Ginnie Maes.” These instruments are issued by private financial institutions, which are obliged to make timely payment of the principal and interest as set forth in the certificates. The Government National Mortgage Association (GNMA) guarantees that the payments will be made as scheduled. The question presented today is whether these instruments are exempt from state taxation under the constitutional principle of intergovernmental tax immunity, or under the relevant immunity statute.
Prior to 1979 changes in Illinois’ tax law, Rockford Life Insurance Company (Rockford) paid an annual property tax on the assessed value of its capital stock. In 1978, the Illinois taxing authorities included the value of Rockford’s portfolio of Ginnie Maes in their calculation of the corporation’s net assets. Rockford challenged the assessment in the Illinois courts and the County Treasurer filed an action to collect the full amount of the assessment ($723,053.70). The Illinois courts uniformly rejected Rockford’s contention that the securities were exempt from state property taxes, reasoning that “the securities in question here were not ‘other obligations of the United States’ within the meaning of § 3701,” and that the constitutional and statutory inquiries were identical in this case. 112 Ill. 2d 174, 176-184, 492 N. E. 2d 1278, 1279-1283 (1986). We noted probable jurisdiction, 479 U. S. 947 (1986), and now affirm.
I
The instruments involved here are standard securities bearing the title “Mortgage Backed Certificate Guaranteed by Government National Mortgage Association.” App. 56. True to that title, the instruments contain a provision in which GNMA pledges the “full faith and credit of the United States” to secure the timely payment of the interest and principal set forth in the instrument. The purpose of the guarantee, and the function of GNMA, which is a wholly owned government corporation within the Department of Housing and Urban Development, is to attract investors into the mortgage market by minimizing the risk of loss. See 12 U. S. C. § 1716(a). There is uncontradicted evidence in the record supporting the conclusion that GNMA’s guarantee is responsible for the ready marketability of these securities. That guarantee is not the primary obligation described in the instrument, however. The duty to make monthly payments of principal and interest to the investors falls squarely on the issuer of the certificate.
The issuer of the certificate is a private party, generally a financial institution, that posesses a pool of federally guaranteed mortgages. Those individual mortgages are the product of transactions between individual borrowers and private lending institutions. It is this pool of private obligations that provides the source of funds, as well as the primary security, for the principal and interest that the issuer promises to pay to the order of the holder of the instrument. After a pool of qualified mortgages is assembled by a qualified issuer, the issuer enters into an agreement with GNMA authorizing the issuer to sell one or more certificates, each of which is proportionately based on and backed by all the mortgages in the designated pool, and each of which is also guaranteed by GNMA. The issuer thereafter may sell the “mortgage-backed certificates” to holders such as Rockford. The issuer administers the pool by collecting principal and interest from the individual mortgagors and remitting the amounts specified in the certificates to the holders. GNMA’s costs for the regulatory duties is covered by a fee charged to the issuer. Unless the issuer defaults in its payments to the holder of a certificate, no federal funds are used in connection with the issuance and sale of these securities, the administration of the pool of mortgages, or the payments of principal and interest set forth in the certificates.
Under the type of Ginnie Maes involved in this case, see n. 5, supra, the issuer is required to continue to make payments to the holders even if an individual mortgage in the pool becomes delinquent. In such event, the issuer may pursue its remedies against the individual mortgagor, or the guarantor of the mortgage, but the issuer does not have any rights against GNMA. GNMA’s guarantee is implicated only if the issuer fails to meet its obligations to the holders under the certificates. In that event the holder proceeds directly against GNMA, and not against the issuer. But the risk of actual loss to GNMA is minimal because its guarantee is secured not only by the individual mortgages in the pool but also by the separate guarantee of each of those mortgages, and by a fidelity bond which the issuer is required to post. See 24 CFR § 390.1 (1986).
rH
The GNMA guarantee of payment that is contained m the mortgage-backed certificates held by Rockford is a pledge of the “full faith and credit of the United States.” But that does not mean that it is the type of “obligation” of the United States which is subject to exemption under the Constitution or the immunity statute. Because the statutory immunity provision now codified at 31 U. S. C. § 3124(a) is “principally a restatement of the constitutional rule,” see Memphis Bank & Trust Co. v. Garner, 459 U. S. 392, 397 (1983), we shall first decide whether the statute requires that Ginnie Maes be exempted from state property taxes, and then consider whether the constitutional doctrine of intergovernmental tax immunity requires any broader exemption.
At the time relevant to this case, Rev. Stat. §3701, as amended, 31 U. S. C. §742 (1976 ed.), provided that “all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority” (emphasis added). The full text of the sentence in which these words appear, rules of statutory construction, and the earlier legislation that was codified by the enactment of this statute, are all consistent with the conclusion that the phrase “other obligations” refers “only to obligations or securities of the same type as those specifically enumerated.” Smith v. Davis, 323 U. S. 111, 117 (1944). This longstanding interpretation resolves the statutory question before us. GNMA certificates are fundamentally different from the securities specifically named in the statute. Most significantly, they are neither direct nor certain obligations of the United States. As the certificate provides, it is the issuer that bears the primary obligation to make timely payments — the United States’ obligation is secondary and contingent. In short, the United States is the guarantor — not the obligor. This distinction is more than adequate to support our conclusion that Ginnie Maes do not qualify as “other obligations of the United States” for the purposes of this statute.
Nor does the constitutional doctrine of intergovernmental tax immunity exempt these instruments from state property taxes. In Smith v. Davis, supra, the United States owed money to a construction company for work that the company had performed on open account. In computing its assets for state tax purposes, the company sought to exclude the amount owed to it by the Federal Government, but a unanimous Court held that the debt was not exempt. The Court concluded that “a unilateral, unliquidated creditor’s claim, which by itself does not bind the United States and which in no way increases or affects the public debt, cannot be said to be a credit instrumentality of the United States for the purposes of tax immunity,” 323 U. S., at 114, and went on to explain that the claim differed
“vitally from the type of credit instrumentalities which this Court in the past has recognized as constitutionally exempt from state and local taxation. Such instrumen-talities in each instance have been characterized by (1) written documents, (2) the bearing of interest, (3) a binding promise by the United States to pay specified sums at specified dates and (4) specific Congressional authorization, which also pledged the full faith and credit of the United States in support of the promise to pay.” Id., at 114-115.
With respect to Ginnie Maes, the third element described in Smith v. Davis is clearly lacking, and its absence is critical in view of the purposes behind the intergovernmental tax immunity doctrine. That doctrine is based on the proposition that the borrowing power is an essential aspect of the Federal Government’s authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States’ borrowing ability. See Weston v. City Council of Charleston, 2 Pet. 449 (1829); McCulloch v. Maryland, 4 Wheat. 316 (1819). The lack of a fixed and certain obligation by the United States in the Ginnie Mae context makes this concern far too attenuated to support constitutional immunity. Cf. Willcuts v. Bunn, 282 U. S. 216, 225 (1931); Hibernia Sav ings Society v. San Francisco, 200 U. S. 310, 315 (1906); Plummer v. Coler, 178 U. S. 115, 136 (1900). Moreover, none of the proceeds of the issuance and sale of the GNMA certificates are received by the Federal Government or used to finance any governmental function. Indeed, given the fixed fees that GNMA charges issuers, and the lack of any GNMA profit sharing, it has not been suggested here that the federal fisc would at all benefit from a holding that Ginnie Maes are exempt from state taxation.
Appellant asserts that Congress authorized the GNMA’s guarantee for the salutary purpose of facilitating the financing of private mortgages, and that an exemption from state taxation will further this purpose. But our job is neither to assess the underlying merits of the program, nor to opine on whether Congress would be wise to exempt Ginnie Maes from state taxation. Our task is simply to decide whether the indirect, contingent, and unliquidated promise that GNMA is authorized to make is the type of federal obligation for which the Constitution, in Congress’ silence, imposes an exemption from state taxation. We hold that it is not.
H — < 1 — i
A court must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly established. We do well to remember the concluding words in Smith, which although spoken in reference to the statute, are relevant to our role in applying the constitutional doctrine as well:
“All of these related statutes are a clear indication of an intent to immunize from state taxation only the interest-bearing obligations of the United States which are needed to secure credit to carry on the necessary functions of government. That intent, which is largely codified in § 3701, should not be expanded or modified in any degree by the judiciary.” 323 U. S., at 119.
The judgment is
Affirmed.
At the time relevant to this case, that statute was Rev. Stat. § 3701, as amended, and provided:
“Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority. This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax, except nondiscriminatory franchise or other non-property taxes in lieu thereof imposed on corporations and except estate taxes or inheritance taxes.” 31 U. S. C. §742 (1976 ed.).
The 1982 reformulation of the statute was “without substantive change” see Pub. L. 97-258, § 4(a), 96 Stat. 1067, and now appears at 31 U. S. C. § 3124(a) with some minor variations in its language, which are not relevant to this case. As in First National Bank of Atlanta v. Bartow County Tax Assessors, 470 U. S. 583 (1985), the tax at issue here was levied prior to the recodification, and “the pre-1982 form of the statute technically controls this case.” Id., at 585, n. 1.
Appellant’s state-court action also involved a variety of state-law claims, and claims that some other federally guaranteed securities were exempt from state taxation. See 112 Ill. 2d 174, 177, 185-187, 492 N. E. 2d 1278, 1279, 1283-1284 (1986). These claims are not at issue here.
The issue presented is not the type that would usually merit our attention if presented in a petition for certiorari. The issue has divided neither the federal courts of appeals nor the state courts. Indeed, aside from the Illinois courts, no court has ever considered whether Ginnie Maes are exempt from state taxes. Nor does it appear that this case presents an overly important question of federal law “which has not been, but should be, settled by this Court. ” This Court’s Rule 17.1(c). The fact is that the Illinois property tax imposed here was repealed in 1979. Nonetheless, this case arises under our mandatory jurisdiction, 28 U. S. C. § 1257(2), and Congress has not allowed us to consider these factors in deciding whether to rule on this case on its merits.
“The Mortgage-Backed Securities Program provides a means for channeling funds from the Nation’s securities markets into the housing market. The U. S. Government full faith and credit guaranty of securities makes them widely accepted in those sectors of the capital markets that otherwise would not be likely to supply funds to the mortgage market. The funds raised through the securities issued are used to make residential and other mortgage loans. Through this process, the program serves to increase the overall supply of credit available for housing and helps to assure that this credit is available at reasonable interest rates.” Dept, of Housing and Urban Development, Handbook GNMA 5500.1 Rev. 6, GNMA I Mortgage Backed Securities Guide 1-1 (1984) (hereinafter GNMA Guide).
The promises set forth in the representative GNMA certificate in the record read as follow:
“THE ISSUER, NAMED BELOW, PROMISES TO PAY TO THE ORDER OF:
“ROCKFORD LIFE INSURANCE COMPANY
“36 1695690 F
“(HEREINAFTER CALLED THE HOLDER) The sum of $1,018,717 DOLS 20 CTS in principal amount, together with interest thereon and on portions thereof outstanding from time to time at the fixed rate set forth hereon, such payment to be in monthly installments, adjustable as set forth below. All monthly installments shall be for application first to interest at such fixed rate and then in reduction of principal balance then outstanding, and shall continue until payment in full of the principal amount, and of all interest accruing thereon.
“[T]he issuer shall pay to the holder, whether or not collected by the issuer, and shall remit as set forth below, monthly payments of not less than the amounts of principal being due monthly on the mortgages and apportioned to the holder by reason of the aforesaid base and backing, together with any apportioned prepayments or other early recoveries of principal and interest at the fixed rate.” App. 56-57.
Sample certificates are published in the GNMA Guide, at App. 39-43.
The Ginnie Maes held by Rockford, are “modified pass-through securities” that provide for the payment of specific amounts whether or not timely collections are made from the individual mortgagors in the pool. See 128 Ill. App. 3d 302, 313, 470 N. E. 2d 596, 603 (2d Dist. 1984). GNMA also guarantees “straight pass-through securities” which provide that the issuer shall pay the holders of the securities the amounts collected from the pool, “as collected,” less specified administrative costs. See 24 CFR § 390.5(a) (1986); GNMA Guide, at 1-1.
The issuer must satisfy various financial requirements imposed by the Federal Housing Authority (FHA) and GNMA. See 24 CFR § 390.3 (1986). In addition each of the individual mortgages in the pool must be guaranteed by the FHA, the Veterans Administration, or another Government agency. Ibid.
GNMA is authorized to make this guarantee under 12 U. S. C. § 1721(g). The fact that the guarantee is executed by a federal agency, rather than by the United States itself, does not avoid the application of the immunity doctrine and statute. See Memphis Bank & Trust v. Garner, 459 U. S. 392, 396 (1983).
See n. 1, supra.
Appellant contends that the issuer is not an obligor at all because the certificate provides that the holder’s sole recourse is against the GNMA. We disagree. That GNMA is willing to pay the investor in case of default and then pursue its own remedies against the issuer does not detract from the reality that the primary obligor is in fact the issuer, and not the GNMA. While the holder of the certificate may not enforce the obligation through a direct action against the issuer, GNMA may, upon default, institute a claim against the issuer’s fidelity bond or extinguish the issuer’s interest in the underlying mortgages thereby making the mortgages the absolute property of GNMA “subject only to unsatisfied rights therein of the holders of the securities.” 24 CFR § 390.15(b) (1986); see also 12 U. S. C. § 1721(g); New York Guardian Mortgagee Corp. v. Cleland, 473 F. Supp. 409, 411 (SDNY 1979). As the GNMA Guide provides: An “issuer of GNMA-guaranteed mortgage-backed securities is responsible for . . . making the full and timely payment of all amounts due to securities holders.” GNMA Guide, at 2-1. This statement is supported by the regulations which prohibit GNMA from guaranteeing securities “if the pool arrangement proposed by the issuer does not satisfactorily provide for . . . [t]imely payment of principal and interest, in accordance with the terms of the guaranteed securities.” 24 CFR § 390.9(c) (1986). See also GNMA Guide, at App. 19, §4.01 (issuer’s contractual agreement with GNMA binds issuer to “remit to the holders all payments ... in a timely manner”).
“But when effort is made, as is the case here, to establish the un-constititional character of a particular tax by claiming that its remote effect will be to impair the borrowing power of the government, courts in overturning statutes, long established and within the ordinary sphere of state legislation, ought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable.” Plummer v. Coler, 178 U. S. 115, 137-138 (1900).
The proposition that a federal guarantee of a loan does not preclude state taxation is a “long established” one. See Board of Comm’rs of Montgomery County v. Elston, 32 Ind. 27, 32 (1869); S.S. Silberblatt, Inc. v. Tax Comm’n of New York, 5 N. Y. 2d 635, 641, 159 N. E. 2d 195, 197-198, cert. denied, 361 U. S. 912 (1959); see also 47 Op. N. C. Atty. Gen. 19 (1977) (concluding that Ginnie Maes are not “obligation of the United States” for these purposes, and indicating that the Assistant Director of GNMA agreed with this position). In fact, during the debate on one of the predecessors to the current immunity statute, Senator Sherman assured the Senate that bonds of the Pacific Railroad, which had been guaranteed by the United States, were not subject to immunity. See Cong. Globe, 41st Cong., 2d Sess., 1591 (1870), discussing Act of July 14, 1870, 16 Stat. 272.
Even if there were a somewhat more certain effect, state taxation of these privately issued instruments would not necessarily be invalid. See Alabama v. King & Boozer, 314 U. S. 1 (1941); Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939); James v. Dravo Contracting Co., 302 U. S. 134 (1937). Immunity from taxation “may not be conferred simply because the tax has an effect on the United States.” United States v. New Mexico, 455 U. S. 720, 734 (1982).
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:
|
sc_lcdisposition
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
ROELL et al. v. WITHROW
No. 02-69.
Argued February 26, 2003
Decided April 29, 2003
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Stevens, Scalia, and Kennedy, JJ., joined, post, p. 591.
Lisa R, Eskow, Deputy Solicitor General of Texas, argued the cause for petitioners. With her on the briefs were Greg Abbott, Attorney General, Philip A. Lionberger, former Solicitor General, R. Ted Cruz, Solicitor General, Melanie P. Sarwal, Assistant Solicitor General, and Charles K. Eldred, Assistant Attorney General.
Amanda Frost argued the cause for respondent. With her on the brief was Brian Wolfman.
Justice Souter
delivered the opinion of the Court.
The Federal Magistrate Act of 1979 (Federal Magistrate Act or Act) expanded the power of magistrate judges by authorizing them to conduct “any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,” as long as they are “specially designated ... by the district court” and are acting “[u]pon the consent of the parties.” 28 U. S. C. § 636(c)(1). The question is whether consent can be inferred from a party’s conduct during litigation, and we hold that it can be.
I
Respondent Jon Michael Withrow is a Texas state prisoner who brought an action under Rev. Stat. § 1979, 42 U. S. C. §1983, against members of the prison’s medical staff, petitioners Joseph Roell, Petra Garibay, and James Reagan, alleging that they had deliberately disregarded his medical needs in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U. S. 97 (1976). During a preliminary hearing before a Magistrate Judge to determine whether the suit could proceed in forma pauperis, see 28 U. S. C. § 1915, the Magistrate Judge told Withrow that he could choose to have her rather than the District Judge preside over the entire case. App. 10-11. Withrow agreed orally, id., at 11, and later in writing, App. to Pet. for Cert. 20a. A lawyer from the Texas attorney general’s office who attended the hearing, but was not permanently assigned to Withrow’s case, indicated that she would have to “talk to the attorneys who have been assigned the case to see if [the petitioners] will execute consent forms.” App. 11.
Without waiting for the petitioners’ decision, the District Judge referred the case to the Magistrate Judge for final disposition, but with the caveat that “all defendants [would] be given an opportunity to consent to the jurisdiction of the magistrate judge,” and that the referral order would be vacated if any of the defendants did not consent. App. to Pet. for Cert. 21a. The Clerk of Court sent the referral order to the petitioners along with a summons directing them to include “[i]n their answer or in a separate pleading... a statement that ‘All defendants consent to the jurisdiction of a United States Magistrate Judge’ or ‘All defendants do not consent to the jurisdiction of a United States Magistrate Judge.’ ” App. 13. The summons advised them that “[t]he court shall not be told which parties do not consent.” Ibid. Only Reagan, who was represented by private counsel, gave written consent to the referral; Roell and Garibay, who were represented by an assistant in the attorney general’s office, filed answers but said nothing about the referral. App. to Pet. for Cert. 17a.
The case nevertheless proceeded in front of the Magistrate Judge, all the way to a jury verdict and judgment for the petitioners. When Withrow appealed, the Court of Appeals sua sponte remanded the ease to the District Court to “determine whether the parties consented to proceed before the magistrate judge and, if so, whether the consents were oral or written.” Id., at 13a. It was only then that Roell and Garibay filed a formal letter of consent with the District Court, stating that “they consented to all proceedings before this date before the United States Magistrate Judge, including disposition of their motion for summary judgment and trial.” Id., at 22a.
The District Court nonetheless referred the Court of Appeals’s enquiry to the same Magistrate Judge who had conducted the trial, who reported that “by their actions [Roell and Garibay] clearly implied their consent to the jurisdiction of a magistrate.” Id., at 19a. She was surely correct, for the record shows that Roell and Garibay voluntarily participated in the entire course of proceedings before the Magistrate Judge, and voiced no objection when, at several points, the Magistrate Judge made it clear that she believed they had consented. The Magistrate Judge observed, however, that under the Circuit’s precedent “consent cannot be implied by the conduct of the parties,” id., at 18a, and she accordingly concluded that the failure of Roell and Garibay to give express consent before sending their postjudgment letter to the District Court meant that she had lacked jurisdiction to hear the case, ibid. The District Court adopted the report and recommendation over the petitioners’ objection. Id., at 14a-15a.
The Court of Appeals affirmed the District Court, agreeing that “[w]hen, pursuant to § 636(c)(1), the magistrate judge enters [a] final judgment, lack of consent and defects in the order of reference are jurisdictional errors” that cannot be waived. 288 F. 3d 199, 201 (CA5 2002). It also reaffirmed its prior holding that “§ 636(c) consent must be express; it cannot be implied by the parties’ conduct.” Ibid. Finally, the appellate court decided that petitioners’ postjudgment consent did not satisfy §636(c)(l)’s consent requirement. Id., at 203. We granted certiorari, 537 U. S. 999 (2002), and now reverse.
II
The Federal Magistrate Act provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court.” 28 U. S. C. § 636(c)(1). Unlike non-consensual referrals of pretrial but case-dispositive matters under § 636(b)(1), which leave the district court free to do as it sees fit with the magistrate judge’s recommendations, a § 636(c)(1) referral gives the magistrate judge full authority over dispositive motions, conduct of trial, and entry of final judgment, all without district court review. A judgment entered by “a magistrate judge designated to exercise civil jurisdiction under [§ 636(c)(1)]” is to be treated as a final judgment of the district court, appealable “in the same manner as an appeal from any other judgment of a district court.” § 636(c)(3).
Section 636(c)(2) establishes the procedures for a § 636(c)(1) referral. “If a magistrate judge is designated to exercise civil jurisdiction under [§ 636(c)(1)], the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction.” § 636(c)(2). Within the time required by local rule, “[t]he decision of the parties shall be communicated to the clerk of court.” Ibid. Federal Rule of Civil Procedure 73(b) specifies that the parties’ election of a magistrate judge shall be memorialized in “a joint form of consent or separate forms of consent setting forth such election,” see Fed. Rules Civ. Proc. Form 34, and that neither the magistrate nor the district judge “shall ... be informed of a party’s response to the clerk’s notification, unless all parties have consented to the referral of the matter to a magistrate judge.” The procedure created by 28 U. S. C. § 636(c)(2) and Rule 73(b) thus envisions advance, written consent communicated to the clerk, the point being to preserve the confidentiality of a party’s choice, in the interest of protecting an objecting party against any possible prejudice at the magistrate judge’s hands later on. See also § 636(c)(2) (“Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties’ consent”).
Here, of course, § 636(c)(2) was honored in the breach, by a referral before Roell and Garibay gave their express consent, without any statement from them, written or oral, until after judgment. App. to Pet. for Cert. 19a. Nonetheless, Roell and Garibay “clearly implied their consent” by their decision to appear before the Magistrate Judge, without expressing any reservation, after being notified of their right to refuse and after being told that she intended to exercise case-dispositive authority. Ibid. The only question is whether consent so shown can count as conferring “civil jurisdiction” under § 636(c)(1), or whether adherence to the letter of § 636(c)(2) is an absolute demand.
So far as it concerns full-time magistrate judges, the font of a magistrate judge’s authority, § 636(c)(1), speaks only of “the consent of the parties,” without qualification as to form, and § 636(c)(3) similarly provides that “[t]he consent of the parties allows” a full-time magistrate judge to enter a final, appealable judgment of the district court. These unadorned references to “consent of the parties” contrast with the language in § 636(c)(1) covering referral to certain part-time magistrate judges, which requires not only that the parties consent, but that they do so by “specific written request.” Cf. also 18 U. S. C. § 3401(b) (allowing magistrate judges to preside over misdemeanor trials only if the defendant “expressly consents ... in writing or orally on the record”). A distinction is thus being made between consent simple, and consent expressed in a “specific written request.” And although the specific referral procedures in 28 U. S. C. § 636(c)(2) and Federal Rule of Civil Procedure 73(b) are by no means just advisory, the text and structure of the section as a whole suggest that a defect in the referral to a full-time magistrate judge under § 636(c)(2) does not eliminate that magistrate judge’s “civil jurisdiction” under § 636(c)(1) so long as the parties have in fact voluntarily consented. See King v. Ionization Int’l, Inc., 825 F. 2d 1180, 1185 (CA7 1987) (noting that the Act “does not require a specific form . . . of consent”).
These textual clues are complemented by a good pragmatic reason to think that Congress intended to permit implied consent. In giving magistrate judges case-dispositive civil authority, Congress hoped to relieve the district courts’ “mounting queue of civil cases” and thereby “improve access to the courts for all groups.” S. Rep. No. 96-74, p. 4 (1979); see H. R. Rep. No. 96-287, p. 2 (1979) (The Act’s main object was to create “a supplementary judicial power designed to meet the ebb and flow of the demands made on the Federal judiciary”). At the same time, though, Congress meant to preserve a litigant’s right to insist on trial before an Article III district judge insulated from interference with his obligation to ignore everything but the merits of a case. See Commodity Futures Trading Common v. Schor, 478 U. S. 833, 848 (1986) (Article III protects litigants’ “ ‘right to have claims decided before judges who are free from potential domination by other branches of government’” (quoting United States v. Will, 449 U. S. 200, 218 (1980))). It was thus concern about the possibility of coercive referrals that prompted Congress to make it clear that “the voluntary consent of the parties is required before a civil action may be referred to a magistrate for a final decision.” S. Conf. Rep. No. 96-322, p. 7 (1979); see also S. Rep. No. 96-74, at 5 (“The bill clearly requires the voluntary consent of the parties as a prerequisite to a magistrate’s exercise of the new jurisdiction. The committee firmly believes that no pressure, tacit or expressed, should be applied to the litigants to induce them to consent to trial before the magistrates”); H. R. Rep. No. 96-287, at 2 (The Act “creates a vehicle by which litigants can consent, freely and voluntarily, to a less formal, more rapid, and less expensive means of resolving their civil controversies”).
When, as here, a party has signaled consent to the magistrate judge’s authority through actions rather than words, the question is what outcome does better by the mix of congressional objectives. On the one hand, the virtue of strict insistence on the express consent requirement embodied in § 636(c)(2) is simply the value of any bright line: here, absolutely minimal risk of compromising the right to an Article III judge. But there is another risk, and insisting on a bright line would raise it: the risk of a full and complicated trial wasted at the option of an undeserving and possibly opportunistic litigant. This risk is right in front of us in this case. Withrow consented orally and in writing to the Magistrate Judge’s authority following notice of his right to elect trial by an Article III district judge; he received the protection intended by the statute, and deserves no boon from the other side’s failure to cross the bright line. In fact, there is even more to Withrow’s unworthiness, since under the local rules of the District Court, it was Withrow’s unmet responsibility as plaintiff to get the consent of all parties and file the completed consent form with the clerk. See Gen. Order No. 80-5, Art. III(B)(2) (SD Tex., June 16, 1980), p. 5, App. to Brief in Opposition 7a. In another case, of course, the shoe might be on the other foot; insisting on the bright line would allow parties in Roell’s and Garibay’s position to sit back without a word about their failure to file the form, with a right to vacate any judgment that turned out not to their liking.
The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored. See Schor, supra, at 849-850 (finding that the litigant “effectively] waive[d]” his right to an Article III court by deciding “to seek relief before the [Commodity Futures Trading Commission] rather than in the federal courts”); United States v. Raddatz, 447 U. S. 667, 676, n. 3 (1980) (eschewing a construction of the Act that would tend to “frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts”).
HH HH h-H
Roell’s and Garibay’s general appearances before the Magistrate Judge, after they had been told of their right to be tried by a district judge, supply the consent necessary for the Magistrate Judge’s “civil jurisdiction” under § 636(c)(1). We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.
It is so ordered.
On at least three different occasions, counsel for Roell and Garibay was present and stood silent when the Magistrate Judge stated that they had consented to her authority. First, in a status teleconference involving the addition of a new defendant, Danny Knutson, who later settled with Wi-throw and was dropped from the suit, the Magistrate Judge stated that “all of the other parties have consented to my jurisdiction.” App. 18. Petitioners later filed a motion for summary judgment, which the Magistrate Judge denied, noting in her order that “this case was referred to the undersigned to conduct all further proceedings, including entry of final judgment, in accordance with 28 U. S. C. § 636(c)(1).” App. to Pet. for Cert. 26a. And finally, during jury selection, the Magistrate Judge told the panel that both sides had consented to her jurisdiction to hear the case. Id., at 27a.
Prior to the 1996 amendments to the Act, see Federal Courts Improvement Act of 1996, Pub. L. 104-317, §207(1)(B), 110 Stat. 3850, parties could also elect to appeal to “a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals.” 28 U. S. C. § 636(c)(4) (1994 ed.) (repealed 1996). If the latter course was pursued, the court of appeals could grant leave to appeal the district court’s judgment. § 636(c)(5) (same). In all events, whether the initial appeal was to the court of appeals under § 636(e)(3) or to the district court under § 636(c)(4), the parties retained the right to seek ultimate review from this Court. § 636(c)(5) (same).
See Black’s Law Dictionary 95 (7th ed. 1999) (“ ‘The term “appearance” . . . designate^] the overt act by which [a party] submits himself to the court’s jurisdiction.... An appearance may be expressly made by formal written or oral declaration, or record entry, or it may be implied from some act done with the intention of appearing and submitting to the court’s jurisdiction’ ” (quoting 4 Am. Jur. 2d, Appearance § 1, p. 620 (1995))).
The parties do not dispute that the Magistrate Judge who presided over the trial was a full-time Magistrate Judge.
The textual evidence cited by the dissent is far from conclusive. The dissent focuses on the fact that § 636(c)(1) allows a magistrate judge to exercise authority only “[u]pon” the parties’ consent, and it concludes that this temporal connotation forecloses accepting implied consent. But the timing of consent is a different matter from the manner of its expression, and it is perfectly in keeping with the sequence of events envisioned by § 686(c)(1) to infer consent from a litigant’s initial act of appearing before the magistrate judge and submitting to her jurisdiction, instead of insisting on trial before a district judge. An “appearance” being commonly understood as “[t]he first act of the defendant in court,” J. Ballen-tine, Law Dictionary with Pronunciations 91 (2d ed. 1948), any subsequent proceedings by the court will occur “[u]pon the consent of the parties,” § 636(c)(1).
Furthermore, it is hardly true, contrary to the dissent’s claim, post, at 594 (opinion of Thomas, J.), that § 636(c)(2) and Rule 73(b) are pointless if implied consent is permitted under § 636(c)(1). Certainly, notification of the right to refuse the magistrate judge is a prerequisite to any inference of consent, so that aspect of §636(c)(2)’s protection is preserved. And litigants may undoubtedly insist that they be able to communicate their decision on the referral to the clerk, in order to guard against the risk of reprisals at the hands of either judge. The only question is whether a litigant who forgoes that procedural opportunity, but still voluntarily gives his consent through a general appearance before the magistrate judge, is still subject to the magistrate judge’s “civil jurisdiction,” and we think that the language of § 636(c)(1) indicates that he is.
Originally, the third sentence of § 636(c)(2) provided that once the decision of the parties was communicated to the clerk, “neither the district judge nor the magistrate shall attempt to persuade or induce any party to •consent to reference of any civil matter to a magistrate.” 93 Stat. 643. In the 1990 amendments to the Act, Congress amended § 636(e)(2) to provide that even after the parties’ decision is made, “either the district court judge or the magistrate may again advise the parties of the availability of the magistrate, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences.” Judicial Improvements Act of 1990, Pub. L. 101-650, §308, 104 Stat. 5112. The change reflected Congress’s diminishing concern that communication between the judge and the parties would lead to coercive referrals. See H. R. Rep. No. 101-734, p. 27 (1990).
We doubt that this interpretation runs a serious risk of “spawning] a second litigation of significant dimension.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001) (internal quotation marks omitted). In the first place, implied consent will be the exception, not the rule, since, as we discuss above, district courts remain bound by the procedural requirements of § 636(c)(2) and Federal Rule of Civil Procedure 73(b). See supra, at 586, 587-588, n. 5. The dissent surmises, post, at 596, that our position raises “ambiguities” as to whether an inference of consent will be supported in a particular case, but we think this concern is greatly exaggerated: as long as parties are notified of the availability of a district judge as required by § 636(c)(2) and Rule 73(b), a litigant’s general appearance before the magistrate judge will usually indicate the necessary consent. In all events, whatever risk of “secondfary] litigation” may exist under an implied consent rule pales in comparison to the inefficiency and unfairness of requiring relitigation of the entire case in circumstances like these.
Because we conclude that Roell and Garibay impliedly consented to the Magistrate Judge’s authority, we need not address whether express postjudgment consent would be sufficient in a case where there was no prior consent, either express or implied. We also have no opportunity to decide Whether the Court of Appeals was correct that lack of consent is a “jurisdictional defect” that can be raised for the first time on appeal.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_genresp1
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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.
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. Marty MARTINEZ, Defendant-Appellant.
No. 84-2587.
United States Court of Appeals, Tenth Circuit.
Nov. 18, 1985.
Edwin Macy, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.
Stanley K. Kotovsky, Jr., Asst. U.S. Atty. (William L. Lutz, U.S. Attorney, with him on brief), Albuquerque, N.M., for plaintiff-appellee.
Before LOGAN and MOORE, Circuit Judges, and WEST, District Judge.
Honorable Lee R. West, United States District Judge for the Western District of Oklahoma, sitting by designation.
JOHN P. MOORE, Circuit Judge.
Marty Martinez was convicted of five counts of unauthorized acquisition of food coupons (food stamps) in violation of 7 U.S.C. § 2024(b). On appeal, Martinez maintains that his pretrial motion to dismiss for prosecutorial delay should have been granted; that the court improperly instructed on the defense of entrapment; and that defense counsel was improperly restricted in the cross-examination of a government witness. Finding no error, we affirm.
I.
Defendant was not arrested until ten and one-half months after the return of the indictment; hence, he claims that his right to a speedy trial as guaranteed by the Sixth Amendment and his right to be free from unnecessary delay established in Fed. R.Crim.P. 48(b) have been violated. He raised this issue by a pretrial motion to dismiss the indictment.
An evidentiary hearing upon the motion was held at which the defendant and agents of the government testified concerning the delay. Following the court’s initial determination that the delay was presumptively prejudicial, the judge considered all the evidence in light of the “four-point test” established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Finding an absence of prejudice to the defendant arising from the delay (the fourth point), the judge denied the motion to dismiss.
Although Barker establishes four tests or considerations for determining whether prosecutorial delay results in a denial of a speedy trial, in this case there is no real conflict over the first three tests: length of the delay, reasons for the delay, or the defendant’s assertion of his right. Therefore, we focus, as did the trial court, on the fourth test: prejudice to the defendant.
During the course of his testimony, Martinez did not articulate any specific harm suffered as a consequence of the delay in his arrest. Although he stated he had been treated for an emotional problem that had some past effect on his powers of recollection, he did not suggest that he was unable to recall the details of the offenses of which he stood charged. An implication that he lost the opportunity to call a particular witness is also questionable. Martinez stated at the hearing that he was then unaware of the whereabouts of a former associate, but he expressed no intention to call this person as a witness. Not only did Martinez admit that the associate was never present during any of the transactions set forth in the indictments, but also his counsel conceded it was “somewhat speculative” that the absence of this person was harmful to the defense. More importantly, there being no evidence when the associate departed, his availability for trial had Martinez been arrested immediately after the indictment is equally problematic. Consequently, the only prejudice shown to the trial court was the presumption arising out of the length of the delay itself.
The trial court correctly held that the evidence was insufficient to warrant a finding of either a Sixth Amendment or a Rule 48(b) delay. United States v. Jenkins, 701 F.2d 850 (10th Cir.1983); United States v. Brown, 600 F.2d 248 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979); United States v. Latimer, 511 F.2d 498 (10th Cir.1975). On appeal, defendant argues no prejudice need be shown to warrant dismissal on speedy trial grounds. Yet, in the absence of prejudice, we have great reluctance to dismiss an indictment for prosecutorial delay. United States v. Jenkins, supra; United States v. Brown, supra. Because of the lack of any other factor amounting to prejudice, we hold the trial court properly denied Martinez’ motion to dismiss upon the basis of the evidence presented on the motion. United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).
II.
At trial, defendant testified and admitted committing the acts of which he was accused; however, he attempted to negate the effect of these admissions with the defense of entrapment. The trial court determined an entrapment instruction was proper, but refused identical instructions tendered by the government and the defendant, and gave his own instead. The court also refused to instruct the jury to consider each transaction entered into by the defendant as seriatim elements of one whole transaction for the purpose of the entrapment defense. Defendant now argues the entrapment instruction given the jury was misleading and improper, and the omission of the seriatim theory instruction was prejudicial. We disagree.
A.
The instruction on entrapment given by the trial court was basically the same instruction discussed in United States v. Smegal, 772 F.2d 659 (10th Cir.1985), and held not improper when coupled with the other instructions in the case. In Smegal, we indicated our preference for an instruction in the form tendered by the litigants here because of our belief in its greater inherent clarity, but we did not hold the preferred instruction was the only acceptable instruction. Yet, that begs the issue.
The question presented here is whether the instruction given mistakenly left the jury with the notion the defendant 4iád some burden of proving he was entrapped by requiring him to establish his lack of predisposition. Defendant’s argument is principally predicated upon the absence of a phrase in the instruction telling the jury the government had the burden of proving there was no entrapment.
We faced that precise issue in Smegal, supra, as well as in United States v. Martinez, 749 F.2d 601 (10th Cir.1984). In both cases, we held it was not reversible error to fail to state in the entrapment instruction itself that the burden of proving no entrapment is on the government, where the instructions, taken as a whole, made that burden clear. We can find no reason to depart here from that established rule.
Examination of all the instructions given makes clear the jury was instructed the burden of proof beyond a reasonable doubt is always on the government and never shifts to the defendant. Accordingly, we conclude that in taking the instruction on entrapment in the context of the remaining instructions, the jury was not misled on the question of the government’s burden of proving defendant was not entrapped.
The defendant has raised additional arguments regarding the alleged inadequacies of the court’s instruction on entrapment. None of those objections was raised in the trial court; therefore, they are not properly preserved for appeal. Fed.R. Crim.P. 30.
B.
Defendant tendered two instructions which were not given, and he cites this refusal as error. We note initially, in tendering these instructions and objecting to the court’s refusal, defendant made only a wan attempt to satisfy Fed.R.Crim.P. 30. That rule states: “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (Emphasis added.) Here the “objection” was: “both instructions fit this case and should be given.” In our judgment, that nonchalant comment is a far cry from “stating distinctly” the grounds why the defendant was entitled to these instructions. The issue has not been preserved for appeal.
We note parenthetically, however, even if the issue had been preserved, the court’s failure to give the instructions would not have been reversible error. First, we have previously held the giving of an instruction properly defining the defense of entrapment obviates the giving of an additional instruction stating each transaction in the course of events is subject to separate consideration on the issue of entrapment. United States v. Perez, 493 F.2d 1339 (10th Cir.1974). Additionally, the court’s instruction here on entrapment stated, in part: “Just as it is your responsibility to consider each offense and the evidence applicable thereto separately, it is likewise your responsibility to consider the evidence concerning entrapment as to each offense separately.” We believe that instruction covered the subject of defendant’s proposed instruction, albeit in different words.
Next, the tenor of defendant’s second proposed instruction was likewise covered in the court’s instruction on entrapment. The proposed instruction would have told the jury to “look to the totality of the circumstances shown by the evidence, including the nature and extent of the inducement offered,” in determining defendant’s predisposition. The court’s instruction stated: “In evaluating this matter of predisposition, you should look to the totality of the circumstances involved in the alleged offense with which the defendant is charged.” The instruction given simply did not emphasize one aspect of the total circumstances as defendant wished. Such emphasis is not appropriate, and the issue was adequately covered. Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10th Cir.1981); Rogers v. Northern Rio Arriba Electric Co-op, Inc., 580 F.2d 1039, 1042 (10th Cir.1978).
III.
Defendant contends the trial court erroneously limited defense counsel’s cross-examination of the government’s agent who approached defendant with the offer to exchange food stamps for merchandise. The issue arises out of counsel’s attempt to inquire about the substance of other undercover operations conducted in other investigations by the witness. The witness had testified that his conduct with the defendant was similar to his “normal” operations, but there were individual differences in every case, and in other cases he might deal in different items to be exchanged for food stamps. The trial judge then interrupted the examination and called counsel to the bench.
At bench, the judge told counsel he would not permit testimony “on other tangents of targeting” because he believed it prejudicial to the defendant. Whereupon defense counsel replied: “Your Honor, I wasn’t going to approach targeting at all. I was — would just state for the record that I believe that the area was delved into in direct testimony, and I was trying to cross-examine him regarding his testimony on direct.” Notwithstanding this explanation, defendant’s counsel now contends that the purpose of this line of questioning was to explore the agent’s motives and to determine whether the agent conformed to his routine practice. Counsel argues the questioning was supportable pursuant to Fed.R. Evid. 404(b) and 406. No offer of proof was made, and the trial judge was not given any indication of defendant’s presently expressed purpose for his inquiry.
Once again, we are preliminarily constrained to conclude this issue was not properly preserved for appeal. Unless the context in which evidence is offered makes clear the reason for the proffer, error cannot be assigned to the exclusion of evidence without an offer of proof. Fed.R. Evid. 103(a)(2). Here, in the context in which the agent was asked whether his investigation of the defendant differed from that of others, the reasons now suggested for the inquiry were then obscure. Indeed, the trial court assumed the purpose for the question was to explore the method employed by the agent to target subjects for investigation. Although counsel disabused the court of that assumption, he made no effort to tell the court he was interested in the motives or habit of the witness. That default terminates the argument here. United States v. Harrelson, 754 F.2d 1153, 1179 (5th Cir.), cert. denied, - U.S. -, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985); Freedom Savings & Loan Ass’n v. Way, 757 F.2d 1176, 1181 (11th Cir.), cert. denied, - U.S. -, 106 S.Ct. 134, 88 L.Ed.2d 110 (1985); Jackson v. Seaboard Coast Line Railroad Co., 678 F.2d 992 (11th Cir.1982); Mills v. Levy, 537 F.2d 1331 (5th Cir.1976); See also 1 Weinstein’s Evidence H 103[04] (1982).
The importance of properly preserving an evidentiary issue is even clearer where, as here, the question is whether the trial court abused its discretion in regulating the course of cross-examination. The judge perceived the direction of cross-examination was potentially harmful; therefore, he interrupted the questioning. Even though that perception was corrected, the judge was not told the reason for the cross-examination was to raise issues regarding the defense of entrapment. Now, in the absence of a record upon which to assess the basis upon which the trial court exercised its discretion, we are being asked to rule the exercise was abusive. That we cannot do. United States v. Atwell, 766 F.2d 416, 419-420 (10th Cir.), cert. denied, - U.S. -, 106 S.Ct. 251, 88 L.Ed.2d 259 (1985). Because the record is silent on the subject, we have no way of knowing whether the testimony would have provided the defendant with a “shield” as he now claims, nor can we judge whether the testimony would have exposed a bias on the part of the agent that would have been relevant to the defense of entrapment.
Nonetheless, we have examined defendant’s argument and find it lacking in substance. Defendant essentially claims he was hampered because he could not show the jury the agent’s “entrapment techniques” habitually employed in other cases. Yet, the issue presented to the jury was whether the techniques employed in this case resulted in the entrapment of this defendant. Accordingly, even if we were to assume for the sake of argument the agent had actually entrapped others, that fact would have no bearing upon whether the agent actually committed the acts resulting in entrapment in this case. By the same token, the inducement offered to others cannot demonstrate whether and what kind of inducement was offered to the defendant in this case. Despite defendant’s argument to the contrary, we are unconvinced the limitation of cross-examination was harmful to the defendant.
AFFIRMED.
. There was ample testimony indicating justifiable reasons for the delay, but also demonstrating, as found by the trial court, the "government didn’t use its best efforts in trying to locate this particular defendant.” Notwithstanding, the court also found the “delay was not done intentionally, nor was it for tactical advantage.” Those findings are amply supported by the record.
. For a discussion of the elements of the defense of entrapment and instruction thereon, See Garcia v. United States, 373 F.2d 806 (10th Cir.1967).
. "The limits of cross-examination are within the discretion of the trial court and will be disturbed on appeal only if that discretion is abused.” Ewing v. Winans, 749 F.2d 607, 616 (10th Cir.1984), (citation omitted).
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. 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".
PECOS VALLEY COTTON OIL, INC., a New Mexico Corporation, and Cimar-ron Insurance Company, Plaintiffs-Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, and National Surety Corporation, Defendants-Appellees.
No. 84-1933.
United States Court of Appeals, Tenth Circuit.
Jan. 8, 1986.
Thomas L. Marek, of Marek & Yarbro, Carlsbad, N.M., for plaintiffs-appellants.
James H. Johansen, of Shaffer, Butt, Thornton & Baehr, Albuquerque, N.M., for defendants-appellees.
Before LOGAN, SETH, and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
In this diversity case tried to the court, the district judge granted defendants’ motion under Fed.R.Civ.P. 41(b) made at the close of plaintiff’s evidence, holding that plaintiffs had shown no right to relief. Plaintiffs appealed; we affirm.
Plaintiffs are Pecos Valley Cotton Oil, Inc. and its general liability insurer, Cimar-ron Insurance Company. Defendants are the insurers of a tractor/trailer rig owned by William W. Taylor, III, an independent contractor who was injured on Pecos Valley’s premises while he was delivering cottonseed to Pecos Valley. Taylor sued Pecos Valley for damages arising out of his injuries. This lawsuit is over which insurance company is obligated to defend Pecos Valley against Taylor’s claim.
Taylor had driven his truck onto a ramp at Pecos Valley in order to transfer the cottonseed from his truck into a seed pit. A large iron door covered the seed pit. While Taylor was opening the back of his truck, the seed pit door, which was open at the time, fell on Taylor and injured him. The district court found that the door fell because of an improper weld, which is not challenged on appeal. In fact, Pecos Valley’s local manager testified that an improper weld caused the accident.
In this action, Pecos Valley seeks a declaratory judgment that Taylor’s insurance policy on the tractor/trailer, issued by Fireman’s Fund Insurance Company, a subsidiary of National Surety Corporation, covers Pecos Valley pursuant to an omnibus coverage clause that extends coverage to anyone “using” the vehicle. The policy also includes a loading/unloading exclusion that precludes coverage for: “[bjodily injury or property damage resulting from the loading of property before it has been put in or on the covered auto or the unloading of property after it has been taken off or out of the covered auto.” R. I, 11. Pecos Valley contends that because it was actually in the process of unloading the tractor/trailer when the injury occurred, it is covered by Taylor’s insurance policy and that defendants are obligated to defend Pecos Valley.
There have been many cases involving construction of loading/unloading clauses in automobile insurance policies. The difficult issue in most is whether the loading/unloading process had begun or whether the claimant was an authorized user of the vehicle. In this case, the trial court assumed that the unloading process had begun and that Pecos Valley was an authorized user of the tractor/trailer. Yet nearly all the cases require a causal connection between the loading/unloading and the accident. It is on this basis that the district court denied relief, finding an insufficient causal connection between the unloading of the cottonseed and the accident. Some courts might disagree. See, e.g., Unigard Mutual Insurance Co. v. State Farm Mutual Insurance Co., 466 F.2d 865, 867 (10th Cir.1972) (covered unloading activity not confined to actual use of vehicle under Oklahoma law); Caribou Four Corners, Inc. v. Truck Insurance Exchange, 443 F.2d 796, 801-02 (10th Cir.1971) (applying “but for” causation test under Utah law). Here, however, we must apply New Mexico law. The district court held that, under New Mexico law, Pecos Valley must show that its use of the vehicle was the “efficient and predominating cause” of the accident in order to be entitled to coverage under the insurance contract, relying on Southern California Petroleum Corp. v. Royal Indemnity Co., 70 N.M. 24, 369 P.2d 407 (1962).
In Southern California the Supreme Court of New Mexico indicated that “efficient and predominating cause” refers to a close causal relationship between the use of the vehicle and the accident; mere coincidence of the two events is insufficient. 369 P.2d at 411. It found no liability for an accident that occurred during the unloading of a cement truck to cement an oil well when the proximate cause of the accident was the negligence of the well owner or others.
Courts requiring a direct causal relationship between the use of the vehicle and the accident in a “loading/unloading” case have not found the requisite relationship in situations similar to the instant case. See, e.g., Kaufman v. Liberty Mutual Insurance Co., 264 F.2d 863, 868 (3d Cir.1959) (opening of cellar door set in sidewalk to facilitate delivery not directly connected to injury to pedestrian); Indiana Lumberman’s Mutual Insurance Co. v. Statesman Insurance Co., 260 Ind. 32, 291 N.E.2d 897, 899 (1973) (collapse of stairs during delivery was predominant cause of injury, not use of vehicle).
The district court found that Pecos Valley was not within the policy’s coverage because the predominant cause of the accident was a faulty weld, not the unloading of the tractor/trailer. The district court applied the correct legal standard and its conclusion is fully supported by the evidence. Accordingly, we AFFIRM the decision of the district court.
. By negative inference, and standard insurance policy interpretation, all other loading and unloading activity, within these two outside limits, remains covered under the general omnibus clause.
. Insurance cases discuss this causal connection problem in two contexts. In the first, a causal connection may have been missing because the loading or unloading had either terminated or not yet begun. In the second, although the loading or unloading process had begun, the causal connection may have been missing because there was a separate or supervening cause. The instant case raises the causal connection problem in the second context.
. Plaintiffs correctly observe that the causation discussion in Southern California was not necessary to the decision in that case. Absent a more conclusive decision, however, it is the best indication that we have on how New Mexico would determine this issue. See Hardy Salt Co. v. Southern Pac. Transp. Co., 501 F.2d 1156, 1163 (10th Cir.) ("considered dicta” of state courts should be applied), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc1sect
|
1291
|
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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
LOUISVILLE TRUST COMPANY, and Citizens Fidelity Bank and Trust Company, Joint Administrators with the Will Annexed of the Estate of John A. O’Brien, Deceased, Plaintiffs-Appellees, v. Patricia R. SMITH, Defendant-Appellant.
No. 14628.
United States Court of Appeals Sixth Circuit.
Oct. 13, 1961.
Walter B. Smith, Louisville, Ky., for defendant-appellant, Patricia R. Smith.
Irvin Marcus, R. Lee Blackwell, Bullitt, Dawson & Tarrant, Louisville, Ky., for plaintiff-appellees, Louisville Trust Co. and Citizens Fidelity Bank & Trust Co., joint administrators with the will annexed of the estate of John A. O’Brien, deceased.
Before CECIL, WEICK and O’SULLIVAN, Circuit Judges.
PER CURIAM.
The order of the District Court, from which this appeal was taken, granted plaintiffs’ motion for leave to file an amended reply to defendant’s counterclaim; granted plaintiffs’ motion for summary judgment on defendant’s counterclaim and denied defendant’s motion for leave to file an amended counterclaim.
The District Court has not yet made any disposition of plaintiffs’ claim for relief set forth in their complaint which is still pending in that court.
Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. provides the only manner in which the court may direct the entry of a final judgment upon one or more, but less than all claims for relief in an action, namely, upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The District Court made no such express determination and direction. Without such determination and direction the action was not terminated as to any of the claims for relief and the order appealed from is subject to revision at any time before the entry of judgment adjudicating all of the claims. The order was not, therefore, a final order, but is interlocutory in nature. New Amsterdam Casualty Co. v. United States, 5 Cir., 272 F.2d 754; Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 10 Alaska 458. No appeal may be prosecuted from the order until it has become final. 28 U.S.C. § 1291.
The motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction.
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 28? Answer with a number.
Answer:
|
sc_caseorigin
|
049
|
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.
MILTON v. WAINWRIGHT, CORRECTIONS DIRECTOR
No. 70-5012.
Argued January 12, 1972
Decided June 22, 1972
Burger, C. J., delivered the opinion of the Court, in which White, BlacemuN, Powell, and RehNquist, JJ., joined. .Stewart, J., filed a dissenting opinion, in which Douglas, BrennaN, and Marshall, JJ., joined, post, p. 378.
Neil P. Rutledge, by. appointment of the Court, 403 U. S. 951, argued the cause and filed a brief for petitioner.
J. Robert Olían, Assistant Attorney General of Florida, argued the cause for'respondent pro hac vice. With him on the brief was Robert L. Shevin, Attorney General.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted the writ of certiorari on claims under the Fifth and Sixth Amendments arising out of the use of one of a number of confessions, all of which were received in evidence over objection. The confession challenged here was obtained by a police officer posing as an accused .person confined in the cell with petitioner.
Petitioner Milton is presently serving a life sentence imposed in 1958 upon his conviction of first-degree murder following a jury trial in Dade County, Florida. During that trial, the State called as a witness a police officer who, at a. time when petitioner had already been indicted and was represented by counsel, posed as a fellow prisoner and spent almost two full days sharing a cell with petitioner. The officer testified to incriminating statements made to him by petitioner during, this period. Contending that the statements he made to the officer were involuntary under Fifth Amendment standards and were obtained in violation of his' Sixth Amendment rights as subsequently interpreted in Massiah v. United States, 377 U. S. 201 (1964), petitioner initiated the present habeas corpus proceeding in the United States District. Court for the Southern District of Florida. The District Court, finding that petitioner had exhausted his state remedies in the course of several post-conviction proceedings in the Florida courts, ruled against petitioner on the merits of his claim, holding that his statements to the police ■officer were not inadmissible on Fifth Amendment grounds and that his Sixth Amendment claim could not prevail since “[n]o Court has declared Massiah retroactive, and .this Court will not be the first to do so.” 306 F. Supp. 929, 933. The Court of Appeals affirmed the denial of relief to petitioner, 428 F. 2d 463.
On the basis of the argument in the case and our examination of the extensive record of petitioner’s 1958 trial, we have concluded that the'judgment under review must be affirmed without reaching the merits of petitioner’s present claim. Assuming, arguendo, that the challenged' testimony should have been excluded, the record clearly reveals'that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U. S. 250 (1969); Chapman v. California, 386 U. S. 18 (1967). The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner’s guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.
The crime for which petitioner was convicted occurred in the early morning hours of June 1, 1958. The woman with whom petitioner had been living was asleep while riding as a passenger in the rear seat of an automobile driven by petitioner; she died by drowning when the car ran into the Miami River with its rear windows closed and its rear doors securely locked from the outside with safety devices designed to ensure against accidental'opening of the doors. Petitioner, who jumped from the-car shortly before it reached the water, was nevertheless propelled into the river by the car’s momentum; he was recovered from the water when a seaman nearby heard his cries for help and found him clinging to a boat moored in the river near the point of the automobile’s entry. A few hours later the car, with the victim’s'body still inside, was retrieved from the bottom of the river a short distance downstream from its point of entry.
The following day the Miami police arrested petitioner on manslaughter charges and placed him in the city jail. Ten days after the woman’s death; petitioner, having been. advised of his right to remain silent, confessed that he had deliberately killed the woman and. that the accident was simulated.' He first made an oral confession to a police officer during- a question-and-answer exchange that was preserved on a wire-recording device. He then repeated his confession during another exchange and these statements were taken down by a stenographer; after this stenographic recording was converted to a transcript, petitioner read it over in full and signed it at 11 p. m. on June ll.
The following day, petitioner told a police officer that he would like to make some clarifying additions to the statements in the writing he had signed the previous night. The officer suggested that they first go with a photographer to the scene of the incident “and reconstruct how this thing . . . occurred.” Petitioner agreed. Hé, the police officer, and a photographer then went to the scene of the crime where petitioner pointed out the route he had taken in driving the car to the river, the.approximate point at which he had jumped out of the car, and the point of the car’s entry into the river. Petitioner was then taken back to the police station where he went over his statement of the night before and indicated to the officer the' parts of that statement he wanted to clarify. Once again, a stenographer was summoned and a question-and-answer exchange was taken down and transcribed to-a writing that petitioner read over and signed. Approximately one week after he had made these confessions, petitioner secured the services of an attorney who advised him not to engage in any further discussions of his case with anyone else.
Following this, and while petitioner was under indictment and confined in the Dade County jail awaiting trial, the State, for reasons that are not altogether clear, assigned a police officer named Langford the special detail of posing as a prisoner and sharing petitioner’s cell in order, to “seek information” from him.
■ Langford entered the cell with petitioner late one Friday afternoon and presented himself as a fellow prisoner under investigation for murder; he assumed a friendly pose toward his cellmate, offering petitioner some of his prison food at their first breakfast together the next morning and telling petitioner something of his own fictitious “crime,” which he described as a robbery committed with an accomplice who had used Langford’s gun to kill the robbery victim. Finally, petitioner began to boast that he had not made Langford’s mistake of having an accomplice who might later serve as a witness; instead, he said, he had committed the “perfect” crime with no surviving witnesses. By the time Langford left, the cell on Sunday afternoon, petitioner had described his own crime in some detail and had predicted with much assurance that he would soon be released, that he would collect a lot of insurance money, and that he would then flee the State with the insurance money without ever being brought to trial for his “perfect” crime. The incriminating statements made to Langford were essentially the same as those given in the prior confessions not challenged here.
At petitioner’s trial-in state court, the wire recording of his first, confession was played back, first to-the judge for a ruling on its admissibility,, and then to the jury. Petitioner’s two written confessions were also- received in evidence, as were the photographs that were taken and the statements that, were made by petitioner when he reconstructed the crime at the scene of its occurrence. In addition, Langford was permitted to testify to the statements made to him by petitioner while the two men were sharing the cell in the county jail. Other evidence, highly damaging to petitioner in its totality, was also presented to the jury. For example, there was testimony that petitioner had told an acquaintance a few months before the murder that he disliked Minnie Claybon (the murder victim) and was interested only , in getting some money out of her. The terms of certain insurance policies- purchased by petitioner about two months before the crime were described in testimony given by the selling insur-aneé agents; the policies provided for the payment of $8,500 to -petitioner upon the accidental death of Miss Claybon, • and the agents testified that petitioner had faithfully maintained his weekly premium payments on the policies. Other testimony, however, indicated that petitioner was hard pressed for money shortly before'the murder, having fallen behind in his rent payments and having sold some of his personal clothing to raise small sums. There was testimony that petitioner had purchased the car in which Miss Claybon drowned on the very afternoon before the crime, making a cash down payment of $8; that the safety devices on the rear doors» of the car had been left in the unlocked position by the car’s former owner; that these devices could be put in the locked position only by loosening'a screw, _ sliding the locking device into position, and then retightening the screw; and that these devices were found securely screwed in the locked position when the car, with the victim’s' body still inside, was recovered from the river. After hearing all the evidence, the jury found petitioner guilty of murder in the first degree, but recommended mercy; on that recommendation, the trial judge imposed the sentence of life imprisonment.
The petitioned has made a number of collateral attacks on his conviction, primarily in the courts of Florida. In response to one of his applications for post-conviction relief, the Florida Supreme Court issued a writ of habeas corpus, heard oral argument on the voluntariness of petitioner’s wire-recorded and written confessions, but thereafter. discharged the writ in a reported decision upholding the voluntariness of those confessions and their admissibility at trial. Milton v. Cochran, 147 So. 2d 137 (1962), cert. denied, 375 U. S. 869 (1963). The issues raised in that proceeding are not now before us and must, for the purposes of the instant case, be treated as having been properly resolved by the Florida Supreme Court. Cf. Sup. Ct. Rule 23 (1)(c).
In initiating the present habeas corpus proceeding in the District Court, petitioner sought to have his conviction set aside on the ground that the statements he made to police officer Langford should not have been admitted against him. Our reviéw of the record, however, leaves us with no reasonable doubt that the jury at petitioner’s ■ 1958 trial would have reached the same verdict without hearing Langford’s testimony. The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.
Affirmed.
In this first written confession, petitioner made the following statements:
“Minnie Lee Claybon [the murder victim] and myself had an insurance policy together. So I started thinking about the insurance and the money that I could get if something happened to her. I knew that I could use the money if something happened. So I decided to do something about it one way or the other, so one night we had been riding around in the car. So I decided to get the whole thing over with. So I drived the car into the river and she was killed. ■
“. . . I drove the car straight toward the river, and just as I got almost to. the river, ... I jumped from the car and the car went on into< the river and I skidded and kept rolling over and over-until I was in the river also. I hurt my shoulder. I couldn’t move • that arm. It was hurting real bad.”
In this second writing, petitioner confirmed in major part the statements he had made the night before, but said in addition that he had “decided to kill” the woman “about a month before this incident happened.” He further stated, however, that he was not thinking of the insurance money when he made that decision, but was thinking instead of the woman’s habits of associating with other men, drinking too much, and staying out late at night. He reaffirmed in express terms that he, had deliberately driven the car into the river with the intention of killing the woman.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
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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.
Ricky HENSON, et al., petitioners
v.
SANTANDER CONSUMER USA INC.
No. 16-349.
Supreme Court of the United States
Argued April 18, 2017.
Decided June 12, 2017.
Kevin K. Russell, Washington, DC, for Petitioners.
Kannon K. Shanmugam, Washington, DC, for Respondent.
Cory L. Zajdel, Z Law, LLC, Timonium, MD, Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC, for Petitioners.
Matthew A. Fitzgerald, Katherine Mims Crocker, McGuireWoods LLP, Richmond, VA, Kannon K. Shanmugam, Allison Jones Rushing, Masha G. Hansford, Barrett J. Anderson, Meng Jia Yang, Williams & Connolly LLP, Washington, DC, for Respondent.
Justice GORSUCH delivered the opinion of the Court.
Disruptive dinnertime calls, downright deceit, and more besides drew Congress's eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a "debt collector" subject to the Act's rigors. Everyone agrees that the term embraces the repo man-someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself-does that make you a "debt collector" too? That's the nub of the dispute now before us.
The parties approach the question from common ground. The complaint alleges that CitiFinancial Auto loaned money to petitioners seeking to buy cars; that petitioners defaulted on those loans; that respondent Santander then purchased the defaulted loans from CitiFinancial; and that Santander sought to collect in ways petitioners believe troublesome under the Act. The parties agree, too, that in deciding whether Santander's conduct falls within the Act's ambit we should look to statutory language defining the term "debt collector" to embrace anyone who "regularly collects or attempts to collect ... debts owed or due ... another." 15 U.S.C. § 1692a(6).
Even when it comes to that question, the parties agree on at least part of an answer. Both sides accept that third party debt collection agents generally qualify as "debt collectors" under the relevant statutory language, while those who seek only to collect for themselves loans they originated generally do not. These results follow, the parties tell us, because debt collection agents seek to collect debts "owed ... another," while loan originators acting on their own account aim only to collect debts owed to themselves. All that remains in dispute is how to classify individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account. Does the Act treat the debt purchaser in that scenario more like the repo man or the loan originator?
For their part, the district court and Fourth Circuit sided with Santander. They held that the company didn't qualify as a debt collector because it didn't regularly seek to collect debts "owed ... another" but sought instead only to collect debts that it purchased and owned. At the same time, the Fourth Circuit acknowledged that some circuits faced with the same question have ruled otherwise-and it is to resolve this conflict that we took the case. Compare 817 F.3d 131, 133-134, 137-138 (2016) (case below); Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1315-1316 (C.A.11 2015), with McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 501 (C.A.7 2008) ; FTC v. Check Investors, Inc., 502 F.3d 159, 173-174 (C.A.3 2007).
Before attending to that job, though, we pause to note two related questions we do not attempt to answer today. First, petitioners suggest that Santander can qualify as a debt collector not only because it regularly seeks to collect for its own account debts that it has purchased, but also because it regularly acts as a third party collection agent for debts owed to others. Petitioners did not, however, raise the latter theory in their petition for certiorari and neither did we agree to review it. Second, the parties briefly allude to another statutory definition of the term "debt collector"-one that encompasses those engaged "in any business the principal purpose of which is the collection of any debts." § 1692a(6). But the parties haven't much litigated that alternative definition and in granting certiorari we didn't agree to address it either.
With these preliminaries by the board, we can turn to the much narrowed question properly before us. In doing so, we begin, as we must, with a careful examination of the statutory text. And there we find it hard to disagree with the Fourth Circuit's interpretive handiwork. After all, the Act defines debt collectors to include those who regularly seek to collect debts "owed ... another." And by its plain terms this language seems to focus our attention on third party collection agents working for a debt owner-not on a debt owner seeking to collect debts for itself. Neither does this language appear to suggest that we should care how a debt owner came to be a debt owner-whether the owner originated the debt or came by it only through a later purchase. All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for "another." And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute, just as the Fourth Circuit explained.
Petitioners reply that this seemingly straightforward reading overlooks an important question of tense. They observe that the word "owed" is the past participle of the verb "to owe." And this, they suggest, means the statute's definition of debt collector captures anyone who regularly seeks to collect debts previously "owed ... another." So it is that, on petitioners' account, the statute excludes from its compass loan originators (for they never seek to collect debts previously owed someone else) but embraces many debt purchasers like Santander (for in collecting purchased debts they necessarily seek to collect debts previously owed another). If Congress wanted to exempt all present debt owners from its debt collector definition, petitioners submit, it would have used the present participle "owing." That would have better sufficed to do the job-to make clear that you must collect debts currently "owing ... another" before implicating the Act.
But this much doesn't follow even as a matter of good grammar, let alone ordinary meaning. Past participles like "owed" are routinely used as adjectives to describe the present state of a thing-so, for example, burnt toast is inedible, a fallen branch blocks the path, and (equally) a debt owed to a current owner may be collected by him or her. See P. Peters, The Cambridge Guide to English Usage 409 (2004) (explaining that the term "past participle" is a "misnomer[ ], since" it "can occur in what is technically a present ... tense"). Just imagine if you told a friend that you were seeking to "collect a debt owed to Steve." Doesn't it seem likely your friend would understand you as speaking about a debt currently owed to Steve, not a debt Steve used to own and that's now actually yours? In the end, even petitioners find themselves forced to admit that past participles can and regularly do work just this way, as adjectives to describe the present state of the nouns they modify. See Brief for Petitioners 28; see also B. Garner, Modern English Usage 666 (4th ed. 2016) (while "owing ... is an old and established usage ... the more logical course is simply to write owed ").
Widening our view to take in the statutory phrase in which the word "owed" appears-"owed or due ... another"-serves to underscore the point. Petitioners acknowledge that the word "due" describes a debt currently due at the time of collection and not a debt that was due only in some previous period. Brief for Petitioners 26-28. So to rule for them we would have to suppose Congress set two words cheek by jowl in the same phrase but meant them to speak to entirely different periods of time. All without leaving any clue. We would have to read the phrase not as referring to "debts that are owed or due another" but as describing "debts that were owed or are due another." And supposing such a surreptitious subphrasal shift in time seems to us a bit much. Neither are we alone in that assessment, for even petitioners acknowledge that theirs "may not be the most natural interpretation of the phrase standing in isolation." Id., at 26-27.
Given that, you might wonder whether extending our gaze from the narrow statutory provision at issue to take in the larger statutory landscape might offer petitioners a better perspective. But it does not. Looking to other neighboring provisions in the Act, it quickly comes clear that Congress routinely used the word "owed" to refer to present (not past) debt relationships. For example, in one nearby subsection, Congress defined a creditor as someone "to whom a debt is owed." 15 U.S.C. § 1692a(4). In another subsection, too, Congress required a debt collector to identify "the creditor to whom the debt is owed." § 1692g(a)(2). Yet petitioners offer us no persuasive reason why the word "owed" should bear a different meaning here, in the subsection before us, or why we should abandon our usual presumption that "identical words used in different parts of the same statute" carry "the same meaning." IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005).
Still other contextual clues add to petitioners' problems. While they suggest that the statutory definition before us implicitly distinguishes between loan originators and debt purchasers, a pass through the statute shows that when Congress wished to distinguish between originators and purchasers it left little doubt in the matter. In the very definitional section where we now find ourselves working, Congress expressly differentiated between a person "who offers" credit (the originator) and a person "to whom a debt is owed" (the present debt owner). § 1692a(4). Elsewhere, Congress recognized the distinction between a debt "originated by" the collector and a debt "owed or due" another. § 1692a(6)(F)(ii). And elsewhere still, Congress drew a line between the "original" and "current" creditor. § 1692g(a)(5). Yet no similar distinction can be found in the language now before us. To the contrary, the statutory text at issue speaks not at all about originators and current debt owners but only about whether the defendant seeks to collect on behalf of itself or "another." And, usually at least, when we're engaged in the business of interpreting statutes we presume differences in language like this convey differences in meaning. See, e.g., Loughrin v. United States, 573 U.S. ----, ----, 134 S.Ct. 2384, 2391, 189 L.Ed.2d 411 (2014).
Even what may be petitioners' best piece of contextual evidence ultimately proves unhelpful to their cause. Petitioners point out that the Act exempts from the definition of "debt collector" certain individuals who have "obtained" particular kinds of debt-for example, debts not yet in default or debts connected to secured commercial credit transactions. §§ 1692a(6)(F)(iii) and (F)(iv). And because these exemptions contemplate the possibility that someone might "obtain" a debt "owed or due ... another," petitioners submit, the word "owed" must refer only to a previous owner. Ibid. This conclusion, they say, necessarily follows because, once you have "obtained" a debt, that same debt just cannot be currently "owed or due" another.
This last and quite essential premise of the argument, however, misses its mark. As a matter of ordinary English, the word "obtained" can (and often does) refer to taking possession of a piece of property without also taking ownership-so, for example, you might obtain a rental car or a hotel room or an apartment. See, e.g., 10 Oxford English Dictionary 669 (2d ed. 1989) (defining "obtain" to mean, among other things, "[t]o come into the possession or enjoyment of (something) by one's own effort or by request"); Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 532-533, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013) (distinguishing between ownership and obtaining possession). And it's easy enough to see how you might also come to possess (obtain) a debt without taking ownership of it. You might, for example, take possession of a debt for servicing and collection even while the debt formally remains owed another. Or as a secured party you might take possession of a debt as collateral, again without taking full ownership of it. See, e.g., U.C.C. § 9-207, 3 U.L.A. 197 (2010). So it simply isn't the case that the statute's exclusions imply that the phrase "owed ... another" must refer to debts previously owed to another.
By this point petitioners find themselves in retreat. Unable to show that debt purchasers regularly collecting for their own account always qualify as debt collectors, they now suggest that purchasers sometimes qualify as debt collectors. On their view, debt purchasers surely qualify as collectors at least when they regularly purchase and seek to collect defaulted debts-just as Santander allegedly did here. In support of this narrower and more particular understanding of the Act, petitioners point again to the fact that the statute excludes from the definition of "debt collector" certain persons who obtain debts before default. 15 U.S.C. § 1692a(6)(F)(iii). This exclusion, petitioners now suggest, implies that the term "debt collector" must embrace those who regularly seek to collect debts obtained after default. Others aligned with petitioners also suggest that the Act treats everyone who attempts to collect a debt as either a "debt collector" or a "creditor," but not both. And because the statutory definition of the term "creditor" excludes those who seek to collect a debt obtained "in default," § 1692a(4), they contend it again follows as a matter of necessary inference that these persons must qualify as debt collectors.
But these alternative lines of inferential argument bear their own problems. For while the statute surely excludes from the debt collector definition certain persons who acquire a debt before default, it doesn't necessarily follow that the definition must include anyone who regularly collects debts acquired after default. After all and again, under the definition at issue before us you have to attempt to collect debts owed another before you can ever qualify as a debt collector. And petitioners' argument simply does not fully confront this plain and implacable textual prerequisite. Likewise, even spotting (without granting) the premise that a person cannot be both a creditor and a debt collector with respect to a particular debt, we don't see why a defaulted debt purchaser like Santander couldn't qualify as a creditor. For while the creditor definition excludes persons who "receive an assignment or transfer of a debt in default," it does so only (and yet again) when the debt is assigned or transferred "solely for the purpose of facilitating collection of such debt for another ." Ibid. (emphasis added). So a company collecting purchased defaulted debt for its own account-like Santander-would hardly seem to be barred from qualifying as a creditor under the statute's plain terms.
Faced with so many obstacles in the text and structure of the Act, petitioners ask us to move quickly on to policy. Indeed, from the beginning that is the field on which they seem most eager to pitch battle. Petitioners assert that Congress passed the Act in large measure to add new incentives for independent debt collectors to treat consumers well. In their view, Congress excluded loan originators from the Act's demands because it thought they already faced sufficient economic and legal incentives to good behavior. But, on petitioners' account, Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt. That's because, petitioners tell us, the "advent" of the market for defaulted debt represents " 'one of the most significant changes' " to the debt market generally since the Act's passage in 1977. Brief for Petitioners 8 (quoting Consumer Financial Protection Bureau, Fair Debt Collection Practices Act: CFPB Annual Report 2014, p. 7 (2014)). Had Congress known this new industry would blossom, they say, it surely would have judged defaulted debt purchasers more like (and in need of the same special rules as) independent debt collectors. Indeed, petitioners contend that no other result would be consistent with the overarching congressional goal of deterring untoward debt collection practices.
All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone's account, it never faced. See Magwood v. Patterson, 561 U.S. 320, 334, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010) ("We cannot replace the actual text with speculation as to Congress' intent"). Indeed, it is quite mistaken to assume, as petitioners would have us, that "whatever" might appear to "further[ ] the statute's primary objective must be the law." Rodriguez v. United States, 480 U.S. 522, 526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam ) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known "pursues its [stated] purpose [ ] at all costs." Id., at 525-526, 107 S.Ct. 1391. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute's overarching goal must be the law but will presume more modestly instead "that [the] legislature says ... what it means and means ... what it says." Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (internal quotation marks omitted; brackets in original).
Even taken on its own terms, too, the speculation petitioners urge upon us is far from unassailable. After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan originators than independent debt collection agencies? About whether other existing incentives (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? Couldn't a reasonable legislator endorsing the Act as written wonder whether a large financial institution like Santander is any more or less likely to engage in abusive conduct than another large financial institution like CitiFinancial Auto? Especially where (as here) the institution says that its primary business is loan origination and not the purchase of defaulted debt? We do not profess sure answers to any of these questions, but observe only that the parties and their amici manage to present many and colorable arguments both ways on them all, a fact that suggests to us for certain but one thing: that these are matters for Congress, not this Court, to resolve.
In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act's demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it's hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process-to apply, not amend, the work of the People's representatives.
The judgment of the Court of Appeals is
Affirmed.
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Virginia F. CAREY, Appellant, v. Cecil R. FOSTER, Appellee.
No. 9502.
United States Court of Appeals Fourth Circuit.
Argued Oct. 8, 1964.
Decided May 14, 1965.
Montgomery Knight, Jr., Norfolk, Va., for appellant,
Larry M. Topping and Lewis H. Hall, Jr., Newport News, Va., Hall & Fox, Newport News, Va., on the brief, for appellee.
Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.
HAYNSWORTH, Circuit Judge:
The question is whether in Virginia a wife may maintain an action for loss of consortium resulting from negligent injury of the husband. Virginia’s Supreme Court of Appeals has not decided the question. Our attempt to predict what that court would do if this case were before it is very much conditioned, however, by a Virginia statute which, conferring some rights upon the wife, deprives the husband of a right to maintain an action for loss of consortium resulting from negligent injury to the wife.
Mr. and Mrs. Carey were both injured in an automobile collision. His injuries were relatively severe; hers slight. They joined in an action against the driver of the other vehicle. The jury was instructed that it could award the husband no damages for loss of his wife’s consortium, but it appears from the Court’s opinion that it was allowed to award damages to him for mental anguish caused by the disruption of his normal marital life resulting from his injuries. Initially the jury was instructed that it could award the wife damages for loss of her husband’s consortium, and the jury, answering a special interrogatory, awarded her $12,000 on that account. It also awarded her $1,000 for her physical injuries and the husband $45,-000 for his injuries.
Subsequently, however, the District Court granted a motion to set aside the verdict to the extent that it awarded damages to the wife for loss of consortium resulting from the husband’s injuries. Judgments were then entered in favor of the husband in the amount of $45,000 and in favor of the wife in the amount of $1,000. She alone has appealed, contending that, while her husband is not entitled in Virginia to maintain an action for loss of consortium by reason of her injuries, she is entitled to recover for her loss of consortium by reason of his injuries.
The plaintiff would have us look at the matter as if Virginia’s slate were clean. The dicta she finds and nonjudicial comment, though somewhat favorable to her contention, she brushes aside, stating that there is no definitive holding in Virginia that either the husband or the wife may, or may not, maintain an action for loss of consortium insofar as its intangible aspects are involved. She assumes that the husband in Virginia has a right to maintain an action for loss of consortium, except that by statute the right of action is vested in the wife, and she urges that we adopt the “modern” approach, recognize the emancipation of the wife, her equal interest in the marriage relationship, and hold that she has equal rights of indemnification for its disruption or impairment.
If it were true that a husband in Virginia has a right to recover damages for his own use and enjoyment on account of his loss of his wife’s affection and companionship resulting from injuries negligently inflicted upon her, and if Virginia’s slate were otherwise clean, we would be inclined to embrace the equality argument. In that event, we would be compelled, in a proper case, to apply Virginia law allowing the husband to recover, and we could not even consider the desirability of achieving equality by treating the husband’s right to recover for loss of consortium as “a fossil from another era,” and denying the right to him. Equality in the federal courts could be achieved only by recognition that the wife, too, had the same right of action.
In Igneri v. Cie de Transports Oceaniques, 2 Cir., 323 F.2d 257, the arguments pro and con were thoroughly canvassed. We need not undertake an examination of the generally relevant materials here or an elaboration of Judge Friendly’s comprehensive review of them, for Virginia’s statute looms large upon her slate. It has either abolished the husband’s right to recover for the intangible components of loss of consortium or has so altered his rights that allowance of the action by the wife would serve the interest of equality not in the least.
The controlling statute is § 55-36 of the Code of Virginia (1950), which reads as follows:
“Contracts of, and suits by and against, married women.—
“A married woman may contract and be contracted with and sue and be sued in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by or against her accrued heretofore or hereafter. In ■an action by a married woman to recover for a personal injury inflicted on her she may recover the •entire damage sustained including the personal injury and expenses •arising out of the injury, whether chargeable to her or her husband, ■notwithstanding the husband may be entitled to the benefit of her services about domestic affairs and consortium, and any sum recovered therein shall be chargeable with expenses arising out of the injury, including hospital, medical and funeral expenses, and any person, including the husband, partially or completely discharging such debts shall be reimbursed out of the sum recovered in "the action, whensoever paid, to the ■extent to which such payment was justified by services rendered or expenses incurred by the obligee, provided, however, that written notice ■of such claim for reimbursement, and the amount and items thereof, shall have been served on such married woman and on the defendant prior to any settlement of the sum recovered by her; and no action for such injury, expenses or loss of services or consortium shall be maintained by the husband.” (Emphasis supplied.)
The statute, of course, has a history.
In 1919, to the original provision authorizing a married woman to contract and to sue and to be sued, Virginia’s General Assembly added a provision:
“In an action by a married woman to recover for a personal injury inflicted on her, she may recover the entire damage sustained, notwithstanding the husband may be entitled to the benefit of her services about domestic affairs; and no action for such services shall be maintained by the husband.”
Earlier, it had been held in Virginia that a wife could not recover for the loss of her own services, unless she were a “sole trader,” for otherwise not she but her husband was entitled to her services, and she could recover for her medical expenses only if she proved that they were paid out of her separate estate. The Reviser’s Note for § 5134 of the 1919 edition of the Virginia Code stated that the intention of the amendment was to overturn the result of those earlier cases which had thus limited the wife’s recovery for her own injury. The Note recognized the difficulty in allocating the damages between husband and wife, and expressed the conclusion that it seemed best to give her the right to recover all damages.
It may be noted that while the 1919 revision provided that a wife might recover “the entire damage sustained” when she is injured, the only specific reference to the husband’s previous rights was his right to her services, and the only prohibition against subsequent actions maintained by him consequent upon injuries to his wife was that he should not sue for deprivation of her services. Though the Reviser’s Note indicates that she should also be allowed to recover medical expenses paid by the husband, the 1919 amendment itself left that situation uncertain.
To clarify the matter the statute was again amended in 1932 to read, in relevant part, as follows:
“In an action by a married woman to recover for a personal injury inflicted on her, she may recover the entire damage sustained including the personal injury, expenses arising out of the injury (whether chargeable to her or her husband) notwithstanding the husband may be entitled to the benefit of her services about domestic affairs and consortium; and no action for such injury, expenses, or loss of services or consortium, shall be maintained by the husband.”
The 1932 amendment made it plain that the husband could no longer maintain an action for consortium in its intangible aspects if any such right ever existed in Virginia. It made the statute explicit that the wife could recover her medical expenses whether paid by her husband or not, and it retained the language entitling her to recover the entire damages sustained when she was injured. The statute is readily susceptible of a rational construction that the wife’s rights of recovery for her own injury were the tangible items of damage, whether the right of recovery in an earlier day had been vested in her husband or in her, plus damages for her own mental anguish, those and no more.
In Floyd v. Miller, 190 Va. 303, 57 S.E.2d 114, a husband sought to recover from his wife’s committee medical expenses which he had paid and which had been recovered by her as one element of her damage in a successful suit for her wrongful injury. A divided Virginia Supreme Court of Appeals held that the husband could not recover the medical expenses he had paid, for the statute, as amended in 1932, gave the wife the right to recover them and deprived the husband of all rights of action arising out of the wife’s injury. In a dictum, the Court’s majority also said that the statute had transferred to the wife the husband’s ■right to recover for loss of consortium, which, of course, it had in its tangible aspects, at least.
The decision in Floyd v. Miller was promptly overturned by Virginia’s General Assembly. In 1950, it amended the statute to read as it now does, specifically providing that the wife’s recovery shall be chargeable with expenses arising out of her injury by whomever paid. It retained the prohibition against the husband’s maintenance of any action for his wife’s injuries, his expenses or loss of services or consortium. The wife’s rights were defined as they had been earlier. She may recover “the entire damage sustained including the personal injury and expenses arising out of the injury, whether chargeable to her or her husband * *
This was the state of affairs when this Court by a divided vote in Ford Motor Co. v. Mahone, 4 Cir., 205 F.2d 267, affirmed a judgment for a wife over objection that the jury had been told that it might include in the damages for her personal injuries an amount on account of the husband’s loss of his wife’s consortium. The majority read the statute as recognizing that, earlier, a husband in Virginia had a right to recover for loss of consortium in its intangible aspects as a result of injury negligently inflicted upon the wife, and held that the statute had effectively transferred that right to the wife. They were persuaded by the dictum in Floyd v. Miller, which they regarded as more than dictum.
Judge Parker, dissenting, recognized the statute’s absolute prohibition upon the husband’s maintenance of an action for loss of consortium, but he would not read into the statute’s definition of the wife’s right of recovery any purpose to permit her recovery of those intangible items of damage embraced within the term “consortium,” which the husband may have suffered by reason of her injury — items of damage to which no husband had ever been held entitled in Virginia in any case in which the question was in dispute.
It is particularly pertinent to note now, however, that the wife’s injuries with which the Court was concerned in Ford Motor Co. v. Mahone were sustained prior to the 1950 amendment. The majority brushed the 1950 amendment aside as inapplicable. Judge Parker, on the other hand, thought the 1950 amendment made the General Assembly’s earlier intention clear. It was inconceivable to him that the 1950 General Assembly would have made specific provision for the reimbursement of the expenses paid by the husband without reference to damages for loss of consortium, if it was thought that such damages sustained by him were recoverable by the wife.
We cannot brush aside the 1950 amendment as the majority did in Ford Motor Co. v. Mahone. There was a basis for the majority’s conclusion in that case that the 1950 amendment was inapplicable and irrelevant, but it had long since been in effect when the injuries giving rise to this litigation were sustained.
As the statute now reads, it is clear that the prohibitions against the husband’s maintenance of such an action are even broader and in more comprehensive language than are those provisions which define the wife’s rights of action to recover for her own injuries. The husband is prohibited from bringing an action for loss of consortium; the wife is not expressly authorized to bring such an action. The wife’s recovery is chargeable with the husband’s claim for reimbursement of expenses, the evident intention of the 1950 amendment being to constitute the wife the trustee for the benefit of the husband to that extent. If, in addition to damages for her mental anguish because of impairment of her capacity to perform her marital obligations, it were thought that she was to recover a sum representing her husband’s loss of consortium, it seems extremely strange that the General Assembly would not have provided that the recovery to that extent would also be payable to him.
The fact that the majority in Ford Motor Co. v. Mahone, ruling that the 1950 amendment was inapplicable there also thought it irrelevant, furnishes a valid basis of distinction between that case and actions by wives for personal injuries sustained at a later date. The 1950 amendment does throw additional light upon the legislative intention as to the scope of the wife’s right of action for her personal injuries as well as upon its intention as to the division of the proceeds between husband and wife. After the 1950 amendment, we conclude, the statute cannot be construed to authorize the wife to recover for the husband’s loss of her affection and companionship consequent upon injury negligently inflicted upon her.
If our reading of the amended statute is correct, the ultimate answer here is obvious. When the wife is injured negligently, the husband in Virginia has no right, directly or indirectly, to recover for his loss of his wife’s companionship and affection; neither has the wife the right to recover for loss of her own consortium. When the husband is injured negligently, consideration of equality requires that the wife be allowed no recovery for loss of her husband’s consortium. She cannot claim in the name of equality rights the counterparts of which the husband does not enjoy.
If our reading of the statute is incorrect, however, if Virginia’s Supreme Court of Appeals should read it differently, we still come to the same conclusion, for the statute has so transformed the husband’s right as to place it beyond judicial power to give to the wife an equal, conterminous right.
If we read the amended statute incorrectly, then in Virginia the injured wife, but not the husband, may recover for his loss of her consortium and whatever she recovers on that account she may retain as her own, for her recovery is chargeable only with her husband’s expenses. An equal reciprocal right would give her nothing, but would give her injured husband a right to recover for her loss of his own consortium and to retain the proceeds as his own. That, of course, is beyond judicial power. It would require legislative action. If, on the other hand, she should be given the right to recover for her loss of his consortium and to retain the proceeds as her own, then the husband has no right of recovery for loss of consortium while the wife may recover for it no matter which of the partners is injured. That is not equality. We cannot infer from her emancipation such a large bundle of rights wholly denied to all husbands.
The alternative serves as emphatic underscoring of our reading of the statute. If the legislative intention had been to allow the wife to recover damages for her husband’s loss of her consortium in its intangible aspects and retain them for her own use, surely it would have provided a concomitant right of the husband to recover for his wife’s loss of his consortium. Its failure to do so strongly supports the reading that the amended statute enlarged the wife’s right of recovery when she is negligently injured only to the extent specifically provided. Read more broadly the statute becomes a monstrous distortion of equality.
The Virginia statute, however it is read, has placed an insurmountable obstacle in the way of judicial accomplishment of a result judges might think best. Courts may overturn judicially fashioned rules. They may withdraw or modify rights they once thought deserving of recognition, and they may recognize new rights when such recognition seems necessary to achieve an harmonious result, justice and equality. They may not reverse a legislative exercise of constitutional power, and rarely can they erect a structure to match a legislative creature though they may think the legislature should have gone further than it did.
Even when there has been no codification of rights in this field, some courts have felt the common law so solidified as to preclude judicial alteration; legislative action is thought requisite. Perhaps those courts have been influenced by a conviction that an overwhelming case has not been made for recognition of a wife’s right to recover for loss of consortium even though the husband’s right be recognized. The contending considerations may have been thought nearly in balance as the Second Circuit has so recently concluded. Otherwise, it would be a very narrow view of the court’s power and function to adapt decisional rules to different situations and to meet the requirements of changed conditions. When the legislature has codified rights of consortium, however, the legislature has preempted the field. This is especially true when, as here, the legislatively created right, if the plaintiff’s reading of the statute is accepted, is so novel that a court cannot fashion a reciprocal one. Judicial intervention here to create the right the present plaintiff claims would only distort the uncertain picture Virginia’s General Assembly has painted.
In light of the statute, we conclude that the District Judge properly held that this wife could not recover damages for her loss of her husband’s companionship and affection resulting from the injuries negligently inflicted upon him.
Affirmed.
. See Carey v. Foster, E.D.Va., 221 F.Supp. 185, 188.
. The word is imprecise, but one less inappropriate does not come readily to mind. “Sentimental” has been used, but conjugal rights are more than that. Though the wife’s demonstration of her affection may be quite tangible, the word “intangible” is employed here to distinguish the husband’s rights to his wife’s affection and companionship from his economically more tangible right to her services.
. Jaffe, Damages for Personal Injury: The Impact of Insurance, 18 Law & Con-temp. Prob. 219-229.
. Virginia Code § 5134 (1919).
. Richmond Railway & Elect. Co. v. Bowles, 92 Va. 738, 24 S.E. 388; Atlantic & D. Ry. Co. v. Ironmonger, 95 Va. 625, 29 S.E. 319; Norfolk Ry. & Light Co. v. Williar, 104 Va. 679, 52 S.E. 380.
. Acts of General Assembly 1932, Ch. 25, p. 21.
. Acts of General Assembly 1950, p. 460.
. Curiously, he also wrote the majority opinion.
. State courts have denied the wife’s action in the following cases: Smith v. United Const. Workers, 271 Ala. 42, 122 So.2d 153; Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723; Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 328 P.2d 449; Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630; Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 128 A.2d 330; Ripley v. Ewell, 61 So.2d 420 (Fla.); Miller v. Sparks, 189 N.E.2d 720 Ind.App.); Coastal Tank Lines v. Canoles, 207 Md. 37, 113 A.2d 82; State Farm Mut. Auto Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N.W.2d 36; Snodgrass v. Cherry-Burrell Corp., 103 N.H. 56, 164 A.2d 579; La Eace v. Cincinnati, N. & C. Ry. Co., 249 S.W.2d 534 (Ky.); Larocca v. American Chain & Cable Co., 23 N.J.Super. 195, 92 A.2d 811, aff’d 13 N.J. 1, 97 A.2d 680; Roseberry v. Starkovich, 73 N.M. 211, 387 P.2d 321; Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E. 2d 898; Nelson v. A. M. Lockett & Co., 206 Okl. 334, 243 P.2d 719; Neuberg v. Bobowicz, 401 Pa. 146, 162 A.2d 662; Page v. Winter, 240 S.C. 516, 126 S.E. 2d 570; Garrett v. Reno Oil Co., 271 S. W.2d 764 (Tex.Civ.App.); Ash v. S.S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118; Seagraves v. Legg, 127 S.E.2d 605 (W.Va.); Nickel v. Hardware Mut. Cas. Co., 269 Wis. 647, 70 N.W.2d 205. Federal courts have reached the same result in the following diversity cases: Criqui v. Blaw-Knox Co., D.Kan., 208 F.Supp. 605, aff’d 10 Cir., 318 F.2d 811; Werthan Bag Corp. v. Agnew, 6 Cir., 202 F.2d 119 (Tenn.)
A few states have permitted the action without enabling legislation. State courts: Missouri-Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41; Stenta v. Leblang, 185 A.2d 759 (Del.); Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366; Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24; Dini v. Naiditch, 20 Ill.2d 406, 408, 170 N.E.2d 881, 86 A.L.R.2d 1184; Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480; Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227; Noyak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo.); Mariani v. Nanni, 185 A.2d 119 (R.I.); Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669. Federal diversity cases: Duffy v. Lipsman-Fulkerson & Co., D.Mont., 200 F.Supp. 71; Cooney v. Moomaw, D.Neb., 109 F.Supp. 448, approved in Luther v. Maple, 8 Cir., 250 F.2d 916.
Text comment has been generally in favor of the wife’s action; see, e. g., Prosser, Torts (2d ed. 1955), at 704—5; 1 Harper & James, Torts (1956), at 643; Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 8-9 (1923); Lippman, The Breakdown of Consortium, 30 Colum.L.Rev. 651, 64-68 (1930); Kinnaird, Right of Wife to Sue for Loss of Consortium Due to Negligent Injury to Her Husband, 35 Ky.L.J. 220, 223 (1946); Notes: 15 S.C.L.Rev. 810 (1963); 61 Colum.L.Rev. 1341, 1352-57 (1961); 55 Mich.L.Rev. 721 (1957); 39 Cornell L.Q. 761 (1954); 1 U.C.L.A.L. Rev. 223 (1954); 41 Geo.L.J. 443 (1953); 64 Harv.L.Rev. 672 (1951); 29 N.C.L.Rev. 178 (1951); 25 Tulane L. Rev. 293 (1951); 20 Fordham L.Rev. 342 (1951); 39 Mich.L.Rev. 820 (1941); 9 Ind.L.J. 182 (1933); 5 Cornell L.Q. 171 (1920). There are, however, some dissenting voices: Jaffe, Damages for Personal Injury; The Impact of Insurance, 18 Law & Contemp. Prob. 219, 228-30 (1953); Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 194-5 (1916).
Hitaffer, supra, was the subject of an annotation written in 1952; it is well written, excellently supplemented and found in 23 A.L.R.2d 1378.
. Igneri v. Cie de Transports Oceaniques, 2 Cir., 323 F.2d 257.
. Note, Consortium and the Common Law, 15 S.C.L.Rev. 810 (1963).
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In the Matter of ST. CHARLES HOTEL Co., Debtor, Edward S. Ladin, appellant.
No. 8937.
Circuit Court of Appeals, Third Circuit.
Argued June 9, 1945.
Decided June 13, 1945.
David M. Palley, of New York City (Annetta Brof-Quinn, of Jersey City, N. J., on the brief), for appellant.
George Zolotar, of New York City (Roger S. Foster, Sol., of Philadelphia, Pa., and Richard V. Bandler, of New York City, on the brief), for Securities and Exchange Commission.
Charles Gottlieb, of New York City (Thomas H. Munyan, of Atlantic City, N. J., on the brief), for appellees.
I. Emanuel Sauder, of Philadelphia, Pa., for amici curiae.
Before MARTIN and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
PER CURIAM.
The orders of the District Court, the first of which was entered on March 26, 1945 and the remaining two on April 30, 1945, are affirmed for the reasons set forth in the excellent opinion of Judge Forman, 60 F.Supp. 322.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_issue_10
|
L
|
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.
HOWLETT, a minor, by and through HOWLETT, his mother, natural guardian, and next friend v. ROSE, AS SUPERINTENDENT OF SCHOOLS FOR PINELLAS COUNTY, FLORIDA, et al.
No. 89-5383.
Argued March 20, 1990
Decided June 11, 1990
Stevens, J., delivered the opinion for a unanimous Court.
Gardner W. Beckett, Jr., argued the cause for petitioner. With him on the briefs were Steven R. Shapiro and Steven H. Steinglass.
Charles Rothfeld argued the cause for respondents. On the brief was Bruce P. Taylor.
Briefs of amici curiae urging affirmance were filed for the National Association of Counties et al. by Benna Ruth Solomon and Charles Rothfeld; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.
Justice Stevens
delivered the opinion of the Court.
Section 1 of the Civil Rights Act of 1871, Rev. Stat. § 1979, now codified as 42 U. S. C. § 1983, creates a remedy for violations of federal rights committed by persons acting under color of state law. State courts as well as federal courts have jurisdiction over § 1983 cases. The question in this case is whether a state-law defense of “sovereign immunity” is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum.
Petitioner, a former high school student, filed a complaint in the Circuit Court for Pinellas County, Florida, naming the School Board of Pinellas County and three school officials as defendants. He alleged that an assistant principal made an illegal search of his car while it was parked on school premises and that he was wrongfully suspended from regular classes for five days. Contending that the search and subsequent suspension violated rights under the Fourth and Fourteenth Amendments of the Federal Constitution and under similar provisions of the State Constitution, he prayed for damages and an order expunging any reference to the suspension from the school records.
Defendants filed a motion to dismiss on various grounds, including failure to exhaust state administrative remedies. The school board also contended that the court was without jurisdiction to hear the federal claims—but not the state claims—because the Florida waiver-of-sovereign-immunity statute did not extend to claims based on § 1983. App. 13-14. The Circuit Court dismissed the complaint with prejudice, citing a state case requiring state-law challenges to be first presented to the District Court of Appeal and the Florida Supreme Court decision in Hill v. Department of Corrections, 513 So. 2d 129 (1987). App. 19.
The District Court of Appeal for the Second District affirmed the dismissal of petitioner’s § 1983 claim against the school board. It held that the availability of sovereign immunity in a § 1983 action brought in state court is a matter of state law, and that Florida’s statutory waiver of sovereign immunity did not apply to § 1983 cases. The court rejected the argument that whether a State has maintained its sovereign immunity from a § 1983 suit in its state courts is a question of federal law. It wrote:
“[W]hen a section 1983 action is brought in state court, the sole question to be decided on the basis of state law is whether the state has waived its common law sovereign immunity to the extent necessary to allow a section 1983 action in state court. Hill holds that Florida has not so waived its sovereign immunity. We therefore do not reach appellant’s second issue in this case, i. e., whether under federal law a Florida school board is immune from a section 1983 law. There is no question under Florida law that agencies of the state, including school boards and municipalities, are the beneficiaries of sovereign immunity.” 537 So. 2d 706, 708 (1989) (emphasis in original).
The Court of Appeal acknowledged our holding in Martinez v. California, 444 U. S. 277 (1980), that a State cannot immunize an official from liability for injuries compensable under federal law. It held, however, that under Hill a State’s invocation of a “state common law immunity from the use of its courts for suits against the state in those state courts” raised “purely a question of state law.” 537 So. 2d, at 708. The Florida Supreme Court denied review. 545 So. 2d 1367 (1987). In view of the importance of the question decided by the Court of Appeal, we granted certiorari. 493 U. S. 963 (1989).
II
The question in this case stems from the Florida Supreme Court’s decision in the Hill case. In that case, the plaintiff sought damages for common-law negligence and false imprisonment and violations of his constitutional rights under § 1983 from the Florida Department of Corrections for the conduct of one of its probation supervisors. Hill argued that the department was a “person” under § 1983, that it was responsible for the actions of its supervisor, and that it was subject to suit in the Circuit Court pursuant to the Florida waiver of sovereign immunity. Fla. Stat. § 768.28 (1989). That statute provides that the State and its subdivisions, including municipalities and school boards, § 768.28(2), are subject to suit in circuit court for tort claims “in the same manner and to the same extent as a private individual under like circumstances,” § 768.28(5). Although the terms of the waiver could be read narrowly to restrict liability to claims against the State in its proprietary capacity, the Florida courts have rejected that interpretation. In 16 cases arising under Florida statutory and common law, the State Supreme Court has held that the State may be sued in respondeat superior for the violation of nondiscretionary duties in the exercise of governmental authority. The Florida courts thus have entertained suits against state agencies for the violation of nondiscretionary duties committed in the performance of various governmental activities, including the roadside stop and arrest of an individual driving with an expired inspection sticker, the negligent maintenance by city employees of a storm sewer system, the failure of a state caseworker to detect and prevent child abuse, the negligent maintenance of county swimming pools and failure to warn or correct known dangerous conditions, and the failure to protect a prison inmate from other inmates known to be dangerous. Hill argued that just as the State could be joined in an action for the violation of established state common-law or statutory duties, it was also subject to suit for violations of its nondiscretionary duty not to violate the Constitution. See Owen v. City of Independence, 445 U. S. 622, 649-650 (1980).
The trial court dismissed Hill’s § 1983 claim but entered judgment on the jury’s verdict in his favor on the common-law claims. On appeal, the District Court of Appeal affirmed the dismissal of the § 1983 claim and reversed the judgment on the common-law claim. It also certified to the Florida Supreme Court the question whether Florida’s statutory waiver of sovereign immunity permitted suits against the State and its agencies under § 1983. Department of Corrections v. Hill, 490 So. 2d 118 (1986).
The State Supreme Court answered that question in the negative. Hill v. Department of Corrections, 513 So. 2d 129 (1987), cert. denied, 484 U. S. 1064 (1988). Without citing any of its own sovereign immunity cases and relying solely on analogy to the Eleventh Amendment and decisions of the courts of other States, the State Supreme Court held that the Florida statute conferred a blanket immunity on governmental entities from federal civil rights actions under § 1983. 513 So. 2d, at 133. It stated: “While Florida is at liberty to waive its immunity from section 1983 actions, it has not done so. The recovery ceilings in section 768.28 were intended to waive sovereign immunity for state tort actions, not federal civil rights actions commenced under section 1983.” Ibid. The court thus affirmed the dismissal of the §1983 claim but reversed the Court of Appeal’s judgment on the common-law claim and allowed the judgment for Hill on that claim to stand.
On its facts, the disposition of the Hill case would appear to be unexceptional. The defendant in Hill was a state agency protected from suit in a federal court by the Eleventh Amendment. See Quern v. Jordan, 440 U. S. 332, 341 (1979) (§ 1983 does not “override the traditional sovereign immunity of the States”). As we held last Term in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), an entity with Eleventh Amendment immunity is not a “person” within the meaning of § 1983. The anomaly identified by the State Supreme Court, and by the various state courts which it cited, that a State might be forced to entertain in its own courts suits from which it was immune in federal court, is thus fully met by our decision in Will. Will establishes that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.
The language and reasoning of the State Supreme Court, if not its precise holding, however, went further. That further step was completed by the District Court of Appeal in this case. As that court construed the law, Florida has extended absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under § 1983 in federal court. That holding raises the concern that the state court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is itself a federal question which we review de novo. See Johnson v. Mississippi, 486 U. S. 578, 587 (1988); James v. Kentucky, 466 U. S. 341, 348-349 (1984); Hathorn v. Lovorn, 457 U. S. 255, 263 (1982); Barr v. City of Columbia, 378 U. S. 146, 149 (1964); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 455 (1958); Rogers v. Alabama, 192 U. S. 226, 230-231 (1904); Hill, The Inadequate State Ground, 65 Colum. L. Rev. 943, 954-957 (1965). Whether the constitutional rights asserted by petitioner were “‘given due recognition by the [Court of Appeal] is a question as to which the [petitioner is] entitled to invoke our judgment, and this [he has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support.'” Staub v. City of Baxley, 355 U. S. 313, 318-319 (1958) (quoting Ward v. Love County Board of Comm’rs, 253 U. S. 17, 22 (1920)).
III
Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum—although both might well be true—but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws “the supreme Law of the Land,” and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure. “The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are.... The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.” Claflin v. Houseman, 93 U. S. 130, 136-137 (1876); see Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 222 (1916) (“[T]he governments and courts of both the Nation and the several States [are not] strange or foreign to each other in the broad sense of that word, but [are] all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them”); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489 (1954) (“The law which governs daily living in the United States is a single system of law”); see also Tafflin v. Levitt, 493 U. S. 455, 469 (1990) (Scalia, J., concurring). As Alexander Hamilton expressed the principle in a classic passage:
“[I]n every case in which they were not expressly excluded by the future acts of the national legislature, [state courts] will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.” The Federalist No. 82, p. 182 (E. Bourne ed. 1947) (emphasis added).
Three corollaries follow from the proposition that “federal” law is part of the “Law of the Land” in the State:
1. A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.” Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 387-388 (1929) (Holmes, J.). “The existence of the jurisdiction creates an implication of duty to exercise it.” Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 58 (1912); see Testa v. Katt, 330 U. S. 386 (1947); Missouri ex rel. St. Louis, B. & M. R. Co. v. Taylor, 266 U. S. 200, 208 (1924); Robb v. Connolly, 111 U. S. 624, 637 (1884).
2. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. “The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of [the State] as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State.” Mondou, 223 U. S., at 57; see Miles v. Illinois Central R. Co., 315 U. S. 698, 703-704 (1942) (“By virtue of the Constitution, the courts of the several states must remain open to such litigants on the same basis that they are open to litigants with causes of action springing from a different source”); McKnett v. St. Louis & San Francisco R. Co., 292 U. S. 230, 233-234 (1934); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211 (1916); cf. FERC v. Mississippi, 456 U. S. 742, 776, n. 1 (1982) (opinion of O’Connor, J.) (State may not discriminate against federal causes of action).
3. When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1 (1950); Georgia Rail Road & Banking Co. v. Musgrove, 335 U. S. 900 (1949) (per curiam); Herb v. Pitcairn, 324 U. S. 117 (1945); Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 (1929). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, “bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.” Hart, 54 Colum. L. Rev., at 508; see also Southland Corp. v. Keating, 465 U. S. 1, 33 (1984) (O’Connor, J., dissenting); FERC v. Mississippi, 456 U. S., at 774 (opinion of Powell, J.). The States thus have great latitude to establish the structure and jurisdiction of their own courts. See Herb, supra; Bombolis, supra; Missouri v. Lewis, 101 U. S. 22, 30-31 (1880). In addition, States may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law. See Felder v. Casey, 487 U. S. 131 (1988); James v. Kentucky, 466 U. S., at 348.
These principles are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law. In Mondou, for example, we held that rights under the Federal Employers’ Liability Act (FELA) “may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” 223 U. S., at 59. The Connecticut courts had declined cognizance of FELA actions because the policy of the federal Act was “not in accord with the policy of the State,” and it was “inconvenient and confusing” to apply federal law. Id., at 55-56. We noted, as a matter of some significance, that Congress had not attempted “to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure,” id., at 56, and found from the fact that the state court was a court of general jurisdiction with cognizance over wrongful-death actions that the court’s jurisdiction was “appropriate to the occasion,” id., at 57. “The existence of the jurisdiction creat[ed] an implication of duty to exercise it,” id., at 58, which could not be overcome by disagreement with the policy of the federal Act, id., at 57.
In McKnett, the state court refused to exercise jurisdiction over a FELA cause of action against a foreign corporation for an injury suffered in another State. We held “[w]hile Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers’ Liability Act, the Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law.” 292 U. S., at 233-234 (citation omitted). Because the state court had “general jurisdiction of the class of actions to which that here brought belongs, in cases between litigants situated like those in the case at bar,” id., at 232, the refusal to hear the FELA action constituted discrimination against rights arising under federal laws, id., at 234, in violation of the Supremacy Clause.
We unanimously reaffirmed these principles in Testa v. Katt. We held that the Rhode Island courts could not decline jurisdiction over treble damages claims under the federal Emergency Price Control Act when their jurisdiction was otherwise “adequate and appropriate under established local law.” 330 U. S., at 394. The Rhode Island court had distinguished our decisions in McKnett and Mondou on the grounds that the federal Act was a “penal statute,” which would not have been enforceable under the Full Faith and Credit Clause if passed by another State. We rejected that argument. We observed that the Rhode Island court enforced the “same type of claim” arising under state law and claims for double damages under federal law. 330 U. S., at 394. We therefore concluded that the court had “jurisdiction adequate and appropriate under established local law to adjudicate this action.” Ibid. The court could not decline to exercise this jurisdiction to enforce federal law by labeling it “penal.” The policy of the federal Act was to be considered “the prevailing policy in every state” which the state court could not refuse to enforce “‘because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.’” Id., at 393 (quoting Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S., at 222).
On only three occasions have we found a valid excuse for a state court’s refusal to entertain a federal cause of action. Each of them involved a neutral rule of judicial administration. In Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 (1929), the state statute permitted discretionary dismissal of both federal and state claims where neither the plaintiff nor the defendant was a resident of the forum State. In Herb, the City Court denied jurisdiction over a FELA action on the grounds that the cause of action arose outside its territorial jurisdiction. Although the state court was not free to dismiss the federal claim “because it is a federal one,” we found no evidence that the state courts “construed the state jurisdiction and venue laws in a discriminatory fashion.” 324 U. S., at 123. Finally, in Mayfield, we held that a state court could apply the doctrine of forum non conveniens to bar adjudication of a FELA case if the State “enforces its policy impartially so as not to involve a discrimination against Employers’ Liability Act suits.” 340 U. S., at 4 (citation omitted).
IV
The parties disagree as to the proper characterization of the District Court of Appeal’s decision. Petitioner argues that the court adopted a substantive rule of decision that state agencies are not subject to liability under § 1983. Respondents, stressing the court’s language that it had not “opened its own courts for federal actions against the state,” 537 So. 2d, at 708, argue that the case simply involves the court’s refusal to take cognizance of § 1983 actions against state defendants. We conclude that whether the question is framed in pre-emption terms, as petitioner would have it, or in the obligation to assume jurisdiction over a “federal” cause of action, as respondents would have it, the Florida court’s refusal to entertain one discrete category of § 1983 claims, when the court entertains similar state-law actions against state defendants, violates the Supremacy Clause.
If the District Court of Appeal meant to hold that governmental entities subject to § 1983 liability enjoy an immunity over and above those already provided in § 1983, that holding directly violates federal law. The elements of, and the defenses to, a federal cause of action are defined by federal law. See, e. g., Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 335 (1988); Chesapeake & Ohio R. Co. v. Kuhn, 284 U. S. 44, 46-47 (1931). A State may not, by statute or common law, create a cause of action under § 1983 against an entity whom Congress has not subjected to liability. Moor v. County of Alameda, 411 U. S. 693, 698-710 (1973). Since this Court has construed the word “person” in § 1983 to exclude States, neither a federal court nor a state court may entertain a § 1983 action against such a defendant. Conversely, since the Court has held that municipal corporations and similar governmental entities are “persons,” see Monell v. New York City Dept. of Social Services, 436 U. S. 658, 663 (1978); cf. Will, 491 U. S., at 69, n. 9; Mt. Healthy City Bd. of Education v. Doyle, 429 U. S. 274, 280-281 (1977), a state court entertaining a § 1983 action must adhere to that interpretation. “Municipal defenses—including an assertion of sovereign immunity—to a federal right of action are, of course, controlled by federal law.” Owen v. City of Independence, 445 U. S., at 647, n. 30. “By including municipalities within the class of ‘persons’ subject to liability for violations of the Federal Constitution and laws, Congress—the supreme sovereign on matters of federal law—abolished whatever vestige of the State’s sovereign immunity the municipality possessed.” Id., at 647-648 (footnote omitted).
In Martinez v. California, 444 U. S. 277 (1980), we unanimously concluded that a California statute that purported to immunize public entities and public employees from any liability for parole release decisions was pre-empted by § 1983 “even though the federal cause of action [was] being asserted in the state courts.” Id., at 284. We explained:
“‘Conduct by persons acting under color of state law which is wrongful under 42 U. S. C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F. 2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.’ Hampton v. Chicago, 484 F. 2d 602, 607 (CA7 1973), cert. denied, 415 U. S. 917.” Id., at 284, n. 8.
In Felder v. Casey, we followed Martinez and held that a Wisconsin notice-of-claim statute that effectively shortened the statute of limitations and imposed an exhaustion requirement on claims against public agencies and employees was pre-empted insofar as it was applied to § 1983 actions. After observing that the lower federal courts, with one exception, had determined that notice-of-claim statutes were inapplicable to § 1983 actions brought in federal courts, we stated that such a consensus also demonstrated that “enforcement of the notice-of-claim statute in § 1983 actions brought in state court... interfered] with and frustrated] the substantive right Congress created.” 487 U. S., at 151. We concluded: “The decision to subject state subdivisions to liability for violations of federal rights... was a choice that Congress, not the Wisconsin Legislature, made, and it is a decision that the State has no authority to override.” Id., at 143.
While the Florida Supreme Court’s actual decision in Hill is consistent with the foregoing reasoning, the Court of Appeal’s extension of Hill to persons subject by § 1983 to liability is flatly inconsistent with that reasoning and the holdings in both Martinez and Felder. Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations. See St. Louis v. Praprotnik, 485 U. S. 112, 121-122 (1988); Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). Florida law, as interpreted by the District Court of Appeal, would make all such defendants absolutely immune from liability under the federal statute. To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law. “Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action.” Wilson v. Garcia, 471 U. S. 261, 269 (1985).
If, on the other hand, the District Court of Appeal meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, its holding was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U. S. 199, 201 (1915). This case does not present the questions whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights or to authorize service of process on parties who would not otherwise be subject to the court’s jurisdiction. The State of Florida has constituted the Circuit Court for Pinellas County as a court of general jurisdiction. It exercises jurisdiction over tort claims by private citizens against state entities (including school boards), of the size and type of petitioner’s claim here, and it can enter judgment against them. That court also exercises jurisdiction over § 1983 actions against individual officers and is fully competent to provide the remedies the federal statute requires. Cf. Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 238 (1969). Petitioner has complied with all the state-law procedures for invoking the jurisdiction of that court.
The mere facts, as argued by respondents’ amici, that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses and that § 1983 actions “are more likely to be frivolous than are other suits,” Brief for Washington Legal Foundation et al. as Amici Curiae 17, clearly cannot provide sufficient justification for the State’s refusal to entertain such actions. These reasons have never been asserted by the State and are not asserted by the school board. More importantly, they are not the kind of neutral policy that could be a “valid excuse” for the state court’s refusal to entertain federal actions. To the extent that the Florida rule is based upon the judgment that parties who are otherwise subject to the jurisdiction of the court should not be held liable for activity that would not subject them to liability under state law, we understand that to be only another way of saying that the court disagrees with the content of federal law. Sovereign immunity in Florida turns on the nature of the claim—whether the duty allegedly breached is discretionary—not on the subject matter of the dispute. There is no question that the Circuit Court, which entertains state common-law and statutory claims against state entities in a variety of their capacities, ranging from law enforcement to schooling to the protection of individuals using parking lots, has jurisdiction over the subject of this suit. That court cannot reject petitioner’s § 1983 claim because it has chosen, for substantive policy reasons, not to adjudicate other claims which might also render the school board liable. The federal law is law in the State as much as laws passed by the state legislature. A “state court cannot ‘refuse to enforce the right arising from the law of the United States because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.’” Testa, 330 U. S., at 393 (quoting Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S., at 222).
The argument by amici that suits predicated on federal law are more likely to be frivolous and have less of an entitlement to the State’s limited judicial resources warrants little response. A State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may not, however, relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proved that the claim has no merit, that judgment is not up to the States to make.
Respondents have offered no neutral or valid excuse for the Circuit Court’s refusal to hear § 1983 actions against state entities. The Circuit Court would have had jurisdiction if the defendant were an individual officer and the action were based on § 1983. It would also have had jurisdiction over the defendant school board if the action were based on established state common law or statutory law. A state policy that permits actions against state agencies for the failure of their officials to adequately police a parking lot and for the negligence of such officers in arresting a person on a roadside, but yet declines jurisdiction over federal actions for constitutional violations by the same persons can be based only on the rationale that such persons should not be held liable for § 1983 violations in the courts of the State. That reason, whether presented in terms of direct disagreement with substantive federal law or simple refusal to take cognizance of the federal cause of action, flatly violates the Supremacy Clause.
V
Respondents offer two final arguments in support of the judgment of the District Court of Appeal. First, at oral argument—but not in their brief—they argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law. Second, respondents argue that sovereign immunity is not a creature of state law, but of long-established legal principles which have not been set aside by § 1983. We find no merit in these contentions.
The fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State’s cause of action by invocation of the term “jurisdiction.” See First Nat. Bank of Chicago v. United Air Lines, Inc., 342 U. S. 396 (1952); Hughes v. Fetter, 341 U. S. 609, 611 (1951); Broderick v. Rosner, 294 U. S. 629, 642-643 (1935); Kenney v. Supreme Lodge, Loyal Order of Moose, 252 U. S. 411 (1920). A State cannot “escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.” Hughes, 341 U. S., at 611. Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. See Angel v. Bullington, 330 U. S. 183, 188-189 (1947); Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 (1929); cf. White v. Hart, 13 Wall. 646, 653-654 (1872) (Contract Clause). As our discussion of Testa, McKnett, and Mondou establishes, the same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by-mere mention of the word “jurisdiction.” Indeed, if this argument had merit, the State of Wisconsin could overrule our decision
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_jurisdiction
|
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 determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants. Virginia CAIN, Plaintiff-Appellee-Cross-Appellant, v. Robert McQUEEN et al., Defendants-Appellants-Cross-Appellees. Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants.
Nos. 76-1222, 76-1387 and 76-1439.
United States Court of Appeals, Ninth Circuit.
Aug. 24, 1978.
Eugene J. Wait, Jr. (argued) of Wait, Shamberger, Georgeson & McQuaid, Reno, Nev., for Robert McQueen et al.
Jerry D. Anker (argued), Washington, D. C., for Virginia Cain.
Before TRASK and ANDERSON, Circuit Judges, and GRANT, District Judge.
Honorable Robert A. Grant, Senior United States District Judge, for the Northern District of Indiana, sitting by designation.
TRASK, Circuit Judge:
This appeal is taken by both plaintiff and defendants from an order of the district court denying defendants’ motion to dismiss and granting limited summary judgment to plaintiff. Plaintiff’s subsequent motion to amend the limited summary judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure was denied.
Jurisdiction in the district court was based upon 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), (4). Appellant in her amended complaint also alleged that the defendant-trustees violated her rights under the First and Fourteenth Amendments to the Constitution of the United States and under Nev.Rev.Stat. § 391.3197 as it existed in March 1973.
The district court certified under Fed.R. Civ.P. Rule 54(b) that there was no just reason for delay for an appeal of the ruling on the motion for summary judgment and expressly directed the entry of the limited summary judgment.
Plaintiff was employed in November 1972 as a substitute teacher for the Washoe County School District in Reno, Nevada. In January 1973, she was given a full-time teaching position which was created by another teacher who had resigned. At that time she was given a standard employment contract, the same as that of any other teacher in the school district, except that it contained the following notation: “Contract starts January 16, 1973 and is for the remainder of the school year only.”
Defendants contend that this notation placed plaintiff in a different status than other teachers, and made her merely a “short-term” employee. The fact is, however, that all teachers’ contracts expire at the end of the school year. All such contracts, including plaintiff’s, are expressly made subject “to the laws of the state of Nevada regarding public schools” whose laws give teachers certain rights to continued employment.
Nevada law (Nev.Rev.Stat. § 391.3197) provides that new teachers are put on probation annually for three years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
The practice of the school district had been generally to provide a teacher with notice and a hearing before the nonrenewal of his or her contract. However, the district had recently adopted the practice of denominating certain teachers’ contracts as “short-term” or “one year only,” and consequently, claimed that Nev.Rev.Stat. § 391.-3197 did not apply to such employees. Defendants maintain that plaintiff was one of these “short-term” teachers and therefore was not entitled to the protection of the statute.
On March 19, 1973, plaintiff was notified by letter signed by the administrative assistant in charge of personnel that her contract would not be renewed. No reasons were given for the nonrenewal. Plaintiff then wrote a letter to the President of the Board of Trustees, defendant Pine, requesting a hearing before the board. Her request was denied.
While the plaintiff’s request was pending before the board, some students and teachers wrote letters to the board requesting that plaintiff be retained. Defendant McQueen, a member of the board, indicated that he considered such action an organized “letter writing campaign rather than an out-pouring of spontaneous support,” and it caused him to become “disenchanted” with plaintiff. He also indicated that he was “turned off” by her own request for a hearing. He expressed these views at a board meeting where plaintiff was discussed and informed the principal of Reno High School, where plaintiff was employed, that he would not be enthused about hiring her on a full-time basis.
In spite of this, the principal recommended plaintiff to fill a position to be left by a retiring teacher. At a board meeting held in August 1973, however, plaintiff’s employment was discussed and the board determined not to employ her. At that time, defendants Pine and McQueen apparently expressed the view that plaintiffs husband made too much money and, since he was the dean of the college of education at the University of Nevada, Reno, it would be wrong to hire his wife while there were so many graduates of that college who would not get jobs. An informal vote was taken, and only two members favored hiring plaintiff.
McQueen telephoned the principal of Reno High School reminding him of his opposition to the hiring of plaintiff. In addition, Superintendent Picollo met with the principal and encouraged him to fill any vacancies with teachers who had “one year only” contracts or who requested transfer from other schools. When vacancies finally did become available, plaintiff was not recommended.
Defendants have never alleged that those selected were more qualified than plaintiff. On the contrary, Superintendent Picollo informed plaintiff that she “had received excellent recommendations” and that her “capability as a teacher had never been questioned.” Both the head of the English department and the principal praised her teaching ability.
Plaintiff brought this action against the trustees in their official capacity and two of the trustees, Pine and McQueen, as individuals, claiming she was deprived of her job in violation of procedural due process and her substantive constitutional rights under the First and Fourteenth Amendments.
Defendants’ motion to dismiss was based on their claim that plaintiff was a substitute teacher and therefore according to the express provisions of Nev.Rev.Stat. § 391.-3115, she was not entitled to the non-employment provisions of Nev.Rev.Stat. § 391.3197. In addition, they claimed the action should have been dismissed because plaintiff’s complaint alleges that no more than two of the seven board members were motivated by constitutionally impermissible reasons.
The district court denied defendants’ motion to dismiss and granted limited summary judgment for the plaintiff. The court held that Nev.Rev.Stat. § 391.3197 applied to plaintiff and that this statute gave her a “property” interest within the meaning of the Fourteenth Amendment and that she was entitled to a hearing as a matter of due process and under Nevada law. A hearing was consequently ordered. Plaintiff thereupon filed a motion to amend the judgment urging that her termination should be considered null and void and that she should be granted reinstatement and back pay. Plaintiff’s motion was denied.
I
For the procedural rights of plaintiff under the due process clause of the Fourteenth Amendment to have been violated, she must have possessed a property interest as contemplated by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A teacher has a property interest in his or her job not only when he or she has formal tenure under an express provision of a statute or contract, but also when applicable rules or practices establish a “clearly implied promise of continued employment.” Board of Regents v. Roth, id. at 576-77, 92 S.Ct. at 2709.
Plaintiff claims that such a property interest was created by Nev.Rev.Stat. § 391.-3197. Under that statute a “probationary” teacher, although lacking formal tenure, is entitled to be reappointed from year to year unless specific “reasons” are found for non-renewal. The court below accordingly held that Nev.Rev.Stat. § 391.3197, as it existed in 1973, “gave to probationary teachers a form of limited tenure and a right to know and reply to the reasons for termination.”
Defendants contend that plaintiff was not a probationary teacher and therefore not entitled to the benefits and protections of Nev.Rev.Stat. § 391.3197. Rather, it is their position that she was a substitute teacher. They base this on the fact that the statute states that teachers are on “probation annually.” (Emphasis added.) From this, they conclude that a teacher becomes a probationary employee when granted an annual contract, rather than one for only a portion of a year as the plaintiff had in this case.
We find no merit in defendants’ contention. It cannot be said that merely because plaintiff was hired after the school year started that she did not have an annual contract.
We agree with the district court which held that defendants’ contention that plaintiff was a substitute teacher is erroneous as a matter of law. The court found:
“The undisputed facts show unequivocally that plaintiff was not a substitute teacher. She was a substitute teacher in the Washoe County School District from November 10,1972, until sometime in December or January, 1972 [sic], hired on a day-to-day basis as needed. On January, 29, 1973, plaintiff entered into a contract with the Washoe County School District to serve as a teacher from January 16, 1973, ‘for the remainder of the 1972 — 1973 school year only.’ The contract is in the standard form then in use for teachers and expressly provides: ‘The initial three years of service for the certificated employee shall constitute a probationary period during which time the employee may be dismissed at the discretion of the Board of Trustees pursuant to NRS 391.-3197.’ Plaintiff thus became a probationary employee of the School District subject to all the rights of every probationary employee. The fact that she was hired to perform the services of another certificated teacher who had resigned does not place her in the category of substitute teacher.” C.T. 268-69.
Irrespective of the procedural safeguards afforded by the Fourteenth Amendment due process, plaintiff was at least entitled to those procedural protections mentioned in Nev.Rev.Stat. § 391.3197. The statute provides for an advance notice of “the reasons for the recommendation to dismiss or not to renew the contract” and an “opportunity to reply.” The district court determined that the phrase “opportunity to reply” must be construed as contemplating a hearing since a “statement of reasons for termination and an opportunity to reply are meaningless unless there is some sort of hearing to resolve any issues which may be presented.”
Nev.Rev.Stat. § 391.3197 was amended on July 1, 1973, to provide that “prior to dismissal or nonrenewal, the teacher may obtain a due process hearing . . . .” With regard to this amendment, which occurred after plaintiff’s contract had not been renewed, the district court stated:
“As we interpret the law, the amendments made by the 1973 legislature with respect to NRS § 391.3197 were clarifying in character and did not materially change the rights of a probationary teacher.” R.T. at 252.
In McGee v. Humbolt County School Dist., 561 P.2d 458 (Nev.1977), the Supreme Court of Nevada determined that a probationary teacher “received all the process due” her when she “received notification of the reasons respondent [school district] was not rehiring her and was given an opportunity to reply at a public hearing." Id. at 459 (Emphasis added).
II
Plaintiff contends that in addition to a hearing, she is entitled to reinstatement and back pay. This contention presents a difficult issue in which “a careful weighing of all facts and circumstances” must take place. Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850, 853 (9th Cir. 1975). There must be a balancing of plaintiff’s interests in her wrongfully terminated teaching position against the possible disruption which her reinstatement may cause the school district. Id. at 852-53.
The Burton case points out that reinstatement and back pay are appropriately granted in situations involving racial discrimination and the legal exercise of free expression in a manner critical of the employer. It is also an appropriate form of relief when used to discourage school systems from taking similar action against other teachers in the future. Burton v. Cascade School Dist. Union High School No. 5, supra at 853-54. In this case, plaintiff claims that her termination was partially the result of her request for a hearing. If so, this situation is strikingly similar to the situation where the employee is terminated because of the legal exercise of free expression in a manner critical of the employer.
Plaintiff argues that a court-ordered hearing held years after her employment was terminated does not “make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). This argument is especially valid in light of Nev. Rev.Stat. § 391.3197 which expressly requires that the notice of reasons and opportunity to reply be provided “prior to formal action by the board.” This court has affirmed an order of a district court mandating officials to reinstate a college English instructor because his termination was in violation of his procedural due process rights under the Fourteenth Amendment. Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).
The Third Circuit has noted that a post-termination hearing is not an adequate substitute for a pre-termination hearing:
“But there is substantial difference in the position of the parties once termination has actually occurred. First, the employee, cut-off from the payroll, is greatly disadvantaged in his ability to pursue the hearing remedy. He may be forced by the necessity for survival to seek other employment which will foreclose the pursuit of reinstatement. Second, the institution will have made substitute teaching arrangements, thus introducing into the hearing consideration of the interests of other faculty members. This inevitability will increase whatever tendency may already exist for the hearing officials to defer to the administration’s decision. We agree with the district court, therefore, that a hearing after the fact is not the due process equivalent of the pre-termination hearing required by Perry v. Sinderman [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570], supra. See [Skehan v. Board of Trustees of Bloomsburg State College] 3 Cir., 358 F.Supp. [430] at 434-35.” Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975).
An important consideration is the time lag between the wrongful termination and the hearing. In the Skehan case, supra, the Third Circuit noted that there is probably a greater likelihood that the original termination decision will be upheld if the hearing is held long after the event than if a hearing is held before the termination becomes effective. The Eighth Circuit recently held that a post-termination hearing held two years after the termination did not satisfy the requirements of due process. Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977). In that case, plaintiff, a former high school teacher, was terminated without a hearing when defendants discovered that she, a single woman, had become pregnant. In the court-ordered hearing held more than two years after she was terminated, defendants voted to confirm their earlier action.
Not all cases that have found violations of procedural due process and where hearings have been ordered have granted reinstatement and back pay, however. E. g., Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850 (9th Cir. 1975); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). The disadvantage to the school district should be carefully considered.
The district court’s order was as follows:
“1. Defendants’ motion to dismiss is denied.
“2. A summary judgment will be entered in favor of plaintiff and against defendants requiring that defendants shall, within a reasonable time, accord to plaintiff the due process hearing contemplated by the foregoing opinion. The Court reserves jurisdiction to make such further orders in the premises as may be required to accord to plaintiff the full benefit of the rights to which she is entitled and will entertain supplemental pleadings if they should become necessary. It is the view of the Court that plaintiff’s rights and remedies are primarily to be worked out by plaintiff and the Board of Trustees of the Washoe County School District except to the extent that the Court has been required to interject itself into the situation in order to recognize and enforce plaintiff’s rights to due process of law.
“Dated: December 31, 1975.” C.T. at 276.
We affirm that judgment.
As will be noted, the district court has reserved jurisdiction except insofar as the right of the plaintiff to a due process hearing. We note that this, although not mentioned explicitly, necessarily includes reinstatement and back pay. Because these claims have not been ruled upon, we defer our consideration thereof until the district court has ruled and that ruling, whatever it is, is properly before us.
Judgment accordingly.
. The statute at the time the plaintiff received notice of the termination of her probationary contract, Nev.Rev.Stat. § 391.3197 provided:
“1. Teachers employed by a board of trustees shall be on probation annually for 3 years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board of trustees. A teacher employed on a probationary contract for the first three years of his employment shall not be entitled to be under the provisions of NRS 391.311 to 391.3196, inclusive.
“However, prior to formal action by the board, the probationary teacher shall be given the reasons for the recommendation to dismiss or not to renew the contract and be given the opportunity to reply.”
The 1973 Legislature amended section 391.-3197 to provide as follows:
“391.3197 Probationary employees; Length of Probation; dismissal, refusal to reemploy; due process hearing.
“1. Teachers employed by a board of trustees shall be on probation annually for the first 3 consecutive years of employment unless on an approved leave of absence, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
“2. Any certificated employee who has achieved postprobationary status in a Nevada school district and is contracted in a second subsequent school district shall have a probationary period not to exceed 2 consecutive years of employment in that district.
“3. Prior to dismissal or nonrenewal, the teacher may obtain a due process hearing before the board or, at the discretion of the board, a hearing before a hearing officer or hearing commission as set out in NRS 391.-311 to 391.3196, inclusive. The appeal provisions of chapter 233B of NRS do not apply for a probationary teacher.
“The amended section became effective on July 1, 1973.
“Section 391.3197 was expressly made a part of plaintiffs contract with the Washoe County School District.” C.T. at 249
. Plaintiffs employment contract contained a specific reference to this statute.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_fedlaw
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to determine 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.
Cleo M. BRADFORD and LaJuan Gay Bradford, husband and wife, Plaintiffs-Appellees, v. UNITED STATES of America, ex rel. DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT DIVISION OF LANDS AND MINERALS, Defendant-Appellant, and Pauline Street Johnson; Farmers Union Cooperative Royalty Company, a corporation; Flag Oil Corporation of Delaware, a corporation; Flag-Redfern Oil Company, a corporation; and J. D. Lee, Defendants-Appellees, State of Oklahoma, ex rel. Commissioners of the Land Office; John S. Badger; and F. Blair Thorp Nuclear Corporation of New Mexico, a corporation, Defendants.
No. 79-1228.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 17, 1980.
Decided June 8, 1981.
Rehearing Denied August 31, 1981.
Martin Green, Atty., Dept, of Justice, Washington, D. C. (Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., Larry D. Patton, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., Carl Strass, Atty., Dept, of Justice, Washington, D. C., with him on the brief), for defendant-appellant United States of America.
Larry M. Weber of Myers, Mollison & Weber, Altus, Okl., for plaintiffs-appellees, Cleo M. Bradford and LaJuan Gay Bradford.
James C. Pinkerton, Tulsa, Okl. (Carl Pinkerton, Tulsa, Okl., with him on the brief), for defendant-appellee Flag-Redfern Oil Co.
Granville Tomerlin of Tomerlin & High, Oklahoma City, Okl., filed brief for defendant-appellee Farmers Union Cooperative Royalty Company. Barney W. Miller of Miller, Smith & Dawson, Oklahoma City, Okl., joined in briefs of Farmers Union Cooperative Royalty Co. and Flag-Redfern Oil Co. for defendant-appellee Pauline Street Johnson. Charles C. Yon of Oklahoma City, Okl., joined in brief of Farmers Union Cooperative Royalty Co. for defendant-appel-lee J. D. Lee.
Before DOYLE, McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Plaintiffs Cleo M. and LaJuan Gay Bradford (Bradford) brought this quiet title action pursuant to 28 U.S.C. § 2409a. Named as defendants were the owners of the property to the northwest of the Bradford land, including Pauline Street Johnson, Farmers Union Cooperative Royalty Company, Flag Oil Corporation, J. D. Lee and other interest holders (the Johnson defendants), and the owner of the property to the southeast of the Bradford land, the United States. The property of all parties to the litigation is contiguous to the Red River in Harmon County, Oklahoma.
The original complaint alleged that Bradford owned the entire bed of the Red River adjoining his land, and that the respective defendants owned the entire riverbed adjoining their lands. Bradford sought to establish the lateral boundaries extending across the river between his land and that of the Johnson defendants to the northwest and the United States to the southeast. Appendix A to this opinion is a copy of a diagram, drawn on a 1921 survey, that shows the approximate relationship of the parties’ land to one another and to the Red River.
The Johnson defendants filed answers and cross-claims alleging ownership of the entire riverbed adjoining their property. In its answer, counterclaim and cross-petition, the United States admitted the riparian nature of the lands at issue, and that Bradford and the Johnson defendants were entitled to the north one-half of the Red River bed. But it asserted ownership of the south half of the riverbed on the basis of Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). In addition, the United States raised 28 U.S.C. § 2409a(f) as an “affirmative defense.” That statute provides:
“Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.”
The United States cited two decisions of the Supreme Court, Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), and their historical notoriety as the sole grounds for establishing the knowledge requirement of the statute.
Subsequently, Bradford filed an amended complaint disclaiming any interest in the south half of the riverbed and alleging only that through the acquisition of his riparian land he had acquired title to the north half. The Johnson defendants did not abandon their claims to the entire riverbed abutting their land.
Pursuant to a pretrial conference and order, Bradford and the United States agreed that the median line of the Red River bed and the boundary between their lands would be established by a recent U. S. Government survey. Bradford and the Johnson defendants agreed that the boundaries between their lands would be determined in accordance with the Oklahoma Supreme Court opinion in Goins v. Merryman, 183 Okl. 155, 80 P.2d 268 (1938). The pretrial order stated that the principal remaining issue was the ownership of the south half of the riverbed claimed by both the United States and the Johnson defendants. Although the pretrial order declared that the district court had jurisdiction over the cause of action, the statute of limitations issue raised in the answer of the United States was not mentioned.
The United States subsequently filed three briefs and an amended answer, all claiming ownership only of the south half of the riverbed adjoining the property of Bradford and the Johnson defendants. The riparian character of the lands was expressly admitted by the United States in these pleadings. The parties thereafter entered into stipulations that declared Bradford the owner of the north half of the riverbed adjoining his land and the United States the owner of the south half, established the boundaries between the lands of Bradford and the United States, resolved all factual disputes, and left the only remaining issue of law the ownership of the south half of the riverbed abutting the property of the Johnson defendants. The case was submitted to the trial court on these stipulations.
As we have stated, the United States based its claim upon the Oklahoma v. Texas cases, particularly the opinion reported at 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). The Johnson defendants relied on Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). Appendix B is a copy of an historical map showing the relation of Oklahoma and the Red River to the lands involved in the cited federal actions. After tracing the history of the Oklahoma v. Texas litigation, the trial court concluded that those cases are not determinative here because they conclusively established ownership of the Red River bed only between the mouth of the North Fork and the 98th degree of west longitude, an area which does not include the land at issue in this case.
According to the stipulated facts, the lands of Bradford and the Johnson defendants and all of the adjoining bed of the Red River originally belonged to the United States. The United States issued the initial patent to the Bradford land to Bradford’s predecessor in 1905, and the initial patent to the land now owned by the Johnson defendants in 1925. The common law rule concerning conveyances of riparian land was set out by this court in Seay:
“Under the common law, a grant of land bounded on a non-navigable river by a grantor who owns to the center or thread of the stream conveys to the grantee the land to the center or thread of the stream, unless the terms of the grant and the attendant circumstances clearly denote an intention to stop at the edge or margin of the river.
“When, however, the grantor owns the entire bed of the stream, but no part of the upland on the opposite side, in the absence of a clear indication of a contrary intention from the terms of the grant and the attendant circumstances, the grant will be construed to convey to the grantee the entire bed of the stream.”
235 F.2d at 35 (emphasis added). The district court examined the original patent and the circumstances surrounding its conveyance and found no clear indication that the United States intended to retain any part of the Red River bed. Accordingly, it concluded that the Johnson defendants, as successors in interest to the original patentee, own the entire riverbed abutting their property.
The United States raises two issues on appeal. First, it renews its contention that the suit is barred by 28 U.S.C. § 2409a(f). Second, it argues for the first time that the lands at issue were not riparian either when patented or at any time thereafter, and that therefore principles of riparian ownership should not be applied. We hold jurisdiction to be established in this case as a matter of law. Moreover, under the circumstances surrounding this litigation, the interests of justice would not be served by allowing the Government to present a new theory of relief for the first time on appeal. In any event, the Government’s new theory is totally without merit under long established principles of property law. Accordingly, the judgment is affirmed.
I.
The Government has consented to be sued in quiet title actions under 28 U.S.C. § 2409a(a). Such an action is barred, however, if it is commenced more than twelve years after the date upon which the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. See 28 U.S.C. § 2409a(f). Timeliness is a jurisdictional prerequisite to suit under section 2409a. Knapp v. United States, 636 F.2d 279, 282 (10th Cir. 1980).
The complaint in this case expressly alleged jurisdiction. The Government challenged that jurisdiction on the sole basis that Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), “prove such knowledge as is required by the statute” because of their “historical notoriety.” Rec., vol. I, at 32. In its answer to the cross-petition of the United States, Defendant Farmers Union Cooperative summarized the Government’s position on this point as an assertion that the Oklahoma v. Texas cases “established that the United States claimed title to all of the so-called South Half of the Red River lands ... throughout the entire length of that portion of the Red River constituting the division line between the State of Oklahoma and the State of Texas, sufficient to invoke the operation of 28 U.S.C. § 2409a(f) .... ” Rec., vol. I, at 40. Farmers Union then denied this contention, alleging the inapplicability of the Oklahoma v. Texas decisions because they specifically indicate that the title issues therein were being decided exclusively on the language of the particular conveyances and treaties involved in those cases.
The Government does not assert that the appellees or their predecessors “knew” of the Government’s claim, only that they “should have known” because of the “notoriety” of the Oklahoma v. Texas decisions. In other words, it is the Government’s position that those cases gave constructive notice of a claim by the United States. The trial judge implicitly disposed of this contention when he held for appellees on the merits. He noted that the Oklahoma v. Texas cases were confined to the express language of the relevant treaties and patents governing the conveyances in those cases, and held that the patent in this case, in view of the common law rules of construction, simply does not support the Government’s argument. Indeed the Government admits in its brief on appeal that the Oklahoma v. Texas cases do not support the position it took below on the merits.
In sum, Bradford and the Johnson defendants asserted jurisdiction under the statutory scheme of 28 U.S.C. § 2409a, the Government questioned that jurisdiction solely on the basis of its interpretation of two cases, and the district court concluded that those cases do not support a claim by the Government. We agree with the district court. It was not necessary to “try” the issue of jurisdiction in any evidentiary sense. The issue was purely one of law as to whether those cases could give notice of the Government’s claim, thereby triggering the twelve-year period specified in 28 U.S.C. § 2409a(f). We must conclude as a matter of law that Bradford and the Johnson defendants carried their burden to establish jurisdiction.
II.
The Government argues for the first time on appeal that the appellees’ ’ands are not now and never have been riparian. This is an audacious argument in view of the Government’s concession in its answer, cross-petition and stipulation of facts to both the riparian nature of the lands at issue and appellees’ ownership to the middle of the riverbed. Indeed the Government’s entire position in the trial court was grounded upon the riparian nature of these lands. The Government now seeks to have this court hold everything accomplished below for naught, and to permit wholly new factual and legal contentions to be injected into the litigation at this late stage of the proceedings.
“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); accord, Neu v. Grant, 548 F.2d 281, 287 (10th Cir. 1977); United States v. Immordino, 534 F.2d 1378, 1381 (10th Cir. 1976). The Supreme Court has explained that this rule is “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).
This court has pointed out that the rule is particularly applicable where the party wishing to raise the new issue on appeal invited the alleged error below. See Neu v. Grant, 548 F.2d at 287. In this case, the Government’s claim and its stipulations were founded on the riparian character of the lands. Appellees were therefore justified in believing that this issue was settled and that no evidence showing the riparian nature of the lots was necessary. The Government offers no reason for its failure to raise the issue below other than to admit that it erroneously chose to rely exclusively upon the Oklahoma v. Texas cases to support its theory of relief. The Supreme Court has definitively stated that “[t]he Government ... may lose its right to raise factual issues of this sort ... when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.” Steagald v. United States, - U.S. -, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The Government’s contention on appeal that it is entitled to the entire riverbed is particularly egregious with respect to the Bradfords, who gave up their claim to the south half of the riverbed in reliance on the Government’s admission in its answer that the Bradfords owned the north half.
Under all of these circumstances, a gross injustice would be worked upon these appel-lees if we disregarded an established principle of appellate review and required the entire suit to be relitigated simply because the Government lost the first time around. Even were we to permit relitigation, it would be futile because the Government could not prevail upon the new theory it wishes to assert. In view of the lengthy treatment by the dissent of this theory, some observations on its lack of merit are appropriate.
III.
The Government seeks to avoid the effect of the common law principles applicable to conveyances of riparian lands as set forth by this court in Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30 (10 Cir. 1956). To do so, it now contends that the lots at issue here are not riparian and never have been. The dissent apparently agrees, finding persuasive the fact that the Red River bed normally contains very little water.
However, the Government itself established the riparian nature of the lots at issue here, and indeed of all the lots in Oklahoma bounded by the bed of the Red River, when it made the official plat and survey which is incorporated by reference into the descriptions contained in the original patents. The riverbed was as dry then as it is now. If the Government had believed at that time that the riverbed was too dry to form a riparian boundary with the adjoining land, it could have surveyed the entire riverbed into whole lots right across to the border of Texas. Instead, the Government survey and plat divided the land adjoining the riverbed into fractional lots having as a boundary the meander line of the Red River. Thus the Government clearly considered these lots to be riparian when it drew up the plat because it showed them to be bounded by a natural watercourse. See United States v. 1,629.6 Acres of Land, 503 F.2d 764, 767 (3d Cir. 1974).
An opinion of the Attorney General, dated July 12, 1926, contains further evidence showing the Government’s recognition of the riparian nature of lands adjoining the Red River. That opinion not only discusses ownership of several sections of the riverbed under the doctrine of riparian land, it cites with approval the very rule applied by the trial court here.
The Government incorporated the official survey and plat by reference into the property description of the original patents. The patentees were entitled to rely on that plat, which described their lots as riparian. The Government now seeks to repudiate the plat over fifty years after the fact by pointing to a condition which was in existence and well known when the lands were surveyed and patented, namely the usually dry condition of the riverbed. The dissent approves of this procedure even though it would create a conveyance entirely different from the one that was intended by the parties at the time. Such a result ignores fundamental doctrines of property law.
In every case cited by the Government in which the ownership of the Red River bed has been litigated, the lots adjoining the riverbed were accepted without question as being riparian. The Government has cited no case involving the conveyance of lots adjoining the river in which the land was found not to be riparian. The Supreme Court specifically noted the riparian nature of the lands on the north bank, see Oklahoma v. Texas, 258 U.S. 574, 591-97, 42 S.Ct. 406, 413-15, 66 L.Ed. 771 (1921), and applied common law principles to the conveyance of these “riparian tracts.” Id. at 595, 42 S.Ct. at 414. This court has also recognized lands adjoining the Red River bed to be riparian and has likewise applied the appropriate common law rules to determine what land was conveyed by the grant of fractional lots bounded by the river. Seay, 235 F.2d 30. There was no more water in the portions of the Red River involved in those cases than there is in the section of the riverbed at issue here. Those cases are controlling on the issue, and preclude a determination that the lots here are not riparian.
These conveyances are to be construed according to the law of the state of Oklahoma, which embodies the common law. Seay, 235 F.2d at 35. Under the common law of property, when “the grant- or owns the entire bed of the stream, but no part of the upland on the opposite side, in the absence of a clear indication of a contrary intention from the terms of the grant and the attendant circumstances, the grant will be construed to convey to the grantee the entire bed of the stream.” Id. (emphasis added) (footnote omitted). It is undisputed that the Government owned the entire riverbed prior to the conveyance of the original patents. The patents themselves convey the entire lots according to the official survey and plot, and contain no reservation of any interest on the part of the United States. Under the common law the grant must be construed to have conveyed the entire riverbed.
The dissent disregards the application of this common law rule and points instead to two grounds from which it believes an intent by the Government to reserve the riverbed may be inferred: namely, the inclusion in the patent descriptions of only the uplands adjoining the riverbed; and the great magnitude and value of the riverbed when compared to the adjoining land. However, these circumstances fall far short of a clear indication of an intent to reserve the riverbed.
With regard to the first ground, the court in Seay pointed out:
“It has been the policy of the Federal government, from its origin, in disposing of the public land bordering on non-navigable streams to measure the price to be paid for it by the quantity of upland granted and to make no charge for land under the bed of a stream. To carry out that policy, meander lines are run in surveying fractional portions of land bordering upon non-navigable rivers, not as boundaries of the tracts, but for the purpose of defining the sinuosities of the banks of the stream and to ascertain the quantity of land in the fractions for which a purchaser is to be charged.”
235 F.2d at 35-36 (emphasis added) (footnote omitted). Here, the Government was following its own policy of including in its patent only the measure of the uplands and not the riverbed itself. Thus this fact cannot be construed as any indication of an intent to reserve the riverbed.
The Government’s argument that its intent to reserve title to the riverbed can be inferred from the allegedly general knowledge of the potential value of the riverbed is also without merit. The Government, having itself established the riparian nature of the lots in question, knew or should have known at the time of the original conveyances that the only way it could retain title to the riverbed was to expressly reserve it in the patents. That it knew of the value of the riverbed and still failed to specifically reserve it argues more persuasively for an intent to convey than an intent to reserve.
Finally, a brief discussion of Smith v. United States, 593 F.2d 982 (10th Cir. 1979), is in order. In Smith a dispute arose over whether a government grant of riparian lands included accretions occurring before conveyance to the patentee. The general common law rule is that where a lot is shown on a plat to be bounded by the meander line of a river, the actual water line is the boundary and not the line as drawn on the plat. Under this rule, accretions to the uplands pass by the grant. Smith recognized a narrow and carefully drawn exception to this general rule, and held that where substantial accretions occur to riparian lands prior to their conveyance, the line shown on the plat may control over the actual water line. Smith did not address the issue of the ownership of the riverbed itself and its facts are not at all similar to those in the instant case. Because Smith creates an exception to longstanding principles of the common law of property, its value as precedent should be carefully limited to closely parallel fact situations. It is clearly not applicable to the instant litigation and its effect should not be extended by an alleged analogy.
The judgment is affirmed.
APPENDIX A
APPENDIX B
Area involved in the present action
Portion of the river involved in Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922)
Portion of the river involved in Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir., 1956)
[The historical map of the State of Oklahoma is taken from page 226 of Geological Survey Bulletin 1212, entitled Boundaries of the United States and the Several States, by Franklin K. van Zandt, United States Government Printing Office, Washington, D. C., 1966.]
28 U.S.C. § 2409a(a) provides in relevant part:
“The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.”
. “The river has its source in the Staked Plains of northwestern Texas, and from there until it gets well into Oklahoma is within a region where the rainfall is light, is confined to a relatively short period in each year, and quickly finds its way into the river. Because of this the river in the western half of the state does not have a continuous or dependable volume of water. It has a fall of 3 feet or more per mile, and for long intervals the greater part of its extensive bed is dry sand, interspersed with irregular ribbons of shallow water and occasional deeper pools. Only for short intervals, when the rainfall is running off, are the volume and depth of the water such that even very small boats could be operated therein. During these rises the water is swift and turbulent, and, in rare instances, overflows the adjacent land. The rises usually last from one to seven days, and, in the aggregate, seldom cover as much as forty days in a year.”
Oklahoma v. Texas, 258 U.S. 574, 587, 42 S.Ct. 406, 411-12, 66 L.Ed. 771 (1921).
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES POTASH CO. v. McNUTT.
No. 893.
Circuit Court of Appeals, Tenth Circuit.
March 30, 1934.
For opinion on allowance of interest and taxation of costs, see 70 F.(2d) 1003.
G-umey E. Newlin, of Los Angeles, Cal. (Paul Speer, of New York City, and J. D. Atwood and L. 0. Pullen, both of Roswell, N. M., on the brief), for appellant.
Carl A. Hatch, of Clovis, N. M., and James E. Taylor, of Kansas City, Mo. (James A. Reed, of Kansas City, Mo., on the brief), for appellee.
Before LEWIS, PHILLIPS, and MC-DERMOTT, Circuit Judges.
McDERMOTT, Circuit Judge.
Appellee recovered a judgment upon a verdict of a jury for $238,666.66 for services rendered between January 1, 1927, and October 30, 1930. Sixty-four reasons are advanced, by as many assignments of error, why the judgment should be reversed.
1. The Pleadings. The complaint is on the common count in indebitatus assumpsit; it alleges that, at the special instance and request of defendant, McNutt rendered valuable services to the defendant from January 1, 1927, until October 30, 1930, as a geologist, mining engineer, technical expert and business adviser; that such services were accepted by defendant, and were of the reasonable value of $400,000. A bill of particulars alleged that Snowden and Shannon were the agents of defendant who requested such services, in July and November, 1926, while the corporation defendant was in process of formation; that such requests were renewed from time to time until late in the year 1930.
In its answer, defendant admitted that plaintiff did render services during the period in suit, but alleged that such work was done in pursuance of an agreement made in July, 1929, between Snowden and his associates on the one hand and McNutt on the other, that McNutt should receive 10 per cent, of the stock of the corporation then contemplated for all of such services. That the corporation- — -the defendant — was later formed; that its Board of Directors, with full knowledge of the July, 1926, agreement, recognized and accepted sueh agreement, accepted plaintiff’s services thereunder, and has issued to plaintiff 10 per cent, of its stock as agreed, which plaintiff retains, and which was and is payment in full for the services sued for.
The reply was a general denial.
2. The Evidence. The facts, in their aspect most favorable to appellee, are :
McNutt, a geologist of learning and experience and a business man of skill and acumen, had had satisfactory business relations for some time with Snowden and Me-Sweeney who represented a group of eastern investors; McNutt had located and developed oil territory with moneys advanced by the Snowden group, sharing with them in the profits of the ventures. In 1925 Mc-Nutt discovered a potash deposit of great value in New Mexico; he submitted his find to Shannon, a western representative of the Snowden group, and was told to go ahead with the necessary work of blocking out the acreage and core-drilling at their expense, and was promised that satisfactory arrangement's would later be made to compensate him-for his services. Federal permits for a block of acreage were procured by McNutt, and the core-drilling demonstrated the existence of a large bed of potash. McNutt went to New York in July, 1926, to arrange for his compensation and to determine upon plans for further development.
McNutt and Shannon are the only living witnesses to what occurred at that conference. Both testified that it was agreed that a corporation — defendant—should be formed and development continued by that corporation; that the Snowden group would contribute $106,000 in cash to the corporate capital, and that McNutt should have 10 per cent, of the issued stock. The corporation was later formed, its $100,000 capital paid in cash, and McNutt received and retained 10 per cent, of the stock. Both testified that McNutt was to continue his services to the corporation until the project was proven or condemned, and that an agreement was concluded that day for the amount of compensation he should receive. But there the way divides. McNutt testified that the stock was in payment for the work he had already done on the project, and for nothing else. Shannon testified that the stock was in payment for past services but also that, in consideration thereof, McNutt was “to continue in the project the same as he had in the past.” Mc-Nutt testified, as to services to be performed after the corporation was organized, that Snowden offered him a salary, which Mc-Nutt declined; McNutt then offered to continue to put up his time against their money; that since it appeared that more than the original $100,000 would probably necessarily be expended before the project was either proven or condemned, he would accept for future services 10 per cent, of such additional advancements, conditioned upon their be*-ing repaid. To this proposal, Mr. Snowden replied, “that was all right, that was satisfactory.” Snowden made no present agreement to advance more funds; but later $606,539.80 was so advanced and repaid.
McNutt continued on, rendering valuable service to the company; he testified that in May, 1929, at a directors’ meeting, he brought up the question of this 10 per cent, of additional advancements and asked for a note therefor, as the Snowden associates had been given notes for such advancements. Whereupon MeSweeney, one of the original associates and President of the corporation, disclaimed any knowledge of such an understanding; Snowden said he did not understand that such was the agreement he and McNutt had in July, 1926; but that McNutt could rest assured that “the matter would be adjusted in a satisfactory manner.” With that assurance, the matter was presently dropped, and McNutt continued on. All others present at that meeting deny in toto that any such proceedings were had, and this conflict in the testimony was not submitted to the jury.
On September 23, 1930, appellant’s stockholders sold half their stock to the Pacific Coast Borax Company in consideration of $2,000,000, out of which sum the sellers agreed to discharge most of the corporate debts; the buyer agreed to develop and operate the corporation properties, to assist in financing such development, and to market its products, all upon terms satisfactory to the corporation. The suece&s of the venture having been demonstrated by the sale, and the advancements repaid, McNutt demanded in writing his 10 per cent, of such advancements — “this amount is roughly $60,000” — and reiterated his contention that by his agreement of July, 1926, he was entitled to such sum. He closed his demand with the statement that if he was mistaken as to that agreement, “then I contend that I am entitled to be paid for the reasonable value of my services.” Appellant refused payment of any sum on the ground that the stock issued to McNutt was in full payment for all services rendered both before and after the date of its issuance. This action followed.
3. The Main Issue. From the above, it is clear that the one overshadowing issue, in the pleadings and the proof, is as to what agreement was made .in July, 1926. . Both parties plead that agreement; both parties introduced proof of it. If, as Shannon testified, McNutt was to receive 500 shares of stock for past and future services, the defense pleaded has been established, and Mc-Nutt is entitled to nothing. If, as McNutt testified, he was to receive in addition 10 per cent, of moneys later advanced by the associates and repaid, then he is entitled to recover $60,653.98. . That issue is all there is to this lawsuit. The jury heard the testimony and believed McNutt. Under this record, and his own testimony, which the jury found to be true, he was entitled to $60,653.-98 and no more.
.Appellee advances several reasons why he should be entitled to $178,000 more than he agreed to do the work for. We have examined them all, and find them to be without substance.
Appellee claims that because he elected to sue in indebitatus assumpsit instead of upon the special agreement he testifies he made, he should not be held to his agreement. While a recovery may be had upon the common counts for services fully performed under a special contract, both reason and authority limit the recovery to the amount which the parties agreed should be paid for the services. Where one has agreed to perform services for a stipulated sum, he should not be permitted to evade his contract by any device of pleading. In Dermott v. Jones, 2 Wall. 1, 9, 17 L. Ed. 762, the Supreme Court held that in an action on the common counts, the plaintiff “must produce the contract upon the trial, and it will be applied as far as it can be traced,” and that:
“While a special contract remains execu-tory the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to he done but the payment of the price, he may sue on the contract, or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.”
The contention is then made that there never was a contract because a misunderstanding arose in 1929' as to the terms orally agreed upon three years before. Where, as here, unambiguous language is used in an offer, and it is unconditionally and unequivocally accepted, a contract results. Its obligation is not discharged by a subsequent disagreement. Contracts are made by what parties say, and not what they intend to say. If one were permitted to avoid a bargain, fairly and clearly made, by the statement that he meant one thing when he said another, the obligation of contracts would be a myth. National Bank of Metropolis v. Kennedy, 17 Wall. 19, 21 L. Ed. 554; Motter v. Patterson (C. C. A. 10) 68 F.(2d) 252, 258; Milliken-Tomlinson Co. v. American Sugar Refining Co. (C. C. A. 1) 9 F.(2d) 809; Star-Chronicle Pub. Co. v. New York Evening Post (C. C. A. 2) 256 F. 435; Hotchkiss v. National City Bank (D. C.) 200 F. 287, 293, affirmed (C. C. A.) 201 F. 664, affirmed 231 U. S. 50, 34 S. Ct. 20, 58 L. Ed. 115; O’Donnell v. Town of Clinton, 145 Mass. 461, 14 N. E. 747, 751; Clark v. Stetson, 115 Me. 72, 97 A. 273; Restatement, Contracts, § 20; Williston on Contracts, § 94. Appellee places his reliance, in this connection, upon those cases where a meeting of the minds was aborted by the use of expressions with two or more usual meanings, or where a written offer was altered by forgery before acceptance. Turner v. Webster, 24 Kan. 38, 36 Am. Rep. 251, distinguished on this ground in Brown v. Quinton, 86 Kan. 658, 122 P. 116, Ann. Cas. 1913C, 392; Vickery v. Ritchie, 202 Mass. 247, 88 N. E. 835; 26 L. R. A. (N. S.) 810. But there is no ambiguity in the words here employed, and such cases have no application.
Nor does it defeat the contract that Snowden did not presently agree to advance further moneys to the project. When such moneys were in fact later advanced, the promise to pay for services then attached, and the element of mutuality was supplied. General Paint Corporation v. Kramer (C. C. A. 10) 57 F.(2d) 698, certiorari denied 287 U. S. 605, 53 S. Ct. 10, 77 L. Ed. 526; Scott v. J. F. Duthie & Co., 125 Wash. 470, 216 P. 853, 28 A. L. R. 328; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 So. 672; McKenzie v. Stewart, 196 Ala. 241, 72 So. 109; Johnson v. Homestead-Iron Dyke Mines Co., 98 Or. 318, 193 P. 1036; Livingston v. Blair, 104 Okl. 238, 231 P. 82; Roberts v. Harmount Tie & Lumber Co. (Mo. App.) 264 S. W. 448; Paragon Oil Co. v. A. B. Hughes & Sons, 193 Ky. 532, 236 S. W. 963; Burke & Farrar v. Campbell, 128 Wash. 646, 224 P. 9; Williston on Contracts, § 106.
It is then argued that the July, 1926, contract was rescinded by mutual agreement in March, 1929, when the misunderstanding arose. Assuming that McNutt’s testimony as to the 192® meeting is sufficiently definite to establish a rescission by mutual agreement, it does not avail appellee, for his testimony was flatly contradicted by every other person at that meeting, and the court did not submit this issue of fact to the jury. Nor can error be predicated upon such failure to submit the question; m> request to submit that issue was made by either party; appellant does not assign any such error, and there is m> cross-appeal.
As to a rescission in invitum. Where one party to an executory contract unqualifiedly repudiates, the other party may accept the repudiation, decline to render further services, and sue in quantum meruit for services already rendered. Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953; United States v. Behan, 110 U. S. 338, 4 S. Ct. 81, 28 L. Ed. 168; Operators’ Oil Co. v. Barbre (C. C. A. 10) 65 F.(2d) 857; Bu-Vi-Bar Petroleum Corporation v. Krow (C. C. A. 10) 40 F.(2d) 488, 69 A. L. R. 1295; Thane Lumber Co. v. J. L. Metz Furniture Co. (C. C. A. 8) 12 F.(2d) 701; Moore v. Security Trust & Life Ins. Co. (C. C. A. 8) 168 F. 496; Hoggson Bros. v. First Nat. Bank (C. C. A. 8) 231 F. 869; Fitzgerald v. Allen, 128 Mass. 232; Major v. Pine, 3 Bing. 285; Williston on Contracts, § 1296. But Mc-Nutt’s testimony that appellant repudiated in 1929 was stoutly denied by other witnesses, and this issue of fact was not submitted to the jury. Furthermore, McNutt testified that after the assurances given by Snowden at that meeting, he continued to render the services he had agreed to render,, and he now sues for services rendered after that day. It thus conclusively appears, by McNutt’s own testimony, that if there were a repudiation by appellant, McNutt did not accept it but continued to perform. Before one may rely upon a repudiation of an executory contract, he must accept it' as such and treat the contract as at an end. If he fails to do that, “he keeps the contract alive for the benefit of the other party as well as his own.” Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 784, 44 L. Ed. 953; Smoot’s Case, 15 Wall. 36, 21 L. Ed. 107; Dingley v. Oler, 117 U. S. 490, 503, 6 S. Ct. 850, 29 L. Ed. 984; Foss-Schneider Brewing Co. v. Bullock (C. C. A. 6) 59 F. 83; Hettrick Mfg. Co. v Waxahachie Cotton Mills (C. C. A. 6) 1 F.(2d) 913, 919; Hennessy v. Bacon, 137 U. S. 78, 84, 11 S. Ct. 17, 34 L. Ed. 605. The services here having been fully performed when the action was brought, the cases that permit of recovery on quantum meruit where there has been but part performance of the services contracted for, are not in point. Nor are we concerned with cases like Humbert v. Chopy (D. C. Colo.) 216 F. 549, where services are to be paid for in something else than money, and where the employer has disabled himself from compensating the employee as agreed.
Nor is it necessary, when the suit Is ou the common counts, that defendant specially plead an express contract. Notwithstanding the suit is iu quantum meruit, if there is a special contract, the plaintiff “must produce the contract upon the trial.” Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762. His recovery is limited, not by way of defense, but by his own agreement, brought forward by himself upon the trial. Under the liberal rule of pleading established by the eases heretofore cited, one may sue in quantum meruit despite the fact that the work was done under a special contract; but, as may be seen from the same cases, recovery must rest on the facts as they are. If plaintiff has agreed to perform services for a stipulated sum, he must establish that fact as a part of his ease, notwithstanding the form of the action. Nor is a defendant estopped, if the issue of fact be decided against it, to assert that the recovery be limited by the agreement which the jury finds to exist. While a litigant may not try his ease on one theory and shift to another on appeal [Wickwire v. Martin (C. C. A. 10) 63 F.(2d) 64], appellant’s theory in this ease, from its first answer to its last brief, is that the services were performed under an express contract. Upon this point, the parties are in accord, although they differ as to the terms. A defendant does not, by putting on a witness to testify to the terms of that agreement, es-top itself from relying on a fact not in dispute, that there was an agreement. The law does not say to a suitor that he testifies to his recollection of an oral contract at hisi peril; that if the jury decides against him, the other side is released from a contract he agrees he made.
Appellee’s ease, established by his own testimony, discloses a valid contract to perform these services for $60,653.98. Appellant requested the court to charge the jury that if they believed McNutt’s testimony as to the 1926 contract, their verdict should be for such sum of $60,653.98. The court denied the request, and, on the -contrary, charged that such agreement would not limit the amount of recovery. In this there was error.
4. Other Errors Assigned. The trial court read to the jury appellant’s answer, which clearly alleged that McNutt had agreed, in July, 1926, to accept 500 shares of stock for all his services, and that he was paid in full by the issuance of such stock. The jury were advised that appellee denied any such agreement was made. The jury were then charged that such issue was one of the important issues to he determined, and that:
“If you believe from the evidence that there was such a contract as claimed by the defendant, it will bar recovery of any sum whatever in this ease by the plaintiff, and your verdict will he for the defendant.”
In defining a contract as a meeting of the minds of the parties, the learned trial judge used the expressions “if their minds and understanding did not meet” and “if the mind of Mr. Snowden and Mr. McNutt met and each understood the other,” which are inept, particularly when there was evidence of a misunderstanding three years later. Appellant tendered an instruction which stated the familiar law of the formation of a contract in the more conventional way. We are not, however, disposed to reverse the cause on account of tills slip for several reasons. Eirst, there are five printed pages of objections to this paragraph of the charge, but the court’s attention was not called to the unfortunate use of the word “understanding.” Again, we are not persuaded that any prejudice resulted. The average juryman knows, without being told, that if McNutt agreed to do this work for 500 shares of stock, as Shannon testified, he was paid in full when he received the stock. There would never be an end to litigation if reversals followed every slip of the tongue in hotly contested protracted trials. When such slips do occur, counsel must directly call the court’s attention thereto.
Error is assigned on the exclusion of testimony of what Snowden told the directors about the July, 1926, agreement. Such assignments are neither specified in the briefs nor argued, and need not be considered. City and County of Denver v. Denver Tramway Corp. (C. C. A. 8) 23 F.(2d) 287, certiorari denied 278 U. S. 616, 49 S. Ct. 20, 73 L. Ed. 539; Travelers’ Ins. Co. v. Bancroft (C. C. A. 10) 65 F.(2d) 963, certiorari denied 54 S. Ct. 103, 78 L. Ed. -. If there had been an issue of corporate adoption of the Snowden-McNutt agreement, such evidence might have been admissible for a limited purpose. Appellant pleaded a corporate adoption of that agreement, and all parties apparently assume what is undoubtedly the fact, that the corporation was bound by that agreement, whatever it was. Neither side asked the court to submit any such question to the jury; the trial court charged the jury that the corporation was bound by such agreement, and no exception was taken thereto. The briefs here do not mention any such question. The errors assigned are, therefore, without substance.
We have examined the other assignments of error and find nothing therein requiring reversal or recitation.
There remains the important question of the disposition which should be made of the case. Nearly four years have elapsed since appellee became entitled to his pay. After a protracted and expensive trial, with lawyers and witnesses attending from afar, a qualified jury has heard the evidence on the one critical issue and determined it. Necessarily that jury believed McNutt, and under McNutt’s testimony he was entitled to $60,-653.98, no more and no less. If the court had charged the jury as requested by appellant, and had not charged them to disregard McNutt’s agreement in arriving at a verdict, the verdict must have been for that precise sum, for there is no dispute that $606,539.80 was later advanced and repaid, and McNutt testified his pay was to be 10 per cent, of that sum.
After one fair trial on the controlling issue of the terms of the 1926 agreement, we are reluctant to send the cause back for another trial of the same issue, with its attendant delays and expense to the parties and the government. There ought to be a better way, within the limitations imposed upon us by the Seventh Amendment. The Seventh Amendment requires one jury trial and not two. If a correct verdict has been prevented by an erroneous instruction, and if a correct verdict is an inescapable’ conclusion from facts found by the jury, we know of no reason or rule that requires a second trial.
We are prevented, by controlling authority, from directing a judgment for the sum to which appellee is entitled. Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029. But we are not barred from an order of remittitur [St. Paul F. & M. Ins. Co. v. Eldracher (C. C. A. 8) 33 F.(2d) 675, certiorari denied 280 U. S. 604, 50 S. Ct. 86, 74 L. Ed. 649] if the excess of the judgment is merely a matter of computation, and does not involve a determination of a disputed question of fact, as in Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474, 53 S. Ct. 252, 77 L. Ed. 439. The Seventh Amendment prohibits a court from substituting its judgment on a question of fact for that of a jury; computing 10 per cent, of $606,653.98 involves no question of judgment, and a jury need not be impaneled to make the calculation.
If appellee remits the judgment down to the amount to whieh he is entitled, the only error in the trial becomes harmless. Can either party reasonably object to such a disposition of the case? Certainly appellee may not, for if he wants another trial, he may have it. Appellant is in but little better stead; it invited the trial court, by the requested charge, to direct the jury to find against it for $60,653.98 if they believed Mc-Nutt. It renews that invitation here. By this request, it waived any objection it might have had to the jury passing on the question of veracity between McNutt and Shannon, after it had listened to the experts evaluate McNutt’s service. Appellant’ cannot object to a result whieh is simply a mathematical deduction from a charge it urges should have been given. The only reason whieh we can see whieh either party might urge against such a disposition, is that one or the other might like to try his luck again with another jury — that is, have a second day in court. To that, they are not entitled.
It will therefore be ordered that the judgment be reversed, and a new trial directed, unless within 60 days from the filing of this opinion, appellee files in the office of the clerk of the trial court, a remittitur of the excess of the judgment over $60,653.98, and within ten days thereafter files with the clerk of this court a certified copy of the record showing such remittitur. If such re-mittitur is filed, the judgment, less the amount remitted, will be affirmed; otherwise reversed with directions to grant a new trial.
Affirmed if remitted to $60,663.98; otherwise reversed.
See, also, Bank of Columbia v. Patterson, 7 Cranch (11 U. S.) 299, 3 L. Ed. 351; Chesapeake & O. Canal Co. v. Knapp, 9 Pet. (34 U. S.) 541, 565, 9 L. Ed. 222; Ogden v. Ruhm (C. C. A. 2) 7 F.(2d) 1007, certiorari denied 269 U. S. 571, 46 S. Ct. 26, 70 L. Ed. 417; McCurley v. National Savings & Trust Co., 49 App. D. C. 10, 258 F. 154; H. G. Holloway & Bro. v. White-Dunham Shoe Co. (C. C. A.) 151 F. 216, 10 L. R. A. (N. S.) 704; Marshall v. Jones, 11 Me. 54, 25 Am. Dec. 260; Frenkil v. Hagan, 146 Md. 94, 125 A. 909; Confer Bros. v. Currier, 164 Minn. 207, 204 N. W. 929, 931; Reifschneider v. Beck, 148 Mo. App. 725, 129 S. W. 232; Burgess v. Helm, 24 Nev. 242, 51 P. 1025; Cunningham v. Springer, 13 N. M. 259, 82 P. 232, affirmed 204 U. S. 647, 27 S. Ct. 301, 51 L. Ed. 662, 9 Ann. Cas. 897; Ton Toy v. John Gong, 87 Or. 454, 170 P. 936; Sinnock v. Zimmerman, 132 Or. 137, 284 P. 838; Edward Thompson Co. v. Kollmeyer, 46 Ind. App. 400, 92 N. E. 660; Williston on Contracts, § 1459.
This is akin to the familiar rule that where one p.arty has substantially breached his contract, the other ordinarily has his option of rescinding or suing for the breach. In Ankeny v. Clark, 148 U. S. 345, 13 S. Ct. 617, 37 L. Ed. 475, and Smiley v. Barker (C. C. A. 8) 83 F. 684, the seller failed to give good title to the thing sold; the buyar was held to have the right to rescind and recover the price paid. In Hoggson Bros. v. First Nat. Bank (C. C. A. 8) 231 F. 869, it is emphasized that a repudiation must be absolute and unqualified before a rescission may follow.
Viles v. Kennebec Lumber Co., 118 Me. 148, 106 A. 431; Little v. Brown, 36 Ariz. 194, 283 P. 924; Jewett v. Weston, 11 Me. 346; Phipps v. Mahon, 141 Mass. 471, 5 N. E. 835; Stewart v. Thayer, 170 Mass. 560, 49 N. E. 1020; Figland v. Jones, 39 S. D. 40, 162 N. W. 738; American Surety Co. v. Fruin-Bambrick Const. Co., 182 Mo. App. 667, 166 S. W. 333, 335.
While not entirely on the point, see General Paint Corp. v. Kramer (C. C. A. 10) 57 F.(2d) 698; Buchhalter v. Rude (C. C. A. 10) 54 F.(2d) 834 (modified as to costs, 286 U. S. 451, 52 S. Ct. 605, 76 L. Ed. 1221); Midland Savings & Loan Co. v. Tradesmen’s Nat. Bank (C. C. A. 10) 57 F.(2d) 686, certiorari denied 287 U. S. 615, 53 S. Ct. 17, 77 L. Ed. 534; Henderson Tire & Rubber Co. v. Gregory et al. (C. C. A.) 16 F.(2d) 589, 593, 49 A. L. R. 1503; Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 L. Ed. 828; Barnsdall v. Waltemeyer (C. C. A. 8) 142 F. 415, 420; Doyle v. Hamilton Fish Corp. (C. C. A. 2) 234 F. 47, 51.
Twelve pages further on in the exceptions to the charge, appellant does except to the use of the word “understanding” in a later part of the charge dealing with the effect of the agreement as McNutt testified to it, a part of the charge we have found erroneous on other grounds. But when the court’s attention was directed in great detail to errors in the paragraph of the charge now under consideration, no mention is made of the expressions now assigned as error.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_civproc1
|
52
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
Edward Watson GODFREY, Plaintiff-Appellant, v. Gilbert W. HEUBLEIN, Defendant-Appellee.
No. 166, Docket 23239.
United States Court of Appeals, Second Circuit.
Argued Jan. 13, 1955.
Decided Feb. 7, 1955.
Maxwell M. Merritt, Sidney D. Pin-ney, Jr., Hartford, Conn. (Shepherd, Murtha & Merritt, Hartford, Conn., of counsel), for plaintiff-appellant.
Joseph P. Cooney, Hartford, Conn. (Stanley I. LaCov, New York City, of counsel), for defendant-appellee.
Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
HINCKS, Circuit Judge.
Plaintiff-appellant was employed by the appellee under a written contract of employment covering the period from February 11, 1947 to January 1, 1952. Both parties to this action are physicians and by that contract plaintiff was engaged to assist defendant in his practice of medicine in Hartford, Connecticut. Under this contract, the defendant was to pay the plaintiff a regular salary of $7,000 plus 25% of the net profits of the practice per annum and, in addition, was each of the years of the agreement to credit him with a percentage of the proceeds of the practice which otherwise would inure to defendant alone. These credits were to be applied to the purchase by plaintiff of 24%% interest in a partnership to be formed, at plaintiff’s option, at the termination of the employment agreement between plaintiff and defendant and one Doctor Bernstein, who was also a party to the employment contract under which he too was given an option to purchase a partnership interest in the practice.
Under Paragraph 8(a) of the employment contract it is provided that if plaintiff was still associated with defendant as of January 1, 1952, he would be entitled to become a partner. And Paragraph 8(d) of the contract provided that if the plaintiff is not associated with the defendant or “shall elect not to enter into a partnership after January 1, 1952 with the” defendant, then the credits should, adopting the phraseology of the contract, "revert” to the defendant. Plaintiff remained in defendant’s employ until January 1, 1952, but it was not until March 3, 1952, that the three doctors were able to find time to discuss the proposed partnership. From the evidence it does not appear that the delay was due to any reluctance on the part of defendant, but rather because each physican was faced with heavy professional obligations.
Although the options to the plaintiff and Bernstein extended only to a partnership in which the defendant should have a 51% interest, at the March 3rd meeting, Bernstein sought a partnership on terms more favorable to him. Plaintiff, however, indicated that he was quite willing to become defendant’s partner on the terms provided in the employment contract. No formal written partnership agreement was consummated at this meeting or thereafter. This was due, it may be fairly inferred, to Bernstein’s recalcitrance. However that may be, without objection by the plaintiff, or indeed by the defendant or Bernstein the execution of a partnership agreement was indefinitely deferred pending further negotiations. On April 7, 1952, the plaintiff accepted a position in Princeton, New Jersey, in preference to continued practice in Connecticut. On June 15, 1952, the plaintiff severed all relationship with the defendant.
For the month of February, 1952, the plaintiif received from the defendant one-third of the net proceeds of the office which would have been his share if the partnership between the three doctors envisaged by the earlier employment contract had come into effect.
The plaintiff reported as gross income the credits to which he was entitled under the employment contract, as stated above, in his income tax return for each of the years between 1947 and 1952.
These credits aggregated $10,715.18 and the plaintiff brings the instant action for their recovery. The court below entered judgment for defendant and this appeal resulted.
It seems clear that plaintiff’s right to the credits depended on the formation of a partnership. Under the contract the sum credited to the plaintiff was to be applied against the purchase of a share in the partnership and if after February 1, 1952, plaintiff elected not to become a partner the credits were to “revert” to the defendant. The crucial question, then, is whether a partnership between the plaintiff and defendant was ever formed. We think the trial judge was right in deciding this question adversely to the plaintiff.
The court below held that a formal written contract was necessary to the formation of a partnership in this case. Plaintiff contends that he accepted defendant’s offer at the March 3 meeting and that everything essential to a binding relationship was fully understood and agreed upon at that time. Hence, plaintiff argues, no formal writing was necessary. Under Connecticut law, which is here applicable, whether, in the absence of statutory provision, a formal writing is necessary to the formation of a contract is a question of fact. See Socony-Vacuum Oil Co. v. Elion, 126 Conn. 310, 11 A.2d 5; Garber v. Goldstein, 92 Conn. 226, 102 A. 605. Under this doctrine the trial judge must find whether it was the intent of the parties to be found without a written instrument. See 1 Corbin on Contracts, Section 30. The trial judge found against the plaintiff on this issue and we may not reverse his finding unless it is shown to be clearly erroneous. See Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
There is much evidence to support the trial judge’s ruling. Paragraph 8(f) of the contract refers to a “partnership agreement to be drawn” which fairly imports an intent that a partnership attested by a formal writing was contemplated by the parties. For plaintiff to purchase his share in the partnership a capital contribution of upwards of $6,000 would have been required of him in addition to the aggregate credits of $10,000. There is no evidence that on March 3rd, when the plaintiff contends an informal partnership was formed, plaintiff was able to provide the necessary capital and no evidence whatever that he actually tendered it. It is true that the defendant in his eagerness to consummate a partnership later offered to finance the plaintiff’s necessary capital contribution. But, although at the March 3rd meeting the plaintiff expressed willingness to become defendant’s partner, no specific arrangements were then or thereafter made as to the terms on which the defendant would finance the plaintiff’s capital contribution. And, perhaps more important, the terms of the partnership, including both the amount of the capital contribution by the plaintiff and his share of the partnership profits, depended upon Bernstein’s election to participate. And prior to April there had been no unequivocal manifestation of Bernstein’s position.
Plaintiff’s willingness to become a partner continued for a time, but his decision in early April to forsake Connecticut for Princeton, makes it difficult to believe that even he really considered that in March he had become a member of a partnership. And as all the evidence showed, the defendant’s desire to effectuate a partnership continued until terminated by the plaintiff’s decision to remove to Princeton. Certainly the record fails to show any breach of the defendant’s promise to form a partnership.
In view of the foregoing, we find no basis for the plaintiff’s contention on appeal that Judge Smith’s finding that the plaintiff “never entered into or presently intended to enter into a partnership” with the defendant, is inconsistent with his subordinate findings. No one questions that on March 3, 1952 the plaintiff intended to enter a partnership as soon as all the terms could be agreed upon and embodied in an integrated writing. But the evidence amply supported a finding that the plaintiff never intended to enter into an informal partnership not integrated into a written agreement. And read in context that is all Judge Smith’s finding meant.
The fact that plaintiff for the month of February received a partner’s share in lieu of the stipulated salary does not necessarily, in view of the background evidence, import more than expectation on the part of the parties that soon a partnership would be formed under terms retroactive to January 1st, in accordance with the employment contract. Even the plaintiff does not contend that a partnership had been formed, either informally or otherwise, as early as February. And any possible inference that the measure of his compensation for February betokened a partnership is negatived, or at least neutralized, by the fact that from March to June he accepted compensation on a salary basis without claim for a partner’s share.
The fact that the plaintiff and presumably the defendant on their respective tax returns each year reported the credits as income to the plaintiff, has no bearing on the issues here. The fact is referable to a supposed advantage, tax-wise, to report the credits annually rather than in an aggregate amount when the expected partnership should be formed. Here again is a fact which betokens at most an expectation of a future partnership and not its actual accomplishment.
Since, as we hold, there was no breach on the part of the defendant of his promise to form a partnership with the plaintiff, neither law nor equity entitled the plaintiff to recover the credits. For the credits were monies of the defendant deriving from his practice which were to become available to the plaintiff only on condition that he should enter into the contemplated partnership. The prior employment contract referred to the plaintiff’s rights to the credits as “conditional rights.” The judgment below involved no forfeiture of plaintiff’s rights to the credits. His own unequivocal election in April not to enter into such a partnership wholly terminated his contingent rights thereto. The monies, which at all times had been in the defendant’s possession, thereby were released from the plaintiff’s contingent rights without need for any affirmative action on the part of the defendant.
Judgment affirmed.
. Jurisdiction is based on diversity of citizenship and amount in controversy.
. “8. In addition to paying the salaries and percentages hereinbefore set forth, but solely for the purposes hereinafter defined, said Heublein further agrees to credit to said Godfrey and/or Bernstein during the term of this agreement or as long as said Godfrey and/or Bernstein remain associated with said Heu-blein, whichever period is the shorter, the following percentages to each: * *
. “(a) If either said Godfrey or said Bernstein shall be associated with said Heu-blein on January 1, 1952, each then so associated shall be entitled to a share in a partnership to be formed with said Heublein for the continuance of said office and practice, the value of each such share, if both shall then be associated, not to exceed twenty-four and one-half per cent (24%%) of the appraisal of said office and practice as determined by three disinterested persons as soon as practicable after January 1, 1952, and there shall be applied against the purchase of each share the credits hereinabove set forth.”
. “(d) In the event that neither said Godfrey nor said Bernstein shall be associated with said Heublein or in the pvent that either or both of them shall elect not to enter into partnership after January 1. 1952 with said Heublein, then all contingent right, title and interest in and to amounts so credited to said Godfrey and/or said Bernstein as herein-above provided shall pass and revert to ' said Heublein.”
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellee, v. Marion WHITE, Appellant.
No. 137, Docket 27972.
United States Court of Appeals Second Circuit.
Argued Oct. 10, 1963.
Decided Nov. 20, 1963.
Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, New York City (William J. Quinlan and Andrew T. McEvoy, Jr., Asst. U. S. Attys., of counsel), for appellee.
Theodore Krieger, New York City (assigned by the court), for defendant-appellant.
Before CLARK, MOORE and KAUFMAN, Circuit Judges.
MOORE, Circuit Judge.
Appellant Marion White appeals from his conviction, after a jury trial, for violating the federal narcotics law, 21 U.S.C. §§ 173, 174. Appellant did not deny that the single unlawful transaction for which he was tried took place, but relied on the defense of entrapment. On this appeal he contends that the refusal of the trial court to grant a continuance pending the availability of a “special employee” of the Government and the impropriety of the Government’s summation constitute reversible error. The relevant facts can be briefly stated.
On August 13, 1958, Federal Narcotics Agents met with Roy Lynn, a “special employee” or informant, and at his suggestion went with him to the vicinity of 146th Street and St. Nicholas Avenue in New York City. Under the surveillance of the agents, Lynn left Agent Copland, who was then operating under cover, and walked down the block a short way where he encountered appellant. After a brief conversation, Lynn and appellant joined Agent Copland. Copland testified that he asked appellant if he could get some heroin, that appellant had replied in the affirmative but said that he would have to go downtown first. Copland, Lynn and appellant, followed by the other agents, then proceeded to 58 Hamilton Place. Appellant entered the building alone, emerged shortly, and gave Copland two. glassine envelopes containing 92 grains of heroin. Copland, in turn, gave appellant $80.
Appellant’s version of the August 13, 1958 transaction is somewhat different. He testified that when Lynn, whom he had known for some years, first approached him, Lynn asked if appellant would do him the favor of getting narcotics for himself and his friend (Agent Copland) because both were “sick”; that Lynn indicated, when appellant professed ignorance of where to go for this purpose, that the narcotics could be obtained from one Chisolm, with whom appellant frequently dealt in the course of his “policy” business; that Chisolm would not sell to Lynn but would sell to appellant; and that it was with reluctance and after some delay that appellant agreed. Appellant further testified that en route to 58 Hamilton Place Lynn gave him $40 which he gave to Chisolm and that he delivered the narcotics to Lynn. Two hours later, appellant refused Lynn’s offer of $10 for doing the favor.
The Government kept appellant under “continuous investigation” until his arrest in January, 1960, but did not uncover any other transactions; and, after his arrest and prior to indictment, on November 17, 1961, appellant had agreed with the Government to cooperate in the initiation of other narcotic cases, but he had been singularly unsuccessful. Prior to and during appellant’s trial, the Assistant United States Attorney offered to make Lynn available for use as a court or defense witness, but it was subsequently learned that Lynn had been beaten and was seriously ill. After the Government had rested and appellant had taken the stand in his own defense, a doctor who had examined Lynn at the court’s direction testified in the absence of the jury that Lynn would not be able to appear for “a couple of weeks.” Appellant thereupon moved for adjournment until such time as Lynn could testify. The motion was denied and appellant, after going through the formality of calling in open court for the indisposed Lynn, rested. The trial court gave both parties permission to refer to Lynn’s absence in summation.
In this case the problems frequently presented in narcotics cases where special employees are involved were resolved in the early stages. The Supreme Court’s admonition in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) that the Government need only identfy its informant, was satisfied since appellant knew that Lynn, his friend for a number of years, was the special employee. Unlike United States v. Cimino, 321 F.2d 509 (2d Cir. 1963), the whereabouts of Lynn at the time of trial was not unknown. Moreover, rather than objecting to his production, the Government had repeatedly offered to make Lynn available.
Cases in this circuit and others have made it abundantly clear that the Government is not the guarantor of a special employee’s appearance at trial. E. g. United States v. Holiday, 319 F.2d 775 (2d Cir. 1963); United States v. Cimino, supra; Williams v. United States, 273 F.2d 781 (9th Cir. 1959), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960); Eberhart v. United States, 262 F. 2d 421 (9th Cir. 1958). However, defendants should be afforded every reasonable opportunity to present their cases as fully as possible. Thus, this Court has approved of the method sought to be used by appellant here. United States v. Glaze, 313 F.2d 757 (2d. Cir. 1963), citing Sartain v. United States, 303 F.2d 859 (9th Cir.), cert. denied, 371 U.S. 894, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). The issue, therefore, is whether the trial court abused its discretion in refusing to grant an adjournment where the appearance of the witness would be delayed, not whether the principles of Roviaro were disregarded.
We fully realize that a special employee’s role in the apprehension of narcotics violators is such that normally he would not be expected to come to the rescue of one whose arrest he has initiated. Nevertheless, appellant might have developed something from Lynn which could have tipped the scales in his favor. A significant aspect of appellant’s defense was his claimed ignorance of a potential supplier and his reluctance in agreeing to engage in the transaction. The truth of these assertions depended on what transpired when appellant and Lynn first met and conversed outside Copland’s hearing. There was no other way for appellant to substantiate his defense. Thus, the testimony sought to be adduced would not have been merely cumulative and would done more than impeach the Government witnesses.
An adjournment would not have been an unduly burdensome hiatus in the trial, since the witnesses were few and the factual issues clearly defined. Moreover, appellant’s counsel had not been dilatory in locating Lynn or in making it clear to the court and the prosecution that he intended to rely heavily upon his testimony. Cf. United States v. Lyons, 256 F.2d 749 (2d Cir.), cert. denied, 358 U.S. 911, 79 S.Ct. 240, 3 L.Ed.2d 232 (1958). Discretion in granting continuances rests with the trial judge. United States v. Cimino, supra. However, each case depends upon its particular facts. Here appellant had actual possession of the narcotics, he made delivery, and he received the money. All necessary elements of the crime under the statute had been established. Entrapment, if he could prove it, was his only hope. Lynn’s participation in the transaction has been so described by the narcotics agents as to make him a material witness on this phase of the case.
Under all the circumstances presented here, we hold that the trial court erred in denying appellant’s motion to adjourn for a reasonable time so that Lynn’s testimony could have been presented. This opinion does not mean that on a new trial the Government is under any duty to produce Lynn or that the trial may not proceed without Lynn if he should be unavailable.
Since a new trial will be necessary, only brief comment need be made concerning the allegedly prejudicial remarks by the prosecutor in summation. If Lynn appears and testifies, there will be no occasion to comment on his absence. When characterizing the quality of the testimony of a witness, counsel for prosecution and defense should be ever mindful of Canon 15 of the Canons of Professional Ethics which declares that it is improper for a lawyer to assert in argument his personal belief in the justice of his cause. Although the prosecutor did not use the personal pronoun “I,” nevertheless he was in effect vouching for the reliability of the Government’s witnesses and for this purpose personified the “Government.” In addition, he definitely conveyed the impression that the Government had not called the informer because “They [special employee addicts] are not the most reliable kind of witness when the Government puts them on the stand.” This negative approach he quickly contrasted with the affirmative by saying, in substance, that the Government called reliable witnesses who would not testify falsely or change their stories. These comments were quite unwarranted, particularly since illness was the cause of Lynn’s non-appearance.
Reversed and remanded.
We wish to express the court’s appreciation to Theodore Krieger, court-assigned counsel, for his capable representation of the defendant in this appeal.
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_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.
CROSBY v. PACKER et al.
Circuit Court of Appeals, First Circuit.
November 19, 1927.
No. 2160.
1. Bankruptcy <@=>303(4) — Evidence held to show guardian’s agreement to hold realty as security for money borrowed from ward’s estate, precluding recovery by guardian’s trustee in bankruptcy.
Evidence held to show that guardian, at time of borrowing money from ward’s estate, agreed with himself as guardian to bold realty as se-curity for repayment thereof, so as to preclude bankruptcy trustee’s recovering such payment as preferential after guardian’s bankruptcy.
2. Frauds, statute of <@=>56(l) — That agree-, ment to hold realty as security was not in writing did not make it invalid.
That agreement to hold real estate as security was not reduced to writing did not render it invalid.
3. Liens <@=>7 — Oral agreements, creating equitable interests, are enforceable in Massachusetts.
Oral agreements, creating equitable interests in property, when established, are recognized and enforced in Massachusetts.
4. Bankruptcy <@=>161 (2) — Bankrupt’s payment of debt within four months of bankruptcy, under right which vested more than four months before bankruptcy, held not unlawful preference (Bankruptcy Act, § 47a, cl. 2, and § 60b [II USCA §§ 75, 96]).
Where bankrupt, while solvent and more than seven years before filing of involuntary petition, borrowed money from his ward under agreement with himself as guardian to hold real estate as security for repayment thereof, ward’s estate acquired an equitable interest or lien in the real estate and its proceeds, and payment of proceeds of realty in part satisfaction of the debt within four months of filing of petition did not constitute an unlawful preference, under Bankruptcy Act, § 60b (11 USCA § 96), and bankruptcy trustee acquired no rights in the realty or its proceeds, under Bankruptcy Act, § 47a, cl. 2 (11 USCA. § 75).
5. Bankruptcy <@=>163 — Giving of insurance policy payable to wife and having no surrender value, to secure loan, and payment of money borrowed, held not “unlawful preference.”
Bankrupt’s transfer of insurance policy, payable to Ms wife and having no surrender value, to secure money borrowed, and payment of such money, were not preferential, since the transaction did not result in diminution of Ms distributable estate.
TEd. Note. — For other definitions, see Words and Phrases, Second Series, Unlawful Preference.]
Appeal from the District Court of the United States, for the District of Massachusetts; James M. Morton, Judge.
Suit by Arthur P. Crosby, as trustee of Fred W. Sproul, against said Sproul and others, to recover alleged preferences, in which Henry W. Packer, as guardian of Ella F. De Coster, intervened. From a decree of partial recovery to plaintiff (17 F.[2d] 325), plaintiff appeals.
Affirmed.
John J. Hartigan, of Boston, Mass. (George V. Phipps and Phipps, Durgin & Cook, all of Boston, Mass., on the brief), for appellant.
Henry W. Packer, of Boston, Mass. (Allen, Abbot & Packer, of Boston, Mass., on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
This is a proceeding in equity, brought by the trustee in bankruptcy of one Sproul to recover as preferences, under section 60b of the Bankruptcy Act (11 USCA § 96), certain payments made by Sproul individually to himself as guardian of Ella F. De Coster, an insane ward. At the time the proceeding was brought (May 3, 1926), Sproul had settled his account as guardian in the probate cobrt, and his resignation had (on February 9, 1926) been accepted. On May 19, 1926,, Henry W. Packer was appointed guardian of the insane person, and was allowed to intervene as defendant. The proceeding was originally brought against Sproul, as guardian, and three savings banks, in which the alleged preferences had been deposited in the ward’s account. The ease was tried in the District Court upon certain agreed facts and the oral testimony of three witnesses.
It appears that in the latter part of 1917 and the first part of 1918 Sproul borrowed from the estate of his ward $5,500, for which he gave notes for that amount, payable to himself as guardian, with interest at 6 per cent.; that he did so because the income received from the savings banks in which the money of the ward was then deposited was insufficient to meet her bills in the institution whei’e she was confined; that he was solvent and in good credit at the time, and by so loaning the money the income was made sufficient to pay the ward’s bills; that at that time he owned certain real estate in Allston; that when he borrowed this money “he intended that this real estate should be held as security for it, and used the money on that understanding”; that his wife then agreed to let her dower interest in this real estate stand for the loan; that in November, 1925, Sproul became insolvent; that December 10, 1925, he made an assignment for the benefit of his creditors; that February 20, 1926, an involuntary petition in bankruptcy was filed against him; and that on March 5, 1926, he was adjudged a bankrupt.
In November, 1925, and within four months of the filing of the petition, Sproul sold the Allston real estate (his wife releasing dower), netting therefrom $3,500, which, on November 19,1925, he deposited in two of the three savings .banks to his ward’s account. About the same time (November, 1925), he borrowed $1,000 from a friend, giving as security an insurance policy upon his life, payable to his wife. This policy had no cash surrender value, and his wife pledged her interest in it to enable him to raise the money to be used towards repaying the loan from his ward’s estate. This sum was deposited November 19,1925, in one of the savings banks, to the ward’s account. He also borrowed at this time from his sister the sum of $120 for the express purpose of repaying to that extent the amount borrowed from the ward’s estate, which was likewise deposited November 20, 1925, in one of the savings banks, to the credit of the ward’s account. In his final account as guardian, the difference between the sums thus repaid ($4,620) and the $5,500 originally borrowed was covered by a charge for his services, and the notes given were thus satisfied.
The only witnesses were Sproul, his wife, and a lady, who was formerly his bookkeeper, but had ceased to be such at the time of the trial. The District Court found that to the extent the ease depended upon the testimony of these witnesses they had testified with substantial accuracy, and that their testimony should be accepted; that “Sproul, at the time of loaning [borrowing] the money and thenceforward, regarded the Allston property as held by him as security for the loan,” and being of the opinion that an equitable interest or trust had thus been created in the real estate in favor of the ward’s estate, it held that the payment of the net proceeds of the real estate to the ward’s estate, though within four months of the filing of the petition in bankruptcy, was not a preference.
As to the $1,000 borrowed on the life insurance policy, the District Court found that the insurance policy was payable to the wife; that it had no cash surrender value; that the wife pledged her interest in it “to enable her husband to raise the money to repay to that extent what he had borrowed from the ward’s estate”; and held that the $1,000 was not recoverable by the trustee.
As to the $120 that wa's borrowed from the sister and paid into the ward’s estate, while it was found that it was borrowed “for the express purpose of paying it to his ward’s estate, to repay to that extent the amount borrowed,” the District Court ruled that it was recoverable.
By his assignments of error the trustee (appellant) contends that the court erred (1) in finding that a binding agreement or contract was made between Sproul as an individual and himself as guardian to hold the Allston property as security for the $5,500 loan, and in ruling that the Allston property was charged with a trust or equitable lien in favor of the ward’s estate; and (2) in finding and ruling that the $1,0.00 borrowed of a friend did not increase the total indebtedness of the bankrupt, and that the payment of the $1,000 to the ward’s estate was not a preferential payment-.
No appeal was taken by the defendants from the decree awarding the trustee the $120. It is therefore not open to us to inquire whether the decree in that respect is correct or not.
As to the question presented by the first assignment, we are satisfied that there was substantial evidence from which it reasonably could be found that, at the time the loan of $5,500 was made, it was agreed that the Allston real estate was to be held by the bankrupt in trust and as security for its repayment. There was little, if any, evidence that could be said to be in conflict with this conclusion. Whether this agreement was in fact made depended almost wholly upon the credit to he attached to the oral testimony given in open court by the witnesses called in its support. The court below has found that these witnesses testified truthfully, and such being the ease this court accepts its finding. On this record it cannot be said that their testimony was untruthful, and should be rejected, even if in a given case facts might appear authorizing such action by this court.
The fact that the agreement (to hold the real estate as security) was not reduced to writing does not render it invalid. 27 Corpus Juris, 324.
Agreements creating equitable interests in property, when established, are recognized and enforced in Massachusetts, where this contract was made. Westall v. Wood, 212 Mass. 540, 99 N. E. 325; Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, and eases there cited. See 37 Corpus Juris, 308, 321, 322, 326.
By the agreement, made while Sproul was solvent and some seven years prior to the filing of the petition, the ward’s estate acquired an equitable interest or lien in the real estate and its proceeds, and, as the rights of the ward’s estate therein arose at the time the agreement was made, the payment and receipt of the proceeds in part satisfaction of the loan did not constitute an unlawful preference or transfer, though made within four months of the filing of the.petition. It was not an agreement or promise to give security in the future, but was for a present right, and by the payment and receipt of the proceeds, before the filing of tbe petition, the ward’s estate acquired the legal title thereto. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771, 772; Petition of Post (C. C. A.) 17 F.(2d) 555.. The trustee acquired no rights in the real estate or its proceeds by virtue of section 47a, cl. 2, of the Bankruptcy Act of 1898, as amended in 1910 (11 USCA § 75); for such rights as are conferred upon him by that section arise as of the date of the filing of the petition. At that time the bankrupt, having previously sold the real estate and paid the proceeds into the ward’s estate, had no right, title, or interest in the real estate or its proceeds, and no creditor had acquired rights therein by attachment or otherwise to which the trustee could succeed. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771; In re Snelling (D. C.) 202 F. 259; same ease on appeal Clark v. Snelling (C. C. A.) 205 F. 240; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275; Fairbanks v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Martin v. Commercial Nat. Bank, 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441; 4 Remington on Bankruptcy, pp. 271, 272, 284, 286, 296, 303.
The transfer of the insurance policy, payable to tbe wife, to secure the repayment of the $1,000 borrowed from a friend, the policy having no cash surrender value then or afterwards, was not a preference. It in no way reduced the assets of the bankrupt’s estate available to creditors. In re Simmons & Griffin (C. C. A.) 255 F. 521; Remington on Bankruptcy, §§ 1243, 1247, 1653. Neither do we regard the payment into the ward’s estate of the $1,000 borrowed on the policy as creating a preference. The money was borrowed on the understanding that it was to be used to repay the ward’s estate; it was on this understanding that the wife transferred her interest in the policy to secure the loan, and which made the loan possible. The bankrupt could not lawfully use the money for any other purpose and he never attempted to. It did not increase his assets available to creditors generally. The transaction, though different in form, was in substance and effect the same as though the friend had paid the $1,000 directly into the ward’s estate. It is not claimed, if the transaction had taken this form, that the payment would have been a preference.
The decree of the District Court is affirmed, with costs to the appellee Packer, guardian.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
James Edward WINGO, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 13187.
United States Court of Appeals Sixth Circuit.
May 31, 1957.
James Rutherford, Nashville, Tenn., for appellant.
Fred Elledge, Jr., and James R. Tuck, Nashville, Tenn., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding.
The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836.
The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_5_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Milton LASHER, Appellant, v. Raymond P. SHAFER et al.
No. 71-1334.
United States Court of Appeals, Third Circuit.
Argued March 21, 1972.
Decided May 11, 1972.
John R. Cook, Pittsburgh, Pa., for appellant.
J. Justin Blewitt, Jr., Asst. Deputy Atty. Gen., Justice Dept., Harrisburg, Pa. (J. Shane Creamer, Atty. Gen., Com. of Pa., J. Sherman McLaughlin, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellees.
Before ADAMS, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Appellant’s complaint asserts federal jurisdiction under 28 U.S.C. § 1343. The district court granted the motion of the defendants-appellees to dismiss for lack of federal jurisdiction. This appeal followed. The allegations of the complaint, which in this posture of the case must be taken as true, are as follows: Appellant is a technician employee of the Pennsylvania Air National Guard, and as a requirement of that employment he is a member of the Pennsylvania Air National Guard, 112th Fighter Group. He became a member of and later the first President of the Pittsburgh chapter of the Association of Civilian Technicians, Inc. (hereinafter ACT). ACT is a national organization whose stated purpose is the representation of the National Guard’s civilian employees, technicians, in matters pertaining to their welfare and security on both a local and a national level. In January of 1968 there was pending in the Congress of the United States certain legislation which would amend 32 U.S.C. § 709 in a manner which would improve the benefits of technician employees of the Air National Guard by making them eligible for a federal pension pursuant to the Federal Civil Service Retirement Laws, 5 U.S.C. § 8331 et seq. Technicians at the Air National Guard base in Pittsburgh resolved to send four members of the local ACT chapter to Washington, D.C. to make known to Congress their support of the bill. The defendant Shafer in 1968 was Governor of the Commonwealth and in that capacity in charge of the Pennsylvania Air National Guard. Defendant Snyder in 1968 was, and presently is, Adjutant General of the Commonwealth of Pennsylvania having under his command the Pennsylvania Air National Guard. Defendants Phillipy, a Brigadier General, Bollen, a Colonel, Walters, Duke, and Prave, Lieutenant Colonels, are all Air National Guard officers in the chain of command which supervises the 112th Fighter Group. Phillipy, Bollen, Prave and Duke are also civilian technician employees of the Air National Guard, holding supervisory positions over appellant’s technician employment. Beginning on January 28, 1968 the defendants took various steps designed to discourage appellant and others from associating with ACT, from associating in Washington with other ACT chapters in making known to Congress the views of ACT members on the pending bill, and from approaching the seat of Government on behalf of the members of the Pittsburgh ACT chapter. The defendants resorted to threats of loss of employment, proclamations of untruths, and promises of promotion for those who would disassociate from ACT. In November, 1968 two of the defendants without cause charged appellant with unsatisfactory work performance and punished him by reducing him in his technician rank and pay because of his continued association with and activities on behalf of ACT. The defendants Snyder and Shafer refused to allow a hearing on the foregoing charges, thus leaving appellant with no redress for the illegal, arbitrary and capricious deprivation of his rights.
The foregoing factual assertions are alleged to be violations of 42 U.S.C. § 1983 and § 1985. The defendants, for whom the Attorney General of Pennsylvania appeared, moved pursuant to Fed. R.Civ.P. 12 to dismiss the appeal on the ground that 28 U.S.C. § 1343 did not confer federal jurisdiction since the complaint alleged no violation of 42 U. S.C. § 1983 and § 1985. They contended that assuming the truth of the allegations they were at all times acting under color of federal rather than state law. The district court dismissed because “ . . . the acts complained of . were performed by the defendants, not under color of state law, but in the performance of duties assigned by federal, law and regulations. . . . ” We reverse.
Appellees acknowledge that the Pennsylvania Air National Guard is a part of the Commonwealth militia formed pursuant to Article 3, § 16 of the Pennsylvania Constitution, P.S. They acknowledge, as well, that Governor Shafer was at the time of the acts complained of, commander-in-chief of the military forces of the Commonwealth. They acknowledge that the Pennsylvania Air National Guard had not, at the time of the acts complained of, been called into the service of the United States. They contend, however, that appellant’s civilian employee status as well as the authority of his supervisors in that status was entirely governed by federal law. Chapter 7 of Title 32 U.S.C. sets forth the authority of the Secretary of the Army and the Secretary of the Air Force to buy, and upon requisition of the governor of any state, to issue to the Army National Guard and Air National Guard of that state, the supplies necessary to equip its Army or Air National Guard for field duty. 32 U.S.C. § 702(a). No property may be so issued unless the state makes provision, satisfactory to the Secretary, for its protection and care. 32 U.S.C. § 702(d). The governor must appoint a commissioned officer of the state’s National Guard as a fiscal officer who must give bond to the Secretary for the safekeeping and proper disposition of federal property issued to the state’s National Guard. 32 U.S.C. § 708. The appellee’s principal reliance is upon 32 U.S.C. § 709, which in early 1968 in relevant part provided :
“(a) . ' . . Under such regulations as the Secretary of the Air Force may prescribe, funds allotted by him for the Air National Guard may be spent for the compensation of competent persons to care for material, armament, and equipment of the Air National Guard. A caretaker employed under this subsection may also perform clerical duties incidental to his employment and other duties that do not interfere with the performance of his duties as caretaker.
(b) Enlisted members of the National Guard and civilians may be employed as caretakers under this section. However, if a unit has more than one caretaker, one of them must be an enlisted member. Compensation under this section is in addition to compensation otherwise provided for a member of the National Guard
* *
(e) Funds appropriated by Congress for the National Guard are in addition to funds appropriated by the several States . . . for the National Guard, and are available for the hire of caretakers and clerks
(f) The Secretary concerned shall fix the salaries of clerks and caretakers authorized to be employed under this section, and shall designate the person to employ them. . . . ”
The Secretary has promulgated comprehensive regulations, comprising Chapter 1, Air National Guard Regulations, for the technician caretaker program authorized by 32 U.S.C. § 709. On the basis of that statute, and the regulations, appellees contend that the acts complained of were all performed under color of federal law.
Appellees’ argument focuses on the employment status of the appellant. It is true that his employment was authorized by a federal statute. His status, however, is not relevant for purposes of the applicability of 42 U.S.C. §§ 1983 and 1985. Appellant is protected by the Civil Rights Act because he is a person within the jurisdiction of the United States. Interference with his status as a “federal” employee, if he be such, will provide a measure of his injury. But that status does not inform us whether those injuring him acted under color of state or federal law.
Some of the appellees were in 1968 both officers in the Pennsylvania Air National Guard and caretakers employed pursuant to 32 U.S.C. § 709. But § 709 contemplates their employment in the care of federal material, armament and equipment for which the Commonwealth is accountable. It does not authorize discipline of Guard members for the exercise of the first amendment rights of association and petition to Congress. We do not see how the acts alleged in the complaint, if they occurred, were in any way related to the care of the entrusted federal property. The acts complained of, if they took place, were done in the capacity of member or employee of the Commonwealth militia, and in pursuit of that militia’s perceived interests. Those Commonwealth appellees who are not civilian caretakers, but are joined solely as Air National Guard officers, are an a fortiori case.
The status of the appellee caretakers, as of 1968, was the same as that of the Maryland caretakers discussed in Maryland for use of Levin v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965). In that case wrongful death actions were brought against the United States under the Federal Tort Claims Act. Decedents were passengers in an airliner with which a Maryland Air National Guard jet trainer collided. The pilot of the jet trainer, admittedly negligent, was an officer in the Maryland Air National Guard and a § 709 civilian caretaker. In a case brought in the District of Columbia, the District of Columbia Circuit held that the United States was liable. United States v. Maryland for use of Meyer, 116 U.S.App.D.C. 259, 322 F.2d 1009 (1963). In a case on behalf of a different decedent brought in the Western District of Pennsylvania, this Circuit held that the United States was not liable because the pilot was an employee of the State of Maryland. Maryland for use of Levin v. United States, 329 F.2d 722, 729 (3d Cir. 1964). The judgment of this circuit was affirmed. Justice Harlan reviewed the history of the caretaker legislation and said:
“In sum, we conclude that the congressional purpose in authorizing the employment by state authorities of civilian caretakers, the administrative practice of the Defense Department in treating caretakers as state employees, the consistent congressional recognition of that status, and the like supervision exercised by the States over both military and civilian personnel of the National Guard, unmistakably lead in combination to the view that civilian as well as military personnel of the Guard are to be treated for the purposes of the Tort Claims Act as employees of the States and not of the Federal Government.” 381 U.S. at 52-53, 85 S.Ct. at 1300.
It is possible to draw a distinction between the Federal Tort Claims Act and the Civil Rights Acts, and thereby to distinguish as authorities for this case both Justice Harlan’s opinion and the opinion of Judge Smith for this court. But the reasoning of both opinions is directly applicable. They point out that while federal assistance is afforded to the state militia by loan of equipment and by funding, the militia remains a state organization. The caretaker program merely assists the states in carrying out their state obligation of maintaining, preserving, and accounting for the loaned equipment. Thus the district court erred in holding that the complaint does not allege action under color of state law. We express no opinion as to the effect in another case under either the Civil Rights Acts or the Federal Tort Claims Act, of the 1968 amendment to 32 U.S.C. § 709 set forth in note 4 supra.
Appellees urge that assuming the district court erred in dismissing under Fed.R.Civ.P. 12 for lack of jurisdiction, the judgment should nevertheless be affirmed on the ground that they are immune from damage suits. They rely on cases such as Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896). Clearly, however, a decision that each of the appellees is entitled to some form of executive immunity is one that cannot be made on the basis of the allegations in the complaint. There is no record before us from which we could conclude that any of the appellees, if they committed the • acts alleged, were acting in an area which is so vital to some overriding public interest that it must be immunized from the possibility of civil accountability in a court for violations of the Civil Rights Acts.
The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.
. “Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
“Conspiracy to interfere with civil rights — Preventing officer from performing duties
(1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer to the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;
Obstructing justice; intimidating party, witness, or juror
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
Depriving persons of rights or privileges
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States ; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”
. “National guard to be organized and maintained.
The citizens of this Commonwealth shall be armed, organized and disciplined for its defense when and in such manner as maybe directed by law. The General Assembly shall provide for maintaining the national guard by appropriations from the Treasury of the Commonwealth, and may exempt from State military service persons having conscientious scruples against bearing arms.”
. The Governor shall be commander-in-chief of the military forces of the Commonwealth, except when the same shall be called into the actual service of the United States. Pa.Const. Art. 4, § 7.
. The statute was substantially amended on August 13, 1968. Pub.L. No. 90-486, § 2(1), 82 Stat. 755. The amendment became effective January 1, 1969. Pub.L. No. 90-486, § 11. The amendment provides in part: “(d) [a] technician employed under subsection (a) is an employee of the . . . Department of the Air Force . . . and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard.” This amendment is inapplicable to the instant case.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis BUENA-LOPEZ, aka Jose Luis Buelna-Lopez, Defendant-Appellant.
No. 92-10326.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 3, 1993.
Decided March 9, 1993.
Morton Rivkind, Phoenix, AZ, for defendant-appellant.
Vincent Q. Kirby, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.
Before: ALARCON, RYMER and T.G. NELSON, Circuit Judges.
ALARCON, Circuit Judge:
Jose Luis Buelna-Lopez appeals from the judgment entered following his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(ii) and 846, and possession with intent to distribute cocaine, and aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(ii) and 18 U.S.C. § 2. Buelna-Lopez contends the evidence presented at trial was insufficient to establish his knowledge of the conspiracy. He further argues that the district court erred in denying his motion for a severance. We affirm.
I. FACTUAL BACKGROUND
This case arises out of a drug transaction that took place on August 22, 1991. The four people present at that transaction were Jose Luis Buelna-Lopez, Jesus Ozuna Rodarte, undercover Drug Enforcement Agent James Brown, and Francisco Roma-ro, a confidential informant for the Drug Enforcement Administration.
The Government’s evidence showed that Rodarte approached Romaro about selling narcotics to him. Romaro told him that he had a friend who would be interested in purchasing cocaine, and subsequently introduced Agent Brown to Rodarte. Rodarte sold Agent Brown one ounce of cocaine on August 9, 1991, and another ounce on August 19, 1991. At a meeting at Rodarte’s residence on August 21, 1991, Rodarte agreed to sell Agent Brown one kilogram of cocaine on August 22, 1991.
On August 22, Rodarte drove with Roma-ro to an apartment complex to pick up the drugs. When they arrived at. the apart1 ment complex, Romaro saw Buelna-Lopez looking out the window. Upon seeing Ro-maro and Rodarte, Buelna-Lopez exited the apartment carrying a blue bag and entered Romaro’s vehicle without a contemporaneous invitation. Once Buelna-Lopez had entered the vehicle, Rodarte told him, “[TJhere’s no problem — we’re going after the money.” Buelna-Lopez did not respond. Rodarte, Romaro, and Buelna-Lo-pez then drove to a K-mart parking lot to meet Agent Brown.
When they met Agent Brown at the parking lot, he stated “[Ljet’s see what it looks like.” Buelna-Lopez responded by pointing to the blue bag. Agent Brown opened the blue bag and found approximately' one kilogram of cocaine. Rodarte and Buelna-Lopez were arrested.
Rodarte testified that he was induced to sell cocaine to Agent Brown by Romaro. Buelna-Lopez’s theory of defense was that he had no knowledge of the drug transaction and was merely present when the cocaine was delivered to Agent Brown. On the first day of trial, Buelna-Lopez moved for severance on the ground that the defenses of mere presence and entrapment are mutually antagonistic. The district court denied the motion. Buelna-Lopez unsuccessfully renewed his motion for severance several times during the trial. The jury found Buelna-Lopez and Rodarte guilty of the charged offenses.
II. SUFFICIENCY OF EVIDENCE
Buelna-Lopez contends that the evidence was insufficient to sustain his conviction for conspiracy to distribute cocaine. In determining whether evidence produced at trial is sufficient to support a conviction, we must decide “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Skillman, 922 F.2d 1370, 1372 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in the original)), cert. dismissed, — U.S. -, 112 S.Ct. 353, 116 L.Ed.2d 275 (1991). The government is entitled to all reasonable inferences that might be drawn from the evidence. United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir.1986).
Buelna-Lopez does not dispute the existence of a conspiracy to distribute cocaine. Rather, he maintains that the evidence presented at trial was insufficient to demonstrate his knowledge of the conspiracy.
A conspiracy consists of an agreement to engage in criminal activity coupled with one or more overt acts in furtherance of the conspiracy. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). An agreement may be inferred from the defendant’s acts or other circumstantial evidence. Id. Once the existence of the conspiracy is demonstrated, evidence of even a slight connection with the conspiracy is sufficient to establish a defendant’s knowing participation in a conspiracy. United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991). Although a defendant’s mere proximity to the scene of a crime is insufficient to establish his knowing participation in a conspiracy, seemingly innocent acts, when viewed in their proper context, may support an inference of guilt. Id.
The evidence presented at trial was sufficient to demonstrate Buelna-Lopez’s knowing participation in the conspiracy. Romaro testified that he thought he observed someone resembling Buelna-Lopez at Rodarte’s apartment on the morning of August 22, 1991. Agent Brown testified that Buelna-Lopez fit the description Romaro gave to him earlier that morning of a man whom Romaro saw at Rodarte’s residence and believed to be the source of the cocaine. Agent Brown also testified that Rodarte told him that because he and his source had become frightened after observing some suspicious vehicles near Rodarte's residence, they moved the cocaine from Ro-darte’s residence to its original storage place. Rodarte told Agent Brown that a dealer named “Juan” agreed to supply him with a kilogram of cocaine. Rodarte reported that he was instructed by Juan to pick up the narcotics at an apartment complex. Romaro testified that when he and Rodarte arrived at the designated apartment complex, they observed Buelna-Lo-pez looking out the window. As described above, when Buelna-Lopez saw Romaro and Rodarte, he immediately left the apartment and entered Romaro’s van while Ro-maro and Rodarte remained in the vehicle. Romaro further testified that when Buel-na-Lopez entered the van with the blue bag, Rodarte told Buelna-Lopez that everything was fine and that they were “going after the money.” A rational jury could have inferred from the fact that Buelna-Lopez entered the vehicle without invitation that he had been previously instructed by someone to keep the cocaine in his presence until he received full payment.
Agent Brown testified that in response to his request to “see what it looks like,” Buelna-Lopez pointed to the bag which was concealed between the wall of the van and the rear passenger seat. The bag contained a kilogram of cocaine. The jury could have reasonably inferred that Buel-na-Lopez concealed the bag from plain view because he did not want to lose control of it without first obtaining the money. This evidence would support a finding that Buelna-Lopez was either the supplier of the cocaine, or a courier whose mission was to ensure that the drugs were not delivered to the purchaser until the money was received. Thus, when viewed as a whole and in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Buelna-Lopez knowingly participated in a conspiracy to distribute cocaine.
III. DENIAL OF SEVERANCE
Buelna-Lopez contends that the district court’s denial of his severance motion denied him due process. He offers three arguments in support of this contention. First, Buelna-Lopez argues that he was entitled to a severance because the defenses of entrapment and mere presence are mutually antagonistic. He also claims that he was deprived of a fair trial because Rodarte’s counsel acted as a “second prosecutor” in eliciting testimony from a government witness that was manifestly prejudicial to Buelna-Lopez’s defense. Third, he asserts that the district court’s refusal to grant a severance compromised his trial right to remain silent.
We review the denial of a severance motion for an abuse of discretion. United States v. Tootick, 952 F.2d 1078, 1080 (9th Cir.1991). A denial of a motion for a severance is rarely disturbed on appeal. United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). To establish abuse of discretion, the appellant must meet the very heavy burden of demonstrating that the joint trial “was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial.” United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982).
Rule 8(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged in the same indictment “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Fed. R.Crim.P. 8(b). Generally, defendants who are charged together should be jointly tried. Tootick, 952 F.2d at 1080. This is also the rule in conspiracy cases. Esca-lante, 637 F.2d at 1201. Joint trials promote efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Zafiro v. United States, — U.S.-,-, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209-210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). If, however, it “appears that a defendant or the government is prejudiced by a join-der,” the court may grant a severance. Fed.R.Crim.P. 14.
Buelna-Lopez contends that we must reverse the district court’s denial of his motion for a severance because the defenses of mere presence and entrapment are mutually antagonistic. In Zafiro, the Supreme Court expressly rejected the argument that severance is always required whenever defendants present mutually antagonistic defenses. Zafiro, — U.S. at -, 113 S.Ct. at 937-38. The Court explained that in determining whether a joint trial would cause sufficient prejudice to warrant a severance, the relevant inquiry is whether “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at-, 113 S.Ct. at 938. The Court recognized that the “risk of prejudice will vary with the facts in each case” and “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Id.
Buelna-Lopez relies on Tootick, 952 F.2d at 1078, to support his contention that the defenses of mere presence and entrapment are mutually antagonistic and that joinder prejudiced his defense. In Tootick, we recognized the potential for prejudice that exists when defendants present mutually antagonistic defenses:
Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their code-fendant. In order to zealously represent his client, each codefendant’s counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor.... Counsel can make and oppose motions that are favorable to their defendant, without objection by the government.
Id. at 1082.
Tootick, however, is factually distinguishable from the matter before this court. In Tootick, each defendant claimed innocence and directly accused the other of committing the crime charged. Id. at 1081. We held that the defenses were mutually antagonistic, because “the acquittal of one [codefendant] necessitate^] the conviction of the other.” Id. We concluded that severance was required under the facts in that case, because the “jury could not have been able to assess the guilt or innocence of the defendants on an individual and independent basis.” Id. at 1083.
Under the facts of this case, however, the jury could have assessed the guilt or innocence of the defendants on an individual and independent basis. The jury could have believed Rodarte’s testimony that he was induced to sell cocaine, and still have found Buelna-Lopez not guilty of conspiracy if it concluded that he was merely present during that narcotics transaction and had no knowledge of the contents of the blue bag.
Buelna-Lopez further argues that the testimony elicited against Buelna-Lopez by Rodarte’s counsel prejudiced his defense. Relying again on our decision in Tootick, Buelna-Lopez asserts that Rodarte’s counsel acted as a “second prosecutor” in eliciting the following testimony from Agent Brown:
Mr. Alvarez (Rodarte’s counsel): Agent Brown, talking about rip-offs, drug dealers are not inclined then to let their product go without making sure it’s not going to disappear, be stolen?
Agent Brown: From whose standpoint?
Mr. Alvarez: From the dealer’s standpoint.
Agent Brown: Usually no.
Mr. Alvarez: He wants to maintain control, make sure where it is, he’s got his hands on it?
Agent Brown: Yes, or with a representative of his organization whom he trusts.
Mr. Alvarez: Okay. Let me make sure I got this right. The person that got in the van with the blue bag with the cocaine was Mr. Lopez?
Agent Brown: To my knowledge, yes.
(emphasis added).
We disagree with Buelna-Lopez’s contention that this testimony prejudiced his defense. As noted previously, the Government presented evidence in its case-in-chief against Buelna-Lopez from which a reasonable juror could have inferred that Buelna-Lopez was either the supplier of the cocaine, or the courier sent along to ensure that the drugs were not delivered until the money was paid. Because the evidence concerning Agent Brown’s description of a courier’s role in a drug transaction, and the repetition of his earlier testimony regarding Buelna-Lopez’s exercise of dominion over the blue bag and its contents, had already been elicited in the Government’s case-in-chief against Buelna-Lopez, Agent Brown’s testimony was cumulative. This cumulative testimony was not unduly prejudicial to Buelna-Lopez’s defense.
Contrary to Buelna-Lopez’s contention, Rodarte’s counsel did not act as a second prosecutor. Throughout most of the trial, Rodarte’s counsel made no effort to implicate Buelna-Lopez in the conspiracy. Ro-darte testified that Buelna-Lopez was not the source of the cocaine, and that he had not seen Buelna-Lopez ever view the contents of the blue bag. Rodarte’s counsel did not suggest to the jury that it was necessary to find Buelna-Lopez guilty in order to acquit his client. Rather, he argued to the jury that they should find that his client was entrapped, without regard to whether the jury believed that Buelna-Lo-pez was guilty. During closing argument, Rodarte’s counsel stated to the jury:
If you believe Mr. Lopez was the courier, the person who had custody of that cocaine, that he’s the person that Juan sent to meet with the agents, that’s fine. But as to Mr. Rodarte, the issue is did a government agent pressure him, convince him to become involved in a drug deal with the informant’s partner when Mr. Rodarte did not want to do that but finally agreed to do it after the agent pushed and pushed and finally pushed Mr. Rodarte to the point where he agreed to do it.
The district court instructed the jury to consider the evidence against each defendant separately and that the verdict of one defendant should not control the verdict of the other. This admonition, read to the jury shortly after Agent Brown’s rebuttal testimony, reduced the risk of any prejudice that may have flowed from Agent Brown’s testimony. See Zafiro, — U.S. at -, 113 S.Ct. at 939 (instruction to jury to give separate consideration to each individual defendant and to the evidence against them was sufficient to cure any prejudice resulting from district court’s denial of severance motion). Therefore, we hold that the testimony elicited by Rodarte’s counsel against Buelna-Lopez was an “isolated attack[ ]” which did not create the compelling prejudice necessary to require a severance. United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir.1989).
Buelna-Lopez further asserts that the denial of his motion for a severance compromised his trial right to remain silent in violation of the rule announced in Zafiro. See id. — U.S. at-, 113 S.Ct. at 938 (severance only required where “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants”). He argues that because Ro-darte’s counsel cross-examined Agent Brown concerning the involvement of drug couriers in protecting a supplier’s product, Buelna-Lopez was faced with the choice of taking the stand to exonerate himself, or exercising his right to remain silent and risking conviction. He asserts that he would not have been faced with this dilemma had the district court granted a severance, because had Buelna-Lopez been tried separately, Rodarte’s counsel would not have been able to cross-examine Agent Brown in that proceeding. This contention is without merit. Buelna-Lopez chose not to take the stand notwithstanding Agent Brown’s testimony. The jury was instructed that the defendant had the right to remain silent, and that it was not to draw any inferences from the fact that Buelna-Lopez did not testify. As a result, Buelna-Lopez cannot complain that his right to remain silent was compromised by the joint trial.
“[I]t is well settled that defendants are not entitled to severance merely because they have a better chance of acquittal in separate trials.” Id. To demonstrate that the district court abused its discretion in denying a severance, an appellant must show “that the magnitude of the prejudice denied him a fair trial.” United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983). Because the evidence previously adduced by the prosecution in its case-in-chief against Buelna-Lopez was sufficient to support an inference that Buelna-Lopez acted as a courier for a cocaine dealer, Agent Brown’s testimony in response to Rodarte’s counsel’s question was cumulative. Buelna-Lopez has failed to demonstrate that the introduction of this cumulative evidence against him by his co-defendant’s attorney manifestly prejudiced his right to a fair trial. Therefore, we hold that the district court did not abuse its discretion in denying the motion for a severance.
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_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.
UNITED STATES v. PREECE.
No. 1381.
Circuit Court of Appeals, Tenth Circuit.
Oct. 6, 1936.
Randolph C. Shaw, Sp. Asst, to the Atty. Gen. (Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., and Dan B. Shields, U. S. Atty., of Salt Lake City, Utah, on the brief), for the United States.
Clarence Baird, of Salt Lake City, Utah (Joseph G. Jeppson and Geo. A. Faust, both of Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
BRATTON, Circuit Judge.
This is an action to recover automatic insurance benefits. Plaintiff enlisted in the military service May 5, 1917, and was discharged September 22, 1917. He alleged that he became totally and permanently disabled during service; a jury returned a verdict in his favor; judgment was entered thereon, and the government appealed. Three contentions are advanced for reversal: (1) That all subsisting provisions for claims for automatic insurance were repealed by section 17 of the Economy Act of 1933 (38 U.S.C.A. §§ 717, 718); (2) that the suit was not filed within the time prescribed by law; and (3) that there is an absence of substantial evidence to establish total and permanent disability during service. Believing that the second question is decisive and eliminates all necessity of discussing the others, we proceed to its consideration.
Article 4 of the War Risk Insurance Act of 1917 authorized the issuance of insurance to commissioned officers, enlisted men, and other persons named therein. The relevant part of section 401 (40 Stat. 409) provides: “That such insurance must be applied for within one hundred and twenty days after enlistment or after entrance into or employment in the active service and before discharge or resignation, except that those persons who are in the active war service at the time of the publication of the terms and conditions of such contract of insurance may apply at any time within one hundred and twenty days thereafter and while in such service. Any person in the active service on or after the sixth day of April, nineteen hundred and seventeen, who, while in such service and before the expiration of one hundred and twenty days from and after such publication, becomes or has become totally and permanently disabled or dies, or has died, without having applied for insurance, shall be deemed to have applied for and to have been granted insurance, payable to such person during his life in monthly installments of $25 each.” That provision was amended by section 19 of the act of June 25, 1918 , but the amendment has no bearing here. The act plainly made an automatic award of insurance, and a person who became totally and permanently disabled while in the active military service between April 6th and the date on which the statute became effective is clearly within its terms. Plaintiff invokes its provisions, and we shall assume, without deciding, that it has not been repealed, but is still in effect.
It is settled to the point of being axiomatic that the United States can be subjected to suit only with its consent; that such consent may be granted with attached conditions or restrictions as to time and place; and that the courts are not free to extend the liability to suit beyond the plain language of the grant. Price v. United States, 174 U.S. 373, 19 S.Ct. 765, 43 L.Ed. 1011; Reid v. United States, 211 U.S. 529, 29 S.Ct. 171, 53 L.Ed. 313; Illinois Cent. R. Co. v. Public Utilities Commission, 245 U.S. 493, 38 S.Ct. 170, 62 L.Ed. 425; United States v. Alberty (C.C.A.) 63 F.(2d) 965.
It was provided in section 405 of the War Risk Insurance Act (40 Stat. 410) that in the event of a disagreement respecting a claim under a contract of insurance, suit could be brought against the United States in the District Court of the District in which the beneficiaries or any one of them resided. The act thus granted consent to be sued and fixed the place at which the right should be exercised, but it was silent as to time; and the first three amendments did not relate to that question. In the absence of a federal statute, the courts applied the statute of limitations of the state in which the suit was filed. Stanley v. United States (D.C.) 23 F.(2d) 870; Jackson v. United States (D.C.) 24 F.(2d) 981 (reversed on other grounds (C.C.A.) 34 F. (2d) 241, 73 A.L.R. 316; Id., 281 U.S. 344, 50 S.Ct. 294, 74 L.Ed. 891); United States v. Sligh (C.C.A.) 24 F.(2d) 636 (judgment vacated because act of May 29, 1928, had become effective and applied. Sligh v. U. S., 277 U.S. 582, 48 S.Ct. 600, 72 L.Ed. 998). The act of May 29, 1928 added a provision that suit should not be allowed under the section unless it be brought within six years after the right of action accrued or within one year from the effective date of the act, whichever is the later date; that the right of action should be deemed to have accrued on the happening of the contingency on which the claim is founded; and that in computing the time the period intervening between the filing of the claim in the Bureau and its rejection should be excluded. That was the initial federal statute fixing the time within which such a suit must be instituted, and it' applied to all kinds of war risk insurance. Then came the act of July 3, 1930. Section 4 (38 U.S.C.A. § 445) re-enacted the provision authorizing suits against the United States and provided that no suit on yearly renewable term insurance should be allowed unless brought within six years alter the cause of action accrued or within one year after the date on which the act was approved, whichever is later; and that no suit should be allowed on converted insurance unless brought within six years after the cause of action accrued. Like provision was made for the exclusion of the time intermediate the filing of the claim and its rejection. It will be noted that in departure from the earlier statute the provision is textually confined to yearly renewable term insurance and converted insurance. Automatic insurance is neither renewable term insurance nor converted insurance. It cannot become effective unless the soldier dies or becomes totally and permanently disabled. In either event, it is a matured claim at the time it is issued; and it cannot be renewed or converted. It must be presumed that the Congress had these distinguishing attributes in mind at the time the statute was enacted. The material change in language can be given no other rational effect than a considered legislative intent to confine the newly fixed time to yearly renewable term insurance and converted insurance and to exclude all other kinds. A contrary conclusion would do violence to recognized rules of statutory construction. Accordingly, automatic insurance does not come within the extended period provided by that act.
Decision of this case does not present need for exploration as to whether the act of 1928 was thus repealed in respect to automatic insurance or by some legerdemain remained intact, because the result is the same in either event. The right of action accrued in 1917. If is alleged in the complaint that the claim was presented to the Bureau in May, 1931; that it was rejected in July, 1931; that the period elapsing between the filing and the denial exceeded fourteen months; and that a disagreement has existed since July, 1932. There is a manifest conflict in the allegations as to whether the claim was rejected in 1931 or in 1932. No proof was offered to clarify the conflict, but it was stipulated that there was no question as to a disagreement, and we are persuaded that rejection occurred in the latter year. The suit was filed in August, 1932. If the statute was not repealed, the suit came too late because it was instituted more than six years after the right of action accrued and more than one year after the date on which the act was approved, excluding the period during which the claim pended before the Bureau. If the statute was repealed, the domestic law of the state applies, and it provides that an action on contract shall be commenced within six years after the right of action accrued. Section 104-2-22, Revised Statutes of Utah 1933. Excluding the period during which the claim awaited action in the Bureau, the suit was begun long after the permitted time expired. In either circumstance, plaintiff waited too long to institute the suit and that extinguished the remedy. Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128; Lynch v. United States (C.C.A.) 80 F.(2d) 418; United States v. Valndza (C.C.A.) 81 F.(2d) 615; Miller v. United States (D.C.) 57 F.(2d) 889; Henry v. United States (D.C.) 15 F.Supp. 651.
The judgment is reversed, and the cause remanded.
40 Stat. 398, 409, § 400 et seq.
40 Stat. 614.
Act May 20, 1918, 40 Stat. 555. Act June 7, 1924, 43 Stat. 607. Act March 4, 1925, 43 Stat. 1302.
45 Stat. 961, § 1.
46 Stat. 991.
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:
|
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.
UNITED STATES v. SANFORD et al.
No. 75-1867.
Decided October 12, 1976
Per Curiam.
Respondents were indicted for illegal game hunting in Yellowstone National Park. A jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The Government’s appeal pursuant to the Criminal Appeals Act, 18 U. S. C. § 3731, was dismissed by the Court of Appeals because that court thought retrial was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Government petitioned for certiorari, and we vacated the judgment of the Court of Appeals and remanded for further consideration in the light of our intervening decision in Serfass v. United States, 420 U. S. 377 (1975). 421 U. S. 996 (1975).
On remand, the Court of Appeals, considering the trilogy of Serfass, supra, United States v. Wilson, 420 U. S. 332 (1975), and United States v. Jenkins, 420 U. S. 358 (1975), adhered to its prior determination. The Government now seeks certiorari from that ruling.
The reasoning of the Court of Appeals is best summarized by this language from its opinion:
“Here appellees have undergone trial. There is no question but that jeopardy has attached. That being so, and since the proceedings in the district court have ended in appellees’ favor and the consequences of a reversal in favor of the Government would be that appellees must be tried again, we conclude that they would, on retrial, be placed twice in jeopardy.” 536 F. 2d 871, 872 (CA9 1976).
We agree with the Court of Appeals that jeopardy attached at the time of the empaneling of the jury for the first trial of respondents. But we do not agree with that court’s conclusion that by reason of the sequence of events in the District Court the Government would be barred by the Double Jeopardy Clause from retrying respondents. The trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story’s opinion for this Court in United States v. Perez, 9 Wheat. 579, 580 (1824):
“We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
The Government’s right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy is generally governed by the test laid down in Perez, supra. The situation of a hung jury presented here is precisely the situation that was presented in Perez, supra, and therefore the Double Jeopardy Clause does not bar retrial of these respondents on the indictment which had been returned against them.
The District Court’s dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun. This case is, therefore, governed by United States v. Serfass, supra, in which we held that a pretrial order of the District Court dismissing an indictment charging refusal to submit to induction into the Armed Torces was appealable under 18 U. S. C. § 3731. The dismissal in this case, like that in Serfass, was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend. Since in such cases a trial following the Government’s successful appeal of a dismissal is not barred by double jeopardy, an appeal from the dismissal is authorized by 18 U. S. C. § 3731.
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Me. Justice Brennan and Mr. Justice Marshall dissent from summary reversal. They would set the case for oral argument.
The Criminal Appeals Act provides in pertinent part:
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
If the mistrial is declared at the behest of the defendant, the manifest necessity test does not apply. See United States v. Dinitz, 424 U. S. 600 (1976).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Giacomo REINA, Appellant.
No. 169, Docket 25644.
United States Court of Appeals Second Circuit.
Argued Dec. 9, 1959.
Decided Dec. 30, 1959.
Allen S. Stim, New York City, for appellant, Menahem Stim, New York City, of counsel.
S. Hazard Gillespie, Jr., U. S. Atty., New York City, for appellee, Joseph DeFranco, Asst. U. S. Atty., New York City, Daniel P. Hollman, Asst. U. S. Atty., Brooklyn, N. Y., George I. Gordon, Asst. U. S. Atty., New York City, of counsel.
Before SWAN and FRIENDLY, Circuit Judges, and HERLANDS, District Judge.
PER CURIAM.
Pursuant to 18 U.S.C.A. § 401(3) appellant was convicted of criminal contempt of court and was sentenced to two years imprisonment for refusing to answer certain questions before a federal grand jury inquiring into alleged violations of the narcotics laws, after he had been granted immunity under 18 U.S. C.A. § 1406 and had been ordered by the court to answer the questions. Judge Dawson’s well reasoned opinion is reported in 170 F.Supp. 592.
Appellant attacks the constitutionality of § 1406. His principal argument is that the immunity granted under this statute will not protect him from state prosecutions. That a federal immunity statute need not do so was settled long ago in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. He says that the courts should re-examine the Murdock decision. But, obviously, such re-examination is not for this court to make.
At the time of his appearance before the grand jury appellant was serving a prison sentence for conspiracy to violate the narcotic laws. The grand jury sought to question him concerning this crime. Seizing upon certain expressions in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, which sustained the constitutionality of a federal immunity statute similar to § 1406, appellant makes the fantastic contention that § 1406 is unconstitutional as applied to him because it does not grant a “general amnesty” or “pardon” for his past offense. The error in this argument is that it attempts to convert a general discussion in the Brown v. Walker opinion, at page 601, of 161 U.S. at page 648 of 16 S.Ct. as to the power of Congress to pass acts of general amnesty into an independent principle of law, requiring appellant’s past offense to be pardoned. No authority is cited to support this extraordinary contention.
Additional points made by appellant have been considered but are so plainly without merit that they require no discussion.
Judgment affirmed.
. See also Knapp v. Schweitzer, 357 U.S. 371, 380, 78 S.Ct. 1302, 2 L.Ed.2d 1393; Tedesco v. United States, 6 Cir., 255 F. 2d 35; Corona v. United States, 6 Cir., 250 F.2d 578, certiorari denied 356 U.S. 954, 78 S.Ct. 921, 2 L.Ed.2d 847.
. His conviction was affirmed in United States v. Reina, 2 Cir., 242 F.2d 302, cer-tiorari denied 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427.
. For decisions rejecting the contention, see People ex rel. Hunt v. Dane, 132 App. Div. 406, 116 N.Y.S. 990, affirmed 196 N.Y. 520, 89 N.E. 1108; People v. Fine, 173 Misc. 1010, 19 N.Y.S.2d 275; People ex rel. Gross v. Sheriff, 277 App.Div. 546, 101. N.Y.S.2d 271, affirmed 302 N.Y. 173, 99 N.E.2d 763.
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_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
PROVIDENCE JOURNAL COMPANY, Plaintiff, Appellee, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants, Appellants. Raymond L. S. Patriarca, Defendant-In-Intervention-Appellant.
Nos. 79-1056, 79-1067.
United States Court of Appeals, First Circuit.
Argued May 7, 1979.
Decided July 27, 1979.
William M. Kunstler, New York City, and Harris L. Berson, Providence, R. I., with whom Paul J. DiMaio, Providence, R. I., was on brief, for intervenor-appellant.
Michael Jay Singer, Atty., Civ. Div., Appellate Staff, Dept, of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Paul F. Murray, U. S. Atty., Providence, R. I., Leonard Schaitman and Vincent M. Garvey, Attys., Civ. Div., Appellate Staff, Dept, of Justice, Washington, D. C., were on brief, for federal appellants.
Matthew F. Medeiros, Providence, R. I., with whom Joseph V. Cavanagh, Jr., Providence, R. I., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MURRAY, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
COFFIN, Chief Judge.
Between March of 1962 and July of 1965 defendant-appellant, the Federal Bureau of Investigation (FBI), conducted electronic surveillance of Raymond Patriarca’s business office. The surveillance violated the Fourth Amendment. FBI agents recorded conversations, and compiled logs and memoranda from the tapes before erasing them. The resulting 2000 documents, consisting of over 7000 pages of summaries of the conversations, are the subject of this litigation.
In November, 1976, plaintiff-appellee, the Providence Journal Co., wrote to the Attorney General asking for release of the documents under the Freedom of Information Act (FOIA). In June, 1977, the director of the FBI denied the request in its entirety, relying on three subsections of Exemption 7 of the FOIA. 5 U.S.C. § 552(b)(7)(A), (C), and (D). The Journal’s appeal to the Justice Department went unanswered for over 20 days, and in August of 1977, the Journal exercised its right to consider its administrative remedies exhausted and to file this action in the district of Rhode Island. 5 U.S.C. § 552(a)(6)(A)(ii) and (C). Subsequently the Attorney General affirmed the FBI’s decision, but relied on only Exemption 7(C).
The district court issued a preliminary decision in which, inter alia, it granted Patriarca’s motion to intervene; and ruled that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2520, is a specific statutory exemption under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3); but decided that Title III is inapplicable because it has no retroactive effect. 460 F.Supp. 762 (D.R.I.1978).
In its final decision the court divided the requested information into three categories:
“1) Matters relating to Mr. Patriarca’s private life, and the private lives of his family members who are still living, i. e. his health, as well as that of his family, personal and religious beliefs and the like.
“2) Dealings with public officials and public figures in matters which may be legal and/or illegal.
“3) The names and code names or numbers of FBI agents and informants.” 460 F.Supp. 778, 789 (D.R.I.1978).
Applying Exemption 7(C), the court balanced privacy interests against the public interest in disclosure. It held that categories (1) and (3) were protected, but that category (2) was not. The district court refused to stay its judgment pending appeal, but we granted intervenor’s motion for a stay in order to maintain the status quo. 595 F.2d 889 (1st Cir. 1979).
We begin our analysis with Title III, Congress’ treatment of the problems created by electronic surveillance. We do so because of what we deem to be its compelling significance, not as a statutory exemption under Exemption 3, but in affecting the balancing process to determine whether, under Exemption 7(C), production of records would constitute an “unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(7)(C).
Title III “has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” S.Rep. 1097, 90th Cong., 2nd Sess., 1968 U.S.Code Cong. & Admin.News pp. 2112, 2153. Congress, concerned about the “tremendous scientific and technological developments” which “seriously jeopardized” the “privacy of communication” to the point where “[e]very spoken word . . . can be intercepted . . . and turned against the speaker”, id. at 2154, created a “comprehensive scheme” intended “strictly to limit the employment of those techniques.” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972). “[T]he protection of privacy was an overriding congressional concern.” Id. at 48, 92 S.Ct. at 2361. “The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression.” United States v. United States District Court, 407 U.S. 297, 302, 92 S.Ct. 2125, 2129, 32 L.Ed.2d 752 (1972).
The cornerstones of this comprehensive scheme are strict regulation of the use of electronic surveillance and strict regulation of the use to which information gathered through electronic surveillance may be put. Manufacture and possession of the necessary devices are controlled. 18 U.S.C. §§ 2512, 2513. Mandatory procedures are established for procuring authorization to conduct electronic surveillance'. 18 U.S.C. §§ 2512, 2513. Limits are placed on the use to which intercepted information, even if legally obtained, may be put. 18 U.S.C. §§ 2515, 2517. Congress must be informed of all use of electronic surveillance. 18 U.S.C. § 2519. Finally, Congress has set out criminal and civil penalties for violation of Title III. 18 U.S.C. §§ 2511(1), 2520.
Though Congress clearly sought to deter unwarranted invasions by denying the perpetrators the fruits of illegal surveillance, it did not stop at the limits of the exclusionary rule. Instead, it made Title III remedial. It forbade any disclosure of illegally intercepted information, made such disclosure criminal, and gave the victim of any illegal interception a civil cause of action without regard to the nature of the information intercepted, the occurrence of disclosure, or the sustaining of actual damages. Congress’ recognition of the victim’s privacy as an end in itself, Application of the United States, 413 F.Supp. 1321, 1332 (E.D.Pa.1976), recognizes that the invasion of privacy is not over when the interception occurs, but is compounded by disclosure. See Gelbard v. United States, supra, 408 U.S. at 51-52, 92 S.Ct. 2357. Thus “production of such records”, to use 7(C)’s language, is another offense to the victim, and is barred. Congress has, in the clearest way, thus decided that the privacy interest of a victim of illegal electronic surveillance is too great to permit any disclosure at all.
The focus of the parties and the district court was so exclusively centered, insofar as consideration of Title III was concerned, on whether it could fit within Exemption 3 that Title III lost all significance once retroactivity was decided. The very bifurcation of these proceedings may have contributed to this restricted focus, since Title III had been shunted off stage before analysis under Exemption 7(C) began. This, we feel, led to error. Though the standard of review normally may be abuse of discretion, under the peculiar circumstances of this case, we think the error was one of law, in according no weight to a deliberate policy statement of Congress relating to the precise circumstances we face here.
Exemption 7(C) permits an agency to withhold “matters that are ... investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . constitute an unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(7)(C). In order to properly balance an individual’s right to privacy against the public interest in disclosure, a court must interpret the phrase “unwarranted invasion of personal privacy”. Other legislation in which Congress sheds light on the meaning of the phrase should not be ignored. Statutes addressing the same subject should be read consistently. Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). A strict rule confining the relevance of other statutes in FOIA cases to Exemption 3 would work- against this basic tenet of statutory interpretation. There is no reason for us to think that what Congress in 1968 considered so unwarranted an invasion of privacy that its fruits should be kept secret would not still be so considered in 1974 when Congress created Exemption 7(C).
In short, Congress, by passing Title III, has already balanced the same kind of factors that must be balanced under Exemption 7(C). Congress had decided that the risk to privacy created by illegal electronic surveillance is too great to permit any disclosure of the fruits of such surveillance. Here the FBI has conceded that the surveillance was “in willful and flagrant violation of the Constitution and applicable Federal Law.” The FBI did not get a warrant or consent for the surveillance, and the breadth of the surveillance in terms of time and extent was unreasonable. 460 F.Supp. at 770 & n. 19. This intrusion could not be legal before or after Title III. In fact, this was exactly the kind of “insidious invasion of privacy” that Congress “singled out for special scrutiny and safeguards.” In re Lochiatto, 497 F.2d 803, 807 (1st Cir. 1974). Intrusions before 1968 were no less insidious than intrusions after 1968, and to the extent reasonable, the victims should be protected from disclosure after 1968' in accord with Congress’ stated policy. We hold that Congress’ deliberate balancing under Title III is controlling under Exemption 7(C) given the circumstances of this case.
We recognize that our holding is novel in that, as the district court’s survey found, no other court has exempted information under Exemption 7(C) or the closely related Exemption 6 “solely on the ground that the manner in which the information was obtained forbids release”, 460 F.Supp. at 786, instead of balancing on the basis of the actual contents of the requested material. One explanation may be that the earliest, formative cases were decided under Exemption 6 because it existed for eight years before Exemption 7(C) was enacted. Although the two exemptions protect the same interest, 120 Cong.Rec. 17033 (1974) (remarks of Sen. Hart), Exemption 6 concerns files which are likely to have been compiled with the knowledge and at least implied consent of the subjects. Secret investigations using controversial investigatory techniques are far more likely in connection with law enforcement activities, the subject of Exemption 7. Moreover, the circumstances of this case are unique and present a particularly compelling argument for considering the manner in which the miormation was obtained. Not only has Congress passed a statute addressing this precise problem, but this manner of obtaining information is particularly likely to collect the kinds of information people are entitled to keep private because electronic surveillance is designed to go forward in even the most intimate protected surroundings without the subjects having any knowledge that they are being observed. See 1968 U.S.Code Cong. & Admin.News, supra, at 2154. The distinction between focussing on the content of information and on the manner of obtaining it blurs when the very manner of obtaining information carries such a likelihood of discovering private facts.
“[Djisclosure, not secrecy, is the dominant objective of the [FOIA]”, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), and Congress has decried the news media’s underuse of the FOIA, see 460 F.Supp. at 790. But these concerns must give way to Congress’ specific protection of this narrow class of information. Our holding is not broad. It gives agencies no sweeping power to withhold information, and does not create a new, general exemption for illegally obtained information. We are concerned only with the “contents” of “wire” or “oral communications” “intercepted” before June 19, 1968, by means of an “electronic, mechanical, or other device”, 18 U.S.C. § 2510(8), (1), (2), (4), and (5), in violation of the Constitution or federal law. Moreover, we need not decide to what extent “aggrieved person[s]”, 18 U.S.C. § 2510(11), or a criminal prosecutor might have rights different from the third party which brought this suit. We decide only that the FBI may properly turn down this FOIA request under Exemption 7(C).
Reversed.
. Appellee has not appealed this conclusion, and we need not address it. Exemption 3 states that the FOIA “does not apply to matters that are specifically exempted from disclosure by statute provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).
. Our analysis spares us the task of deciding the retroactivity issue. We note, though, that the case on which the district court relied, United States v. American Radiator & Standard Sanitary Corp., 288 F.Supp. 701, 707 (W.D.Pa. 1968), and other cases in accord, Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 247, 250 (E.D.Pa.1968); People v. Daria, 38 A.D.2d 833, 329 N.Y.S.2d 647, 648 (1972), are different from this case in that the issue was whether to suppress information in a criminal proceeding, and the surveillance was legal before Title III.
. The district court qualified its holding as to category (3) by saying that appellee could renew its request for such information at a later time and by saying that persons now deceased have no protectible privacy interest. We need not address these issues.
. The Senate was aware of the Patriarca surveillance, and at least one Senator urged passage of Title III out of frustration that the surveillance could not be used against Patriarca in court. He contended that “with a proper showing of probable cause and close judicial supervision” surveillance could help convict Patriarca. 114 Cong.Rec. 12986 (1968) (remarks of Sen. Tydings).
. Title Ill’s policy of nondisclosure has even been held strong enough to overcome the Sixth Amendment’s policy of public access to criminal proceedings in certain circumstances. United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978).
. Indeed the same Senator who sponsored 7(C), Senator Hart, opposed Title III because he felt that it could not adequately protect personal privacy. 114 Cong.Rec. 14160-61 (1968).
. Exemption 6 permits an agency to withhold “matters that are . . personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(6).
. Some courts have gone beyond analysis of the contents of the requested material to consider the effect of a promise of confidentiality to an informant, but that factor has not been determinative. See 460 F.Supp. at 786. One court has said that illegality of collection of information does not determine the applicability of Exemption 7(C), but that court was answering an argument that because surveillance of Martin Luther King was illegal the information obtained should be released. Lesar v. Department of Justice, 455 F.Supp. 921, 924 (D.D. C.1978).
. Intervenor suggests that the appropriate narrowing principle is that disclosure should be prohibited when the requested material was obtained by a criminal search, in this case a burglary. Aside from the fact that the record before us does not reveal whether there was a breaking and entering, the Supreme Court has cast doubt on intervenor’s argument with Dalia v. United States,- U.S. -, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979), in which the Court held that covert entries to plant electronic bugging equipment can be legal if the surveillance is legal.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Fletcher Altman SMITH, and Marguerite Elizabeth Smith, Plaintiffs-Appellees, v. Don HEATH, Defendant, and Jack Rohtert, Defendant-Appellant.
No. 80-5415.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 28, 1982.
Decided Sept. 29, 1982.
Rehearing and Rehearing En Banc Denied Feb. 23, 1983.
Peter H. Curry, William Howard (argued), Nashville, Tenn., for defendant-appellant.
George C. Paine, II, Keith M. Lundin (argued), Daniel C. Kaufman, Waddey & Newport, Nashville, Tenn., for plaintiffs-appellees.
Before MARTIN, Circuit Judge, WEICK, Senior Circuit Judge, and HILLMAN, District Judge.
Honorable Douglas W. Hillman, District Judge, United States District Court for the Western District of Michigan, sitting by designation.
HILLMAN, District Judge.
Jack Rohtert, a homicide detective with the Nashville and Davidson County [Tennessee] Metropolitan Police, appeals a judgment against him in the amount of $39,-524.95 for willfully violating the constitutional rights of Fletcher Altman Smith [Smith] and Marguerite Elizabeth Smith [M. E. Smith]. (Although sharing the same last name, Smith and M. E. Smith are not related.)
On May 24, 1975, Smith committed a minor traffic offense in front of his motel in Nashville. Officer Don Heath, a co-defendant, followed Smith into the motel driveway where Smith parked his van and went into his motel apartment, closing the door behind him. This door to his apartment had a large sign on it marked “Private Keep Out.” Nevertheless, Heath pursued Smith and kicked that door open to force his way inside. M. E. Smith was sitting at the kitchen table knitting. Her granddaughter was asleep in the bedroom. Heath entered the kitchen with his gun drawn, and without explanation, walked through the kitchen to the bedroom which Smith had entered. Heath opened the bedroom door and fired repeatedly at Smith.
Predictably, Smith was gravely wounded by Heath’s attack. M. E. Smith called an ambulance. Other police officers soon arrived.
Meanwhile, Officer Rohtert drove to the motel after receiving a call on his car radio about the shooting incident and possible homicide. When he arrived, he found the door open with the other officers inside. By his own admission, he was the officer in charge of the investigation. He ordered M. E. Smith into a back room, telling her to stay there but neither inquiring as to her knowledge of the events or explaining their presence and actions. Then, he directed the other officers to seize evidence, not limiting their search in any way. With no apparent justification, Smith’s van was impounded and taken away. In the words of the district judge, “in an effort to find some evidence to mitigate the impact of those unconstitutional acts [Heath’s entry and shooting], the defendant Rohtert and his subordinates engaged in an unconstitutional orgy of unique proportions. They were not performing routine nor normal police procedures.” Although the police ransacked the apartment, no evidence of illegal acts or activity was uncovered.
No claim is made that Rohtert obtained permission to either enter or search the Smith apartment. Likewise he did not obtain a warrant.
After Smith had been transported to a hospital, Rohtert ordered an officer to take M. E. Smith to police headquarters to obtain a statement, while the other officers remained behind and. continued their search. She was kept at the station for over five hours. While at the station, she asked to leave, but was refused permission. No one told her that she was free to go if she wanted. She was given no Miranda warnings. Some friends came to speak with her, but she was not allowed to see them. A statement was taken from her, but no copy was given to her. She was not allowed to go to the bathroom unaccompanied. She was released between 6:00 a.m. and 7:00 a.m.
Since that time, she has been nervous and unable to sleep. At the time of the trial, she was still under the care of a medical doctor and taking tranquilizers for her nervous condition.
Smith survived the attack. He and M. E. Smith brought this action against Heath and Rohtert under 42 U.S.C. section 1983, alleging that these police officers had willfully violated their Fourth Amendment rights by conducting an illegal search and seizure of Smith’s apartment, and by making an illegal arrest and detention of M. E. Smith. Following a bench trial, the district judge found both defendants individually liable on the 1983 claims. However, only Rohtert appeals that decision.
Rohtert was ordered to compensate Smith as follows: compensatory damages of $5,000 for the unconstitutional search and seizure, $450 for three “lost” guns and punitive damages of $5,000, totalling $10,-450. In addition, Rohtert was ordered to pay M. E. Smith: compensatory damages of $5,000 for her unconstitutional arrest and detention, $5,000 for her ensuing nervous condition and punitive damages of $2,500, totalling $12,500. The district judge also assessed Rohtert’s portion of the attorney fees and costs at $16,574.95. In all, Rohtert was ordered to pay $39,524.95.
On appeal Rohtert alleges error in the findings of fact, the conclusions of law, and the awards of compensatory damages, punitive damages and attorney fees and costs.
I. LIABILITY
The first issue of this appeal is whether Rohtert violated the civil rights of Smith by searching his apartment and by his conduct towards M. E. Smith. The court will first address the issue of Rohtert’s liability to M. E. Smith (referred to in the record and by the district judge as “Grandma”).
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...” The requirement that searches and seizures be based on some objective justification, governs all seizures of the person, “including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968).” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Of course, not all contacts between police officers and citizens amount to seizures. The Supreme Court in United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870,1877, 64 L.Ed.2d 497 (1980) stated:
“. .. a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. ...
We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
The test, therefore, in determining whether a seizure has or has not occurred is under all the circumstances what a reasonable citizen, innocent of crime, would have thought. United States v. Beck, 598 F.2d 497 (9th Cir. 1979).
In a situation such as this, some relevant factors to consider are: (1) whether the officers gave the individual the option of accompanying them to the station; (2) whether the individual was specifically told he/she was not under arrest; and (3) whether the individual consented to go to the police station. See, e.g., Bridges v. United States, 392 A.2d 1053 (D.C.App. 1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979).
In bench trials, the scope of appellate review is limited to determining whether the findings made by the trial court are clearly erroneous. Fed.R.Civ.P. 52. The function of this court is not to decide the case de novo. We cannot substitute our judgment for that of the district judge merely because we might give the facts another construction, resolve the ambiguities differently or generally view the facts differently. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980), rehearing denied 633 F.2d 468 (6th Cir. 1980). The major rationale of this rule of law is that the trier of fact has the opportunity to view the witnesses, to observe their demeanor and to hear what was said in light of how it was said and in light of the totality of the proceedings. Lydle v. United States, 635 F.2d 763, 765, n. 1 (6th Cir. 1981).
Here, the district judge found from the evidence:
“He [Rohtert] caused the plaintiff Marguerite Betty Smith, Grandma, to be taken into custody.... Grandma was taken to the police station where she was detained for several hours to give a statement covering the events of the night.”
M. E. Smith was never told she was not under arrest. To the contrary, she was led to believe that she was. She was not allowed to see friends. She was not allowed to leave or to go to the bathroom unattended. Reasonable people in a similar situation could well conclude that they were not free to leave. The finding by the district judge that M. E. Smith had been unlawfully arrested and detained is amply supported by the record.
Turning to the issue of Rohtert’s liability to Smith for the entry into and search of his apartment and the seizure of evidence, the facts of this case also support the conclusion that these acts were unconstitutional.
The Fourth Amendment requires a warrant for the police to search an apartment. However, searches may be conducted under special circumstances without a warrant. Examples of such circumstances include when police are responding to an emergency; when they are in hot pursuit of a fleeing felon; when evidence is in the process of being destroyed; when evidence is about to be removed from the jurisdiction; when it is impracticable for the police to obtain a warrant; or, if incident to an arrest, when the search is confined to the immediate vicinity of the arrest. Vale v. Louisiana, 399 U.S. 30, 33-35, 90 S.Ct. 1969, 1971-72, 26 L.Ed.2d 409 (1970).
The United States Supreme Court recently dealt with very similar facts in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In Mincey, within ten minutes of a murder committed during a narcotics raid, homicide detectives arrived at the murder scene and began their investigation. No warrant was ever obtained. In their effort to gather evidence, they searched the entire apartment, opened drawers, pulled up sections of carpet and examined every item in the apartment during a four-day period. In concluding that a murder scene exception to the Fourth Amendment is inconsistent with the Fourth and Fourteenth Amendment, the Court, at 392-394, 98 S.Ct. at 2413-2414, stated:
“... [WJhen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.... And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities....
But a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation,’ Terry v. Ohio, 392 U.S., at 25-26 [88 S.Ct. at 1882], and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey’s apartment had been located before the investigating homicide officers arrived there and began their search.... ******
Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case ...”
This language compels a finding of liability in this appeal. All the persons in Smith’s apartment had been located before Rohtert arrived. The only victim of the attack was being taken for emergency hospital care. The attacker was known and presumably presented no further danger. As in Mincey, there was no indication that any special circumstance existed which would have allowed the warrantless entry into and the search and seizure of Smith’s apartment.
In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the United States Supreme Court held that a burning building presented an exigent circumstance. The firemen’s reentry into the burnt building a few hours later was allowable as a continuation of the first entry when necessitated by darkness, steam and smoke. But subsequent reentries were invalid, since these were conducted with neither valid warrants nor consent and were detached from the initial exigency and warrantless entry.
Tyler also supports the trial court’s finding of liability in this action. Since there was no initial exigency to allow the search, the police were required to obtain a warrant or consent. They obtained neither, thus rendering the search and seizure invalid.
Although Rohtert did not personally commit all the acts depriving appellees of their rights, he is nonetheless liable for the deprivation he caused. Rohtert personally participated in the search and, by his own admission, he was in charge of the investigation. In that capacity, he ordered the detention of M. E. Smith and did not limit the scope of the search of Smith’s apartment. When one officer with authority directs his subordinates to interfere with the civil rights of another, that officer is an active participant in the interference and thus can be held liable for the subordinates’ actions. This view is mandated by the language of the statute. 42 U.S.C. § 1983 reads in pertinent part:
“Every person who ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the person injured ...”
We agree with the dissent at page 232:
“Police supervisory officers cannot be held liable for failure to prevent misconduct by subordinate[s] absent a showing of direct responsibility for the improper action.”
Here, however, the district judge specifically found that Rohtert was directly responsible for and personally participated in the deprivation of the Smiths’ constitutional rights. He both subjected and caused the appellees to be subjected to the deprivation of their civil rights and is thus liable under section 1983. See, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570 (6th Cir. 1979); Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Maclin v. Paulson, 627 F.2d 83 (7th Cir. 1980); May v. Enomoto, 633 F.2d 164 (9th Cir. 1980); Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981). Cases involving claims against non-participating supervisory officials for failure in their supervisory and training functions are not applicable. Wilson v. Beebe, 612 F.2d 275 (6th Cir. 1980).
Even nonsupervisory officers who are present at the scene of a violation of another’s civil rights and who fail to stop the violation can be liable under section 1983. Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982); Smith v. Ross, 482 F.2d 33 (6th Cir. 1973); Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981); Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). Rohtert was present while the other officers unlawfully searched the apartment and thereby violated the Smiths’ rights.
The dissent terms it “almost unbelievable” that Rohtert should be found liable for an unlawful entry and search and seizure, when he did not order the presence of the other officers at the apartment. The district court found that Rohtert entered the apartment unlawfully. This view of the evidence is not clearly erroneous and is amply supported by the evidence. We agree with this finding. It makes no difference that other officers arrived before Rohtert and entered unlawfully. Rohtert is liable for his unlawful entry, which was not made lawful by the prior unlawful entry of the others.
Furthermore, although Rohtert might not have ordered the presence of the others, the evidence amply supports the finding of the district judge that Rohtert directed the other officers after he arrived. He admitted at the trial under oath that upon his arrival he was the officer in charge of the investigation. See, Supp. App., p. 34:
“Q And on the night in question, May 24th, 1975, is it not correct that you were a homicide officer, in the Detective Division, and you were in charge of the investigation at the Zip Smith Hotel?
A Yes, sir.”
The evidence further shows that Rohtert instructed and directed the identification officers, who did what Rohtert ordered. See, Supp. App., p. 35:
“Q Did you instruct them [the identification officers]? Officer Rohtert, did you instruct and direct officers of the ID Division to what you have called ... scene preservation?
A Yes, Sir.”
See also, Supp. App., pp. 36, 48, 70 and 71. Moreover, he admitted to personally searching the apartment. See, Supp. App., 6, 67. Rohtert entered unlawfully without a warrant, he personally searched the apartment, he directed others to unlawfully search and seize evidence, and he illegally arrested M. E. Smith. For these actions, Rohtert is liable. We do not hold him liable under respondeat superior, which does not apply in section 1983 actions. Wilson v. Beebe, 612 F.2d 275 (6th Cir. 1980); Hays v. Jefferson County, Kentucky, 668 F.2d 869 (6th Cir. 1982), rehearing denied 673 F.2d 152 (6th Cir. 1982). See also, Sims v. Adams, 537 F.2d 829 (5th Cir. 1976).
With respect to defendant’s claim of qualified immunity, the district judge made a specific finding that the officers involved knew their actions to be improper; that they were not performing routine or normal police procedure; that they had “ulterior” motives in undertaking a warrantless, unconstitutional search and that no probable cause existed for their conduct. The record supports these findings. Such conduct clearly violated constitutional rights of plaintiffs, which a reasonably prudent person would have known, and justifies the conclusion of the district judge that defendants were not entitled to a qualified or “good faith” immunity. Harlow v. Fitzgerald, - U.S. -, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
II. DAMAGES
The determination of the amount of damages to be awarded is left to the discretion and good judgment of the fact finder as guided by the facts of the particular case. Tullos v. Corley, 337 F.2d 884 (6th Cir. 1964). This concept has been specifically applied in section 1983 cases for both punitive and compensatory damages. The court in Busche v. Burkee, 649 F.2d 509, 520 (7th Cir.) cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), said it most concisely:
“As with compensatory damages, the award of punitive damages is within the discretion of the trial court.
The allowance of such damages inherently involves an evaluation of the nature of the conduct in question, the wisdom of some form of pecuniary punishment, and the advisability of a deterrent. Therefore, the infliction of such damages, and the amount thereof when inflicted, are of necessity within the discretion of the trier of fact.
Stolberg v. Members of the Board of Trustees for the State Colleges of Connecticut, 474 F.2d 485, 489 (2d Cir. 1973) (quoting Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir. 1970).”
See also, Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978) (“general principles of damages apply to a civil rights action”).
In Smith v. Manausa, 535 F.2d 353 (6th Cir. 1976), this court held that in bench trials, awards of compensatory and punitive damages are findings of fact which are governed by Fed.R.Civ.P. 52(a). This rule reads in pertinent part: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.”
Having set forth the appropriate standard of review, we now apply it to each damage award individually.
A. Compensatory Damages.
The basic purpose of a section 1983 damages award is to compensate persons for injuries caused by the deprivation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978) and the cases cited therein. In guiding lower courts as to which injuries are compensable, the Carey court at 264 states that emotional distress caused by a deprivation is compensable under section 1983.
The Seventh Circuit in Hostrop v. Bd. of Jr. College Dist. No. 515, 523 F.2d 569, 579-80 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), held that, although the amount of damages for the deprivation of an intangible constitutional right cannot be determined by reference to an objective standard, such as pecuniary loss, non-punitive damages may be awarded. These damages may be special and the trial court should consider the following factors in making its award: the nature of the constitutional deprivation, the magnitude of the mental distress and humiliation suffered by the plaintiff, and any other injury caused as a result of being deprived of federally protected rights.
In Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980), a case factually similar to the one presently before the court, the Seventh Circuit upheld awards of $12,500 in compensatory damages to a husband and wife, although they proved only $576 in lost wages. In that section 1983 action, the husband had been unlawfully arrested, the wife unlawfully detained, and their dwelling unlawfully searched with evidence unlawfully seized. The court rejected the argument that there was no proof of actual damages and pointed to “less quantifiable damages in the form of mental distress, humiliation, loss of reputation, and other general pain and suffering resulting from the arrest, detention, search and seizure, imprisonment, confinement to a mental institution, and prosecution of three criminal complaints.” Id. at 17.
The importance of taking into account these tangible factors is seen in another section 1983 case, Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979). In Baskin, the court reversed the district court’s damage award and, on remand, required that the district court award damages for humiliation and emotional distress.
In Vetters v. Berry, 575 F.2d 90 (6th Cir. 1978), this court upheld a jury award of $1,040 in compensatory damages and two awards of punitive damages for $25,000 and $10,000 in a section 1983 action. Plaintiff Vetters had been peacefully assembled, then was ordered to go home, assaulted and beaten, unlawfully searched, arrested and held in custody, and later unlawfully charged. In determining whether the awards were excessive, this court quoted Judge Robert Taylor in Gaston v. Gibson, 328 F.Supp. 3 (E.D.Tenn.1969). Gaston was a Civil Rights Act claim involving injuries inflicted on a 17-year-old college student during the course of an alleged arrest. Plaintiff Gaston’s medical bills were $736.60. In sustaining awards of $10,000 compensatory damages and $30,000 punitive damages, Judge Taylor stated:
“Each defendant’s main contention is that the verdict of $10,000.00 compensatory and $30,000.00 punitive damages is excessive and shows prejudice by the jury. There are several civil rights cases where verdicts were less than a total of $10,-000.00. However, in suits where punitive damages are proper, there have been larger verdicts. In Butts v. Curtis Publishing Company, 225 F.Supp. 916 (N.D. Ga., 1964), a verdict of $400,000.00 punitive was held proper in a libel and slander case. In Bucher v. Krause, 200 F.2d 576, 587 (C.A.7, 1953), $100,000.00 was held proper when a gunshot wound caused serious and permanent damage to plaintiff’s buttocks. In Reynolds v. Pegler, 223 F.2d 429 (C.A.2, 1955) $1.00 compensatory damages and $175,000.00 punitive damages in a libel and slander case were approved. In addition to obvious common law torts defendants committed, the entire procedure for handling juvenile offenders in Tennessee was disregarded. T.C.A. §§ 37-250, 37-251, 37-252. Even procedural rights given adult offenders were not observed. T.C.A. § 40-806. The conduct of defendants showed disregard for procedural safeguards which our Anglo-American system has established. This court is reluctant to invade the particular province of the jury in evaluating the value of civil rights. Collum v. Butler, 288 F.Supp. 918 (N.D.Ill.1968). The shocking conduct shown rebuts any inference of prejudice and passion in the jury’s verdict.
No formula exists to determine with precision compensatory damages. The amount is left to the sound discretion of the fact finder. Considering the evidence in the present case in the light most favorable to the plaintiffs, the awards of compensatory damages were well within the proofs.
B. Punitive Damages.
While compensatory damages, as the name reflects, are to compensate the plaintiff for injuries suffered, “[pjunitive damages have been held to be allowed on the basis of punishment of the wrongdoer, not so much on the nature and extent of the injury as on the ‘oppression of the party who does the injury.’ Johnson v. Husky Industries, Inc., 536 F.2d 645, 650 (6th Cir. 1976).” Vetters at 96.
The same factors discussed above are relevant in the determination of the punitive damages. Upon review, the facts herein recited support the fact finder’s conclusion and considered judgment that Rohtert’s actions were in fact willful thus justifying the awards of punitive damages. In all the cases cited herein, and in most others, punitive awards have been much higher than the compensatory awards. Here the punitive award was less. The district judge used considerable restraint in his determination of the punitive amount.
Rohtert maintains that he is entitled to the defense of good faith. The trial court, however, specifically found that he was not so entitled. We agree. The police were not performing routine or normal police procedures. Rohtert’s duty was to properly investigate the shooting. But he did far more than just investigate. He ordered others and participated himself in an unconstitutional search and seizure and caused an unconstitutional arrest. These facts are amply supported by the evidence in the record before the court.
In conclusion, the awards of both the compensatory and punitive damages are affirmed.
III. ATTORNEY FEES AND COSTS
By the language of 42 U.S.C. § 1988, Congress provided that an award of attorney fees to prevailing parties in actions brought pursuant to section 1983 is within the sound discretion of the district court. However, the court’s discretion is narrow. The prevailing party should “ordinarily recover an attorney’s fees unless special circumstances would render such an award unjust.” Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 633 (6th Cir. 1979), cert. denied, 447, U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980), citing the Senate Report No. 94-1011, reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5908. See, Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979) (“a prevailing plaintiff should receive fees almost as a matter of course.”). Cf., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968.)
Smith and M. E. Smith have prevailed in this action and are thus entitled to an award of attorney fees. No special circumstances exist in this case which would make the award of attorney fees unjust.
In Northcross at 642, to determine the amount of the award, “[w]e conclude[d] that an analytical approach, grounded in the number of hours expended on the case, will take into account all the relevant factors, and will lead to a reasonable result.” Here, the district judge, in a three-page detailed memorandum, set forth how the award was computed. He began by reviewing some of the practical and legal problems faced by the attorneys in preparing this case. He noted such things as the unpopularity of suits against police officers, the difficulty in getting facts and evidence, the necessity for the number of firms involved, and the computation of the time involved. He then used the number of hours and the attorneys’ normal billing rates as a basis to compute the award.
As stated in Northcross at 638, the court should look at the fair market value of the services rendered in determining the level of compensation. This was done. The trial judge found that the hourly billing rates charged by the attorneys were “slightly less than those customarily charged in the local community for such services.” Thus, he concluded the fair market value must be more or equal to these rates. No evidence was offered to the contrary.
The trial judge further deducted five percent to adjust for “some slight overlapping of effort” among the attorneys. This was proper. He also properly allowed reimbursement for the time of clerks, less than a quarter of which was allocated to Rohtert. Rohtert offered no evidence that the number of hours was unreasonable.
In conclusion, we find the findings of fact, the conclusions of law and the awards of compensatory damages, punitive damages and the attorney fees and costs all proper. For the above reasons, the judgment of the district court is affirmed.
We agree with the District Court that the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent.”
. Other courts have stated the test somewhat differently: whether the award is so high as to shock the judicial conscience and constitute a denial of justice. Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978). See, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), cert. dismissed, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976).
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
U.S. HEALTHCARE, INC., United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc., Appellants in 88-1180, v. BLUE CROSS OF GREATER PHILADELPHIA, Pennsylvania Blue Shield and David Markson. Appeal of BLUE CROSS OF GREATER PHILADELPHIA (“BLUE CROSS”) and Pennsylvania Blue Shield (“Blue Shield”), in No. 88-1205.
Nos. 88-1180, 88-1205.
United States Court of Appeals, Third Circuit.
Argued Oct. 18, 1988.
Decided March 9, 1990.
Rehearing and Rehearing In Banc Denied April 4, 1990.
David F. Simon (argued), David I. Book-span, Gary L. Leshko, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellants-cross-appellees, U.S. Healthcare, Inc., U.S. Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc.
Jay H. Calvert, Jr. (argued), John H. Lewis, Jr., Ronald B. Hauben, Morgan, Lewis & Bockius, Philadelphia, Pa., for ap-pellees-cross-appellants, Blue Cross of Greater Philadelphia and David S. Mark-son.
Henry Kolowrat, Dechert, Price & Rhoads, Philadelphia, Pa., James A. Young (argued), Timothy I. McCann, Sprecher, Felix, Visco, Hutchison & Young, Philadelphia, Pa., for appellee-cross-appellant, Pennsylvania Blue Shield.
Before STAPLETON, SCIRICA and COWEN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
U.S. Healthcare, Inc. and its subsidiaries, United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc. (collectively, “U.S. Healthcare”), appeal from the district court’s post-trial entry of judgment in favor of Blue Cross of Philadelphia, its president David Markson, and Pennsylvania Blue Shield (collectively, “Blue Cross/Blue Shield”), directed under Fed.R. Civ.P. 50(b) on U.S. Healthcare’s federal and pendent state law claims alleging violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982), commercial disparagement, defamation and tortious interference with contractual relations. Blue Cross/Blue Shield, in turn, appeals from the entry of judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims alleging the same causes of action brought by U.S. Healthcare. Additionally, Blue Cross/Blue Shield appeals the pre-trial dismissal of the abuse of process counts in its counterclaims. We will reverse the grant of the Rule 50(b) motions, the judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims and the dismissal of the counts on abuse of process.
I.
FACTS AND PROCEDURAL HISTORY
These cross appeals arise from a comparative advertising war between giants of the health care industry in the Delaware Valley — U.S. Healthcare on the one side and Blue Cross/Blue Shield on the other. The thrust of these claims is that each side asserts the other’s advertising misrepresented both parties’ products.
For over fifty years, Blue Cross/Blue Shield operated as the largest health insurer in Southeastern Pennsylvania by offering “traditional” medical insurance coverage. Traditional insurance protects the subscriber from “major” medical expenses, with the insurer paying a negotiated amount based upon the services rendered, and the subscriber generally paying a deductible or some other amount. The subscriber has freedom in choosing hospitals and health care providers (i.e., doctors).
In the early 1970’s, U.S. Healthcare began providing an alternative to traditional insurance in the form of a health maintenance organization, generically known as an “HMO.” An HMO acts as both an insurer and a provider of specified services that are more comprehensive than those offered by traditional insurance. Generally, HMO subscribers choose a primary health care provider from the HMO network who coordinates their health care services and determines when hospital admission or treatment from a specialist is required. Usually, subscribers are not covered for services obtained without this permission or from providers outside this network. By 1986, U.S. Healthcare was the largest HMO in the area, claiming almost 600,000 members. During the same period, Blue Cross/Blue Shield experienced a loss in enrollment of over 1% per year, with a large number of those subscribers choosing HMO coverage over traditional insurance, and a majority of those defectors choosing a U.S. Healthcare company.
Blue Cross/Blue Shield considered a number of strategies to regain its market position, including the acquisition of its own HMO. In late 1985, in an admitted attempt to compete with HMO, Blue Cross/Blue Shield introduced a new product that it called “Personal Choice,” known generically as a preferred provider organization or “PPO.” PPO insurance provides subscribers with a “network” of health care providers and hospitals, and generally “covers” subscribers only for services obtained from the network providers and administered at the network hospitals. Subscribers must obtain permission to receive treatment from providers outside the network, and in such instances receive at most only partial coverage.
Thereafter, Blue Cross/Blue Shield consulted with two separate advertising agencies before arriving at a marketing strategy for its new product. In July 1986, Blue Cross/Blue Shield launched what it termed a deliberately “aggressive and provocative” comparative advertising campaign calculated “to introduce and increase the attractiveness of its products” — in particular, Personal Choice — at the expense of HMO products. Blue Cross/Blue Shield’s campaign, which included direct mailings, as well as television, radio and print advertisements, ran for about six months at a total cost of approximately $2,175 million. According to a Blue Cross memorandum that purported to reflect the directions of Markson, the campaign was designed specifically to “reduce the attractiveness of [HMO].”
The Blue Cross/Blue Shield advertising campaign consisted of eight different advertisements for the print media, seven different advertisements for television, three different advertisements for radio, and a direct mailing including a folding brochure. The eight print advertisements compare the features of HMO and Personal Choice. Seven of the eight represent that with HMO, the subscriber selects a “primary care physician” who, in turn, must give permission before HMO will provide coverage for examination by a specialist. (The eighth print advertisement simply states that with Personal Choice, the subscriber may be examined by a specialist whenever he chooses, without “permission.”) After describing HMO’s referral procedure, however, three of the eight print advertisements — as well as the brochure — say the following:
You should also know that through a series of financial incentives, HMO encourages this doctor to handle as many patients as possible without referring to a specialist. When an HMO doctor does make a specialist referral, it could take money directly out of his pocket. Make too many referrals, and he could find himself in trouble with HMO.
One of the print advertisements and the brochure also feature a senior citizen under the banner heading “Your money or your life,” juxtaposed with Blue Cross/Blue Shield’s description of “The high cost of HMO Medicare.”
Of the seven television advertisements run by Blue Cross/Blue Shield, four are innocuous, mentioning HMO only in the closing slogan common to all seven of the ads: “Personal Choice. Better than HMO. So good, it’s Blue Cross and Blue Shield.” The fifth features an indignant every man, who simply states “I resent having to ask my HMO doctor for permission to see a specialist,” before a spokesperson extols the benefits of Personal Choice without reference to HMO until, again, the closing slogan. The sixth features a cab driver who says, “I don’t like those HMO health plans. You get one doctor, no choice of hospitals,” before a shopper tells him about the virtues of Personal Choice — again, without reference to HMO until the closing slogan. The seventh television advertisement used by Blue Cross/Blue Shield, while following the same general format, seems to us a dramatic departure from the others in that it appears consciously designed to play upon the fears of the consuming public. The commercial features a grief-stricken woman who says, “The hospital my HMO sent me to just wasn’t enough. It’s my fault.” The implication of the advertisement is that some tragedy has befallen the woman because of her choice of health care.
The three radio advertisements of Blue Cross/Blue Shield compare the features of HMO and Personal Choice. All represent that HMO limits choice of hospitals and physicians and requires plan permission to see a specialist, but that Personal Choice provides unlimited choice of network hospitals and physicians and affords unrestricted access to specialists.
U.S. Healthcare responded immediately to Blue Cross/Blue Shield’s promotional campaign. Within a week, U.S. Healthcare filed suit in Philadelphia County Court of Common Pleas alleging commercial disparagement, defamation and tortious interference with contractual relations. U.S. Healthcare also issued concurrent press releases describing the basis of the litigation. In addition, the company embarked upon its own aggressive, comparative advertising blitz.
The responsive advertising campaign, which began sometime after the Blue Cross/Blue Shield campaign and ran until late February 1987, cost $1,255 million. U.S. Healthcare’s campaign consisted of five different advertisements for the print media, four different television advertisements, and two different radio advertisements. Of these, two advertisements were adapted for all three media as a response to Blue Cross/Blue Shield’s most serious criticisms.
The first of these multi-media advertisements — apparently attempting to counteract the Blue Cross/Blue Shield message that HMO doctors sacrificed quality of care for higher profit — emphasizes the length to which U.S. Healthcare will go to provide its subscribers with the best treatment available. It features an HMO doctor with a little girl who, it quickly becomes apparent, is both very healthy and a former HMO patient. While the exact text varies according to the medium, all versions feature the HMO doctor saying that this girl, who required a unique wrist operation, was sent to Baltimore to be operated on by “the best [surgeon] in the country” rather than one of HMO’s fine surgeons.
The second multi-media advertisement addresses HMO’s practice of allowing examination by specialists only when the subscriber is referred by his primary care physician. The advertisement features just such a physician, explaining that the purpose of a primary care physician is to help the subscriber decide what type of specialist should be consulted, so that the subscriber can be sure of receiving the treatment he needs. Neither multi-media advertisement makes any reference to Blue Cross/Blue Shield.
U.S. Healthcare’s responsive campaign did not just highlight the positive characteristics in its own product, but also featured “anti-Blue Cross” advertisements. Of the three remaining print advertisements, one simply shows a comparative list of the features available under HMO and Personal Choice, with a banner heading that reads “It’s your choice.” The other two explain that under Personal Choice, the number of hospitals available to the subscriber is limited and, moreover, that many Personal Choice doctors do not have admitting privileges at even those few. One of these advertisements ran under a banner heading of “When it Comes to Being Admitted to a Hospital, There’s Something Personal Choice May Not Be Willing to Admit”; the other ran under a banner heading of “If You Really Look Into ‘Personal Choice,’ You Might Have a Better Name For It.”
One of the two remaining television advertisements shows a person flipping through the Hospitals and Physicians Directory of Personal Choice, pointing out the “gray area” of physicians without admitting privileges — essentially making the same point as the two print advertisements. The final television commercial was U.S. Healthcare’s own attempt to play upon the fears of the consuming public. As solemn music plays, the narrator lists the shortcomings of Personal Choice while the camera pans from a Personal Choice brochure resting on the pillow of a hospital bed to distraught family members standing at bedside. The advertisement closes with a pair of hands pulling a sheet over the Personal Choice brochure.
Thereafter, U.S. Healthcare re-filed its state claims in federal court in the Eastern District of Pennsylvania, adding its § 43(a) Lanham Act claim. Federal subject matter jurisdiction was premised on the assertion of a federal question, 28 U.S.C. § 1331 (1982), and on claims of unfair competition, 28 U.S.C. § 1338(a) (1982). Pendant jurisdiction was exercised over the state law claims. Blue Cross/Blue Shield counterclaimed on the same theories of liability, while also alleging abuse of process and malicious use of process. Before trial, the district court dismissed the abuse of process and malicious use of process counts in Blue Cross/Blue Shield’s counterclaims.
After a fourteen-day trial, followed by eight days of deliberations, the jury announced it was deadlocked on all issues of liability and damages. The district court declared a mistrial and then, before excusing the jurors, invited them to share their thoughts on the case for the benefit of the lawyers. It became apparent that, with regard to the counterclaims, the jurors were not far from unanimity. Consequently, the district court sent the jury back to deliberate whether Blue Cross/Blue Shield could recover damages on its counterclaims. Only then did the jury return a verdict against Blue Cross/Blue Shield on its counterclaims. The district court thereafter entered judgment for U.S. Healthcare on the counterclaims and scheduled a new trial on U.S. Healthcare’s own claims.
The case was never retried. Instead, Blue Cross/Blue Shield filed a motion under Fed.R.Civ.P. 50(b) requesting the court to direct entry of judgment in its favor, on the grounds that the advertisements were entitled to heightened constitutional protection under the First Amendment, and that U.S. Healthcare had not met the applicable standard of proof, set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), et seq. The district court granted the motion. U.S. Healthcare, Inc. v. Blue Cross, No. 86-6452, 1988 WL 21830 (E.D.Pa. Mar. 7, 1988). The court held that because the objects of the advertisements are “public figures,” and because the matters in the advertisements are “community health issues of public concern,” heightened constitutional protections attach to this speech. The court reasoned that the First Amendment limited the power of the state and of Congress to award damages resulting from the allegedly false and misleading advertisements. Accordingly, the district court held that in order to prevail on their respective claims of Lanham Act violation, commercial disparagement, defamation and tor-tious interference with contract, both parties were required to prove each claim by clear and convincing evidence: (1) that the other side published the advertisements with knowledge or with reckless disregard of their falsity, and (2) that the advertisements were false. Applying this standard of proof, the court concluded that “[ajlthough the jury could reasonably have concluded that both sides had proven falsity and actual malice by a preponderance of the evidence, neither side has presented clear and convincing evidence [of this].”
This appeal followed.
II.
THE ACTIONABLE CLAIMS AND COUNTERCLAIMS UNDER APPLICABLE SUBSTANTIVE FEDERAL AND STATE LAW
We note initially that federal law governs the substantive issues of the parties’ Lanham Act claims, while Pennsylvania law governs the commercial disparagement, defamation and tortious interference with contract claims. Although the district court granted the Rule 50(b) motions on constitutional grounds, we must first determine whether the statements are actionable under the substantive law governing the case before addressing whether the First Amendment prohibits the imposition of liability, since a determination of the former may obviate the need to examine the latter. See McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir.1985); Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980). Furthermore, Blue Cross/Blue Shield argues that the “challenged advertisements are not actionable regardless of the standard of proof.” Therefore, we turn to the federal and state substantive law governing the parties’ claims to determine whether there might exist a genuine issue of material fact.
A. Applicable Federal and Pennsylvania Common Law.
As a threshold matter, we note that the burden of proof for the applicable substantive law is a preponderance of the evidence. On appeal, the parties contest the burden of proof on the Lanham Act claim only. Unless New York Times applies, the burden of proof here is a preponderance of the evidence.
1. Section 43(a) of The Lanham Act.
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), which was recently amended, creates a cause of action for any false description or representation of a product. This proscription extends to misleading descriptions or representations. Id.; see Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa.1974); see also McNeilab, Inc. v. Bristol-Myers Co., 656 F.Supp. 88, 90 (E.D.Pa.1986). “While it has been stated that a failure to disclose facts is not actionable under § 43(a), it is equally true that a statement is actionable under § 43(a) if it is affirmatively misleading, partially incorrect, or untrue as a result of failure to disclose a material fact.” 2 J. McCarthy, Trademarks and Unfair Competition § 27:7B (2d ed. 1984).
The pre-amendment version, which controlled when the district court considered the matter, applied only to statements made by a defendant about its own products, not to statements about the plaintiffs products. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 37 (2d Cir.1982); Bernard Food Indus., Inc. v. Dietene Co., 415 F.2d 1279, 1283 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970). As amended, however, § 43(a) encompasses statements made by a defendant about “his or her or another person’s” products. 15 U.S.C. 1125(a) (emphasis added).
When analyzing a challenged advertisement, the court first determines what message is conveyed. Plough, Inc. v. Johnson & Johnson Baby Prods. Co., 532 F.Supp. 714, 717 (D.Del.1982); McCarthy § 27:7B. Sometimes this determination may be made from the advertisement on its face. Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1110 (D.N.J.1987); e.g., Ames Publishing, 372 F.Supp. at 12. Nonetheless, “[cjontext can often be important in discerning the message conveyed.” Plough, 532 F.Supp. at 717.
After determining the message conveyed, the court must decide whether it is false or misleading. Stiffel, 658 F.Supp. at 1110; McCarthy § 27:7B; see Plough, 532 F.Supp. at 717. Mere puffing, advertising “ ‘that is not deceptive for no one would rely on its exaggerated claims,’ ” is not actionable under § 43(a). Toro Co. v. Tex-tron, Inc., 499 F.Supp. 241, 253 n. 23 (D.Del.1980) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies § 19.2(b)(2) (3d ed. 1967 & 1979 Supp.)). If the advertisement is literally true, the plaintiff “must persuade the court that the persons ‘to whom the advertisement is addressed’ would find that the message received left a false impression about the product.” Id. at 251 (citation omitted); see Stiffel, 658 F.Supp. at 1110. Finally, establishing lack of substantiation of defendant’s claim is insufficient without also establishing falsity or deception. Toro, 499 F.Supp. at 253.
The plaintiff must also show that defendant’s misrepresentation is “ ‘material, in that it is likely to influence the purchasing decision.’ ” Id. at 251 (citation omitted); see McCarthy § 27:4D. However, “there is no requirement that the falsification occur wilfully and with intent to deceive.” Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.1958).
Next, § 43(a) requires that the defendant use the false or misleading description or representation “in commerce.” 15 U.S.C. § 1125(a); see SK & F, Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1065 (3d Cir.1980). The commerce requirement has been broadly interpreted. McCarthy § 27:6C.
Finally, § 43(a) provides a remedy to one who “is or is likely to be damaged by [the false or misleading description or representation].” 15 U.S.C. § 1125(a). To' recover damages, a plaintiff must show that the “falsification [or misrepresentation] actually deceives a portion of the buying public.” Parkway Baking, 255 F.2d at 648; Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430, 435 (E.D.Pa.1981) (citing Parkway Baking). “This does not place upon the plaintiff a burden of proving detailed individualization of loss of sales. Such proof goes to quantum of damages and not to the very right to recover.” Parkway Baking, 255 F.2d at 648.
Judge Poliak has summarized well this area of the law in the following test:
1) that the defendant has made false or misleading statements as to his own product [or another’s]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods travelled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
Max Daetwyler Corp. v. Input Graphics, Inc., 545 F.Supp. 165, 171 (E.D.Pa.1982) (citing American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 165-66 (2d Cir.1978)).
2. Defamation.
Under Pennsylvania law, a defamatory statement is one that “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” Birl v. Philadelphia Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960) (quoting Restatement of Torts § 559 (1938)); accord Thomas Merton Center v. Rockwell Int’l Corp., 497 Pa. 460, 464, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). It is for the court to determine, in the first instance, whether the statement of which the plaintiff complained is capable of a defamatory meaning; if the court decides that it is capable of a defamatory meaning, then it is for the jury to decide if the statement was so understood by the reader or listener. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899 (1971). To ascertain the meaning of an allegedly defamatory statement, the statement must be examined in context. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399 (1987).
The test is the effect the [statement] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.
Corabi, 441 Pa. at 447, 273 A.2d 899 (citation omitted). Opinion that fails to imply underlying defamatory facts cannot support the cause of action. Baker, 516 Pa. at 297, 532 A.2d 399.
In an action for defamation, the plaintiff has the burden of proving 1) the defamatory character of the communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) an understanding by the reader or listener of its defamatory meaning; and 5) an understanding by the reader or listener of an intent by the defendant that the statement refer to the plaintiff. 42 Pa. Cons. Stat. § 8343(a)(l)-(5) (1988). Additionally, in order to recover damages, the plaintiff must demonstrate that the statement results from fault, amounting at least to negligence, on the part of the defendant. Geyer v. Steinbronn, 351 Pa.Super. 536, 554-55, 506 A.2d 901 (1986); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 186, 484 A.2d 72 (1984); 42 Pa. Cons. Stat. § 8344 (1988). Finally, the plaintiff has the burden of proving any special harm resulting from the statement. 42 Pa. Cons. Stat. § 8343(a)(6) (1988); see Restatement of Torts § 575 comment b (defining special harm).
The defendant, in turn, can defend against a defamation action by proving the truth of the statement, that the subject matter of the statement was of public concern, or that the occasion on which the statement was made or published was of privileged character. Spain v. Vicente, 315 Pa.Super. 135, 140, 461 A.2d 833 (1983); 42 Pa. Cons. Stat. § 8343(b) (1988); cf. Corabi, 441 Pa. at 450 n. 6, 273 A.2d 899. When the last of these defenses is raised, the burden shifts to the plaintiff to show abuse of the conditionally privileged occasion. Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166 (1971); Rutt, 335 Pa.Super. at 186-87, 484 A.2d 72; 42 Pa. Cons. Stat. § 8343(a)(7) (1988).
3. Commercial Disparagement.
A commercially disparaging statement — in contrast to a defamatory statement — is one “which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels or intangible things, or upon their quality,... if the matter is so understood by its recipient.” Menefee v. Columbia Broadcasting Sys., Inc., 458 Pa. 46, 54, 329 A.2d 216 (1974) (quoting Restatement of Torts § 629 (1938)). In order to maintain an action for disparagement, the plaintiff must prove 1) that the disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; 2) that no privilege attaches to the statement; and 3) that the plaintiff suffered a direct pecuniary loss as the result of the disparagement. See Menefee, 458 Pa. at 53, 329 A.2d 216 (quoting Restatement of Torts introductory note to Chapter 28).
The distinction between actions for defamation and disparagement turns on the harm towards which each is directed. An action for commercial disparagement is meant to compensate a vendor for pecuniary loss suffered because statements attacking the quality of his goods have reduced their marketability, while defamation is meant protect an entity’s interest in character and reputation. In Menefee, the Pennsylvania Supreme Court made the following observation:
One of the most important purposes for which liability for the publication of matter derogatory to another’s personal reputation is imposed is to enable the person defamed to force his accuser into open court so that the accusation, if untrue, may be branded as false by the verdict of a jury. The action for disparagement has no such purpose and cannot be used merely to vindicate one’s title to or the quality of one’s possessions....
Id. (quoting Restatement of Torts introductory note to Chapter 28).
Given the similar elements of the two torts, deciding which cause of action lies in a given situation can be difficult. The Court of Appeals for the Eighth Circuit gave the following time-honored explanation of when impugnation of the quality of goods crosses the line from disparagement of products to defamation of vendors:
[Wjhere the publication on its face is directed against the goods or product of a corporate vendor or manufacturer, it will not be held libelous per se as to the corporation, unless by fair construction and without the aid of extrinsic evidence it imputes to the corporation fraud, deceit, dishonesty, or reprehensible conduct in its business in relation to said goods or product.
National Ref. Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, 771 (8th Cir.), cert. denied, 275 U.S. 570, 48 S.Ct. 157, 72 L.Ed. 431 (1927).
An examination of state court decisions indicates that Pennsylvania law tracks the National Refining distinction. See, e.g., Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 319, 182 A.2d 751 (1962) (defamation action lay when competitor’s advertisement accused plaintiff of using unnecessary haste and unskilled workmanship in development of customers’ film, resulting in its ruin, and implied plaintiff was dishonest in its business practice by inflating prices); Will v. Press Publishing Co., 309 Pa. 539, 544, 164 A. 621 (1932) (defamation action lay for accusation that plaintiff did not pay accounts of his business, as words implied dishonesty); Pfeifly v. Henry, 269 Pa. 533, 535, 112 A. 768 (1921) (defamation action lay for statement that plaintiff miller dishonestly weighed flour he sold); see also Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 271 (3d Cir.1980) (news report that plaintiff corporation deceived customers as to both price and quality of its product capable of defamatory meaning under Pennsylvania law).
4. Tortious Interference with Contract
The Restatement of Torts described this tort fifty years ago: “[O]ne who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.” Restatement of Torts § 766 (1939). Pennsylvania has adopted this prescription while recognizing two distinct branches of the tort: one concerning existing contractual rights, and another regarding prospective contractual relations.
Regarding existing contractual rights, the Pennsylvania Supreme Court has adopted the test set forth in the Restatement (Second) of Torts:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.
Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); accord Daniel Adams Assocs., Inc. v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 78, 519 A.2d 997 appeal denied, 517 Pa. 599, 535 A.2d 1057 (1987). Thus, as a threshold matter, a contract right must be established. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466 (1979). In determining the propriety of the actor’s conduct, the court is “guided” by the following factors from the Restatement (Second) of Torts:
(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.
Adler, Barish, 482 Pa. at 433, 393 A.2d 1175.
With respect to prospective contractual relations, the following elements must be demonstrated:
(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.
Thompson Coal Co., 488 Pa. at 208, 412 A.2d 466; accord Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 155, 554 A.2d 989 (1989). The Pennsylvania Supreme Court has defined “prospective contractual relation” as “something less than a contractual right, something more than a mere hope.” Thompson Coal Co., 488 Pa. at 209, 412 A.2d 466. In short, it is “a reasonable probability” that contractual relations will be realized. Id. (citing Glenn v. Point Park College, 441 Pa. 474, 480, 272 A.2d 895 (1971)). Such an expectation may arise from an unenforceable express agreement or an offer. Glenn, 441 Pa. at 481 n. 6, 272 A.2d 895. The privilege determination “is not susceptible of precise definition” but is informed by the “ ‘rules of the game’ ” and “ ‘the area of socially acceptable conduct which the law regards as privileged.’ ” Id. at 482, 272 A.2d 895 (citation omitted).
B. The Actionable Construction of the Advertisements
From the record before us, both U.S. Healthcare and Blue Cross/Blue Shield have taken a broad approach to this litigation, each complaining about all of the advertisements in the other’s comparative campaign. Not all of the advertisements are actionable under all of the theories alleged. Therefore, we make the following rulings on which advertisements could be found actionable by a jury under the standards we have outlined.
First, we consider as a group three of Blue Cross/Blue Shield’s television advertisements, which appear to be mere identification pieces containing no substantive information. They feature actors stating either their trust in Blue Cross/Blue Shield, or their preference for Personal Choice over HMO. Additionally, they all feature the slogan “Better than HMO. So good, it’s Blue Cross and Blue Shield.” This strikes us as the most innocuous kind of “puffing,” common to advertising and presenting no danger of misleading the consuming public. Consequently, we find that no cause of action lies with regard to these three advertisements.
Second, we consider as a group U.S. Healthcare’s two multi-media advertisements, one which featured an HMO doctor describing U.S. Healthcare’s efforts to provide the best possible treatment for a young girl, and the other which featured an HMO primary care physician describing why she helps HMO patients select which specialists to consult. Neither of these advertisements makes any reference to Blue Cross/Blue Shield and, consequently, the only action that may lie based upon them is one for unfair competition under § 43(a) of the Lanham Act.
In this second group of advertisements, which are only actionable (if at all) under the Lanham Act, we include two of Blue Cross/Blue Shield’s advertisements. The first is a print advertisement, targeted specifically at Philadelphia School District employees during a period of “Open Enrollment,” that describes the features of Personal Choice without reference to HMO. The second is a television commercial. While similar to the three we found to be innocuous, this advertisement goes one step further, factually representing that Personal Choice covers “routine doctor visits, prescriptions, even pediatric care.” At trial, testimony was adduced as to just how often Personal Choice would cover checkups
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Anthony SUMMERS v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant. James CAMPBELL v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.
Nos. 92-5008, 92-5102.
United States Court of Appeals, District of Columbia Circuit.
Argued May 17, 1993.
Decided July 30, 1993.
Michael J. Ryan, Asst. U.S. Atty., Washington, DC, argued the cause, for appellant. With him on the briefs were Jay B. Stephens, U.S. Atty. at the time the briefs were filed, John D. Bates, R. Craig Lawrence and Michael T. Ambrosino, Asst. U.S. Attys., Washington, DC.
James H. Lesar, Washington, DC, argued the cause, for appellees Anthony Summers and James Campbell.
Before WALD, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
In this consolidated appeal, the Department of Justice (“DOJ”) contests two district court rulings that a federal statute, 28 U.S.C. § 1746, requires it to accept, in conjunction with Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests, unnotar-ized, unsworn privacy waivers signed under penalty of perjury. We affirm the district court in one appeal and dismiss the other for lack of jurisdiction.
I.
In September 1990, Anthony Summers submitted a FOIA request to the Federal Bureau of Investigation (“FBI”) for documents pertaining to John F. Shaw, Sr. Accompanying Summers’ request was a privacy waiver, signed by an individual who identified himself as Shaw, authorizing the release of all such documents. The waiver included all data normally required for such a document, but was not notarized. Instead, it was signed beneath a specific notice that the signer was subjecting himself to penalties for perjury.
In response to Summers’ filing, the FBI requested additional information. Most notably, the agency — relying on 28 C.F.R. § 16.41(d)(1), which provides that “a requester must provide with his request an example of his signature, which shall be notarized”— asked Summers to provide Shaw’s notarized signature on the privacy waiver. Summers refused, however, on the ground that such a demand violated 28 U.S.C. § 1746, which allows “any matter” that must be established by a “sworn declaration” to be shown “with like force and effect” by an unsworn declaration subscribed to as true under penalty of perjury. Because Summers balked at providing the requested notarization, the FBI denied his FOIA request.
After pursuing administrative remedies, Summers filed suit in district court seeking a declaratory judgment that the DOJ rule requiring notarized signatures violated § 1746. In that forum, the DOJ argued that its regulation was not at odds with § 1746 because that statute allows the use of unsworn, unno-tarized declarations only where a federal law or rule requires a party to swear to the contents of the statement, not where, as here, the regulation at issue merely requires verification by a notary of the identity of the signer of the statement. Since the regulation did not contravene § 1746, the DOJ argued, it should be upheld as a reasonable means of implementing the Privacy Act, 5 U.S.C. § 552a, requirement that agencies guard against unauthorized disclosure of personal information to third parties.
The district court was unconvinced. Finding that § 1746 did apply because its “plain and unambiguous language” “does not admit of [the] distinction” between a statement’s content and the identity of its author, the court granted Summers’ summary judgment motion. Summers v. United States Department of Justice, 776 F.Supp. 575, 577 (D.D.C.1991). This appeal followed.
II.
Section 1746 provides:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States:
“I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on (date).
(Signature).”
(2) If executed within the United States, its territories, possessions, or commonwealths:
“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).
(Signature).”
(Emphasis added.) In this court, as in the district court, the DOJ claims that the plain language of this provision supports its argument that Congress intended this statute to apply only where the content of a document is at issue, not where, as under the DOJ regulation, only the identity of a document’s author must be verified.
We disagree. Although we have found scant case law relevant to this problem, but cf. Duncan v. Foti, 828 F.2d 297, 297-98 (5th Cir.1987) (per curiam) (unavailability of notary in prison did not bar inmate from filing FOIA requests because § 1746 provided an alternative to notarization for such requests), the plain language of § 1746 indicates that it applies with full force when identity is in question. Congress has said unambiguously that whenever “any matter” must be “supported, evidenced, established, or proved” by a sworn declaration, an un-sworn declaration attested to under penalty of perjury must henceforth be equally acceptable — unless one of the three exceptions mentioned parenthetically in the statutory text is implicated. In common parlance, an individual’s identity — whether manifested by a direct statement {e.g., “I, Jane Doe, declare .... ”), a signature, or both — is certainly a “matter” that an individual may be called on to “support[], evidence[], establish[], or prove[]” in a declaration. Cf. Webster’s THIRD New International Dictionary 1394 (1976) (defining a “matter” first as “a subject (as a fact, an event or course of events, or a circumstance, situation, or question) of interest or relevance”). Indeed, identity is often among the most important “matters” disclosed in any statement — few, if any, statements are valuable without knowing who made them. (Perhaps for that reason, most declarations begin by fixing the identity of the declarant. See, e.g., Declaration of Linda L. Kloss (submitted by the DOJ with this appeal) (“I, Linda L. Kloss, declare as follows:....”)). Since an individual’s identity would seem to be a “matter” that FOIA requesters or third parties waiving privacy are asked to establish, the plain language of § 1746 instructs that a person may use an unsworn statement to establish that identity.
Any residual doubt on this question is dispelled when § 1746 is considered in conjunction with 18 U.S.C. § 1621, the general federal perjury statute. The latter provision, as amended to conform to § 1746, states that whenever a person, in a § 1746 declaration, “willfully subscribes as true any material matter which he does not believe to be true,” 18 U.S.C. § 1621(2) (emphasis added), he is guilty of perjury. As the government conceded at oral argument, a person would quite obviously violate this provision if he knowingly signed someone else’s name to a § 1746 declaration. That would only be true, of course, if the signature and, more generally, the identity of the declarant are “material matter[s]” within the meaning of § 1621. Thus, unless the word “matter” is to be given different meanings in these two closely related provisions — an improbable result since § 1621 was amended to include this language at the time Congress enacted § 1746, see 90 Stat. 2534, 2534-35 (1976) — a declarant’s identity as manifested by his signature must also be a “matter” within the meaning of § 1746.
Finally, we think that our interpretation of § 1746 is sensible because it prevents the creation of a gaping loophole in that provision’s effect. If, as the government suggests, § 1746 does not cover the authentication of signatures, an agency could routinely require notarization “merely” as a way of identifying the person making the statement. That course of action would render § 1746 essentially a dead letter and end-run Congress’ clear intent of sparing individuals the cost and hassle of notarizing routine submissions. See H.R.Rep. No. 1616, 94th Cong., 2d Sess. 1 (1976), U.S.Code Cong. & Admin.News 1976, p. 5644 (“The requirement that the person who signs an affidavit must appear before a notary and be sworn can be inconvenient.”); 122 Cong.Rec. 34447, 34448 (1976) (statement of Senator Tunney) (“The result of this bill is to do away with one of the remaining anachronisms of our law — the requirement that relatively routine documents bear the seal of a notary public.”).
In sum, we agree with the district court that § 1746 applies to verification of the identity of the signers of FOIA privacy waivers. We therefore affirm the decision of the district court in Summers. For the reasons discussed previously, see supra note 1, we dismiss the appeal in Campbell.
So ordered.
. The DOJ asserts that we have jurisdiction under 28 U.S.C. § 1291 to hear both appeals. We are doubtful, however, that there has been a final, appealable order in Campbell v. United States Department of Justice, No. 92-5102. The order the DOJ attempts to appeal only granted Campbell's motion to compel the government to accept unnotarized privacy waivers; by its own terms, it did not dispose of other issues remaining in the case. See Campbell v. United States Department of Justice, No. 89-3016 (D.D.C. Jan. 21, 1992), slip opinion at 5 (notarization issue "arises out of the larger [Freedom of Information Act] request which is under the jurisdiction of this Court”). Section 1291 grants no authority to review interlocutory orders. See, e.g., Kappel-mann v. Delta Air Lines, Inc., 539 F.2d 165, 167-68 (D.C.Cir.1976) (under § 1291, district court decisions are appealable only if they are final and end the litigation on the merits), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977); cf. Fed.R.Civ.P. 54(b) (allowing appeal from an entry of final judgment on some but not all joined claims only upon express certification of district court). Accordingly, we dismiss the Campbell appeal. As a practical matter, this course of action can be expected to have little effect on the parties to that case because our decision in Summers — which, all sides agree, presents an identical legal question — -will be binding precedent in Campbell.
. Because the DOJ regulation at issue, 28 C.F.R. § 16.41(d)(1), only requires a ''notarized" signature it might be argued that it does not require the "sworn declaration, verification, certificate, statement, oath or affidavit” necessary to trigger § 1746 (emphasis added to both quotations). Cf. Black’s Law Dictionary 1060 (6th ed. 1990) (defining a notary public as both "[o]ne who is authorized ... to administer oaths” and one who may "attest to the authenticity of signatures”). But the DOJ's sample "Certification of Identity” form makes clear that the agency contemplates that the person signing the form should attest to her identity under oath. Specifically, the form requires that an individual certify that she is the person named on the privacy waiver and sign her name under oath before a notary.
Additionally, although the language of § 16.41, see supra page 571, might suggest that it applies only when a "requester” seeks information about herself, both parties assume that it is applicable here, i.e., where the request includes a third party's authorization for the release of material to a requester. See DOJ Brief at 7 n. 4 (arguing that the fact that the FOIA request seeks records from a third party "does not alter the relevant analysis here”).
. In this regard, we find no significance in the fact that the approved formats for unsworn declarations included at the end of § 1746 require a declarant to state only that the "foregoing”— which would not include the signature' — is true and correct. Congress required only that statements be "substantially” in that format.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_adminrev
|
N
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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".
Nidia GUTIERREZ-ROGUE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-1130.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 3, 1992.
Decided Feb. 4, 1992.
Donald L. Schlemmer, for petitioner.
Francesco Isgro, Attorney, Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Richard M. Evans, Asst. Director, Office of Immigration Litigation, Dept, of Justice, were on the brief, for respondent. David J. Kline also entered an appearance for respondent.
Before WALD, SILBERMAN and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
Nidia Gutierrez-Rogue de Picado, a citizen of Nicaragua, entered the United States illegally on September 28, 1984. Upon being apprehended by officials of the Immigration and Naturalization Service, she applied for asylum or, alternatively, for withholding of deportation, claiming that she would be persecuted if returned to Nicaragua. The Board of Immigration Appeals denied her application and ordered her deported, reasoning that her fear of persecution was not well-founded in light of the fall of the Sandinista government of Nicaragua. Gutierrez now petitions this court for review of that decision. Finding no error in the Board’s decision, we deny her petition for review.
I. Background
At her hearing before an Immigration Judge, Gutierrez presented the following evidence. Before the 1979 Sandinista revolution in Nicaragua, she was a high school teacher and her husband was an Air Force sergeant. After the revolution, the Sandi-nistas arrested her husband. To secure his release, Gutierrez agreed to spend one year studying Marxism and teaching in Cuba. When she returned to Nicaragua, the Ministry of Education asked her to go back to Cuba for two or more additional years; she refused, and the Ministry (apparently in retaliation) assigned her to a school so far from her home that she was gone from 6 a.m. until 10 p.m. each day.
Gutierrez also refused to join the neighborhood Sandinista Defense Committee. In 1981, her husband fled Nicaragua, going first to Panama and later joining the “Contras” in Costa Rica. Her food rationing card was then taken away and she began to receive weekly visits from security officers trying to find her husband. Later, she received a death threat from the “divine mobs,” a civilian gang supporting the Sandinista Defense Committee.
In August 1984, the Sandinista government ordered citizens to dig trenches in order to defend the country against a supposed invasion by the United States. Gutierrez refused, was threatened with jail, and then relented. Later that same month, the assistant director of the school at which Gutierrez was teaching informed her that the director had sent a letter to the Ministry of Education and to the State Security agency accusing Gutierrez of distorting the political message of the Sandinistas and of encouraging counter-revolution. The assistant director warned Gutierrez that if she remained in Nicaragua, “something grave” would happen to her. Gutierrez secured forged travel papers and left Nicaragua in September 1984.
At the hearing before the IJ, Gutierrez was asked whether she could safely return to Nicaragua. She replied, “I would like to go back to Nicaragua, but under a new regime.”
The IJ denied Gutierrez’s request for asylum and for withholding of deportation, In re Gutierrez, No. [ AXX-XXX-XXX ] (IJ Nov. 18, 1987), and Gutierrez appealed to the BIA. Two-and-a-half years later, while her appeal was still pending, the people of Nicaragua voted the Sandinistas out of office; Violeta de Chamorro, leader of the anti-Sandinista coalition, was inaugurated as president on April 25, 1990. Five months after that, the BIA dismissed Gutierrez’s appeal.
The Board’s decision was based in large part upon the change in the government of Nicaragua, of which it took official notice. According to the BIA, Gutierrez’s
asylum and withholding [of deportation] claims are based on a fear of harm from the Sandinistas, who controlled the government at the time she departed Nicaragua_ Given that the Sandinista party no longer governs Nicaragua, under the present circumstances we do not find that the record now before us supports a finding that [Gutierrez] has a well-founded fear of persecution by the Sandinista government were [s]he to return to Nicaragua.
In re Gutierrez, No. [ AXX-XXX-XXX ], at 1-2 (BIA Oct. 1, 1990). In petitioning for review, Gutierrez maintains that despite the change of government, she still has a well-founded fear of persecution by the Sandi-nistas.
II. Analysis
Gutierrez seeks either asylum or withholding of deportation under the Immigration and Nationality Act (INA), §§ 208(a) and 243(h) respectively, 8 U.S.C. §§ 1158(a) and 1253(h). An alien who has suffered past persecution or who has a “well-founded fear” of being persecuted in the future is eligible for asylum, INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), but the decision whether to grant asylum is within the discretion of the Attorney General, INA § 208(a), 8 U.S.C. § 1158(a); see INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987); see also Matter of Chen, 20 I. & N. Dec. _, slip op. at 5 (BIA Int. Dec. No. 3104, Apr. 25, 1989) (alien who suffers “atrocious forms of [past] persecution” eligible for asylum even without well-founded fear of future persecution and may be entitled to a “favorable exercise of [the Attorney General’s] discretion ... for humanitarian reasons”); cf. 8 C.F.R. § 208.13(b)(1) (governing “past persecution” asylum claims filed on or after October 1, 1990). An alien who meets a higher standard, showing that “it is more likely than not that [she] would be subject to persecution” if returned to her home country, has a right to withholding of deportation, INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984), even if the Attorney General exercises his discretion to deny her asylum.
In her brief, Gutierrez makes essentially four arguments in support of her claim for relief from deportation. First, she assigns various errors to the decision of the IJ. These are irrelevant, however. The BIA based its decision upon a ground entirely different than did the IJ, and it is the BIA’s decision that we review. See Kubon v. INS, 913 F.2d 386, 387 (7th Cir.1990); Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (per curiam); Kabongo v. INS, 837 F.2d 753, 756 (6th Cir.1988).
Second, Gutierrez argues that the BIA erred in rejecting her claim to have a well-founded fear of persecution or, in the alternative, that it is more likely than not that she will be persecuted if she returns to Nicaragua. Whether an alien has a well-founded fear of persecution is a question of fact, and we review the Board’s determination only for substantial evidence. See INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4); Wing Ding Chan v. INS, 631 F.2d 978, 981 (D.C.Cir.1980); Hamad v. INS, 420 F.2d 645, 646 (D.C.Cir.1969). The nature of the change of government in Nicaragua is substantial evidence that Gutierrez does not have a well-founded fear of persecution and is thus not eligible for asylum upon that ground. Because eligibility for withholding of deportation requires a greater showing of probable persecution, see Cardoza-Fonseca, 480 U.S. at 449-50, 107 S.Ct. at 1222; Stevic, 467 U.S. at 425, 104 S.Ct. at 2498, it necessarily follows that she is not entitled to that form of relief either. See Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991); Kapcia v. INS, 944 F.2d 702, 709 (10th Cir.1991); Rojas v. INS, 937 F.2d 186, 190 (5th Cir.1991) (per curiam); Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991).
Third, Gutierrez claims that she is eligible for asylum based upon past persecution. The BIA assumed, arguendo, that the Sandinistas persecuted Gutierrez, but it denied her application as a matter of discretion. We review this aspect of the Board’s decision, accordingly, for abuse of discretion. See Wing Ding Chan, 631 F.2d at 981; Hamad, 420 F.2d at 647.
Gutierrez argues that she is entitled to a favorable exercise of the discretion because of the severity of the persecution she suffered, citing Matter of Chen, supra, slip op. at 5-8. In that case, the asylum applicant was the son of a Christian minister in China who was imprisoned and tortured during the Cultural Revolution. Their home was ransacked. At the age of 8, the applicant was locked in a room with his grandmother for six months and was frequently beaten.
[He] fell asleep during a speech regarding the need to criticize one’s parents. Rocks were thrown at him. They struck his head and he suffered a serious loss of blood. His injuries required a month of intensive treatment....
He suffered a permanent hearing loss and throughout the rest of the Cultural Revolution continued to suffer debilitating physical and mental persecution. Slip op. at 6-7. The harassment that Gutierrez suffered, although no doubt very frightening, was not nearly so severe. Thus, the BIA did not abuse its discretion by denying Gutierrez asylum after having granted it to Chen.
Fourth, Gutierrez claims that she was denied due process because the BIA took official notice of the change of government in Nicaragua without giving her an opportunity to contest the significance of that fact. She does not argue that the officially noticed fact is false; rather, she contends that the change of government is of limited probative value to her application because the Sandinistas retain sufficient control over the police and the army of Nicaragua to persecute her.
It is clearly established in this circuit that although “[t]here is no constitutional right to political asylum itself,”
an alien who has unlawfully entered the United States has a Fifth Amendment procedural due process right to petition the government for political asylum and a statutory procedural due process right [to a “meaningful or fair evidentiary hearing.”]
Maldonado-Perez v. INS, 865 F.2d 328, 332-33 (D.C.Cir.1989) (citation omitted); cf. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner”) (internal quotation marks omitted). It follows that the BIA may not use its undoubted authority to take official notice of a change in a government abroad, see, e.g., Rivera-Cruz v. INS, 948 F.2d 962, 966 (5th Cir.1991); Janusiak, 947 F.2d at 48 & n. 1; Kapcia, 944 F.2d at 705; Kubon, 913 F.2d at 388, in such a way as to deny an applicant for asylum her due process right to a meaningful hearing. See Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir.1991). Neither the IN A nor the INS regulation implementing it expressly provides the alien with an opportunity to challenge an officially noticed fact. Because a hearing is not truly meaningful if a critical issue is effectively excluded from consideration, however, Gutierrez appears to be correct in arguing that due process guarantees an asylum applicant the right to challenge an officially noticed fact — with respect both to its truth and its significance. See Rivera-Cruz, 948 F.2d at 968; Kaczmarczyk, 933 F.2d at 596.
Gutierrez’s due process claim is premature, however; she has not yet been finally deprived of the right to challenge the fact of which the BIA took official notice. Under INS regulations, an alien whose application for asylum and withholding of deportation has been rejected by the BIA may petition the Board to reopen her case based upon evidence that is “material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 3.2. This reopening procedure “provides asylum applicants with an opportunity to present the [BIA] with evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case.” Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968.
At oral argument here, the Government conceded that Gutierrez could challenge the significance of the officially noticed fact in a petition to reopen; we note also that an adverse decision would be subject to review in this court, see INS v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 907, 99 L.Ed.2d 90 (1988). The availability of the petition to reopen secures Gutierrez’s due process right to a meaningful hearing. See Rivera-Cruz, 948 F.2d at 968; Kaczmarczyk, 933 F.2d at 597; cf. Opp Cotton Mills v. Administrator of the Wage and Hour Div. of the Dep’t of Labor, 312 U.S. 126, 152-53, 61 S.Ct. 524, 536, 85 L.Ed. 624 (“The demands of due process do not require a hearing at the initial stage or at any particular point ... in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective”).
Although a petition to reopen does not automatically stay a deportation order, see 8 C.F.R. § 3.8(a), a significant due process concern would be raised if the INS were to deport an alien prior to the final resolution of her (non-frivolous) challenge to a fact officially noticed by the Board. Like the Seventh Circuit, therefore, “[w]e presume that when an asylum applicant uses a good faith motion to reopen to dispute officially noticed facts, the Board will exercise its discretion to stay the execution of its decision until it has had an opportunity to rule on the applicant’s motion.” Kaczmarczyk, 933 F.2d at 597 n. 9.
III. Conclusion
For the foregoing reasons, Gutierrez’s petition for review is
Denied.
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:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES et al. v. GRACE et al.
No. 81-1863.
Argued January 18, 1983
Decided April 20, 1983
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., post, p. 184, and Stevens, J., post, p. 188, filed opinions concurring in part and dissenting in part.
Solicitor General Lee argued the cause for appellants. With him on the briefs were Assistant Attorney General McGrath, Deputy Solicitor General Getter, David A. Strauss, Anthony J. Steinmeyer, and Marc Richman.
Sebastian K. D. Graber argued the cause for appellees. With him on the brief were Norman A. Townsend and Bradley S. Stetler.
A. Stephen Hut, Jr., Arthur B. Spitzer, and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Robert L. Gnaizda and Sidney M. Wolinsky filed a brief for the League of United Latin American Citizens as amicus curiae.
Justice White
delivered the opinion of the Court.
In this case we must determine whether 40 U. S. C. § 13k, which prohibits, among other things, the “display [of] any flag, banner, or device designed or adapted to bring into pub-he notice any party, organization, or movement” in the United States Supreme Court building and on its grounds, violates the First Amendment.
HH
In May 1978 appellee Thaddeus Zywicki, standing on the sidewalk in front of the Supreme Court building, distributed leaflets to passersby. The leaflets were reprints of a letter to the editor of the Washington Post from a United States Senator concerning the removal of unfit judges from the bench. A Supreme Court police officer approached Zywicki and told him, accurately, that Title 40 of the United States Code prohibited the distribution of leaflets on the Supreme Court grounds, which includes the sidewalk. Zywicki left.
In January 1980 Zywicki again visited the sidewalk in front of the Court to distribute pamphlets containing information about forthcoming meetings and events concerning “the oppressed peoples of Central America.” Zywicki again was approached by a Court police officer and was informed that the distribution of leaflets on the Court grounds was prohibited by law. The officer indicated that Zywicki would be arrested if the leafletting continued. Zywicki left.
Zywicki reappeared in February 1980 on the sidewalk in front of the Court and distributed handbills concerning oppression in Guatemala. Zywicki had consulted with an attorney concerning the legality of his activities and had been informed that the Superior Court for the District of Columbia had construed the statute that prohibited leafletting, 40 U. S. C. § 13k, to prohibit only conduct done with the specific intent to influence, impede, or obstruct the administration of justice. Zywicki again was told by a Court police officer that he would be subject to arrest if he persisted in his leafletting. Zywicki complained that he was being denied a right that others were granted, referring to the newspaper vending machines located on the sidewalk. Nonetheless, Zywicki left the grounds.
Around noon on March 17, 1980, appellee Mary Grace entered upon the sidewalk in front of the Court and began to display a four foot by two and a half foot sign on which was inscribed the verbatim text of the First Amendment. A Court police officer approached Grace and informed her that she would have to go across the street if she wished to display the sign. Grace was informed that Title 40 of the United States Code prohibited her conduct and that if she did not cease she would be arrested. Grace left the grounds.
On May 13, 1980, Zywicki and Grace filed the present suit in the United States District Court for the District of Columbia. They sought an injunction against continued enforcement of 40 U. S. C. § 13k and a declaratory judgment that the statute was unconstitutional on its face. On August 7, 1980, the District Court dismissed the complaint for failure to exhaust administrative remedies. Appellees took an appeal, arguing that the District Court’s action was improper and that the Court of Appeals should grant the relief requested in the complaint.
The Court of Appeals determined that the District Court’s dismissal for failure to exhaust administrative remedies was erroneous and went on to strike down § 13k on its face as an unconstitutional restriction on First Amendment rights in a public place. Grace v. Burger, 214 U. S. App. D. C. 375, 665 F. 2d 1193 (1981).
The Government appealed from the Court of Appeals’ judgment. We noted probable jurisdiction, 457 U. S. 1131 (1982).
II
Section 13k prohibits two distinct activities: it is unlawful either “to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds,” or “to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.” Each appellee appeared individually on the public sidewalks to engage in expressive activity, and it goes without saying that the threat of arrest to which each appellee was subjected was for violating the prohibition against the display of a “banner or device.” Accordingly, our review is limited to the latter portion of the statute. Likewise, the controversy presented by appellees concerned their right to use the public sidewalks surrounding the Court building for the communicative activities they sought to carry out, and we shall address only whether the proscriptions of § 13k are constitutional as applied to the public sidewalks.
Our normal course is first to “ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). See New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982). Appellees did not make a statutory construction argument before the lower courts, but at oral argument, the question was raised whether § 13k reached the types of conduct in which appellees engaged, and we should answer it. We agree with the United States that the statute covers the particular conduct of Zywicki or Grace and that it is therefore proper to reach the constitutional question involved in this case.
The statutory ban is on the display of a “flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.” 40 U. S. C. § 13k. It is undisputed that Grace’s picket sign containing the text of the First Amendment falls within the description of a “flag, banner, or device.” Although it is less obvious, it is equally uncontested that Zywicki’s leaflets fall within the proscription as well.
We also accept the Government’s contention, not contested by appellees, that almost any sign or leaflet carrying a communication, including Grace’s picket sign and Zywicki’s leaflets, would be “designed or adapted to bring into public notice [a] party, organization or movement.” Such a construction brings some certainty to the reach of the statute and hence avoids what might be other challenges to its validity.
HH hH I — I
The First Amendment provides that “Congress shall make no law. . . abridging the freedom of speech . . . .” There is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving “speech” protected by the First Amendment. E.g., Carey v. Brown, 447 U. S. 455, 460 (1980); Gregory v. Chicago, 394 U. S. 111, 112 (1969); Jamison v. Texas, 318 U. S. 413 (1943); Thornhill v. Alabama, 310 U. S. 88 (1940); Lovell v. Griffin, 303 U. S. 444 (1938); Schneider v. State, 308 U. S. 147 (1939).
It is also true that “public places” historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be “public forums.” See Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983); Carey v. Brown, supra, at 460; Hudgens v. NLRB, 424 U. S. 507, 515 (1976); Cox v. New Hampshire, 312 U. S. 569, 574 (1941); Hague v. CIO, 307 U. S. 496, 515 (1939). In such places, the government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Education Assn., supra, at 45. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 647, 654 (1981); Grayned v. City of Rockford, 408 U. S. 104, 115 (1972); Cox v. Louisiana, 379 U. S. 559 (1965) (Cox II). Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. See, e. g., Perry Education Assn., supra, at 46; Widmar v. Vincent, 454 U. S. 263 (1981).
Publicly owned or operated property does not become a “public forum” simply because members of the public are permitted to come and go at will. See Greer v. Spock, 424 U. S. 828, 836 (1976). Although whether the property has been “generally opened to the public” is a factor to consider in determining whether the government has opened its property to the use of the people for communicative purposes, it is not determinative of the question. We have regularly rejected the assertion that people who wish “to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.” Adderley v. Florida, 385 U. S. 39, 47-48 (1966). See, e. g., Cox v. Louisiana, 379 U. S. 536, 554-555 (1965) (Cox I); Cox II, supra, at 563-564. There is little doubt that in some circumstances the government may ban the entry on to public property that is not a “public forum” of all persons except those who have legitimate business on the premises. The government, “no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida, supra, at 47. See Cox II, supra, at 563-564.
IV
It is argued that the Supreme Court building and grounds fit neatly within the description of nonpublic forum property. Although the property is publicly owned, it has not been traditionally held open for the use of the public for expressive activities. As Greer v. Spock, supra, teaches, the property is not transformed into “public forum” property merely because the public is permitted to freely enter and leave the grounds at practically all times and the public is admitted to the building during specified hours. Under this view it would be necessary only to determine that the restrictions imposed by § 13k are reasonable in light of the use to which the building and grounds are dedicated and that there is no discrimination on the basis of content. We need not make that judgment at this time, however, because § 13k covers the public sidewalks as well as the building and grounds inside the sidewalks. As will become evident, we hold that § 13k may not be applied to the public sidewalks.
The prohibitions imposed by § 13k technically cover the entire grounds of the Supreme Court as defined in 40 U. S. C. § 13p. That section describes the Court grounds as extending to the curb of each of the four streets enclosing the block on which the building is located. Included within this small geographical area, therefore, are not only the building, the plaza and surrounding promenade, lawn area, and steps, but also the sidewalks. The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D. C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. In this respect, the present case differs from Greer v. Spock, supra. In Greer, the streets and sidewalks at issue were located within an enclosed military reservation, Fort Dix, N. J., and were thus separated from the streets and sidewalks of any municipality. That is not true of the sidewalks surrounding the Court. There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave. In United States Postal Service v. Greenburgh Civic Assns., 453 U. S. 114, 133 (1981), we stated that “Congress . . . may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums . . . .” The inclusion of the public sidewalks within the scope of § 13k’s prohibition, however, results in the destruction of public forum status that is at least presumptively impermissible. Traditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a nonpublic forum parcel of property. The public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.
V
The Government submits that § 13k qualifies as a reasonable time, place, and manner restriction which may be imposed to restrict communicative activities on public forum property such as sidewalks. The argument is that the inquiry should not be confined to the Supreme Court grounds but should focus on “the vicinity of the Supreme Court” or “the public places of Washington, D. C.” Brief for Appellants 16, n. 5. Viewed in this light, the Government contends that there are sufficient alternative areas within the relevant forum, such as the streets around the Court or the sidewalks across those streets to permit § 13k to be considered a reasonable “place” restriction having only a minimal impact on expressive activity. We are convinced, however, that the section, which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests that may be thought to undergird §13k. Our reasons for this conclusion will become apparent below, where we decide that § 13k, insofar as its prohibitions reach to the public sidewalks, is unconstitutional because it does not sufficiently serve those public interests that are urged as its justification.
Section 13k was part of an 11-section statute, enacted in 1949, “[r]elating to the policing of the building and grounds of the Supreme Court of the United States.” 63 Stat. 616, 40 U. S. C. §§ 13f-13p. The occasion for its passage was the termination of the practice by District of Columbia authorities of appointing Supreme Court guards as special policemen for the District. This action left the Supreme Court police force without authority to make arrests and enforce the law in the building and on the grounds of the Court. The Act, which was soon forthcoming, was modeled on the legislation relating to the Capitol grounds, 60 Stat. 718, 40 U. S. C. §§ 193a-193m. It authorizes the appointment by the Marshal of special officers “for duty in connection with the policing of the Supreme Court Building and grounds and adjacent streets.” Sections 2-6 of the Act prohibit certain kinds of conduct in the building or grounds. Section 6, codified as 40 U. S. C. § 13k, is at issue here. Other sections authorize the Marshal to issue regulations, provide penalties for violations of the Act or regulations, and authorize the Court’s special police to make arrests for violation of the Act’s prohibitions or of any law of the United States occurring within the building and grounds and on the adjacent streets. Section 11 of the Act, 13 U. S. C. § 13p, defines the limits of the Court’s grounds as including the sidewalks surrounding the building.
Based on its provisions and legislative history, it is fair to say that the purpose of the Act was to provide for the protection of the building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum. Section 6, 40 U. S. C. § 13k, was one of the provisions apparently designed for these purposes. At least, no special reason was stated for its enactment.
We do not denigrate the necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds, but we do question whether a total ban on carrying a flag, banner, or device on the public sidewalks substantially serves these purposes. There is no suggestion, for example, that appellees’ activities in any way obstructed the sidewalks or access to the building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds. As we have said, the building’s perimeter sidewalks are indistinguishable from other public sidewalks in the city that are normally open to the conduct that is at issue here and that § 13k forbids. A total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city. Accordingly, § 13k cannot be justified on this basis.
The United States offers another justification for § 13k that deserves our attention. It is said that the federal courts represent an independent branch of the Government and that their decisionmaking processes are different from those of the other branches. Court decisions are made on the record before them and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying, judges do not entertain visitors in their chambers for the purpose of urging that cases be resolved one way or another, and they do not and should not respond to parades, picketing, or pressure groups. Neither, the Government urges, should it appear to the public that the Supreme Court is subject to outside influence or that picketing or marching, singly or in groups, is an acceptable or proper way of appealing to or influencing the Supreme Court. Hence, we are asked to hold that Congress was quite justified in preventing the conduct in dispute here from occurring on the sidewalks at the edge of the Court grounds.
As was the case- with the maintenance of law and order on the Court grounds, we do not discount the importance of this proffered purpose for § 13k. But, again, we are unconvinced that the prohibitions of §13k that are at issue here sufficiently serve that purpose to sustain its validity insofar as the public sidewalks on the perimeter of the grounds are concerned. Those sidewalks are used by the public like other public sidewalks. There is nothing to indicate to the public that these sidewalks are part of the Supreme Court grounds or are in any way different from other public sidewalks in the city. We seriously doubt that the public would draw a different inference from a lone picketer carrying a sign on the sidewalks around the building than it would from a similar picket on the sidewalks across the street.
We thus perceive insufficient justification for § 13k’s prohibition of carrying signs, banners, or devices on the public sidewalks surrounding the building. We hold that under the First Amendment the section is unconstitutional as applied to those sidewalks. Of course, this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U. S. C. § 13l.
The judgment below is accordingly affirmed to the extent indicated by this opinion and is otherwise vacated.
So ordered.
The provision at issue in this case is part of a statutory scheme enacted in 1949 to govern the protection, care, and policing of the Supreme Court grounds. In its entirety § 13k provides:
“It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.” 63 Stat. 617.
The case Zywicki’s counsel referred to is United States v. Ebner, No. M-12487-79 (D. C. Super. Ct., Jan. 22, 1980). The ease is currently on appeal to the District of Columbia Court of Appeals; that court has postponed decision pending the outcome of the present appeal.
Grace v. Burger, 524 F. Supp. 815 (1980).
The court justified its action in this regard by relying primarily on the fact that the ease presented a pure question of law that had been fully briefed and argued by the parties both in the District Court and in the
Court of Appeals. Because the appellants do not take issue with the propriety of the Court of Appeals’ action in addressing the merits rather than remanding to the District Court, we will assume that such action was proper without deciding that question. Cf. Singleton v. Wulff, 428 U. S. 106 (1976).
Although the Court of Appeals opinion purports to hold § 13k unconstitutional on its face without any indication that the holding is limited to that portion of the statute that deals with the display of a “flag, banner, or device,” the decision must be read as limited to that prohibition.
The First Amendment provides in full:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The limitation on the hours during which the public is permitted in the Supreme Court building is the only regulation promulgated under 40 U. S. C. § 131. The regulation provides:
“The Supreme Court Building at 1 First Street, N. E., Washington, D. C. 20548, is open to the public Monday through Friday, from 9 a. m. to 4:30 p. m., except on Federal holidays. The building is closed at all other times, although persons having legitimate business may be admitted at other times when so authorized by responsible officials.”
Section 13p provides:
“For the purposes of sections 13f to 13p of this title the Supreme Court grounds shall be held to extend to the line of the face of the east curb of First Street Northeast, between Maryland Avenue Northeast and East Capitol Street; to the line of the face of the south curb of Maryland Avenue Northeast, between First Street Northeast and Second Street Northeast; to the line of the face of the west curb of Second Street Northeast, between Maryland Avenue Northeast and East Capitol Street; and to the line of the face of the north curb of East Capitol Street between First Street Northeast and Second Street Northeast.”
Because the prohibitions of § 13k are expressly made applicable to the entire grounds under § 13p, the statute cannot be construed to exclude the sidewalks. Thus we must consider Congress’ extension of § 13k’s prohibitions to the sidewalks to be a reasoned choice.
Section 13k does not prohibit all expressive conduct: it does not, for example, purport to prohibit any oral expression, on any subject. It is unnecessary, however, to determine what conduct other than the picketing and leafletting at issue here may be fairly within the terms of the statute because the statute at least prohibits the conduct at issue here. We do note that the current Marshal of the Court has interpreted and applied the statute to prohibit picketing and leafletting, but not other expressive conduct. See Grace v. Burger, 214 U. S. App. D. C. 375, 378, n. 7, 665 F. 2d 1193, 1196, n. 7 (1981). Interpreted and applied as an absolute ban on these two types of expressive conduct, it is clear that the prohibition is facially content-neutral.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appel1_4_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
John E. HAYCRAFT et al., Plaintiff s-Appellees, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, et al., Defendants-Appellants.
No. 76-2301.
United States Court of Appeals, Sixth Circuit.
Argued June 8, 1977.
Decided Aug. 23, 1977.
John A. Fulton, Will H. Fulton, Woodward, Hobson & Fulton, E. Preston Young, Louisville, Ky, for defendants-appellants.
Thomas L. Hogan, Galen Martin, Darrel T. Owens, John G. O’Mara, Louisville, Ky, for plaintiffs-appellees.
Before PHILLIPS, Chief Judge, and PECK and ENGEL, Circuit Judges.
JOHN W. PECK, Circuit Judge.
This latest aspect of the Louisville school desegregation case commenced in May of 1976, when District Judge Gordon conducted hearings concerning implementation of the July 30, 1975, desegregation plan and order approved by this Court in Cunningham v. Grayson, 541 F.2d 538 (6th Cir. 1976).
As a result of the May 1976 evidentiary hearings, Judge Gordon determined that the pupil population ratio in at least 28 elementary schools did not satisfactorily reflect the racial guidelines set forth in the July 30, 1975, desegregation order. Appellants do not dispute this finding on appeal. Having found that “the elementary school system in Jefferson County has never been in compliance with this Court’s desegregation decision,” and that this failure of compliance rendered the case outside the scope of Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), the district court on August 2, 1976, entered an amended order, which inter alia, altered the pupil assignment methodology of the July 30, 1975 desegregation order by requiring the busing of an additional 900 black pupils. The Board of Education of Jefferson County appeals from this August 2, 1976, amended desegregation order.
On appeal the Board of Education maintains that the district court exceeded its remedial powers in amending the plan without making any determination that the racial imbalance in these 28 elementary schools resulted from any additional segre-gative action on the part of the Board. This is, appellants argue, the precise issue resolved by Pasadena. We do not agree.
In the Pasadena case, the district court entered a desegregation order on January 23, 1970, requiring assignment of students in such a manner that no school within the district would have a majority of minority students (the “no majority” requirement). Only during the 1970-71 school year was the “no majority” requirement met. Thereafter, in 1974, the Board of Education sought to be relieved of the “no majority” requirement and the district court denied its motion. The Supreme Court reversed the decision of the district court, quoting Swann v. Board of Education, 402 U.S. 1, 31-32, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971):
“Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.” Pasadena, supra, 427 U.S. at 436, 96 S.Ct. at 2708. (emphasis added).
We conclude that the district court correctly determined that Pasadena is distinguishable from the instant case. This case is in the pre-compiiance rather than the post-compliance stage of implementation of Pasadena. As the Supreme Court has held “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Board of Education, supra, 402 U.S. at 15, 91 S.Ct. at 1276. We agree with the district court’s conclusion that nothing in Pasadena restricts its remedial powers so as to preclude modification of the student assignment portion of a desegregation plan, which had not, as of the time the modifications were ordered brought about the desegregation of the school system. See United States v. Seminole County School District, 553 F.2d 992 (5th Cir. 1977).
The judgment of the district court is affirmed.
. In this amended order, the district court also approved the report of a Special Committee, appointed May 6, 1976, and in conformity therewith, ordered implementation of procedures for hardship transfers and ordered the school board to keep open five elementary schools scheduled to be closed; and adopted the Board’s recommended voluntary transfer plan.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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").
Timothy Wesley McCORQUODALE, Petitioner-Appellant, v. Ralph M. KEMP, Superintendent, Georgia Diagnostic and Classification Center, Respondent-Appellee.
No. 87-8724.
United States Court of Appeals, Eleventh Circuit.
Sept. 20, 1987.
John R. Myer, Atlanta, Ga., Julius L. Chambers, John Charles Boger, NAACP Legal Defense and Educational Fund, Inc., New York City, for petitioner-appellant.
Michael A. Bowers, Atty. Gen. of Ga., Atlanta, Ga., Mary Beth Westmoreland, Asst. Atty. Gen., for respondent-appellee.
Before GODBOLD, KRAVITCH and HATCHETT, Circuit Judges.
PER CURIAM:
Timothy Wesley McCorquodale, convicted of murder and sentenced to death, appeals from the district court’s dismissal of his third federal petition for a writ of habeas corpus. The state of Georgia moved to dismiss the petition on the ground that the third petition raised a ground for relief that had already been raised in McCorquodale’s first federal habeas petition and decided adversely to petitioner on the merits. Rule 9(b) of the Rules Governing Proceedings in the District Court on application under section 2254 of Title 28, United States Code provides:
(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
The district court concluded that McCorquodale’s third petition raised no new ground for relief and that prior determination had been on the merits. The court further concluded, following Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), that controlling weight could be given to the prior denial of McCorquodale’s petition for habeas corpus because the “ends of justice would not be served by reaching the merits of the subsequent application.”
In his first federal petition, McCorquodale argued that his trial had been rendered fundamentally unfair by a statement in the prosecutor’s closing argument to the jury. After remarking to the jury that it had a “vital contribution which you are now considering and will be deliberating on,” the prosecutor stated, “And after your decision, the Appellate Court will have a very important responsibility.” A panel of this court, following the Supreme Court case of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), held that “[i]n the context of the entire trial, the remark was not sufficiently prejudicial so as to render the trial fundamentally unfair.” The panel opinion noted that the trial court gave a curative instruction. McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983). This portion of the panel opinion was adopted by the court en banc. McCorquodale v. Balkcom, 721 F.2d 1493, 1502 (11th Cir.1983), cert, denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984).
McCorquodale now challenges the same remark in the prosecutor’s closing argument, but on eighth amendment grounds. He argues that Caldwell v. Mississippi, 472 U.S. 320,105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), decided since the filing of his prior habeas petition, held that prosecutorial remarks to the jury that emphasize appellate review in capital eases violate the eighth amendment because they tend to undermine the jury’s sense of its own responsibility as the body with the duty to determine whether or not to impose the death penalty. Because the Caldwell decision was delivered after this court’s decision on the merits in his first habeas petition, petitioner argues that Caldwell represents new law, and that his petition should not be dismissed under Rule 9(b).
As this court noted in Adams v. Dugger, 816 F.2d 1493, 1496 n. 2 (11th Cir.1987), our previous decision on McCorquodale’s first habeas petition gave no indication that the eighth amendment was implicated by statements regarding appellate review. Moreover, the state of the case law prior to Caldwell, gave no indication that such statements might violate the eighth amendment. Although the Supreme Court in Donnelly v. DeChristoforo criticized such statements, it observed that the case was not one in which a specific guarantee of the Bill of Rights was violated but rather whether the closing argument had violated due process. 416 U.S. at 643, 94 S.Ct. at 1871. Caldwell was the first Supreme Court case to hold that prosecutorial statements regarding appellate review might violate the eighth amendment. Furthermore, the state of eighth amendment law at the time of the filing of McCorquodale’s first petition was not sufficiently developed to give a clear indication that such prosecutorial statements raised an eighth amendment issue. See Adams v. Dugger, 816 F.2d at 1495. We conclude that Caldwell represented new law; thus a Caldwell violation, if proven, would present new grounds for relief. We therefore grant the motion for Certificate of Probable Cause.
We turn then to McCorquodale’s petition to determine whether it raises a viable Caldwell claim. McCorquodale argues that the prosecutor’s statements regarding the important responsibility of the appellate court encouraged the jury to abandon its crucial function as primary sentencer, and that the curative instruction given by the trial court failed to correct the damage. After the prosecutor told the jury about the appellate court’s “important responsibility,” the court gave the following curative instructions:
This portion of the argument made by the District Attorney is highly improper and I quote. And after your decision the Appellate Court will have an important responsibility. End of quote.
Now ladies and Gentlemen, I urge this brief instruction, that you eliminate from your minds any consideration whatsoever respecting that particular portion of the District Attorney’s argument, ladies and gentlemen. Give it no consideration whatsoever, insofar as you are concerned as jurors. This case is concluded when you return your verdict. As a matter of fact, theoretically, insofar as this Court is concerned, it’s concluded, ladies and gentlemen. Give that remark no consideration whatsoever. Eliminate it from your minds as though it was never made and ladies and gentlemen, again, I would request, to be very assured, to disregard what is a highly improper remark.
As the district court observed, what the trial court did here is far different from the actions of the court in Caldwell. In Caldwell, the trial judge not only failed to correct the prosecutor’s remarks but in fact stated to the jury that the remarks had been proper and necessary. 472 U.S. at 324, 105 S.Ct. at 2636, 86 L.Ed.2d at 237. See also Adams v. Wainwright, 804 F.2d 1526, 1532 (11th Cir.1986), modified in part sub nom. Adams v. Dugger, 816 F,2d 1493 (11th Cir.1987). In Caldwell, however, the Supreme Court did not say that any reference to appellate review would constitute ground for reversal; rather it stated that “[sjuch comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment.” 472 U.S. at 340, 105 S.Ct. at 2645, 86 L.Ed.2d at 246 (emphasis added). The Caldwell Court also distinguished Donnelly v. DeChristoforo, pointing out that in Donnelly, the trial judge had given the jury a “strong curative instruction.” Id. at 339, 105 S.Ct. at 2645, 86 L.Ed.2d at 246. The question then is whether the trial judge in this case sufficiently corrected the impression left by the prosecutor.
Here, the court immediately instructed the jury to eliminate the prosecutor’s improper argument from its consideration and told the jury, “This case is concluded when you return your verdict.” The trial court properly did more than merely instruct the jury to disregard the prosecutor’s statement; it advised the jury that the statement was “highly improper” and that the case ended with the jury’s decision. This admonishment was sufficient to correct any improper impression that the prosecutor may have sought to impart.
We conclude therefore that McCorquodale has failed to show a Caldwell eighth amendment violation. Accordingly, we AFFIRM the judgment of the district court dismissing the petition for habeas corpus.
We deny the motion for oral argument.
We deny the motion for a stay of execution.
. Because we base our decision on the curative instruction given by the trial judge, we do not address whether, had it not been corrected, the prosecutor’s remark in this case would have been constitutionally impermissive.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
sc_petitioner
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
PACILEO, SHERIFF v. WALKER
No. 79-2040.
Decided December 8, 1980
Per Curiam.
The United States Constitution provides that “[a] person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” Art. IV, § 2, cl. 2.
In this case, there is no dispute as to the facts necessary to resolve the legal question presented. In 1975, respondent James Dean Walker escaped from the Arkansas Department of Corrections and remained at large until he was apprehended in California in 1979. In December 1979, the Governor of Arkansas requested the arrest and rendition of respondent, alleging that respondent was a fugitive from justice. In February 1980, the Governor of California honored the request of the Governor of Arkansas and duly issued a warrant of arrest and rendition. This warrant was then served upon respondent by the Sheriff of El Dorado County, Cal. Respondent thereafter challenged the Governor’s issuance of the warrant in both state and federal courts. He was unsuccessful until he reached the Supreme Court of California, which, on April 9, 1980, issued a writ of habeas corpus directing the Superior Court of El Dorado County to “conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter to decide the petition on its merits.”
Petitioner Sheriff contends that Art. IV, § 2, cl. 2, and its implementing statute, 18 U. S. C. § 3182, do not give the courts of the “asylum” or “sending” State authority to inquire into the prison conditions of the “demanding” State. We agree. In Michigan v. Doran, 439 U. S. 282 (1978), our most recent pronouncement on the subject, we stated that “[interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution.” Id., at 288. We further stated:
“A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. . . . Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Id., at '289.
In Sweeney v. Woodall, 344 U. S. 86 (1952), this Court held that a fugitive from Alabama could not raise in the federal courts of Ohio, the asylum State, the constitutionality of his confinement in Alabama. We stated:
“Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief, if any is necessary, may be fashioned.” Id., at 90.
We think that the Supreme Court of California ignored the teachings of these cases when it directed one of its own trial courts of general jurisdiction to conduct an inquiry into the present conditions of the Arkansas penal system. Once the Governor of California issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. “To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2.” Michigan v. Doran, supra, at 290.
The petition for certiorari is granted, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_caseorigin
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160
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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.
TYLER PIPE INDUSTRIES, INC. v. WASHINGTON STATE DEPARTMENT OF REVENUE
No. 85-1963.
Argued March 2, 1987
Decided June 23, 1987
Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and O’Connor, JJ., joined, and in Part IV of which Scalia, J., joined. O’Connor, J., filed a concurring opinion, post, p. 253. Scalia, J., filed an opinion concurring in part and dissenting in part, in Part I of which Rehnquist, C. J., joined, post, p. 254. Powell, J., took no part in the consideration or decision of the cases.
Neil J. O’Brien argued the cause for appellant in No. 85-1963. With him on the briefs was Peter J. Turner. D. Michael Young argued the cause for appellants in No. 85-2006. With him on the briefs were John T. Piper and Franklin G. Dinces.
William Berggren Collins, Assistant Attorney General of Washington, argued the cause for appellee in both cases. With him on the brief were Kenneth O. Eikenberry, Attorney General, and James R. Tuttle, Leland T. Johnson, and Timothy R. Malone, Assistant Attorneys General.
Together with No. 85-2006, National Can Corp. et al. v. Washington State Department of Revenue, also on appeal from the same court.
E. Barrett Prettyman, Jr., and John G. Roberts, Jr., filed a brief for Ameord, Inc., et al. as amici curiae urging reversal in No. 85-2006. Jean A. Walker filed a brief for the Committee on State Taxation of the Council of State Chambers of Commerce as amicus curiae urging reversal in both cases.
Benna Ruth Solomon and Mark C. Rutzick filed a brief for the National Governors’ Association et al. as amici curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
In Armco Inc. v. Hardesty, 467 U. S. 638 (1984), we held that West Virginia’s gross receipts tax on the business of selling tangible property at wholesale discriminated against interstate commerce because it exempted local manufacturers. The principal question in these consolidated appeals is whether Washington’s manufacturing tax similarly violates the Commerce Clause of the Constitution because it is assessed only on those products manufactured within Washington that are sold to out-of-state purchasers. We conclude that our reasons for invalidating the West Virginia tax in Armco also apply to the Washington tax challenged here.
I
For over half a century Washington has imposed a business and occupation (B & 0) tax on “the act or privilege of engaging in business activities” in the State. Wash. Rev. Code § 82.04.220 (1985). The tax applies to the activities of extracting raw materials in the State, manufacturing in the State, making wholesale sales in the State, and making retail sales in the State. The State has typically applied the same tax rates to these different activities. The measure of the selling tax is the “gross proceeds of sales,” and the measure of the manufacturing tax is the value of the manufactured products. §§ 82.04.220, 82.04.240.
Prior to 1950, the B & O tax contained a provision that exempted persons who were subject to either the extraction tax or the manufacturing tax from any liability for either the wholesale tax or the retail tax on products extracted or manufactured in the State. Thus, the wholesale tax applied to out-of-state manufacturers but not to local manufacturers. In 1948 the Washington Supreme Court held that this wholesale tax exemption for local manufacturers discriminated against interstate commerce and therefore violated the Commerce Clause of the Federal Constitution. Columbia Steel Co. v. State, 30 Wash. 2d 658, 192 P. 2d 976 (1948). The State Supreme Court rejected the State’s argument that the taxpayer had not suffered from discrimination against interstate commerce because it had not proved that it paid manufacturing tax to another State. The Washington Supreme Court also dismissed the State’s contention that if the State in which a good was manufactured did not impose a manufacturing tax, the seller of the good would have a competitive advantage over Washington manufacturers:
“[T]he situation obtaining in another state is immaterial. We must interpret the statute as passed by the legislature. In our opinion the statute marks a discrimination against interstate commerce in levying a tax upon wholesale activities of those engaged in interstate commerce, which tax is, because of the exemption contained in § 8370-6, not levied upon those who perform the same taxable act, but who manufacture in the state of Washington.” Id., at 664, 192 P. 2d, at 979.
Two years later, in 1950, the Washington Legislature responded to this ruling by turning the B & 0 tax exemption scheme inside out. The legislature removed the wholesale tax exemption for local manufacturers and replaced it with an exemption from the manufacturing tax for the portion of manufacturers’ output that is subject to the wholesale tax. The result, as before 1950, is that local manufacturers pay the manufacturing tax on their interstate sales and out-of-state manufacturers pay the wholesale tax on their sales in Washington. Local manufacturer-wholesalers continue to pay only one gross receipts tax, but it is now applied to the activity of wholesaling rather than the activity of manufacturing. Although the tax rate has changed over the years — it is now forty-four hundredths of one percent, or 0.44%, of gross receipts — the relevant provisions of Washington’s B & O tax are the same today as enacted in 1950.
The constitutionality of the B & 0 tax has been challenged on several occasions, most strenuously in General Motors Corp. v. Washington, 377 U. S. 436 (1964). In that case a bare majority of the Court upheld the tax; Justice Brennan and Justice Goldberg filed dissenting opinions. The bulk of the Court’s opinion was devoted to rejecting the claims that the statute unconstitutionally taxed unapportioned gross receipts and did not bear a reasonable relation to the taxpayer’s in-state activities. At the end of its opinion, the Court declined to reach the argument that the tax imposed multiple tax burdens on interstate transactions, because the taxpayer had failed to demonstrate “what definite burden, in a constitutional sense” other States’ laws had placed on “the identical interstate shipments by which Washington measures its tax.” Id., at 449. Justice Goldberg, joined by Justice Stewart and Justice White, dissented because “[t]he burden on interstate commerce and the dangers of multiple taxation” were apparent from the face of the statute. Id., at 459. Comparing the current statute with its invalid predecessor, this dissent concluded that the “amended provision would seem to have essentially the same economic effect on interstate sales but has the advantage of appearing nondiscriminatory.” Id., at 460. Today we squarely address the claim that this provision discriminates against interstate commerce.
II
Two appeals are before us. In the first case (No. 85-2006), 71 commercial enterprises filed 53 separate actions for refunds of B & 0 taxes paid to the State. The Thurston County Superior Court joined the actions, found that the multiple activities exemption did not violate the Commerce Clause, and granted the State Department of Revenue’s motion for summary judgment. In the second case (No. 85-1963), Tyler Pipe Industries, Inc. (Tyler), sought a refund of B & 0 taxes paid during the years 1976 through 1980 for its wholesaling activities in Washington. Again, the Superior Court upheld the B & O tax. The Washington Supreme Court affirmed in both cases. 105 Wash. 2d 327, 732 P. 2d 134 (1986); 105 Wash. 2d 318, 715 P. 2d 123 (1986).
The State Supreme Court concluded that the B & O tax was not facially discriminatory and rejected the appellants’ arguments that our decision invalidating West Virginia’s exemption for local wholesaler-manufacturers, Armco Inc. v. Hardesty, 467 U. S. 638 (1984), required that the B & O tax be invalidated. The state court expressed the view that the West Virginia wholesale tax imposed on out-of-state manufacturers in Armco could not be justified as a compensating tax because of the substantial difference between the State’s tax rates on manufacturing activities (.0088) and wholesaling activities (.0027), and because West Virginia did not provide for a reduction in its manufacturing tax when the manufactured goods were sold out of State, but did reduce the tax when the goods were partly manufactured out of State. The Washington Supreme Court then concluded that our requirement that a tax must have “‘what might be called internal consistency — that is the [tax] must be such that, if applied by every jurisdiction,’ there would be no impermissible interference with free trade,” Armco, 467 U. S., at 644, was not dispositive because it merely relieved the taxpayer of the burden of proving that a tax already demonstrated to be facially discriminatory had in fact resulted in multiple taxation. The Washington Supreme Court also rejected the taxpayers’ arguments that the B & 0 tax is not fairly apportioned to reflect the amount of business conducted in the State and is not fairly related to the services rendered by Washington.
We noted probable jurisdiction of the taxpayers’ appeals, 479 U. S. 810 (1986), and now reverse in part and affirm in part. We first consider the claims of the taxpayers that have manufacturing facilities in Washington and market their products in other States; their challenge is directed to the fact that the manufacturing tax is levied only on those goods manufactured in Washington that are sold outside the State. We then consider Tyler’s claims that its activities in the State of Washington are not sufficient to subject it to the State’s taxing jurisdiction and that the B & 0 tax is not fairly apportioned.
Ill
A person subject to Washington’s wholesale tax for an item is not subject to the State’s manufacturing tax for the same item. This statutory exemption for manufacturers that sell their products within the State has the same facially discriminatory consequences as the West Virginia exemption we invalidated in Armco. West Virginia imposed a gross receipts tax at the rate of 0.27% on persons engaged in the business of selling tangible property at wholesale. Local manufacturers were exempt from the tax, but paid a manufacturing tax of ■0.88% on the value of products manufactured in the State. Even though local manufacturers bore a higher tax burden in dollars and cents, we held that their exemption from the wholesale tax violated the principle that “a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.” 467 U. S., at 642.
In explaining why the tax was discriminatory on its face, we expressly endorsed the reasoning of Justice Goldberg’s dissenting opinion in General Motors Corp. v. Washington, 377 U. S., at 459. We explained:
“The tax provides that two companies selling tangible property at wholesale in West Virginia will be treated differently depending on whether the taxpayer conducts manufacturing in the State or out of it. Thus, if the property was manufactured in the State, no tax on the sale is imposed. If the property was manufactured out of the State and imported for sale, a tax of 0.27% is imposed on the sale price. See General Motors Corp. v. Washington, 377 U. S. 436, 459 (1964) (Goldberg, J., dissenting) (similar provision in Washington, ‘on its face, discriminated against interstate wholesale sales to Washington purchasers for it exempted the intrastate sales of locally made products while taxing the competing sales of interstate sellers’); Columbia Steel Co. v. State, 30 Wash. 2d 658, 664, 192 P. 2d 976, 979 (1948) (invalidating Washington tax).” 467 U. S., at 642.
Our square reliance in Armco on Justice Goldberg’s earlier dissenting opinion is especially significant because that dissent dooms appellee’s efforts to limit the reasoning of Armco to the precise statutory structure at issue in that case. Justice Goldberg expressly rejected the distinction appellee attempts to draw between an exemption from a wholesaling tax — as was present in Armco — and the exemption from a manufacturing tax which was present in General Motors and is again present in these cases. See 377 U. S., at 459-460. Our holding in Armco requires that we now agree with Justice Goldberg’s conclusion that the exemption before us is the practical equivalent of the exemption that the Washington Supreme Court invalidated in 1948.
General Motors is not a controlling precedent. As we have already noted, the result in that case did not depend on the Court’s resolution of whether the tax burdened interstate commerce. Our reason for not passing on that question was that the taxpayer had “not demonstrated what definite burden, in a constitutional sense [the tax imposed by other States] places on the identical shipments by which Washington measures its tax.” 377 U. S., at 449. Thus, when General Motors was decided, the Court required the taxpayer to prove that specific interstate transactions were subjected to multiple taxation in order to advance a claim of discrimination. See also Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U. S. 560, 563 (1975) (rejecting Commerce Clause claim because taxpayer made no showing of risk of multiple taxation). In Armco, however, we categorically rejected this requirement. The facial unconstitutionality of Washington’s gross receipts tax cannot be alleviated by examining the effect of legislation enacted by its sister States. See Moorman Mfg. Co. v. Bair, 437 U. S. 267, 276-278 (1978).
We also reject the Department’s contention that the State’s imposition of the manufacturing tax on local goods sold outside the State should be saved as a valid “compensating tax.” As we noted in Maryland v. Louisiana, 451 U. S. 725, 758 (1981), the “concept of a compensatory tax first requires identification of the burden for which the State is attempting to compensate.” In these cases the only burden for which the manufacturing tax exemption is arguably compensatory is the State’s imposition of a wholesale tax on the local sales of local manufacturers; absent the exemption, a local manufacturer might be at an economic disadvantage because it would pay both a manufacturing and a wholesale tax, while the manufacturer from afar would pay only the wholesale tax. The State’s justification for thus taxing the manufacture of goods in interstate commerce, however, fails under our precedents. The local sales of out-of-state manufacturers are also subject to Washington’s wholesale tax, but the multiple activities exemption does not extend its ostensible compensatory benefit to those manufacturers. The exemption thus does not merely erase a tax incentive to engage in interstate commerce instead of intrastate commerce; it affirmatively places interstate commerce at a disadvantage.
“[T]he common theme running through the cases in which this Court has sustained compensating” taxes is “[ejqual treatment of interstate commerce. ” Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 331 (1977). See also Maryland v. Louisiana, 451 U. S., at 759. In Boston Stock Exchange, a New York, transfer tax on securities transactions taxed transactions involving an out-of-state sale more heavily than other transactions involving an in-state sale. We invalidated the tax, rejecting the State’s claim that it was compensatory legislation designed to neutralize the competitive advantage enjoyed by stock exchanges outside New York. We concluded:
“Because of the delivery or transfer in New York, the~ seller cannot escape tax liability by selling out of State, but he can substantially reduce his liability by selling in State. The obvious effect of the tax is to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges. Rather than ‘compensating’ New York for a supposed competitive disadvantage resulting from § 270, the amendment forecloses tax-neutral decisions and creates both an advantage for the exchanges in New York and a discriminatory burden on commerce to its sister States.” 429 U. S., at 331.
Similarly, in Maryland v. Louisiana, we held that a tax on the first use in Louisiana of gas brought into the State was not a “complement of a severance tax in the same amount imposed on gas produced within the State.” Armco, 467 U. S., at 642-643, citing Maryland v. Louisiana, 451 U. S., at 758-759. We relied on the observation that severance and first use were not “substantially equivalent” events on which mutually compensating taxes might be imposed. And in Armco we squarely held that manufacturing and wholesaling are not substantially equivalent activities. As we wrote in that case:
“The gross sales tax imposed on Armco cannot be deemed a ‘compensating tax’ for the manufacturing tax imposed on its West Virginia competitors.... Here, too, manufacturing and wholesaling are not ‘substantially equivalent events’ such that the heavy tax on in-state manufacturers can be said to compensate for the admittedly lighter burden placed on wholesalers from out of State. Manufacturing frequently entails selling in the State, but we cannot say which portion of the manufacturing tax is attributable to manufacturing, and which portion to sales.” 467 U. S., at 642-643.
See also Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 272 (1984). In light of the facially discriminatory nature of the multiple activities exemption, we conclude, as we did in Armco, that manufacturing and wholesaling are not “substantially equivalent events” such that taxing the manufacture of goods sold outside the State can be said to compensate for the State’s inability to impose a wholesale tax on those goods.
Appellee also contends that its B & 0 tax is valid because of its asserted similarities to a tax and exemption system we have upheld. The State assessed a use tax on personal property used within the State but originally purchased elsewhere to compensate for the burden that a sales tax placed on similar property purchased within the State. See Henneford v. Silas Mason Co., 300 U. S. 577 (1937). Appellee’s reliance on Henneford v. Silas Mason Co., however, does not aid its cause. That case addressed a use tax imposed by the State of Washington on the “privilege of using within this state any article of tangible personal property.” The tax did not apply to “the use of any article of tangible personal property” the sale or use of which had already been taxed at an equal or greater rate under the laws of Washington or some other State. Id., at 580-581. We upheld the tax because, in the context of the overall tax structure, the burden it placed on goods purchased out-of-state was identical to that placed on an equivalent purchase within the State. This identical impact was no fortuity; it was guaranteed by the statutory exemption from the use tax for goods on which a sales tax had already been paid, regardless of whether the sales tax had been paid to Washington or to another State. As we explained in Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 70 (1963):
“The conclusion is inescapable: equal treatment for instate and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.”
The parallel condition precedent for a valid multiple activities exemption eliminating exposure to the burden of a multiple tax on manufacturing and wholesaling would provide a credit against Washington tax liability for wholesale taxes paid by local manufacturers to any State, not just Washington. The multiple activities exemption only operates to impose a unified tax eliminating the risk of multiple taxation when the acts of manufacturing and wholesaling are both carried out within the State. The exemption excludes similarly situated manufacturers and wholesalers which conduct one of those activities within Washington and the other activity outside the State. Washington’s B & 0 tax scheme is therefore inconsistent with our precedents holding that a tax violates the Commerce Clause “when it unfairly burdens commerce by exacting more than a just share from the interstate activity.” Washington Dept. of Revenue v. Association of Washington Stevedoring Cos., 435 U. S. 734, 748 (1978).
As we explained in Armco, our conclusion that a tax facially discriminates against interstate commerce need not be confirmed by an examination of the tax burdens imposed by other States:
“Appellee suggests that we should require Armco to prove actual discriminatory impact on it by pointing to a State that imposes a manufacturing tax that results in a total burden higher than that imposed on Armco’s competitors in West Virginia. This is not the test. In Container Corp. of America v. Franchise Tax Board, 463 U. S. 159, 169 (1983), the Court noted that a tax must have ‘what might be called internal consistency — that is the [tax] must be such that, if applied by every jurisdiction,’ there would be no impermissible interference with free trade. In that case, the Court was discussing the requirement that a tax be fairly apportioned to reflect the business conducted in the State. A similar rule applies where the allegation is that a tax on its face discriminates against interstate commerce. A tax that unfairly apportions income from other States is a form of discrimination against interstate commerce. See also id., at 170-171. Any other rule would mean that the constitutionality of West Virginia’s tax laws would depend on the shifting complexities of the tax codes of 49 other States, and that the validity of the taxes imposed on each taxpayer would depend on the particular other States in which it operated.” 467 U. S., at 644-645 (footnote omitted).
We conclude that Washington’s multiple activities exemption discriminates against interstate commerce as did the tax struck down by the Washington Supreme Court in 1948 and the West Virginia tax that we invalidated in Armco. The current B & 0 tax exposes manufacturing or selling activity outside the State to a multiple burden from which only the activity of manufacturing in-state and selling in-state is exempt. The fact that the B & O tax “has the advantage of appearing nondiscriminatory,” see General Motors Corp., 377 U. S., at 460 (Goldberg, J., dissenting), does not save it from invalidation. To the extent that this conclusion is inconsistent with the Court’s ruling in the General Motors case, that case is overruled.
IV
Our holding that Washington’s tax exemption for a local manufacturer-wholesaler violates the Commerce Clause disposes of the issues raised by those appellants in National Can that manufacture goods in Washington and sell them outside the State, as well as the claim of discrimination asserted by those appellants that manufacture goods outside Washington and sell them within the State. Compliance with our holding on the discrimination issue, however, would not necessarily preclude the continued assessment of a wholesaling tax. Either a repeal of the manufacturing tax or an expansion of the multiple activities exemption to provide out-of-state manufacturers with a credit for manufacturing taxes paid to other States would presumably cure the discrimination. We must therefore also consider the alternative challenge to the wholesale tax advanced by Tyler and the other appellants that manufacture products outside of Washington for sale in the State.
Tyler seeks a refund of wholesale taxes it paid on sales to customers in Washington for the period from January 1, 1976, through September 30, 1980. These products were manufactured outside of Washington. Tyler argues that its business does not have a sufficient nexus with the State of Washington to justify the collection of a gross receipts tax on its sales. Tyler sells a large volume of cast iron, pressure and plastic pipe and fittings, and drainage products in Washington, but all of those products are manufactured in other States. Tyler maintains no office, owns no property, and has no employees residing in the State of Washington. Its solicitation of business in Washington is directed by executives who maintain their offices out-of-state and by an independent contractor located in Seattle.
The trial court found that the in-state sales representative engaged in substantial activities that helped Tyler to establish and maintain its market in Washington. The State Supreme Court concluded that those findings were supported by the evidence, and summarized them as follows:
“The sales representatives acted daily on behalf of Tyler Pipe in calling on its customers and soliciting orders. They have long-established and valuable relationships with Tyler Pipe’s customers. Through sales contacts, the representatives maintain and improve the name recognition, market share, goodwill, and individual customer relations of Tyler Pipe.
“Tyler Pipe sells in a very competitive market in Washington. The sales representatives provide Tyler Pipe with virtually all their information regarding the Washington market, including: product performance; competing products; pricing, market conditions and trends; existing and upcoming construction products; customer financial liability; and other critical information of a local nature concerning Tyler Pipe’s Washington market. The sales representatives in Washington have helped Tyler Pipe and have a special relationship to that corporation. The activities of Tyler Pipe’s agents in Washington have been substantial.” 105 Wash. 2d, at 325, 715 P. 2d, at 127.
As a matter of law, the Washington Supreme Court concluded that this showing of a sufficient nexus could not be defeated by the argument that the taxpayer’s representative was properly characterized as an independent contractor instead of as an agent. We agree with this analysis. In Scripto, Inc. v. Carson, 362 U. S. 207 (1960), Scripto, a Georgia corporation, had no office or regular employees in Florida, but it employed wholesalers or jobbers to solicit sales of its products in Florida. We held that Florida may require these solicitors to collect a use tax from Florida customers. Although the “salesmen
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Answer:
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songer_r_fiduc
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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 respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. Louise MISCHKE, Appellee.
No. 16444.
United States Court of Appeals Eighth Circuit.
Jan. 18, 1961.
Roger P. Marquis, Attorney, Lands Div., Dept, of Justice, Washington, D. C., Terry W. Morton, Asst. Atty. Gen., and ■Ciaron C. Spencer, Attorney, Lands Div., .Dept, of Justice, Washington, D. C., and 'William C. Spire, U. S. Atty., Omaha, .Neb., and Guy J. Birch, Asst. U. S. Atty., Lincoln, Neb., on the brief, for appellant.
John A. Engel, Avon, S. D., Henry A. •Gunderson, Fremont, Neb., on the brief, for appellee.
Before SANBORN, WOODROUGH • and MATTHES, Circuit Judges.
SANBORN, Circuit Judge.
This is an appeal from an order in a •condemnation proceeding instituted by the United States in 1955 to acquire 1,-'712.89 acres of land in Knox County, Nebraska, for purposes of flood control in the Missouri River and for use in conmeetion with the construction and operation of the Gavins Point Dam and Reservoir. The effect of the order appealed from was to return to Louise Mischke ■42.5 acres of a 700-acre tract designated in the proceeding as Tract B-208-1, -which had been taken by the Government.
The complaint in condemnation, the (Declaration of Taking signed by the Secretary of the Army, and his letter asking that the Attorney General take action to acquire the lands which the Secretary had determined to be necessary and advantageous for use in connection with the •construction and operation of the Gavins Point Dam and Reservoir Project, were filed on April 5, 1955. The deposit of ■ estimated compensation was made at the same time. The District Court thereupon entered judgment on the Declaration of Taking, vesting title to the lands, •subject to certain easements, in the United States. Included in the taking was Tract B-208-1.
On May 19, 1955, Louise Mischke filed .an answer in which she alleged:
“Defendant denies specifically that it is necessary for the plaintiff to take the quantity of land sought to be condemned in said complaint and .alleges that a portion of said tract ■sought to be condemned by the plaintiff is to be used for recreational purposes and is not authorized under the Acts of Congress cited in the complaint and notice in condemnation, and that as to that portion of land to be used for recreational purposes the condemnation of said tract is not authorized by law; ‘that the taking of additional land [The original shows the word “Amendment” in the margin opposite the last three lines.] was arbitrary and capricious and beyond the discretion of the Secretary of the Army.’ ”
The Government on October 31, 1955, moved to strike this allegation of the answer and the demand that its complaint be dismissed as to that portion of the land allegedly “taken for recreational purposes and which is not authorized by law,” as raising an insufficient defense. Other former owners of lands taken for this dam and reservoir project had also filed answers containing similar defenses, which the Government had moved to strike. The motions, including that of Louise Mischke, were heard by Judge Delehant. In a comprehensive memorandum opinion filed January 14, 1956, he said:
“Briefly evaluated, the challenged material in the several answers has as its objective, in the case of each tract involved, the final denial on its merits of the right of the plaintiff to take in condemnation in the proceeding actually pending a part of the land described in the Declaration of Taking and in the complaint; and each motion attempts summarily to strike that issue and position from the case.”
He concluded that the issues raised by the motions to strike should not be disposed of summarily but should be set for trial by the court without a jury, and that
“At such trial the defendant former owner or owners of each tract in respect of which the point shall continue to be urged will be required to go forward with evidence considered to support the factual position taken in the answer and plaintiff will be required to produce any evidence on which it may rely in opposition.”
The issue raised by Louise Mischke’s answer came on for trial in June, 1959, before Judge Van Pelt, without a jury. Evidence was introduced, as directed in Judge Delehant’s opinion of January 14, 1956, — that of Louise Mischke, in support of her allegation, tending to prove that, of the 700-acre tract taken from her by the Government, 42.5 acres were not needed for use in connection with the construction or operation of the dam and reservoir and were intended to be used for recreational purposes. There was evidence on behalf of the Government that the 42.5 acres were needed for use as means of access to the reservoir, as well as a place for the parking of cars and the launching of boats by persons visiting the reservoir for purpose of recreation.
The trial judge was fully aware that it was doubtful that the issue of the need or expediency of taking the 42.5 acres in controversy was subject to judicial review. In his unreported memorandum opinion, filed October 1, 1959, he said: “The difficult question is the Court’s right, if any, to go behind the decision of the Secretary of Interior [the Army].” That presents the sole question which this Court is called upon to decide. There can be no question that the 1,712.-89 acres were being acquired for a public purpose; that Congress had authorized the taking and had delegated to the Secretary of the Army the authority to select the lands necessary to be taken; and that among the lands selected by him was the 700-acre tract B-208-1 belonging to Louise Mischke.
As evidenced by his memorandum opinion, the trial judge gave careful consideration to the issue raised by the answer of Louise Mischke. We quote the following from the opinion:
“Under Section 40 U.S.C.A. 258A it is necessary for the United States of America to set forth the public use for which these lands are taken.
“Paragraph 3 of the Complaint alleges : ‘The use for which the property is to be taken is to adequately provide for flood control in the Missouri River Basin and for uses incident thereto. [The land to be taken has been selected for acquisition by the United States for use in connection with the construction and establishment of the] Gavins Point Dam and Reservoir in the Missouri River, and for such other uses as may be authorized by Congress or by Executive Order.’
“The 42.5 acres is not needed for flood control and the Court so finds.
“It is not needed for a use authorized by Congress or Executive Order. This is substantiated by the fact that the Complaint has not attempted to set forth such a use. It is clear that its use is to be for recreation. It is clear that Plaintiff does not intend to develop that use but is going to turn it over to the State of Nebraska. The Court believes it clear that originally it was. not contemplated to take land for or develop recreational areas.
“Without the request of Governor Crosby [of Nebraska] and Paul T., Gilbert [Secretary of the Game, Forestation and Parks Commission, of Nebraska] the 42.5 acres would, not be included in the taking. The-taking is against the judgment of the Chief of the Real Estate Division in Omaha. This Court feels that the Secretary bowed to the Governor and Mr. Gilbert’s wishes and therefore there was no adequate determining principle used in the taking. The result is, this Court believes, that the Secretary’s action is thereby arbitrary and capricious.
“The Court finds that the landowner has maintained the burden on her of showing that the action was-arbitrary and capricious and without, an adequate determining principle.. The facts of this case distinguish it. from United States v. Willis [8 Cir.], 211 F.2d 1, and that case is therefore not controlling here except, on the burden of proof.”
Based upon this determination, the trial •court ordered that the Judgment on Declaration of Taking insofar as it affects Tract B-208-1 be modified so that the complaint in condemnation and the ■Judgment be dismissed as to the 42.5 acres, and that those acres be revested in Louise Mischke. This appeal by the Gov■ernment followed.
If the trial judge had jurisdiction to review the determination of the Secretary of the Army relative to the necessity or expediency of the Government’s acquisition of the lands which he had selected for condemnation, we would be of the opinion that the redetermination of the question by the judge had evidentiary support. It may be inferred from the evidence that, whatever use the 42.5-acre tract may have as a means for furnishing or improving access to the reservoir, that tract would largely be used and useful as a recreational area for persons visiting the reservoir.
For the purposes of this opinion, it may be assumed that it was unnecessary to include the 42.5 acres in Tract B-208-1; that the inclusion of them in that tract by the Secretary of the Army was ■due to the request of the Governor of Nebraska and the Secretary of its Game, .Forestation and Parks Commission; and that the Government may intend to turn the 42.5 acres over to the State of Nebraska. Those, we think, properly are matters to be taken into consideration by the Secretary of the Army, and which ■could be of concern to Congress. We think they are not matters which would .justify the entry of the order under review.
It is true that there are cases from which implications may be drawn that if a district court finds that the officer or agency, authorized by Congress to select lands to be taken for a public use and to determine the necessity for the taking, has acted in bad faith or arbitrarily or capriciously in making the selection, the court may set it aside. See Simmonds v. United States, 9 Cir., 199 F.2d 305, 306; United States v. State of New York, 2 Cir., 160 F.2d 479, 480-481; United States v. Meyer, 7 Cir., 113 F.2d 387, 392.
In regard to this subject, we said in United States v. Willis, 8 Cir., 211 F.2d 1, 2:
“The court [District Court] thus undertook to review the administrative determination of necessity and quantity which had been made, within the qualification of bad faith or arbitrariness and capriciousness, which has sometimes been said— mostly by way of dictum — to warrant judicial overthrow of administrative judgment as to condemnation taking, in relation to the legislative authority granted, and which the Supreme Court itself apparently left open in United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209, when it said, ‘In this case, it is unnecessary to determine whether or not this selection could have been set aside by the courts as unauthorized by Congress if the designated officials had acted in bad faith or so “capriciously and arbitrarily” that their action was without adequate determining principles or was unreasoned.' 329 U.S. at page 243, 67 S.Ct. at page 258.”
We cannot accept the theory that the assertion by a defendant in a condemnation proceeding that the official, duly authorized by Congress to select the lands necessary to be taken for a public use, has acted in bad faith and arbitrarily and capriciously in making the selection, can transmute what has invariably been held to be a legislative question into a judicial one.
It is our opinion that the trial court lacked authority to review or to redetermine the question of the necessity for the taking of the 42.5 acres of the Mischke tract.
“When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance.” Boom Company v. Patterson, 98 U.S. 403, 406, 25 L.Ed. 206.
“The use for which the land is to be taken having been determined to be a public use, the quantity which should be taken is a legislative and not a judicial, question.” United States v. Gettysburg Electric Railway Co., 160 U.S. 668, 685, 16 S.Ct. 427, 431, 40 L.Ed. 576.
“The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. Boom Company v. Patterson, 98 U.S. 403, 406 [25 L.Ed. 206]; United States v. Jones, 109 U.S. 513 [3 S.Ct. 346, 27 L.Ed. 1015]; Cherokee Nation v. [Southern] Kansas Railway Company, supra, [135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295].” Backus v. Fort Street Union Depot Co., 169 U.S. 557, 568, 18 S.Ct. 445, 450, 42 L.Ed. 853. See, also, Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 64 L.Ed. 135.
“That the necessity and expediency of taking property for public use is a legislative and not a judicial question is not open to discussion. Adirondack Ry. Co. v. [People of State of] New York, supra, [176 U.S. 335] at page 349 [20 S.Ct. 460, 44 L.Ed. 492]; Shoemaker v. United States, 147 U.S. 282, 298 [13 S.Ct. 361, 37 L.Ed. 170]; United States v. Gettysburg Electric Ry. Co., 160 U.S. 668, 685 [16 S.Ct. 427, 40 L.Ed. 576]; Boom Co. v. Patterson, 98 U.S. 403, 406 [25 L.Ed. 206].” Joslin Manufacturing Co. v. City of Providence, 262 U.S. 668, 678, 43 S.Ct. 684, 689, 67 L.Ed. 1167.
“The necessity for appropriating private property for public use is not a judicial question. This power resides in the Legislature, and may either be exercised by the Legislature or delegated by it to public officers.” Rindge Co. v. County of Los Angeles, 262 U.S. 700, 709, 43 S.Ct. 689, 693, 67 L.Ed. 1186.
In the comparatively recent case of Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27, which involved the condemnation of lands in the District of Columbia for a redevelopment project, the following language appears on pages 35-36 of 348 U.S., on page 104 of 75 S.Ct.:
“It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size- of a particular project area. Once the question of the public purpose has been: decided, the amount and character of land to be taken for the project and', the need for a particular tract to-complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United. States, 147 U.S. 282, 298 [13 S.Ct. 361, 37 L.Ed. 170]; United States: ex rel. T[ennessee] V[alley] Authority] v. Welch, supra [327 U.S. 546] 554, [66 S.Ct. 715, at page-718, 90 L.Ed. 843]; United States v. Carmack, 329 U.S. 230, 247 [67 S.Ct. 252, 260, 91 L.Ed. 209).”
See, also Starr v. Nashville Housing Authority, D.C.M.D.Tenn., 145 F.Supp. 498,. affirmed per curiam, 354 U.S. 916, 77 S.. Ct. 1378, 1 L.Ed.2d 1432.
In United States v. 6.74 Acres of Land", in Dade County, Fla., 5 Cir., 148 F.2d. 618, 619, appears the following statement:
“ * * * The necessity for the-taking was by the Congressional. Acts placed solely within the discretion of the Secretary of War and is-not a question with respect to which, courts are vested with jurisdiction. The court below, therefore, was. without right to question the action of the Secretary of War either as to-the necessity of the taking or as to the extent of the right or interest in the property taken.”
See, also, Barnidge v. United States, 8 Cir., 101 F.2d 295, 299.
We find little distinction between the instant case and United States v. Willis, 8 Cir., 211 F.2d 1, and we regard United States v. State of South Dakota, 8 Cir., 212 F.2d 14, 15, as virtually indistinguishable. In that case the Government sought to acquire, by condemnation, fee simple title to land selected for use in connection with the Rapid City Air Force Base. In part of this land, South Dakota had mineral rights. The .State filed an answer to the complaint of the Government, alleging: “That the acquisition of :such mineral rights is not necessary for 'the public uses and purposes for which the plaintiff [United States] desires said premises and that the [said] plaintiff has no right to acquire same through •eminent domain.” The District Court tried the issue raised, found the allegation to be true, and dismissed the complaint in so far as it included the min- • eral rights of the State. In reversing the District Court, this Court said (212 F. :2d at page 16):
“The determination of what is ‘necessary’ for the purpose for which the land is sought is delegated by Congress to the Secretary of the Army in this case, and his decision is not reviewable by the courts. Barnidge v. United States, 8 Cir., 101 F.2d 295. And see State of Nebraska v. United States, 8 Cir., 164 F.2d 866, certiorari denied 334 U.S. 815, 68 S.Ct. 1070, 92 L.Ed. 1745. See, also, United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209, and Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.
“Clearly the court erred in holding that the mineral interest in the land was not necessary and in dismissing ■that interest from the ‘taking.’ The determination of that question by the Secretary of the Army was not ■.reviewable by the district court. * * * ”
See, also, and compare: United States ex rel. T. V. A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843, reversing the •Court of Appeals for the Fourth Circuit, 150 F.2d 613; and United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209, reversing the decision of this Court in 151 F.2d 881.
The determination of the Secretary of the Army, the delegate of Congress, as to the necessity of acquiring the lands selected by him, is, we think, no more vulnerable to judicial review or redetermination than would have been the same determination and selection if made by Congress itself in the Act authorizing the project.
Our conclusion is that the District Court was without jurisdiction to enter the order appealed from. The order is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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songer_appel1_1_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
THOMAS A. EDISON, Inc., v. BLACKMAN DISTRIBUTING CO., Inc.
No. 270.
Circuit Court of Appeals, Second Circuit.
Aug. 29, 1933.
Palmer & Series, of New York City (William Huck, Jr., and Joseph A. Clossick, both of New York City, of counsel), for appellant.
Clark, Reynolds & Hinds, of New York City (Roger Hinds and Leonard J. Reynolds, both of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff, a New Jersey corporation, brought this action against the defendant, a New York corporation, to recover “the agreed and reasonable value” of goods sold and delivered to the defendant, asking judgment for $20,634.98 and interest thereon from February 1, 1931. The defendant filed an amended answer to the complaint setting forth a separate and distinct defense to the alleged cause of action and four counterclaims. The plaintiff moved to dismiss all four counterclaims on the ground that none of them stated facts sufficient to constitute a cause of action, to dismiss the second counterclaim on the additional ground that it could not properly be interposed in the action, and to strike out the separate defense on the ground that it was insufficient in law upon its face. The District Court, by an order dated July 2, 1931, granted the motion and ordered that all four counterclaims be dismissed and the separate defense stricken out. In an opinion dated July 2, 1931, however, the District Court held that certain of the allegations in the first counterclaim might “form the basis of affirmative relief against the plaintiff,” and accordingly the order of dismissal gave the defendant leave to serve an amended answer in conformity with the directions in the opinion. The defendant filed exceptions to the order, and seasonably interposed a second amended answer, setting forth a single counterclaim, to which the defendant replied. The matter was referred by the court to a referee, who determined that the plaintiff was entitled to recover from the defendant the principal sum of $19,119.47, and that the defendant might set off the principal sum of $2,533:80 on the basis of its counterclaim. Interest was allowed on various fractions of the principal sums from various dates. The District Court confirmed the referee’s report, and judgment was entered for the plaintiff for $19,053.58. The defendant has appealed from the judgment in so far as it dismisses the second, third, and fourth counterclaims set forth in. the first amended answer. The plaintiff has taken a cross-appeal from so much of the judgment as allows the defendant a set-off on the basis of the counterclaim set forth in the second amended answer.
This litigation arises out of an agreement in-the form of a letter sent by the defendant to the plaintiff on February 1, 1929, “to confirm and set forth the terms of the agreement arrived at on January 22, 1929, between yourselves and our company,” and accepted by the plaintiff as expressing the agreement on February 25, 1929. By the terms of this agreement, the plaintiff, a manufacturer of radios and phonographs, appointed the defendant distributor of the plaintiff’s products in a designated territory, and agreed to appoint no other distributor, or to act as its own distributor, within that territory “while this agreement remains in effect.” The defendant might elect to discontinue handling and distributing the plaintiff’s products “at any time during the life of this agreement,” in which ease the plaintiff might appoint other distributors within the territory. The agreement further provided that: “We are to be free, if we so desire, to handle other radio, combination radio and phonograph, and phonograph products, including records, in said territory until June 1, 1930, and we are to advise you on February 1, 1930, whether or not we desire to “continue as distributors of your said products after June 1, 1930. If we advise you on. February 1, 1930, that we desire to continue to act as distributors of your said products, we shall continue, to act as such distributors in said territory, until February 1, 1933, with the understanding that during the period from June 1, 1930, to February 1, 1933, we will agree if you so desire, to handle only Edison radio, combination radio and phonograph, and phonograph products including records, and with the further understanding that if we so elect to extend the term of our distributorship to February 1, 1933, this agreement may be cancelled by either party on six (6) months written notice given at any time after December 1, 1930.”
The defendant duly exercised its option to extend the life of the agreement to February 1, 1933, and agreed, waiving a request from the plaintiff, to handle only Edison products. It is conceded that the defendant became bound to handle only radios and phonographs manufactured by the plaintiff. The parties acted under the agreement for several months during 1930. Other pertinent provisions of the agreement are as follows:
“If you” (the plaintiff) “should elect * * * to cancel this agreement and give us said six months’ notice, you mil, at our option, take over and assume the lease covering the premises occupied by us at 28 West 23rd Street, New York City, which runs to February 1, 1933, and will purchase the furniture and fixtures, reasonably comparable with the present furniture and fixtures, which we have installed in said premises at a price which shall be mutually agreeable, or in the event that the price cannot be mutually agreed upon, a third party, agreeable to both of us, shall be selected .as an arbitrator and the price determined by him shall be final and accepted by both of us and you will make payment for the said furniture and fixtures at the time this agreement terminates. It is further understood that in the event you elect to cancel this agreement and give us the said required notice, you will, upon the termination of the agreement, take back from us all the merchandise of your manufacture and purchased by us from you, which we then have on hand and which is new or saleable in the regular course of business as new, and will pay us for such merchandise the net cost to us of same. * * *
“All prices are to be F. O. B. your factory and the list prices are to be no greater than those made to other distributors; also discounts from list prices and for cash payments to be no less than that given to other distributors. It is also understood that if the prices of your said products are lowered at any time during the period of this agreement, we shall be refunded the difference between the cost to us under new prices and the cost to us under the old prices of any of such products which have been billed to us within the preceding ninety (90) days, which are on hand unsold, whether they are on hand in our establishment or whether they have been delivered to our dealers' and remain on hand unsold by them. * * *
“It is further understood that it is your intention to manufacture and that you will endeavor to have ready to market on or about June 1, 1929, a reasonably complete line of radio sots, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards in accordance with the type of such products, and it is your intention that these list prices shall be reasonably competitive with similar merchandise offered to the public by other manufacturers.”
On June 20, 1930, the defendant by letter indicated some dissatisfaction with the highpriee range of the plaintiff’s products, and asked whether the latter would insist that the defendant comply with the requirement that no other “make” of radio or phonograph should be handled by the defendant. The plaintiff by a letter dated June 25, 1930, replied that, unless the agreement under which the parties were acting should be substantially modified for the benefit of the plaintiff, the requirement that no other “make” might be handled would he insisted on. On July 11, 1930, the defendant by letter referred to the clause of the agreement stating the plaintiff’s “intention” to bring out “a reasonably complete line of radio sets, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards,” and called upon the plaintiff to furnish lower priced sets than had as yet been supplied. Ño answer to this communication appears in the record, but the referee found that the plaintiff had already on July 9, 1930, informed the defendant that it would not manufacture a cheaper linetef merchandise. The referee further found that the plaintiff did not consent to the defendant’s handling other makes, and that on August 6, 1930, the defendant notified the plaintiff that it had taken on and was handling the Clarion radio, which was not manufactured by the plaintiff. However, no protest was made by the plaintiff until nearly three months later, when, on November' 5, 1930, it informed the defendant by letter that the latter’s distribution of the Clarion radio “breaches in a vital respect your agreement with us” and that “we therefore notify you that our agreement is at an end.” To this letter the defendant replied on November 7, 1930, that: “We do not consider that your letter is proper notice to us of your cancellation of this agreement, and this is to advise you that we do not accept it as sueh.”
The goods for the agreed value of which this action is brought were all sold by the plaintiff to the defendant after the notice of cancellation of the agreement by the plaintiff and rejection of such notice by the defendant referred to above. These goods were sold pursuant to an offer by the plaintiff contained in a letter sent November 12¡, 1930, which made no reference to prior dealings or disputes between the parties, and was couched in the most cordial, not to say familiar, terms, and extended best wishes for “a bang-up holiday business.” This offer was accepted by the defendant in a letter dated November 22, 1930, and, accordingly the merchandise for the price of which this action is brought was delivered to the defendant by the plaintiff. The defendant admits that it is indebted to the plaintiff for this merchandise in an amount exceeding $17,000.
We shall deal first with the appeal taken by the defendant from the order and judgment of the District Court in so far as they dismiss the second, third, and fourth counterclaims set forth in the first amended answer.
Second Counterclaim.
The second counterclaim attempts to set forth a cause of action in tort for deceit. It alleged:
(1) That in order to induce the defendant to enter into the agreement, the plaintiff “falsely and fraudulently represented to the defendant and covenanted with the defendant * * * that it would manufacture and sell to the defendant a reasonably complete line of radio sets and other products to be sold at list prices commencing at or about $125.00 and ranging upwards in accordance with the type of such products, but being a cheaper line than the existing line of plaintiff’s products * *
(2) That the plaintiff after making the agreement “in order to deceive and defraud the defendant * * * falsely and fraudulently represented * * * that it was going to continue in the manufacture and sale of the radio sets; that it would not ‘dump’ its products and that it was in the business ‘for a long pull.’ ”
The second counterclaim also alleged that the “representations were false and were known to the plaintiff to be false when made and were made by the plaintiff with intent to deceive and defraud defendant by inducing the defendant * * to continue to purchase and stock plaintiff’s products which plaintiff had already manufactured and had on hand”; and alleged that defendant, “relying on the truth of such representations was induced to and did spend large sums of moneys for plaintiff’s goods, for advertising, advances to a large sales force, for credits and for promotion work, and refrained from carrying on other business which it could have engaged in for profit.” Finally, it alleged that the plaintiff fraudulently commenced to “dump” its radio sets “at prices which were so much less than the prices at which it was selling * * * to defendant * * * that the defendant could not sell the products which it had purchased from plaintiff in competition with the goods which had been so ‘dumped,’ ” and, in a letter dated December 15, 1930, announced to the defendant that it would retire fhom the radio business and did so retire. By reason of the foregoing, plaintiff claimed $150,000 damages.
This counterclaim incorporates by reference a letter from the plaintiff to the defendant which begins by saying: “This is to confirm and set forth the terms of the agreement * * * between yourselves and our company.” It is, therefore, a final memorial of the agreement of the parties and all the allegations about a contemporaneous oral agreement must under the parol evidence rule be disregarded. When the letter says, “It is understood that it is your intention to manufacture ■* * * a reasonably complete line of radio sets * * * to be sold at list prices commencing at about * * * $125.00,” it sets forth no promissory obligation or contractual relation, but an intention and nothing more, and affords no basis for recovery in contract. But the counterclaim sets forth a representation of an intention to manufacture cheap radio sets made to induce the defendant to enter into the agreement, that it was false and known to be false, was made to deceive the defendant and relied on by the latter to his damage-. If it had been alleged that the plaintiff after making such a representation as to its intention had failed to manufacture the cheap radio sets, the cause of action would be complete. Adams v. Gillig, 199 N. Y. 314, 92 N. E. 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cas. 910; Ritzwoller v. Lurie, 225 N. Y. 464, 122 N. E. 634; Deyo v. Hudson, 225 N. Y. 602, 122 N. E. 635; Adams v. Clark, 239 N. Y. 403, 146 N. E. 642. The cause of action relied on is not that the plaintiff did not intend to do what it contracted to do when it induced the defendant to contract as in Continuous Zinc Furnace Co. v. American Smelting & Refining Co. (C. C. A.) 61 F.(2d) 958, for-it had never bound itself contractually to manufacture the-cheap radios. The tort here consists 'in a fraudulent representation of an intention to do something, though not contracted for, in order to induce the malting of the agreement.. There is, however, no allegation in the counterclaim (and the question arises wholly upon the pleading itself) that the plaintiff failed, to manufacture cheap radio sets, so the cause of action based on this item of the second counterclaim fails. There is no showing that the District Judge was requested to allow a repleader and no error is assigned because-of his failure to grant one.
The allegation that the plaintiff falsely represented that it would continue manufacturing and would not “dump” its products is-also unavailing. The representations are said to have been made after the contract was entered into, and not as an inducement to-the making of it. As we shall later show, the defendant was bound under the agreement to purchase the amount of its business requirements. Therefore, the on-Iy damage which could arise from these false representations would be that the defendant was thereby induced to purchase more goods than it was bound under the contract to take, and no such damage is alleged. The second counterclaim was properly dismissed.
Third Counterclaim.
The third counterclaim is based upon the allegation that the plaintiff, on December 15, 1930, announced to the defendant that it would retire from the radio business and would no longer manufacture radio sets; that it ceased operations on that date and thereby canceled the agreement and became liable to-purchase the furniture and fixtures and assume the lease and pay for the merchandise of plaintiff’s manufacture at 28 West Twenty-Third street as the agreement provided must be done if the plaintiff should give six months’written notice of cancellation after December 1, 1930. The counterclaim also sets forth that the plaintiff never gave the six months’’ notice called for by the agreement but, by announcing on December 15, 1930, that it. would no longer manufacture radio sets and' failing to manufacture the same, canceled the-contract on that date. It also alleges that the plaintiff failed to assume the lease and purchase the fixtures and pay for the products of plaintiff’s manufacture on hand, all to defendant’s damage in the sum of $102,340.
It is a fatal objection to this counterclaim that the announcement of cancellation of the agreement was given less than six. months before the date when the counterclaim was interposed so that the cause of action had not arisen when the counterclaim was asserted. Moreover, the cancellation provided for in the agreement was not a breach of contract by the plaintiff, and the breach of contract which occurred when the plaintiff ceased to manufacture and supply the business needs of the defendant was not the cancellation provided for in the agreement. Any damages arising out of a cancellation on notice would be entirely different from those arising out of a broach. The plaintiff had a right to choose which it would subject itself to and cannot be required to assume the lease and repay the plaintiff upon the theory that its announcement of retirement from business was the equivalent of notice of cancellation provided for in the contract. We think it clear that the third counterclaim cannot be sustained and was properly dismissed.
Fourth Counterclaim.
We have already said that the oral agreement between the parties merged in the letter, which is incorporated by reference in the fourth counterclaim. The question, therefore, arises, what is the proper interpretation and effect of the letter of the defendant on February 1,1929, which the plaintiff accepted and which constituted the agreement between the parties. The plaintiff contends that the letter simply set forth a course of proposed business dealings and that the only thing the parties agreed to do was to refrain from dealing with others for a definite period; that it did not contain any promise of the defendant to buy, or of the plaintiff to sell, any quantity of merchandise.
While the foregoing contention is not without some force, we think the letter by the defendant of February 1, 1929’, accepted by the plaintiff gave rise to an implied agreement that the plaintiff should sell the radio and other products described in the letter to the extent that .might be reasonably required to enable the defendant to carry on its business as distributor for the plaintiff, and that the defendant should purchase the same. If such was the contract, the plaintiff was not relieved from performing its obligations by going out of business. Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218.
Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920, was a decision by this court. Schnerb, who was the distributor, sought damages for breach by the defendant, who was the manufacturer, of its covenant .not to invade the territory that it had assigned to Schnerb. Schnerb asserted that the defendant had broken this covenant by selling tractors to the French government direct. The contract in that case consisted of a letter by the defendant to Schnerb which gave the latter “exclusive representation” in the sale of defendant’s tractors in certain territory, including France. The letter contained no promise to buy or sell. It might be argued, as here, that all that was left to the will of the parties. Nor did the letter set forth any definite number of tractors which it was proposed that Schnerb was to buy. It did provide, however, that a price “for the present” of a 60 horse power type of tractor should he $3,125 and that at all times the prices should be in keeping with those being charged other agents using a like amount of goods. In that ease we said in effect that there was an implied agreement by each party not to sell tractors in the other’s territory, that the defendant promised that the prices charged Schnerb should be in keeping with those charged other agents, and the defendant was under an implied obligation to fill Schnerb’s orders if the capacity of its plant permitted.
In Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90, a manufacturer agreed to sell and deliver shoes to a customer at prices to be agreed on from time to time, and the customer undertook to resell the shoes, as the manufacturer’s agent, under the agreement that the customer should have the exclusive sale of the shoes of the manufacturer. It was argued that the contract was invalid for lack of mutuality, but the Court of Appeals of the Third Circuit held it valid and decided that when the manufacturer refused to fill orders furnished by the customer there was a breach of contract.
In Mills-Morris Co. v. Champion Spark Plug Co. (C. C. A.) 7 F.(2d) 38, 39, the plaintiff, who was a dealer in automobile accessories, agreed to keep on hand at all times a stock of the different types of spark plugs manufactured by the defendant and “sufficient to supply the requirements” of plaintiff’s regular trade, and also agreed that all of plaintiff’s purchases during the contract term should be at certain specified prices. Plaintiff further agreed to canvass the territory for customers and promote the defendant’s trade in every reasonable w7ay. The defendant did not agree in express terms to sell spark plugs to the plaintiff, but the Court of Appeals of the Sixth Circuit held that such an obligation was to be “implied” from the “undertakings and the requirements that it exacted of plaintiff” and that a repudiation of the agreement by the defendant gave rise to a good eanse of action on the part of the plaintiff.’
In Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108, it was agreed betweeq the plaintiff and the defendant that the former should purchase, and the latter, should sell, all the pumpernickel which the plaintiff, who was a dealer in bread, required upon his route, and should pay therefor a price one cent less than the wholesale price and two cents less than the retail price. It was also agreed that the plaintiff was not to sell any other pumpernickel to its customers and that the defendant was to furnish plaintiff with such amount as his business required. The foregoing was held a valid contract not lacking in mutuality, although there was no express promise to purchase any particular amount of pumpernickel.
The decisions in Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214; Moran v. Standard Oil Co., 211 N. Y. 187, 105 N. E. 217; N. Y. C. Iron Works Co. v. U. S. Radiator Co., 174 N. Y. 331, 66 N. E. 967; Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218; Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404, 88 N. Y. S. 73; Phoenix Hermetic Co. v. Filtrine Mfg. Co., 164 App. Div. 424, 150 N. Y. S. 193; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. S. 496; Turner v. Goldsmith, L. R. 1 Q. B. (1891) 544, are to the same effect.
Plaintiff contends that the f oregoing eases are not in point because the defendant here was not an agent and there was no promise by plaintiff to supply the requirements of the defendant’s business. But the supposed difference seems tenuous. The letter on which the agreement between the parties is founded appointed the defendant plaintiff’s “distributor.” It provided that the appointment was to extend until February 1, 1933, but might be canceled by either party on or after December, 1930, upon six months’ written notice and that if the plaintiff gave such notice it should be required to assume the lease of the premises occupied by defendant which ran to February 1, 1933, and to purchase the furniture and fixtures therein and to take back and pay the cost of all merchandise of plaintiff’s manufacture which defendant might have on hand. It was also agreed that the plaintiff would not appoint any other distributor in its territory during the life of the contract and that, if desired, the defendant would only handle plaintiff’s products. It was provided that the prices to the defendant should be no greater than those made to ‘Other distributors, and that if prices were lowered after goods had been delivered to the defendant, certain rebates were to be allowed to it and its customers for all products unsold by it, or them, and purchased within ninety days. Provision was also made for discounts to defendant’s dealers, and defendant was required to send plaintiff reports of net billings, together with copies of invoices. It was agreed that plaintiff should pay one-half the cost of newspaper or magazine advertising incurred either by the defendant or its dealers in connection with the sale of plaintiff’s products. It was also agreed that the plaintiff should consult with defendant and give due consideration to its suggestions as to changes in designs and types of instruments and records which defendant might consider desirable and that the latter should offer suggestions based on its long experience which it wished to place at plaintiff’s disposal. We can see no distinction between a distributor’s contract of this kind and the so-called agency contracts in which it is apparently admitted that agreements to sell and purchase would be implied. Under the agreement of February 1, 1929, as extended, defendant was compelled to do no business in radio products within a specified territory except with plaintiff, and the contract plainly required co-operation. It would defeat its purposes if agreements to purchase and sell were not implied. While the word “requirements” was not used, it must be supplied to render what was plainly a contract founded on mutual promises intelligible and effective. The plaintiff, having appointed the defendant distributor and obtained from the latter a promise to deal exclusively in plaintiff’s products, would not fulfill its contract unless it to a reasonable extent filled defendant’s orders.
The decision in Schlegel Mfg. Co. v. Peter Cooper’s Glue Factory, 231 N. Y. 459, 132 N. E. 148, 150, is relied upon by plaintiff, but is clearly distinguishable. In that case the defendant, a manufacturer of glue, wrote a letter to the plaintiff saying it had entered the “contract for your requirements of 'Special B. V.’ glue for the year 1916, price to be 9i>1 per lb. terms 2% 20th to 30th of month following purchase. Deliveries to be made to you as per your orders during the year * * At the bottom of the letter, the plaintiff 'wrote: “Accepted.” But the plaintiff did not agree “to sell any of the defendant’s glue, to make any effort towards bringing about such sale, or not to sell other glues in competition with it.” As the court said: “The only obligation assumed by it was to pay nine cents a pound for such glue as it might order.” There was no appointment of an exclusive agent or distributor as in the ease before us. The buyer did not agree to handle only the seller’s products, but was a mere jobber engaged in no business requiring glue so that there was no ascertainable standard of “requirements.” Nassau Supply Co. v. Ice Service Co., 252 N. Y. 277, 169 N. E. 383.
In Smith v. Diem, 223 App. Div. 572 229 N. Y. S. 56, affirmed 249 N. Y. 590, 164 N. E. 595, the defendant promised to sell no cigars to any other dealer Ilian the plaintiff so long as the latter bought 10,000 per week. The plaintiff did not, as in our case, agree to buy of no other manufacturer. There was no more than a unilateral offer in a letter by the plaintiff, to which the defendant made no reply.
We think the contract set up in the fourth counterclaim is governed by the principles laid down in Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920; Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90; Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108; Turner v. Goldsmith, 1 Q. B. (1891) 544; and other decisions we have referred to, and that the judgment dismissing this counterclaim must, therefore, be reversed with leave to interpose an answer thereto, if the plaintiff should be so advised.
Amended First Counterclaim in Second Amended Answer.
As already stated, Judge Coxe dismissed the first counterclaim as well as the three others and allowed the defendant to amend it, whereupon it alleged the making of the agreement of February 1, 1929, and the extension thereof to February 3,1933, and set forth that it was provided in such agreement that if the prices of the plaintiff’s products wore lowered at any time there should be refunded to the defendant the difference between the cost under the new prices and the cost thereof under the old prices on all products which had been billed to the defendant within the preceding ninety days and were on hand unsold at the time of such reduction. The amended counterclaim further alleged that on or about October 15, 1930, plaintiff, without notice to the defendant, reduced its prices on its products and the defendant thereupon became entitled to a refund; that on or about that date the defendant had on hand certain products purchased by it from plaintiff and billed within the preceding ninety days on which the plaintiff had reduced its prices; that after the 15th day of October, and while the agreement was still in force, the defendant purchased from the plaintiff certain additional products of a class upon which the plaintiff had reduced its prices on or about the 15th day of October. That by reason of the aforesaid reduction in prices by the plaintiff, the defendant became entitled to a refund of a specified amount, no part of which had been paid. Plaintiff filed a reply to this amended counterclaim in which it alleged that shortly prior to November 5,1930, defendant commenced to distribute a radio known as the Clarion radio in the territory specified in the agreement; that this was not an Edison radio and was not manufactured by plaintiff; that defendant’s distribution of the Clarion radios was in violation of the agreement that defendant should handle only Edison products and constituted a breach of a vital and dependent covenant of the agreement between the parties; that on or about November 5, plaintiff served upon defendant a notice in writing whereby and because of the defendant’s breach in distributing the Clarion radios the agreement was terminated and plaintiff’s obligations thereunder ceased and were discharged. In accordance with the foregoing pleadings the defendant demanded refunds in amounts specified and the plaintiff demanded judgment dismissing the counterclaim.
The plaintiff contends that the sales of goods after plaintiff gave notice on November 5 that the distribution of the Clarion radios constituted a vital breach of the agreement which was thereby terminated constituted a new transaction outside of the contract, to which the provisions relating to refunds did not apply. The referee found that as early as August 6, 1930, the plaintiff was notified that the defendant was selling Clarion radios, and yet went on shipping its products to the defendant and doing business with the lattei’. We agree with his conclusion that such conduct was a waiver by the plaintiff of its right to terminate the contract for this breach and that under such circumstances its only remedy was to sue for any damages that it could prove by reason of the breach. Termination of the contract for this partial breach could only be had after reasonable notice to perform. We also agree with the referee that the later sales cannot be treated as transactions separate from the contract.
We have already said in this opinion that the agreement between the parties set forth in the letter of February 1, 192-9, constituted a valid contract of purchase and sale. When the deliveries of radio products in December, 1930, were made, the agreement was still in existence and as a matter of law they were bound to become subject to its terms. The plaintiff appeals from the decision of the issues raised by its reply to the amended first counterclaim on the ground that its notice of rescission on November 5 was effectual to cancel the agreement and that even if'the contract was still in force the goods were sold under an independent arrangement that included no right to refunds because of price reduction. We differ with both contentions. Continuance by the plaintiff of sales under the contract, and acceptance of performance by the defendant, amounted to an election to continue the contract and not to terminate it because of the breach. In such a situation no new consideration was required to prevent cancellation and plaintiff’s letter of November 5, 1930, was ineffectual to terminate the agreement. Champion Spark Plug Co. v. Automobile Sundries Co. (C. C. A.) 273 F. 74; Rosenthal P. Co. v. Nat. Folding B. & P. Co., 226 N. Y. 313, 123 N. E. 766; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814; Tipton v. Feitner, 20 N. Y. 423; Panoutsos v. Raymond Hadley Corporation (1917) 2 K. B. 473; McNicholas v. Prudential Insurance Co., 191 Mass. 304, 77 N. E. 756; Williston on Contracts, §§ 682, 687.
Defendant quite properly replied to the letter of November 5, 1930, that it did not consider plaintiff’s letter a proper notice of cancellation of the agreement. As a matter of fact, the contract contained a clause, which we have already discussed, stating that it was plaintiff’s intention to put out a cheaper radio line. Defendant had constantly urged it to do this because cheaper sets were needed for the trade than those which the plaintiff was selling. The defendant never dealt in any radio of a price comparable to the plaintiff’s that did not originate with the latter. Under these circumstances, we think that the breach was partial. But whatever it was, the conduct of the plaintiff had precluded it from treating the contract as terminated until after giving the defendant a reasonable notice that it must cease selling the Clarion line and resume total performance.
We hold that the refunds were properly computed and the amount due .from the defendant was correctly reported by the referee. The amount of the judgment must, however, depend on what damages, if any, the defendant may be able to establish under itsjEourth counterclaim. The judgment is affirmed in so far as it' dismisses the first, second, and third counterclaim, and is reversed in so far as it dismisses the fourth counterclaim, with leave to the plaintiff to reply thereto within a time to be fixed by the District Court. The judgment is likewise reversed in so far as it adjudges that the plaintiff recover $16,585.67, interest and eosts, because the amount of the recovery by either party will depend on the result of the trial of the issues under the fourth counterclaim. When they are determined, judgment must be entered in accordance with the findings of fact heretofore made by the referee and the decision of the issues raised by the fourth counterclaim and the reply thereto. Parker Washington Co. v. Cramer (C. C. A.) 201 F. 878.
The ease is remanded, with directions to-proceed in accordance with the views expressed in this opinion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_othadmis
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES v. ROSENBERG et al.
No. 8.
Circuit Court of Appeals, Second Circuit
July 17, 1945.
Writ of Certiorari Denied Oct. 15, 1945.
See 66 S.Ct. 90.
See also 47 F.Supp. 406.
Henry G. Singer, of Brooklyn, N. Y. (Sol L. Firstenberg, of New York City, on the brief), for appellant Rosenberg.
M. M. Kreindler, of New York City (Abraham S. Robinson and Sol L. Firstenberg, both of New York City, and Harry Silver, of Brooklyn, N. Y., on the brief), for appellant Freier.
M. M. Kreindler, of New York City (Sol L. Firstenberg, of New York City, on the brief), for appellants Ferenc Weisz, Ernest Weiss, and Irene Weisz.
Sol L. Firstenberg, of New York City (M. M. Kreindler, of New York City, on the brief), for appellant Friedman.
Harry E. Kreindler, of New York City (M. M. Kreindler and Sol L. Firstenberg, both of New York City, on the brief), for appellant Eisler.
Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Milo F. McDonald, U. S. Atty., of Brooklyn, N. Y., on the brief), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The seven defendants herein were convicted under the usual conspiracy statute, 18 U.S.C.A. § 88, of conspiring to export platinum without a license, in violation of Presidential Proclamation 2413, 54 Stat. 2712, 3 CFR, Cum.Supp., 164, issued pursuant to Section 6 of the Act of July 2, 1940, 54 Stat. 714, 50 U.S.C.A. Appendix, § 701. They were indicted with two others, of whom one eventually pleaded guilty and became a witness for the prosecution at the trial, and the other obtained a severance. These defendants demurred to the indictment on several grounds, of which those still most pressed are that the statute is unconstitutional, as an improper delegation of legislative power to the executive, and that the prosecution is unauthorized because the statute by its terms had expired prior to the trial. But the District Court overruled the demurrers in a reasoned opinion, D.C.E.D.N.Y., 47 F.Supp. 406, and upon their conviction after a month’s trial before a jury gave each of them a substantial sentence of both fine and imprisonment. This appeal followed.
Before considering the claimed errors at the trial, we shall dispose of the important issues of law stated above. The constitutional objection is based upon the grant of authority to the President to prohibit the export of munitions or supplies of war whenever he “determines that it is necessary in the interest of national defense” to do so. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, stated limits to the power of Congress to delegate its legislative powers to the President ; and A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, held unconstitutional grants of authority to the executive to formulate both policy and the applicable standard. There is some thought that these precedents have lost vigor of recent years; be that as it may, we are clear that they do not apply here, for the statute does itself define policy and set a definite standard. This was part of an extensive statute “to expedite the strengthening of the national defense,” 54 Stat. 712, passed just after the fall of France, when the invasion of England appeared imminent. Those were days of fear and stress for us, as well as for our later allies; that Congress, having defined the policy of prohibiting or curtailing supplies needed for defense, could not leave to the Chief Executive, the Commander in Chief of the Army and Navy, the time and detail of its execution would surely seem a harsh, impractical rule, and one more strict than the precedents support. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 102, 103, 63 S.Ct. 1375, 87 L.Ed. 1774; National Broadcasting Co. v. United States, 319 U.S. 190, 216, 63 S.Ct. 997, 87 L.Ed. 1344; United States v. Randall, 2 Cir., 140 F.2d 70; United States v. Von Clemm, 2 Cir., 136 F.2d 968, 970, certiorari denied 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459. Moreover, the delegation of authority may be upheld on another ground, that of the traditional dominance of the Executive in the conduct of foreign affairs. The statutes involved in the Schechter and Butler cases dealt with purely internal affairs, while the statute here in issue provided for “national defense” by regulating “exportation” of war munitions, and thus concerned very vitally this country’s relations with foreign nations. In fact the leading case which points out the President’s greater power over the conduct of international affairs and freedom from restriction to an extent not permitted in internal matters, United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 322, 57 S.Ct. 216, 81 L.Ed. 255, cited as examples of such power the early acts of 1794 and 1795, 1 Stat. 372, 401, 444, authorizing the President to lay, regulate, and revoke embargoes and to permit the exportation of arms and military stores, notwithstanding statutory prohibitions. See also Panama Refining Co. v. Ryan, supra, 293 U.S. 388, 422, 55 S.Ct. 241, 79 L.Ed. 446; United States v. Bareno, D.C. Md., 50 F.Supp. 520, 522, 523; United States v. Kertess, 2 Cir., 139 F.2d 923, certiorari denied Kertess v. United States, 321 U.S. 795, 64 S.Ct. 847, 88 L.Ed. 1084; McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 Yale L. J. 181, 244-255, 1945. We do not doubt the validity of the statute.
Next as to the claim that all prosecution must cease on June 30, 1942, when, according to its terms, the original statute expired, we think the answer not at all in doubt. Though the trial was had in the fall of 1942, the alleged acts of conspiracy-occurred between February and July, 1941. And on June 30, 1942, Congress enacted what it termed an amendment to this very statute, extending its date of expiration to June 30, 1944, and providing even further that it should remain in effect thereafter for the purpose of sustaining any prosecution under it. Defendants contend vigorously, however, that, notwithstanding this plain assertion of legislative intent, the later act is not an amendment, but a new and substitute statute which cannot be read so as to extend the old provisions. But they fail to suggest any persuasive ground for this contention. True, because of this country’s entry into the war, Congress thought it wise to broaden the President’s powers so as to remove all boundaries from the category of articles subject to export control. But it did not alter the earlier penalties. See United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181; Posadas v. National City Bank of New York, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351. And it seems absurd to contend .that Congress, in extending the scope of the Act, meant those who violated, the earlier, more limited statute to escape prosecution. True, the later statute also specifically designated the Board of Economic Warfare as the agency of control. But this, too, was neither new nor repugnant to the earlier statute. For the President as early as September 15, 1941, had instructed the Board to “exercise and perform all powers and functions * * * under section 6 of the act of July 2, 1940.” Executive Order 8900, 3 CFR, Cum.Supp., 1009; see United States v. Bareno, supra. Actually the 1942 Act simply continued the then existing system of administration. It must be read as postponing the date of expiration of the 1940 Act and as authorizing the present prosecution. This was the conclusion not only of the learned judge below, but also of Judge Kennerly in United States v. 251 Ladies Dresses, D.C.S.D. Tex., 53 F.Supp. 772, and United States v. 8 Automobiles, D.C.S.D. Tex., 53 F.Supp. 775.
The claimed errors at the trial require consideration of the evidence for the prosecution. On February' 1, 1941, defendants Rosenberg and Freier met with the coconspirators Hersch Neumann, Abe Neumann, and Arnold Weisz at the office of a friend at 50 Pine Street, New York City, and discussed generally the possibility of profitably exporting platinum to Europe. So Hersch Neumann, with the knowledge and approval of this group, sent a cablegram to the Lisbon house of Salzberg & Alt to ascertain the price of platinum and whether “there is any market to sell platinum” ; and to this he received a favorable reply. Then the brothers Hersch and Abe Neumann, together with Rosenberg, took an office in the office building at 50 Pine Street. Thereafter between February and May, 1941, the conspirators made four shipments of platinum by boat to Lisbon, Portugal. The general pattern followed by the conspirators was the purchase of platinum from precious metal dealers in New York; the forwarding of platinum to Lisbon by bribing members of the personnel of ships plying between that port and New York to carry the packages secretly; the sale of the metal in Lisbon or Zurich, Switzerland, by Salzberg & Alt; and distribution of the proceeds among at least some of the coconspirators. During all this time the conspirators were well aware that they required a license to export platinum, since they had been so advised by dealers from whom they made their purchases and with whom they signed agreements that the metal was for domestic consumption only.
After the first shipment to Portugal, Abe Neumann, Hersch Neumann, Freier, Rosenberg, Arnold Weisz, Koppel (the defendant who pleaded guilty), and Irene Weisz met and decided to take some platinum to Canada. Thereafter Koppel, Arnold Weisz, Freier, Rosenberg, and the two Neumanns contributed funds for the purchase of 120 ounces of platinum; and Abe Neumann, Arnold Weisz, and Irene Weisz took part of the purchase to “Ernest Weiss’s place to give it over to him,” where it was packed by Ferenc Weisz in a suitcase with a double bottom. Ernest Weiss then took the platinum to Canada, but brought it back without making a sale there because he was afraid to sell. Thereafter Ferenc returned the platinum to the others, who later shipped it to Portugal.
About May, 1941, Arnold Weisz undertook to send further parcels to Lisbon by means of airplanes leaving LaGuardia Airport for the transatlantic flight. For this purpose he purchased platinum through a confederate named Felsenberg. He then asked Mezenen, a flight steward on clipper ships making flights to Lisbon, to take some platinum across. . But since Mezenen was not flying he suggested that he would turn the shipment over to a costeward named Mario, which he did. After two shipments were completed in that way, Arnold Weisz on the evening of June 4, 1941, desiring to make a further shipment, rode in a taxicab to Mezenen’s residence and there delivered to him a package of platinum and various pieces of paper. This package and the papers were found on Mezenen when he was arrested the following day while proceeding to the airport. Defendant Friedman was with Weisz on the trip to Mezenen’s residence.
Defendants attack the sufficiency of the proof to convict; but in addition, each vigorously asserts the prejudicial effect upon his case of a variance from the charge of a single conspiracy to the proof of three separate and distinct conspiracies: the boat shipments, the trip to Canada, and the shipments by clipper. This claim, not at all unusual in a conspiracy case, is here developed with such earnestness as to constitute, with the legal issues considered above, the chief grounds of this appeal. There can be no doubt, however, that at least the Canadian transaction was closely tied to the scheme to ship platinum to Portugal. For the most part the same parties were involved; the trip to Canada occurred in the ' interim between the first and second shipments by boat; the platinum used was part of a larger purchase and was finally sent to Portugal. Nor is the cry of variance justified with respect to the proof of shipments by airplane. Though these are somewhat more disconnected from the other transactions, so far as the proof shows, we may not usurp the place of the jury to view them as entirely separate matters. The United States did show that Arnold Weisz, one of the chief conspirators, participated in all the transactions; that he had at some time discussed the possibility of airplane shipments with Hersch Neumann; and that these shipments were started at about the time of the last shipment by boat. This was sufficient to justify the jury, in the light of the careful instructions it received from the court, in finding a close interrelation between this and the other transactions. United States v. Valenti, 2 Cir., 134 F.2d 362, certiorari denied Valenti v. United States, 319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; United States v. Cohen, 2 Cir., 145 F.2d 82, certiorari denied Cohen v. United States, 323 U.S. 799, 65 S.Ct. 553.
But even were we to conclude that the airplane scheme was not connected with other transactions, the objection is not of serious consequence in the present setting. For as this court pointed out in the Cohen case, supra, 145 F.2d 82, 88, 89, per L. Hand, J., “it comes to no more than that, instead of being tried upon a single ‘scheme/ the accused were tried upon three ‘schemes’ at the same time. As variance, it would not have mattered if the prosecution had wholly failed to prove any joint ‘scheme’ at all; but had only proved the two local ones. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, definitively held that the question in each case was whether any practical prejudice resulted to the accused from such a variance.” Here no such prejudice appears. Just as in the Cohen case, all the transactions are crimes of the same kind and could have been joined and pleaded in separate counts, even though the confederates were not the same in all. 18 U.S.C.A. § 557; United States v. Liss, 2 Cir., 137 F.2d 995, 998, certiorari denied Liss v. United States, 320 U.S. 773, 64 S.Ct. 78, 88 L.Ed. 462; United States v. Twentieth Century Bus Operators, 2 Cir., 101 F.2d 700, certiorari denied Twentieth Century Bus Operators v. United States, 307 U.S. 624, 59 S.Ct. 821, 83 L.Ed. 1502; United States v. Tuffanelli, 7 Cir., 131 F.2d 890, 893, 894, certiorari denied Tuffanelli v. United States, 318 U.S. 772, 63 S.Ct. 769, 87 L.Ed. 1142. And the indictment clearly set out overt acts involving all the transactions and in every way provided all the notice to the accused which can be considered at all required in criminal prosecutions. United States v. Fried, 2 Cir., 149 F.2d 1011; United States v. Wodiska, 2 Cir., 147 F.2d 38; United States v. Achtner, 2 Cir., 144 F.2d 49. Nor were defendants prejudiced by irrelevant evidence. We shall refer more in detail below to two specific objections stressed on this appeal; here it is sufficient to say that the challenged evi dence either so directly concerned only a single conspirator’s participation as not to confuse, or, where it was of wider significance, was relevant background material as to a conspirator participating in all the transactions. United States v. Liss, supra; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975, certiorari denied Gullo v. United States, 302 U.S. 764, 58 S.Ct. 410; 82 L.Ed. 593; United States v. Compagna, 2 Cir., 146 F.2d 524, 530, certiorari denied Compagna v. United States, 65 S.Ct. 912.
Passing this objection of variance, therefore, the evidence against these defendants appears clearly sufficient to go to the jury. Thus Rosenberg and Freier were at the very heart and center of the conspiracy. Ferenc Weisz, in addition to his connection with the Canadian transaction already noted, was shown to have acted as agent for his brother Arnold in receiving in the latter’s behalf part of the proceeds from one of the shipments by boat. He also typed an insurance policy whereby Freier guaranteed his associates against loss. Irene Weisz, in addition to her activities already discussed, carried the platinum which Ernest Weiss had returned from Canada, and which Ferenc Weisz had brought back to the office of the Neumann brothers, from that office to the office of her brother Arnold, for the purpose of transferring it to Silva, an officer of the ship “Pero d’Alerlquer,” for transmission to Lisbon. She was also present at a meeting which discussed a further shipment to Portugal on the ship “Guiñe” and obtained passes in the name of her brother Ernest to go aboard that vessel for the purpose of interviewing a member of the crew. Again she brought to the Neumanns’ office money which Arnold Weisz owed to the conspirators as his contribution to one of the boat shipments. In addition to Ernest Weiss’s activities in connection with the Canadian transaction, the evidence showed a payment to his bank account from the Chase National Bank of $8,943; and the jury was not limited in the inferences it might draw by his own testimony that he knew no more than that this money belonged to his brother Arnold and that he paid it all to Arnold.
Possibly somewhat more doubt may exist as to the defendants Friedman and Eisler; but, if so, it was a doubt to be resolved by the jury. Thus Friedman, who rode in the taxi with Arnold Weisz when the latter delivered the platinum to Mezenen, denied any knowledge prior to Arnold’s delivery of the package that it contained platinum. The jury, however, was justified in drawing a different conclusion, particularly in the light of his conflicting statements about the trip shown by a government agent and the further conflict with his testimony at the trial. Moreover, he had also written or hand printed various cables for Arnold Weisz, as well as the delivery instructions given Mezenen. One of these cables, inquiring into the possibility of purchasing platinum from Chile, was sent long before the airplane transactions. Although Friedman admitted having prepared these papers, he claimed that he did not know some of them referred to platinum, and also that he did not know of anything wrong in these transactions; but the issue was thus one for the jury. United States v. Wodiska, supra, 2 Cir., 147 F.2d 38, 39; United States v. Rosenberg, 2 Cir., 145 F.2d 653, 654, 655; United States v. Marino, 2 Cir., 141 F.2d 771, 772, 773, certiorari denied Marino v. United States, 323 U.S. 719, 65 S.Ct. 48.
As to Eisler, the prosecution showed that in order to accomplish the first boat shipment of platinum, Rosenberg, carrying platinum in his pocket, and accompanied by Hersch Neumann, went to Eisler’s office. Rosenberg entered the office while Neumann waited outside. After ten minutes Neumann went into the office and found Rosenberg and Eisler engaged in a conversation. When Rosenberg came’ out he did not have the platinum with him. Since the platinum was later received in Lisbon, and since Eisler admitted that he knew the first officer of the “Concalho Velho,” the jury could properly infer that Eisler engineered the final stages of the shipment. Even though this may not show Eisler’s direct knowledge of the full nature of the scheme and of the participation of other conspirators, the complicated nature of the transaction was sufficient in itself to tell him that Rosenberg had not been acting alone; this was clearly sufficient to make him a coconspirator with the others. United States v. Compagna, supra, 2 Cir., 146 F.2d 524, 536; United States v. Liss, supra, 2 Cir., 137 F.2d 995, 1000, 1001. And as we have pointed out above, under the circumstances here shown Eisler would have been properly convicted even had he thought Rosenberg the only coconspirator and even had this particular transaction in fact been separate and distinct from the others.
The trial was long and was fairly conducted. Most of the errors assigned as to it depend on the contention discussed above that the proof showed three separate and distinct conspiracies, instead of the single one charged. We need note further only certain of the objections to the admission of evidence. The court properly allowed testimony to the effect that Freier entered into a written agreement with Arnold Weisz and Rosenberg insuring their interest against loss in case the United States entered the war. Whatever Freier did to induce or make attractive the continuance of his confederates in the illicit business was probative against him. And, once the conspiracy was established, it was relevant as against the others as incidental to the transactions effectuating the illegal scheme. The court also committed no reversible error in admitting a statement of Friedman’s bank account, showing large deposits during the period here involved, as well as the platinum which was taken from Mezenen. Both these exhibits were certainly relevant as against Friedman. Again they became relevant against the other defendants, once the conspiracy was shown (as indeed the court stated in making its rulings). Even had the defendants’ theory of separate and distinct conspiracies been accepted, none of this evidence had enough connection with separate conspirators to suggest prejudice. Freier’s agreement implicated himself and his promisees only; Friedman’s access of wealth had little bearing on remote conspirators; while the admission of the platinum, even though it was the only production of “the valuable metal for all to behold,” as defendants say, can hardly have been so dazzling in view of the convincing evidence of the other extensive dealings in platinum. The necessity of weighing the evidence separately as to each accused was brought home to the jury by the court’s detailed charge and statement as to each one.
Affirmed.
As originally passed, the statute provided: “Whenever the President determines that it is necessary in the interest of national defense to prohibit or curtail the exportation of any military equipment or munitions,' or component parts thereof, or machinery, tools, or material, or supplies necessary for the manufacture, servicing, or operation thereof, he may by proclamation prohibit or curtail such exportation, except under such rules and regulations as he shall prescribe. Any such proclamation shall describe the articles or materials included in the prohibition or curtailment contained therein.” Then, after stating penalties for violations of the statute, proclamations, or regulations, it concluded: “The authority granted in this section shall terminate June 30, 1942, unless the Congress shall otherwise provide.” Act of July 2, 1940, § 6, 54 Stat. 714, 50 U.S.C.A.Appendix, § 701. It was made applicable to territories, dependencies, and possessions of the United States on May 28, 1941, 55 Stat. 206, 50 U.S.C.A.Appendix, § 702, and was greatly extended in 1942, as shown in note 2, infra.
This Act, entitled as one “to further expedite the prosecution of the war by-authorizing the control of the exportation of certain commodities,” provided: “That section 6 of the Act of July 2, 1940 (54 Stat. 714) is hereby amended to read as follows:
“Sec. 6. (a) The President is hereby authorized to prohibit or curtail the exportation of any articles, technical data, materials, or supplies, except under such rules and regulations as he shall prescribe.
“(b) Unless the President shall otherwise direct, the functions and duties of the President under this section shall be performed by the Board of Economic Warfare.
“(c) [Penal provisions, in terms substantially identical with those of the 1940 Act.]
“(d) The authority granted by this section shall terminate on June 30, 1944 or upon any prior date which the Congress by concurrent resolution, or the President, may designate; except that as to offenses committed, or rights or liabilities incurred prior to such date, the provisions of this section and such rules, regulations, and proclamations shall be treated as remaining in effect for the purpose of sustaining any suit, action, or prosecution with respect to such right, liability, or offense.” 56 Stat. 463, 50 U.S.C.A.Appendix, § 701.
By Act of July 1, 1944, c. 360, 58 Stat. 671, 50 U.S.C.A.Appendix, § 701, the “Foreign Economic Administration” was substituted for the “Board of Economic Warfare,” and the expiration date was extended to’June 30, 1945.
This case has a detailed statement of how the general regulations under the Act were promulgated and administered, as well as a convincing showing that the delegation and redelegation of authority was an appropriate means of carrying out the legislative purpose.
In view of tins conclusion we need not consider the government’s further contention that the same result follows either under the general statute, 1 U.S.C.A. § 29, passed originally in 1871, which provides that the repeal of a statute shall not affect existing liabilities under it unless otherwise expressly provided, or under the amendment to it, which extended its terms to “the expiration of a temporary statute” and which was adopted March 22, 1944, e. 123, 58 Stat. 118, while these proceedings were still pending by virtue of the appeals.
Ernest Weiss is a brother of Arnold Weisz and of defendants Ferenc and Irene Weisz, notwithstanding differences in the spelling of the surname.
Of the conspirators named in the indictment, the two Neumanns, Koppel, and Mezenen testified for the government. Six of the defendants testified in defense; Irene Weisz did not take the stand. Arnold Weisz, key figure in the conspiracy, was not present at the trial.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_r_fed
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
UNITED STATES of America, Appellee, v. Edwin MURRAY, Appellant.
No. 37, Docket 26741.
United States Court of Appeals Second Circuit.
Argued Sept. 27, 1961.
Decided Jan. 10, 1962.
Certiorari Denied March 26, 1962.
See 82 S.Ct. 845.
Louis Bender, New York City, for appellant.
Edward Brodsky, Asst. U. S. Atty., Southern Dist. of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Arthur I. Rosett, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
Edwin Murray appeals from his conviction on two counts of income tax evasion for the years 1952 and 1953 in violation of § 145(b) of the Internal Revenue Code of 1939. He was charged with reporting net income of only $6,-504.45 and $4,038.09 for 1952 and 1953 respectively, whereas his net income for those two years calculated from increases in his net worth was allegedly $24,017.-60 and $19,838.82, respectively. The government claimed that the difference in net income came from gambling activities; the defense was that the apparent increases in net worth came from a loan of $32,000 by one John Lamb. Murray was sentenced to imprisonment for one year and one day on each count, the sentences to run concurrently, and was fined a total of $5,000.
Murray’s appeal alleges that the government’s evidence was insufficient to take the question of his guilt to the jury, that there were errors in the admission and exclusion of evidence, and that the trial judge erred in permitting the government to contradict its bill of particulars in summation. He also claims error in the denial of his pretrial demand for inspection of the transcripts of statements given by him to the Intelligence Division of the Internal Revenue Service. We affirm the conviction.
I. The Sufficiency of the Evidence
Murray attacks Judge Dawson’s denial of his motion for acquittal at the close of all the evidence, claiming that the government did not adduce sufficient proof to permit the jury to find beyond a reasonable doubt that the essential element in the alleged increase in net worth —the purchase and remodeling of a house in New Rochelle, New York, for a total of approximately $32,000 — was not explained by the loan claimed to have been made by John Lamb. Murray does not attack the government’s marshalling of evidence in other respects, and we see no reason to raise any other question as to its sufficiency.
The evidence supports the inference that Murray’s gambling operations in 1952 and 1953 were “capable of producing much more income than was reported and in a quantity sufficient to account for the net worth increases.” Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). And no attack is made upon the proposition that if the $32,000 expenditure was made out of income during the two tax years under consideration the statute was violated. Thus the question before us is whether the government satisfied its burden of producing sufficient evidence for the jury to find beyond a reasonable doubt, as Judge Dawson properly charged, “that the expenditure was not financed by a loan from John Lamb.” We hold that on this question “taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict.” United States v. Tutino, 269 F.2d 488, 490, (2 Cir. 1959).
The government’s disproof of Murray’s claim that the New Rochelle house was purchased and remodeled with funds lent him by John Lamb consisted largely of testimony tending to show that at the time of Lamb’s death in 1955 and prior thereto he was in such financial straits that it was highly unlikely that during the period in question he had the resources to lend anyone $32,000. Murray, in his last statement to the Internal Revenue Service, had said that he had paid off his debt to Lamb in 1954 or 1955; the government’s evidence as to Lamb’s financial condition also supported an inference that during those years Lamb had not received such repayment.
The government adduced testimony that John Lamb, who was a member of Father Divine’s Mission in Harlem, lived in a Mission residence for a number of months prior to his death. Sunshine Bright, a housekeeper for the Mission, testified that on a number of occasions Lamb’s checks in payment of his rent of four dollars a week were returned because of insufficient funds; she further testified that Lamb had been dispossessed from his real estate office for nonpayment of rent. A friend of Lamb’s, Rev. William Aaron, testified that between 1953 and 1955 he had on several occasions lent Lamb small amounts of money which had never been repaid, and that during the same period, while Lamb was living in Lamb’s office, he had without payment provided Lamb with food and a blanket. In addition, there was evidence that on his entry into Harlem Hospital in 1955 Lamb had said that he had no income and no bank account. The only significant evidence that Lamb had any money was the statement of an Internal Revenue agent that Lamb’s account at the Manufacturers Trust Company contained an average balance of five or six hundred dollars, but this falls far short of any likelihood that Lamb ever had $32,000 to lend to Murray. Cf. United States v. Sclafani, 265 F.2d 408, 411-412 (2 Cir.), cert. denied 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959); United States v. Adonis, 221 F.2d 717, 720 (3 Cir.1955).
Murray did not take the stand at the trial, but the government read into evidence excerpts from several pretrial statements which he made to the Internal Revenue agents who investigated his case. His conflicting versions of the source of the money used to buy and repair the house further strengthen the government’s case. On June 30, 1956 he stated that the transactions had been financed with accumulated savings; on January 3, 1957 he said that his savings had been supplemented with a loan of $12,000 from gambling friends whom he would not identify; on April 23, 1958 he said that $13,000 to $15,000 had come from Lamb; finally on May 28, 1958 he claimed — as did his counsel at trial— that the entire expenditure of $32,000 was financed by a loan of that amount from Lamb. There was no documentary evidence of such a loan.
Murray supported his defense with the testimony of the broker handling the sale of the house that at the closing Lamb had been present and had $20,000 to $22,000 in cash with him which he turned over to the seller; the broker also testified, without objection from the government, that later he had heard that Murray had borrowed the money from Lamb. Seymour Waterman, in whose name title to the house was taken and who was president of the holding company (wholly owned by Murray) to which it was subsequently transferred, also testified, again without objection, that Murray had told him that he was going to borrow money from Lamb to finance the house. This, together with the testimony of Mabel Hope to be considered below, constituted Murray’s defense. We hold that there was ample basis for the jury’s rejection of the defendant’s explanation.
II. Objections to the Admissibility of Evidence
A. Testimony of Mabel Hope — To bolster its contention that the New Rochelle house had been financed by John Lamb, the defense called a Mrs. Mabel Hope, who testified that she had “followed” the Father Divine Mission, knew “Brother” Lamb well, and shortly after 1940 had borrowed $2,000 from him without any documents, to buy a house. She further stated that Lamb had told her “that Murray was a very nice fellow and he felt if [sic] he was his own son, and * * * he would help him in something. He said he would help him to do some kind of business. That is as much as he told me.” This, together with Mrs. Hope’s opinion that Lamb was “a wealthy man,” does not, as we have indicated, detract materially from the substantiality of the evidence supporting the verdict, especially in the light of the fact that Mrs. Hope did not state when it was that Lamb professed his disposition to aid Murray.
More specific attack is made upon the refusal of Judge Dawson to allow Mrs. Hope to answer defense counsel’s question, “Did he indicate that he ever lent Ed Murray money?” We agree with Judge Dawson that any answer to this question would have been inadmissible hearsay. Obviously appellant’s contention that this testimony should have been allowed because certain of the government’s evidence was allegedly hearsay as well is unpersuasive. Nor do we see any force in the argument that Mrs. Hope’s testimony should have been admitted under the hearsay exception relating to statements reflecting the state of mind of the declarant, United States v. Annunziato, 293 F.2d 373, 378 (2 Cir. 1961), cert. den. 82 S.Ct. 240; 6 Wig-more, Evidence §§ 1725-31 (3d Ed. 1959). Clearly a statement by Lamb that he had on prior occasions lent money to the defendant, or even a statement that on this occasion he had lent him the $32,-000 in question (the time reference of the question to Mrs. Hope being unclear) would tend primarily to show not Lamb’s intention or state of mind toward Murray as he spoke but whether or not a loan had actually been made. Thus the out-of-court statement was offered for the forbidden purpose of proving the truth of its contents, and does not come within this or any other exception to the hearsay rule. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); McCormick, Evidence, § 271 (1954).
B. Testimony of Lillian Smith —Lillian Smith, who was called by the government, testified on a variety of matters. She was secretary-treasurer of the holding company which held nominal title in the New Rochelle house, but her testimony about the payment at the closing of the sale (at which she was present) was totally inconclusive. She further testified that, “a few months before” the purchase of the house she had seen Murray with two shopping bags full of money, and that he had gotten the money “from gambling. He hit a number.” On cross-examination, however, she wavered as to the time when she had seen the money, admitting that it might have been as much as four years before the purchase of the house, and further said that she had no knowledge of the source of the money used to pay for the house or whether Murray had engaged in gambling since “years and years ago.” On redirect, Miss Smith testified that she had once done housework for Murray, but denied any other employment connection with him. At that point, over the defense’s objections, the government attorney confronted her with a prior statement signed by her to the effect that at one time she had been a numbers runner for Murray; in the statement dates were not established, but Miss Smith did say that she had not been a runner between 1953 and 1956. The judge permitted the use of the statement on the ground of surprise; Miss Smith denied its accuracy.
The appellant attacks the government’s use of Miss Smith’s prior inconsistent statement to impeach its own witness. We find no error. We agree with the trial judge that it was proper for the government to make use of a prior inconsistent statement of its own witness when she reversed herself on the question whether she had ever worked for Murray as a numbers runner. The implication of the prior statement that she had been a runner, but not in the years 1953 through 1956, might well be that she had been a runner in 1952, the first tax year in question, and thus that at that time Murray had been in the policy business. It was obviously material whether or not Murray was at that time in the policy business, and the government’s case was harmed by Miss Smith’s surprising answer.
The fact that the statement was used to cast doubt upon Miss Smith’s negative testimony, and thus to build the government’s case rather than merely to tear down testimony actually harmful to it does not make it any less admissible. We passed upon a similar situation in Di-Carlo v. United States, 6 F.2d 364 (2 Cir.), cert. denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). In that case, in admitting a prior inconsistent statement when a witness testified that she had been unable to identify her assailants as the defendants, we said:
“The latitude to be allowed in the examination of a witness, who has been called and proves recalcitrant, is wholly within the discretion of the trial judge * * * The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the -stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.” Id., 6 F.2d at 368.
See United States v. Allied Stevedoring Corp., 241 F.2d 925 (2 Cir.), cert. denied 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).
This is not, like United States v. Block, 88 F.2d 618 (2 Cir.), cert. denied 301 U.S. 690, 57 S.Ct. 793, 81 L.Ed. 1347 (1937), a case of an attempt to introduce an entire series of extrajudicial questions and answers when a witness refuses entirely to testify about matters on which he has previously been voluble. Rather, here the presentation was giving the jury an opportunity to determine the truth of Miss Smith’s negative response to a single question by noting her prior inconsistent answer and observing her attempt to reconcile her previous statement with what she now claimed to be the truth. Thus the jury was to draw its conclusion not from the out-of-court statement, but rather from the witness’ in-eourt conduct when confronted with it. So considered, the statement was not hearsay.
Murray also claims that it was error for the trial judge to permit the government to begin its examination of Miss Smith by asking her about her criminal record. She testified that she had been convicted for policy dealings in 1942, 1943, 1956 and 1959, and that in 1939 she had been convicted of violating the election law. Murray’s counsel objected to the relevancy of the testimony, and on two occasions moved for a mistrial. He claims that it was improper to ask questions pertaining to credibility before Miss Smith had given any other testimony, that the convictions brought out were incompetent to reflect on credibility since they were only for misdemeanors not involving moral turpitude, and that Murray was unduly prejudiced by the possible inference from his close connection with Miss Smith that he also had engaged in policy dealings.
The last claim of prejudice is without merit in view of Judge Dawson’s meticulous corrective instructions. He asked Miss Smith explicitly whether her convictions had been in connection with any work she had done for Murray, and her answer was negative. He then went on to say “The jury will realize the fact that she has been convicted is not any indication that Mr. Murray had anything to do with the policy racket,” and he stated that the testimony as to the conviction was to be considered only with relation to her credibility.
We find it unnecessary to consider whether it was error under the circumstances to permit the government to go into the credibility of its own witness in this way at the very outset of her testimony. As this case evolved there was no possibility of any prejudice to Murray from any attack on Miss Smith’s credibility. She gave no affirmative testimony which was in any way helpful to Murray, and in fact Murray’s counsel felt it desirable to argue in his summation that her testimony should not be believed. Thus Murray was more helped than harmed by any attack on her credibility, whatever the government's original motivation may have been.
C. Admission of Books and Records —At the trial, the government asked Murray’s counsel “to produce the books and records of a corporation known as 561-563 West 144th Street Realty, Inc.” On the previous day, the trial judge (off the record and thus apparently out of the hearing of the jury) had advised counsel that unless the books and records were turned over to the prosecution voluntarily, a subpoena would be issued. In court, defense counsel stated to the trial judge that “I have them here, and if you direct me to turn them over, I will.” When the judge responded “Yes,” the papers were made available to the prosecution without any objection or restriction. When, however, during its examination of a former employee of Murray’s accountant, the prosecution attempted to introduce them into evidence, the defense objected to the admission of some of them on the ground of the privilege against self-incrimination in that the books and records also contained personal records of the defendant.
Murray claims error in the trial judge’s failure to give a requested corrective instruction after the government had asked for the records in the presence of the jury. No such instruction was needed, since there was nothing prejudicial in the wording of the request, as quoted in the preceding paragraph. No privilege attached to the corporate rec-ords requested; this is not, like People v. Minkowitz, 220 N.Y. 399, 115 N.E. 987 (1917), a case where the prosecution attempted to prejudice the defendant by making known to the jury the existence of inadmissible personal records,
Nor was the fact that before trial judge Weinfeld had denied the government’s motion for inspection of these doc-umen^s of any relevance. The grounds for the denial had nothing to do with'the admissibility of the documents at trial; Judge Weinfeld merely held that uhe gov-ernment had shown insufficient need to liave them before trial.
Finally, we hold that defend-ant’s objection to the admission of the books in evidence was both too late and n°t in the proper form. The privilege against self-incrimination does not pro-hibit the introduction of incriminating matter in evidence; it merely forbids if to be obtained from the defendant. See Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The time for the defense to ob-ject on the grounds that the records were personally incriminating was before they were turned over to the prosecution, not when the prosecution later attempted to use them in the actual examination of the accountant. Moreover, the defense had a right to withhold only those rec-ords which were personal. The rights of the defendant could have been amply protected if the defense had offered to the government only those parts pertaining to the corporation and had withheld the rest. In any event, the government made no use of the parts of the books pertain-ing to Murray’s personal affairs, and there is no indication that there was in them any matter prejudicial to him.
III. Contradiction of the Government’s Bill of Particulars in Its Summation
Appellant also claims error in the trial court’s permitting the government to argue in its summation that there was no evidence supporting exemptions for three dependents when it had stated in its bill of particulars and in the testimony of the investigating Internal Revenue agent that for purposes of calculating Murray’s taxable income on the net worth theory it had allowed three exemptions. Murray’s counsel argued in his summation that lack of willfulness could be inferred from the fact that in the allegedly fraudulent returns Murray had not attempted to take exemptions for his three children. The government countered with the argument that there was no evidence in the record to show that Murray qualified for the exemptions by actually supporting the children. The trial judge rejected a request that he charge the jury that the government had actually allowed the exemptions, saying “I am not in my charge going to go into minutiae of the case.”
Appellant’s argument rests on the proposition that a bill of particulars binds the government for all purposes in the case in which it is given. The function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise, and to this end the government is strictly limited to proving what it has set forth in it. See, e. g., United States v. Neff, 212 F.2d 297, 309 (3 Cir.1954). But saying that the government’s case is limited to what it has specified is not the same as saying that for all purposes statements in a bill of particulars are evidence in the case. The bill of particulars merely stated that in arriving at the amount of taxable income alleged in the indictment it had allowed the defendant “four exemptions in each of the years contained in the indictment — one exemption for himself and three for his children.” It was not an admission that such exemptions were actually allowable. See United States v. Nunan, 236 F.2d 576, 588 (2 Cir.1956), cert. denied 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957). It was nothing more than a decision not to contest the propriety of the three exemptions which Murray might claim.
The bill of particulars is not evidence of itself; it is merely a statement of what the government will or will not claim. Thus the record was barren of evidence as to whether Murray supported his three children. Of course the defendant could have sought a concession on this from the government or could have adduced proof of it. As it was, Murray’s counsel chose to make the argument despite the fact that the record contained nothing to support it. Under these circumstances it was entirely proper for the government to argue, in answer to the summation of Murray’s counsel, that there was no proof in the record that he was entitled to the exemptions.
IV. Pretrial Inspection of Murray’s Statements to the Internal Revenue Service
The final point for our consideration is the assignment of error in Judge Edelstein’s denial of the defense’s pretrial motion for inspection of the transcripts of Murray’s several voluntary interviews with agents of the Internal Revenue Service. The motion was based alternatively on Rules 16 and 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and Section 6(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(b). Judge Edelstein held that the defense had made insufficient showing of the “materiality” required for discovery under Rule 16, that pretrial inspection pursuant to subpoena was unavailable under Rule 17(c) because it had not been shown that the statements were “evidentiary and relevant,” and that Section 6(b) of the Administrative Procedure Act was inapplicable because the statements had not been “compelled” by the Revenue Service. Because of the division among the district judges of this circuit as to pretrial inspection of a defendant’s own statements, we shall elaborate the reasons for our affirmance of Judge E delstein’s denial of the motion.
A. Rule 16 — We hold that a transcription of a question and answer examination of one who later becomes a defendant in a criminal action is not discoverable by him under Rule 16 as within the category of “books, papers, documents or tangible objects, obtained from or belonging to the defendant.” The language of Rule 16, its evolution in the Advisory Committee, see United States v. Peltz, 18 F.R.D. 394 (S.D.N.Y.1955), and the Committee’s final explanatory Note all indicate that Rule 16 applies only to books, papers, documents or tangible objects in which a defendant has had some prior proprietary or possessory interest. The great weight of authority supports our unwillingness to stretch the word “belonging” to the point of saying that a stenographic transcript of a defendant’s words “belongs” to him. See Shores v. United States, 174 F.2d 838, 11 A.L.R.2d 635 (8 Cir.1949); Schaffer v. United States, 221 F.2d 17 (5 Cir.1955); Kaufman, Criminal Discovery and Inspection of Defendant’s Own Statements in the Federal Courts, 57 Colum.L.Rev. 1113, 1114 (1957); Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1053 (1961). Although Murray’s Q-and-A statements were not signed, we can see no reason why a signed statement would any more have “belonged” to him within the meaning of the rule.
Although on this analysis, it is unnecessary for us to pass upon the assertion in the district judge’s order that the statements were not “material” to the preparation of Murray’s defense, it would seem to us that the statements were material.
B. Administrative Procedure Act § 6(b) — We agree with Judge Edelstein that Section 6(b) is inapplicable to the statements Murray voluntarily made to the Internal Revenue Service. By its terms Section 6(b) applies only to persons “compelled to submit data or evidence,” and Murray’s appearances were not pursuant to summons issued under •§ 7602 of the Internal Revenue Code of 1954, but rather were made of his own volition. Thus the case before us is distinguishable from Backer v. Commissioner, 275 F.2d 141 (5 Cir.1960) and United States v. Smith, 87 F.Supp. 293 (D.Conn.1949), which held § 6(a) applicable to insure representation by counsel in a hearing held pursuant to a subpoena.
C. Rule 17(c) — Although a Rule 17(c) subpoena might under some ■circumstances be used to compel the gov■ernment to produce the transcript of a defendant’s statement for his use as evidence, Murray gave no reason which •would have justified Judge Edelstein in ■exercising his discretion to require the government to produce his statements for inspection before the trial.
“Rule 17(c) was not intended to provide an additional means of discovery,” Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). Its purpose is rather that of the traditional subpoena duces tecum, to permit a party to obtain “books, papers, documents or other objects” for use by him as evidence. The provision for pretrial inspection is merely a subsidiary one, “to expedite the trial by providing a time.and place before trial for the inspection of the subpoenaed materials.” Id. at 220, 71 S.Ct. at 679; see Kaufman, supra, at 1116; Note, 67 Harv.L.Rev. 492, 496-97 (1954). We cannot agree with the implication in Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, cert. denied 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389 (1953), that the mere likelihood that the government will use a defendant’s statement as evidence (as Murray’s statements were in fact used at trial) makes them “evidentiary” within the meaning of Rule 17(c) as interpreted by the Supreme Court in Bowman. If Rule 17(c) is interpreted to allow the defense to inspect any matter in the government’s hands which might be used by it as evidence, we see little meaning left in the court’s clear statement in Bowman that it is not an additional discovery device. Rather, we interpret Bowman as saying that Rule 17(c) is a device solely for the obtaining of evidence for the use of the moving party, permitting him to examine the material obtained before trial only where, in the discretion of the court, it is necessary that he do so in order to make use of the material as evidence.
The only apparent evidentiary use to which a defendant could put his own statement would be to impeach the testimony of a government witness about its contents or, perhaps, to bolster his own testimony by showing its consistency with the prior statement in the event that the government introduced evidence of some other inconsistent statement. To be sure, we see no reason why after the government introduces such testimony at trial a defendant could not use Rule 17 (c) to subpoena his prior statement for his own use. Cf. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Although Jencks eliminated any requirement of a prior foundation of inconsistency (in the case of third-party witnesses), the Supreme Court did not say that it was not necessary for the defendant to show some fairly immediate evidentiary need for the statements he sought, and it reaffirmed that it was not permitting a fishing expedition in the manner of discovery. We cannot say that there may never be a situation where it would be appropriate to allow a defendant to examine his own statement before trial. Here, however, Murray had made no showing of such special need. Murray had counsel with him at each interview and it is hardly to be supposed that he and his counsel were without any notes of what had happened and without any memory of what was said. Under ordinary circumstances, such as these, we see no reason why there should not be sufficient time for defense counsel to make whatever impeaching or bolstering use of a statement he can if he obtains the transcript at trial. Murray has made no showing that he was in any way prejudiced by reason of not having had his statements made available to him before trial.
Affirmed.
. Section 145(b), Internal Revenue Code of 1939.
“Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.”
. In any event, Murray waived any objection to the use of misdemeanor convictions to reflect on credibility by his failure to raise tlie point specifically at trial. He should not be permitted to raise on appeal a new point which he did not give the trial judge an opportunity to pass upon. See, e. g., United States v. Sansone, 231 F.2d 887, 891 (2 Cir.), cert. denied 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). Timely objection was especially necessary here because it is not clear on the record what the nature of the convictions was. If, as is likely, they were in fact only for. misdemeanors (the policy violations prob-ably having been under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 974 and the election violation probably under New York Penal Law, § 757(2)) it would have been error to permit their use for impeachment purposes over prop-er objection. See United States v. Pro-voo, 215 F.2d 531, 536 (2 Cir. 1954).
. Rule 16, Federal Rules of Criminal Procedure.
“Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.”
. Rule 17(c), Federal Rules of Criminal Procedure.
“A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein * * * The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.”
. Section 6(b), Administrative Procedure Act, 5 U.S.C. § 1005(b).
“Issuance of process; investigations; transcript of evidence. * * * Every person compelled to submit data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that, in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.”
. Compare, e. g., United States v. Peace, 16 F.R.D. 423 (S.D.N.Y.1954) (allowing inspection under Rule 16) with, e.
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