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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
In re PAN AMERICAN PAPER MILLS, INC., Debtor, Appellant.
No. 79-1583.
United States Court of Appeals, First Circuit.
Argued March 11, 1980.
Decided April 11, 1980.
Nelson I. Fishman, Baltimore, Md., with whom Howard A. Rubenstein, Baltimore, Md., was on brief, for appellant.
Marta Quinones de Torres, Asst. Sol. Gen., Dept, of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
WYZANSKI, Senior District Judge.
This appeal involves a tax priority claim made in bankruptcy proceedings. The question presented is whether unpaid “premiums” assessed under the Puerto Rico Workmen’s Accident Compensation Act, 11 •L.P.R.A., § 26, par. 3, for a period when an employer was covered but not insured constitute “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4).
§ 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4) provides:
(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof. .
The Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A., §' 1, et seq. (hereinafter the “WAC Act”) establishes a comprehensive, compulsory insurance system which the parties agree covered Pan American Paper Mills, Inc., (Pan American) and its employees during the years relevant to this case. See § 2. § 8 provides that the act shall be administered by a Manager who shall create a State Insurance Fund (hereinafter called “the Fund”). § 19 obliges every covered employer to insure his employees “in” the Fund. § 28 makes it the duty of every covered employer to file no later than July 20 of each year a “statement” or report showing the wages paid during the fiscal year that ended on the previous June 30. § 26 authorizes the Manager to assess premiums for the year following the report period, and provides that “said premiums shall be collected semi-annually in advance.” However, the premium for the first semester (July 1 to December 31) is not due until a date specified in the notice of assessment, and the premium for the second semester (January 1 to June 30) is not due until January 2. See § 26.
If the employer does not pay the premium before the end of the relevant semester, the employer is not insured against any accident that occurs during that semester. § 28, par. 6; The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, 61 P.R.R. 303, 308 (1943). Under the original form of the WAC Act, as enacted in the Puerto Rico Act of April 18, 1935, if the employer did not pay the premium before the end of the semester, then, because he was not insured for that semester, he was totally excused from any obligation to pay the premium at any time. The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, supra. However, the Puerto Rico Act of May 9,1942 amended the WAC Act to provide in the third paragraph of § 26 11 L.P.R.A.
In case any employer covered by this Act [chapter] fails to insure properly, the Manager may assess and levy on, and collect from him premiums for all such time as said employer may have remained uninsured, in the same manner as if he were insured.
Both before and after the 1942 amendment, a covered employee of a covered employer had the benefits of the WAC Act even though his employer was uninsured because he had failed promptly to pay a premium he owed. See § 16. That is, the employee was free to proceed to recover from the Fund accident compensation for any covered injury and, in turn, the Fund was entitled to be compensated by the uninsured, but covered employer for all costs thus incurred by the Fund. § 16; The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra.
Pan American failed to pay its WAC Act premiums amounting to $68,250.61 for the years 1972 through 1976. On account of covered injuries which Pan American employees sustained during those years, the Fund paid them $50,897.05.
June 26, 1975 Pan American filed a petition for relief under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701, et seq. The Bankruptcy Judge allowed the petition and continued Pan American as a debtor in possession. The Fund filed two claims which were consolidated; the first or priority claim sought $68,250.61 on account of unpaid premiums which the Fund alleged were “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4); and the second or' unsecured claim sought $50,897.05 on account of compensation for what the Fund had paid to Pan American employees.
The Bankruptcy Judge entered an order allowing both claims and according a § 64(a)(4) tax priority to the first claim. The District Judge affirmed the order, and Pan American appealed.
Pan American’s appeal is based on its argument that The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra held, and Central Boca Chica, Inc. v. Treasurer, 54 P.R.R. 404, 417 (1939) implied that an obligation imposed upon an uninsured employer to pay a “premium” to the Fund established under the Workmen’s Accident Compensation Act would be a penalty, and that therefore such an obligation cannot be a tax under § 64(a) of the Bankruptcy Act. We reject Pan American’s argument and affirm the District Court.
The question whether an obligation is a tax entitled to priority under § 64(a)(4) of the Bankruptcy Act is a federal question. City of New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028, 1029, 85 L.Ed. 1333 (1941); New Jersey v. Anderson, 203 U.S. 483, 491, 27 S.Ct. 137, 139, 51 L.Ed. 284 (1906).
It is undisputed and we hold that under federal law for purposes of Bankruptcy Act § 64(a)(4) Puerto Rico is a subdivision of the United States. What is disputed'is whether a premium claim covering an elapsed period is a claim for “taxes.”
The Supreme Court, taking a broad view of what constitutes “taxes” within the meaning of § 64(a)(4), has ruled that “the priority commanded ,by § 64 extends to those pecuniary obligations laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” Ibid; United States v. New York, 315 U.S. 510, 515-516, 62 S.Ct. 712, 714-715, 86 L.Ed. 998 (1942).
That broad approach led lower courts to hold that where, pursuant to an unemployment compensation law, a state exacts from an employer so-called “contributions” a state’s claim for such contributions is entitled to priority as a claim for taxes under Bankruptcy Act § 64(a)(4). Re William Akers, Jr. Co., 121 F.2d 846 (3rd Cir. 1941); Matter of Siegelbaum’s Inc., 38 F.Supp. 1009 (D.Conn.1941); Matter of Mid America Co., 31 F.Supp. 601 (S.D.Ill.1939); Re Oshkosh Foundry Co., 28 F.Supp. 412 (D.Wis. 1939).
We see no reason not to apply the same approach to situations where pursuant to a workmen’s compensation law a state or subdivision of the United States exacts from an employer so-called “premiums.” State Industrial Accident Commission v. Aebi, 177 Or. 361, 162 P.2d 513, 161 ALR 211 (1945). The reason that such premiums should be treated as taxes within § 64(a)(4) of the Bankruptcy Act is that they are pecuniary obligations imposed by the government for the purpose of defraying the expenses of an undertaking which it authorized.
Appellant’s argument in the case at bar that the Fund’s priority claim of $68,250.61 for premiums is not a tax because in return for the premiums involved in the claim Pan American received no insurance protection rests upon a misconception. Bankruptcy Act § 64 gives priority to a premium claim if it has certain tax characteristics not because it has insurance characteristics. The pertinent questions about a so-called premium are whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose.
In determining whether the premiums were “taxes” under Bankruptcy Act § 64(a)(4) it is of no consequence that had Pan American been prompt in paying the premiums it would have had as a quid pro quo insurance protection; nor is it of any consequence that since the corporation failed to make prompt payment it had no insurance protection. Pan American is not, except in a colloquial and inexact sense, punished in any way because of its delay. Pan American is merely failing to get a benefit that it would have enjoyed had it paid its premiums promptly.
Appellant’s contention that Pan American’s own dilatoriness converted a tax obligation into a “penalty” as that term is used in § 57(j) of the Bankruptcy Act, 11 U.S.C. § 93(j), is reminiscent of one of the unsuccessful contentions in United States v. New York, supra. There it was argued that 90% of the Title IX, Social Security Tax on employers was, for purposes of §§ 57 and 64 of the Bankruptcy Act, a penalty and not a tax because that 90% was payable to the federal government only if it were not used as a credit on account of payments made by the taxpayer to a state unemployment compensation fund. See United States v. New York, 315 U.S. 510, 516-517, 62 S.Ct. 712, 715, 86 L.Ed. 998 (1942). In rejecting that argument, Mr. Justice Byrnes said at p. 517, 62 S.Ct. at p. 715: “Although the employer is free to obtain a credit against it [90% of the Title IX tax] by contributing to his state fund, it cannot be said that it is any the less a tax because the employer has failed, either through choice or lack of resources, to make such a contribution.” So here although the employer is free by paying promptly to obtain insurance protection, it cannot be said that his premium obligation is any the less a tax because the employer has failed, either through choice or lack of resources, to make his premium payment promptly.
From the preceding analysis it follows that the Fund’s priority claim of $68,250.61 was appropriately allowed. Nor do we perceive any reason for reversing the allowance of the Fund’s unsecured claim of $50,-897.05, Puerto Rico in § 16 of the WAC Act imposed upon a covered but uninsured employer an obligation to compensate the Fund for whatever it had paid his employees while he was uninsured; § 26 of that act imposed upon him an obligation to pay “premiums.” We are not aware of any principle or of any authority which precludes the Puerto Rico legislature from imposing those obligations cumulatively. The cumulative obligations underline the point that the employer’s so-called premium obligation is not the conventional premium familiar in ordinary cases of insurance, (see 5 Couch on Insurance § 30:1 (2nd ed. I960)), but is indeed a tax which is payable even if it is not advantageous to the employer.
There is no merit in appellant’s preposterous contention that only so much of Pan American’s overdue premiums is payable as represents what the Fund was required to expend to pay Pan American’s employees for the period when the premiums were due but remained unpaid. If adopted, appellant’s contention would have the absurd consequence of giving to Pan American a financial advantage for not having paid its premiums promptly.
Affirmed.
. Appellant does not directly present the question whether premiums paid by an employer for a period when he was insured constitute “taxes” under Bankruptcy Act § 64.
. Those two cases were decided with respect to the WAC Act as it stood before the 1942 amendment added paragraph 3 to § 26. Hence those cases could at best offer dicta rather than holdings as to what is the meaning of the present version of § 26.
. Two early cases, Matter of Farrell, 211 F. 212 (W.D.Wash.1914) and Re Eureka Paper Co., 44 Am.Bank Rep. (F) 179 (D.C.Ref.1919) held that a payment by an employer to a workmen’s compensation act fund is not a tax. The reason given in Farrell (p. 213), that the exaction is “an assessment against a class for the benefit of a class”, is in the spirit of the subsequent decision involving the Agricultural Adjustment Act, United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1935), virtually overruled by the Social Security Act cases, Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed, 1245 (1937), Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937).
. See State Industrial Accident Commission v. Aebi, supra, which rejected the argument that an exaction from an employer to contribute to a workmen’s compensation act fund could not be a tax for the purposes of Bankruptcy Act § 64 because “under the Workmen’s Compensation Law the employer is paying for insurance which directly benefits him whereas under Unemployment Compensation Law the employer is- simply contributing to a fund, which is to be expended for the general welfare.” (162 P.2d at p. 516).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_respond1_7_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
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: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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sc_issue_1
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49
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
STANDEFER v. UNITED STATES
No. 79-383.
Argued April 14, 1980
Decided June 9, 1980
BüRgeR, C. J., delivered the opinion for a unanimous Court.
Harold Gondelman argued the cause and filed briefs for petitioner.
William Alsup argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, and Deputy Solicitor General Frey.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari in this case to decide whether a defendant accused of aiding and abetting in the commission of a federal offense may be convicted after the named principal has been acquitted of that offense.
I
In June 1977, petitioner Standefer was indicted on four counts of making gifts to a public official, in violation of 18 U. S. C. § 201 (f), and on five counts of aiding and abetting a revenue official in accepting compensation in addition to that authorized by law, in violation of 26 U. S. C. § 7214 (a) (2) and 18 U. S. C. § 2. The indictment charged that petitioner, as head of Gulf Oil Corp.’s tax department, had authorized payments for five vacation trips to Cyril Nieder-berger, who then was the Internal Revenue Service agent in charge of the audits of Gulf’s federal income tax returns. Specifically, the indictment alleged that Gulf, on petitioner’s authorization, had paid for vacations for Niederberger in Pompano Beach (July 1971), Miami (January 1973), Ab-secon (August-September 1973), Pebble Beach (April 1974), and Las Vegas (June 1974). The four counts under 18 U. S. C. § 201 (f) related to the Miami, Absecon, Pebble Beach, and Las Vegas vacations; the five counts under 26 U. S. C. § 7214 (a)(2) and 18 U. S. C. § 2 were one for each vacation.
Prior to the filing of this indictment, Niederberger was separately charged in a 10-count indictment — two counts for each of the five vacations — with violating 18 U. S. C. § 201 (g) and 26 U. S. C. §7214 (a)(2). In February 1977, Nieder-berger was tried on these charges. He was convicted on four counts of violating § 201 (g) in connection with the vacations in Miami, Absecon, Pebble Beach, and Las Vegas and of two counts of violating § 7214 (a) (2) for the Pebble Beach and Las Vegas trips. He was acquitted on the § 201 (g) count involving the Pompano Beach trip and on the three counts under § 7214 (a)(2) charging him with accepting payments from Gulf for trips to Pompano Beach, Miami, and Absecon.
In July 1977, following Niederberger’s trial and before the trial in his own case commenced, petitioner moved to dismiss the counts under § 7214 (a) (2) and 18 U. S. C. § 2 which charged him with" aiding and abetting Niederberger in connection with the Pompano Beach, Miami, and Absecon vacations. Petitioner argued that because Niederberger, the only named principal, had been acquitted of accepting unlawful compensation as to those vacations, he could not be convicted of aiding and abetting in the commission of those offenses. The District Court denied the motion.
Petitioner’s case then proceeded to trial on all nine counts. At trial, petitioner admitted authorizing payment for all five vacation trips, but testified that the trips were purely social and not designed to influence Niederberger in the performance of his official duties. The jury returned guilty verdicts on all nine counts. Petitioner was sentenced to concurrent terms of six months’ imprisonment followed by two years’ probation; he was fined a total of $18,000 — $2,000 on each count.
Petitioner appealed his convictions to the Court of Appeals for the Third Circuit claiming, inter alia, that he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense. By a divided vote, the Court of Appeals, sitting en banc, rejected that contention. 610 F. 2d 1076 (1979). It concluded that “the outcome of Niederberger’s prosecution has no effect on [petitioner’s] conviction.” Id., at 1078.
Because the question presented is one of importance to the administration of criminal justice on which the Courts of Appeals are in conflict, we granted certiorari. 444 U. S. 1011. We affirm.
II
Petitioner makes two main arguments: first, that Congress in enacting 18 U. S. C. § 2 did not intend to authorize prosecution of an aider and abettor after the principal has been acquitted of the offense charged; second, that, even if § 2 permits such a prosecution, the Government should be barred from relitigating the issue of whether Niederberger accepted unlawful compensation in connection with the Pompano Beach, Miami, and Absecon vacations. The first contention relies largely on the common law as it prevailed before the enactment of 18 U. S. C. § 2. The second rests on the contemporary doctrine of nonmutual collateral estoppel.
A
At common law, the subject of principals and accessories was riddled with “intricate” distinctions. 2 J. Stephen, A History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. See W. LaFave & A. Scott, Criminal Law § 63 (1972); 4 W. Blackstone, Commentaries *33; Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581 (1941). By contrast, misdemeanor cases “d[id] not admit of accessaries either before or after the fact,” United States v. Hartwell, 26 F. Cas. 196, 199 (No. 15,318) (CC Mass. 1869); instead, all parties to a misdemeanor, whatever their roles, were principals. United States v. Dotterweich, 320 U. S. 277, 281 (1943); 1 C. Toreia, Wharton’s Criminal Law § 33 (14th ed. 1978).
Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. See LaFave & Scott, supra, at 499. Among them was one of special relevance to this case: the rule that an accessory could not be convicted without the prior conviction of the principal offender. See 1 M. Hale, Pleas of the Crown *623-*624. Under this rule, the principal’s flight, death, or acquittal barred prosecution of the accessory. And if the principal were pardoned or his conviction reversed on appeal, the accessory’s conviction could not stand. In every way, “an accessory follow[ed], like a shadow, his principal.” 1 J. Bishop, Criminal Law § 666 (8th ed. 1892).
This procedural bar applied only to the prosecution of accessories in felony cases. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. Queen v. Humphreys and Turner, [1965] 3 All E. R. 689; Queen v. Burton, 13 Cox C. C. 71, 75 (Crim. App. 1875). And in felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. King v. Taylor and Shaw, 168 Eng. Rep. 283 (1785); Queen v. Wallis, 1 Salk. 334, 91 Eng. Rep. 294 (K. B. 1703); Brown v. State, 28 Ga. 199 (1859); State v. Whitt, 113 N. C. 716, 18 S. E. 715 (1893). Not surprisingly, considerable effort was expended in defining the categories — in determining, for instance, when a person was “constructively present” so as to be a second-degree principal. 4 Blackstone, supra, at *34. In the process, justice all too frequently was defeated.
To overcome these judge-made rules, statutes were enacted in England and in the United States. In 1848 the Parliament enacted a statute providing that an accessory before the fact could be “indicted, tried, convicted, and punished in all respects like the Principal.” 11 & 12 Vic. ch. 46, § 1 (emphasis added). As interpreted, the statute permitted an accessory to be convicted “although the principal be acquitted.” Queen v. Hughes, Bell 242, 248, 169 Eng. Rep. 1245, 1248 (1860). Several state legislatures followed suit. In 1899, Congress joined this growing reform movement with the enactment of a general penal code for Alaska which abrogated the common-law distinctions and provided that “all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.” Act of Mar. 3, 1899, § 186, 30 Stat. 1282. In 1901, Congress enacted a similar provision for the District of Columbia.
The enactment of 18 U. S. C. § 2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point:
“Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” Act of Mar. 4, 1909, § 332, 35 Stat. 1152 (emphasis added).
The statute “abolishe[d] the distinction between principals and accessories and [made] them all principals.” Hammer v. United States, 271 U. S. 620, 628 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants.
The legislative history of § 2 confirms this understanding. The provision was recommended by the Commission to Revise and Codify the Criminal and Penal Laws of the United States as “[i]n accordance with the policy of recent legislation” by which “those whose relations to a crime would be that of accessories before the fact according to the common law are made principals.” 1 Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission’s recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect:
“The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense.
“At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible.” S. Rep. No. 10, 60th Cong., 1st Sess., pt. 1, p. 13 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 13 (1908).
And on the floor of the House of Representatives, Representative Moon, the Chairman of the Joint Select Committee, put the point simply: “We... have abolished the existing arbitrary distinction between felonies and misdemeanors.” 42 Cong. Rec. 585 (1908).
This history plainly rebuts petitioner’s contention that § 2 was not intended to authorize conviction of an aider and abettor after the principal had been acquitted of the offense charged. With the enactment of that section, all partici-. pants in conduct violating a federal criminal statute are “principals.” As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant.
B
The doctrine of nonmutual collateral estoppel was unknown to the common law and to the Congress when it enacted § 2 in 1909. It emerged in a civil case in 1942, Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807, 122 P. 2d 892. This Court first applied the doctrine in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971). There, we held that a determination of patent invalidity in a prior infringement action was entitled to preclusive effect against the patentee in subsequent litigation against a different defendant. Just this past Term we again applied the doctrine — this time “offensively” — to hold that a defendant who had had a “full and fair” opportunity to litigate issues of fact in a civil proceeding initiated by the Securities and Exchange Commission could be estopped from relitigating those issues in a subsequent action brought by a private plaintiff. Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979). In both cases, application of nonmutual estoppel promoted judicial economy and conserved private resources without unfairness to the litigant against whom estoppel was invoked.
Here, petitioner urges us to apply nonmutual estoppel against the Government; specifically he argues that the Government should be barred from relitigating Niederberger’s guilt under § 7214 (a) (2) in connection with the vacation trips to Pompano Beach, Miami, and Absecon. That issue, he notes, was an element of his offense which was determined adversely to the Government at Niederberger’s trial.
This, however, is a criminal case, presenting considerations different from those in Blonder-Tongue or Parklane Hosiery. First, in a criminal case, the Government is often without the kind of “full and fair opportunity to litigate” that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution’s discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, cf. Fed. Rule Civ. Proc. 50; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, cf. Fed. Rule Civ. Proc. 59; and it cannot secure appellate review where a defendant has been acquitted. See United States v. Ball, 163 U. S. 662, 671 (1896).
The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of “ 'their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ ” Dunn v. United States, 284 U. S. 390, 393 (1932), quoting Steckler v. United States, 7 F. 2d 59, 60 (CA2 1925). See generally H. Kalven & H. Zeisel, The American Jury 193-347 (ed. 1976). It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclu-sive effect. See Bestatement (Second) of Judgments § 68.1 (Tent. Draft No. 3, 1976) (denying preclusive effect to an unreviewable judgment).
The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime “whose rights were [not] violated.” Alderman v. United States, 394 U. S. 165, 171-172 (1969). Accord, Rakas v. Illinois, 439 U. S. 128, 134 (1978). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted.
It is argued that this concern could be met on a case-by-case basis by conducting a pretrial hearing to determine whether any such evidentiary ruling had deprived the Government of an opportunity to present its case fully the first time around. That process, however, could prove protracted and burdensome. Under such a scheme, the Government presumably would be entitled to seek review of any adverse evidentiary ruling rendered in the first proceeding and of any aspect of the jury charge in that case that worked to its detriment. Nothing short of that would insure that its opportunity to litigate had been “full and fair.” If so, the “pretrial hearing” would fast become a substitute for appellate review, and the very purpose of litigation economy that estoppel is designed to promote would be frustrated.
Finally, this case • involves an ingredient not present in either Blonder-T ongue or Parklane Hosiery, the important federal interest in the enforcement of the criminal law. Blonder-T ongue and Parklane Hosiery were disputes over private rights between private litigants. In such, cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the courts with repetitive litigation.
That is not so here. The Court of Appeals opinion put the point well:
“[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant. The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction. To plead crowded dockets as an excuse for not trying criminal defendants is in our view neither in the best interests of the courts, nor the public.” 610 F. 2d, at 1093.
In short, this criminal case involves “competing policy considerations” that outweigh the economy concerns that under-gird the estoppel doctrine. See Restatement (Second) of Judgments § 68.1 (e) and comments thereto (Tent. Draft No. 3, 1976); cf. Commissioner v. Sunnen, 333 U. S. 591 (1948).
Ill
In denying preclusive effect to Niederberger’s acquittal, we do not deviate from the sound teaching that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U. S. 11, 14 (1954). This case does no more than manifest the simple, if discomforting, reality that “different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.” Roth v. United States, 354 U. S. 476, 492, n. 30 (1967). While symmetry of results may be intellectually satisfying, it is not required. See Hamling v. United States, 418 U. S. 87, 101 (1974).
Here, petitioner received a fair trial at which the Government bore the burden of proving beyond reasonable doubt that Niederberger violated 26 U. S. C. § 7214 (a) (2) and that petitioner aided and abetted him in that venture. He was entitled to no less — and to no more.
The judgment of the Court of Appeals is
Affirmed.
Title 18 U. S. C. § 201 (f) provides, in relevant part, as follows:
“Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official... for or because of any official act performed or to be performed by such public official... [is guilty of an offense]
Title 26 U. S. C. § 7214 (a) (2) punishes:
“Any officer or employee of the United States acting in connection with any revenue law of the United States... who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty.”
Title 18 U. S. C. § 2 provides in relevant part:
“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
The indictment also named Gulf Oil Corp. and Joseph Fitzgerald, a manager in Gulf’s tax department, as defendants. Gulf pleaded guilty and Fitzgerald nolo contendere to all nine counts.
It appears that the statute of limitations had run on any violation of 18 U. S. C. § 201 (f) in connection with the Pompano Beach vacation.
Title 18 U. S. C. §201 (g) punishes:
“Whoever, being a public official..., otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him.”
Niederberger was sentenced to six months’ imprisonment followed by a five-year period of probation, and he was fined $5,000. His convictions were affirmed by the Court of Appeals. United States v. Niederberger, 580 F. 2d 63 (CA3 1978).
The jury was instructed that in order to render a guilty verdict on the § 7214 (a) counts it must determine (1) that Niederberger knowingly “received a fee, compensation or reward except as prescribed by law... for the performance... of any duty” and (2) that petitioner “willfully aided and abetted [him].” App. 53a-54a, 57a.
The Courts of Appeals for the Fifth Circuit, the Ninth Circuit, and the District of Columbia Circuit have reached the same conclusion as the Third Circuit. See United States v. Musgrave, 483 F. 2d 327,331-332 (CA5 1973); United States v. Azadian, 436 F. 2d 81 (CA9 1971); Perkins v. United States, 315 F. 2d 120, 122 (CA9 1963); Gray v. United States, 104 U. S. App. D. C. 153, 260 F. 2d 483 (1958). The Court of Appeals for the Fourth Circuit has taken the contrary view that “where the only potential principal has been acquitted, no crime has been established and the conviction of an aider and abettor cannot be sustained.” United States v. Shuford, 454 F. 2d 772, 779 (1971). Accord, United States v. Prince, 430 F. 2d 1324 (CA4 1970). See also n. 11, infra.
Petitioner also challenges the instructions to the jury on criminal intent. We agree with the Court of Appeals that the instructions were correct.
By 1909, when § 2 was enacted, 13 States had enacted legislation providing that the acquittal of the actual perpetrator was not a bar to the conviction of one charged with giving him aid. See Cal. Stat., ch. 99, §§ 11, 12 (1850) (see People v. Bearss, 10 Cal. 68, 70 (1858)); Del. Rev. Stat., ch. 133, § 1 (1893); Iowa Rev. Code Ann. §4314 (1885) (see State v. Lee, 91 Iowa 499, 501-502, 60 N. W. 119, 120 (1894)); Kan. Gen. Stat. § 5180 (1889) (see State v. Bogue, 52 Kan. 79, 86-87, 34 P. 410, 412 (1893)); Ky. Stat. § 1128 (1903) (see Commonwealth v. Hicks, 118 Ky. 637, 642, 82 S. W. 265, 266 (1904)); Miss. Code § 1026 (1906) (see Fleming v. State, 142 Miss. 872, 880-881, 108 So. 143, 144-145 (1926)); Mont. Penal Code Ann. § 1854 (1895); N. Y. Penal Code § 29 (1895) (see People v. Kief, 126 N. Y. 661, 663-664, 27 N. E. 556, 557 (1891)); N. D. Rev. Code Crim. Proc. § 8060 (1895); Okla. Stat. § 5523 (1890) ; S. D. Stat. Ann. § 8520 (1899); Utah Comp. Laws § 4752 (1907); Wash. Code of Proc. § 1189 (1891) (see State v. Gifford, 19 Wash. 464, 467-468, 53 P. 709, 710 (1898)).
Since then, at least 21 other States have enacted legislation with that effect. See 1977 Ala. Act No. 607, § 425; Ariz. Rev. Stat. Ann. § 13-304-1 (1978); Ark. Stat. Ann. § 41-304 (1977); Colo. Rev. Stat. §18-1-605 (1973) (see Roberts v. People, 103 Colo. 250, 87 P. 2d 251 (1938)); Conn. Gen. Stat. § 53a-9 (1979); Fla. Stat. §777.011 (1979) (see Butts v. State, 286 So. 2d 28 (1073)); Ga. Code § 26-802 (1978); Ill. Rev. Stat., ch. 38, § 5-3 (1979); Ind. Code § 35-41-2-4 (Supp. 1978); La. Rev. Stat. Ann. § 1424 (West 1974) (see State v. McAllister, 366 So. 2d 1340 (1978)); Me. Rev. Stat. Ann., Tit. 17-A, §57 (1979); Mich. Comp. Laws § 767.39 (1970) (People v. Smith, 271 Mich. 553, 260 N. W. 911 (1935)); Mo. Rev. Stat. § 562.046 (1978); Neb. Rev. Stat. § 28-206 (Supp. 1978) (State v. Rice, 188 Neb. 728, 199 N. W. 2d 480 (1972)); N. H. Rev. Stat. Ann. § 626.8 (1974); N. J. Stat. Ann. §2C: 2-6 (West Spec. Pamph. 1979); N. M. Stat. Ann. § 30-1-13 (1978); Pa. Cons. Stat., Tit. 18, § 306 (Supp. 1979); S. C. Code § 16-1-50 (1976) (State v. Massey, 229 S. E. 2d 332 (1976)); Tex. Penal Code Ann. § 7.03 (Vernon 1974); Wis. Stat. §939.05 (1977).
Eleven other States have enacted statutes that modify the common-law rule; these statutes have not been authoritatively construed on whether an accessory can be prosecuted after his principal’s acquittal. See Haw. Rev. Stat. § 702-225 (1976); Idaho Code § 19-1431 (1979); Mass. Gen. Laws Ann., ch. 274, § 3 (West 1970); Minn. Stat. § 609.05 (1978); Nev. Rev. Stat. § 195.040 (1979); Ohio Rev. Code Ann. § 2923.03 (1979); Ore. Rev. Stat. § 161.160 (1979); Vt. Stat. Ann., Tit. 13, § 3 (1974); Va. Code § 18.2-21 (1975); W. Va. Code § 61-11-7 (1977); Wyo. Stat. § 6-1-114 (1977).
Only four States — Maryland, North Carolina, Rhode Island, and Tennessee — clearly retain the common-law bar. See State v. Ward, 284 Md. 189, 396 A. 2d 1041 (1978); State v. Jones, 101 N. C. 719, 8 S. E. 147 (1888) (interpreting N. C. Gen. Stat. § 14-5 (1969)); R. I. Gen. Laws § 11-1-3 (1970); Pierce v. State, 130 Tenn. 24, 168 S. W. 851 (1914).
The Model Penal Code provides that an accomplice may be convicted “though the person claimed to have committed the offense... has been acquitted.” § 2.06(7) (Tent. Draft No. 3, 1955), and see comments 38-39 (Tent. Draft No. 1, 1953).
The provision is still in effect; it provides that all persons “aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes....” Act of Mar. 3, 1901, § 908, 31 Stat. 1337; D. C. Code § 22-105 (1973) (emphasis added).
In 1951, the words “is a principal” were altered to read “is punishable as a principal.” That change was designed to eliminate all doubt that in the case of offenses whose prohibition is directed at members of specified classes (e. g., federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S. Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the Circuit Courts that had addressed the question had concluded that § 2 authorizes conviction of an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F. 2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F. 2d 216, 219 (CA10 1947); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney v. United States, 203 F. 928, 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U. S. 575, 580 (1978).
Petitioner emphasizes the fact that the Committee Report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify 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 MINING & MANUFACTURING CO. v. NEW JERSEY WOOD FINISHING CO.
No. 291.
Argued April 29, 1965.
Decided May 24, 1965.
Sidney P. Howell, Jr., argued the cause for petitioner. With him on the briefs were Charles C. Trelease and Edwin E. McAmis.
Albert O. Besser argued the cause and filed a brief for respondent.
Lewis C. Oreen and Gustav B. Margraf filed a brief for Reynolds Metals Co., as amicus curiae, urging reversal.
Briefs of amici curiae, urging affirmance, were filed by Solicitor General Cox, Assistant Attorney General Orrick, Frank Goodman, Robert B. Hummel and Irwin A. Seibel for the United States, and by Alex Akerman, Jr., Thomas A. Ziebarth and Robert E. Staed for Highland Supply Corp.
Mr. Justice Clark
delivered the opinion of the Court.
This private treble-damage antitrust action was brought by the New Jersey Wood Finishing Company against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation. Respondent’s original complaint was filed on November 20,1961. It alleged violations of § 7 of the Clayton Act, a conspiracy to restrain commerce in electrical insulation products in violation of § 1 of the Sherman Act and an attempt to monopolize the same as prohibited by § 2. The substance of the complaint concerned the acquisition in 1956 of all the assets of Insulation and Wires, Inc., a subsidiary of Essex, by Minnesota Mining and an alleged conspiracy to restrain trade in electrical insulation products. The latter claimed that the suit was barred by the four-year limitation provision of the Clayton Act. However, New Jersey Wood asserted that the bar of the statute had been tolled by a proceeding filed in 1960 against Minnesota Mining by the Federal Trade Commission under § 7 of the Clayton Act. That action resulted in a consent order under which Minnesota Mining was directed to divest itself of the assets acquired. Section 5 (b) of the Clayton Act provides that a “civil or criminal proceeding . . . instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws” suspends the running of the statute of limitations during the pendency thereof and for one year thereafter with respect to private actions arising under those laws and based on any matter complained of in the government suit. The questions here are whether proceedings by the Federal Trade Commission toll the running of the § 4B statute of limitations to the same extent as do judicial proceedings and, if they do, whether the claim of New Jersey Wood is based on “any matter complained of” in the Commission action. The District Court denied Minnesota Mining’s motion to dismiss, holding that the four-year statute had been tolled by § 5 (b) and that this suit was timely filed. 216 F. Supp. 507. The Court of Appeals affirmed. 332 F. 2d 346. We granted certiorari because of a conflict between circuits and the importance of the question in the administration of the Clayton Act. 379 U. S. 877.
I.
New Jersey Wood is engaged in the manufacture of electrical insulation materials, some of which it sells to independent distributors who, in turn, sell to wire and cable manufacturers and fabricators. Minnesota Mining is a diversified company, with one of its divisions producing electrical insulation materials. Essex is a substantial consumer of electrical insulation material. It owned Insulation Wires which distributes that type of material.
In August 1956 Minnesota Mining bought all the assets of Insulation Wires and in 1960 the Federal Trade Commission filed a proceeding against it under § 7 of the Clayton Act which resulted in a consent order directing the divestiture by Minnesota Mining of the assets so acquired. This order was dated August 24, 1961. The Commission charged that prior to 1953 Minnesota Mining was the leading manufacturer of electrical insulation tape; that through five transactions in the years 1952 through 1956 it had also brought under its control substantial shares of other major electrical product lines; and that its subsequent acquisition of two of the three largest distributors of these products might have the effect of actually or potentially lessening competition and tending to create a monopoly in various aspects of that commerce. One of the two distributors so acquired was Insulation Wires.
Thereafter, within a year, this suit was filed. We need not detail the allegations of the complaint. It is sufficient to say that the gist of it was that prior to August 1956 Insulation Wires was the primary distributor of New Jersey Wood products throughout the United States; that in August 1956 Minnesota Mining acquired all of the assets of Insulation Wires and during the next month notified New Jersey Wood that beginning in January 1957 Insulation Wires would no longer distribute its products. The complaint also charged Minnesota Mining and Essex with conspiring to restrain trade and commerce in the manufacture, sale and distribution of electrical insulation products beginning with the acquisition of Insulation Wires and continuing until the filing of this suit. There were numerous overt acts alleged as being in furtherance of the conspiracy, the first of which was that acquisition.
h-i H-Í
At the outset it is necessary to examine § 5 (a) of the Clayton Act and its relationship to § 5 (b). The former makes a final judgment or decree in any civil or criminal proceeding brought by or on behalf of the United States prima facie evidence in subsequent private suits “as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto.” Several distinctions between these sections are apparent and suggest that they are not wholly interdependent. First, the words “final judgment or decree” are used in § 5 (a) and are of crucial significance in its application. However, § 5 (b) tolls the statute of limitations set out in § 4B from the time suit is instituted by the United States regardless of whether a final judgment or decree is ultimately entered. Its applicability in no way turns on the success of the Government in prosecuting its case. Moreover, under § 5 (a) the judgment or decree may be used only as to matters respecting which it would operate as an estoppel between the parties. No such limitation appears in the tolling provision. It applies to every private right of action based in whole or in part on “any matter” complained of in the government suit.
When we turn from the express language of these two statutory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5 (a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations. We have discussed these policies at greater length below. At this juncture it is sufficient to say that in framing § 5 (a) Congress focused on the narrow issue of the use by private parties of judgments or decrees as prima facie evidence. This was recognized in Emich Motors Corp. v. General Motors Corp., 340 U. S. 558 (1951), where we stated that the purpose of § 5 (a) was “to minimize the burdens of litigation for injured private suitors by making available to them all matters previously established by the Government in antitrust actions” and to permit them “as large an advantage as the estoppel doctrine would afford had the Government brought suit.” Id., at 568. As we shall show, however, its purpose in adopting § 5 (b) was not so limited, for it was not then dealing with the delicate area in which a judgment secured in an action between two parties may be used by a third. Whatever ambiguities may exist in the legislative history of these provisions as to other questions, it is plain that in § 5 (b) Congress meant to assist private litigants in utilizing any benefits they might cull from government antitrust actions. See S. Rep. No. 619, 84th Cong., 1st Sess., 6. The distinction was emphasized in Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561 (1962), where the court, after noting the analysis of § 5 (a) set out in Emich Motors Corp., supra, stated that:
“The corollary purpose of the tolling provisions of the second paragraph of Section 5 [now § 5 (b) ] is to vouchsafe the intended benefits of related government proceedings by suspending the running of the statute of limitations until the termination of the government proceedings, and allowing the private suitor one year thereafter in which to prepare and file his suit. The competency of a government judgment in a private suit is necessarily restricted to the requirements of due process. But the tolling of the statute during the pendency of the government litigation is not so limited.” Id., at 569.
In our view, therefore, the two sections are not necessarily coextensive; they are governed by different considerations as well as congressional policy objectives. This makes § 5 (b) readily severable from § 5 (a). Even if we assumed arguendo that § 5 (a) is inapplicable to Commission proceedings — a question upon which we venture no opinion — that conclusion would be immaterial in our consideration of § 5 (b) and § 4B. Congress has expressed its belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws. This construction will lend considerable impetus to that policy.
III.
Section 5, later §§ 5 (a) and 5 (b), was passed in response to the plea of President Wilson. In a speech to the Congress on January 20, 1914, he urged that a law be enacted which would permit victims of antitrust violations to have “redress upon the facts and judgments proved and entered in suits by the Government” and that “the statute of limitations ... be suffered to run against such litigants only from the date of the conclusion of the Government’s action.” 51 Cong. Rec. 1964. The broad aim of this enactment was to use “private self-interest as a means of enforcement” of the antitrust laws. Bruce’s Juices, Inc. v. American Can Co., 330 U. S. 743, 751 (1947). The “entire provision [was] intended to help persons of small means who are injured in their property or business by combinations or corporations violating the antitrust laws.” H. R. Rep. No. 627, 63d Cong., 2d Sess., 14. See S. Rep. No. 619, supra, at 6.
It may be, as Minnesota Mining contends, that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5 (a). But even though § 5 (b) complements § 5 (a) in this respect by permitting a litigant to await the outcome of government proceedings and use any judgment or decree rendered therein- — a benefit which often is of limited practical value- — it is certainly not restricted to that effect. As we have pointed out, the textual distinctions as well as the policy basis of § 5 (b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government’s initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. In fact, the rules of the Commission so provide. 16 CFR § 1.132 (e). See generally 16 CFR § 1.131 et seq. Moreover, difficult questions of law may be tested and definitively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may derive from a judgment or decree. Indeed, so useful is this service that government proceedings are recognized as a major source of evidence for private parties. See Bicks, The Department of Justice and Private Treble Damage Actions, 4 Antitrust Bull. 5 (1959); Loevinger, Handling a Plaintiff’s Antitrust Damage Suit, 4 Antitrust Bull. 29 (1959).
Admittedly, there is little in the legislative history to suggest that Congress consciously intended to include Commission actions within the sweep of the tolling provision. But neither is there any substantial evidence that it consciously intended to exclude them. The fact of the matter is that the record of the 1914 legislative proceedings reveals an almost complete absence of any discussion on the tolling problem. It seems that Congress simply did not consider the extent of its coverage in the course of its deliberations.
It is in light of this legislative silence that we must determine whether § 4B is tolled by Commission proceedings. In resolving this question we must necessarily rely on the one element of congressional intention which is plain on the record — the clearly expressed desire that private parties be permitted the benefits of prior government actions. Implicit in such an objective is the necessity that the tolling provision include Commission proceedings. Otherwise the benefits flowing from a major segment of the Government’s enforéement effort would, in many cases, be denied to private parties. In this connection, and of crucial significance, is the fact that the potential advantages available to such litigants because of § 5 (b) reach far beyond the specific and limited benefits accruing to them under § 5 (a). Furthermore, the § 5 (b) advantages flow as naturally from Commission proceedings as they do from Justice Department actions. Yet petitioner contends that § 4B must be tolled in the latter but not in the former. Such a grudging interpretation of the interrelationship of § 5 (b) and § 4B, however, would collide head-on with Congress’ basic policy objectives. Acceptance of petitioner’s position would make enjoyment of these intended benefits turn on the arbitrary allocation of enforcement responsibility between the Department and the Commission, and we must therefore reject it.
It is true that the precise language of § 5 (b) does not clearly encompass Commission proceedings. But it is not the literal wording of such a provision that is controlling where, as here, Congress has evidenced neither acceptance nor rejection of either interpretation, yet one effects a clearly expressed congressional purpose while the other defeats it. We stated the pivotal question for determination in such an event only this Term in Burnett v. New York Central R. Co., 380 U. S. 424, 427 (1965): “[WJhether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.” In order to determine that intent, we must examine “the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act.” Ibid. Guided by these criteria, we think it clear that congressional policy sustaining § 5 (b) would be effectively served only by tolling the statute of limitations in cases such as this, and we deem that policy controlling. This analysis is not a novel one. Mr. Justice Holmes, sitting on circuit, noted in Johnson v. United States, 163 F. 30, 32:
“A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”
We hold, therefore, that the limitation provision of § 4B is tolled by Commission proceedings to the same extent and in the same circumstances as it is by Justice Department actions. In so holding we give effect to Congress’ basic policy objectives in enacting § 5 (b) — objectives which would be frustrated should we reach a contrary conclusion and thereby deprive large numbers of private litigants of the benefits of government antitrust suits simply because those suits were pursued by one governmental agency rather than the other.
IV.
Minnesota Mining further contends that even though § 5 (b) tolls Commission proceedings, the suit here, insofar as it asserts Sherman Act claims, is not based in part on any matter complained of in the Commission’s proceeding. We cannot agree.
New Jersey Wood’s Sherman Act claims rest on an alleged conspiracy to restrain and attempt to monopolize trade and commerce in the manufacture, sale and distribution of electrical insulation products. The purposes of the conspiracy were alleged to be: (1) to control Insulation Wires; (2) to prevent' it from distributing New Jersey Wood products; (3) to insure that Insulation Wires’ supplies were purchased from a Minnesota Mining subsidiary; (4) to effect tie-in sales of electrical insulation products with other Minnesota Mining products; and (5) to have Essex deal only with Insulation Wires in purchasing electrical insulation products to the exclusion of competitive distributors handling New Jersey Wood products. The effect of the conspiracy was alleged to be the complete disruption of the pattern of manufacture, sale and distribution that New Jersey Wood had enjoyed with Insulation Wires and denial to it of access to substantial national markets for electrical insulation products.
Certain ly the allegations are based “in part” on the Commission action. It charged that the Insulation Wires acquisition, along with that of another distributor, placed in the hands of Minnesota Mining, a manufacturer, two of the three largest distributors in the business; that following the acquisitions these distributors discontinued distribution of the products of a number of manufacturers who had used them prior to their acquisition by Minnesota Mining; and that the effect of such action by Minnesota Mining was “the actual or potential lessening of competition” in the manufacture, sale and distribution of insulation products and the foreclosure of other manufacturers from a substantial share of the markets for said products. It appears to us that both suits set up substantially the same claims. It is true that the Commission’s Clayton Act proceeding required proof only of a potential anticompetitive effect while the Sherman Act carries the more onerous burden of proof of an actual restraint. The Commission complaint, however, did allege an “actual” as well as a “potential” lessening of competition, i. e., manufacturers “have been foreclosed from a substantial share of the markets.” Moreover, the monopolization count was phrased in terms of an “attempt to monopolize,” which may be illegal though not successful. See United States v. Columbia Steel Co., 334 U. S. 495, 525, 531-532 (1948).
Minnesota Mining’s claim seems to be that the crucial difference between the Commission and the New Jersey Wood proceedings is that the former alleges conduct that may substantially lessen competition while the latter asserts activity that has actually done so. We think that this is a distinction without a difference and does not deprive New Jersey Wood of the tolling effect of § 5 (b). That clause provides for tolling as long as the private claim is based “in part on any matter complained of” in the government proceedings. The fact that New Jersey Wood claims that the same conduct has a greater anti-competitive effect does not make the conduct challenged any less a matter complained of in the government action. It merely requires it to meet a greater burden of proof as to the effect of the conspiracy before a Sherman Act claim can be sustained.
Affirmed.
Mr. Justice Harlan and Mr. Justice Stewart did not participate in the decision of this case.
The case was considered on interlocutory appeal. 28 U. S. C. § 1292 (b) (1958 ed.). Essex did not appeal and is not a party here.
During the pendency of the case in the District Court respondent filed an amended complaint. However, respondent’s theories of recovery and the controlling legal questions are common to both pleadings.
38 Stat. 731, as amended, 15 U. S. C. § 18 (1964 ed.).
26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2 (1964 ed.).
Section 4B of the Clayton Act, 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.), provides that:
“Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this section and sections 15a and 16 of this title shall be revived by said sections.”
Section 5 (b), 38 Stat. 731, as amended, 15 U. S. C. § 16 (b) (1964 ed.), provides:
“(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.”
See Highland Supply Corp. v. Reynolds Metals Co., 327 F. 2d 725 (C. A. 8th Cir. 1964).
Section 5 (a), 38 Stat. 731, as amended, 15 U. S. C. §16 (a) (1964 ed.), provides:
“(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.”
See Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537 (1954).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_procedur
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
OLD SOUTH LINES, Inc., v. McCUISTON.
No. 8273.
Circuit Court of Appeals, Fifth Circuit.
Oct. 29, 1937.
A. C. Wheeler and Chas. J. Thurmond, both of Gainesville, Ga., for appellant.
G. Fred Kelley, of Gainesville, Ga., and R. Beverly Irwin, of Atlanta, Ga., for ap-pellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
The appellee was awarded damages for personal injuries sustained by her, when she slipped on a banana peeling, while travelling as a passenger from Winston-Salem, N. C., to Atlanta, Ga., on a bus operated by appellant. The latter assigns as error the failure of the court below to instruct the jury peremptorily to find for the defendant. No one saw the peeling on the floor before the accident, and it is not claimed that the carrier was at fault in putting it there. The appellee recognizes the burden on her to show its presence there long enough to give the carrier a reasonable opportunity to discover and remove it.
No presumption of fault on the part of the carrier arises here from the mere fact of injury. The burden is on the passenger, by substantial evidence, to prove facts from which a fair jury may reasonably infer that the injury was directly and proximately caused by the negligence of the carrier or its employees. Windham v. Atlantic Coast Line R. Co. (C.C.A.) 71 F.(2d) 115.
With these basic principles in mind, let us examine the material facts in evidence favorable to the appellee. She boarded the bus at Winston-Salem between 8 and 9 o’clock on the morning of January 15, 1936, and got off at Charlotte to purchase a round-trip ticket from there to Atlanta. When she entered the bus again, around 11 o’clock, she noticed an elderly gentleman sitting two or three seats from the front, eating bananas. When the bus reached Gainesville, Ga., about 8 o’clock that night, the driver announced a five minutes stop; appellee got out and went to the restroom. When she returned and walked to her seat she noticed a magazine lying on the last seat of the bus. She is the sole witness as to what happened then, and her words are given full credence in discussing this assignment. The bus was not in motion. She walked back, picked up the magazine, and turned around to her seat, which was the second one from the rear. When she undertook to sit down, her foot hit a banana peeling right by the seat, and she fell, receiving serious physical injuries.
It is apparent that this case is controlled by Windham v. Atlanta Coast Line R. Co., supra, unless the mere fact of the man eating bananas near the front of the bus nine hours before the accident, coupled with the presence of a piece of banana peeling on the floor at the time of the injury, was sufficient to warrant the inference by a jury of fair and reasonable men that the peeling was thrown on the floor by the elderly gentleman and remained there until appellee slipped on it. Such an inference would be the result of mere speculation, and not a logical conclusion from any fact or facts in evidence. While the man was seen eating bananas, no one saw him throw the peeling on the floor or, in fact, saw the peeling. A fact once shown to exist is ordinarily presumed to continue until the contrary Appears, but obviously this presumption has no application to the activity of a man eating bananas. Liability cannot be imposed upon a carrier by a succession of inferences on an inference, as by inferring, first, that the banana was peeled in the bus; second, that the peeling was thrown on the floor; third, that it was removed by some unknown agency to the rear of the coach; and, fourth, that it remained there until appellee stepped on it. Much speculation might be indulged as to what the elderly gentleman did with the peeling of the banana he was eating, but one man’s guess is as good as another’s. Although the appellee did not testify that she saw it, we know that the banana once had a peeling; but there is no evidence as to when or where the peeling was removed or as to what became of it. Neither do we know that the elderly gentleman was the only person in the bus that ate a banana during the nine hours of that long trip.
It is true that some of the cases in denying recovery against railway companies have mentioned the fact that no bananas were seen on the train; but this is far from holding that the presence of bananas on a coach, either for sale or being eaten, is sufficient in itself to warrant a jury in finding against the carrier where a passenger has slipped on the peeling. Such a holding would render the carriers practical insurers in most cases, as it is well known that bananas are sold and eaten on nearly all trains.
The judgment of the District Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_authoritydecision
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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 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.
AUSTIN, MICHIGAN SECRETARY OF STATE, et al. v. MICHIGAN STATE CHAMBER OF COMMERCE
No. 88-1569.
Argued October 31, 1989
Decided March 27, 1990
Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, and Stevens, JJ., joined. Brennan, J., post, p. 669, and Stevens, J., post, p. 678, filed concurring opinions. Scalia, J., filed a dissenting opinion, post, p. 679. Kennedy, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined, post, p. 695.
Louis J. Caruso, Solicitor General of Michigan, argued the cause for appellants. With him on the briefs were Frank J. Kelley, Attorney General, pro se, Thomas L. Casey, Assistant Solicitor General, and Gary P. Gordon and Richard P. Gartner, Assistant Attorneys General.
Richard D. McLellan argued the cause for appellee. With him on the brief were Joel M. Boyden, William J. Perrone, and Cindy M. Wilder.
Briefs of amici curiae urging reversal were filed for the Federal Election. Commission by Lawrence M. Noble and Richard, B. Bader; and for Common Cause by Roger M. Witten, Carol F. Lee, and Archibald Cox.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Arthur B. Spitzer, John A. Powell, and Joel M. Gora; for the American Medical Association et al. by Michael A. Nemeroff, Carter G. Phillips, and Mark D. Hopson; for the Center for Public Interest Law by Robert C. Fellmeth; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.
Thomas J. Hart filed a brief of amici curiae for the National Organiza-' tion for Women et al.
Justice Marshall
delivered the opinion of the Court.
In this appeal, we must determine whether § 54(1) of the Michigan Campaign Finance Act, 1976 Mich. Pub. Acts 388, violates either the First or the Fourteenth Amendment to the Constitution. Section 54(1) prohibits corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. Mich. Comp. Laws § 169.254(1) (1979). Corporations are allowed, however, to make such expenditures from segregated funds used solely for political purposes. § 169.255(1). In response to a challenge brought by the Michigan State Chamber of Commerce (Chamber), the Sixth Circuit held that § 54(1) could not be applied to the Chamber, a Michigan nonprofit corporation, without violating the First Amendment. 856 F. 2d 783 (1988). Although we agree that expressive rights are implicated in this case, we hold that application of § 54(1) to the Chamber is constitutional because the provision is narrowly tailored to serve a compelling state interest. Accordingly, we reverse the judgment of the Court of Appeals.
I
Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections. The issue before us is only the constitutionality of the State’s ban on independent expenditures. The Act defines “expenditure” as “a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate.” § 169.206(1). An expenditure is considered independent if it is “not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee.” § 169.209(1); see § 169.203(4) (defining “committee” as a group that “receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate”). The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. § 169.255(1). A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. See §§ 169.255(2), (3).
The Chamber, a nonprofit Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-profit corporations. The Chamber’s general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favorable to private enterprise; to analyze, compile, and disseminate information about laws of interest to the business community and to publicize to the government the views of the business community on such matters; to train and educate its members; to foster ethical business practices; to collect data on, and investigate matters of, social, civic, and economic importance to the State; to receive contributions and to make expenditures for political purposes and to perform any other lawful political activity; and to coordinate activities with other similar organizations.
In June 1985 Michigan scheduled a special election to fill a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a specific candidate. As the Act made such an expenditure punishable as a felony, see § 169.254(5), the Chamber brought suit in District Court for injunctive relief against enforcement of the Act, arguing that the restriction on expenditures is unconstitutional under both the First and the Fourteenth Amendments.
The District Court upheld the statute. 643 F. Supp. 397 (WD Mich. 1986). The Sixth Circuit reversed, reasoning that the expenditure restriction, as applied to the Chamber, violated the First Amendment. We noted probable jurisdiction, 490 U. S. 1045 (1989), and now reverse.
II
To determine whether Michigan’s restriction on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U. S. 1, 44-45 (1976) (per curiam). Certainly, the use of funds to support a political candidate is “speech”; independent campaign expenditures constitute “political expression ‘at .the core of our electoral process and of the First Amendment freedoms.’” Id., at 39 (quoting Williams v. Rhodes, 393 U. S. 23, 32 (1968)). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e. g., First National Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978).
A
This Court concluded in FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, 2 U. S. C. §441b, burdens corporate freedom of expression. MCFL, 479 U. S., at 252 (plurality opinion); id., at 266 (O’Connor, J., concurring in part and concurring in judgment). The Court reasoned that the small nonprofit corporation in that case would face certain organizational and financial hurdles in establishing and administering a segregated political fund. For example, the statute required the corporation to appoint a treasurer for its segregated fund, keep records of all contributions, file a statement of organization containing information about the fund, and update that statement periodically. Id., at 253 (plurality opinion). In addition, the corporation was permitted to solicit contributions to its segregated fund only from “members,” which did not include persons who merely contributed to or indicated support for the organization. Id., at 254 (plurality opinion). These hurdles “impose[d] administrative costs that many small entities [might] be unable to bear” and “create[d] a disincentive for such organizations to engage in political speech.” Ibid; see also id., at 265-266 (O’Connor, J.).
Despite the Chamber’s success in administering its separate political fund, see, e. g., Tr. 443 (Chamber expected to have over $140,000 in its segregated fund available for use in the 1986 elections), Michigan’s segregated fund requirement still burdens the Chamber’s exercise of expression because “the corporation is not free to use its general funds for campaign advocacy purposes.” MCFL, supra, at 252 (plurality opinion). The Act imposes requirements similar to those in the federal statute involved in MCFL: a segregated fund must have a treasurer, § 169.221; and its administrators must keep detailed accounts of contributions, § 169.224, and file with state officials a statement of organization, ibid. In addition, a nonprofit corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, officers or directors of members, and the spouses of any of these persons. § 169.255. Although these requirements do not stifle corporate speech entirely, they do burden expressive activity. See MCFL, 479 U. S., at 252 (plurality opinion); id., at 266 (O’Connor, J.). Thus, they must be justified by a compelling state interest.
B
The State contends that the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures-to avoid corruption or the appearance of corruption. See FEC v. National Conservative Political Action Committee, 470 U. S. 480, 496-497 (1985) (NCPAC) (“[Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances”). State law grants corporations special advantages — such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets — that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments. These state-created advantages not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use “resources amassed in the economic marketplace” to obtain “an unfair advantage in the political marketplace.” MCFL, 479 U. S., at 257. As the Court explained in MCFL, the political advantage of corporations is unfair because
“[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.” Id., at 258.
We therefore have recognized that “the compelling governmental interest in preventing corruption supports] the restriction of the influence of political war chests tunneled through the corporate form.” NCPAC, supra, at 500-501; see also MCFL, supra, at 257.
The Chamber argues that this concern about corporate domination of the political process is insufficient to justify a restriction on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U. S., at 47, it has also recognized that a legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections, Bellotti, supra, at 788, n. 26. Regardless of whether this danger of “financial quid pro quo” corruption, see NCPAC, supra, at 497; post, at 702-705 (Kennedy, J., dissenting), may be sufficient to justify a restriction on independent expenditures, Michigan’s regulation aims at a/ different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas. See swpra, at 658-659. The Act does not attempt “to equalize the relative influence of speakers on elections,” post, at 705 (Kennedy, J., dissenting); see also post, at 684 (Scalia, J., dissenting); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for §q4; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth qpi unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.
C
We next turn to the question whether the Act is sufficiently narrowly tailored to achieve its goal. We find that the Act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views. Contrary to the dissents’ critical assumptions, see post, at 698, 699, 706 (Kennedy, J.); post, at 680, 682-683 (Scalia, J.), the Act does not impose an absolute ban on all forms of corporate political spending but permits corporations to make independent political expenditures through separate segregated funds. Because persons contributing to such funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors’ support for the corporation’s political views. See MCFL, supra, at 258.
The Chamber argues that §54(1) is substantially overinclusive, because it includes within its scope closely held corporations that do not possess vast reservoirs of capital. We rejected a similar argument in FEC v. National Right to Work Committee, 459 U. S. 197 (1982) (NRWC), in the context of federal restrictions on the persons' from whom corporations could solicit contributions to their segregated funds. The Court found that the federal campaign statute, 2 U. S. C. § 441b, “reflected] a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. While § 441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress’ judgment that it is the potential for such influence that demands regulation.” 459 U. S., at 209-210 (citation omitted; emphasis added). Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. This potential for distortion justifies § 54(l)’s general applicability to all corporations. The section therefore is not substantially overbroad.
Ill
The Chamber contends that even if the Campaign Finance Act is constitutional with respect to for-profit corporations, it nonetheless cannot be applied to a nonprofit ideological corporation like a chamber of commerce. In MCFL, we held that the nonprofit organization there had “features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of [its] incorporated status.” 479 U. S., at 263. In reaching that conclusion, we enumerated three characteristics of the corporation that were “essential” to our holding. Ibid. Because the Chamber does not share these crucial features, the Constitution does not require that it be exempted from the generally applicable provisions of §54(1).
The first characteristic of Massachusetts Citizens for Life, Inc., that distinguished it from ordinary business corporations was that the organization “was formed for the express purpose of promoting political ideas, and cannot engage in business activities.” Id., at 264. Its articles of incorporation indicated that its purpose was “[t]o foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities,” id., at 241-242, and all of the organization’s activities were “designed to further its agenda,” id., at 242. MCFL’s narrow political focus thus “ensure[d] that [its] political resources reflected] political support.” Id., at 264.
In contrast, the Chamber’s bylaws set forth more varied purposes, see supra, at 656, several of which are not inherently political. For instance, the Chamber compiles and disseminates information relating to social, civic, and economic conditions, trains and educates its members, and promotes ethical business practices. Unlike MCFL’s, the Chamber’s educational activities are not expressly tied to political goals; many of its seminars, conventions, and publications are politically neutral and focus on business and economic issues. The Chamber’s president and chief executive officer stated that one of the corporation’s main purposes is to provide “service to [its] membership that includes everything from group insurance to educational seminars, and . . . litigation activities on behalf of the business community.” Deposition of E. James Barrett, Nov. 12, 1985, p. 11. See also PR News-wire, July 21, 1989 (Chamber cosponsored the Automotive Management Briefing Seminar); PR Newswire, May 9, 1989 (Chamber cosponsored the Michigan New Product Awards competition); PR Newswire, June 14, 1988 (Chamber sponsored seminar on product liability losses and lawsuits); PR Newswire, Feb. 4, 1988 (Chamber cosponsored outreach program to increase awareness of investment opportunities in the Caribbean Basin). The Chamber’s nonpolitical activities therefore suffice to distinguish it from MCFL in the context of this characteristic.
We described the second feature of MCFL as the absence of “shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity.” 479 U. S., at 264. Although the Chamber also lacks shareholders, many of its members may be similarly reluctant to withdraw as members even if they disagree with the Chamber’s political expression, because they wish to benefit from the Chamber’s nonpolitical programs and to establish contacts with other members of the business community. The Chamber’s political agenda is sufficiently distinct from its educational and outreach programs that members who disagree with the former may continue to pay dues to participate in the latter. Justice Kennedy ignores these disincentives for withdrawing as a member of the Chamber, stating only that “[o]ne need not become a member ... to earn a living.” Post, at 710 (Kennedy, J., dissenting). Certainly, members would be disinclined to terminate their involvement with the organization on the basis of less extreme disincentives than the loss of employment. Thus, we are persuaded that the Chamber’s members are more similar to shareholders of a business corporation than to the members of MCFL in this respect.
The final characteristic upon which we relied in MCFL was the organization’s independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not “serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace.” 479 U. S., at 264. In striking contrast, more than three-quarters of the Chamber’s members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State. See Buckley v. Valeo, 424 U. S., at 29 (upholding restrictions on political contributions); supra, at 658-661 (regarding independent expenditures). As we read the Act, a corporation’s payments into the Chamber’s general treasury would not be considered payments to influence an election, so they would not be “contributions” or “expenditures,” see §§ 169.204(1), 169.206, and would not be subject to the Act’s limitations. Business corporations therefore could circumvent the Act’s restriction by tunneling money through the Chamber’s general treasury. Because the Chamber accepts money from for-profit corporations, it could, absent application of § 54(1), serve as a conduit for corporate political spending. In sum, the Chamber does not possess the features that would compel the State to exempt it from restriction on independent political expenditures.
IV
The Chamber also attacks § 54(1) as underinclusive because it does not regulate the independent expenditures of unincorporated labor unions. Whereas unincorporated unions, and indeed individuals, may be able to amass large treasuries, they do so without the significant state-conferred advantages of the corporate structure; corporations are “by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth.” MCFL, 479 U. S., at 258, n. 11. The desire to counterbalance those advantages unique to the corporate form is the State’s compelling interest in this case; thus, excluding from the statute’s coverage unincorporated entities that also have the capacity to accumulate wealth “does not undermine its justification for regulating corporations.” Ibid.
Moreover, labor unions differ from corporations in that union members who disagree with a union’s political activities need not give up full membership in the organization to avoid supporting its political activities. Although a union and an employer may require that all bargaining unit employees become union members, a union may not compel those employees to support financially “union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment.” Communications Workers v. Beck, 487 U. S. 735, 745 (1988). See also Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (holding that compelling nonmember employees to contribute to union’s political activities infringes employees’ First Amendment rights). An employee who objects to a union’s political activities thus can decline to contribute to those activities, while continuing to enjoy the benefits derived from the union’s performance of its duties as the exclusive representative of the bargaining unit on labor-management issues. As a result, the funds available for a union’s political activities more accurately reflects members’ support for the organization’s political views than does a corporation’s general treasury. Michigan’s decision to exclude unincorporated labor unions from the scope of § 54(1) is therefore justified by the crucial differences between unions and corporations.
V
Because we hold that §54(1) does not violate the First Amendment, we must address the Chamber’s contention that the provision infringes its rights under the Fourteenth Amendment. The Chamber argues that the statute treats similarly situated entities unequally. Specifically, it contends that the State should also restrict the independent expenditures of unincorporated associations with the ability to accumulate large treasuries and of corporations engaged in the media business.
Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest. Police Department of Chicago v. Mosley, 408 U. S. 92, 101 (1972). We find that, even under such strict scrutiny, the statute’s classifications pass muster under the Equal Protection Clause. As we explained in the context of our discussions of whether the statute was overinclusive, supra, at 660-661, or under inclusive, supra, ■ at 665 and this page, the State’s decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political “war chests” amassed with the aid of the legal advantages given to corporations.
Similarly, we find that the Act’s exemption of media corporations from the expenditure restriction does not render the statute unconstitutional. The “media exception” ex-eludes from the definition of “expenditure” any “expenditure by a broadcasting station, newspaper, magazine, or other periodical or publication for any news story, commentary, or editorial in support of or opposition to a candidate for elective office ... in the regular course of publication or broadcasting,” § 169.206(3)(d). The Court of Appeals did not address the Chamber’s equal protection argument because it found that the application of §54(1) to the Chamber violates the First Amendment. See 856 F. 2d, at 790. The District Court, however, appeared to hold that the media exception does not implicate the Equal Protection Clause because “[a]ny corporation . . . may avail itself of the exemption” by entering the news broadcasting or publishing business. 643 F. Supp., at 405. We are persuaded, however, that a. Fourteenth Amendment analysis is necessary in this case. It is true that the exemption does not refer expressly to “media corporations.” Nevertheless, the exception will undoubtedly result in the imposition of fewer restrictions on the expression of corporations that are in the media business. Thus, it cannot be regarded as neutral, and the distinction must be justified by a compelling state purpose.
Although all corporations enjoy the same state-conferred benefits inherent in the corporate form, media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public. We have consistently recognized the unique role that the press plays in “informing and educating the public, offering criticism, and providing a forum for discussion and debate.” Bellotti, 435 U. S., at 781. See also Mills v. Alabama, 384 U. S. 214, 219 (1966) (“[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve”). The Act’s definition of “expenditure,” § 169.206, conceivably could be interpreted to encompass election-related news stories and editorials. The Act’s restriction on independent expenditures therefore might discourage incorporated news broadcasters or publishers from serving their crucial societal role. The media exception ensures that the Áct does not hinder or'prevent the institutional press from reporting on, and publishing editorials about, newsworthy events. Cf. H. R. Rep. No. 93-1239, p. 4 (1974) (explaining a similar federal media exception, 2 U. S. C. §431(9)(B)(i), as “assuring] the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns”); 15 U. S. C. §§ 1801-1804 (enacting a limited exemption from the antitrust laws for newspapers in part because of the recognition of the special role of the press). A valid distinction thus exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public. Although the press’ unique societal role may not entitle the press to greater protection under the Constitution, Bellotti, supra, at 782, and n. 18, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations. We therefore hold that the Act does not violate the Equal Protection Clause.
VI
Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections. The Michigan Chamber of Commerce does not exhibit the characteristics identified in MCFL that would require the State to exempt it from a generally applicable restriction on independent corporate expenditures. We therefore reverse the decision of the Court of Appeals.
It is so ordered.
Section 54(1) is modeled on a provision of the Federal Election Campaign Act of 1971, 86 Stat. 11, as amended, 2 U. S. C. §§ 431-455, that requires corporations and labor unions to use segregated funds to finance independent expenditures made in federal elections. § 441b.
A requirement that the Chamber disclose the nature and extent of its political activities, see post, at 707 (Kennedy, J., dissenting), would not eliminate the possible distortion of the political process inherent in independent expenditures from general corporate funds. Given the significant incentive for members to continue their financial support for the Chamber in spite of their disagreement with its political agenda, disclosure will not ensure that the funds in the Chamber’s treasury correspond to members’ support for its ideas.
A nonprofit corporation’s segregated fund, on the other hand, apparently cannot receive contributions from corporations. See Mich. Comp. Laws § 169.255(3) (1979) (allowing contributions only from “(a) Members of the corporation who are individuals, (b) Stockholders of members of the corporation, (c) Officers or directors of members of the corporation”). In addition, a corporation’s payment to a segregated fund would likely be considered a contribution or expenditure because the sole purpose of such segregated funds is to make political contributions and expenditures. § 169.255(1). The segregated fund, therefore, could not be used as a conduit for business corporations’ political spending.
The Federal Election Campaign Act restricts the independent expenditures of labor organizations as well as those of corporations. 2 U. S. C. § 441b(a).
The Federal Election Campaign Act contains a similar exemption that excludes from the definition of expenditure “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” 2 U. S. C. § 431(9)(B)(i).
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
|
L
|
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).
MANLEY BROTHERS, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents.
No. 76-1102.
United States Court of Appeals, Sixth Circuit.
Submitted April 6, 1977.
Decided April 29, 1977.
James F. Schouman, Dearborn, Mich., for petitioner.
Charles W. Chapman, Washington, D.C., for intervenor Ann Arbor.
Fritz R. Kahn, Gen. Counsel, I. C. C., Peter A. Fitzpatrick, Christine N. Kohl, Edward Levi, Atty. Gen., U.S. Dept, of Justice, Robert B. Nicholson, Edward E. Lawson, Washington, D.C., for respondents.
Before PHILLIPS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.
PER CURIAM.
This case is before the Court on a petition to review and set aside certain orders of the Interstate Commerce Commission entered in Investigation and Suspension Docket No. 8808, Sand, Yuma, Michigan to Cleveland, Ohio. The Commission found a proposed multiple-car rate of $3.10 per net ton of sand, filed jointly by the Intervenor Ann Arbor Railroad Company and the Penn Central Transportation Company, to be just and reasonable.
By schedules filed to become effective December 7, 1972, Ann Arbor and Penn Central proposed jointly to establish the multiple-car rate on certain types of sand moving on their lines from Yuma, Michigan, to Cleveland, Ohio, subject to an aggregate minimum of 20 cars holding at least 75 tons each, all shipped on the same day under one bill of lading from one consignor at one location at one origin to one consignee at one location and destination. The tariff also provided, in general, for a maximum weight per car of 95 percent of the marked capacity of the car. Protests to this rate were filed by Petitioner Manley Brothers and two others not parties to this proceeding. Sargent Sand Company and Ford Motor Company appeared before the Administrative Law Judge in support of the challenged rates.
In a comprehensive opinion, the Administrative Law Judge held the proposed rate to be “just and reasonable, and otherwise lawful.” He found no evidence of unjust discrimination under 49 U.S.C. § 2, or undue preference or prejudice under 49 U.S.C. § 3(1). The initial decision and recommended order of the Administrative Law Judge were approved by the Commission. The petitions of Manley Brothers and others for reconsideration were denied.
In the present proceeding, it is contended by Manley Brothers that the rate itself is unduly destructive and will have the impact of disrupting traffic patterns throughout the area. Petitioner urges that the rate be declared unjust and unreasonable and the decision reversed. The case was submitted to this Court on briefs by stipulation of the parties.
Upon consideration of the briefs of the parties and the entire record, the Court concludes that the challenged decision is supported by substantial evidence and is not arbitrary, capricious or an abuse of discretion, and that there is a rational basis between the facts found and the conclusion reached by the Commission. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260 (1934). We further conclude that the Commission did not err in holding that the challenged rate is not unjust or unreasonable under 49 U.S.C. § 1(5), that the rate does not result in unjust discrimination against the petitioner in violation of 49 U.S.C. § 2 and that the rate does not effect any undue or unreasonable preference for, or any prejudice against, any party within the prohibitions of 49 U.S.C. § 3(1).
Accordingly, the petition for review is dismissed and all the relief sought by the petition is denied.
. Subsequently Ann Arbor filed for bankruptcy and now is being operated, for the most part, by the State of Michigan. Penn Central is now a part of Conrail.
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
JOHN M. HIRST & CO. v. GENTSCH.
No. 9244.
Circuit Court of Appeals, Sixth Circuit.
Feb. 8, 1943.
William A. Southworth, of Cleveland, Ohio (Squire, Sanders & Dempsey, Edwin H. Chaney, and William A. Southworth, all of Cleveland, Ohio, on the brief), for appellant.
Joseph M. Jones, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, J. L. Monarch, and Fred J. Neuland, all of Washington, D. C., and Don C. Miller and F. B. Kavanagh, both of Cleveland, Ohio, on the brief), for appellees.
Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.
SIMONS, Circuit Judge.
The single question presented upon the appeal relates to the jurisdiction of the court to restrain collection of taxes assessed against the appellant under the Federal Insurance Contributions Act (Internal Revenue Code, Chapt. 9, sub-Chapt. A, § 1400 et seq., approved February 10, 1939, 53 Stat. 175, 26 U.S.C.A. Int.Rev.Code, § 1400 et seq.), and the Federal Unemployment Tax Act (Internal Revenue Code, Chapt. 9, sub-Chapt. C, § 1600 et seq., 53 Stat. 183, 26 U.S.C.A. Int.Rev.Code, § 1600 et seq). The District Court dismissed the bill on the ground that it lacked jurisdiction in view of § 3653 of Title 26 U.S.C.A. Int. Rev.Code, and also upon the ground that the complaint sets forth no facts which, if true, would entitle plaintiff to the relief prayed for.
The amended complaint alleges the plaintiff to be a partnership engaged in the production of bituminous coal in Carroll County, Ohio. Its mine has been operated since 1925 by members of the partnership, and was acquired from a predecessor partnership which previously had acquired it from a corporate owner. It is alleged that the members of the plaintiff's partnership organization receive their compensation only by way of semi-monthly distributions from partnership earnings, and that the taxes which the Collector has sought from it, were assessed wholly with respect to such distributions. It is asserted that the partnership is not subject to such taxes, nor to the penalties which have been added thereto; that the partnership is unable to pay such taxes, penalties, and interest, without liquidation of its property, and that if the Collector, whose duty it is to collect them, proceeds to do so by distraint o‘r levy, the plaintiff will be forced into complete cessation of its mining operations and its business will be ruined. It alleges, therefore, that it has no adequate remedy at law.
Section 3653 of the Internal Revenue Code was formerly § 3224 of the Revised Statutes, and provides: “Except as provided in sections 272(a), 871(a), and 1012 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
It has been construed in a long line of cases to withdraw from the courts the power to restrain assessment or collection of taxes where the challenge is to the validity or applicability of the tax. Its restraint is not, however, absolute, and beginning with Dodge v. Brady, 240 U.S. 122, 126, 36 S.Ct. 277, 60 L.Ed. 560, through Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, and Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 76 L.Ed. 422, an exception to the universality of its application has been recognized in cases which, though apparently within its terms, present extraordinary and entirely exceptional circumstances to make its provisions inapplicable. The latest case to sustain the jurisdiction of the court to take cognizance of a suit for injunction, is Allen, Collector v. Regents of the University, 304 U.S. 439, 448, 58 S.Ct. 980, 82 L.Ed. 1448. It must be observed, however, that the later decisions were not reached without vigorous protest by members of the present court, including the Chief Justice.
The circumstances that are to be considered extraordinary or exceptional have never, of course, been catalogued. In Miller v. Standard Nut Margarine Co., supra, however, the fact that the collection of a tax would prove to be arbitrary and oppressive, destroy the business of the taxpayer, ruin it financially, and inflict loss for which it would have no remedy at law, was held to indicate circumstances so extraordinary and exceptional as to give jurisdictional sanction to an application for injunction restraining the collection of the tax. Recently, under substantially identical circumstances in Midwest Haulers Inc., v. Brady, Acting Collector, 6 Cir., 128 F.2d 496, we reversed a judgment declining jurisdiction of a petition for injunction. We there pointed to the genesis of § 3653 and traced the development of the principle underlying the exceptions to its application. This discussion need not be repeated. The present case requires the application of the same principle as governed that adjudication and must be similarly decided.
The complaint below having been dismissed upon motion, its allegations must be taken as true, and so considered they show that the taxes sought to be collected from the appellant are probably not validly assessed taxes, and if collection is enforced by distraint the appellant will be ruined in its business and forced to close its mine. In that event no remedy provided by the Internal Revenue Law would be adequate to compensate the appellant for its loss. There is thus presented a case under the authorities, as we read them, for the interposition of a court of equity, and the exercise of its extraordinary equity power.
The District Judge, recognizing, in support of the appellant’s petition, the force of the decision in Miller v. Standard Nut Margarine Co., supra, entertained doubt that it may now be followed or applied with judicial assurance, in view of the trend of decision exemplified by Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967, and Southern Ry. Co. v. Painter, 314 U.S. 155, 62 S.Ct. 154, 86 L.Ed. 116. While the Toucey and Painter cases do not deal with § 3653, and are concerned with injunctions to restrain proceedings in state courts, the doubt so expressed poses for us once more a problem recently met in a number of cases. In a time of evolutionary development in constitutional and statutory interpretation, we are urged to base decision upon a foreshadowing of adjudications to come rather than upon clearly applicable precedents. Whatever course others may take, we are content to adhere to the observation made by us in Ammond v. Pennsylvania R. R. Co., 6 Cir., 125 F.2d 747, 751, to which we may add that, until the contrary is demonstrated, we find the rule of stare decisis a safer guide to decision than a reading of the stars.
Judgment reversed and the cause remanded for consideration of the petition.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_respond2_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
OSTBY & BARTON COMPANY and American Associates, Inc., Plaintiffs-Appellants, v. Thoger Gronberg JUNGERSEN, Defendant-Appellant.
Nos. 9222, 9223.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 21, 1947.
Decided Sept. 5, 1947.
John Vaughan Groner, of New York City (Edward Winsor, of Providence, R. I.,, on the brief), for plaintiffs-appellants.
Drury W. Cooper, of New York City (John N. Cooper, of New York City, on, the brief), for defendant-cross-appellant.
Karl W. Flocks, of Washington, D. C., for Thoger Grcnberg Jungersen.
Before MARIS and KALODNER, Circuit Judges, and FOLLMER, District Judge.
PER CURIAM.
For the reasons stated in the opinion of Judge Meancy, 65 F.Supp. 652, the judgment of the District Court will be affirmed..
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
MOVEMENT FOR OPPORTUNITY AND EQUALITY et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORP. et al., Defendants-Appellees.
No. 78-2314.
United States Court of Appeals, Seventh Circuit.
Argued May 25, 1979.
Decided April 23, 1980.
Rehearing Denied June 10, 1980.
William D. Wells, NAACP, New York City, John O. Moss, Indianapolis, Ind., for plaintiffs-appellants.
Herbert C. Snyder, Jr., Indianapolis, Ind., Edwin G. Fabre, Asst. Gen. Counsel, Int’l Union, UAW, Detroit, Mich., for defendants-appellees.
Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and KUNZIG, Judge.
Judge Robert L. Kunzig of the United States Court of Claims is sitting by designation.
KUNZIG, Judge.
This case involves two major issues, jurisdictional and proof of discrimination, which surround allegations of racial and sexual discrimination at General Motors’ Allison Division plant in Indianapolis, Indiana. In addition to the preliminary jurisdictional issue, there is a second threshold problem concerning the appropriate statute of limitations. In a lengthy and thorough decision, Judge Noland of the Federal District Court for the Southern District of Indiana found that General Motors had not discriminated against either the individual plaintiffs or the classes they represent. Consequently, he denied declaratory, monetary, and injunctive relief under both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. §§ 2000e — 2000e—17 (1976) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976).
One threshold issue is jurisdictional. The problem involves the necessity of receiving a right to sue letter from the Equal Employment Opportunity Commission (EEOC) in order to maintain an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). We follow the Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) and hold that receipt of a right to sue letter is a prerequisite to the maintenance of suit under Title VII. A second threshold problem requires us to determine the appropriate statute of limitations under Indiana law for the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976). Here, we follow our decision in Hill v. Trustees of Indiana University, 537 F.2d 248 (7th Cir. 1976), and agree with Judge Noland that a two-year statute of limitations is appropriate.
The second major issue for discussion involves the manner of proving discrimination through the use of statistics under Title VII and section 1981 for the class actions. We consider that the district judge properly relied on defendants’ statistics showing the flow of people by race and sex into and within the work force rather than plaintiffs’ statistics concentrating on specific instances in time when an artificial discrepancy occurred.
To the extent not inconsistent with the following, the court adopts Judge Noland’s Memorandum of Opinion and attaches it (with the exception of certain portions not challenged on appeal discussing the claims of individual class members) as an appendix hereto. We feel it necessary, however, to analyze and clarify in an abbreviated manner our position on the above two major issues.
HISTORY OF THE CASE
General Motors Allison plant engineers, manufactures and assembles aircraft, diesel and locomotive engines. The total work force has fluctuated between 13,000 and 15,600 employees. The workers are divided into salaried and hourly employees. Ninety-six percent of the hourly workers are skilled or semi-skilled. Of the salaried work force, some seventy-five percent are professionals and some fifteen percent are clerical or office help. Numerous employees are represented in collective bargaining by Local 933, United Automobile Aerospace and Agricultural Implement Workers of America.
In 1973, nine minority and women employees filed suit against General Motors (GM) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1976) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 alleging racial and sexual discrimination in GM’s employment practices. Specifically, plaintiffs charged GM with employment discrimination in the areas of hiring, job assignment, rates of pay, entry into skilled trades, transfer and promotion in union-covered jobs, and promotion to supervisory and managerial positions. As to the union defendants, plaintiffs charged them with violating Title VII and section 1981 both for permitting GM to engage in discrimination and engaging in collective bargaining which denied plaintiffs equal opportunity. Plaintiffs sought declaratory, monetary and injunctive relief.
Judge Noland held that neither GM nor the unions discriminated against either the named plaintiffs or the classes they represented. As stated above, we agree with the district court. Furthermore, we note that plaintiffs only dispute the legal standards applied and not the specific findings of fact.
Initially, the lower court had to determine the relevant time frame within which to analyze plaintiffs’ claims. The court determined that a right to sue letter was required under Title VII and that a two-year statute of limitations applied as to section 1981 claims. Under discussion in our first section will be the legal standards applicable to these jurisdictional issues.
Judge Noland then had to determine which classes to certify under Federal Rule of Civil Procedure 23(a). He properly certified five classes. (See appendix, Part II, infra.)
The district judge also determined correctly the standards of liability for defendants’ alleged misconduct. (See appendix, Part III, infra.)
Remaining problems concern proof of discrimination. Our difficulties here deal with plaintiffs’ class claims which largely involved statistical proofs by both parties. As to the appropriate use of statistics, we feel defendants’ figures showing a flow over time are more appropriate. This will be discussed more fully in our section II.
I. THRESHOLD PROBLEMS
The two threshold problems are of paramount importance because — by determining whether a right to sue letter is needed under Title VII and the relevant statute of limitations for section 1981, we are thereby outlining the parameters within which to consider evidence of discrimination.
A. Title VII — Right to Sue Letter
In the majority of Title VII claims before the district court, individual plaintiffs filed charges with the EEOC between 1970 and 1973. Thereafter, the EEOC issued right to sue letters based on those charges and plaintiffs brought suit in 1973. As to these claims, there are no jurisdictional problems.
The time period in question under Title VII in this court relates solely to the charges of discrimination in promotion and transfer of hourly workers. The individual employee and class representative for these claims is Beulah Wallace. She filed a charge with the EEOC on August 13, 1970 alleging racial and sexual discrimination in promoting and transferring hourly employees. Under that charge and subsequent right to sue letter, the appropriate time frame begins October 17, 1969. That period for the individual representative of the class also controls the time period for the class. Romasanta v. United Air Lines, Inc., 537 F.2d 915 (7th Cir. 1975), aff’d sub nom. United Air Lines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 52 L.Ed.2d 423 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969).
Ms. Wallace, however, had also written the EEOC in 1966 to charge defendants with discrimination as to hourly workers in 1966. Plaintiffs argue that this earlier notification should be used to determine the time period for review. Obviously, if plaintiffs’ argument were adopted, the time frame would extend back from 1969 to sometime in 1965-66. As with Judge No-land, we cannot agree with plaintiffs.
Congress has provided explicit jurisdictional requirements for Title VII in 42 U.S.C. § 2000e-5 (1976). As the Supreme Court has noted, plaintiffs here had to meet a two-part requirement in order to maintain suit against GM. First, plaintiffs must have filed a charge with EEOC. Second, they must have received a right to sue letter from the EEOC and acted upon it. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968).
As stated, there is no.question as to the 1970 charge and subsequent right to sue letter conferring jurisdiction as of October 17, 1969. The difficulty with her 1966 charge is that Ms. Wallace only satisfied half the requirements. Plaintiff Wallace’s 1966 charge can be considered to constitute a proper complaint filed with the EEOC. See Love v. Pulman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). However, she never sought nor received a right to sue letter from EEOC in relation to these charges.
Plaintiff Wallace’s failure to pursue the 1966 charges further with EEOC is similar to the neglect we held jurisdictionally fatal in Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974). In Gibson, we agreed with the D.C. Circuit’s decision in Stebbins v. Continental Insurance Companies, 442 F.2d 843 (D.C. Cir. 1971), that Title VII claimants are under a duty to seek their right to sue letter if they wish to pursue their claim in the courts. 506 F.2d at 652. While we recognize that in special circumstances the claimant may be unable to seek the right to sue letter, and hence the strict requirements may be loosened, those circumstances would seem limited to instances where the claimant’s failure is due to misleading acts committed by the EEOC, employer or union. See, Gibson, id. at 652; Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968) (complainant should not be held liable for EEOC delay); Cf., Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979) (employer’s misleading); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff’d by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977).
In this situation, moreover, the EEOC had no duty to Ms. Wallace on receipt of her 1966 letter other than to inform her that it could not move ahead until the state agency completed its proceedings or after 60 days had elapsed. The EEOC did in fact inform plaintiff of the need to take further action in order to treat the letter as a charge. Yet Ms. Wallace took no further action until 1970. Moreover, when she subsequently sought a right to sue letter concerning the 1970 charges, neither she nor her attorney sought it as to the 1966 charges. Thus, in light of the clear statutory language and controlling precedent, we are compelled to conclude that plaintiff’s failure to request and obtain a right to sue letter as to the 1966 charges deprives the court of any jurisdiction over those earlier years. As the Supreme Court stated in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), “A discriminatory act which is not the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.” Id. at 558, 97 S.Ct. at 1889.
In summary, we concur with the district judge that the failure to procure a right to sue letter as to the 1966 charges was fatal. Thus, the 1970 charges where plaintiff Beulah Wallace followed the appropriate procedures are controlling, and the jurisdictional date governing her individual and class representative aspect of this case is October 17, 1969.
B. § 1981 — State Statute of Limitations
The other threshold issue also deals with the appropriate time frame within which the district court could consider plaintiffs’ charges of discrimination. Plaintiffs sued defendants alternatively under 42 U.S.C. § 1981 (1976) for all race-related charges of discrimination. Since section 1981 contains no specific statute of limitations, we must look to the “most appropriate one provided by state law.” Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). We conclude, as did the district court, that a two-year statute of limitations applies.
In applying the Supreme Court’s Johnson rule, we have stated, “[T]he applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there.” Beard v. Robinson, 563 F.2d 331, 334 (7th Cir. 1977). We must be mindful, however, that “considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration.” Johnson v. Railway Express Agency, supra 421 U.S. at 465, 95 S.Ct. at 1722; Beard v. Robinson, supra at 334.
We are faced in this case with choices ranging between two and 15 years. The selection largely boils down to choosing between the two-year tort statute of limitations, Ind.Code Ann. § 34-1-2-2 (1973), and a 15-year residuary statute. Id. at § 34-1-2-3. When faced with such a choice under Illinois law, we felt the five-year general statute of limitations was more appropriate than a two-year tort limit. Beard v. Robinson, 563 F.2d 331, 334-38 (7th Cir. 1977); Teague v. Caterpillar Tractor Company, 566 F.2d 7 (7th Cir. 1977). Nonetheless, it is Indiana rather than Illinois law which must apply here. See Johnson v. Railway Ex press Agency, supra. Moreover, in Hill v. Trustees of Indiana University, 537 F.2d 248 (7th Cir. 1976), we have already chosen the two-year statute of limitations for analogous section 1983 claims.
The reason for our choice in Beard and Teague was two-fold. First, the Illinois statute of limitations which we selected over the two-year tort period specifically applied to statutorily created causes of action. Beard, supra at 335. Since plaintiff’s rights in those cases were created by statute, e. g., § 1981, Ill.Rev.Stat. ch. 83, § 16 was “most closely analogous” as required by Johnson v. Railway Express Agency, supra.
Secondly, we rejected the approach taken in Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), which examined the claimant’s underlying facts and sought to analogize it to an appropriate common law action. Beard, supra at 336. In Beard, we stated that we preferred to “avoid the often strained process of characterizing civil rights claims as common law torts.” Id. at 337.
This case does not offer, however, the same choices as existed under Illinois law. The parties presented us with a choice between Indiana’s 15-year residual statute, Ind.Code Ann. § 34-1-2-3 (Burns 1973) and a two-year statute applicable to actions for injuries to the person, character or personal property, and generally considered by Indiana courts as applicable to tort causes of action. Illinois’ five-year residual statute, Indiana’s 15-year statute is inappropriate and probably unworkable here.
In Beard, we noted that Illinois’ five-year residual statute had been interpreted as applying to statutorily created causes of action. Beard, supra at 335. By contrast, the 15-year residual statute of limitations has been generally limited by Indiana’s courts to real property claims. See, e. g., Yarlott v. Brown, 192 Ind. 648, 138 N.E. 17 (1923). No case law exists extending § 34-1-2-3 to statutory causes of action. Gantt v. Bethlehem Steel Corp., 17 Emp. Practices D. ¶ 8502 (N.D.Ind.1978).
As both Judge Noland below, and Judge McNagny in Gantt, supra, have noted, serious problems would exist in production of proof if a 15-year statute of limitations were incorporated into section 1981 actions. Unfairness would exist in requiring employers to defend 15-year-old claims where the evidence would most likely be lost or destroyed. Moreover, given the fluidity of employee movement and change-over — particularly in a 10,000+ employee plant— there would be serious problems of witness availability.
Comparing our situation at bar once more to Beard and Teague, there is a major difference in choosing between a two- and five-year statute as opposed to two- and 15-year limits. Moreover, while we realize that applying state statutes to federal causes of action necessarily results in some lack of uniformity, Schiffman Bros., Inc. v. Texas Co., 196 F.2d 695, 698 (7th Cir. 1952), we must remember that state law is displaceable where its application is inconsistent with the federal policy underlying section 1981. Johnson, supra 421 U.S. at 465, 95 S.Ct. at 1722; Beard, supra at 334. Applying a 15-year statute in Indiana would extend the rights of that state’s residents substantially beyond the maximum periods allowed in this and other circuits. See, e. g., Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1970) (upholding choice of a two-year Virginia statute); Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978) (applying six-year limit); Tatum v. Golden, 570 F.2d 753 (8th Cir. 1978), cert. denied, 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978) (five-year statute); Jones v. San Antonio, 586 F.2d 1224 (5th Cir. 1978) (two-year Texas statute). All told, we find the 15-year statute of limitations encompassed in Ind. Code Ann. § 34-1-2-3 (Burns 1973) totally inappropriate for section 1981 actions. See, Gantt v. Bethlehem Steel Corp., 17 Emp. Prac.D. ¶ 8502 (N.D.Ind.1978).
Although the parties did not raise the issue, we feel that a thorough analysis must include a discussion of the applicability of the six-year statute of limitations governing contractual actions. Ind.Code Ann. § 34-1-2-1 (Burns 1973). Federal District Judge McNagny chose that period in Gantt v. Bethlehem Steel Corp., 17 Emp.Prac.D. 18402 (N.D.Ind.1978). He did so, however, where the claimant filed more than six years after the alleged injury. Thus, the important choice was between the 15-year residuary statute, which he properly rejected, and a six-year or shorter period, which he adopted, using Ind.Code Ann. § 34-1-2-1 (Burns 1973).
In our reasoning in Beard, supra, we noted that the choice of a statute of limitations under section 1981 (for discriminatory actions by private individuals) is essentially the choice to be made under 42 U.S.C. § 1983 (1976) (for discriminatory actions under color of state law). Consequently, in Beard we adopted the same statute of limitations for section 1981 actions in Illinois as we had adopted there for section 1983 actions in Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958). Similarly, this court has already adopted the two-year statute of limitations in Ind.Code Ann. § 34-1-2-2 (Burns 1973) for section 1983 actions. Hill v. Trustees of Indiana University, 537 F.2d 248, 254 (7th Cir. 1976) (Kunzig, J., concurring with Stevens, Circuit Justice, concurring specially). Just as Wakat’s choice governed Beard’s decision, so does Hill’s choice control the case at bar absent some more “closely analogous” statute. Cf., Sacks Brothers Loan Co., Inc. v. Cunningham, 578 F.2d 172 (7th Cir. 1978). But no such statute exists.
An analysis of other circuits’ decisions is of little help. Generally, other courts have chosen a “contract” or “tort” statute; but, it was because that statute had been interpreted specifically to include actions based on statute. Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir. 1978); Tatum v. Golden, 570 F.2d 753 (8th Cir. 1978) (Iowa law); Martin v. Georgia-Pacific, 568 F.2d 58 (8th Cir. 1977) (Arkansas law). We still strive to adhere to Beard and avoid characterizing actions as common law torts. Yet, as this case indicates, when the general statute of limitations fails and no easy comparison exists, cf., Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978), some analogies must be used.
Making an analogy, plaintiffs’ claims here fit better under the Indiana statute applicable to injuries to the person rather than the statute governing interference with contract.
Indiana’s tort statute for “injuries to person or character,” Ind.Code Ann. § 34-1-2 — 2 (Burns 1973) has been given a broad interpretation including abuse of process, Cassidy v. Cain, 145 Ind.App. 581, 19 Ind. Dec. 168, 251 N.E.2d 852 (1969), and loss of a spouse’s services, Merritt v. Economy Department Store, 125 Ind.App. 560, 128 N.E.2d 279 (1955). By contrast, Indiana has limited its contract section, Ind.Code Ann. § 34-1-2-1 (Burns 1973) to actions based on a contract.
As another court stated, the “essential nature of the [civil rights] claim is the interference with... not the breach of a contractual obligation.” Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff’d 547 F.2d 1260 (5th Cir. 1977) (applying statute for injuries to the person). Cf., Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1970); Partin v. St. Johns- bury, 447 F.Supp. 1297 (D.R.I.1978). In the case at bar, also the alleged damage was due to a violation of plaintiffs’ personal rights to be free from racial and sexual discrimination. The actions were not based on a breach of contract. Thus, in our opinion, Indiana’s two-year tort statute is more analogous than the six-year contract provision. See Johnson v. Railway Express, supra.
A recent Indiana Court of Appeals decision supports our conclusion. In Merimee v. Brumfield, 72 Ind. 765, 397 N.E.2d 315 (1st Dist. 1979), the court was required to construe the meaning of the phrase “personal injuries” in the context of Indiana’s survival statute. Ind.Code Ann. § 34-1-1-1 (Burns 1973). The Indiana court read that phrase to include “injuries to the physical body, malicious prosecution, false imprisonment, libel, slander, or any affront or detriment to the body, psyche, reputation or liberty.” Merimee v. Brumfield, 72 Ind. at 769, 397 N.E.2d at 318 (emphasis added). Seemingly, Indiana courts would read the phrase “personal injuries” in Ind.Code Ann. § 34-1-2-2 (Burns 1973), similarly since both phrases were placed in the two statutes simultaneously. See Indiana Acts of 1881 (Special Session), ch. 38, §§ 7, 38, p. 240. Interpreted to include “any affront or detriment to. reputation or liberty,” § 34-1-2-2 seems most closely analogous to a claim based on “interference with a constitutionally protected right.” Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff’d 547 F.2d 1260 (5th Cir. 1977).
The application of the tort period is further supported by two other statutory provisions. Another closely analogous statutory limitations period for section 1981 is found in Ind.Code Ann. § 22-3-9-8 (Burns 1973), also providing a two-year statute of limitations for employers’ liability for injuries to employees. Certainly, the section 1981 actions are based on a violation of the employee’s civil rights — an injury the employer inflicts upon the employee. Considering this analogous, the specific section’s identical two-year period together with the tort section’s two-year period supports the conclusion that a two-year period applies.
Moreover, since plaintiffs initiated their action, Indiana has enacted Ind.Code Ann. § 34-1-2-1.5 (Burns Cum.Supp.1978) in 1977. This new section now specifically provides a two-year period for all employment related actions. The recent statement by Indiana’s legislature indicates its judgment that a two-year period is best applicable to employment related actions. Given the lack of any precisely analogous statute in state law, cf., Curran v. Portland School Committee, 435 F.Supp. 1063, 1080 (D.Me. 1977), we are reassured, by this later enactment, that our choice of the two-year “tort” period, Ind.Code Ann. § 34-1-2-2 (Burns 1973), is correct. See, Gantt v. Bethlehem Steel Corp., 17 Emp.Prac.D. ¶ 8502 (N.D.Ind. 1978) (The new two-year employment related actions statute, Ind.Code Ann. § 34-1-2-1.5 (Burns Cum.Supp.1978) would control a § 1981 action if brought today).
In summary, after a careful examination of Indiana law and our precedents, including especially our adoption of a two-year statute in Indiana in a section 1983 setting, Hill, supra, we consider a two-year statute of limitations applicable to plaintiffs’ section 1981 actions.
II. PROOF OF DISCRIMINATION
The final subject to be discussed is the manner in which both sides attempted to use statistics to prove or disprove discrimination in the class action suits.
Plaintiffs undertook to prove their claims of class-wide discrimination on the basis of data focusing on an instant in time (snapshot statistics). Plaintiffs would take a date, look at a job, and determine the percentage of women and minorities in that job at that instant compared to the percentages in the relevant workpool. Anytime the percentages of women and minorities in the “snapshot” were less than those in the workpool, plaintiffs considered themselves to have proven discrimination by defendant.
While plaintiffs are correct in using this method to make out their prima facie case, Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), defendants were entitled to rebut that prima facie case through more refined, accurate and valid statistics. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Teamsters v. United States, 431 U.S. 324, 339, 360, 97 S.Ct. 1843, 1856, 1867, 52 L.Ed.2d 396 (1977). We find the district court was correct in relying on defendants’ statistics.
Defendants submitted statistics depicting the “flow” of its workforce — the movement of personnel into and within the company. Thus these statistics showed the gains in employment women and minorities made from year to year. In other words, defendants showed the number of openings they had available for each type of position, the percentage of minorities or women in the relevant labor pool and, finally, the percentage of women and minorities actually hired for these openings. In so doing, defendants showed the actual hiring decisions made during the relevant time periods. As the record proves, GM’s hiring at Allison plant illustrates the positive results of their affirmative action program. Women and minorities were actually hired and promoted at a greater rate than their percentages in the relevant workpools would have suggested.
Moreover, plaintiffs’ snapshot statistics incorporate discriminatory impacts occurring before the relevant time frame, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Thus, given Congress’ imposition of a statute of limitations for Title VII actions and direction to impose such limits for section 1981, see, 42 U.S.C. § 1988 (1976), defendants’ approach emphasizing the day-to-day decisions made during the relevant period are better than plaintiffs’, which include pre-statute of limitations actions by virtue of their use of cumulative statistics.
By relying on cumulative statistics alone, plaintiffs grouped defendants’ hiring decisions from 20-30 years ago with those of the last five years. Defendants could have hired all women and minorities for those jobs which opened during the relevant statutory periods, yet, because of the large number of existing non-minority male employees carried over from before, it would look as though defendant was still discriminating.
The residue of past discrimination is not immediately eliminated. In the instant case, it is more relevant to look not at a workforce makeup on a given day, but to the chances Allison had to change its percentage of women minorities through current hiring decisions. In so doing, we do not see a picture of a discriminatory employer during the relevant period, supra Part I.
All told, we conclude that Judge Noland treated the statistical evidence properly and agree that GM did not discriminate against the individual plaintiffs or classes they represent.
Accordingly, we concur with the determination of the district judge that plaintiffs’ claims under Title VII and section 1981 were not proven. We have expanded to some degree his treatment of two major issues which we consider important: (1) threshold problems (the need of a right to sue letter under Title VII and, the appropriate Indiana statute of limitations to incorporate into section 1981); and (2) proof of discrimination (the correct means of using statistics). Additionally, to the extent not inconsistent with the above, we have adopted Judge Noland’s Memorandum of Opinion and attach it as an appendix hereto.
The judgment of the district court is
Affirmed.
APPENDIX
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OP INDIANA INDIANAPOLIS DIVISION
Movement For Opportunity And Equality, et al vs. Detroit Diesel Allison Division Of General Motors Corporation, et al
Nos. IP 73-C-412 IP 73-C-413
MEMORANDUM OF OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW MEMORANDUM OPINION
This action was commenced by the plaintiffs on August 23,1973. An amended complaint was filed on January 17, 1977. The action presents claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. Plaintiffs, Movement for Opportunity and Equality (M.O.E.) and nine individual present and former employees of defendant, brought this action on their own behalf and on behalf of other persons similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Defendants are Detroit Diesel Allison Division of General Motors (Allison), Local 933 United Automobile, Aerospace and Agricultural Implement Workers of America (Local 933), and International United Automobile, Aerospace and Agricultural Implement Workers of America-U.A.W. (U.A.W.).
The complaint alleged both individual and class claims against all defendants. The class claims against Allison are as follows:
1. Discrimination against females in the hiring of employees.
2. Discrimination against blacks in the hiring of salaried employees.
3. Discrimination against black and female employees in assignment to jobs.
4. Discrimination against black and female employees in selection for the EIT training program.
5. Discrimination against black and female employees in promotion to the position of Group Leader.
6. Discrimination against black and female employees in the denial of job transfers and advancement through the operation of the seniority system.
7. Discrimination against black and female employees in the selection of foreman, general foreman, and superintendents.
8. Discrimination against black and female employees and applicants in the application of educational criteria for selection into salaried positions.
9. Discrimination against black and female salaried employees in promotions.
10. Discrimination against black and female employees in salaried income.
The class claims against Local 933 and the U.A.W. allege they have failed to fairly represent blacks and females as follows:
1. Discrimination against blacks and females by negotiating and entering into collective bargaining agreements which have the intent and effect of denying blacks and females equal employment opportunities.
2. Discrimination against blacks and females by refusing to process grievances on their behalf on the same basis as for white males.
3. Failing to act affirmatively to cause the employer to refrain from discriminating against blacks and females because of their race and sex.
4. Failing to effectively represent blacks and females by passively permitting the employer to discriminate against blacks and females because of their race and sex.
All of these claims are alleged to violate both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. On November 14, 1977, the Court granted plaintiffs’ motion for class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the class being described as:
“[A] class of black and female employees of the defendant corporation who have been adversely affected by one of the following alleged practices of the defendants:
1. Discrimination against black and female employees in assignment to jobs.
2. Discrimination against black and female employees in selection for the EIT training program.
3. Discrimination against black and female employees in promotion to the position of group leader.
4. Discrimination against black and female employees in the denial of job transfer and advancement through operation of the seniority system.
5. Discrimination against black and female salaried employees in promotions.”
This certification has not been challenged by the parties.
The claims of the individual plaintiffs against Allison, Local 933 and the U.A.W. are as follows:
1. Discrimination against Glenn L. Howard, a black male, by denial of disability benefits because of his race and retaliation against Howard through refusal to recall him from layoff and other retaliatory acts due to his filing
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
William C. HARRIS, Petitioner-Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, et al., Respondent-Appellee.
No. 15889.
United States Court of Appeals Sixth Circuit.
Feb. 23, 1965.
William C. Harris, in pro. per.
Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Ky., for appellee.
Before MILLER, CECIL and PHILLIPS, Circuit Judges.
PER CURIAM.
This cause is before the Court on appeal from an order of the United States District Court for the Western District of Kentucky, denying a writ of habeas corpus to William C. Harris, petitioner-appellant, herein. The petitioner was tried before a jury and convicted on an indictment charging armed robbery at the January and February 1956 term of the Marion Circuit Court, Lebanon, Marion County, Kentucky. He was sentenced for life to the Kentucky State Penitentiary, at Eddyville, where he is now confined.
The petitioner contends that the court was without jurisdiction to try his case because the trial judge appointed the Lebanon, Kentucky, City Attorney to represent him. His reasoning is that his counsel by virtue of his position had conflicting interests, was hostile to his cause and could not have been effective in assistance. This alleged conflict of interests is the sole basis of petitioner’s claim that his constitutional rights under the Sixth and Fourteenth Amendments of the Constitution of the United States have been violated. In support of this claim, he cites Berry v. Gray, D.C., 155 F.Supp. 494. The facts of this case are readily distinguishable from the petitioner’s situation. There the attorney had been elected county attorney and it was his duty to assist the Commonwealth’s Attorney to prosecute criminal offenses. He had issued the warrant for Berry’s arrest and conducted the examination of witnesses before the Grand Jury.
A petition for a writ of habeas corpus to the Lyon Circuit Court of Lyon County was denied on May 8, 1963. On June 21, 1963, the Kentucky Court of Appeals affirmed the decision of the Lyon Circuit Court. The court said in its opinion:
“A city attorney is not charged with any of the duties before a grand jury which are imposed by law upon the county attorney, and is in no sense disqualified ex officio to defend an accused at a trial in the circuit court.”
The Supreme Court of the United States denied certiorari on January 6, 1964. 375 U.S. 976, 84 S.Ct. 493, 11 L.Ed.2d 421.
There are no facts alleged in the petition which would tend to show that counsel was ineffective or that he did not adequately and impartially represent the petitioner. See O’Malley v. United States, 6 Cir., 285 F.2d 733, and Scott v. United States, 6 Cir., 334 F.2d 72.
Lebanon, Kentucky, is a city of the fourth class. Section 69.560 of Kentucky Revised Statutes provides that among the duties of a city attorney of such a city,
“He shall prosecute all pleas of the Commonwealth and all warrants or proceedings instituted for violation of the ordinances or municipal regulations of the city in the police court, * *
There is no claim that petitioner’s case ever came in any way within the scope of the city attorney’s duties in the police court. No cases have been cited to us in support of the claim that the city attorney was disqualified ex officio to defend the petitioner in the circuit court. We agree with the Kentucky Court of Appeals and conclude that the city attorney was not per se disqualified to represent the petitioner by reason of his office.
Specifically, the only neglect of duty charged to counsel is that he failed to introduce witnesses and did not advise petitioner of the process for obtaining out of state witnesses. We said in O’Malley v. United States, supra,
“In the opinion of trial counsel it may be advantageous not to cross-examine a certain witness, or not to use a witness who, although helpful to the defendant in certain respects, could be made a harmful witness on cross-examination. The testimony of prospective witnesses relied upon by a defendant may prove to be overvalued by the defendant and ineffective when fully developed and analyzed by defense counsel in his pretrial preparation.” 285 F.2d at 734.
The witnesses to whom the petitioner refei’s are not named and there are no allegations of facts about which they would testify, nor in what manner they would have been pertinent to petitioner’s case.
“Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O’Malley v. United States, 6 Cir., 285 F.2d 733, 735, and cases cited.
We find no error on the part of trial judge in dismissing the petition and the judgment of the District Court is therefore affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellant, v. Howard C. HAYES and Gladys I. Hayes, his wife, Stanwood P. Whiteley and Margaret Whiteley, his wife, Appellees.
No. 20374.
United States Court of Appeals Ninth Circuit.
Dec. 8, 1966.
John W. Douglas, Asst. Atty. Gen., Morton Hollander, Walter H. Fleischer, Martin Jacobs, Attys., Civil Div., U. S. Dept. of Justice, Washington, D. C., Richard L. McVeigh, U. S. Atty., Anchorage, Alaska, for appellant.
Robert Boochever, of Faulkner, Ban-field, Boochever & Doogan, Juneau, Alaska, for appellees.
Before JERTBERG and ELY, Circuit Judges, and FOLEY, Jr., District Judge.
ELY, Circuit Judge:
This appeal is from a judgment of dismissal entered by the District Court following a trial. The appellant, plaintiff below, had sought recovery of the unpaid portion of an obligation which had been guaranteed by appellees. The obligation arose from a loan made by the Reconstruction Finance Corporation, whose functions have since been transferred to the Small Business Adminstration. 22 Fed.Reg. 4633, 71 Stat. 647 (1957). The jurisdiction of the District Court is fixed by 28 U.S.C. § 1345, and our jurisdiction is conferred by 28 U.S.C. § 1291.
On May 28, 1953, Gastineau Corporation and Chicagof Corporation were the two partners of a partnership known as Hayes and Whiteley Enterprises. On the mentioned date they, as copartners, executed a promissory note in favor of the Reconstruction Finance Corporation. The note called for the payment of $49,-200, and its maturity date was December 15, 1955. It was secured by a first mortgage on certain land and chattels owned by the partnership. The principal officers of the debtor corporations were Howard C. Hayes and Stanwood P. Whiteley, and on the date of the note’s execution, they, together with their wives, executed a written guaranty of the obligation.
After the debt was reduced by a few payments, the copartnership fell into financial difficulty and was adjudicated a bankrupt. The Small Business Administration, as assignee of the Reconstruction Finance Corporation, instituted suit upon the note. The two partner corporations, although served, took no action in defense and defaulted. The trustee of the bankrupt partnership entered a general appearance, but, in effect, consented to the judgment which was sought and, on April 5, 1958, obtained. The judgment, in the amount of $48,983.72, included the unpaid principal, the accrued interest, $4,000 in attorney’s fees, and $4,968.49 to reimburse the plaintiff in that suit for “care and preservation of the mortgaged property.” The appel-lee guarantors were not joined as defendants in the suit which resulted in this judgment. They claim that Mr. Hayes and Mr. Whiteley had been told by the “receiver” to stay away from the mortgaged property, that they had assisted the Reconstruction Finance Corporation by furnishing á requested affidavit, and that they abandoned interest in the suit against the note’s principal obligors when one of them was told by a representative of the Reconstruction Finance Corporation that “ * * * as long as the property was so badly dissipated, he could see no way * * * [R.F.C.] * * * could hold * * * [them] * * * personally responsible.”
In its brief in our court, the appellant concedes that “During the time that the property had been under the control of the Trustee, it had depreciated in value, through vandalism and theft, and the property did not satisfy the judgment in full.” After the proceeds of the foreclosure had been applied to the judgment debt, there remained, according to a Return on Execution filed on June 30, 1958, an unsatisfied balance of $30,691.-67. Over three years thereafter, in September, 1962, the plaintiff instituted the present action. In paragraph V of its complaint, it alleged “That the Judgment * * * [of April 5, 1958] * * * remains unpaid in the principal amount of $30,691.57 together with interest accrued to the 30th day of August, 1962, in the amount of $7,811.00 together with interest at the rate of six (6%) percent per annum from the 30th day of August, 1962 until fully paid.” The appellees denied the allegation. They also pleaded that the action was barred by an Alaskan statute of limitations and that an authorized representative of the plaintiff had orally released them from liability under the guaranty agreement.
In connection with a pre-trial conference conducted by the District Court, the appellant submitted a pre-trial memorandum which, among other things, recited, “Plaintiff expects to prove the allegations set forth in its complaint which are not admitted by the defendant’s answer to wit: paragraph 5 and 6.”
When, at the commencement of the trial, the district judge remarked, “ * * * the contested issues of fact and law * * * are * * * first, the amount due as principal and interest to date from defendant to plaintiff * * the appellant’s counsel commented, “I think the issues have been covered in the pre-trial memorandum, and also in the Court’s present statement.” Immediately thereafter, the appellant undertook to prove its case as it had represented in its pre-trial memorandum that it expected to do. It tendered a statement of account containing a self-serving declaration of the amount for which it claimed the appel-lees were indebted. Upon objection, the tender was rejected, and the appellant does not here challenge the correctness of the court’s ruling in that respect. The appellant then produced a witness through whom it would have sought oral testimony as to the unpaid obligation, but the court, following the procedure upon which agreement had been reached at the pre-trial conference, refused to hear the testimony. The appellant had represented in its pre-trial memorandum that it would produce no witnesses. It repeated this representation as the trial began. It did not request to be relieved from its commitment, it did not request a continuance, and it does not now contend that the District Court erred in refusing to permit it to examine the witness.
Following the two efforts which have been described, the appellant did not attempt further proof. The appellees offered none which pertained to the amount of remaining debt, if any, and the challenged judgment of dismissal was entered. Essentially, it was based upon the court’s conclusion that the appellant had failed to meet its burden of proof.
To us, the appellant vigorously urges that the District Court erred in its conclusion that the burden of proof on the disputed issue rested upon it. Incidental to this principal contention is the claim of error on the part of the court in finding that the true evidence of the amount of the indebtedness rested primarily within the knowledge and control of the appellant.
The appellant invokes a rule that a judgment obtained in a suit against a principal debtor is prima facie evidence of the liability of his guarantor or surety in a subsequent suit. Our attention is particularly directed to Moses v. United States, 166 U.S. 571, 600, 17 S.Ct. 682, 41 L.Ed. 1119 (1897), Lake County, for Use and Benefit of Baxley v. Massachusetts Bonding & Insurance Co., 75 F.2d 6, 8 (5th Cir. 1935), Massachusetts B. & Ins. Co. v. Robert E. Denike, Inc., 92 F.2d 657 (3rd Cir. 1937), Commonwealth, to Use of Ulshofer v. Turner, 340 Pa. 468, 17 A.2d 352, 354 (1941), and Home Ins. Co. of New York v. Savage, 231 Mo.App. 569, 103 S.W.2d 900 (1937).
Assuming that such a rule might be sometimes applicable, we agree with the District Court that it should not be operative here. In Home Ins. Co. of New York v. Savage, supra, which appellant emphasizes, the guarantors were joined in the suit in which judgment was taken against the principal. In other cases in which it has been said that a prior judgment constitutes prima facie evidence of the liability of a guarantor in a subsequent suit, it does not appear that the judgment obligation had been reduced by payment. See, e. g., Lake County for Use and Benefit of Baxley v. Massachusetts Bonding & Insurance Co., supra. In the present ease, it was shown by the appellant’s own allegations that some payments had been made toward the reduction of the indebtedness established by the judgment of April, 1958.
Appellees advance another exception to the rule upon which appellant now relies. This exception arises when the creditor’s judgment against the principal, in a suit in which the guarantor is not joined, is taken by default or obtained by confession. Restatement, Security § 139(3) (1941). In the comment to the cited subsection of the Restatement, it is said, “Such a judgment against the principal does not create a rebuttable presumption of the principal’s liability, in an action between creditor and surety.” Restatement, Security § 139(3), comment e (1941). We support this proposition, and we are inclined to believe that the courts of Alaska, when confronted with the problem, will support it also. The Supreme Court of Alaska has frequently relied on Restatement rules. See, e. g., Thrift Shop, Inc. v. Alaska Mutual Savings Bank, 398 P.2d 657 (Alaska 1965). The issue is not whether the judgment is admissible as evidence. It is the effect which is to be given to the judgment after its admission. It is a matter of substance and as such is controlled by Alaskan law. United States v. Maryland Cas. Co., 204 F.2d 912, 915 (5th Cir. 1953). When a creditor, without suing a guarantor, obtains a judgment against the principal by consent or default, suspicion arises that the creditor and the principal may have conspired improperly for advantage to themselves and the ultimate disadvantage of the guarantor. When, therefore, a creditor has obtained a judgment against the principal in an action which the principal has not contested, that judgment, in the creditor’s subsequent and first suit against the guarantor, cannot and should not, of itself alone, constitute prima facie evidence of the amount of the guarantor’s obligation. See United States v. Maryland Cas. Co., supra.
The appellees had been disassociated from the corporations which were the judgment debtors for approximately eight years before the institution of suit against them. For the same extended period of time they had been divested of interest, direct and indirect, in the property which secured the original obligation and which was the subject of the foreclosure proceedings. We have already seen that the appellant, for reasons not for our speculation, did not join them in the suit which fixed the amount of liability against the principal obligors alone. The appellees were remote from events, including the payment of amounts toward satisfaction of the judgment and the manner of the payments. Under these circumstances, it was noKerror for the District Court to find that the proper amounts which should be credited to satisfaction of the original judgment rested “chiefly or entirely” within the knowledge of the appellant as the creditor. It is well settled that in the interest of fairness the burden of proof ordinarily resting upon one party as to a disputed issue may shift to his adversary when the true facts relating to the disputed issue lie peculiarly within the knowledge of the latter. See, e. g., United States v. New York, N. H. & H. R. R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957), wherein the Supreme Court stated, “The ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” 355 U.S. 256 n. 5, 78 S.Ct. 214 n. 5
It is said that appellees may have availed themselves of adequate knowledge by recourse to the trustee of the bankrupt partnership or to his records. Aside from possible disinclination to rely upon an official who had not- contested the original suit wherein the judgment included a $5,000 loss for which he himself may have been responsible, the appellees were not obliged, in the circumstances which we have outlined, to secure the, proof.
The appellant, in its pre-trial memorandum, had represented that it would prove its principal allegation, the just amount of indebtedness. We must assume, absent request for modification of, or relief from, the pre-trial commitment, that the appellees relied upon the representation which appellant made. Had the appellant, at the time of the pretrial conference, taken the position which it now takes, that it had no obligation as to proof other than to introduce the original judgment, it is not unlikely that ap-pellees would have attempted to prepare themselves with evidence relating to the disputed amount. That the appellant’s representation in its pre-trial memorandum evidenced its understanding of its burden is confirmed by the fact that it did indeed undertake to offer proof in the presentation of its case in chief. It is essential to the orderly disposition of litigation that parties, as well as courts, be able to rely on procedural courses which have-been clearly defined and established in properly conducted pre-trial proceedings.
The entire record supports the District Court’s conclusion that the burden of proof in this case rested upon appellant. It had agreed to meet it, and it did not do so. The judgment is
Affirmed.
. This amount, $48,983.72, is itemized in the District Court’s Finding of Fact number 4 and found to have been the total amount of the judgment in Finding of Fact number 5. It conforms with the judgment which was introduced as plaintiff’s Exhibit C although it is inconsistent with a recitation in paragraph (4) of the “STATEMENT OF ADMITTED FACTS” in the court’s “PRE-TRIAL ORDER” that the judgment was for the sum of $58,075.04. This latter amount appears to have represented a tax obligation for which the United States of America had attached a lien upon the mortgaged property. The administrator of the Small Business Administration, plaintiff in the original suit, had named the United States as a defendant.
. The successful bid, made by the Small Business Administration itself, was only $16,500.
. On the plaintiff’s complaint there is a file stamp which shows that the complaint was filed on September 24, 1962. The pre-trial order recites, in paragraph (7) of the “STATEMENT OF ADMITTED FACTS,” that “For the sole purpose of establishing that defendants received a demand for payment before the filing of suit, it was stipulated that the date of filing suit was December 17, 1962.”
. Accordingly, the pre-trial order states, “Plaintiff indicated that it did not intend to call any witnesses.” Recognizing that the parties might reexamine their plans as to the production of witnesses, the pre-trial order provided, “Witnesses not listed herein may be called by either party provided the names and addresses of such additional witnesses together with a brief statement of the nature or general subject matter of the testimony expected to be given by each such witness are served on opposing counsel and filed with the Clerk at least fifteen (15) days in advance of the date set for trial.”
. The opinion in Moses v. United States, supra, rendered in 1897, contains language claimed to express a contrary rule. We are not certain that it does. In Moses, a surety had executed a $12,000 bond conditioned on an army officer’s faithful discharge of his duties. The United States, after having recovered a judgment of $101,257.08 against the officer for his misappropriation of public funds, instituted suit against the surety. The surety contended that the original judgment was inadmissible for any purpose, and the Supreme Court, in rejecting the contention, stated, as to the judgment, “It proved, at least, prima facie, a breach of the bond by showing the amount of public moneys which Howgate, the principal, had failed to faithfully expend and honestly account for. It was far beyond the penalty in the bond, and, unexplained, the judgment was sufficient evidence of the breach of condition.” (Citations omitted.) 166 U.S. at 600, 17 S.Ct. at 693. It is significant that the thrust of the language is to the point that the judgment was prima facie evidence of “a breach of the bond” and a “breach of condition,” not of the amount of the unsatisfied portion of the original judgment. We note also that in Moses there was apparently no denial by the surety, as there was in the instant case, of the creditor’s allegation of the amount of the surety’s obligation. It is clear from the opinion in Moses that there was no dispute over the fact that the unsatisfied portion of the original judgment far exceeded the amount of the surety’s bond. Moreover, while the judgment against the principal was taken after the principal had failed to file an answer, the opinion recites that the principal “appeared in the action by an attorney.” In any event, the Supreme Court in Moses was concerned with the application of federal law, whereas our obligation is to apply Alaskan law as it is or as it may reasonably be foreseen.
. That this was true as between the appellant and appellees can hardly be questioned. The challenged finding was a finding of fact, based upon a consideration of all the circumstances, not excluding the court’s awareness of the original award, at the least questionable, of an attorney’s fee for $4,000 for the work involved in filing a suit upon a promissory note and in obtaining a judgment by default against the principal obligors and a judgment by consent against a trustee in bankruptcy. Furthermore, we cannot ignore the fact that the original judgment included the sum of approximately $5,000 to reimburse appellant for its expenses in connection with the “care and preservation of the mortgaged property” when the appellant concedes that depreciation in value, resulting from “vandalism and theft,” occurred when the property was “under the control of the trustee.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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.
McNABB v. VIRGINIAN RY. CO.
No. 3226.
■ Circuit Court of Appeals, Fourth Circuit.
Jan. 12, 1932.
Affirmed.
A. A. Lilly, of Charleston, W. Va. (Lilly, Lilly & Warwick and It. G. Lilly, all of Charleston, W. Va., on the brief), for appellant.
John R. Pendleton, of Princeton, W. Va. (Harry C. Ellett, of Princeton, W. Va., on the brief), for appellee.
Before PARKER, NORTHCOTT and SOPER, Circuit Judges.
PER CURIAM.
Willie McNabb, appellant, brought this action of trespass on the ease against the Virginian Railway Company, a corporation, appellee, and against H. Clay Jacobs and R. C. Lambert, in the circuit court of Payette county, W. Va. The cause was subsequently removed to the District Court of the United States for the Southern District of West Virginia) and the defendants H. Clay Jacobs and R. C. Lambert were dismissed as defendants, and, the defendant, Virginian Railway Company, having pleaded not guilty, the issue was tried before a jury in May, 1931.
After the conclusion of the evidence for both the plaintiff and the defendant, the court, upon motion of the defendant, directed the jury to find for the defendant, which was accordingly done. The plaintiff moved to set aside the verdict of the jury, and to grant him a new'trial, which motion the court overruled. Prom that judgment this appeal is taken.
The appellant, who was plaintiff below, was struck by a locomotive of the railway company at a road crossing near Deep-water, Payette county, W. Va. There is evidence on behalf of the railway company that the headlight was burning on the locomotive and that the crossing signals were duly given. Plaintiff and a witness testified that the light was not burning. Assuming, that the evidence was sufficient do carry the ease to the jury on the issue of negligence, we think that plaintiff was unquestionably barred of recovery by his contributory negligence and that verdict was properly directed against him. We think it clear in the light of the evidence that, if plaintiff had looked before stepping in front of the approaching locomotive, he could unquestionably have seen it in timé to have avoided being struck, and his injury is therefore to be attributed to his own negligence in stepping in front of the locomotive without taking' proper precautions. A number of witnesseá on both sides) who had no better view than the plaintiff; testified that they saw the approaching locomotive. In view of the physical conditions disclosed by the other evidence, his testimony that he looked but failed to see>-the locomotive approaching is without probative force and entirely insufficient to form the basis of a verdict in his behalf.
Had the jury returned a verdict for the plaintiff, it would have been the duty of the trial judge in the exercise of a sound judicial discretion to set it aside. It was therefore proper for him to direct a verdict for the defendant. South Carolina Asparagus Growers’ Association v. Southern Railway Co. (C. C. A.) 46 F.(2d) 452, 453, and cases there cited; Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Hetzel v. Kemper, 102 W. Va. 567, 135 S. E. 667.
This rule applies not only in cases where the evidence is undisputed, but also in eases where the evidence is só conclusive in character that reasonable men would not reach different conclusions in regard thereto. In Ellerson v. Grove, 44 F.(2d) 493, 496, this court holds as follows:
“The general rule as to direction of verdicts is set out in the case of Marion County Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59, as follows: ‘Decided cases may be found where it is held that, if there is a scintilla, of evidence in support of a ease, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule; to wit, that, before the evidence is left to the jury, there is or may be in every ease a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.’ * * *
“See also Coughran v. Bigelow, 164 U. S. 307, 17 S. Ct. 117, 41 L. Ed. 442; Patton v. Southern Ry. Co. (C. C. A.) Ill P. 712; Woodward et al. v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 145 P. 577. In the last-mentioned ease it is said that it is the duty of a court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is' undisputed; and (2) that class in which the evidence is conflicting but is of so conclusive a character that the court in the exercise of a sound judicial discretion will set aside the verdict in opposition to it. See also numerous cases cited in that opinion.”
The judgment of the court below-is accordingly affirmed.- -
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. 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".
Thomas J. MUNDY, Jr., et al., Plaintiffs, Appellants, v. LUMBERMAN’S MUTUAL CASUALTY CO., Defendant, Appellee.
No. 85-1588.
United States Court of Appeals, First Circuit.
Argued Dec. 3, 1985.
Decided Feb. 13, 1986.
Wendy P. Solovay, Boston, with whom Marshall F. Newman and Newman & Newman, P.C., Boston, were on brief for appellants.
Brian R. Merrick with whom Burke, Wieners, Moran, Hurley & Merrick, Boston, was on brief for appellee.
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.
BREYER, Circuit Judge.
Thomas Mundy, an assistant district attorney of Suffolk County, Massachusetts, and his wife, Madelon, have sued their insurer in an effort to recover the actual value of some silver that was stolen from their home. Since the policy in effect at the time of the burglary limited recovery for loss of silverware to $1000, the company refused to pay them anymore. The Mundys noted, however, that an earlier policy had not contained such a limit. They argued that the company did not give them adequate notice of the change when it sent them the policy renewal. And, this failure, in their view, entitles them to recovery under state law theories of contract, tort or unfair trade practice.
The district court granted the company’s motion for summary judgment, for the court believed that the record showed — beyond genuine dispute — that the company’s notice was adequate. The Mundys now appeal that decision.
The Mundys say in their brief that the “declarations page” of the policy (which they received) said nothing about the change, though “apparently ... there was buried in the fine print of the policy a limitation of $1,000.00 with respect to a loss of silverware.” The policy itself, however, tells a rather different story.
Mundy testified that Exhibit 4 was the very policy he received “in the form in which [he] ... received it.” On the jacket (apparently the inside cover) is a table of contents. The page also contains five short sentences in capital letters at its bottom. Four of those sentences read as follows:
THIS IS A NEW EASY TO READ POLICY. PLEASE READ YOUR POLICY. THERE ARE SOME COVERAGE CHANGES. IF THERE ARE ANY QUESTIONS, CALL YOUR AGENT OR THE COMPANY RIGHT AWAY.
There follows a declarations page containing the cost of premiums for coverages in effect. The declarations page is followed by two slips of paper (about half the ordinary page size) each with one or two sentences (about inflation protection and nonresidential theft). Then, there is a one-page summary of the changes made. Each change noted in the summary is in a separate paragraph, set off from the others by added space and black dots. The relevant paragraph says:
Theft of silverware and guns is now limited to $1,000. Should you wish more coverage for such items, contact your agent.
The remainder of the booklet consists of the twelve-page policy itself. On page 2, the policy says:
Special Limits of Liability ...
7. $1000 for loss by theft of silverware, silverplated ware, goldware, gold-plated ware and pewterware.
The whole policy is written in readable English in good-sized print with certain words, such as “Special Limits of Liability,” set off in boldface type.
We find nothing in the record that fairly can be read as disputing these facts. Mundy at one point said that the summary of changes was stapled “somewhere” in the policy; but the word “somewhere” is consistent with his concession that Exhibit 4. presents the pages in the proper order. As the district court noted, these facts bring this case well within the scope of Epstein v. Northwestern National Insurance Co., 267 Mass. 571, 166 N.E. 749 (1929), which binds an insured by the terms of a renewal insurance policy as long as he receives it.
The Mundys argue that Epstein is now out of date and a minority position. As Mundy recognized, these are not adequate reasons for disregarding Massachusetts case law. Nor do we believe the question should be certified to the Massachusetts Supreme Judicial Court, Mass.S.J.C. Rule 1:03, for, in any event, the Mundys cannot prevail. The facts here make this case very similar to GEICO v. United States, 400 F.2d 172, 175 (10th Cir.1968), where even “a casual reading of the mailed material” would have given the plaintiffs adequate notice. And, we find nothing in the cases they cite from other jurisdictions that would require a different result. Compare Noyes Supervision, Inc. v. Canadian Indemnity Co., 487 F.Supp. 433, 436 (D.Colo. 1980) (endorsement not added until after loss); Giles v. St. Paul Fire & Marine Ins. Co., 405 F.Supp. 719, 725-26 (N.D.Ala.1975) (coverage change not included in summary of changes, therefore insurer bound by original policy as modified according to summary); Pennsylvania Millers Mutual Ins. Co. v. Dunlap, 153 Ga.App. 116, 264 S.E.2d 483 (1980) (endorsement limiting liability for silverware not received); Industro Motive Corp. v. Morris Agency, Inc., 76 Mich.App. 390, 256 N.W.2d 607 (1977) (insurer estopped from relying on 20 percent coverage limitation in policy because of affirmative representations that insured was 50 percent covered); Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 574 (Minn.1979) (undisputed that no notice given); Bauman v. Royal Indemnity Co., 36 N.J. 12, 174 A.2d 585, 591-92 (1961) (insured not bound by terms of renewal policy unless notice that there are changes in coverage is given); Aetna Ins. Co. v. Lythgoe, 618 P.2d 1057 (Wyo. 1980) (no dispute that insured’s attention was not specifically directed to coverage change).
The judgment of the district court is
Affirmed. Double costs to Appellee.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
Henry B. WALKER, Jr., Trustee, James C. Bower, Executor and Trustee of the Estate of John M. Bower, deceased, James C. Bower, Henry B. Walker, Petitioners, v. The Honorable Henry L. BROOKS, United States District Judge for the Western District of Kentucky, Respondent.
No. 13399.
United States Court of Appeals Sixth Circuit.
Jan. 28, 1958.
Henry B. Walker, Henry B. Walker, Jr., William G. Greif, Evansville, Ind., on brief, for petitioners.
No appearance for respondent.
Before ALLEN, MILLER and STEWART, Circuit Judges.
SHACKELFORD MILLER, Jr., Circuit Judge.
Petitioners have filed in this court their petition for writ of mandamus directing Honorable Henry L. Brooks, United States District Judge for the-Western District of Kentucky, to execute the mandate of this Court issued in Walker v. Felmont Oil Corporation (Felmont Oil Corporation v. Ohio River Oil Company, Inc.), which cases are reported; at 6 Cir., 240 F.2d 912.
Those cases involved conflicting claims of petitioners and others to the oil and gas rights in certain portions of the bed of the Ohio River that lie north of the thread of the stream opposite the Kentucky shore. The District Judge in an opinion reported at Walker v. Felmont Oil Corporation, 136 F.Supp. 584, ruled against the petitioners herein and also against the claim of Henderson County, Kentucky, and in favor of the State Property & Buildings Commission of Kentucky and those parties holding leases from it. In the trial in the District Court, the question of jurisdiction was not raised by any of the parties and was not discussed by the District Judge in making his ruling. On appeal to this court we held that jurisdiction of the Federal Court was doubtful, that it could not be conferred by agreement of the parties, and that it should be decided by the District Judge before the case was considered on its merits. We also held that although jurisdiction may exist it did not follow that in the declaratory judgment suit which was before him it must be exercised by the District Judge. We discussed in some detail the factors to be considered by the District Court in determining whether or not jurisdiction should be exercised if found to exist. In denying a petition for rehearing we stated that we were not ruling upon the two issues referred to but that the case was being remanded to the District Court for a consideration by the District Judge and his ruling on the question of jurisdiction and the exercise thereof. The mandate which was thereafter issued vacated the judgment of the District Court and remanded the cause “to the District Court for further proceedings in accordance with the views expressed in the opinion herein.”
Following the remand to the District Court, Henderson' County, Kentucky, moved for a stay of proceedings pending a ruling in a suit pending in the Henderson County, Kentucky, Circuit Court involving similar conflicting claims to the oil and gas rights in the bed of the Ohio River. The motion was opposed by other parties to the action and a hearing on the motion was held by the District Judge on September 11, 1957, following which an oi-der was entered submitting the case to the Court “for decision on the issues raised in the opinions and order of the Circuit Court of Appeals denying the petition for rehearing and remanding this cause, upon the motion of Henderson County, Kentucky, for a stay of proceedings herein, and the responses thereto.” The order further directed that the briefs filed in the Court of Appeals on the petition for rehearing be filed with the District Court for its consideration.
On September 30, 1957, the District Judge entered an order which stated that he did not believe it was necessary to determine the jurisdictional question “as it is clearly apparent from the authorities cited and the reasoning of the Court of Appeals that if jurisdiction did exist it should not be exercised. This case does involve difficult questions requiring interpretation of state laws that affect the public policy of Kentucky, and since the rights of the parties can be adequately determined in the pending state action, there is no justification for further proceedings that could lead to a possible conflict between state and federal rulings.” The action was dismissed without prejudice. The petitioners herein have taken an appeal from that order of dismissal in addition to their present application for a writ of mandamus.
The present petition for writ of mandamus sets out the history of the litigation above referred to and states that in entering the order dismissing the action, the District Court did not follow the mandate of this court and has denied the petitioners the protection to which they are entitled to litigate matters of this kind in the federal courts rather than in the courts of a state of which they are not citizens. Petitioners ask that a writ of mandamus issue from this court directing the District Judge “to consider and rule on the questions of the existence and exercise of federal jurisdiction after hearing the views of the interested parties thereon.”
Appellants correctly contend that when the District Court refuses to give effect to or misconstrues a mandate issued by the Court of Appeals, its action may be controlled by the appellate court by writ of mandamus. Baltimore & O. R. Co. v. United States, 279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954. But as that case also shows, that is not the exclusive remedy. In cases where the District Court has acted in accordance with its construction of the mandate, any error in so construing the mandate can be corrected by another appeal from the final judgment. Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403. It is the well settled rule that ordinarily mandamus may not be resorted to as a mode of review when a statutory method of appeal is available and is not clearly inadequate. Roche v. Evaporated Milk Association, 319 U.S. 21, 27-30, 63 S.Ct. 938, 87 L.Ed. 1185; Ex parte Fahey, 332 U.S 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041. In the present case a final judgment has been entered, from which an appeal has been taken to this court. The error complained of by petitioners can be adequately reviewed in that way. The present application cannot be used as a .substitute for an appeal.
We also think it is clear from our opinion on the appeal in this litigation .and from the mandate issued by this court that we did not decide the question of jurisdiction or whether it should be exercised if found to exist, but that such questions were left for consideration and determination by the District Judge. The mandate did not direct the District Judge to take jurisdiction of the case and decide it on its merits. It directed him to make a ruling on the question of jurisdiction. It does not control the ruling to be made. While this court has authority in a mandamus proceeding to require a District Judge to make a ruling in a cause pending before him, we do not have authority in such a proceeding to direct him what ruling to make. Ex parte Park & Tilford, 245 U.S. 82, 85, 38 S.Ct. 15, 62 L.Ed. 164; Jewell v. Davies, 6 Cir., 192 F.2d 670, 673. Whether the District Judge in making the ruling which he made followed our mandate and whether the ruling he made is correct as a matter of law, need not be decided in this proceeding, as they are matters more properly for consideration by this court on the appeal from the final judgment instead of using this mandamus proceeding as a substitute for an appeal. Baltimore & O. R. Co. v. United States, 279 U.S. 781, 785, 49 S.Ct. 492, 73 L.Ed. 954; Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403; Rippy v. Borders, 5 Cir., 250 F.2d 690.
The fact that the issue involved is a jurisdictional one does not make the case an exceptional one appropriate for the issuance of the writ. This question was recently considered by us in Massey-Harris-Ferguson, Ltd. v. Boyd, 242 F.2d 800, certiorari denied 355 U.S. 806, 78 S.Ct. 48, 2 L.Ed.2d 50, in which we declined to review, upon an application for a mandamus, a ruling by the District Judge on the question of jurisdiction.
Petitioners’ application for an order to show cause is denied and their application for a writ of mandamus is dismissed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_suffic
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph PUMA, a/k/a Ronny Puma, Donnie K. Nichols, a/k/a Dead Weight and DW, and Ernest Raymond Dodd, a/k/a RD, Defendants-Appellants.
No. 90-1420.
United States Court of Appeals, Fifth Circuit.
July 22, 1991.
Rehearing Denied Aug. 29, 1991.
George C. Thompson, Jr., Fort Worth, Tex. (Court-appointed), for Puma.
Richard A. Anderson, Dallas, Tex., Gene Storrs, Amarillo, Tex., for Nichols.
Donald S. Gandy, Fort Worth, Tex., for Dodd.
Delonia A. Watson, Asst. U.S. Atty., Dept, of Justice, U.S. Attys. Office, Dallas, Tex., Marvin Collins, Fort Worth, Tex., for U.S.
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Ronald Puma, Donnie Nichols, and Ernest Dodd appeal their convictions following a jury trial for conspiracy to produce, transport, and sell amphetamines in violation of federal narcotics statutes. They urge insufficiency of evidence to support their convictions, incorrect application of the sentencing guidelines, defective indictment, and errors in the admission of evidence.
We reject all defendants’ contentions except that we find that the trial court did not expressly find that Nichols could have reasonably foreseen that the conspiracy of which he was convicted would involve 390 pounds of amphetamine. We vacate Nichols’ sentence and remand to the trial court for any additional findings and resentenc-ing.
I.
Robert Payne was originally indicted with the appellants but testified pursuant to a plea agreement. Payne testified that Ernest Dodd sold amphetamine powder to him in 1985 for Payne’s personal use, followed in 1985 and 1986 by larger quantities of amphetamine powder which Payne in turn sold for a profit. According to Payne, this relationship continued until February of 1988.
Payne testified that by 1988 Dodd was unable to meet his need so he decided to acquire a new source of amphetamine. In the meanwhile Payne learned to convert amphetamine oil to powdered amphetamine by observing the conversion process at Dodd’s wrecker service in Fort Worth.
Payne testified that he met Ronald Puma in 1988. According to Payne, Puma had supplied Dodd with amphetamine oil, but Dodd had fallen into debt with Puma. Payne testified that he and Puma reached an agreement in 1988 under which Puma would sell amphetamine oil to Payne who would convert the oil into powder and sell it to others. Payne also sold chemicals necessary for amphetamine production to Puma. According to Payne, Puma and Payne discussed both these sales of amphetamine powder and Puma’s own production process. For example, Payne testified that in December, 1988, he and Puma discussed replacing laboratory equipment destroyed in a chemical explosion. The relationship between Puma and Payne ended when agents from the Drug Enforcement Agency searched Payne’s house in July of 1989.
The government tied Donnie Nichols to the conspiracy through his relationship with Oda Lee Ratheal, a steady customer of Payne’s and an indicted co-conspirator who testified in this case pursuant to an agreement with the prosecution. Ratheal met Nichols in 1984. In March, 1986, Ra-theal began to purchase amphetamine powder from Payne. Ratheal testified that he sold amphetamine powder to Nichols almost every time that Ratheal purchased it from Payne. According to Ratheal, Ra-theal informed Nichols that Payne was Ra-theal’s supplier. Ratheal’s wife, Dodie, testified that Nichols assisted her husband in weighing, cutting, and bagging amphetamine and that Nichols had informed her that he sold amphetamine to others. In Oda Lee Ratheal’s opinion, Nichols could not use all the amphetamine that Nichols purchased from Ratheal.
In 1986, Oda Lee Ratheal was injured in an automobile accident. Ratheal testified that Nichols assisted his wife Dodie in purchasing and weighing amphetamines while Oda Lee Ratheal was hospitalized, accompanying Dodie Ratheal on her trips to a truck stop where they picked up their supply of amphetamine. After Ratheal’s recovery, Nichols accompanied Ratheal when Ratheal travelled to Payne’s home to purchase amphetamine. Ratheal also purchased amphetamine with Nichols’ money.
On September 22, 1989, appellants, along with nineteen others, including Payne and the Ratheals, were charged in a 76-count indictment with the violation of federal drug statutes, money laundering offenses, and violations of the Travel Act. The indictment also charged that Puma had used profits from a continuing criminal enterprise to purchase certain property which in turn had been used to facilitate the continuing criminal enterprise.
Dodd was convicted for conspiracy to produce and distribute amphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and given a twenty-year sentence. Nichols was similarly convicted and sentenced to serve 151 months. Puma was sentenced to 360 months upon his conviction for conspiracy to violate 21 U.S.C. §§ 841(a)(1), 846, 848 and 853, and 18 U.S.C. §§ 1952(a)(3), 1956(a)(l)(B)(i), and 2. He also forfeited the Diamond Oaks Motor Company and $5,030.00 which were found by a jury’s special verdict to have been obtained through the profits of a continuing criminal enterprise, pursuant to 21 U.S.C. § 853(a)(l)(3).
II.
Puma raises eight points of error. All are without merit.
A. Constitutionality of Sentencing Guideline 3E1.1; Sufficiency of Evidence; Defective Indictment
Puma first contends that Sentencing Guideline 3E1.1 violates his Sixth Amendment right to a jury trial. An identical contention was considered and rejected in United States v. White et al., 869 F.2d 822, 826 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). Puma next argues that there was not sufficient evidence to support his convictions because certain witnesses were given an incentive to testify against him by plea agreements. Such plea agreements raise issues of credibility. Credibility was for the jury. United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986).
Puma finally urges that his indictment was fatally defective in not alleging the quantities of amphetamine it charged him with possessing. This argument is made for the first time in this appeal. We therefore review only to ascertain whether the indictment stated the essential elements of the charged offenses. United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989); United States v. Campos-Asencio, 822 F.2d 506, 508 (5th Cir.1987). Quantity is not an element of any of the charged offenses. United States v. Medina, 887 F.2d 528, 532 (5th Cir.1989) (stating elements of violation of 18 U.S.C. § 2); United States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.1988) (stating elements of violation of 18 U.S.C. § 1952); United States v. Morgan, 835 F.2d 79, 81 (5th Cir.1987) (stating elements of violation of 21 U.S.C. § 841(b)(1)(A)); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974) (stating elements of 21 U.S.C. § 848), cert. denied sub nom. Goldstein v. United States, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). The indictment, therefore, contained the essential elements of the offenses charged and is sufficient.
B. Puma’s Objections to his Sentence
Puma raises five objections to his sentence. First, he urges that the trial court violated Fed.R.Crim.P. 32(c)(3)(D). Second, Puma claims that it was based on inaccurate information. Third, Puma argues that the disparity between his sentence and the sentence of his co-conspirators, especially Payne’s sentence violates the “spirit” of the sentencing guidelines. Fourth, Puma argues that the trial court ordered forfeiture in violation of Fed.R.Crim. 7(c), (e) and 31(e). Finally, Puma alleges that there is insufficient evidence to support forfeiture of certain automobiles.
1. Fed.R. Crim.P. Rule 32(c)(3)(D)
Fed.R.Crim.P. 32(c)(3)(D) provides that:
If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presen-tence report thereafter made available to the Bureau of Prisons.
Puma contends that the trial court’s failure to make written findings rejecting Puma’s challenges to the pre-sentence report, is reversible error. This contention is meritless. The trial court’s express rejection of Puma’s challenges to the pre-sen-tence report appears in the record. This oral finding satisfies 32(c)(3)(D)’s requirement that the trial court “make a finding as to the allegation” raised by Puma. United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989); United States v. Lawal, 810 F.2d 491, 493 n. 2 (5th Cir.1987). Puma’s only objection must be that this ruling was not attached in writing to the pre-sentence report that was sent to the Bureau of Prisons. If so, the record does not show any prejudice for any such omission.
2. Accuracy of Information on which Sentence was Based
Puma’s second contention, that his sentence was based on inaccurate information, is similarly meritless. The trial court expressly considered and rejected Puma’s objections to the pre-sentence report. Puma alleges only one specific example of reliance on erroneous facts. He argues that the trial court should not have relied on the pre-sentence report because the report refers to acts committed before the charged conduct. A sentencing court, however, may consider for sentencing purposes facts that were not alleged in the indictment. United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989). The trial court in this case was well within its discretion in making the factual findings challenged by Puma.
3. Disparity in Sentences Received by Different Defendants
Puma’s third objection to his sentence, raised by Nichols and Dodd as well, is that the disparity between his sentence and the sentence of his co-conspirator Payne, rendered his sentence defective under the “spirit” of the Sentencing Guidelines. Puma’s, Dodd’s, and Nichols’ own sentences fall within the range recommended by the Sentencing Guidelines. The fact that another party received a lower sentence than Puma does not alone make Puma’s otherwise legal sentence a violation of the Sentencing Guidelines. United States v. Pierce, 893 F.2d 669, 678 (5th Cir.1990).
f Propriety of Forfeiture
Finally, Puma raises three objections to the forfeiture of property ordered by the trial court. First, he argues that the indictment failed to advise him of the precise extent of the forfeiture sought by the government, in violation of both Fed.R.Crim.P. 7(c)(2) and Fed.R.Crim.P. 31(e). Second, he argues that the jury’s special verdict regarding the “Diamond Oaks Motor Company” inadequately specified the property that had been forfeited, in violation of Fed.R.Crim.P. 31(e). Third, Puma objects that there was insufficient evidence to support the forfeiture of certain automobiles listed in the amended order of forfeiture granted to the government by the trial court.
a. Sufficiency of Indictment under Rule 31(e) and 7(c)(2)
Puma did not raise with the district court his present objection to the indictment’s specification of property subject to forfeiture. We therefore ask only whether the indictment states the essential elements of an offense. Fed.R.Crim.P. 12(b)(2). As we noted in United States v. Cauble, 706 F.2d 1322, 1347 (5th Cir.1983) (en banc), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984), “[t]he purpose of the notice of forfeiture in the indictment is to inform the defendant that the government seeks forfeiture as a remedy.” The designation of property subject to forfeiture is sufficiently specific if it “puts the defendant on notice that the government seeks forfeiture and identifies the assets with sufficient specificity to permit the defendant to marshal evidence in their defense.” Id.
In this case, count 2 of the indictment states that the government sought forfeiture of the “Diamond Oaks Motor Company, 4249 Denton Highway, Haltom City, Texas” and “$5,030.00 in U.S. currency.” This description of Puma’s car lot business is amply sufficient to notify Puma that the government sought forfeiture of all of the company’s assets. Cauble, 706 F.2d at 1347; United States v. Boffa, 688 F.2d 919, 939 (3d Cir.1982) (“by alleging that all of the appellants’ interest in the enumerated corporations was subject to forfeiture, the indictment alleged the ‘extent of the interest or property subject to forfeiture’ ” required by Rule 7(c)(2)), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983). Moreover, count 3 of the indictment alleges precisely how the government intended to link the Diamond Oaks Motor Company both to money-laundering and to the proceeds of unlawful activity.
The indictment as a whole described the property and how it was illegally used. This was more than sufficient to allow Puma to marshall any defense. United States v. Peacock, 654 F.2d 339, 351 (5th Cir.1981) (specificity of forfeited property’s description in indictment should be judged from indictment as whole), modified, 686 F.2d 356 (5th Cir.) (per curiam), cert. denied, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 344 (1982). It therefore violated neither Fed.R.Crim.P. 7(c)(2) nor Fed.R.Crim.P. 31(e).
b. Sufficiency of Special Verdict of Forfeiture Under Rule 31(e)
We also reject Puma’s challenge to the jury’s special verdict. The jury found that the “Diamond Oaks Motor Company” had been used to control, and had been purchased by the proceeds of, a continuing criminal conspiracy. This finding identifies with sufficient specificity the asset subject to forfeiture. The jury is under no obligation “to select only certain of that entities’ assets for forfeiture....”, Cauble, 706 F.2d at 1349. See also United States v. Tunnell, 667 F.2d 1182, 1188 (5th Cir.1982) (jury’s special verdict need not identify which rooms of hotel were used in criminal enterprise for whole hotel to be forfeited). If any part of the motor company was purchased by, or used to control, the proceeds of a continuing criminal conspiracy, then it is “readily apparent that the entire property was subject to forfeiture”, United States v. Possick, 849 F.2d 332, 341 (8th Cir.1988). The jury’s special verdict, therefore, complied with Fed.R. Crim.P. 31(e)’s requirement that the verdict identify “the extent of the interest or property subject to forfeiture.”
c. Sufficiency of Evidence for Forfeiture of Property Listed in Order of Forfeiture
Puma’s last contention is that there was insufficient evidence to support the order of forfeiture of numerous automobiles and equipment. Puma argues that there was evidence that “the vehicles were legitimately and legally bought” without involvement of the proceeds of a criminal enterprise; they should not be forfeited because they do “not fall[ ] within the special verdict forfeiting ‘Diamond Oaks Motor Company’.”
There was ample evidence presented to the jury that the Diamond Oaks Motor Company was both derived from the proceeds of a criminal enterprise and afforded Puma control over a criminal enterprise. This evidence included physical evidence and testimony that the business was used to store amphetamine; testimony that the business was intended by Puma to be a front for amphetamine trafficking; and evidence that Puma’s legitimate income was not large enough to cover the cost of purchasing the business.
Puma seems to be arguing that individual items belonging to the company were not involved in a criminal enterprise and that, therefore, those assets should not be forfeited. This is not the law. If the motor company was forfeitable, then all the individual assets of the company were also forfeitable, without any proof that each individual asset had been used in, or purchased by the proceeds of, a criminal enterprise. Cauble, 706 F.2d at 1349. See also Tunnell, 667 F.2d at 1188 (jury’s special verdict need not identify which rooms of hotel were used in criminal enterprise for whole hotel to be forfeit); Possick, 849 F.2d at 341.
III.
Dodd raises two points of error on appeal. His contention that his conviction violated the Ex Post Facto clause lacks merit. We also affirm the trial court’s denial of his motion to suppress evidence.
A. Ex Post Facto Claim
Dodd claims that his conviction for conspiracy beginning before the enactment of the Sentencing Guidelines violated the Ex Post Facto clause of the U.S. constitution, because his participation in the conspiracy “[was] not specifically shown to have continued past November 1, 1987.” Dodd, however, does not argue here that he withdrew from the conspiracy by taking “affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach other conspirators.” United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978); see also United States v. Jimenez, 622 F.2d 753, 757 (5th Cir.1980). There is no violation of the Ex Post Facto clause in the application of the Sentencing Guidelines to conspiracies that begin before the enactment of the Guidelines but continue after the Guidelines’ enactment. White, 869 F.2d at 826.
B. Probable Cause for Search Warrant
Dodd also contends that the Drug Enforcement Agency’s search of Dodd’s property pursuant to a warrant violated the Fourth Amendment, because the warrant rested on stale evidence. We need not address probable cause for the warrant, because we find that the Drug Enforcement Agency officers acted in good faith in relying on the issued warrant. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). United States v. Craig, 861 F.2d 818, 821 (5th Cir.1988).
Where an officer’s reliance on a warrant is objectively reasonable, evidence obtained under the warrant is not excluded. Such reliance is objectively reasonable unless the affidavit supporting the warrant is so lacking in indicia of probable cause as to render belief in its existence unreasonable. Craig, 861 F.2d at 821.
The record here shows a substantial basis for the conclusion that the officials acted in good faith in relying on the warrant. The warrant was issued on December 2, 1989, on the basis of an affidavit by DEA agent Lonnie Watson. Watson stated in the affidavit that he had been informed by Dodd’s co-conspirator Payne that Dodd had supplied Payne with “multi-pound quantities” of amphetamine during 1986 and 1987. Watson also stated in his affidavit that Storey, another of Dodd’s co-conspirators, had informed him that Storey and Dodd produced five pounds of amphetamine per week from March, 1987 until June of 1988, at Dodd’s property. Storey also informed Watson that Dodd had constructed an underground cave on Dodd’s property for producing amphetamine and that Dodd and Storey had discarded numerous pieces of broken laboratory glassware and chemical containers at a dumpsite on Dodd’s property. Watson stated further in the affidavit that, as late as September 28, 1989, a narcotics officer informed Watson that he had searched a trailer registered to Dodd and had found drug manufacturing paraphernalia in the trailer. Watson, an agent for the DEA of fourteen years’ experience, stated that residue of amphetamine and precursor chemicals do not deteriorate even if buried or submerged in water over a period of years.
In short, there was evidence in the affidavit that Dodd’s property had been continuously used for the production of amphetamine from March, 1988 until September 1989, four months before the warrant was issued. The affidavit indicated a longstanding pattern of illegal activity that produced physical remnants such as chemicals, broken glass, and an underground lab; these remnants were likely to persist even after the events described by Watson’s informants had ended. These circumstances indicate that Watson’s belief in the validity of the warrant was objective and reasonable, despite the gap in time between the occurrence of the events in the affidavit and the issuance of the warrant. United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984) (where information in affidavit alleges long-standing, ongoing criminal act, officer’s reliance on warrant issued on basis of affidavit is good-faith reliance); Craig, 861 F.2d at 822 (where evidence sought under warrant is likely to persist, interval between facts described in affidavit and issuance of warrant is not fatal to finding of good faith reliance on warrant by officer). Resolving as we must all issues of credibility in favor of the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we find that there was a substantial basis in the record for the conclusion that the officers acted in good faith in relying on the warrant. We therefore affirm the trial court’s rejection of Dodd’s motion to suppress the fruits of the DEA officers’ search.
IV.
Nichols raises two new points on appeal. First, he argues that there is insufficient evidence to support his conviction for conspiracy. We reject this argument. Second, Nichols argues that the trial court, in sentencing Nichols, erred in attributing to him possession of the entire amount of amphetamine distributed by the conspiracy. We hold that this contention has merit; we therefore vacate Nichols’ sentence and remand his case to the trial court for re-sentencing.
A. Sufficiency of Evidence
Nichols argues that the trial court erred in rejecting his motion for a judgment of acquittal. Nichols did not renew his motion after introducing evidence in his defense. Nichols also rested and closed without renewing his motion after the government rested and closed. When a defendant does not renew a motion for acquittal at the conclusion of all the evidence, appellate review is limited to ascertaining whether there was a “manifest miscarriage of justice.” Fed.R.Crim.P. 29(a); United States v. Osgood, 794 F.2d 1087, 1093 (5th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). If a reasonable trier of fact could have found that Nichols conspired to distribute and produce amphetamines, then we must affirm the trial court’s rejection of Nichols’ motion for acquittal. United States v. Freeze, 707 F.2d 132, 135 (5th Cir.1983).
We cannot say there was no reasonable basis for the jury’s decision in this case. The government had to establish that Nichols knowingly and voluntarily joined in an agreement to commit a crime and that he committed an overt act. United States v. Ortiz-Loya, 777 F.2d 973, 981 (5th Cir.1985). Nichols does not dispute that Payne was the “hub” of a conspiracy. He argues that he did not knowingly join that conspiracy. At trial, however, there was testimony that Nichols usually purchased amphetamine from Ratheal whenever Ratheal purchased the drug from Payne. There was also testimony that Nichols re-sold the drug, that Nichols assisted the Ratheals in transporting the drug, and that Nichols knew that Payne was the Ratheals’ supplier. This testimony, if believed, would be sufficient to establish that Nichols was a “link” in the distribution chain of the Payne conspiracy. From Nichols’ knowledge that Payne was the Ratheals’ supplier, a jury could infer that Nichols knew of the conspiracy. A jury could also infer from Nichols’ purchase and resale of amphetamine that he voluntarily participated in and profited from the conspiracy to distribute amphetamine. United States v. Gonzales, 866 F.2d 781, 787 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d 994 (1989). We therefore affirm the trial court’s rejection of Nichols’ motion for acquittal.
B. Attribution of Quantity of Drugs under Sentencing Guidelines
Initially, Nichols’ pre-sentence report stated that Nichols possessed two pounds of amphetamine with the intent to distribute. The government objected to the pre-sentence report, and an amended report was filed, crediting Nichols with possession of over 390 pounds of amphetamine, the entire amount of the drug attributed to the conspiracy. The trial court gave no reason for attributing to Nichols amphetamine possessed by other members of the conspiracy other than the fact that Nichols was a co-conspirator.
The sentencing guideline pertaining to conspiracy, § 2D1.4, comment 1, allows conspirators to be sentenced “on the basis of the defendant’s conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable.” USSG, § 2D1.4 Comment (emphasis added). In order to attribute to a particular defendant amounts of a controlled substance that was the subject of a conspiracy, the sentencing court must determine the quantity of controlled substance that the defendant knew or should reasonably have foreseen the conspiracy would have involved.
The reasonable foreseeability required of § 2D 1.4 requires a finding separate from a finding that the defendant was a conspirator. United States v. Warters, 885 F.2d 1266, 1273 (5th Cir.1989). In Warters, this court vacated the sentence for misprision of conspiracy to traffic in marijuana for express findings of the amount of marijuana attributable to the defendant. Warters, 885 F.2d at 1272. This court noted that the entire amount of marijuana involved in the conspiracy was not automatically attributable to the defendant. Rather, the trial court would “need to expressly determine not only the actual amount involved in the entire conspiracy ... but also the amount ... which the defendant knew or should have known or foreseen was involved.” Id. at 1273.
The district court here should have expressly found the quantity of amphetamine that Nichols ought reasonably to have foreseen was involved in the conspiracy. It does not necessarily follow from the fact that Nichols was convicted of conspiracy that he could have reasonably foreseen the total quantity involved in the conspiracy: the acts of co-conspirators may be unforeseeable. See Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946). Reasonable foreseeability is mentioned in the comment to § 2D1.4 as an addition to an act's being in furtherance of a conspiracy. The government’s argument that reasonable foreseeability follows automatically from membership in a conspiracy leaves the second clause of the comment without meaning.
We express no opinion regarding the evidence of the quantity Nichols could have reasonably foreseen that the conspiracy would involve. We state only that proof of reasonable foreseeability does not follow automatically from proof that Nichols was a member of the conspiracy.
We AFFIRM in all respects except we VACATE Nichols’ sentence. We REMAND Nichols’ case only for additional fact finding and re-sentencing.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
THE JOSEPHINE. TEXAS CO. (SOUTH AMERICA), Limited, et al. v. CUMMINS et al.
No. 4408.
Circuit Court of Appeals, Third Circuit.
April 6, 1931.
Acker, Manning & Brown, of Philadelphia, Pa., and Bigham, Englar, Jones & Houston and Osear R. «Houston, all of New York City, for appellants.
Howard M. Long, of Philadelphia, Pa., and Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellees.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
WOOLLEY, Circuit Judge.
The Schooner “Josephine,” having sailed from Port Arthur, Texas, arrived at Pernambuco, Brazil, her port of destination, long overdue with her cargo damaged by water taken aboard during heavy weather. The Texas Company, the ostensible owner of the cargo and party to the charter, filed a libel in rem for damages. Although The Texas Company (South America) Limited, an affiliated corporation, .intervened as the real party injured, we shall, for convenience, speak of the cargo owner as the libellant.
The case was tried on an issue of law arising from the owner’s warranty of the schooner’s seaworthiness and on a corresponding issue of fact. The District Court, finding her seaworthy, entered a decree dismissing the libel. The libellant appealed.
Before coming to the facts we pausé to make certain the issue raised by the pleadings and briefly to examine the applicable law.
The cargo owner avers in its libel that in December 1917 it entered into a charter party whereby the shipowner agreed to let and the libellant agreed to hire the schooner for transportation of petroleum products on a voyage between the ports stated; that early in April 1918, the libellant put aboard the schooner, then lying at Port Arthur, Texas, the agreed cargo in good order and condition; that on April 13 she sailed and after a voyage of four months reached her port of destination and delivered the cargo not in the good order and condition in which it was shipped but damaged through negligence of the schooner in respect to loading, stowage, custody and care, and through her unseaworthiness. As the issue raised by the libellant’s averment of negligence in loading, stowage, etc. was not separately pressed at the trial, the pertinent part of the schooner’s answer may be limited to the owner’s traverse of the libellant’s averment of her unseaworthiness and to his reply that he had used due diligence and ordinary care to make the schooner seaworthy in all respects and that at the time of sailing she was seaworthy and was properly manned, equipped and supplied for the voyage, and that any damage sustained by the cargo was not caused or contributed to by any fault on his part but was occasioned by perils of the sea which were excepted in the charter party and bill of lading.
Thus it is clear from the pleadings that the libellant relies for its law upon the owner’s express warranty in the charter party as to seaworthiness, namely, that the schooner was “tight, staunch, strong, and in every way fitted for the voyage.” The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 825, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Lockport (D. C.) 197 F. 213. The owner however pleads the Harter Act (27 Stat. 445 [46 USCA §§ 190-195]) which makes no change in his duty under the warranty to furnish a seaworthy vessel, The Carib Prince, 170 U. S. 655, 18 S. Ct. 753, 42 L. Ed. 1181; The Cornelia (D. C.) 15 F.(2d) 245, but does modify liability to the extent that if he used diligence to see that the vessel was seaworthy he and his vessel are exempt from liability for loss arising from various causes — among them perils Of the sea. The Fort Gaines (D. C.) 21 F.(2d) 865; Id. (D. C.) 24 F.(2d) 849, affirmed Federal Forwarding Co. v. Lanasa (C. C. A.) 32 F.(2d) 154; The Agwimoon (D. C.) 24 F.(2d) 864; affirmed Atlantic Gulf & West Indies S. S. Lines v. Interocean Oil Co. (C. C. A.) 31 F.(2d) 1006, distinguished. The distinction between due diligence imposed upon an owner by the Harter Act and his relief from liability on the one hand and the owner’s duty and liability under his general warranty of seaworthiness on the other hand need not be discussed in this case because the evi denee bears equally upon the question of due diligence and the question of seaworthiness. And so evidently thought the proctors for the opposing parties, for both looked upon the schooner’s seaworthiness as the center of the ease and each voluntarily, and at once, assumed the burden of proving the opposite of the issue, respectively. This, however, does not relieve the respondent owner of his burden of proving the seaworthiness of his schooner, or of proving the exercise of due diligence in making her seaworthy as a prerequisite to availing himself of the liberality of the Harter Act, by showing that damage to the cargo arose from one of the exceptions in the charter party, The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, which, as pleaded in this ease, is perils of the sea. The Cornelia, supra. Therefore the first question, (and, it may be, the only one), is that of the schooner’s seaworthiness under the warranty. In considering this question we shall follow the voyage through the evidence in order to determine the schooner’s condition at the start and her condition at sea in view of the perils she encountered.
As a warranty of seaworthiness must be construed as requiring the vessel to be seaworthy when she sails, Federal Forwarding Co. v. Lanasa (The Fort Gaines) 32 F.(2d) 154 (C. C. A.); Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170,1 A. L. R. 1522, the first question of fact bears on the condition of the schooner when she put to sea.
The “Josephine” was a wooden craft of about 940 gross tons, originally built with barkentine rigging but later changed to a four mast schooner. She was launched in 1896. Advancing in age, she was in 1916 stiffened by placing heavy top sister keelsons along her entire length and heavy tumbuckle rods athwartship. Nevertheless she was in 1917 hogged to the extent of fourteen inches.
From December 1915 to March 1918, a period of twenty-eight months, the “Josephine” was repaired four times at a cost of $17,500, of which $1,742 was expended upon her late in 1917. These facts and figures were used by the libellant as proof of the schooner’s bad condition and were relied upon by the owner as evidence of her good condition and of his diligence in making and keeping her seaworthy. To fortify its interpretation of these figures the libellant produced two witnesses who had surveyed the schooner in-1919 — nine months after she had sailed from Texas on the voyage in question and two months after she, had grounded on a later voyage. They testified that the condition of her hull was bad and gave their opinion that judging from what they saw when they examined her in January 1919 she must have "been, unseaworthy when she sailed on the voyage in April 1918. Against this opinion evidence by relation back to the critical time of departure there was direct evidence for the owner which showed that the schooner was under repairs at Mobile late in 1917 and after their completion she was reelassed by-the American Bureau of Shipping as A 1% for a six year period, the highest class for a schooner of her age; and there was testimony by the surveyor for the bureau that he examined the sehooner in the doek at Mobile and made a report on March 29,1918, specific as to details, and concluding: “Ship in good condition, this has been endorsed on her Class Certificate.” He also testified that at the time of his certificate she was seaworthy and in condition to take the cargo on the chartered voyage. Two weeks later she sailed.
True, the schooner was old, but age alone is not evidence of unseaworthiness. A wooden ship may be old and still be fit.
Finding the sehooner seaworthy at the inception of the voyage, the next question is, did she afterward become unseaworthy at a time and under circumstances which rendered the owner by due diligence capable of reconditioning her?
Sailing from Port Arthur, Texas, on April 13 the schooner’s troubles began the very next day when, encountering high winds in the Gulf of Mexico, she began to. lose her sails. The winds increased to hurricane force until by April 19 she had been practically stripped of her sails. She then put about and staggered back to the coast, arriving at Galveston on April 23, where she laid by awaiting new sails. There is no evidence that in this experience the hull of the sehooner had become unseaworthy. Indeed, no one seems to have thought anything about it; at least there is no evidence that she leaked during the gulf storm, or that loose planking or loose caulking was discovered after her return to port or that, except her sails, any repairs were needed or made, or that her cargo had been damaged. So, we find that when starting on her voyage a second time she was seaworthy.
Having received her sails, the sehooner made her second start on May 15 and proceeded through the Gulf without incident. But on June 21, when in the Atlantic Ocean, she encountered another storm rising to the force of a gale or hurricane. Again the schooner lost her sails. During seven days of pounding, she shipped much water, her deck seams and butts opened and let water into the hold, the steam pump refused to work for a time and the hand pumps did not keep the water from "the cargo, with the result that it suffered the damage of which the libellant complains.
Having found from the evidence that the schooner was seaworthy when first she sailed and, from the same evidence confirmed by the fact that she weathered the gulf storm without known strain, that she was staunch and strong when next she put to sea, it is evident the behavior of her hull in the ocean storm arose from something which occurred after she was well on her voyage. There is no evidence that anything had happened before the storm which contributed to the damage to the ship and her cargo. It follows that it must have been the storm to which the hull yielded. Was, therefore, the storm a “peril of the sea” within the exception of the charter party? This is always a troublesome question because a peril of the sea is not susceptible of a satisfactory, or comprehensive, definition. A storm may or may not be such a peril. The test, however, seems to be — at least it is the one we shall apply in this instance — that when a storm is of Such unusual violence that it cannot reasonably be anticipated and avoided or cannot be resisted by ordinary exertions of skill and prudence and when it has caused unusual and unexpected damage to the hull of a seaworthy vessel resulting in damage to her cargo, the loss may fairly be attributed to a peril of the sea and falls within the exception of the charter party. The Warren Adams (C. C. A.) 74 F. 413; Id., 163 U. S. 679, 16 S. Ct. 1199, 41 L. Ed. 316; The Frey (C. C. A.) 106 F. 319; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546,15 Ann. Cas. 748; The Newport News (D. C.) 199 F. 968; 24 R. C. L. 1314. And such we are constrained to hold was the case in this marine disaster.
But the owner’s warranty of seaworthiness extends to the ship’s equipment and the owner’s duty to make her seaworthy also extends to her equipment. This rule, clearly recognized by the parties, appears in the averments of both the libel and answer. Of her- equipment that did not withstand the ocean storm were her sails. As most of these were new when she encountered that storm we imagine the libellant does not hopefully charge unseaworthiness or negligence in respect to them. It does, however, very earnestly charge unseaworthiness in respeet to the steam pump, a vital part of a ship’s equipment, saying that, “At no time on the voyage could the steam pump be made to' work.”
So, as in case of the hull, we must examine the pump at the inception of the voyage and at the time of the storm.
There is no evidence as to the condition of the steam pump on April 13 when the schooner first put to sea other than the favorable inference from the survey and classification made by the American Bureau of Shipping immediately before and testimony as to her seaworthiness in general. Entries in the ship’s log on four days before and during the gulf storm show “Lights and pumps attended to.” There are no entries or other evidence that the steam pump would not work during the gulf storm or after the schooner returned to port. It is fair to assume that on her second start the pump was in the condition the log seems to have recorded.
On the first day of the ocean storm the log shows: “Steam pump broke down.” It also discloses that on June 22, 23, 24, 27, 28 and 29 the crew worked the hand pumps. The log does not reveal when, if ever, the steam pump was repaired. In the master’s protest, however, there is an entry: “Steam pump failed to work and vessel’s pumps were worked by hand until repairs were made on steam pump.” This contradicts to some extent the libellant’s statement that “At no time on the voyage could the steam pump be made to work.” That statement is also contradicted by the cook who testified that the steam pump “choked and they cleared it.”
“Q. How long did it take to clear it? A. Didn’t take long, about an hour or two, and it was dear.
“Q. Then did your steam pump operate on the voyage after that? A. Yes, sir; our steam pump operates all times. It would be ninety days, God knows where we would have been if the pump wasn’t going.”
Yet, truly, her steam pump did not work for a time. This was because of a defect in equipment which so far as the record shows was not there before the storm. What caused it ? In the absence of evidence indicating any other probable cause we must hold it was the storm. Being violent enough to rip the sails and damage the hull we are constrained to hold that it was, equally in respect to the pump, a peril of the sea within the exception of the charter party.
The decree of the court dismissing the libel is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Leon H. WHITE, Appellee, v. Warren M. BLOOMBERG, Postmaster, United States Post Office Department to be known as The United States Postal Service, et al., Appellants.
No. 73-1960.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1974.
Decided July 18, 1974.
Jean A. Staudt, Atty., U. S. Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., George Beall, U. S. Atty., Kathryn H. Baldwin, Atty., U. S. Dept, of Justice, on brief), for appellants.
Kenneth A. Reich, Baltimore, Md. (Robert M. Bell, Garber A. Davidson, Jr., David F. Tufaro and Piper & Mar-bury, Baltimore, Md., on brief) for ap-pellee.
Before WINTER, CRAVEN and WIDENER, Circuit Judges.
CRAVEN, Circuit Judge:
This suit by a wrongfully discharged postal employee raises an ancillary question of procedure under the Back Pay Act of 1966, 5 U.S.C. § 5596. Four months after the district court awarded plaintiff a summary judgment for reinstatement and back pay, the Postal Service attempted to raise an issue of failure to mitigate damages, contending that the period of entitlement to back pay should be reduced because plaintiff had not made reasonable efforts to obtain substitute employment. The district judge refused to reopen the judgment and added post-judgment interest to the amounts due plaintiff. The Postal Service appealed from both rulings. We affirm.
The Baltimore Post Office discharged Leon White on October 30, 1970, for failing to pay a debt claimed by the postal employees’ credit union. After exhausting his administrative remedies, White filed this suit for reinstatement and back pay in the district court. On June 23, 1972, the district court granted plaintiff’s motion for summary judgment. White v. Bloomberg, 345 F.Supp. 133 (D.Md.1972). The court’s opinion was accompanied by an order in these words:
The defendant United States Postal Service shall without delay reinstate plaintiff and pay to him back pay from the date of his discharge, namely, October 30, 1970, to the date of his reinstatement in accordance with the opinion of this Court filed this 23rd day of June, 1972.
The Postal Service reinstated White six days later, and the parties began discussions over the exact amount he would receive under the Back Pay Act. Some time in October 1972 the Postal Service first informed White’s counsel that the back pay award would include only the period from October 30, 1970, the date of discharge, to August 5, 1971, the date of the final administrative action, because White had not actively sought substitute employment after his administrative appeal failed. At plaintiff’s request the district judge met with counsel and took the problem under advisement. On May 4, 1973, he entered the order from which this appeal was taken. White v. Bloomberg, 360 F.Supp. 58 (D.Md.1973). Judge Kaufman held that his order of June 23, 1972, was a final money judgment that only lacked “simple mathematical calculations,” and that the Postal Service’s belated attempt to raise the mitigation issue must be regarded as a motion to reopen the judgment under Rule 60(b). He then refused to reopen the judgment, but also considered the merits, expressing the opinion that White had satisfied the Back Pay Act’s mitigation requirement by actively pressing his claim for reinstatement. We think he acted rightly but not for the assigned reasons. The district court also ruled on a second dispute that had surfaced after summary judgment was entered, holding that plaintiff was entitled to recover post-judgment interest on his back wages.
The Mitigation Issue
The Back Pay Act provides as follows:
(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period; and
(2) for all purposes, is deemed to have performed service for the agency during that period, except that the employee may not be credited, under this section, leave in an amount that would cause the amount of leave to his credit to exceed the maximum amount of the leave authorized for the employee by law or regulation.
Although the Act itself does not authorize deductions based on an employee’s failure to seek substitute employment, the Court of Claims has held that the common law rules of mitigation apply. Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Schwartz v. United States, 149 Ct.Cl. 145, 181 F.Supp. 408 (1960). Under this doctrine, the employer can reduce its back pay obligation by the amount the employee could have earned if he had made reasonable efforts to find another job. 11 S. Williston, Law of Contracts §§ 1358-59 (Jaeger ed. 1968); NLRB v. Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955). In this case neither White nor the defendants raised the issue of mitigation prior to the entry of summary judgment, and each now argues that the other bore the burden of proof with respect to this issue. Because defendants did not appeal the initial back pay award, however, they may not now assert plaintiff’s failure of proof on this issue as a bar to recovery. And, though mitigation is ordinarily considered an affirmative defense that must be pleaded and proved by the employer, e. g., Florence Printing Co. v. NLRB, 376 F.2d 216 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967); Williston, supra, § 1360; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1273 (1969), we rest our decision on other grounds.
Defendants contend that judicial proceedings for reinstatement and back pay under the Act must be bifurcated, and that the judgment of June 23 ordering reinstatement and back pay was valid as to the former and void as to the latter. At the very least, they insist that the back pay order may be valid but empty of significant effect because subject to being reduced, or even wiped out, by application of the law of mitigation. They say that following a judicial reinstatement order, the initial computation of back pay must be made by an agency, subject to limited judicial review if the employee is dissatisfied with the administrative award. Taking this view of procedure under the Act, defendants urge us to hold that the judgment requiring the Postal Service to pay back pay to plaintiff did not destroy the right to insist on mitigation and thus to deny back pay for eleven of the twenty months that White was out of work. On such a theory an order allowing back pay means little or nothing: it is simply background against which the parties then begin to litigate the mitigation issue.
Defendants did not present this procedural argument to the district judge prior to the entry of summary judgment. White’s complaint clearly raised the issue of back pay. Both parties moved for summary judgment, but neither sought to limit the court’s decision to the issue of liability or suggested that there was a genuine issue on damages that would justify a partial summary judgment under Fed.R.Civ.P. 56(c). The defendants’ only reference to the issue of back pay was a brief paragraph in the memorandum supporting their motion for summary judgment. It contended that the United States is an indispensable party in an action for back pay and that the district court therefore lacked jurisdiction to award back pay against the Postal Service. Plaintiff’s memorandum responded to this point by suggesting that if the court lacked jurisdiction to award back pay, it could order reinstatement without mentioning back pay or the Back Pay Act. Defendants neither pursued this alternative nor suggested that the court should confine its decree to reinstatement for any other reason. When the district judge entered summary judgment for White and ordered the Postal Service to reinstate him with back pay, the defendants missed another opportunity to salvage the mitigation issue for administrative determination. Instead of filing a motion to have the judgment amended under Rule 59(e), defendants filed a notice of appeal from the entire judgment and asked for a stay of the back pay order pending appeal. Nor did they seek to have the judgment reopened under Rule 60(b) when they discovered that plaintiff’s counsel viewed the summary judgment as an actual award of back pay, as indeed, it purports to be. Because the parties had proceeded under different assumptions about the scope of the judicial proceeding, defendants might have been entitled to relief on the grounds of mistake, inadvertence, or excusable neglect under Rule 60(b)(1), but they have never asked for a chance to litigate the mitigation issue in the district court. Indeed, they have not suggested that we should remand the ease for this purpose.
Despite their failure to ask the district court to reserve the question of failure to mitigate on the amount of back pay and to limit the summary judgment to a theoretical determination of entitlement to back pay, or even to reinstatement only, defendants contend that the judgment must be so limited because the district court lacked power to make a specific award under the Back Pay Act. Defendants abandoned their contention that the district court lacked jurisdiction to award back pay by choosing not to appeal the summary judgment, which resolved that issue in plaintiff’s favor. Now they base their contentions solely on the language of the Act and the Civil Service Commission’s regulations. Paragraph (b)(1) of the Act provides that an employee is entitled to receive back pay “upon correction of the [unjustified] personnel action,” and 5 C.F.R. § 550.804(a) provides that “[w]hen an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recompute” the amount of back pay due. Around this language defendants have built a procedural structure that echoes the doctrine of primary jurisdiction. First they insist that the issue of back pay cannot be resolved until after an agency or court has decided that the employee was improperly discharged. In this regard back pay claims are no different from other civil suits; a decision on entitlement always precedes calculation of damages, but the two issues may still be resolved in the same proceeding. Defendants also contend that it is impractical to calculate back pay in the main proceeding because back pay continues to accrue until the date of actual reinstatement. This factor is not unique to back pay actions; it may figure in any action that seeks both injunction and damages. Finally, defendants interpret the regulations to require that all claims for back pay be decided initially by an agency. Although it may be argued that paragraph (c) of the Act authorizes the Civil Service Commission to adopt a procedure for exclusive administrative computation of back pay following a judicial order for reinstatement, the present regulations have not done so. Neither the Act nor the regulations prescribe the procedure to be followed by the district courts.
Because the Act and the regulations are silent on this point, we decline to impose a bifurcated procedure on the district courts. The district judges are better situated than we to choose the optimum procedure for a given case. In many cases the court may be able to compute back pay at the time it orders reinstatement. If a particular case presents a complex dispute over computation, the district court has discretionary power to bifurcate the proceedings under Rule 42(b) or Rule 56(c). Indeed, the district court might have done so here had it been asked. Or the district judge may prefer to have the employee and the agency seek agreement on the computation of back pay. If so, he may follow a procedure that has been employed in other Back Pay Act cases, ordering reinstatement and retaining jurisdiction over the back pay issue in case the parties cannot reach an administrative settlement. See Floyd v. Resor, 409 F.2d 714 (5th Cir. 1969); Massman v. Secretary of HUD, 332 F.Supp. 894 (D.D.C.1971). We hold that the district courts are free to tailor an appropriate procedure to fit the facts and the pleadings and to select what seems best for a given case. We decline to adopt a mandatory bifurcation rule, and especially so where bifurcation is suggested for the first time four months after final judgment.
Post-Judgment Interest
The Postal Service contends that as a government agency it is immune from an award of post-judgment interest. It is well established that under the doctrine of sovereign immunity, the government may not be required to pay interest on its debts without consent. E. g., United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1951). But it is equally well established that Congress waives sovereign immunity when it authorizes a governmental agency to sue and be sued in its own name. RFC v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941); FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Under the terms of 39 U.S.C. § 401(1), the Postal Service has the power “to sue and be sued in its official name.” The issue we must decide is whether this waiver of immunity subjects the Postal Service to interest on its judgment debts.
In RFC v. J. G. Menihan Corp., supra, the Supreme Court wrote that “the words ‘sue and be sued’ normally include the natural and appropriate incidents of legal proceedings.” 312 U.S. at 85, 61 S.Ct. at 487. Relying on such a grant of authority, it held that the Reconstruction Finance Corporation could be ordered to pay its adversary’s costs in trademark litigation. In FHA v. Burr, supra, the Court held that limits on the authority to sue and be sued should not be presumed. Because post-judgment interest is a normal incident of suits for damages, 28 U.S.C. § 1961, the principle of these cases suggests that a “sue and be sued” clause ordinarily should be construed to waive the agency’s immunity from interest awards. See Asheville Mica Co. v. Commodity Credit Corp., 239 F.Supp. 383, 392-394 (S.D.N.Y.1965), aff’d, 360 F.2d 931 (2d Cir. 1966). The Postal Service contends, however, that Menihan and Burr apply only to governmental corporations, and that because the Postal Service is unincorporated the “sue and be sued” clause cannot be given the same effect. We disagree. A grant of authority to sue and be sued constitutes at least a partial waiver of immunity regardless of the structure or functions of the agency. The question in any such case is the scope of that waiver. In FHA v. Burr the Court outlined the following principles for discerning congressional intent:
[I]f the general authority to “sue and be sued” is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued” clause in a narrow sense.
309 U.S. at 245, 60 S.Ct. at 490 (footnote omitted).
The Postal Reorganization Act contains no indication that the “sue and be sued” provision should not be read to authorize an award of interest against the Postal Service. The waiver of immunity is restricted by 39 U.S.C. § 409(b), which gives the Postal Service the benefit of certain procedures that are applicable to suits against the United States and its officers, and section 409(c), which makes the Federal Tort Claims Act applicable to the Postal Service. The Act contains no other limits on the Postal Service’s amenability to suit. Nor under the guidelines of FHA v. Burr is there any suggestion that vulnerability to post-judgment interest will interfere with the Postal Service’s mission. We therefore presume that in creating the Postal Service, Congress used the phrase “sue and be sued” in its normal sense, subjecting the Postal Service to post-j.udgment interest.
Affirmed.
. White filed his initial complaint while he was still engaged in the administrative process, but the district court denied his motions for temporary reinstatement. The present case is based on an amended complaint filed after the last administrative appeal failed.
. We note at the outset that the Back Pay Act is no longer statutorily applicable to the Postal Service. The Back Pay Act applies to “executive agencies” (as defined in 5 U. S.O. § 105) and other specified organiza tions. 5 U.S.C. § 5596(a). The Postal Reorganization Act amended 5 U.S.C. § 101, 104 to exclude the Postal Service from the scope of § 105. Pub.L. No. 91-375, § 6(c), 84 Stat. 775. See also 39 U.S.C. § 410(a), (b)(1). The plaintiff in this case was discharged by the old Post Office Department, which was covered by the Back Pay Act, and the Postal Service has assumed its predecessor’s back pay obligations to employees discharged after July 1, 1970. 345 F.Supp. 142-143.
. The Postal Service contends that it could have refused back pay for the entire period under the Postal Service handbook’s interpretation of implementing regulations under the Back Pay Act. A Civil Service regulation, 5 C.F.R. § 550.804(f) (1973), provides that an agency should make no deductions for failure to seek substitute employment if the employee is reinstated within a year. The reason for the rule is the idea that a wrongfully discharged employee cannot reasonably be expected to seek other employment immediately but is instead justified in spending his time in administrative protest and attempting to obtain reinstatement. The Postal Service handbook follows this rule but provides that if the employee is reinstated after the year expires, he may be denied back pay for the entire period. Both regulations are reproduced in the opinion below. White v. Bloomberg, 360 F.Supp. 58, 61 (D.Md.1973). In this case, the Postal Service has interpreted § 550.804(f) to exempt not a calendar year but the period of time required for administrative appeal. Although the effect of this interpretation is to give White only a nine-month grace period, defendants insist that this treatment is generous because White could be denied the entire amount. We need not decide in this case whether the Postal Service’s rule is valid but we note that it may be inconsistent with the governing Civil Service regulations.
. Defendants initially filed a notice of appeal from the summary judgment and asked the district court for a stay of the back pay award pending appeal, but later dismissed the appeal by stipulation.
. In a series of letters between Judge Kaufman and counsel for both sides, defendants took the position that the administrative process had already been completed, that no administrative hearing was available to White, and that in reviewing the Postal Service’s decision the district court would be limited to a consideration of whether it was arbitrary, capricious, or an abuse of discretion, or made without observance of required procedure or in excess of statutory authority. Letter from Jean G. Rogers, Assistant U. S. Attorney, to Judge Kaufman, Dec. 4, 1972, Record at 316.
. Answering defendants’ contention that the United States is an indispensable party in an action against the Postal Service for back pay, and resolving a further question of whether White’s claim had to be asserted in the Court of Claims because it exceeded $10,000, Judge Kaufman held that the Postal Service is sufficiently independent so that a suit against it does not constitute a suit against the United States. 345 F.Supp. at 142-143. We agree that a suit may be maintained against the Postal Service without joining the United States as a party, and that the district courts have jurisdiction over suits against the Postal Service for amounts over $10,000. The Postal Reorganization Act gave jurisdiction to the district courts in “all actions brought by or against the Postal Service,” 39 U.S.C. § 409(a), and authorized the Postal Service “to sue and be sued in its official name.” Id. § 401(1). Moreover, in listing the provisions of Title 28 that apply to the Postal Service, 39 U.S. C. § 409 does not include sections 1491-1506, which give the Court of Claims jurisdiction over suits against the United States. Consequently, while employees of most federal agencies must resort to the Court of Claims to recover back pay in amounts of over $10,000, see 28 U.S.C. § 1346(a) (2) ; S.Rep.No.1390, 88th Cong., 2d Sess. (1964) (reporting Pub.L.No. 88-519, 78 Stat. 699, which amended 28 U.S.C. § 1346(d)), the district courts have jurisdiction over all back pay claims of Postal Service employees under 39 U.S.C. § 409(a).
. The Supreme Court has defined the doctrine of primary jurisdiction as follows :
The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. . . . “Primary jurisdiction” . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). See also 3 K. Davis, Administrative Law Treatise §§ 19.01-.09 (1958, Supp. 1970). Defendants have not explicitly invoked the doctrine of primary jurisdiction in this case. Instead of urging us to employ this doctrine to require resort to administrative agencies in computing back pay, defendants have simply argued that the existing regulations mandate such a procedure.
. (c) The Civil Service Commission shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee Valley Authority and its employees.
5 U.S.C. § 5596(c).
. The regulations implementing the Back Pay Act appear at 5 C.F.R. §§ 550.801-.804 (1973). The language most favorable to defendants’ procedural arguments is in § 550.-804(a) :
When an appropriate authority [defined in § 550.803(c) as either an agency or a court] corrects an unjustified or unwarranted personnel action, the agency shall recompttie for the period covered by the corrective action the pay, allowances, differentials, and leave account ... of the employee as if the unjustified or unwarranted personnel action had not occurred ....
5 C.F.R. § 550.804(a) [emphasis added]. Certainly the regulation contemplates that back pay will ordinarily be computed by an agency, and indeed, that may be the usual practice. But the focus of the regulation is on the substance of the computation rather than the procedure to be followed. The remainder of § 550.804 specifies what pay allowances are to be included in the back pay award. It contains no mention of the provisions one would expect in a procedural regulation, e. g., the time period permitted for computation, who shall make the decision, whether a hearing shall be allowed or written evidence received. We think the Civil Service Commission in promulgating this regulation liad no thought of ousting the district courts of jurisdiction to award back pay in reinstatement cases. We need not consider whether it has the power to do so.
. The Court of Claims employs a similar procedure under its rule 131(c). See Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Motto v. United States, 172 Ct.Cl. 162, 360 F.2d 643 (1966).
. See also Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408 (1935).
. Specifically, these are “the provisions of title 28 relating to service of process, venue, and limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, and the rules of procedure adopted under title 28 for suits in which the United States, its officers, or employees are parties . ...” 39 U.S.O. § 409(b). Presumably this latter clause refers to chapter 161 of title 28, sections 2401 through 2416.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
William F. HIGGINS, Jr., Appellant, v. Clarence M. KELLEY, Director, Federal Bureau of Investigation and Federal Bureau of Investigation, an Agency of the United States.
No. 77-1314.
United States Court of Appeals, Third Circuit.
Argued Jan. 6, 1978.
Decided April 3, 1978.
Arthur Uscher, Kenneth L. Abrams, Friedman, Kates, Uscher ' & Pearlman, Rutherford, N. J., for appellant.
Jonathan L. Goldstein, U. S. Atty., Elizabeth T. Barlow, Asst. U. S. Atty., Newark, N. J., for appellee.
Before ROSENN and HIGGINBOTHAM, Circuit Judges, and VAN ARTSDALEN, District Judge.
Donald W. Van Artsdalen, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
Generally, no one would question the right of any employer, particularly a public agency supported by taxpayer funds, to discharge an incompetent or inefficient employee. From time to time, however, employees of governmental agencies have elevated their voices in expressions of disapproval of inefficiencies, inadequacies and wastefulness in their employer’s operations. In today’s journalistic parlance, such employees have been objectively described from time to time as “whistle blowers.” Administrative agencies, on the other hand, often regard them with impatience and exasperation and the tensions produced sometimes generate important questions in personnel relationships and procedural due process. This appeal presents the accountability of a bureaucratic governmental agency in dismissing an employee who professes to challenge the agency’s dictates out of a sense of dedication to his service.
Plaintiff-appellant William F. Higgins, Jr., (“Higgins”) was hired by the Federal Bureau of Investigation (“FBI”) as a special agent in November 1970. On October 1, 1973, the FBI dismissed him. Higgins appealed his dismissal to the New York Region of the Civil Service Commission and the Board of Appeals and Review, both of which upheld the dismissal. Higgins twice requested the FBI to reconsider his dismissal on the basis of newly discovered evidence and requested the Civil Service Commission Board of Review to reopen the case, but each of the requests was denied.
On December 23, 1975, plaintiff filed a complaint in the United States District Court for the District of New Jersey seeking reinstatement and back pay alleging that the decision of the Civil Service Commission was not supported by substantial evidence and that the FBI and the Civil Service Commission acted capriciously and arbitrarily by refusing to reconsider his dismissal on the basis of newly discovered evidence. The defendant FBI moved for summary judgment. The motion was denied and the district court directed defendant to respond to plaintiff’s request for production of documents. The defendant then moved for reconsideration of the order. The district court stayed discovery and directed the parties to brief the significance and effect of Twiggs v. United States Small Business Administration, 541 F.2d 150 (3d Cir. 1976), decided shortly after the initial order. On the basis of those briefs, the district court granted defendant’s motion for summary judgment. After plaintiff’s subsequent motion for reconsideration was denied, this appeal followed. We reverse and remand for proceedings consistent with this opinion.
I.
A little more than a year before his dismissal, Higgins was assigned to investigate certain activities of one Lloyd Sahley. Twelve days later, Higgins’ superior instructed him to discontinue the investigation and to destroy his accumulated materials. One month later, July 1972, Higgins sustained a serious concussion at the home of a fellow FBI agent. Asserting no recollection of the circumstances of his injury, Higgins requested an FBI investigation of both his injury and the reasons behind the shelving of the Sahley investigation. Higgins was informed that, as to the injury, he had become unruly at the agent’s home and had to be physically restrained, and, as to the investigation, it was terminated because there was no evidence of illegal activities within FBI jurisdiction.
Unsatisfied with those responses, Higgins persisted in his demand for a full FBI investigation. Finally, in January 1973, he received a letter from then Acting Director of the FBI, L. Patrick Gray, advising him that he had been placed on probation as a result of the July 1972 altercation. At the same time, his superiors warned him that any further investigation into the Sahley matter would be considered insubordination. He was then transferred from the Cleveland, Ohio, office to the Newark, New Jersey, office, where he was ordered not to carry a firearm. Plaintiff alleges that for the next six months he was subjected to continual harassment by his supervisor because he had gained a reputation as a troublemaker.
On August 3,1973, Higgins stopped at his house (to ask his wife to tape Patrick Gray’s televised Watergate testimony in hopes of learning something about his aborted investigation) without permission during working hours in contravention of FBI rules. When Higgins’ supervisor discovered the infraction, an exchange of memoranda between Higgins and his supervisor ensued, resulting in Higgins being placed on administrative leave. On August 9, he was instructed to report the next day for a complete physical examination. Higgins’ attorney called the FBI supervisor to advise him that he would not allow his client to take an examination without knowing its scope and purpose. A week later, Higgins’ attorney met with the supervisor, who explained that the examination was for the purpose of determining Higgins’ fitness for duty. Plaintiff contends that the examination was never rescheduled.
By letter dated August 24, 1973, the FBI advised Higgins that he was suspended without pay and that his dismissal was under consideration. Higgins through his attorney requested access to applicable rules and regulations and items from his personnel folder and file. His attorney found that the file he examined was incomplete: documents were removed and some that remained had been excised. Requests to see the complete file were denied.- On September 25, 1973, Higgins received a letter stating that he was dismissed effective October 1, 1973.
II.
The scope of review for an agency action is statutorily mandated by the Administrative Procedure Act, 5 U.S.C. § 706 (1970), which provides that the reviewing court shall:
(2) hold unlawful and set aside agency action, findings, and evidence found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
♦ * "fc * * *
(D) without observance of procedures required by law;
(E) unsupported by substantial evidence
* * * * * *
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party .
See Charlton v. United States, 412 F.2d 390, 395 (3d Cir. 1969).
In an effort to comply with this standard of review, the district court properly looked to this court’s then recently filed opinion in Twiggs v. United States Small Business Administration, supra. In that case a governmental agency employee filed an action to review the rejection of her contention that her voluntary lateral transfer between jobs was induced by the misrepresentations of her supervisor. The district court granted the defendant’s motion for summary judgment finding no arbitrary or capricious acts, that it was not an abuse of discretion, and that there was evidence to substantiate the action. This court reversed, identifying three grounds for reversal: First, the district court had before it an incomplete record and thus could not properly review the agency action; second, the district court improperly considered evidence not in the administrative record; third, the substantial evidence standard was improperly extended beyond the employee discharge context of Charlton v. United States, supra.
In his letter opinion of December 13, 1976, Judge Biunno focused primarily on the second ground for reversal in Twiggs, holding that his prior order allowing discovery to proceed was inconsistent with the rule laid down in Twiggs prohibiting the court from considering extrinsic evidence. He further found that there was substantial evidence in the record to support the agency’s action and that procedural requirements were satisfied: the evidence the plaintiff sought was irrelevant to the charges. We conclude that Judge Biunno’s initial order allowing discovery was proper, and the second order was erroneous for two reasons: First, he misapplied Twiggs to the instant case, and second, his determination of the relevancy of the requested documents was in error.
In Twiggs, we held improper the district court’s consideration of a deposition taken after the agency decision had already been rendered. In the instant case, plaintiff does not seek to introduce such post-decision evidence, but rather requests discovery of allegedly wrongfully excluded documents to complete the administrative record. There is no language in Twiggs indicating that material wrongfully excluded from administrative proceedings is to be barred from review as extrinsic evidence either by the appropriate agency on remand or the reviewing court. The applicability of Twiggs to the instant case lies in the first identified ground for reversal, our recognition of the importance of a complete record as a basis for district court review. Absent a complete record, the reviewing court is incapable of complying with the procedural requirements statutorily mandated by the Administrative Procedure Act. 5 U.S.C. § 706(2)(D) (1970).
The district court was well aware of the need of the administrative proceeding to observe these procedural requirements, and found them satisfied in this case:
[P]laintiff alleges that certain evidence and regulations were relied on at the administrative level and were not made available to him as required by 5 C.F.R. § 1752.202(a)(2) and (3), 772.305(b). It is therefore argued that the decision of the Civil Service Commission should be set aside as “being a hearing conducted in contravention of the applicable administrative regulations.” Barnes v. Chatterton, 515 F.2d 916 at 921 (3d Cir. 1975).
The court cannot agree and therefore finds that the procedural requirements have been satisfied. Plaintiff was supplied with copies of the regulations relied upon in support of the charges against him. The regulations and evidence sought by plaintiff go far afield of the charges and were not properly the subject of the inquiry below.
Higgins v. Kelley, No. 75-2218 (D.N.J. Dec. 13, 1976) (letter opinion).
We find it difficult to share the district court’s confidence that the requested material was irrelevant. Without seeing the documents plaintiff requested, there is little basis upon which to form a conclusion that there are no genuine issues of fact. It is undisputed that Higgins was denied access to his complete personnel folder, to FBI rules and regulations, and to certain internal memoranda covering his performance as a special agent. Furthermore, much of the material that he did receive had been substantially excised by the FBI. The plaintiff’s request for production of documents does not appear to us as a fishing expedition in a fanciful hope of hooking a cause of action, but a good faith attempt to prepare a challenge to his dismissal.
The defendant FBI has repeatedly urged, and the district court agreed, that Higgins has not shown how the documents he sought were relevant to his dismissal. Without discovery, however, it is impossible for the agency to determine whether the dismissal did stem from Higgins’ activities in the Cleveland FBI office, as he alleges, or whether the dismissal was a consequence solely of his misconduct in Newark, as the FBI alleges. To require the plaintiff to demonstrate the relevancy of documents he has never seen, and the contents of which are largely unknown, creates an insurmountable burden for the plaintiff in this case.
Our position derives support from our earlier opinion in Barnes v. Chatterton, 515 F.2d 915 (3d Cir. 1975), which involved a Navy attorney, discharged after seventeen years of service, who sought production of Navy documents in preparation for a hearing. Although we refused to intercede on the plaintiff’s behalf because of his failure to exhaust administrative remedies, we did comment upon the role of the Government in such a case, in general, and the duty of the hearing examiner, in particular:
The ultimate objective of the Government must be, whether the proceeding be a criminal or an administrative action growing out of the discharge of one of its employees, not that the Government “shall win the case, but that justice shall be done.” Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). . . . [Barnes] lacks subpoena or other power to compel the production of such evidence. Therefore failure of the examiner vigilantly to safeguard Barnes’ procedural rights and to secure for him documents and data necessary for his defense for an effective cross-examination of witnesses transforms such rights into mere illusory guarantees.
Barnes v. Chatterton, supra, at 919-20.
We conclude that information to which the defendant is entitled for the preparation of a proper defense was wrongfully excluded at the administrative level. Therefore, the record was incomplete when it came up for review in the district court. In view of our holding in Twiggs v. United States Small Business Administration, supra, that district court review of an incomplete record does not satisfy the procedural requirements of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D), the agency’s refusal to honor Higgins’ request for production of documents erroneously denied him his procedural rights.
The judgment of the district court will be reversed and the district court will be directed to enter an order in favor of the plaintiff remanding the case to the Civil Service Commission for further proceedings not inconsistent with this opinion.
. Appellant has also made a motion to this court for a new trial based on newly discovered evidence, resulting from a discovery order in a personal injury action, William F. Higgins, Jr. v. United States, (N.D.Ohio, No. 75-1027, filed Nov, 28, 1975), and from invocation of the Freedom of Information Act. In view of the disposition of this appeal and because we believe remand to the Civil Service Commission to complete the record is more appropriate than a trial de novo in the district court, we deny the motion.
. Unlike Twiggs, supra, the instant case not only involves an outright dismissal but Higgins was a “preference eligible” employee. Ms. Twiggs was not. A preference eligible employee is one who served in the military for a designated period of time. Such employees may be dismissed “only for such cause as will promote the efficiency of the service” and are entitled to a hearing upon such discharge. See 5 U.S.C. §§ 2108(3)(A); 7511(1), and 7512(a) (1976).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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. Colin NORBERG, Defendant-Appellant.
No. 79-1116.
United States Court of Appeals, First Circuit.
Argued Oct. 2, 1979.
Decided Dec. 18, 1979.
W. Wright Danenbarger, Manchester, N. H., with whom Wiggin & Nourie, Manchester, N. H., was on brief, for appellant.
Robert J. Lynn, Asst. U. S. Atty., Concord, N. H., with whom William H. Sha-heen, U. S. Atty., Concord, N. H., was on brief, for appellee.
Before CAMPBELL and BOWNES, Circuit Judges, and BONSAL, Senior District Judge.
Of the Southern District of New York, sitting by designation.
BOWNES, Circuit Judge.
Defendant-appellant, Colin Norberg, was convicted after a jury-waived trial on seven counts of submission of false statements to a federally insured bank in violation of 18 U.S.C. § 1014 and 18 U.S.C. § 2. In essence, defendant was found guilty of submitting false invoices between August 2 and October 13,1977, to the First Bank and Trust Company of Meredith, New Hampshire (the Bank), and, thereby, obtaining for his own use a portion of the proceeds of a loan given by the Bank to the Belknap Realty Trust (the Trust). The sole issue on appeal is whether the district court erred in finding that the government had proven beyond a reasonable doubt that defendant had knowingly made materially false statements as alleged in the indictment.
The Facts
The relevant facts are not in dispute. It is to be noted at the outset that defendant, a practicing attorney in Meredith, New Hampshire, was a director of and attorney for the Bank from whom the loan was obtained and a trustee and beneficiary of the Trust to whom the loan was made. His position as attorney and trustee-beneficiary put him at both the source and the disbursement end of the loan.
The Trust was formed in 1972 for the primary purpose of constructing and operating a shopping center in Meredith, New Hampshire. The original trustees were John R. Goode, Norberg, and G. Martin Brill Watts of Pennsylvania. Due to the withdrawal of Goode and the death of Watts, the identity of the trustees changed between 1972 and 1977,- but Norberg was always the active resident trustee. As such, he handled the daily business of the Trust, collecting the rents and supervising the maintenance of the shopping center. Originally, Norberg’s wife did the bookkeeping and handled the Trust checkbook. In the spring of 1976, it was decided that the Trust checkbook would be kept by the Bank rather than Norberg.
The Trust Agreement provided:
The Trustees shall also have the right, power and authority, in their sole discretion, to make loans, from time to time, to any of the beneficiaries of this Trust, upon such terms and conditions as the said Trustees shall, in their sole discretion, deem advisable.
In 1973 and 1974, Norberg exercised his right to borrow money from the Trust for use in other business endeavors. All of these loans were repaid to the Trust.
In 1976, a serious sewage disposal problem developed at the shopping center. A repair estimate in the approximate amount of $55,000 was obtained and a general contractor offered to undertake the work for not less than $55,000. This proposal included the services of Dana Wein, who had retained Norberg as his attorney in a pending divorce action, as a subcontractor.
Norberg applied for and obtained a written commitment from the Bank to loan the Trust $55,000 for the sewage disposal work. It was agreed that the loan would be secured by a second mortgage on the shopping center. Since the other trustee, the Watts estate, held a second mortgage on the property, Norberg prepared and delivered to the Bank a borrowing resolution and subordination agreement. The Bank then granted the loan and took a second mortgage on the shopping center.
The Bank suggested that the entire sum be deposited in an account in the name of the Trust to be drawn against as required. Norberg requested that the Bank allow him to establish a separate “sewer renovation” checking account against which funds would be drawn as needed. According to Norberg, this would reduce interest charges and give him a record of damages for use in a law suit to be brought against the contractor who originally built the shopping center. The Bank agreed to Norberg’s request and he was furnished a, supply of checks for the account.
Wein had told Norberg that the total cost of his work as subcontractor would be between $6,000 and $7,000. He agreed to furnish Norberg with weekly statements of his labor and material costs from which Norberg would deduct income tax and social security withholdings and give Wein a check for the balance. Norberg told Wein that “he wanted to make some money” and was interested in having the project completed for less than the $55,000 estimated cost. Wein first submitted his weekly statements of labor and materials on ordinary paper. Norberg then obtained printed invoice forms from Wein entitled “Dana A. Wein & Sons,” which had been used in a former contracting business. Norberg then had these invoices made out in larger amounts than Wein’s actual charges for labor and materials. At first, Norberg would give a check and the false invoice to Wein who would cash it at the Bank and return the funds to Norberg. As the discrepancy between actual charges and the invoices increased, Norberg decided to transfer the funds from the Bank to himself directly without an intermediary so he had Wein endorse the checks in his office. When Wein raised some questions as to the continued use of false invoices, Norberg told him not to be concerned since the money was really his and would be repaid. Nor-berg obtained $19,200 for his personal use by the false invoice method before Wein decided to stop cooperating. The scheme ended when it dawned on Wein that he might be liable for income taxes on money not actually received by him. Wein consulted an attorney who suggested that he report the matter to the New Hampshire Attorney General. This was done and an investigation was promptly begun.
At no time did the Bank know that any of the money drawn from the “sewer renovation” account went to Norberg for his personal use. The Bank’s president and loan officer both testified that a loan to Norberg would have required the approval of the Board of Directors. The loan officer further testified that Norberg would not have been given an unsecured loan because he had other loans outstanding at the time. Nor was the other trustee and beneficiary advised by Norberg that he was using part of the moneys advanced for the sewage disposal repairs for his own purposes. Nor-berg did repay the $19,200 to the Trust. When the Bank learned of the false invoice scheme, it issued a demand letter to the Trust. The loan was not repaid, but interest payments have been kept current and the Bank has taken no further steps to collect the principal amount.
The Law
The essential elements that the government had to prove under the statute and the indictment are:
(1) that the Bank’s deposits were insured by the Federal Deposit Insurance Corporation;
(2) that defendant made false statements to the Bank;
(3) that defendant knew the statements were false; and
(4) that the statements were materially false and made for the purpose of influencing the Bank to make a loan or advance.
United States v. Kramer, 500 F.2d 1185, 1187 (10th Cir. 1974); United States v. Ker-nodle, 367 F.Supp. 844, 851-52 (M.D.N.C. 1973), aff’d without opinion, 506 F.2d 1398 (4th Cir. 1974).
There is no issue as to the first three elements since the insurance requirement was stipulated and defendant has admitted that he knew the invoices were false. Nor-berg, therefore, focuses on the fourth element and argues that the statements were not “material” because they were not made for the purpose of influencing the Bank to make a loan or advance, and did not do so.
The facts defendant uses to support this argument are as follows. The loan from the Bank to the Trust, which was legally obtained, was fully secured by a second mortgage on the shopping center. The Bank had no interest in making progress payments on the work. This was a “single-stroke” loan and the Bank’s only concern was that the amount loaned be repaid according to the terms of the loan agreement. In this connection, defendant points out that the Bank suggested that the entire amount of $55,000 be paid over to defendant as trustee to be disbursed by him. The utilization of a separate “sewer renovation” checking account was, defendant stresses, his idea and done for the benefit of the Trust. The separate checking account was not set up at the Bank’s suggestion, nor did it benefit the Bank in any way. The only interest the Bank had in this account was to make sure that not more than $55,000 was transferred to it. Defendant does not deny that he obtained personal unsecured loans as the result of the false invoices, but argues that these came from the Trust, not the Bank, and, as trustee and beneficiary, he had the right to borrow money from the Trust. In short, it is defendant’s position that, since the Bank was not and could not be harmed by the false invoice payments, the statements were not material and defendant is not guilty of violating 18 U.S.C. § 1014.
This ingenious argument is not entirely a novel defense to a prosecution under this statute. Unfortunately for defendant, it is defeated by the words of the statute and the case law interpreting them. The basic question is whether the false invoices were furnished to the Bank “for the purpose of influencing in any way” its “action . . . upon any application, advance ... or loan . . . .” 18 U.S.C. § 1014. It is not the result of the transaction upon which the statute focuses, but the purpose. There can be no doubt that the purpose here was to obtain, at the least, an interest free loan. If Wein had not blown the whistle, defendant would have had an opportunity to keep the $19,200 and neither the Bank nor the Trust would have known that it had gone into his pocket. It is true that, if Norberg had done as the Bank suggested and put the entire $55,-000 in the Trust account, there would have been no crime against the Bank; only the Trust would have been involved. Defendant’s own decision to set up a pay-as-needed checking account, however, involved the Bank as well as the Trust. Each advance on the overall loan was obtained by a false invoice.
In United States v. Goberman, 458 F.2d 226, 229 (3d Cir. 1972), the court dealt with a similar defense.
The appellant misconceives the meaning of materiality in Section 1014. It is not merely directed to false statements which are actually used in the decision to make a loan. It requires that all statements supplied to lending institutions such as Federal Savings & Loan Associations, which have the capacity to influence them, be accurate or at least not knowingly false, Kay v. United States, 303 U.S. 1, 5-6, 58 S.Ct. 468, 82 L.Ed. 607 (1938); Poulos v. United States, 387 F.2d 4 (10th Cir. 1968); Blake v. United States, 323 F.2d 245 (8th Cir. 1963). Requiring proof of reliance on the statement by the lending institution would wreak havoc with enforcement of the provision. A successful prosecution for the violation would depend on the wholly fortuitous factor of actual reliance and not at all upon the intent of the guilty party.
See also United States v. Cleary, 565 F.2d 43, 46 (2d Cir. 1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1469, 55 L.Ed.2d 506 (1978) (essence of crime is the making of false statements with intent to influence bank, reliance is irrelevant); United States v. Braverman, 522 F.2d 218, 223 (7th Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975) (a statement is material when it has “capacity to influence”); United States v. Tokoph, 514 F.2d 597, 602-03 (10th Cir. 1975) (materiality is determined by capacity to influence).
The Supreme Court, through Chief Justice Hughes, rebuffed cogently a similar defense in a conviction for false statements under the Home Owners’ Loan Act, 12 U.S.C. § 1467.
It does not lie with one knowingly making false statements with intent to mislead the officials of the Corporation to say that the statements were not influential or the information not important. There can be no question that Congress was entitled to require that the information be given in good faith and not falsely with intent to mislead. Whether or not the Corporation would act favorably on the loan is not a matter which concerns one seeking to deceive by false information. The case is not one of an action for damages but of criminal liability and actual damages is not an ingredient of the offense.
Kay v. United States, 303 U.S. 1, 5-6, 58 S.Ct. 468, 471, 82 L.Ed. 607 (1938).
In the only First Circuit case on point, we upheld a jury conviction of making false statements to influence bank action over the defense that a false statement as to the purchase price of property and the income of the defendant were not material because not relied upon by the Bank. We pointed out that the words “for the purpose of influencing” were included in the statute to define the quality of the required intent. United States v. Sheehy, 541 F.2d 123, 127 (1st Cir. 1976).
Kovens v. United States, 338 F.2d 611 (5th Cir. 1964), is a case very similar to ours. In affirming a verdict of guilty for knowingly making a false statement for the purpose of influencing bank action, the court stated:
It is plain that the indictment charged that, as to Count One, Kovens on December 8th knowingly caused a false certificate to be filed with the Association for influencing its action in advancing funds in that he submitted a Construction Draw requesting the payment of $149,946.86 and certifying that funds enumerated in the said Draw and itemized thereon had been expended as itemized, whereas, to his knowledge the Draw was false in that the entire amount of the funds enumerated was not expended as itemized. It would make no difference whether the amount was thereafter expended or if the amount was spent for a different purpose than that stated on the certificate, including the itemized list associated with it.
Id. at 616. The court held:
The statute deals with the falsity of any statement made for the purpose of influencing the Association as to the making of an advance. We agree that the purpose of Section 1014 is to protect authorized functions of specified institutions from “deceptive practices,” United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598, as contended for by the appellants. But where, as here, the indictment charges that the appellant ‘.‘for the purpose of influencing the action of the Association,” submitted a Construction Draw requesting payment of the sum of $149,946.86, knowing the statements on said Draw to be false, it can hardly be said that there was an absence of an allegation which would support proof of the materiality of the alleged false statement.
Id. at 616-17.
Against this array of authority, while referring to bits and pieces from the language of other cases to buttress his risk of harm argument, defendant squarely pits only three cases. In United States v. Kramer, supra, 500 F.2d 1185, the court reversed the conviction of a bank president under 18 U.S.C. § 1014 for aiding, abetting, procuring and inducing a false financial statement. The statement was filled out by another, not the defendant, and the court found “[tjhere is no evidence in the record that Kramer made, aided, abetted, induced or procured the making of the financial statement” and “sufficient evidence does not exist by which a jury could find that the financial statement was submitted to the bank .for the purpose of influencing approval of the loan. . . . And, Kramer, as the bank’s president, had unrestricted authority to make loans up to the bank’s maximum lending limit. . Under these circumstances a false financial statement could serve no useful or influential purpose.” Id. at 1187. The facts of Kramer make it inapposite. Here, Norberg was the one responsible for the false invoices which were submitted for the principal purpose of obtaining money for his personal use.
United States v. Dreyfus, 528 F.2d 1064 (5th Cir. 1976), involved a conviction for filing false statements with the Department of Housing and Urban Development in violation of 18 U.S.C. § 1010. The court remanded for a new trial because it felt the district court’s charge had not properly covered the differences raised as to the count alleging that the “false statement [was made] for the purpose of influencing HUD to issue mortgage insurance.” Id. at 1069. Contrary to the assertion in appellant’s brief, there was no finding that, since the statement posed no harm or risk to HUD, there was no criminal liability. The court felt that the charge was not complete, not that there was no liability as a matter of law. Id. at 1070.
In United States v. Beer, 518 F.2d 168 (5th Cir. 1975), the court did reverse a conviction for making a false statement to the Federal Deposit Insurance Corporation, 18 U.S.C. § 1001, “because there was a failure of proof of the essential element of materiality.” Id. at 173. The court in determining materiality recognized “that the agency need not actually have relied or acted to its detriment upon the false statement, but the government must still show that the statement had the capacity to influence a determination required to be made.” Id. at 172. It further held: “If the functioning of a department or agency would not have been materially affected had it relied upon the statement, then the statement must necessarily be immaterial.” Id. at 172. This contrasts starkly with the case at bar where the Bank would not have made an unsecured loan to Norberg.
The facts in this case establish beyond peradventure that Norberg devised a scheme for using false invoices to obtain an unsecured loan from the Bank in the amount of $19,200. The invoices were submitted to the Bank for that purpose. The Bank made the advances as part of a loan for sewage disposal work. It did not know that part of the money was being diverted to Norberg’s personal use. Norberg would not have obtained the money but for the false invoices. The fact that the Bank’s loan was adequately secured does not render the invoices immaterial. The invoices became material when they produced the funds Norberg wanted. They not only had the capacity to influence the Bank’s action, they did influence it.
Affirmed.
. 18 U.S.C. § 1014 provides in pertinent part: Whoever knowingly makes any false statement or report ... for the purpose of influencing in any way the action of . any bank the deposits of which are insured by the Federal Deposit Insurance Corporation . . upon any application, advance . . . commitment, or loan . . . shall be fined not more than $5,000 or imprisoned not more than two years, or both.
. 18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, corn-mands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
. The word “material” does not appear anywhere in 18 U.S.C. § 1014. Since, however, the indictment charged the defendant with making or causing to be made “materially false statements,” the government has conceded that, for purposes of this case, it had to prove materiality. We do not decide whether, under 18 U.S.C. § 1014, materiality is an essential element of the offense.
. There is some question as to the validity of this agreement, but that is not an issue.
. The principal of the general contractor, W. F. Richards & Son, Inc., was also a director of the Bank.
. Wein had sold the name and goodwill of this business and at the time was operating in his individual capacity without a business name.
. On one occasion, Norberg actually forged Wein’s endorsement on a check.
. See footnote 3, supra.
. The only other case from this circuit involving 18 U.S.C. § 1014, United States v. Canas, 595 F.2d 73 (1st Cir. 1979), was decided on unrelated issues.
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_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Paul Wm. POLIN and Marsha Polin, Plaintiffs-Appellants, v. DUN & BRADSTREET, INC., a Delaware corporation, Defendant-Appellee.
No. 83-1952.
United States Court of Appeals, Tenth Circuit.
July 29, 1985.
Don E. Gasaway, Gasaway, Green & Harris, P.A., Tulsa, Okl., for plaintiffs-appellants.
Arthur E. Rubin, Gable & Gotwals, Tulsa, Okl., for defendant-appellee.
Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge, and BROWN, District Judge.
Wesley E. Brown, United States District Judge, District of Kansas, sitting by designation.
WILLIAM E. DOYLE, Circuit Judge.
Plaintiffs Paul and Marsha Polin appeal from a grant of summary judgment entered in favor of defendant Dun & Bradstreet, Inc. by the United States District Court for the Northern District of Oklahoma. We affirm the district court’s grant of summary judgment.
The problem here considered arose in the 1960’s. During that period Paul Polin worked as a business and financial consultant as well as an insurance agent. Marsha Polin assisted her husband in the consulting business and also sold life insurance. The Polins operated under several trade names.
In response to an inquiry from the Minnehoma Financial Company in 1966, defendant prepared a credit report on Mr. Polin. This report was sent to eight businesses and detailed Polin’s financial history. It listed four lawsuits filed against Polin for money due on accounts. Defendant prepared a similar report on Polin in 1968, pursuant to a request from Dallas Aero Services Company. The 1968 report, which was furnished to seven companies, contained much the same information as the 1966 report; it also listed three lawsuits pending against the Polins. The following year defendant revised its report on the Polins. At the same time it provided the new report to two businesses. The 1969 revision again listed the lawsuits pending against the Polins.
The businesses that received reports on the Polins did so pursuant to defendant’s standard subscription agreement. The agreement provides in pertinent part:
1. All information furnished to the subscriber by Dun & Bradstreet, Inc. is for the exclusive use of the subscriber as a basis for credit, insurance, marketing and other business decisions and for no other purpose. Such information shall be held in strict confidence and shall never be reproduced, revealed or made accessible in any manner whatever to the persons reported upon or to any others. It is expressly understood that the subscriber shall neither request information for the use of others, nor permit requests to be made under this subscription by others.
Defendant never obtained the Polins’ permission to investigate them, nor did defendant mail the Polins copies of the credit reports before the subscribers received them. In 1966 the Polins asked defendant to cease and desist from preparing the reports without first following the Oklahoma law on the making of credit reports. The Polins renewed their request in 1968, but defendant continued to furnish its subscribers with the reports.
In 1970 the Polins filed the instant action against defendant in the United States District Court for the Northern District of Oklahoma. Count I of their amended complaint alleged an invasion of common law and constitutional rights of privacy. Count II alleged violations of the Oklahoma Credit Ratings Act, Okla.Stat.Ann. tit. 24, §§ 81-82. The Polins sought $1,000,000 actual and $500,000 punitive damages on each count.
In 1977, at the request of the parties, the district court referred the case to a Special Master. The following year the Special Master granted defendant’s motion for summary judgment on both counts, Fed.R.Civ.P. 56(c), and the district court entered judgment “in conformity with” the Special Master’s order. In Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319 (10th Cir.1980) (en banc), we held that the district court had failed to review the Special Master’s report in conformity with Fed.R.Civ.P. 53(e)(4) and remanded the case for the proper review. On remand, the district court granted defendant’s motion for summary judgment, stating, “[T]he facts found by the Special Master do not as a matter of law constitute an invasion of privacy and do not as a matter of law constitute a violation of §§ 81 and 82 of the Oklahoma Credit Reporting [sic] Act that would allow any monetary recovery to the plaintiffs herein.” We now review the district court’s decision.
Count I of the Polins’ complaint fails to present any invasion of privacy claim for which relief can be granted.
First, the Polins have failed to state a cause of action for false light invasion of privacy under Oklahoma law. Oklahoma has recognized this tort as defined by the Restatement (Second) of Torts § 652E, which provides:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
See McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980). The Restatement defines “publicity” as meaning “that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts § 652D, comment a. It is clear that the element of publicity is lacking in the instant case. Defendant’s 1966 credit report on the Polins was sent to eight subscribers, the 1968 report to seven subscribers, and the 1969 revision to two subscribers. The Polins admit that the foregoing are the only ones having access to the credit reports, this being a condition of defendant’s subscription agreement. Plaintiffs’ Motion to Special Master to Reconsider Pre-Trial Order, June 7,1978. Because the Polins cannot prove the element of publicity, they do not have a claim for false light invasion of privacy under Oklahoma law.
Second, we accept the district court’s holding that “Oklahoma law does not require a credit or financial information reporting entity to obtain the consent of an investigated party prior to distribution of reports on such party....” Colonial Park Country Club v. Joan of Arc, 746 F.2d 1425 (10th Cir.1984) (district court’s understanding of unsettled law of its state is entitled to deference).
Third, the Polins have failed to establish any constitutional right to privacy in this case. Such a constitutional right exists only against the acts of a federal or state government, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); it does not extend to a private party such as defendant. The fact that defendant’s credit reporting operations are regulated by federal and state law is not sufficient to create state action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
We also must conclude that Count II of the Polins’ complaint fails to state any cause of action under the Oklahoma Credit Ratings Act, Okla.Stat.Ann. tit. 24, §§ 81-82, for which damages may be awarded. The district court, relying on Derryberry v. Retail Credit Co., 550 P.2d 942 (Okla.1976), correctly concluded that only § 83 provides for monetary recovery. Because the Polins did not allege any violation of § 83, the court properly granted summary judgment to defendant.
The judgment is affirmed.
. Sections 81 and 82 provide:
§ 81. Persons furnishing ratings to request statement of assets and liabilities
Any person, firm or corporation engaged in or purporting to furnish retail merchants the financial or credit rating of any person who is the actual or prospective customer of such retail merchant shall, before furnishing such rating, submit, either in person or by mailing to his last known postoffice address to the person whose rating is about to be reported, a request asking for a statement of the assets and liabilities of such person.
§ 82. Copy of opinion furnished person to whom it relates
Whenever an opinion in writing upon the financial or credit standing of any person is about to be submitted for the purpose of establishing a financial or credit rating of customers, to be used by the retail business concerns, the person, firm or corporation submitting such opinion shall first mail a copy of such opinion to the person about whom the opinion is given, at his proper postoffice address.
. Section 83 provided:
§ 83. False rating — Damages—Misdemean- or — Penalty
Any person, firm or corporation who knowingly promulgates or publishes a false opinion or statement in any book or list as to the credit or financial standing of any person, and circulates such book or list among wholesale or retail business concerns, shall be liable in damages to the person about whom the false opinion or statement is made, for the full amount of injury sustained, and in addition thereto for exemplary damages in any sum to be fixed by the jury, and shall also be guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum hot exceeding twenty-five dollars.
This section was amended in 1984.
Question: What is the total number of appellants 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_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Plaintiff-Appellee, v. Ralph T. MILLER and Joan Miller, Defendants. In re Subpoena Duces Tecum of James M. RUSS, Appellant.
No. 80-5912.
United States Court of Appeals, Fifth Circuit. Unit B
July 9, 1982.
James M. Russ, pro se, Bruce S. Rogow, Fort Lauderdale, Fla., for appellant.
Donald E. Christopher, Asst. U. S. Atty., Orlando, Fla., M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Chief, R. Russell Mather, Tax Div., Dept, of Justice, Appellate Section, Washington, D. C., for plaintiff-appellee.
Before HILL, FAY and ANDERSON, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
PER CURIAM:
Before issuance of the mandate in the instant case, the parties have brought to the attention of the court facts which render the case moot.
The court notes that the pretrial subpoena duces tecum at issue in this case was relevant only to the pending criminal tax fraud proceedings against the Millers, that these criminal proceedings have now been finalized, and that the instant case has therefore become moot. Accordingly, the previous opinion of this court published at 660 F.2d 563 (5th Cir. 1981), is vacated; the judgment of the district court holding appellant Russ in contempt is VACATED; and the case is REMANDED with instructions that the district court quash the subpoena and dismiss the case. United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).
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:
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songer_bank_app2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the second listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt.
COPPERSTATE SUPPLY CO., a division of Anderson Air Activities, Inc., and John B. Marron, Appellants, v. Harley J. FISHER et al., Appellees.
No. 25246.
United States Court of Appeals, Ninth Circuit.
Sept. 30, 1971.
John B. Marron (argued), of Gorodezky, Marron & Diamond, Phoenix, Ariz., for appellants.
George F. Senner, Jr. (argued), of Cavness, DeRose & Senner, Phoenix, Ariz., for appellees.
Before CHAMBERS and CARTER, Circuit Judges, and BYRNE, District Judge.
Honorable William M. Byrne, Senior United States District Judge, Central District of California, sitting by designation.
JAMES M. CARTER, Circuit Judge.
Appellees Fisher, were granted a discharge in bankruptcy on February 10, 1969. On June 25, 1969, the estate was reopened to determine whether appellants be permanently enjoined from proceeding against the bankrupts in an Arizona Superior Court action to recover on a judgment obtained on May 22, 1968, and renewed on May 26, 1969. ' The court below, adopting the referee’s findings of fact and conclusions of law, granted the injunction. Appellants, here, object to that court’s findings and to its exercise of discretion in granting the injunction. Finding no error, we affirm.
Appellants’ objections pose two issues: (1) whether appellant Copperstate had sufficient notice of the earlier bankruptcy proceedings for their debt to be affected by the discharge; (2) whether sufficient circumstances were present to justify the court’s exercise of discretion in granting an injunction of state proceedings.
We note that recent changes in the law now give the bankruptcy court general jurisdiction to determine the effect of a discharge. Act of October 19, 1970, Public Law No. 91-467, 84 Stat. 990, amending § 2(a) (12) of the Bankruptcy Act, 52 Stat. 840, 843 [11 U.S.C. § 11(a) (12)]. However the amendment applies only to bankruptcy cases filed after December 18, 1970. Since this case was filed before that time, the prior law obtains.
Notice
The court below exercised its ancillary jurisdiction to protect its earlier decree of discharge. For the court to protect its decree, however, the debt in question must be affected by that discharge.
The Bankruptcy Act excepts from the discharge of a bankruptcy proceeding those debts which “have not been duly scheduled in time for. proof and allowance.” 11 U.S.C. § 35 (1970). Not within this exception, however, are the debts of creditors who “had notice or actual knowledge of the proceedings in bankruptcy.” Id.
The court below adopted the referee’s findings that Copperstate had received both actual and constructive notice. Appellants challenge these findings. They deny actual notice. They also argue the inadequacy of any notice in that the petition for bankruptcy listed them as involved in litigation with the appellees and not specifically as creditors.
Our review of the record discloses substantial support for the finding of actual notice or knowledge. The testimony of several witnesses indicates that appellants received notice of the bankruptcy from as many as four different sources. While appellants find fault with some of the testimony, their objections do no more than establish a conflict in the evidence. The finding of actual notice or knowledge was not “clearly erroneous.” Fed.R.Civ.Proc. 52(a).
“Unusual Circumstances”
Appellants also contend that the record of the proceedings held before the referee in bankruptcy does not show circumstances sufficient to warrant the injunction of state court proceedings. They rely on the long-standing rule that a bankruptcy court merely determines the right to a discharge, and not the effect thereof. By this rule, the effect of a bankruptcy discharge is ordinarily adjudicated in the non-bankruptcy forum when the creditor sues on a debt and bankruptcy is raised as a defense. Hilton Credit Corp. v. Jaggli (9 Cir. 1966) 366 F.2d 793, 794; Vol. la Collier on Bankruptcy § 17.28 at 1726 (14th ed.). Adjudication of the effect of the discharge is permitted, however, where “unusual circumstances” such as where the remedy in the non-bankruptcy forum is inadequate, or where the pursuit of that remedy involves disproportionate trouble, embarrassment, expense, or the possible loss of employment. Hilton Credit Corp. v. Jaggli, supra. See Local Loan Co. v. Hunt, 292 U.S. 234, 241-242, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). The determination of when such circumstances exist is within the sound discretion of the bankruptcy court. See California State Board of Equalization v. Coast Radio Prod. (9 Cir. 1955) 228 F.2d 520, 523.
Applying the law of Local Loan and Hilton, we cannot say the trial court abused its discretion. The evidence is sufficient to support a finding of harassment. In addition to obtaining the judgments against the appellees, appellants have filed several garnishments on appellees’ employers, without notice to appellees. In doing so they may not only have tied up appellees’ wages; they may also have endangered appellees’ employment. We hold that this evidence of harassment reasonably constitutes “unusual circumstances” sufficient to warrant an injunction of state proceedings.
The judgment is affirmed.
Question: Is the second listed appellant bankrupt?
A. Yes
B. No
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.
FABACHER v. UNITED STATES.
No. 7975.
Circuit Court of Appeals, Fifth Circuit.
July 14, 1936.
Edwin H. Grace, of New Orleans, La., for appellant.
Saul Stone, Asst. U. S. Atty., of New Orleans, La., for the United States.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Appellant was convicted upon an indictment charging in separate counts the possession and sale of tax unpaid alcohol, and sentenced to imprisonment in a penitentiary for eighteen months. He assigns as error the failure of the court to sustain in full his motion for a bill of particulars, the admission xn evidence of a telephone conversation between him and the purchaser, the granting of instructions in behalf of the government, and the refusal of instructions requested in his behalf, including an instruction to the jury to find the defendant not guilty.
Appellant did not take the witness stand and no evidence was offered by him. From the uncontradicted testimony for the prosecution, the jury must have found' that a government agent, Hebson, in Houston, Tex., on March 28, 1935, called appellant in New Orleans by long-distance telephone; that when the connection was made he asked if he was talking to appellant, was told to wait a minute, after which another voice answered; that Hebson asked the second person if this was Jake Fabacher, and received the answer^ in a very distinct voice, that it was; that witness had heard appellant’s voice' many times before over the telephone, and was familiar with it, but had only heard it once in person, which was the day of the trial, and there was no question in his mind that the voice he heard was that of appellant; that Hebson then and there placed an order by telephone with appellant for thirty-six gallons of tax unpaid alcohol at a total price of $91, and agreed to remit the price by telegraphic money order to the appellant at his place of business, 347 Rampart street, New Orleans, La., the latter agreeing, upon receipt of the price, to ship the alcohol to George Duncan (the name given by witness) in Houston, Tex. The remittance was made as arranged, the canceled draft being produced in evidence, and the indorsement of the payee thereon being identified as having been made by appellant. Not having received the alcohol on April 1, 1935, Heb-son sent a telegram to appellant, which read: “Shipment ordered Thursday not received what is wrong answer Postal Telegraph.” This telegram was delivered at appellant’s place of business, and he signed a receipt therefor. Appellant read the telegram, stated that he understood what it was, and tore it up. A few days later another telegram was sent to appellant concerning the shipment of alcohol, to which appellant replied by telegram, these messages, being identified and introduced in evidence. On April 1, 1935, thirty-six gallons of tax unpaid alcohol were delivered to a common carrier in New Orleans for delivery in accordance with the telephone agreement between Hebson and appellant, and a few days later the shipment was delivered by carrier at Houston, Tex. This alcohol was introduced in evidence, and the containers bore no stamps showing taxes paid.
The government did not undertake to prove that the possession or sale occurred at any particular place in New Orleans, and could not have done so, as no one saw the appellant deliver the alcohol to the common carrier, or in possession of it, and the evidence of his guilt in respect to the particular place of possession and delivery was wholly circumstantial. However, the exact location was not an element of the offenses charged. Heitler v. United States (C.C.A.) 280 F. 703; Dukich v. United States (C.C.A.) 296 F. 691; Hartzell v. United States (C.C.A.) 72 F.(2d) 569; Lauderdale v. United States (C.C.A.) 48 F.(2d) 481.
The request for a bill of particulars was a matter which addressed itself to the sound discretion of the court. It did not abuse that discretion in refusing to require the District Attorney to furnish information to the defendant of the exact place in the city where the crimes were committed. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Savage v. United States (C.C.A.) 270 F. 14; Moens v. United States, 50 App.D.C. 15, 267 F. 317; Horowitz v. United States (C.C.A.) 262 F. 48, appeal dismissed 254 U.S. 616, 41 S.Ct. 148, 65 L.Ed. 440; Mayer v. United States (C.C.A.) 259 F. 216; Collins v. United States (C.C.A.) 253 F. 609; Knauer v. United States (C.C.A.) 237 F. 8.
The testimony of the witness Heb-son with reference to the contract of sale over the long-distance telephone was competent, in view of his positive identification of appellant’s voice at a later time, even on the date of the trial. It was for the jury to say from this and corroborating testimony whether the conversation over the telephone took place between the witness and the appellant. Among the corroborating circumstances were the facts that the telegrams were received and understood, the money order received, the draft cashed after having been indorsed by appellant, and the alcohol shipped from New Orleans; all in accordance with the agreement had over the telephone, together with the fact that the call was placed for the telephone number ordered by and listed in the name of appellant. Lewis v. United States (C.C.A.1) 295 F. 441, certiorari denied 265 U.S. 594, 44 S.Ct. 636, 68 L.Ed. 1197; Wallace v. United States (C.C.A.6) 291 F. 972; Robilio v. United States (C.C.A.6) 291 F. 975.
Assignments with reference to the granting and refusing of instructions by the court, particularly the refusal to direct a verdict of not guilty, involve a contention that the evidence showed the sale did not take place in Louisiana, but in Houston, Tex. The appellant avers that the doctrine as to when title passes in matters of sale is the same in criminal as in civil cases (citing Hoffman v. Gosline et al. [C.C.A.] 172 F. 113, 55 C.J. 529, 530), but contends that delivery was a necessary condition of the sale, which, under the agreement, was intended to and did take place in Houston, Tex. We think the delivery in this case occurred in New Orleans when the defendant segregated the liquor fo,r the vendee and actually delivered the same to the common carrier consigned to the vendee. State v. Shields, 110 La. 547, 34 So. 673; Edgwood Co. v. Falkenhagen, 151 La. 1072, 92 So. 703; Clyde Iron Works v. Frerichs (C.C.A.) 203 F. 637.
Exception was also taken to the refusal of the court below to instruct the jury that the sale as charged in count 2 must have been consummated in the state of Louisiana, and that if the evidence failed to show this beyond a reasonable doubt they should find the defendant not guilty. This instruction was properly refused not only for the reasons heretofore stated, but because section 42 of the Judicial Code (28 U.S.C.A. § 103) provides: “When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.”
We find no reversible error in the record, and the judgment of the District Court is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
WILLIAMSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 8000.
Circuit Court of Appeals, Seventh Circuit.
Dec. 29, 1942.
Rehearing Denied Feb. 1, 1943.
E. H. McDermott, Wm. M. Emery, and Richard S. Oldberg, all of Chicago, Ill. (Daniel R. LaBar, of Chicago, Ill., of counsel), for petitioner.
J. P. Wenchel and John W. Smith, Bureau of Internal Revenue, both of Washington, D. C, Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Morton K. Rothschild, and J. Louis Monarch, Sp.Assts. to Atty. Gen., for respondent.
Before EVANS, MAJOR, and KER-NER, Circuit Judges.
MAJOR, Circuit Judge.
This is a petition to review a decision of the United States Board of Tax Appeals, entered November 18, 1941, adjudicating deficiencies in petitioner’s income tax for the years 1935 and 1936. Before the Board, respondent contended that petitioner was taxable under Sections 166, 167 and 22(a) of the Revenue Acts of 1934 and 1936, 26 U.S.C.A. Int.Rev.Acts, pages 727, 669, 895, 825. The Board sustained liability under Section 22(a) but made no decision as to the applicability of Sections 166 and 167. Before this Court, respondent makes no contention as to the applicability of Section 166, and we assume his contention in this respect has been abandoned. Respondent does urge that petitioner is liable under Section 22 (a), as found by the Board, and also under Section 167.
The trust which supplies the subject matter of this controversy was created by petitioner on November 26, 1935 and was irrevocable. It was designated as Trust No. 2. The corpus was 5,000 shares of Class A common stock of General Candy Corporation. The trustees were petitioner, his wife, May J. Williamson, and their attorney, Lewis Edward Sauter, who drafted the instrument. The First National Bank of Chicago was named to succeed petitioner as a co-trustee. Stock certificates for the 5000 shares have been outstanding since November 26, 1935, in the name of the three trustees. A certificate for additional stock, representing a stock dividend in May, 1936, was also issued in the name of the three trustees.
The trustees were directed to administer the trust property for the benefit of petitioner’s wife and their daughter, Ann Williamson as long as either were living, and were authorized “in their uncontrolled discretion” to expend and apply the net income and so much of the corpus as they deemed necessary “for the maintenance, support, protection, welfare and financial benefit or security” of these two beneficiaries. Undistributed income could be held for subsequent distribution or added to the corpus. The trustees, also in their “uncontrolled discretion,” were authorized to draw upon the corpus of the estate for the maintenance and support of the two beneficiaries. The trusted stock was to be voted as a unit at all meetings of the corporation, and, as long as petitioner lived, it was to be voted “in his sole and uncontrolled discretion as he may deem best.” In all other matters, any two of the three trustees were given the power and authority to speak for the trustees. Petitioner was given the right during his lifetime “to direct the sale, exchange, investment and reinvestment of the principal of the trust estate without being limited to investments authorized by law or any rule of Court as legal for trust funds.” The trustees were directed to sell, purchase or exchange securities or other property “in accordance with the directions of the Donor or his agent,” and no sale or exchange of the trust estate was permitted except on written direction from petitioner.
The First National Bank of Chicago was appointed successor-trustee upon the death of the petitioner, with the same rights, powers, duties and obligations as were conferred or imposed upon petitioner. Petitioner was authorized at any time to relinquish investment control to the trustees, and also authorized at any time to resume such control. The trustees were authorized to sell the trust property upon consent of two of such trustees, provided that petitioner be one of the trustees assenting thereto. Petitioner was given the power at any time “by an instrument in writing delivered to the Trustees to remove any Trustee, corporate or individual, and appoint and constitute successor-Trustees.” Upon the resignation or removal of any trustee, petitioner was given the power and authority to examine the accounts of the trust estate, to investigate the acts of the retiring trustee, to approve his accounts, and to give a full release and discharge to such retiring trustee for all liability arising out of or in connection with such trust estate, and it was provided that such release or discharge should be effective and binding upon all beneficiaries.
The above is a brief synopsis of the trust agreement. Petitioner introduced oral testimony before the Board which, in the main, concerned the manner in which the trustees, including petitioner, had discharged their duties and obligations under the trust. We think, however, it is unnecessary to relate such testimony in detail. It is sufficient to state that there is no dispute but that the trustees (including petitioner) discharged their duties and obligations in good faith. It may be pertinent to mention, as found by the Board, that, as of January 1, 1935, there were 106,925 shares of Class A stock outstanding, of which petitioner owned 39,555 shares or 37%, his wife owned 11,165 shares or 10.4%, and his father owned 7,-692 shares or 7.2%. Of the shares owned by the father, petitioner held 7,200 shares as trustee. The remainder of the stock was held by the public, two of whom, together with petitioner, served as directors of the corporation. Petitioner was also its president and general manager.
Petitioner in 1935 filed a gift tax return, reporting the 5,000 shares transferred to Trust No. 2 as gifts to his wife and daughter, and paid the gift tax thereon. The trustees “also paid an income tax on the 1936 trust income. Because of some controversy as to the construction which an auditor for the Revenue Department placed upon the trust instrument, an agreement was executed December 18, 1937, by petitioner, his wife and Mr. Sauter. This agreement provided, in substance, that petitioner would continue to support his wife and daughter from his own personal resources and would not look to the income from the trust to relieve him in whole or in part; that the powers conferred upon petitioner by the trust instrument were intended to be exercised only in a fiduciary capacity, and petitioner’s entire reversionary interest in the trust was transferred to his daughter and her heirs.
Before the" Board, as here, respondent contended for the application of Section 22(a) under the rule of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. It is urged that petitioner retained such a substantial measure of control over the trust that he must be treated for tax purposes as the owner thereof. The Board concluded: “In a case involving a long term trust (such as trust No. 2) the doctrine of the Clifford case may be applicable if the grantor has retained a very substantial measure of control over the trust.”
Among the numerous circumstances which the Board considered in support of its application of the Clifford rule was petitioner’s power to remove the other two trustees, to appoint successor-trustees, to relieve a retiring trustee of liability so as to bind the beneficiaries; the power to vote the trusted stock, thus retaining for himself the right to participate in the affairs of the corporation of which he was president; the power to direct sales of trust property without limitation as to the legal investments; and the power to preclude sales and investments by the trustees except upon direction of petitioner.
Petitioner seeks to distinguish the Clifford case largely upon two grounds: (1) The long term trust in the instant case in contrast with the short term trust in Clifford, and (2) petitioner in the instant case was one of three trustees while in Clifford the donor was sole trustee.
Petitioner in his brief before this Court, as well as in oral argument, stressed the recent decision of this Court in Stuart v. Commissioner, 7 Cir., 124 F.2d 772. Special reliance was placed upon the effect of our holding as to the restraint imposed upon a trustee as a fiduciary by the law of Illinois. At the time of oral argument in the instant case, the Stuart case was pending in the Supreme Court, and, desiring all the light possible, we have waited for the Supreme Court’s decision. The case was decided November 16, 1942. (The case involves two trusts, and is entitled Commissioner v. Douglas Stuart No. 49 and Commissioner v. John Stuart No. 48.) Rehearing was denied (with some amendments to the opinion not here material) on December 14, 1942. 317 U.S. -, 63 S.Ct. 140, 87 L.Ed. -.
With all due respect to the Supreme Court, the light which we so eagerly anticipated, especially as to the applicability of Section 22(a) is not as illuminating as we had hoped for. So we suggested to counsel for the respective parties that they submit a memorandum of their views as to the effect which the Stuart decision has upon the instant case. This has been done, and the light which we thought we perceived has been almost extinguished.
As we interpret the decision of the Supreme Court, it is an affirmance of the decision of this Court that the income from the John Stuart trust was not taxable to the donor under Section 166. Our reasoning, that under Illinois law a restraint was imposed upon the trustees which would not permit the revesting of the trust property in the donor (grantor), was accepted. Our conclusion, however, that by the same token there was no liability under Sections 22(a) or 167 appears to have been overruled. In other words, the restraining effect imposed by state law upon the trustees was such as to preclude liability under Section 166, but not as to the other two Sections.
There is no question but that each of the trusts in the Stuart case were long-term trusts. If the rule of the Clifford case is to be confined solely to short-term trusts, it is difficult to discern why the Supreme Court in the John Stuart trust reversed this Court and directed that it he remanded to the Board of Tax Appeals. Certainly it was not for the purpose of a determination by the Board as to whether it was a short- or long-term trust. The Supreme Court states on page 10 of its opinion [63 S.Ct. 148], “the triers of fact have made no finding upon this point. Cf. Helvering v. Clifford, supra, 309 U.S. 331, 336, 338, 60 S.Ct. 554, 84 L.Ed. 788.” What is the point referred to in this quotation? We have concluded it is the first sentence of the same paragraph, “that economic gain for the taxable year, * * * may be obtained through a control of a trust so complete that it must be said the taxpayer is the owner of its income.” In other words, if that situation is found to exist, the grantor is taxable under the Clifford doctrine. The fact that the trust is of long term or that trustees other than the donor are named does not preclude its application. They are only elements to be considered by the trier of the facts in appraising the situation.
If we are correct in this analysis of the Court’s opinion, it follows that the appraisement must be made by the Board and its determination be accepted, unless we can say as a matter of law that it is erroneous. It will be noted that the Court, following the quotation above stated, refers to page 338 of 309 U.S., 60 S.Ct. at page 558 of the Clifford case whereon there appears the following statement: “The failure of Congress to adopt any such rule of thumb for that type of trust must be taken to do no more than to leave to the triers of fact the initial determination of whether or not on the facts of each case the grantor remains the owner for purposes of § 22(a).”
The importance which must be attached to a decision of the Board as to the applicability of Section 22(a) is also emphasized in Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037. In that case, the Board considered only the question of liability under Sections 166 and 167. This was prior to the Clifford decision. Subsequently, the Court of Appeals, following the Clifford, case, held the taxpayer liable under Section 22(a). There, on the taxpayer’s complaint, the cause was reversed for a decision by the Board. In doing so, the Court, on page 560, of 312 U.S., 61 S.Ct. at page 723, 85 L.Ed. 1037, stated: “But the Board of Tax Appeals neither found the facts nor considered the applicability of 22(a) in the light of the Clifford case. Congress has entrusted the Board with exclusive authority to determine disputed facts. Under these circumstances we do not feel that petitioner should be foreclosed from all opportunity to offer evidence before the Board on this issue, however remote may be his chance to take his case out of the Clifford rule.”
It would serve no useful purpose to discuss the numerous cases cited by petitioner, including several from this Court, wherein long-term trusts have been distinguished from the Clifford case. It appears certain that the Supreme Court recognizes no such distinction. Otherwise, the remanding of the John Stuart trust (a long-term trust) to the Board of Tax Appeals was a futile gesture.
In the instant case, as already stated, the Board found Section 22(a) applicable under the Clifford rule. There is no occasion to repeat the facts, including the provisions of the trust agreement from which the Board reached its decision. Whatever view we might have as a trier of the facts, we are not prepared to hold as a matter of law that its decision was erroneous.
As stated, the Board, having found that petitioner was liable under Section 22(a), made no decision as to the applicability of Section 167. Article 10 of the trust instrument authorized the accumulation of the net income and its addition to corpus. It also provides that if petitioner outlive the beneficiaries, the trust shall terminate and the entire trust estate be delivered to petitioner. It was the original position of respondent before this Court (and we assume before the Board) that inasmuch as the trust income for the taxable years was accumulated, there was a possibility that it might come into possession of the taxpayer and that, therefore, it was chargeable to him under Section 167. Since the decision of the Supreme Court in the Stuart case, however, respondent urges that Section 167 is applicable for the reason assigned by that Court as to the Douglas Stuart trust. There is no uncertainty as to the holding of the Supreme Court in this respect. On the last page of its opinion [63 S.Ct. 149], the Court said: “Under such a provision the possibility of the use of the income to relieve the grantor, pro tanto, of his parental obligation is sufficient to bring the entire income of these trusts for minors within the rule of attribution laid down in Douglas v. Willcuts [296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A.L.R. 391.]”
In the instant case, any two of the three individual trustees were given full power and authority to exercise all the powers of the trustees under the trust instrument (except voting the trusted stock). Thus, the petitioner and his lawyer (the wife being a beneficiary with an adverse interest) were given an “uncontrolled discretion” to apply all of the net income as they deemed necessary “for the maintenance, support, protection, welfare and financial benefit or security of the wife and minor child.” There was nc direction as to how the income should be divided between the wife and the minor child; in fact, it is discretionary with the trustees, and we see no reason why petitioner and his attorney could not have distributed all of such income for the support and maintenance of the minor beneficiary. Certainly there is no room for doubt that it was possible the income could have been thus applied. This being so, petitioner is liable under Section 167.
Petitioner contends that the Board should not be permitted at this late date to rely upon a contention different from that heretofore advanced, citing Helvering v. Wood, 309 U.S. 344, 348, 60 S.Ct. 551, 84 L.Ed. 796. Without analyzing the situation which the Court had before it in that case, we think petitioner’s contention must be denied on the authority of Hormel v. Helvering, 312 U.S. 552, 555-560. 61 S.Ct. 719, 85 L.Ed. 1037.
We therefore affirm the Board’s conclusion that Section 22(a) is applicable and, in addition, hold that petitioner is liable under Section 167.
The designation is explained from the fact that petitioner and his wife had theretofore created Trust No. 1, in which all of the shares of stock of General Candy Corporation owned by petitioner and his wife were transferred to the trustees, except the 5,000 shares which were transferred by petitioner to Trust No. 2. It is not contended that the provisions of Trust No. 1 have any pertinency to the issues now presented in connection with Trust No. 2.
Petitioner was born November 5, 1888, his wife was born November 3, 1888, Ann Williamson was born April 16, 1923 and was a minor during the taxable years.
It is true, a subsequent agreement was executed by which petitioner agreed that the income from the trust was not to be used to relieve him of the duty to support Ms wife and daughter, but this agreement, made subsequent to the taxable years, is immaterial to the instant question.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
sc_certreason
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
JENKINS v. GEORGIA
No. 73-557.
Argued April 15, 1974
Decided June 24, 1974
Louis Nizer argued the cause for appellant. With him on the briefs were Tench C. Coze, William H. Schroder, Jr., and James Bouras.
Tony H. Right argued the cause and filed a brief for appellee.
Briefs of amici curiae urging reversal were filed by Peter M. Fish-be.in and Lester Pollack for the National Association of Theatre Owners; by Stanley Fleishman and Sam Bosenwein for the Adult Film Association of America, Inc.; by Ephraim London for the Directors Guild of America, Inc.; by William D. North for the American Library Assn.; by Maxwell J. Lillienstein for the American Booksellers Assn., Inc., et al.; by Michael A. Bamberger for the Council for Periodical Distributors Assns., Inc., et ah; by Ira M. Millstein for the Association of American Publishers, Inc.; and by Irwin Karp for the Authors League of America, Inc.
Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston III filed a brief for Charles H. Keat-ing, Jr., as amicus curiae urging affirmance.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film “Carnal Knowledge” in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413, 418 (1966):
“Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters.” Ga. Code Ann. § 26-2101 (b) (1972).
We hold today in Hamling v. United States, ante, p. 87, that defendants convicted prior to the announcement of our Miller decisions but whose convictions were on direct appeal at that time should receive any benefit available to them from those decisions. We conclude here that the film “Carnal Knowledge” is not obscene under the constitutional standards announced in Miller v. California, 413 U. S. 15 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant’s conviction be reversed.
Appellant was the manager of the theater in which “Carnal Knowledge” was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation, Ga. Code Ann. § 27-704 (1972), with the offense of distributing obscene material. After his trial in the Superior Court of Dough-erty County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972. Appellant was fined $750 and sentenced to 12 months’ probation. He appealed to the Supreme Court of Georgia, which by a divided vote affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was “considerably more restrictive” than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of “hard core” pornography. The dissenting Justices, in addition to other disagreements with the court, thought that “Carnal Knowledge” was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed to this Court and we noted probable jurisdiction, 414 U. S. 1090 (1973).
We agree with the Supreme Court of Georgia’s implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to, apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply “national standards.” We also agree with the Supreme Court of Georgia’s implicit approval of the trial court’s instructions directing jurors to apply “community standards” without specifying what “community.” Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of “contemporary community standards” as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.
We now turn to the question of whether appellant’s exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal. But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice. Raley v. Ohio, 360 U. S. 423, 436 (1959). We also note that the trial court instructed the jury on charges other than the distribution charge. However, the jury returned a general verdict and appellee does not suggest that appellant’s conviction can be sustained on these alternative grounds. Cf. Stromberg v. California, 283 U. S. 359, 367-368 (1931).
There is little to be found in the record about the film “Carnal Knowledge” other than the film itself. However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many “Ten Best” lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film:
“[It is basically a story] of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer’ one of the two, he is selected by Susan for marriage.
“The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of . a dozen women a year but has never managed to meet the right one, the one with the full bosom, the good legs, the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. ‘Why don’t we shack up?’ she suggests. They do and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again.”
Appellee contends essentially that under Miller the obscenity vel non of the film “Carnal Knowledge” was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee’s contention.
Miller states that the questions of what appeals to the “prurient interest” and what is “patently offensive” under the obscenity test which it formulates are “essentially questions of fact.” 413 U. S., at 30. “When triers of fact are asked to decide whether ‘the average person, applying contemporary community standards’ would consider certain materials ‘prurient’ it would be unrealistic to require that the answer be based on some abstract formulation .... To require a State to structure obscenity proceedings around evidence of a national ‘community standard’ would be an exercise in futility.” Ibid. We held in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), decided on the same day, that expert testimony as to obscenity is not necessary when the films at issue are themselves placed in evidence. Id., at 56.
But all of this does not lead us to agree with the Supreme Court of Georgia’s apparent conclusion that the jury’s verdict against appellant virtually precluded all further appellate review of appellant’s assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the “prurient interest” or of patent offensiveness are “essentially questions of fact,” it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is “patently offensive.” Not only did we there say that “the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” 413 U. S., at 25, but we made it plain that under that holding “no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core’ sexual conduct . . . .” Id., at 27.
We also took pains in Miller to “give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,” that is, the requirement of patent offensiveness. Id., at 25. These examples included “representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant’s depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.
Our own viewing of the film satisfies us that “Carnal Knowledge” could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the “patently offensive” element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including “ultimate sexual acts” is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors’ genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.
Appellant’s showing of the film “Carnal Knowledge” is simply not the “public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain” which we said was punishable in Miller. Id., at 35. We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia.
Reversed.
Mr. Justice Douglas,
being of the view that any ban on obscenity is prohibited by the First Amendment, made applicable to the States through the Fourteenth, concurs in the reversal of this conviction. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (1973) (Douglas, J., dissenting).
Section 26-2101 is entitled “Distributing obscene materials.” Subsection (a) of §26-2101 provides in relevant part: “A person commits the offense of distributing obscene materials when he . . . exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof ...” Subsection (c) of §26-2101 provides that “[material], not otherwise obscene, may be obscene under this section if the distribution thereof ... is a commercial exploitation of erotica solely for the sake of their prurient appeal.” Subsection (d) provides that a first offense under the section shall be punished as a misdemeanor and that any subsequent offense shall be punished by one to five years’ imprisonment and/or a fine not to exceed $5,000.
The accusation, App. 8, charged appellant “with the offense of Distributing Obscene Material” for knowingly exhibiting a motion picture to the general public which contained conduct showing “(a) an act of sexual intercourse, (b) a lewd exposure of the sexual organs, (c) a lewd appearance in a state of partial or complete nudity, (d) a lewd caress or indecent fondling of another person” contrary to the laws of Georgia. The latter-quoted language appears in Ga. Code Ann. § 26-2011, entitled “Public indecency,” which makes performance of any of the listed acts in a public place a misdemeanor. Under Ga. Code Ann. §26-2105, it is a crime to exhibit a motion picture portraying acts which would constitute “public indecency” under § 26-2011 if performed in a public place. Appellant’s arrest warrant specified § 26-2105 as the statute he was charged with violating. In view of our holding today, we need not reach appellant’s contention that he was denied due process because the warrant specified only § 26-2105, while the jury was allowed to convict under § 26-2101. However, we note that appellant’s demurrer to the accusation demonstrates his awareness that he was being charged with the § 26-2101 offense, App. 9, and that he requested numerous instructions on obscenity, id., at 47-49.
Appellant’s trial jury was alternatively instructed under subsections (a) and (c) of §26-2101 (pandering), see n. 1, supra, and under § 26-2105, see n. 2, supra.
See n. 3, supra.
Appellant testified that the film was “critically acclaimed as one of the ten best pictures of 1971 and Ann Margret has received an Academy Award nomination for her performance in the picture.” He further testified that “Carnal Knowledge” had played in 29 towns in Georgia and that it was booked in 50 or 60 more theaters for spring and summer showing. App. 24.
Review of “Carnal Knowledge” by Hollis Alpert, Saturday Review, July 3, 1971, p. 18.
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_weightev
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Mario TARABOCCHIA, Plaintiff-Appellee-Appellant, v. ZIM ISRAEL NAVIGATION CO., Ltd., Defendant and Third-Party Plaintiff-Appellant-Appellee, v. JOHN W. McGRATH CORP., Third-Party Defendant.
No. 945, Docket 33492.
United States Court of Appeals, Second Circuit.
On Remand from the Supreme Court of the United States, March 31, 1971.
Decided Aug. 12, 1971.
George T. Delaney, Kenneth Heller, New York City, for plaintiff-appellee-appellant.
Martin J. McHugh, McHugh & Leonard, New York City, for defendant and third-party plaintiff-appellant-appellee.
Before MOORE, HAYS and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff, an employee of John W. McGrath Corp., stevedores, was injured while engaged in an unloading operation from the M/V Beersheva, a vessel owned by Zim Israel Navigation Co. The accident occurred when a loading platform on which plaintiff and a coworker were standing suddenly became dislodged causing plaintiff to fall. The Trial Court found that the platform was not an appurtenance of the vessel and that the cargo sling being used in the unloading operation did not render the vessel unseaworthy. Liability was premised upon the theory that an act of plaintiff’s co-worker caused the accident and that “a ship is rendered unseaworthy when longshoremen make negligent use of seaworthy equipment.” 297 F.Supp. 378, 382. Judgment was entered in favor of plaintiff against Zim Israel and McGrath did not dispute its indemnity obligation.
Despite the seeming incongruity of holding that a seaworthy vessel can be instantaneously transformed into an unseaworthy condition by a negligent act of a stevedore’s employee, this court felt bound by previous decisions of the Supreme Court II.and its own decisions in reliance thereon to affirm the judgment. At the same time the court recognized that conflict existed between the Circuits (the Fifth and the Ninth) but said that it was for the Supreme Court “to resolve the apparent conflict between the Circuits.” 417 F.2d 476, 478.
This resolution has now been made by the Supreme Court in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971) but not without vigorous dissent by four Justices thereof. 400 U.S. at 501-504, 91 S.Ct. 514. The majority opinion reviewed the many cases which over the years have created the problem and came to the conclusion that it would be erroneous “where no condition of unseaworthiness existed, to hold the shipowner liable for a third party’s single and wholly unforeseeable act of negligence.” 400 U.S. at 500, 91 S.Ct. at 518.
Upon Zim Israel’s petition, certiorari was granted (four Justices dissenting), the judgment vacated and the case was remanded “for further consideration in the light of Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562, decided January 25, 1971.” 401 U.S. 930, 91 S.Ct. 914, 28 L.Ed.2d 211 (1971). Such consideration has now been given in the light of that decision and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the complaint.
. Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967); Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967); Gutierrez v. Waterman SS. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Mitchell v. Trawler Racer, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Crumady v. The J. II. Fisser, 35S U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1943).
. Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, (2d Cir. 1967) rehearing denied, 386 F.2d 444, (2d Cir. 1967) 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968); Alexander v. Bethlehem Steel Corporation, 382 F.2d 963 (2d Cir. 1967).
. Antoine v. Lake Charles Stevedores, Inc., 376 F.2d 443, cert. den. 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146 (1967); Robichaux v. Kerr McGee Oil Industries, Inc., 376 F.2d 447 (1967).
. Tim v. American President Lines, Ltd., 409 F.2d 385 (1969) and cases cited therein.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_decisiondirection
|
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 v. COMMODITIES TRADING CORP. et al.
NO. 156.
Argued January 10-11, 1950.
Decided March 27, 1950.
Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Paul A. Sweeney and Melvin Richter.
Edward L. Blackman argued the cause and filed a brief for Commodities Trading Corp. et al.
Mr. Justice Black
delivered the opinion of the Court.
Commodities Trading Corporation brought this suit in the Court of Claims to recover “just compensation” for about 760,000 pounds of whole black pepper requisitioned by the War Department in 1944 from Commodities’ stock of 17,000,000 pounds. The United States contended that the OPA ceiling price of 6.63 cents per pound was just compensation. Commodities denied this, claiming 22 cents per pound. It argued that Congress did not and could not constitutionally fix the ceiling price as a measure for determining what is just compensation under the Constitution. Commodities also contended that, for reasons peculiar to its own situation, application of the ceiling price in this instance would be particularly unjust. The Court of Claims fixed “just compensation” at 15 cents per pound. In so doing, that court took into consideration what it terms “retention value,” explained as an allowance for the price Commodities “undoubtedly could have secured for its pepper had it been permitted to hold it until after restrictions had been removed . . . .” The court also considered how much the precise pepper requisitioned cost Commodities, the prices at which that company sold pepper after the government requisition, subsequent OPA ceiling prices, and the average price of pepper for the past 75 years. 113 Ct. Cl. 244, 83 F. Supp. 356. We granted the petitions of both parties for certiorari. 338 U. S. 857.
First. The questions presented are controlled by the clause of the Fifth Amendment providing that private property shall not be “taken for public use, without just compensation.” This Court has never attempted to prescribe a rigid rule for determining what is “just compensation” under all circumstances and in all cases. Fair market value has normally been accepted as a just standard. But when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public, courts have fashioned and applied other standards. Since the market value standard was developed in the context of a market largely free from government controls, prices rigidly fixed by law raise questions concerning whether a “market value” so fixed can be a measure of “just compensation.” United States v. Felin & Co., 334 U. S. 624. Whatever the circumstances under which such constitutional questions arise, the dominant consideration always remains the same: What compensation is “just” both to an owner whose property is taken and to the public that must pay the bill?
The word “just” in the Fifth Amendment evokes ideas of “fairness” and “equity,” and these were the primary standards prescribed for ceiling prices under the Emergency Price Control Act. As assurance that prices fixed under its authority by the administrative agency would be “generally fair and equitable,” Congress provided that price regulations could be subjected to judicial review. All legitimate purchases and sales had to be made at or below ceiling prices. And most businessmen were compelled to sell because, for example, their goods were perishable or their businesses depended on continuous sales. Thus ceiling prices of commodities held for sale represented not only market value but in fact the only value that could be realized by most owners. Under these circumstances they cannot properly be ignored in deciding what is just compensation.
The extent to which ceiling prices should govern courts in such a decision is another matter. Congress did not expressly provide that prices fixed under the Price Control Act should constitute the measure of just compensation for property taken under the Fifth Amendment. And § 4 (d) provides that the Act shall not be construed as requiring any person to sell. But § 1 (a) declared the Act’s purposes “to assure that defense appropriations are not dissipated by excessive prices” and to “prevent hardships ... to the Federal, State, and local governments, which would result from abnormal increases in prices . . . .” Congress thus plainly contemplated that these governments should be able to buy goods fulfilling their wartime needs at the prices fixed for other purchasers. The crucial importance of this in the congressional plan for a stabilized war economy to limit inflation and prevent profiteering is shown by the fact that during the war approximately one-half of the nation’s output of goods and services went to federal, state and local governments. And should judicial awards of just compensation be uniformly greater in amount than ceiling prices, expectations of pecuniary gains from condemnations might prompt many owners to withhold essential materials until the Government requisitioned them. We think the congressional purpose and the necessities of a wartime economy require that ceiling prices be accepted as the measure of just compensation, so far as that can be done consistently with the objectives of the Fifth Amendment.
Second. It is contended that acceptance of ceiling prices as just compensation would be inconsistent with the Fifth Amendment because such prices fail to take into account a factor designated by the Court of Claims as “retention value.” This concept stems largely from the Emergency Price Control Act’s provision that the Act shall not be construed as compelling an owner to sell his property against his will. Translating the provision as conferring on an owner the “right to hold his property until he can get for it whatever anyone is willing to pay,” the Court of Claims held that it gave rise to a “retention value” which must be added to the ceiling price in order to meet the constitutional requirement of “just compensation.”
In enacting that provision Congress merely refused to take from owners their long-existing “right to hold” until they wanted to sell. It did not create a new “right to hold” as against a constitutional Government taking, or engraft added values of any kind on property which happens to be requisitioned at a time when prices are fixed by law. We cannot justifiably stretch this provision into a command that the Government pay owners a “retention value” for property taken.
Nor can we construe the Fifth Amendment as supporting the Court of Claims “retention value” rule. In peacetime when prices are not fixed, the normal measure of just compensation has been current market value; retention value has never been treated as a separate and essential factor. True, current market value may sometimes be higher because a buyer anticipates future rises in prices. And exceptional circumstances can be conceived which would justify resort to evidential forecasts of potential future values in order to determine present market value. But the general constitutional rule declared and applied by the Court of Claims did not rest on exceptional circumstances.
A persuasive reason against the general rule declared by the Court of Claims is the highly speculative nature of proof to show possible future prices on which “retention value” must depend. In this case, for instance, no one knew how long the war would last nor how long economic conditions due to war might lead Congress to continue price-fixing legislation. Predictions on these subjects were guesses, not informed forecasts. And even if such predictions were reasonably certain, there remained other unknowns. How much more than the ceiling price would a speculative purchaser have paid for property at the time of seizure? To what extent, if at all, would the lifting of war controls raise prices above the controlled ceilings? And as of what date should future value be estimated? The Court of Claims opinion indicates how haphazard such calculations must be: its figure of 15 cents per pound appears to be a rough judicial compromise between the ceiling price and the 22 cents claimed, not a weighted average drawn from the varied assortment of doubtful factors considered by the court. Moreover, that figure seems completely divorced from the conjectured postwar price, a factor crucially significant in the court’s “retention value” concept.
An equally forceful objection to the “retention value” rule is the discrimination it would breed. Only a limited group of owners could take advantage of the rule: those who have nonperishable products so essential for war purposes that refusal to sell would result in governmental requisition. And many of these would be financially unable to withhold their goods on such a gamble. Thus owners able to hold essential nonperishable goods until requisition would become a favored class at the expense of other owners not so fortunate. Moreover, even within that favored class the “retention value” rule would create discrimination against owners impelled by a sense of duty to sell their goods to the Government at ceiling prices without waiting for requisition. A premium would be placed on recalcitrance in time of war.
A rule so difficult to apply and leading to such discriminatory and unjust results cannot be required by the Fifth Amendment’s command for payment of “just compensation.”
Third. While there is no constitutional obstacle to treating “generally fair and equitable” ceiling prices as the normal measure of just compensation for commodities held for sale, there must be room for special exceptions to such a general rule. For unfair hardship may be inflicted on a particular dealer by valid ceiling prices which are “generally” fair. Bowles v. Willingham, 321 U. S. 503, 516-518. But the ceiling price of pepper, fair and just to the trade generally, should be accepted as the maximum measure of compensation unless Commodities has sustained the burden of proving special conditions and hardships peculiarly applicable to it. Cf. Marion & Rye Valley R. Co. v. United States, 270 U. S. 280, 285.
Commodities contends that it proved the existence of such conditions. It points to the statement of the Court of Claims that the “so-called ‘retention value’ is particularly applicable in this case” because Commodities was an “investor” in pepper rather than a “trader.” The company accumulated its large supply at intervals during the 1933-1941 period, expecting to hold it to sell when the price went up. The court found that Commodities could reasonably expect this rise: the nature of production was such that periods of abundance and scarcity were bound to alternate, and during the preceding 75 years the price of pepper had shown marked fluctuations in fairly regular cycles. Most of Commodities’ pepper was bought when prices were low. It is argued that as an “investor” Commodities should not be deprived of the pecuniary benefits which future high prices would have afforded but for the Government’s taking.
Under this state of facts the situation of Commodities differed only in degree, if at all, from that of myriad other commodity owners who quite naturally wished to hold their goods for higher prices. Postwar inflationary influences are common and generally expected. Price cycles, seasonal and otherwise, are also well-recognized economic phenomena. Doubtless owners of steel, textiles, foodstuffs, and other goods could produce evidence similar to that offered in regard to pepper to show cyclical fluctuations in their prices. Nor would there be much difficulty in showing that a great many owners had bought, produced, or manufactured their various merchandise with the idea of withholding from markets to await expected higher prices. Many lost anticipated profits due to price control or requisition. Sacrifices of this kind and others far greater are the lot of a people engaged in war. That a war calls for sacrifices is of course no reason why an unfair and disproportionate burden should be borne by Commodities. But the facts here show no such burden on Commodities. Commodities, just like other traders in pepper and other products, bought pepper with the intention of ultimately selling on the market. No more than any other owner is Commodities entitled to “retention value,” a value based on speculation concerning the price it might have obtained for pepper after the war and after price controls were removed.
Another contention is that the particular pepper turned over to the Government cost Commodities more than the ceiling price, and that this is a special circumstance sufficient to preclude use of the ceiling price here. The Court of Claims did find that the average cost to Commodities of the precise pepper taken, including labor costs, storage, interest, insurance, taxes and other expenses, was 12.7 cents per pound. The Government challenges these findings and also claims that Commodities selected its high-cost pepper for delivery under the requisition. Pointing out that pepper is fungible and that the only relevant cost figure is the average cost to Commodities of all its pepper, the Government asserts that this average cost was less than the ceiling price.
We do not consider these contentions of the Government because we think that the cost of the pepper delivered provides no sufficient basis for specially excluding Commodities from application of the ceiling price. The general rule has been that the Government pays current market value for property taken, the price which could be obtained in a negotiated sale, whether the property had cost the owner more or less than that price. Vogelstein & Co. v. United States, 262 U. S. 337, 340. The reasons underlying the rule in cases where no government-controlled prices are involved also support its application where value is measured by a ceiling price. In neither instance should the Government be required to make good any losses caused by the fact that the owner purchased goods at a price higher than market value on the date of taking. Especially is this true where the resulting loophole in wartime regulation would be available only to dealers in essential nonperishable commodities who have enough funds and storage space to withhold goods until the Government is forced to requisition them.
We have considered all other contentions of Commodities and find that none of them present reasons sufficient to justify awarding Commodities an amount in excess of ceiling prices. In the final analysis all its arguments rest on the principle that the Government must pay Commodities for potential profits lost because of war and the consequent price controls. We cannot hold that the Fifth Amendment requires the Government to give owners of requisitioned goods such a special benefit.
The judgment of the Court of Claims is reversed and the cause is remanded with directions to enter an appropriate judgment based on the maximum ceiling price of the pepper at the time it was taken.
It is so ordered.
Mr. Chief Justice Vinson and Mr. Justice Douglas took no part in the consideration or decision of this case.
See, e. g., United States v. Miller, 317 U. S. 369; Olson v. United States, 292 U. S. 246.
56 Stat. 23, 50 U. S. C. App. § 901.
Had Congress prescribed a rule that prices fixed under the Act should constitute the measure of constitutional “just compensation,” courts upon proper challenges would have been faced with responsibility of determining whether that rule satisfied the requirements of the Fifth Amendment. Marbury v. Madison, 1 Cranch 137. Compare Monongahela Navigation Co. v. United States, 148 U. S. 312, 327.
Eighth Report of the Director of War Mobilization and Reconversion, October 1, 1946, H. R. Doc. No. 45, 80th Cong., 1st Sess. p. 7.
Pertinent parts of the Court of Claims discussion of “retention value” were:
“We have several times held that, in determining just compensation, we must take into account the plaintiff’s right to hold its property until restrictions on its disposition are removed. Seven-Up Bottling Co. v. United States, 107 C. Cls. 402; Kaiser v. United States, 108 C. Cls. 47; Adler Metal Products Co. v. United States, 108 C. Cls. 102; Pantex Pressing Machine Co. v. United States, 108 C. Cls. 735.
“The Government in time of war has the undoubted right to say to the citizen, if you want to sell your property you must not sell it for more than a certain price; but the Government has no right to take the property and pay for it no more than this fixed price, unless that price justly compensates the owner, taking into consideration his right to hold his property until he can get for it whatever anyone is willing to pay.” 113 Ct. Cl. 259-260, 83 F. Supp. 357.
Commodities had petitioned the Price Administrator in 1943 to amend the applicable regulation so as to permit higher prices for pepper by allowances for storage expenses. This petition was denied. Nothing in the record indicates that the Emergency Court of Appeals was ever asked to consider ceiling prices for pepper.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
COMPUCREDIT CORP. et al. v. GREENWOOD et al.
No. 10-948.
Argued October 11, 2011
Decided January 10, 2012
Michael W. McConnell argued the cause for petitioners. On the brief were Sri Srinivasan, Anton Metlitsky, David L. Hartsell, Deanne E. Maynard, Brian R. Matsui, and Susan L. Germaise.
Scott L. Nelson argued the cause for respondents. With him on the brief were Allison M. Zieve, W. Lloyd Copeland, Gregory Hawley, and Richard R. Rosenthal.
Briefs of amici curiae urging reversal were filed for the Consumer Data Industry Association by Anne P. Fortney; and for DRI-The Voice of the Defense Bar by R. Matthew Cairns, Linda T. Coberly, and Gene C. Schaerr.
John Vail filed a brief for the American Association for Justice as ami-cus curiae urging affirmance.
Julie Nepveu, Michael Schuster, and Rochelle Bobroff filed a brief for AARP et al. as amici curiae.
Justice Scalia
delivered the opinion of the Court.
We consider whether the Credit Repair Organizations Act (CROA or Act), 15 U. S. C. § 1679 et seq., precludes enforcement of an arbitration agreement in a lawsuit alleging violations of that Act.
I
Respondents are individuals who applied for and received an Aspire Visa credit card marketed by petitioner Compu-Credit Corporation and issued by Columbus Bank and Trust, now a division of petitioner Synovus Bank. In their applications they agreed to be bound by a provision which read: “Any claim, dispute or controversy (whether in contract, tort, or otherwise) at any time arising from or relating to your Account, any transferred balances or this Agreement (collectively, ‘Claims’), upon the election of you or us, will be resolved by binding arbitration . . .App. 62.
In 2008, respondents filed a class-action complaint against CompuCredit and Columbus in the United States District Court for the Northern District of California, alleging, as relevant here, violations of the CROA. The claims largely involved the defendants’ allegedly misleading representation that the credit card could be used to rebuild poor credit and their assessment of multiple fees upon opening of the accounts, which greatly reduced the advertised credit limit.
The District Court denied the defendants’ motion to compel arbitration of the claims, concluding that “Congress intended claims under the CROA to be non-arbitrable.” 617 F. Supp. 2d 980, 988 (2009). A panel of the United States Court of Appeals for the Ninth Circuit affirmed, Judge Tash-ima dissenting. 615 F. 3d 1204 (2010). We granted certio-rari, 563 U. S. 973 (2011).
II
The background law governing the issue before us is the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., enacted in 1925 as a response to judicial hostility to arbitration. AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339 (2011). As relevant here, the FAA provides:
“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2.
This provision establishes “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1,24 (1983). See also, e. g., Concepcion, supra, at 339; Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 25 (1991). It requires courts to enforce agreements to arbitrate according to their terms. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 221 (1985). That is the case even when the claims at issue are federal statutory claims, unless the PAA’s mandate has been “overridden by a contrary congressional command.” Shear son/American Express Inc. v. McMahon, 482 U. S. 220, 226 (1987). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985). Respondents contend that the CROA contains such a command.
That statute regulates the practices of credit repair organizations, defined as certain entities that offer services for the purpose of “(i) improving any consumer's credit record, credit history, or credit rating; or (ii) providing advice or assistance to any consumer with regard to any activity or service described in clause (i).” 15 U. S. C. § 1679a(3). In its principal substantive provisions, the CROA prohibits certain practices, § 1679b, establishes certain requirements for contracts with consumers, §1679d, and gives consumers a right to cancel, §1679e. Enforcement is achieved through the Act’s provision of a private cause of action for violation, § 1679g, as well as through federal and state administrative enforcement, §1679h.
Ill
Like the District Court and the Ninth Circuit, respondents focus on the CROA’s disclosure and nonwaiver provisions. The former, which is reproduced in full in the Appendix, infra, sets forth a statement that the credit repair organization must provide to the consumer before any contract is executed. § 1679c(a). One sentence of that required statement reads, “ ‘You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.'”’ The Act’s nonwaiver provision states, “Any waiver by any consumer of any protection provided by or any right of the consumer under this subchapter — (1) shall be treated as void; and (2) may not be enforced by any Federal or State court or any other person.” § 1679f(a).
The Ninth Circuit adopted the following line of reasoning, urged upon us by respondents here: The disclosure provision gives consumers the “right to sue,” which “clearly involves the right to bring an action in a court of law.” 615 F. 3d, at 1208. Because the nonwaiver provision prohibits the waiver of “any right of the consumer under this subchapter,” the arbitration agreement — which waived the right to bring an action in a court of law — cannot be enforced. Id., at 1214.
The flaw in this argument is its premise: that the disclosure provision provides consumers with a right to bring an action in a court of law. It does not. Rather, it imposes an obligation on credit repair organizations to supply consumers with a specific statement set forth (in quotation marks) in the statute. The only consumer right it creates is the right to receive the statement, which is meant to describe the consumer protections that the law elsewhere provides. The statement informs consumers, for instance, that they can dispute the accuracy of information in their credit file and that “ ‘[t]he credit bureau must then reinvestigate and modify or remove inaccurate or incomplete information.’ ” 15 U. S. C. § 1679c(a). That description is derived from § 1681i(a), which sets out in great detail the procedures to be followed by a credit bureau in the event of challenges to the accuracy of its information. Similarly, the required statement informs consumers that they may “ ‘cancel your contract with any credit repair organization for any reason within 3 business days from the date you signed it’” — the right created and set forth in more detail in § 1679e. And the “right to sue” language describes the consumer’s right to enforce the credit repair organization’s “liability]” for “failfure] to comply with any provision of this subchapter” provided for in § 1679g(a). Thus, contrary to the dissent’s assertion, our interpretation does not “[r]educ[e] the required disclosure to insignificance,” post, at 115. The disclosure provision informs consumers of their right to enforce liability for any failure to conform to the statute — information they might otherwise not possess. It is the dissent’s interpretation that effectively reduces a portion of the CROA to a nullity. Interpreting the “right to sue” language in § 1679c(a) to “create” a right to sue in court not only renders it strikingly out of place in a section that is otherwise devoted to giving the consumer notice of rights created elsewhere; it also renders the creation of the “right to sue’’ elsewhere superfluous.
Respondents suggest that the CROA’s civil-liability provision, § 1679g (set forth in full in the Appendix, infra), demonstrates that the Act provides consumers with a “right” to bring an action in court. They cite the provision’s repeated use of the terms “action,” “class action,” and “court” — terms that they say call to mind a judicial proceeding. These references cannot do the heavy lifting that respondents assign them. It is utterly commonplace for statutes that create civil causes of action to describe the details of those causes of action, including the relief available, in the context of a court suit. If the mere formulation of the cause of action in this standard fashion were sufficient to establish the “contrary congressional command” overriding the FAA, McMahon, 482 U. S., at 226, valid arbitration agreements covering federal causes of action would be rare indeed. But that is not the law. In Gilmer we enforced an arbitration agreement with respect to a cause of action created by the Age Discrimination in Employment Act of 1967 (ADEA) which read, in part: “Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.” 29 U. S. C. § 626(c)(1). In McMahon we enforced an arbitration agreement with respect to a cause of action created by a provision of the Racketeer Influenced and Corrupt Organizations Act which read, in part: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit . . . .” 18 U. S. C. § 1964(c). And in Mitsubishi Motors we enforced an arbitration agreement with respect to a cause of action created by a provision of the Clayton Act which read, in part: “[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15(a). Thus, we have repeatedly recognized that contractually required arbitration of claims satisfies the statutory prescription of civil liability in court. See Gilmer, 500 U. S., at 28; McMahon, supra, at 240; Mitsubishi Motors, 473 U. S., at 637. To be sure, none of the statutes described above contained a nonwaiver provision, as the statute before us does. But if a cause-of-action provision mentioning judicial enforcement does not create a right to initial judicial enforcement, the waiver of initial judicial enforcement is not the waiver of a “right of the consumer,” § 1679f(a). It takes a considerable stretch to regard the non-waiver provision as a “congressional command” that the FAA shall not apply.
Moreover, if one believes that § 1679g’s contemplation of court suit (combined with §1679f(a)) establishes a non-waivable right to initial judicial enforcement, one must also believe that it establishes a nonwaivable right to initial judicial enforcement in any competent judicial tribunal, since it contains no limitation. We think it clear, however, that this mere “contemplation” of suit in any competent court does not guarantee suit in all competent courts, disabling the parties from adopting a reasonable forum-selection clause. And just as the contemplated availability of all judicial forums may be reduced to a single forum by contractual specification, so also can the contemplated availability of judicial action be limited to judicial action compelling or reviewing initial arbitral adjudication. The parties remain free to specify such matters, so long as the guarantee of § 1679g — the guarantee of the legal power to impose liability — is preserved.
Respondents and the dissent maintain that if the CROA does not create a right to a judicial forum, then the disclosure provision effectively requires that credit repair organizations mislead consumers. We think not. The disclosure provision is meant to describe the law to consumers in a manner that is concise and comprehensible to the layman — which necessarily means that it will be imprecise. The required statement says, for example, that the CROA “ ‘prohibits deceptive practices by credit repair organizations,’ ” 15 U. S. C. § 1679c(a). This is in some respects an overstatement, and in some respects an understatement, of the “Prohibited practices” set forth in § 1679b. It would include, for example, deception apart from “the offer or sale of the services of the credit repair organization,” § 1679b(a)(4). Yet we would not hold, in order to prevent the required statement from being “misleading,” that a consumer has a right to be protected from deceptive practices beyond those actually covered by § 1679b. So also with respect to the statement’s description of a “right to sue.” This is a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA. We think most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding. Leaving that possibility out may be imprecise, but it is not misleading — and certainly not so misleading as to demand, in order to avoid that result, reading the statute to contain a guaranteed right it does not in fact contain.
IV
At the time of the CROA’s enactment m 1996, arbitration clauses in contracts of the type at issue here were no rarity. Quite the contrary, the early 1990⅛ saw the increased use of arbitration clauses in consumer contracts generally, and in financial services contracts in particular. See' Ware, Arbitration and Unconscionability After Doctor’s Associates, Inc. v. Casarotto, 31 Wake Forest L. Rev. 1001, 1001, and n. 3 (1996); J. Shimabukuro, Congressional Research Service Report for Congress, The Federal Arbitration Act: Background and Recent Developments 1 (2002).
Had Congress meant to prohibit these very common provisions in the CROA, it would have done so in a manner less obtuse than what respondents suggest. When it has restricted the use of arbitration in other contexts, it has done so with a clarity that far exceeds the claimed indications in the CROA. See, e.g., 7 U.S.C. §26(n)(2) (2006 ed., Supp. IV) (“No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section”); 15 U. S. C. § 1226(a)(2) (2006 ed.) (“Notwithstanding any other provision of law, whenever a motor vehicle franchise contract provides for the use of arbitration to resolve a controversy arising out of or relating to such contract, arbitration may be used to settle such controversy only if after such controversy arises all parties to such controversy consent in writing to use arbitration to settle such controversy”); cf. 12 U. S. C. § 5518(b) (2006 ed., Supp. IV) (granting authority to the newly created Consumer Financial Protection Bureau to regulate predispute arbitration agreements in contracts for consumer financial products or services). That Congress would have sought to achieve the same result in the CROA through combination of the nonwaiver provision with the “right to sue” phrase in the disclosure provision, and the references to “action” and “court” in the description of damages recoverable, is unlikely.
⅜ ⅝ ⅜
Because the CROA is silent on whether claims under the Act can proceed in an arbitral forum, the FAA requires the arbitration agreement to be enforced according to its terms. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
APPENDIX
Title 15 U. S. C. § 1679c provides:
“(a) Disclosure required
“Any credit repair organization shall provide any consumer with the following written statement before any contract or agreement between the consumer and the credit repair organization is executed:
“ ‘Consumer Credit File Rights Under State and Federal Law
“‘You have a right to dispute inaccurate information in your credit report by contacting the credit bureau directly. However, neither you nor any “credit repair” company or credit repair organization has the right to have accurate, current, and verifiable information removed from your credit report. The credit bureau must remove accurate, negative information from your report only if it is over 7 years old. Bankruptcy information can be reported for 10 years.
“ ‘You have a right to obtain a copy of your credit report from a credit bureau. You may be charged a reasonable fee. There is no fee, however, if you have been turned down for credit, employment, insurance, or a rental dwelling because of information in your credit report within the preceding 60 days. The credit bureau must provide someone to help you interpret the information in your credit file. You are entitled to receive a free copy of your credit report if you are unemployed and intend to apply for employment in the next 60 days, if you are a recipient of public welfare assistance, or if you have reason to believe that there is inaccurate information in your credit report due to fraud.
“ ‘You have a right to sue a credit repair organization that violates the Credit Repair Organization Act. This law prohibits deceptive practices by credit repair organizations.
“‘You have the right to cancel your contract with any credit repair organization for any reason within 3 business days from the date you signed it.
“ ‘Credit bureaus are required to follow reasonable procedures to ensure that the information they report is accurate. However, mistakes may occur.
“ ‘You may, on your own, notify a credit bureau in writing that you dispute the accuracy of information in your credit file. The credit bureau must then reinvestigate and modify or remove inaccurate or incomplete information. The credit bureau may not charge any fee for this service. Any pertinent information and copies of all documents you have concerning an error should be given to the credit bureau.
“‘If the credit bureau’s reinvestigation does not resolve the dispute to your satisfaction, you may send a brief statement to the credit bureau, to be kept in your file, explaining why you think the record is inaccurate. The credit bureau must include a summary of your statement about disputed information with any report it issues about you.
“ ‘The Federal Trade Commission regulates credit bureaus and credit repair organizations. For more information contact:
“ ‘The Public Reference Branch
“ ‘Federal Trade Commission
“ ‘Washington, D. C. 20580’.
“(b) Separate statement requirement
“The written statement required under this section shall be provided as a document which is separate from any written contract or other agreement between the credit repair organization and the consumer or any other written material provided to the consumer.
“(c) Retention of compliance records
“(1) In general
“The credit repair organization shall maintain a copy of the statement signed by the consumer acknowledging receipt of the statement.
“(2) Maintenance for 2 years
“The copy of any consumer’s statement shall be maintained in the organization’s files for 2 years after the' date on which the statement is signed by the consumer.”
* * *
Section 1679g provides:
“(a) Liability established
“Any person who fails to comply with any provision of this subchapter with respect to any other person shall be liable to such person in an amount equal to the sum of the amounts determined under each of the following paragraphs:
“(1) Actual damages
“The greater of—
“(A) the amount of any actual damage sustained by such person as a result of such failure; or
“(B) any amount paid by the person to the credit repair organization.
“(2) Punitive damages
“(A) Individual actions
“In the case of any action by an individual, such additional amount as the court may allow.
“(B) Class actions
“In the case of a class action, the sum of—
“(i) the aggregate of the amount which the court may allow for each named plaintiff; and
“(ii) the aggregate of the amount which the court may allow for each other class member, without regard to any minimum individual recovery.
“(3) Attorneys’ fees
“In the case of any successful action to enforce any liability under paragraph (1) or (2), the costs of the action, together with reasonable attorneys’ fees.
“(b) Factors to be considered in awarding punitive damages
“In determining the amount of any liability of any credit repair organization under subsection (a)(2) of this section, the court shall consider, among other relevant factors—
“(1) the frequency and persistence of noncompliance by the credit repair organization;
“(2) the nature of the noncompliance;
“(3) the extent to which such noncompliance was intentional; and
“(4) in the case of any class action, the number of consumers adversely affected.”
The District Court said that petitioners do not dispute that they come within this definition. See 617 F. Supp. 2d 980, 984, n. 2 (ND Cal. 2009). The Ninth Circuit did not address that issue, see 615 F. 3d 1204,1207, n. 3 (2010), nor do we.
Accordingly, when a consumer sues to enforce liability under the CROA, he does so under § 1679g(a), not “in light of § 1679c,” post, at 113 (Ginsburg, J., dissenting). An action under the CROA need not refer to § 1679c at all, unless it is based on the company’s failure to provide the statement required under that section. Section 1679g(a) creates the “right” at issue and describes it in detail not contained in § 1679e’s summary. When determining the scope of that right, it is therefore § 1679g(a) — and not § 1679c — that must govern.
Gilmer noted that the ADEA had been amended after conclusion of the arbitration agreement in that case to preclude waiver of “rights or claims that may arise after the date the waiver is executed.” 29 U. S. C. § 626(f)(1)(C). The Court said in dictum that this provision “did not explicitly preclude arbitration or other nonjudicial resolution of claims,” 500 U. S., at 29.
The dissent questions the relevance of these statutes, since they postdated the CROA and since this Court’s intervening decisions compelling arbitration “increasingly alerted Congress to the utility of drafting anti-waiver prescriptions with meticulous care.” Post, at 116. But as the dissent implicitly recognizes, Congress had been “alerted” much before these post-CROA statutes were passed. The CROA itself followed a series of this Court’s seminal decisions compelling arbitration, decisions which held that the FAA had established a ‘“federal policy favoring arbitration,’” Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26 (1991), and that “[t]he burden is on the party opposing arbitration ... to show that Congress intended to preclude a waiver of judicial remedies,” Shear son/American Express Inc. v. McMahon, 482 U. S. 220, 227 (1987). To the extent Congress is ever “stimulated” by this Court’s decisions, post, at 116, there is no reason to think the Congress that enacted the CROA was any less stimulated than subsequent Congresses.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_geniss
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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 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 UNITED STATES of America, Petitioner.
No. 81-1517.
United States Court of Appeals, First Circuit.
Argued Oct. 7, 1981.
Decided Dec. 7, 1981.
Douglas P. Woodlock, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for petitioner.
Gael Mahony, with whom Robert G. Dreher, and Hill & Barlow, Boston, Mass., were on brief, for respondent.
John S. Leonard and The McLaughlin Brothers, Boston, Mass., on brief, for James A. Kelly, Jr.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
COFFIN, Chief Judge.
This petition for mandamus is brought by a United States Attorney and seeks the enforced recusal of a United States district judge from further proceedings in a federal criminal prosecution.
During the spring of 1981, former Massachusetts state Senator James A. Kelly, Jr., was tried in Boston for extortion in violation of federal law. 18 U.S.C. § 1951. The government charged that he had wielded his power as a state senator and Chairman of the Senate Ways and Means Committee to exact $34,000 from an architectural firm, promising to influence the award of architectural contracts. United States District Judge Joseph L. Tauro, assigned by random draw, conducted the 25-day trial which ended on April 29 in the declaration of a mistrial when the jury reached an eleven-to-one deadlock after approximately thirteen hours of deliberation.
On June 16, in the course of proceedings preparatory to a retrial, the United States Attorney responsible for the prosecution filed a motion for disqualification of the judge under 28 U.S.C. § 455(a). The judge, on July 9, issued a lengthy memorandum discussing the sufficiency of the allegations justifying recusal and denied the motion. He further suggested that this court in the exercise of its supervisory powers give prompt consideration to the propriety of his action. We declined to take this approach. Subsequently the prosecutor brought this petition.
The Facts
The essence of the prosecution’s motion for disqualification and this petition is that the combination of (1) the judge’s past and present close professional and personal relationship with former Massachusetts Governor John Volpe, (2) defendant Kelly’s reported helpfulness to the governor during a 1966 legislative investigation chaired by Kelly, and (3) the judge’s own reported involvement in that proceeding as the governor’s legal counsel would compel a reasonable observer to doubt that the judge would be impartial in any future proceeding or retrial connected with this prosecution. The prosecutor makes a subsidiary argument: because of the appearance of bias arising from these factors, several rulings during the trial lend themselves to the interpretation that they were the result of the bias.
We discuss the relevant facts in several time frames — what the prosecutor was aware of before the case went to trial, what was reported by newspaper columnists soon after the mistrial was declared, and what was revealed by an FBI investigation spurred by one of the newspaper accounts. Before the case went to trial, the U.S. Attorney was aware that the judge, before ascending to the bench, had been chief legal counsel for Governor Volpe in 1966 when Senator Kelly, a Democrat, had chaired a legislative investigation of the Republican Volpe administration; that the investigation focussed on the way in which the administration awarded architectural contracts; that Kelly had supposedly handled the matter in a manner favorable to the administration; and that there were vague rumors to the effect that the judge and Kelly had known each other during that period.
Early in January, 1981, the U.S. Attorney approached the judge about the possibility that he should disqualify himself from another case. In the course of discussing this matter, the judge brought up the fact that a reporter had just told him he should not sit on the Kelly case. He went on to say that the only role he had played in the administration’s defense during the 1966 investigation was to consult with attorney Walter McLaughlin who represented Governor Volpe’s brother, also under investigation. At this point, the U.S. Attorney felt that he had no specific, reliable information about the roles of the judge and Kelly in the investigation or the degree of the judge’s relationship with Volpe.
Subsequently, during the trial, the prosecutor received queries “from a variety of sources, including members of the bar, the judiciary, the press and politicians” about the propriety of the judge presiding over this particular trial. The issue came into public view when two articles appeared in the Boston papers. On May 20, three weeks after the declaration of mistrial, Boston Herald American columnist, Peter Lucas, wrote that “Tauro knew Kelly. State House observers believed that Kelly went in the tank to Volpe on that investigation.” While publicly questioning the propriety of the judge continuing to preside over the case, the columnist did not supply the prosecutor with any new information.
Shortly thereafter another columnist, David Wilson, writing for the Boston Globe, brought the issue to a head. In a June 1 column he noted that in 1966 the judge had been in the inner circle of Governor Volpe’s Republican campaign forces, that the judge owed his appointment as a judge to Volpe, that Volpe’s campaign had been threatened by the investigation, and that Kelly was the chairman of the investigatory committee. “[W]hen the Volpe organization communicated its wishes to Chairman Kelly, the communicator, so far as anyone in Kelly’s hearing room could tell, was Atty. Joseph L. Tauro. Frequent Tauro-Kelly conferences had Democratic members seething.” Wilson stated that Kelly had wanted to withhold publication of the committee’s report until after the election. The impression conveyed was that the judge appeared to have reason for gratitude for favors rendered to him as the result of his personal communications with Kelly.
The Wilson article caused the prosecutor to instigate an FBI investigation to probe the facts of the reported relationships. He felt that inaction was no longer appropriate: specific allegations — in particular the labelling of the judge as “communicator”— created a previously unknown cause for concern. The FBI investigation, which involved interviews with some fifteen persons who had been involved in or close to the 1966 hearings, turned up no evidence whatsoever that the judge had ever communicated with Kelly concerning the investigation or had ever had any conferences with him. Although the investigation provided no support for the triggering allegation that the judge was “the communicator”, it did reveal in detail the roles of various individuals in the 1966 hearings.
One focus of the investigation was the nature of the judge’s involvement in the 1966 hearings. He did not directly participate, there being other attorneys representing the specific targets of the contract award inquiry, but he did play a substantial role by preparing witnesses, planning strategy, consulting closely with Walter McLaughlin, the attorney representing the governor’s brother, attending hearings as an observer, and reporting to the governor. There was no evidence that he ever conferred with any of the committee members.
A second focus of the FBI investigation was the issue of bias in favor of the Volpe administration on the part of Senator Kelly. The principal source of information tending to show such bias was a conversation between FBI agents and one Beryl W. Cohen, in 1966 a senator and member of Kelly’s committee and also a Democratic candidate for the office of lieutenant governor. Cohen recalled that Kelly had initially tried to control the hearings, not allowing others to ask questions and not asking probing questions himself, but soon lost this control when others gained the right to ask questions. After the hearings were over, Cohen, feeling that Kelly was not going to submit a written report, found someone to prepare a report. Cohen felt there had to be some arrangement between Kelly and the Volpe administration but never learned what it was. In addition to Cohen’s views, the investigation revealed that Kelly had characterized the investigation as “political”, adding that “everything is political”, had leaked a copy of the report to the governor’s office, and, though a Democrat, had supported the governor’s sales tax proposal.
Factors in the report tending to contradict or minimize Kelly’s bias include Cohen’s posture as a candidate for top office in an election year who had an incentive to exploit to the maximum any legislative inquiry into an opposing administration; the fact that the committee had neither staff nor funding for help in preparing a report; and the fact that in any event Kelly not only signed the report but presented it at a press conference. The report did contain damaging material but had little impact, Volpe winning reelection overwhelmingly. One conclusion emerges clearly. Whether or not Kelly was a biased chairman, by conviction or prearrangement, he does not seem to have had much influence on the outcome of his committee’s work.
A third area of information in the FBI report was the close personal and professional relationship between the judge and Governor Volpe. Professionally, the judge, when serving as legal counsel, was also part of Volpe’s “kitchen cabinet” and, indeed, was the only person apart from the chief secretary to have direct access to the governor. The ties of personal friendship were close and longstanding. Volpe’s wife was the attending nurse at the judge’s birth. The judge’s father previously had served as Volpe’s legal counsel until Volpe appointed him to the Massachusetts Superior Court, and, reportedly, the judge owed his nomination for the position of district court judge to Volpe’s efforts. The judge’s personal regard for Volpe continues to this day.
In addition to the FBI report, the prosecutor was influenced by what he called the “parallelism” of the 1966 investigation and the Kelly trial. The subject matter at issue — extortion in the granting of architectural contracts — was the same. The cast of characters was similar, although their positions had changed. The judge had been legal counsel in 1966. Kelly, then “prosecutor”, was now defendant. Moreover, Kelly was represented at trial by George A. McLaughlin, nephew and then-partner of the Walter McLaughlin who has represented Peter Volpe in the 1966 investigation, although now engaged in a separate practice. Finally, two key government witnesses against Kelly, Frank and William Masiello of the firm from which Kelly allegedly extorted money, had recently testified before an investigating commission that people formerly associated with the Volpe administration, including members of the “kitchen cabinet”, were involved in arranging awards of architectural contracts in exchange for political contributions.
In sum, the prosecutor feared that the judge’s involvement in the 1966 investigation would have made him aware of Kelly’s apparently favorable actions in a proceeding potentially damaging to his close personal, political, and professional associate, Volpe, and that this incentive to return a favor, together with the “parallelisms”, could give the public reason to believe that the judge might favor Kelly in the present proceeding whenever possible. In addition, there was the possibility that the Masiellos’ previous tarnishing of the Volpe reputation might create the suspicion that the judge would be unduly harsh upon the Masiellos when appearing as witnesses in this case. The government points to rulings made during Kelly’s trial that it says substantiate the appearance of partiality. All of this evidence the government found sufficient to justify the filing of a motion for disqualification.
Before beginning our analysis of the propriety of the judge’s denial of that motion, we note that these relationships and parallelisms were in large outline obvious long before the Kelly trial began. Some of the information provided by the FBI investigation may have given the prosecutor new detail, but much duplicated what had already been known. These circumstances illustrate the problem that arises when a litigant files a motion for recusal after the trial is concluded. He may have proceeded with the first trial to test the court’s reaction only later to marshal previously known information in an attempt to get the proverbial second bite at the apple. Even if a litigant were not consciously attempting to manipulate the circumstances to his benefit, the potential waste of judicial resources alone requires that a motion for disqualification be timely filed. See generally In re International Business Machines Corp., 618 F.2d 923, 932-34 (2d Cir. 1980). While we accept the prosecutor’s position that he had not felt that an earlier motion to disqualify would have been justified by the facts then available to him and do not find this motion to be untimely, the issue as to timeliness is close. A ruling that the motion to disqualify was not timely might arguably have been sustainable.
Our Standard of Review
Although we maintain a standing watch over attempted piecemeal review, whether by interlocutory appeal or petitions for writs of mandamus, see In re Continental Investment Corp., 637 F.2d 1 (1st Cir. 1980), the issue of judicial disqualification presents an extraordinary situation suitable for the exercise of our mandamus jurisdiction. See, e.g., In re International Business Machines Corp., supra, 618 F.2d at 927; In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 961 n.4 (5th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980); SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977) (per curiam); In re Rodgers, 537 F.2d 1196, 1197 n.1 (4th Cir. 1976) (per curiam); cf. Pfizer, Inc. v. Lord, 456 F.2d 532, 536 (8th Cir. 1972) (per curiam). A case involving a motion for disqualification is clearly distinguishable from those where a party alleges an error of law that, despite the hardship of delay, may be fully addressed and remedied on appeal. See United States v. Kane, 646 F.2d 4, 9-10 (1st Cir. 1981). In the case at bar, the issue of partiality has been broadly publicized, and the claim of bias cannot be labelled as frivolous and deferred until final appeal. “[Pjublic confidence in the courts [requires] that such a question be disposed of at the earliest possible opportunity.” In re Union Leader Corp., 292 F.2d 381, 384 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961).
Turning now to the question of the standard governing our decision, we start with the statutory provision that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”. 28 U.S.C. § 455(a). We deem it of first importance to recognize at the outset the twin — and sometimes competing — policies that bear on the application of this standard. The first and most obvious policy is that courts must not only be, but must seem to be, free of bias or prejudice. To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective, person. See H.Rep.No. 1453, 93d Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News 6351, 6355.
A second and less obvious policy is that a judge once having drawn a case should not recuse himself on a unsupported, irrational, or highly tenuous speculation; were he or she to do so, the price of maintaining the purity of appearance would be the power of litigants or third parties to exercise a negative veto over the assignment of judges. Because there exists this second policy, our inquiry cannot stop with the questions: have a number of people thought or said that a judge should not preside over a given case? has the judge’s failure to recuse himself been a subject of unfavorable comment in the media? or, would the judge have avoided controversy and the need for appellate review if he had stepped aside? Instead, we must conduct our review in accordance with ground rules designed to determine when the fear of partiality is real and strong enough to require disqualification.
First, a charge of partiality must be supported by a factual basis. See, e.g., United States v. Mirkin, 649 F.2d 78, 82 (1st Cir. 1981); United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977); accord, H.Rep.No. 1453, 1974 U.S. Code Cong. & Admin.News, supra, at 6355. Although public confidence may be as much shaken by publicized inferences of bias that are false as by those that are true, a judge considering whether to disqualify himself must ignore rumors, innuendos, and erroneous information published as fact in the newspapers. Compare United States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir. 1978) with Spires v. Hearst Corp., 420 F.Supp. 304, 307 (D.C.Cal.1976). To find otherwise would allow an irresponsible, vindictive or self-interested press informant and/or an irresponsible, misinformed or careless reporter to control the choice of judge. Second, disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality. Were less required, a judge could abdicate in difficult cases at the mere sound of controversy or a litigant could avoid adverse decisions by alleging the slightest of factual bases for bias. See H.Rep.No. 1453, 1974 U.S.Code Cong. & Admin.News, supra, at 6355. This restricted mandate to disqualify is calculated to induce a judge to tread the narrow path between timidity and tenacity.
We recognize that the analysis of allegations, the balancing of policies, and the resulting decision whether to disqualify are in the first instance committed to the district judge. And, since in many cases reasonable deciders may disagree, the district judge is allowed a range of discretion. The appellate court, therefore, must ask itself not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by reasonable reading of the record. Moreover, in this case, which comes to us by a petition for mandamus, the party seeking the writ of mandamus must show a “clear and indisputable” right to relief. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); In re International Business Machines Corp., supra, 618 F.2d at 926; In re Corrugated Container Antitrust Litigation, supra, 614 F.2d at 962.
Applying the Standard
We now turn to consideration of whether on the facts before us a reasonable person would clearly have doubted the judge’s impartiality. Certainly some of the public and press did question his impartiality, but to the extent that the doubts were created by representations of the press shown to be not grounded in fact, they cannot require disqualification. What we have referred to as the event triggering the FBI investigation, the Wilson article, aroused fears by publishing the claim that Tauro has been “the communicator” with Kelly, holding frequent conferences with Kelly that caused resentment. This centerpiece claim never having been supported in the slightest degree, we must disregard it and any impressions of partiality it may have created. Attempting to exorcise this factor from our analysis is difficult, but our analysis must be limited to more indirect relationships and potentials for bias.
Basic to our analysis is the undisputed conclusion that the judge did in fact have a close relationship with Governor Volpe. It is from this relationship that the government infers two different causes for an appearance of partiality: it reasons that the judge’s allegiance to Volpe would appear to cause him to reward Kelly for handling the 1966 investigation in a manner favorable to Volpe, and that his allegiance to Volpe might make the public doubt his ability to respond impartially to the Masiellos when they appear as witnesses at Kelly’s trial. The success of the argument that the judge’s gratitude to Kelly will cause an appearance of impartiality depends upon finding that a reasonable person would conclude (1) that Kelly actually did act in a manner favorable to Volpe during the 1966 investigation, (2) that the judge was aware of Kelly’s actions, and (3) that the feeling of gratitude was so deep and enduring as to cause him to act in a biased manner today.
Addressing the second factor first, we think it clear that the judge would have been aware of the manner in which Kelly conducted the hearings and sensitive to any favorable treatment given the administration. The first query — whether Kelly actually did favor the administration — is more difficult. As our earlier discussion of the investigation indicates, Kelly’s actions can be interpreted either as very partial toward the administration if viewed in light of then-Senator Cohen’s comments, or as fair in that Kelly asked some pointed, factual questions incriminating the administration and publicly stood behind the report when it was written. Given this contradictory evidence, the linchpin of the government’s case is weak. Kelly may have been no more than a chairman interested in a fair hearing. Even indulging inferences favorable to the prosecutor, we conclude that at most Kelly’s actions portray someone with less than a killer instinct or someone in the circumstances unable to give effective voice to such an instinct, or both. This perception, however, might well have provided a basis for the judge and others in Volpe’s camp to be thankful, at least until Kelly lost control of the committee.
The remaining factor — whether the judge’s awareness of Kelly’s favorable conduct fifteen years ago would prompt a reasonable observer to believe that the judge would be partial toward Kelly in a current criminal trial — is critical. As we have observed, even if Kelly’s motivation may have been to give the strongest help to the Volpe administration, his actual performance provided little assistance. Whether or not this was enough to generate a reasonable expectation of gratitude in the months immediately following the hearing, it surely lacks the significance to endure a decade and a half. Even, however, if one may assume the survival of some residue of gratitude after such a period, it is beyond contemplation that such gratitude would be of the weight necessary to cause a judge to jettison his impartiality and, in open court day after day, to violate his deepest professional and ethical commitments as a judge.
We turn to the second alleged reason for disqualification, that the Masiellos’ impugning of the Volpe administration during a recent investigation might give rise to suspicions that the judge would mistreat them during trial. While the Masiellos’ testimony before the commission may have made the judge feel uncomfortable by reason of his association with the incriminated kitchen cabinet members and defensive out of loyalty to Volpe, we do not think it clear enough that an objective person would find either his discomfort or loyalty sufficient to cause a reasonable doubt about his ability to deal with the Masiellos today in an impartial manner. Moreover, because the Masiellos are not repeating their previous testimony at the present trial and are not a party to the trial with any stake in the evidentiary rulings, it would seem to us that both the motive and opportunity for significant reprisal would be slim.
Our conclusions with respect to both of the possible causes of bias — gratitude to Kelly for his effort to help an old friend and hostility to the Masiellos for their damaging testimony — are strengthened by the implications of an opposite outcome. If the receipt by a judge’s friend of a favor long ago from one who is a present litigant should disqualify the judge, judges could hope to preside without challenge solely in communities in- which they are strangers. For when a judge presides in an area where he and his family have lived for one or more generations, the numbers of people who have, directly or indirectly, helped family members, relatives, close friends, and friends of friends would form a large and indeterminate community. So also are there bound to be indefinite numbers of people who have been critical of or been on opposite sides of controversies with families, relatives, and friends. Not only would the role of judges be severely constricted by requiring disqualification under these circumstances but the result would reflect a more jaundiced view as to when there should be a reasonable doubt about a judge’s impartiality than accords with the public perception.
We freely recognize that there are many instances when past associations may require disqualification and we do not lightly deny relief in this instance. We are constrained, however, by our standard of review, requiring (1) that the government show that the judge has violated his considerable discretion to balance the need to disqualify himself to preserve public faith in impartiality against the reasons for sitting when there is not sufficient reason for disqualification and (2) that this showing be strong enough to establish a “clear and indisputable” right to a writ of mandamus. Even viewing all of the facts and inferences in a manner most favorable to the government, we cannot say that the only conclusion on this record as a matter of law is that the judge should have disqualified himself. Such a ruling would go far to establish the precedent that any suspicion of partiality, though tenuous and remote in origin, would suffice to compel disqualification.
Despite our conclusion that the factual basis is not sufficient to persuade a reasonable observer of an appearance of partiality, we take one additional step and look at the judge’s conduct at trial to see whether it reveals any grounds that might cause an observer to doubt his impartiality. It may well be that our inquiry should end before taking this step. See Brody v. President & Fellows of Harvard College, 664 F.2d 10 at 12 (1st Cir. Nov. 16, 1981). The government has stated that the judge’s conduct at trial is significant only in the context of the appearance of bias arising from the relationships discussed above, a context already demonstrated not to support such an appearance. Recognizing, however, that this case is largely a product of interest generated by the press and that the interest continues to be widespread, and wishing to avoid the impression that we have not examined all claims that have been made, we proceed to examine the judge’s challenged trial conduct. We have reviewed in detail the government’s claims that certain rulings evidence an appearance of partiality and report our findings very summarily. More detail would dignify a kind of attack that should be reserved for only the most egregious rulings, the danger being that to give more detailed answers would allow the government an appeal on trial rulings to which it is not now entitled.
In the course of a twenty-five day trial we can assume that there must have been at least several hundred rulings. Of these, the government has objected primarily to only a handful of evidentiary rulings on the testimony of five witnesses and the admission of one exhibit. In addition, it cites the judge’s jury instructions and his declaration of a mistrial as evidence of an appearance of bias. None of these objections, as illustrated below, have substance enough to fill the gap we have already found to exist in the government’s case.
The government objects to a ruling that prevented examination of one of the witnesses’ state of mind about the purpose of the “retainer” he paid to Kelly’s firm when, regardless of the correctness of that ruling, the witness was still allowed to testify over Kelly’s objection to a similar end that he had told another person that Kelly was trying to extort money from the corporation. Another objection is that the government was not allowed for technical reasons to rehabilitate one of its witnesses, a ruling which, again, whether correct or not, was counterbalanced by the fact that the same witness testified that his purpose in authorizing the retainer to the Kelly firm was to obtain new business. This was a basis, if believed, for finding Kelly guilty. Another example is the government’s complaint about the exclusion of a prior inconsistent statement, an objection that ignores the fact that such statements are admissible only if made when the witness had no reason to testify falsely and that the witness had already been promised immunity. Still another is the objection to the exclusion of the testimony that allegedly would have affected the running of the limitations period by clearly establishing when the most recent payments had occurred. Our reading of the records, however, has revealed no specific exclusions of specific dates.
One last contention that we note is the argument that the judge appeared to be biased when he declared a mistrial after the jurors had reached an eleven-to-one deadlock following approximately thirteen hours of deliberation. The government thinks the time for deliberation too short to declare a mistrial, given a twenty-five day trial, but it had agreed to the volley of notes to the jury that probed the issue of deadlock and precipitated the declaration of mistrial. We emphasize in passing the salient fact that the division in the jury was eleven for conviction to one for acquittal. An objective observer, we think, would conclude that this result hardly points to a twenty-five day effort by an able judge to favor the defendant.
In sum, we might, if forced to make rulings now — a result that should be avoided to prevent the inevitable distortion of an appeal — find that some of the judge’s rulings were indisputably correct, some marginal, and some in error, though whether reversible or not would, without more specific research, be impossible to say. This is not the kind of record in light of the total context that would compel us to require that the judge not conduct any further proceedings in this matter.
The petition for writ of mandamus is denied.
In this respect, the standard for judicial disqualification is not quite on the same plane as the standard for judging Caesar’s wife. It will be recalled that Caesar dismissed his wife Pompeia for having supposedly been the object of an amorous house breaking committed by Clodius even though he had nothing to charge Clodius with when he was summoned as a witness. Caesar dealt with the paradox by saying, “I wish my wife to be not so much as suspected.” Plutarch, The Lives of the Noble Grecians and Romans 860 (Modem Library, N.Y.). In other words, Caesar was willing to base the decision as to spousal removal on suspicion alone, whether reasonable or not.
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_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES ex rel. CRIST v. RAGEN.
No. 8933.
Circuit Court of Appeals, Seventh Circuit.
Oct. 29, 1946.
George F. Barrett and William C. Wines, both of Chicago, 111., for appellant.
No appearance for appellee.
Before MAJOR and MINTON, Circuit Judges, and BRIGGLE, District Judge.
MAJOR, Circuit Judge.
This is an appeal from an order entered June -26, 1945, granting a discharge to petitioner Crist upon his petition for a writ of habeas corpus. The required certificate of probable cause appears in the record and this court therefore has jurisdiction.
The following pertinent facts appear in the record: Petitioner Crist was convicted in March 1926, of grand larceny and sentenced by the Circuit Court of Iroquois County to serve a term of not less than one year or more than 10 years in the Illinois State Penitentiary at Joliet, Illinois. Petitioner was incarcerated in the Illinois Penitentiary until December 1929, when he was paroled, at his own request, to Detroit, Michigan. Petitioner admittedly violated his parole by failing to submit required reports and also by returning to Illinois. He was arrested on April 19, 1930, in Decatur, Illinois, on suspicion of having, with others, committed several robberies throughout central Illinois. A warrant for parole violation was issued on April 22, 1930, by the Warden of the Illinois Penitentiary and forwarded to the Sheriff at Decatur. Before the Sheriff received this parole violator’s warrant, he had surrendered petitioner to Indiana authorities upon presentation by them of papers signed by the Governor of Illinois permitting extradition. After this extradition, petitioner was convicted of bank robbery in the Indiana court and sentenced to life imprisonment. He started service of this sentence in May 1930, and was released by the Indiana authorities in October 1943. Upon his release by the Indiana officials, he was returned to Illinois, upon a parole violator’s warrant, declared a parole violator by the Illinois parole board and reincar-cerated in the Illinois Penitentiary to serve the remainder of his sentence.
After such incarceration, petitioner filed petitions for writs of habeas corpus in the Iroquois County Circuit Court (county of conviction), Will, County Circuit Court (county of incarceration) and the Illinois Supreme Court, which petitions were denied. He sought certiorari to review the action of the Illinois Supreme Court but did not petition for certiorari to review the action of the other two courts. It is pertinent to note that the record discloses that the petitions, which were denied in the Illinois courts, contained the same allegations as are herein present.
Upon the facts as stated, the District Court decided that it had jurisdiction, that the petitioner had exhausted his state court remedies, and that the State of Illinois waived jurisdiction of petitioner by extraditing him while he was on parole from its penal institution.
The respondent contends (1) that the federal court had no jurisdiction because (a) no federal question was presented by the petition, (b) there was no exhaustion of state court remedies, and (2) that even if the first contention be incorrect the lower court’s determination of the merits is erroneous.
The petition raises this question: Does the allowance by the Governor of Illinois of extradition of petitioner (admittedly a parole violator) while on parole amount to a pardon or commutation of the remainder of petitioner’s sentence as yet unserved and to a waiver of the right of the State of Illinois to reincarcerate petitioner for service of the remainder of his sentence?
We are of the opinion that the question stated presents a problem properly justiciable under the laws of Illinois. ■ The effect of the Governor’s action, in our opinion, presents a non-federal question. Therefore, the lower court should have refused to entertain the petition for a writ of habeas corpus. White v. Ragen, 324 U. S. 760, 65 S.Ct. 978, 89 L.Ed. 1348; United States ex rel. Mazy v. Ragen, 7 Cir., 149 F. 2d 948, 950. We are-further of the view that “we cannot say that the refusal [of the Illinois courts] to entertain the petitions for habeas corpus * * * does not rest on an adequate non-federal ground,” and thé petition should have been dismissed. White v. Ragen, supra, 324 U.S. 760, 766, 65 S.Ct. 982, 89 L.Ed. 1348. Furthermore, assuming that a federal question is presented, the petition still should have been dismissed because of the failure to exhaust state court remedies. White v. Ragen, supra; Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 88 L.Ed. 572; United States ex rel. Mazy v. Ragen, supra; United States ex rel. Johnston v. Carey, 7 Cir., 141 F.2d 967, 968; Kelly v. Dowd, 7 Cir., 140 F.2d 81, 82; Herzog v. Colpoys, 79 U.S.App.D.C. 81, 143 F.2d 137, 138; Davis v. Smyth, 4 Cir., 155 F.2d 3, 5.
The judgment of the lower court is reversed, with directions to dismiss the petition for a writ of habeas corpus.
MINTON, Circuit Judge, concurs in the result.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_petitioner
|
035
|
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.
LEOCAL v. ASHCROFT, ATTORNEY GENERAL, et al.
No. 03-583.
Argued October 12, 2004
Decided November 9, 2004
Rehnquist, C. J., delivered the opinion for a unanimous Court.
J. Sedwick Sollers III argued the cause for petitioner. With him on the briefs were Patricia L. Maher and Michael J. Ciatti
Dan Himmelfarb argued the cause for respondents. With him on.the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitors General Dreeben and Kneedler, Donald E. Keener, and Greg D. Mack.
Briefs of amici curiae urging reversal were filed for Citizens and Immigrants for Equal Justice et al. by Carmine D. Boccuzzi, Jr.; for the Midwest Immigrant & Human Rights Center by Shashank S. Upadhye; and for the National Association of Criminal Defense Lawyers et al. by Paul A. Engelmayer, Douglas F. Curtis, Joshua L. Dratel, Lucas Guttentag, Steven R. Shapiro, Robin L. Goldfaden, Lory Diana Rosenberg, Jeanne A. Butterfield, Marianne Yang, and Manuel D. Vargas.
Chief Justice Rehnquist
delivered the opinion of the Court.
Petitioner Josué Leocal, a Haitian citizen who is a lawful permanent resident of the United States, was convicted in 2000 of driving under the influence of alcohol (DUI) and causing serious bodily injury, in violation of Florida law. See Fla. Stat. §316.193(3)(c)(2) (2003). Classifying this conviction as a “crime of violence” under 18 U. S. C. § 16, and therefore an “aggravated felony” under the Immigration and Nationality Act (INA), an Immigration Judge and the Board of Immigration Appeals (BIA) ordered that petitioner be deported pursuant to § 237(a) of the INA. The Court of Appeals for the Eleventh Circuit agreed, dismissing petitioner’s petition for review. We disagree and hold that petitioner’s DUI conviction is not a crime of violence under 18 U. S. C. §16.
Petitioner immigrated to the United States in 1980 and became a lawful permanent resident in 1987. In January 2000, he was charged with two counts of DUI causing serious bodily injury under Fla. Stat. §316.193(3)(c)(2), after he caused an accident resulting in injury to two people. He pleaded guilty to both counts and was sentenced to 2lA years in prison.
In November 2000, while he was serving his sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings against him pursuant to § 237(a) of the INA. Under that provision, “[a]ny alien who is convicted of an aggravated felony... is deportable” and may be removed upon an order of the Attorney General. 66 Stat. 201, 8 U. S. C. § 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, “a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U. S. C. § 1101(a)(43)(F) (footnote omitted). Title 18 U. S. C. § 16, in turn, defines the term “crime of violence” to mean:
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Here, the INS claimed that petitioner’s DUI conviction was a “crime of violence” under § 16, and therefore an “aggravated felony” under the INA.
In October 2001, an Immigration Judge found petitioner removable, relying upon the Eleventh Circuit’s decision in Le v. United States Attorney General, 196 F. 3d 1352 (1999) (per curiam), which held that a conviction under the Florida DUI statute qualified as a crime of violence. The BIA affirmed. Petitioner completed his sentence and was removed to Haiti in November 2002. In June 2003, the Court of Appeals for the Eleventh Circuit dismissed petitioner’s petition for review, relying on its previous ruling in Le, supra. App. to Pet. for Cert. 5a-7a. We granted certiorari, 540 U. S. 1176 (2004), to resolve a conflict among the Courts of Appeals on the question whether state DUI offenses similar to the one in Florida, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, qualify as a crime of violence. Compare Le, supra, at 1354; and Omar v. INS, 298 F. 3d 710, 715-718 (CA8 2002), with United States v. Trinidad-Aquino, 259 F. 3d 1140, 1145-1146 (CA9 2001); Dalton v. Ashcroft, 257 F. 3d 200, 205-206 (CA2 2001); Bazan-Reyes v. INS, 256 F. 3d 600, 609-611 (CA7 2001); and United States v. Chapa-Garza, 243 F. 3d 921, 926-927 (CA5), amended, 262 F. 3d 479 (CA5 2001) (per curiam); see also Ursu v. INS, 20 Fed. Appx. 702 (CA9 2001) (following Trinidad-Aquino, supra, and ruling that a violation of the Florida DUI statute at issue here and in Le does not count as a “crime of violence”). We now reverse the Eleventh Circuit.
Title 18 U. S. C. § 16 was enacted as part of the Comprehensive Crime Control Act of 1984, which broadly reformed the federal criminal code in such areas as sentencing, bail, and drug enforcement, and which added a variety of new violent and nonviolent offenses. § 1001(a), 98 Stat. 2136. Congress employed the term “crime of violence” in numerous places in the Act, such as for defining the elements of particular offenses, see, e. g., 18 U. S. C. § 1959 (prohibiting threats to commit crimes of violence in aid of racketeering activity), or for directing when a hearing is required before a charged individual can be released on bail, see § 3142(f) (requiring a pretrial detention hearing for those alleged to have committed a crime of violence). Congress therefore provided in §16 a general definition of the term “crime of violence” to be used throughout the Act. See § 1001(a), 98 Stat. 2136. Section 16 has since been incorporated into a variety of statutory provisions, both criminal and noneriminal.
Here, pursuant to § 237(a) of the INA, the Court of Appeals applied §16 to find that petitioner’s DUI conviction rendered him deportable. In determining whether petitioner’s conviction falls within the ambit of § 16, the statute directs our focus to the “offense” of conviction. See § 16(a) (defining a crime of violence as “an offense that has as an element the use... of physical force against the person or property of another” (emphasis added)); § 16(b) (defining the term as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (emphasis added)). This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.
Florida Stat. § 316.193(3)(c)(2) makes it a third-degree felony for a person to operate a vehicle while under the influence and, “by reason of such operation, eaus[e]... [s]erious bodily injury to another.” The Florida statute, while it requires proof of causation of injury, does not require proof of any particular mental state. See State v. Hubbard, 751 So. 2d 552, 562-564 (Fla. 1999) (holding, in the context of a DUI manslaughter conviction under § 316.193, that the statute does not contain a mens rea requirement). Many States have enacted similar statutes, criminalizing DUI causing serious bodily injury or death without requiring proof of any mental state, or, in some States, appearing to require only proof that the person acted negligently in operating the vehicle. The question here is whether § 16 can be interpreted to include such offenses.
Our analysis begins with the language of the statute. See Bailey v. United States, 516 U. S. 137, 144 (1995). The plain text of § 16(a) states that an offense, to qualify as a crime of violence, must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” We do not deal here with an at tempted, or threatened use of force. Petitioner contends that his conviction did not require the “use” of force against another person because the most common employment of the word “use” connotes the intentional availment of force, which is not required under the Florida DU I statute. The Government counters that the “use” of force does not incorporate any mens rea component, and that petitioner’s DUI conviction necessarily includes the use of force. To support its position, the Government dissects the meaning of the word “use,” employing dictionaries, legislation, and our own case law in contending that a use of force may be negligent or even inadvertent.
Whether or not the word “use” alone supplies a mens rea element, the parties’ primary focus on that word is too narrow. Particularly when interpreting a statute that features as elastic a word as “use,” we construe language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U. S. 223, 229 (1993); Bailey, supra, at 143. The critical aspect of § 16(a) is that a crime of violence is one involving the “use... of physical force against the person or property of another.” (Emphasis added.) As we said in a similar context in Bailey, “use” requires active employment. 516 U. S., at 145. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use... physical force against” another when pushing him; however, we would not ordinarily say a person “use[s]... physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning. Smith, supra, at 228. The key phrase in § 16(a) — the “use.... of physical force against the person or property of another” — most naturally suggests a higher degree of intent than negligent or merely accidental conduct. See United States v. Trinidad-Aquino, 259 F. 3d, at 1145; Bazan-Reyes v. INS, 256 F. 3d, at 609. Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).
Neither is petitioner’s DUI conviction a crime of violence under § 16(b). Section 16(b) sweeps more broadly than § 16(a), defining a crime of violence as including “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” But § 16(b) does not thereby encompass all negligent misconduct, such as the negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.
Thus, while § 16(b) is broader than § 16(a) in the sense that physical force need not actually be applied, it contains the same formulation we found to be determinative in § 16(a): the use of physical force against the person or property of another. Accordingly, we must give the language in § 16(b) an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. This is particularly true in light of § 16(b)’s requirement that the “substantial risk” be a risk of using physical force against another person “in the course of committing the offense.” In no “ordinary or natural” sense can it be said that a person risks having to “use” physical force against another person in the course of operating a vehicle while intoxicated and causing injury.
In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. Cf. United States v. Doe, 960 F. 2d 221, 225 (CA1 1992) (Breyer, C. J.) (observing that the term “violent felony” in 18 U. S. C. § 924(e) (2000 ed. and Supp. II) “calls to mind a tradition of crimes that involve the possibility of more closely related, active violence”). Interpreting §16 to encompass accidental or negligent conduct would blur the distinction between the “violent” crimes Congress sought to distinguish for heightened punishment and other crimes. See United States v. Lucio-Lucio, 347 F. 3d 1202, 1205-1206 (CA10 2003).
Section 16 therefore cannot be read to include petitioner’s conviction for DUI causing serious bodily injury under Florida law. This construction is reinforced by Congress’ use of the term “crime of violence” in § 101(h) of the INA, which was enacted in 1990. See Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, § 131, 104 Stat. 31 (hereinafter FRAA). Section 212(a)(2)(E) of the INA renders inadmissible any alien who has previously exercised diplomatic immunity from criminal jurisdiction in the United States after committing a “serious criminal offense.” 8 U. S. C. § 1182(a)(2)(E). Section 101(h) defines the term “serious criminal offense” to mean:
“(1) any felony;
“(2) any crime of violence, as defined in section 16 of title 18; or
“(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.” 8 U. S. C. § 1101(h) (emphasis added).
Congress’ separate listing of the DUI-causing-injury offense from the definition of “crime of violence” in § 16 is revealing. Interpreting §16 to include DUI offenses, as the Government urges, would leave § 101(h)(3) practically devoid of significance. As we must give effect to every word of a statute wherever possible, see Duncan v. Walker, 533 U. S. 167, 174 (2001), the distinct provision for these offenses under § 101(h) bolsters our conclusion that § 16 does not itself encompass DUI offenses.
This case does not present us with the question whether a state or federal offense that requires proof of the reckless use of force against the person or property of another qualifies as a crime of violence under 18 U. S. C. § 16. DUI statutes such as Florida’s do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less. Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate penalties. But this fact does not warrant our shoehorning it into statutory sections where it does not fit. The judgment of the United States Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Congress first made commission of an aggravated felony grounds for an alien’s removal in 1988, and it defined the term to include offenses such as murder, drug trafficking crimes, and firearm trafficking offenses. See Anti-Drug Abuse Act of 1988, §§ 7342, 7344, 102 Stat. 4469, 4470. Since then; Congress has frequently amended the definition of aggravated felony, broadening the scope of offenses which render an alien deportable. See, e. g., Antiterrorism and Effective Death Penalty Act of 1996, § 440(e), 110 Stat. 1277 (adding a number of offenses to § 101(a)(43) of the INA); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §321,110 Stat. 3009-627 (same). The inclusion of any “crime of violence” as an aggravated felony came in 1990. See Immigration Act of 1990, § 501, 104 Stat. 5048.
When petitioner first appealed, the BIA’s position was that a violation of DUI statutes similar to Florida’s counted as a crime of violence under 18 U. S. C. § 16. See, e. g., Matter of Puente-Salazar, 22 I. & N. Dec. 1006, 1012-1013 (BIA 1999) (en banc). Before petitioner received a decision from his appeal (due to a clerical error not relevant here), the BIA in another case reversed its position from Puente-Salazar and held that DUI offenses that do not have a mens rea of at least recklessness are not crimes of violence within the meaning of § 16. See Matter of Ramos, 23 I. & N. Dec. 336, 346 (BIA 2002) (en banc). However, because the BIA held in Ramos that it would “follow the law of the circuit in those circuits that have addressed the question whether driving under the influence is a crime of violence,” id., at 346-347, and because it found the Eleventh Circuit’s ruling in Le controlling, it affirmed the Immigration Judge’s removal order. See App. to Pet. for Cert. 1a-4a.
Pursuant to the IIRIRA, the Eleventh Circuit was without jurisdiction to review the BIA’s removal order in this case if petitioner was “removable by reason of having committed” certain criminal offenses, including those covered as an “aggravated felony.” See 8 U. S. C. § 1252(a)(2)(C). Because the Eleventh Circuit held that petitioner’s conviction was such an offense, it concluded that it had no jurisdiction to consider the removal order.
For instance, a number of statutes criminalize conduct that has as an element the commission of a crime of violence under § 16. See, e. g., 18 U. S. C. §842(p) (prohibiting the distribution of information relating to explosives, destructive devices, and weapons of mass destruction in relation to a crime of violence). Other statutory provisions make classification of an offense as a crime of violence consequential for purposes of, inter alia, extradition and restitution. See §§3181(b), 3663A(c). And the term “crime of violence” under §16 has been incorporated into a number of noncriminal enactments. See, e. g., 8 U. S. C. § 1227(a)(2)(A)(iii) (rendering an alien deportable for committing a crime of violence, as petitioner is charged here).
See, e. g., Ala. Code § 18A-6-20(a)(5) (West 1994); Colo. Rev. Stat. § 18-3— 205(1)(b)(I) (Lexis 2003); Conn. Gen. Stat. §53a-60d(a) (2008); Ga. Code Ann. § 40-6-394 (Lexis 2004); Idaho Code § 18-8006(1) (Lexis 2004); Ill. Comp. Stat. Ann., ch. 625, § 5/11—501(d)(1)(C) (West 2002); Ind. Code § 9-30-5-4 (1993); Iowa Code §707.6A(4) (2003); Ky. Rev. Stat. Ann. §§ 189A.010(1) and (11)(c) (Lexis Supp. 2004); Me. Rev. Stat. Ann., Tit. 29-A, § 2411(1-A)(D)(1) (West Supp. 2003); Mich. Comp. Laws Ann. §257.625(5) (West Supp. 2004); Neb. Rev. Stat. §60-6,198(1) (2002 Cum. Supp.); N. H. Rev. Stat. Ann. §§ 265:82-a(I)(b) and (II)(b) (West 2004); N. J. Stat. Ann. §2C:12-l(c) (West Supp. 2003); N. M. Stat. Ann. §§66-8-101(B) and (C) (2004); N. D. Cent. Code §39-09-01.1 (Lexis 1997); Ohio Rev. Code Ann. § 2903.08(A)(1)(a) (Lexis 2003); Okla. Stat. Ann., Tit. 47, §11-904(B)(1) (West 2001); 75 Pa. Cons. Stat. § 3804(b) (Supp. 2003); R. I. Gen. Laws § 31-27-2.6(a
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appbus
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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 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.
Chester C. WHITE, Appellant, v. UNITED STATES of America, Appellee.
No. 18402.
United States Court of Appeals Eighth Circuit.
Nov. 10, 1966.
James U. Mellick, St. Louis, Mo., for appellant.
John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee. Richard D. FitzGibbon, U. S. Atty., St. Louis, Mo., with him on the brief.
Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and REGISTER, District Judge.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal in forma pauperis by Chester C. White, hereinafter called defendant, from final order dismissing his 28 U.S.C.A. § 2255 motion to vacate sentence. Defendant, after a trial by jury in August 1963, was convicted on all four counts of an indictment charging narcotics violations. Being a second offender, defendant received a concurrent sentence of fifteen years upon each count. We affirmed upon appeal. White v. United States, 8 Cir., 330 F.2d 811.
Defendant’s motion now before us is based upon his contention that he was mentally incompetent to understand the nature of the proceedings against him or to assist counsel in the preparation of his defense at the time of his August 1963 trial resulting in his conviction.
Judge Meredith, who presided at the trial resulting in the conviction and who presided at this proceeding, appointed counsel to represent defendant and accorded defendant a full evidentiary hearing at which defendant testified. At the conclusion of such hearing, Judge Meredith made findings of fact concluding that defendant “was mentally competent during the trial and during the time of preparation for trial; that he understood the charges against him and was able to participate in his defense.” Upon the basis of such findings, the court by order filed February 15, 1966, overruled the motion to vacate sentence. On February 17, 1966, defendant’s motion for rehearing was denied. This appeal followed.
Defendant’s competency to stand trial was not raised in the trial resulting in his conviction nor has any certificate contemplated by 18 U.S.C.A. § 4245 been filed. Under such circumstances, jurisdiction existed in the trial court to determine defendant’s competency to stand trial at the time of the trial resulting in his conviction. Wheeler v. United States, 8 Cir., 340 F.2d 119, 121; Taylor v. United States, 8 Cir., 282 F.2d 16, 21; Simmons v. United States, 8 Cir., 253 F.2d 909, 912.
The sole issue presented by this appeal is whether the trial court’s finding that defendant was competent at the time of his trial is clearly erroneous. We find the trial court’s findings to be based upon substantial evidence and in no way induced by any erroneous view of the law. We affirm.
We have carefully examined the entire record of the original trial and of the hearing upon the motion. We deem it unnecessary to discuss the evidence in detail. Defendant’s claim of incompetency is based upon his contention that he was a narcotics addict and that at the time of his trial he had received through fellow inmates some narcotics but not enough to satisfy his habit and as a result he suffered withdrawal symptoms during the trial. Defendant testified that he frequently requested narcotics from the prison doctors but that all such requests were denied.
Defendant’s army records, dating prior to 1944, were received in evidence and show some narcotics addiction and contain a classification, “Constitutional psychopathic state, inadequate personality manifested by drug addiction.” The record shows no extensive hospital confinement.
Defendant at the trial resulting in his conviction on direct examination testified that he had been in jail continuously since his arrest in March 1963 up to the time of his trial in August 1963, and that he had had no narcotics since his arrest. At the hearing upon the motion, defendant testified that he had illegally received narcotics frequently while in jail in exchange for cigarettes and small favors and that he had not given such testimony at his trial because of fear of reprisal by his fellow prisoners. Such testimony in no way is corroborated. The trial court committed no error in refusing to credit such testimony given by an interested witness which was directly opposed to the testimony he had previously given.
The standards to be applied in determining the issue of competency to stand trial are well-stated by Judge Blackmun in Feguer v. United States, 8 Cir., 302 F.2d 214, 236 to 240. As there stated, “Presence of a mental illness does not equate with incompetency to stand trial.”
In United States v. Tom, 2 Cir., 340 F.2d 127, the court accepted defendant’s statement that he was taking narcotics at the time of his trial and in the course of its opinion upholding the trial court’s determination of competency, states:
“But the record does not show, and we have no reason to believe that the use of narcotics per se renders a defendant incompetent to stand trial. Whether it had such an effect in this case was an issue of fact, as to which the petitioner had the burden of proof.” 340 F.2d 127, 127-128.
See Johnston v. United States, 10 Cir., 292 F.2d 51.
Included in the evidence supporting competency is the testimony of defendant’s court-appointed counsel who in effect stated that he had numerous extended conferences with the defendant prior to the trial and that as a result of his observations of defendant on such occasions and at the trial, he was of the opinion that defendant was competent to stand trial.
The medical staff at Leavenworth Penitentiary, who examined defendant at the request of his counsel, upon the basis of their examination of defendant in 1965 and after a review of the military record and other medical records presented by the defendant, expressed the opinion that the defendant at the time of his trial was able to understand the charges against him and to assist in his defense.
Judge Meredith observed in his memorandum opinion that the defendant testified at length at his trial on his own behalf and that his answers were responsive and indicated a well-oriented person who is able to give detailed testimony on his own behalf. The judge further observed that he saw no indication that the defendant was under the influence of drugs or suffering from withdrawal.
Defendant has failed to demonstrate that the court committed error in denying his motion.
Affirmed.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Clotilda Calderon ROJAS, Defendant-Appellant.
No. 71-2250.
United States Court of Appeals, Ninth Circuit.
May 1, 1972.
Richard F. Ellers, Nevada City, Cal., for defendant-appellant.
William D. Keller, U. S. Atty., Chester L. Brown, Asst. U. S. Atty., Eric A. Nobles, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.
Before KOELSCH, KILKENNY and TRASK, Circuit Judges.
PER CURIAM:
Appellant was tried and convicted in the district court, sitting without a jury, for misapplication of bank funds (18 U.S.C. § 656).
Appellant contends that the evidence was insufficient, in that it “did not exclude every hypothesis but guilt.” As this court held in Sablan v. Peo. of Guam, 434 F.2d 837, 839 (9th Cir. 1970), “[T]he proper test is not whether the evidence excludes every hypothesis except that of guilt, but rather, ‘whether the [trier of fact] could reasonably arrive at [its] conclusion’.” See United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir. 1969). Although appellant’s testimony conflicted with that of prosecution witnesses, there was substantial evidence to support a finding of guilt. It was for the trial judge, as finder of fact, to assess the weight and credibility of the witnesses’ testimony. Rule 23, F.R.Crim.P.; Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir. 1966).
Nor did the trial court err in admitting into evidence testimony concerning a damaging admission made by appellant. The admission was made to a bank official, not a law enforcement officer, and the trial court specifically found, after hearing the parties, that the statement was voluntary.
Lastly, appellant argues that her admission was not corroborated. She is mistaken.
The judgment is affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SAMMONS et al. v. COLONIAL PRESS, Inc., et al. COLONIAL PRESS, Inc., v. SAMMONS et al.
Nos. 3735, 3736.
Circuit Court of Appeals, First Circuit.
Feb. 20, 1942.
Rehearing Denied March 12, 1942.
Robert V. Jones, of Chicago, Ill. (Arthur Thad Smith, of Boston, Mass., on the brief), for Sammons and others.
Stanley G. Barker, of Worcester, Mass. (Thayer, Smith & Gaskill, of Worcester, Mass., on the brief), for Colonial Press, Inc.
No appearance or argument for other appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
These are cross-appeals in a suit for copyright infringement.
The main question is whether under § 25(b) of the Copyright Act of 1909, 35 Stat. 1081, 17 U.S.C.A. § 25(b), a contract printer is jointly liable with the infringing publisher for the profits which the latter made from sales of the infringing book, the plaintiffs having offered no evidence of actual damages from the infringement. We think the district court correctly answered this question in the negative.
One Larkin got up a book called “Who’s Who in Massachusetts.” Through reference and introduction by the University Press, Larkin got in touch with the Colonial Press, Inc., and on May 8, 1939, a contract was made between them whereby Colonial Press agreed to print 3,000 copies of the book, of which 1,000 copies were to be bound, for a total price of $7,500. Colonial Press obligated itself to pay to University Press a commission of $994 for forwarding the job.
Colonial Press is a book manufacturer. It does the actual mechanical work' involved in producing books — the printing, electrotyping, stitching and binding — after receiving manuscripts from publishers. It is not engaged in the publication of books.
Larkin began furnishing manuscript in May, 1939. Colonial Press made its first delivery of books to Larkin on December 6 of that year.' On February 8, 1940, the plaintiffs (a partnership doing business' as the A. N. Marquis Co.) gave written notice to Colonial Press. that the book “Who’s Who in Massachusetts” ■ constituted an infringement of the plaintiffs’ copyrighted book “Who’s Who in New England.” Printing was stopped by Colonial Press on February 26. In the period between February 26 and April 12,1940, when deliveries ceased, Colonial Press delivered to Larkin between 1,500 and 2,000 books. In all, 2,-812 books were delivered. Larkin sold 2,-280 volumes of his work for $18,795.
The plaintiffs’ complaint, filed in the court below, j oined Larkin and the Colonial Press, Inc., as co-defendants, and after setting forth the ownership by plaintiffs of the copyright of the book “Who’s Who in New England,” charged that “the defendants infringed said copyright by printing, publishing, selling and placing upon the market a book entitled ‘Who’s Who in Massachusetts.’ ” A second count for trademark infringement and unfair competition by the defendants acting jointly and for their mutual profit was dismissed by the court with prejudice, upon motion by the plaintiffs.
The district court made findings that the accused book infringed the plaintiffs’ copyright ; that Larkin made a net profit of $7,-236.50 from sales of the book; that Colonial Press realized no net profit out of its printing contract. It ruled that Colonial Press, though it acted in good faith and was not a conscious and deliberate infringer, was nevertheless liable for infringement, along with the publisher Larkin, because it was “the combined effort of Colonial and Lar-kin that placed the infringing book upon the market.” However, the district court ruled that the Press was not jointly accountable with Larkin for the profits Larkin made.
, On the basis of the foregoing, the court permanently enjoined the two defendants from further infringement, gave judgment against Larkin for his profits of $7,236.50, •together with costs, including $1,500 for attorney’s fee, and gave judgment against Colonial Press ’ for $250 and. costs. The sum assessed against the Press was “in lieu-of actual damages and profits” and was the minimum amount permissible under § 25(b).
’ The plaintiffs and the defendant Colonial Press each took an appeal from this judgment'. Larkin did not’ appeal. The correctness of the finding of infringement- is not now challenged, nor is any issue raised as.to the amount of Larkin’s profits.
The chief contention of the plaintiffs in their appeal is that the court below should have held Colonial Press jointly liable for the profits madé by Larkin.
Under § 25(b) any person infringing copyright is liable “to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the fringement, as well as all the profits which the infringer shall have made from such infringement * * In lieu of actual damages 'and profits such damages shall be assessed “as to the court shall appear to be just,” within prescribed maximum and minimum limits.
Damages ■ and profits are distinct items of recovery, and are awarded upon quite different legal principles.
In a case like the present, the measure of damages is the profits which the plaintiffs would have made upon additional sales of its copyrighted book, had not the infringing book been competing in the market. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414. It is often difficult, for obvious reasons, to make satisfactory proof of such damages, and the plaintiffs did not attempt to do so in the case at bar. Where the copyright owner can show as damages his probable losses resulting from an infringement, it is clear, on familiar principles of tort liability, that all persons who unite in the infringement are jointly and severally liable for the damages resulting therefrom. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412.
On the other hand, accountability of an infringer for the profits he has made had its origin in equity. Stevens v. Gladding, 1854, 17 How. 447, 455, 15 L.Ed. 155. “Prior to the Copyright Act of 1909 * * * there had been no statutory provision for the recovery of profits, but that recovery had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.” Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S.Ct. 681, 684, 84 L.Ed. 825. The theory was that it was unconscionable for an infringer to retain a benefit which he had received by the appropriation and use of the plaintiff’s property right; and to prevent unjust enrichment the infringer was treated as a trustee ex maleficio of his ill gotten gains. As 'fhé court pointed out in L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 99, 100, 48 S.Ct. 449, 72 L.Ed. 800: “To call the infringer an agent or trustee is not to state a fact but merely to indicate a mode of approach and an imperfect analogy by which the wrongdoer will be made to hand over the proceeds of his wrong.” Accountability for profits is therefore peculiarly personal, as equity acts on the conscience of the infringer. The presupposition is that the infringer has gotten something which it is unconscionable for him to keep; and hence'it logically follows that the infringer is accountable only for the profits he received, not for the profits which may have been received by a co-infringer. Of course, when the infringement is by a partnership, the partners are jointly accountable for the whole profit made by the partnership on ordinary principles of partnership law. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547.
Liability of an infringer for profits is thus not by way of rough and ready reparation to the plaintiff for the damages which he is presumed to have suffered from the infringement. The profits which were made by the infringer may bear no relation to the damages suffered by the copyright proprietor. Thus the latter may have made no effort to exploit his copyright, in which case it would be apparent that he had not been deprived of a gain he otherwise would have made but for the infringement. Dam v. Kirk La Shelle Co., 2 Cir., 1910, 175 F. 902, 908, 41 L.R.A., N.S., 1002, 20 Ann.Cas. 1173. Again, if the copyrighted book is in an expensive de luxe edition and the infringing work a cheap edition, the profits from infringement might well come from sales in a market which the plaintiff would not have tapped anyway. Huebsch v. Arthur H. Crist Co., D.C.N.D.N.Y.1914, 209 F. 885, 894. And even where the two books are competing at the same market level, there may be substantial differences in the respective costs of the copyright proprietor and the infringer, in the effectiveness of their respective sales organizations and advertising, and in many other factors, all of which would render the profits made by the infringer wholly unreliable as an indication of the proprietor’s damages, that is, the profits which he would have made but for the infringement. See Weil, Copyright Law (1917) pp. 471-73.
The basic fallacy in the plaintiffs’ argument lies in their confusion of profits with damages. This is apparent from their brief: “The infringer or infringers, having preempted the position of the copyright owner and having sold or exploited the copyrighted material, should restore to the' copyright owner the profits he was so prevented from making for himself. For this purpose of reparation it makes no difference how the infringers (if there be more than one) may have divided the profits among themselves; the crux of the matter is not that they, the infringers, have receiyed profits but that they have wrongfully deprived someone else of profits which rightfully should have been his. The test of liability, that is, is not the extent of benefit received, but the extent of wrong done. The total profits resulting from the wrongful appropriation is a measure of the wrong done; admittedly it is not an entirely accurate measure, but an entirely accurate measure is impossible from the nature of the situation; * *
It must be conceded that expressions in some of the earlier Supreme Court cases lend countenance to the plaintiffs’ argument. Thus, in Dean v. Mason, 1857, 20 How. 198, 203, 15 L.Ed. 876, the court said:
“The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent.” Again, in Mowry v. Whitney, 1871, 14 Wall. 620, 653, 20 L.Ed. 860, the court said: “The profits which are recoverable against an infringer of a patent are in fact a compensation for the injury the patentee has sustained from the invasion of his right. They are the measure of his damages. Though called profits, they are really damages, and unliquidated until the decree is made.” Similarly, in Littlefield v. Perry, 1874, 21 Wall. 205, 230, 22 L.Ed. 577, it was said: “Profits actually realized are usually, in a case like this, the measure of unliquidated damages.”-
On the other hand, the more recent cases, and the better considered of the older cases, recognize clearly enough the divergent principles upon which recovery is had for damages and for profits. In Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566, the court explained the accountability of an infringer for profits as follows: “It makes the wrong-doer liable for actual, not possible, gains. The controlling consideration is, that he shall not profit by his wrong.” In Packet Co. v. Sickles, 1873, 19 Wall. 611, 617, 22 L.Ed. 203, Mr. Justice Miller, after referring to the measure of damages for infringement in an action at law, said: “The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff’s invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; * * *.” Again, in Burdell v. Denig, 1875, 92 U.S. 716, 720, 23 L.Ed. 764, Mr. Justice Miller stated: “Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equity, and is based upon the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes, * * And see, to the same effect, a much quoted passage from the opinion of Mr. Justice Gray in Tilghman v. Proctor, 1888, 125 U.S. 136, 145, 146, 8 S.Ct. 894, 31 L.Ed. 664. In Duplate Corp. v. Triplex Safety Glass Co., 1936, 298 U.S. 448, 457, 56 S.Ct. 792, 796, 80 L.Ed. 1274, the court said: “The wrongdoer must yield the gains begotten of his wrong.” Without unduly multiplying citations, we may refer finally to the opinion of Chief Justice Hughes in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S. Ct. 681, 684, 84 L.Ed. 825, where he states that the remedy of accountability for profits “had been given in accordance with the principles governing equity jurisdiction, not to inflict punishment but to prevent an unjust enrichment * *
In patent cases it is well settled that co-infringers, unless they are partners, are severally accountable only for the profits each has received. Elizabeth v. Pavement Co., 1877, 97 U.S. 126, 24 L.Ed. 1000; Belknap v. Schild, 1896, 161 U.S. 10, 25, 26, 16 S.Ct. 443, 40 L.Ed. 599; Covert v. Sargent, C.C.S.D.N.Y.1889, 38 F. 237; Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 93; Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 337, 338; International Radio Telegraph Co. v. Atlantic Communication Co., 2 Cir., 1923, 290 F. 698, 703. See 3 Walker on Patents (Deller’s ed., 1937) § 841. In Belknap v. Schild, supra, the court said (pages 25, 26 of 161 U.S., page 448 of 16 S. Ct., 40 L.Ed. 599) : “In a suit in equity for the infringement of a patent, the ground upon which profits are recovered is that they are the benefits which have accrued to the defendants from their wrongful use of the plaintiff’s invention, and for which they are liable, ex ssquo et bono, to the like extent as a trustee would be who had used the trust property for his own advantage. The defendants, in any such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation.”
We see no reason why the same rule should not apply in the case of copyright infringement. Accountability of an in-fringer for profits was enforced in equity, both in patent and copyright cases, on the same equitable principles, even before the patent and copyright laws specifically authorized this relief. When, by amendment, these laws did so authorize the recovery of profits, there was no change in the principle upon which such relief had theretofore been granted by courts of equity. See Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 400, 60 S.Ct. 681, 84 L.Ed. 825. In that case the court, though not having before it the particular point now in question, recognized (at page 400 of 309 U.S., at page 684 of 60 S.Ct., 84 L.Ed. 825) the similarity of the remedies provided in patent and copyright cases: “In passing the Copyright Act, the apparent intention of Congress was to assimilate the remedy with respect to the recovery of profits to that already recognized in patent cases. Not only is there no suggestion that Congress intended that the award of profits should be governed by a different principle in copyright cases but the contrary is clearly indicated by the committee reports on the bill.”
There could be no question about this, were it not for the decision of the Supreme Court in Belford v. Scribner, 1892, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514, upon which the plaintiffs chiefly rely. The facts there were strikingly similar to those in the case at bar. The infringing publisher procured his book to be manufactured under contract with a printer. In a suit for infringement, brought against the publisher and printer jointly, it appeared that the publisher had made a net profit of $1,092. No proof was offered as to the profit, if any, made by the printer in the performance of his printing contract. The lower court decreed that the two defendants were jointly liable for the profits made by the publisher. Upon appeal it was contended by the printing firm (Donohue & Henneberry) that no decree for the payment of any profits could lawfully be entered against them in the absence of proof that they had made any profits. The Supreme Court in affirming the decree below said (pages 507, 508 of 144 U.S., at page 740 of 12 S.Ct., 36 L.Ed. 514) : “To this view it is replied by the plaintiff that, as the defendants Donohue & Henneberry printed the books by contract with the corporation defendant, and as, under the copyright law (Rev.St. § 4964), both the printer and the publisher are equally liable to the owner of the copyright for an infringement, and as it is to be inferred that Donohue & Henneberry made a profit from printing the piratical books, they were therefore sharers in the profits realized from the sale of the books, and were participes criminis with the defendant corporation in the infringement; that the two sets of defendants together printed and published the books, and were practically partners in doing it, — the corporation doing one part, and the other defendants the other part, of the printing and publishing; and that all the parties concerned ought to be held to an account to the owner of the copyright in respect to the profits derived from the printing, publishing, and selling, without all of which combined there could have been no infringement. We think these views are sound.”
It is to be noted that the court based its opinion upon the ground that the printer and the publisher were “practically partners” in putting the infringing book on the market, a conclusion hardly justified by the facts of the case. However, the case was distinguished on this ground in Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 340, and by the court below in the case at bar. If Belford v. Scribner cannot fairly be distinguished on this ground we thin-k it is irreconcilable with the long line of cases, of which the latest is Sheldon v. Metro-Goldwyn Pictures Corp., supra, explaining the true equitable principles upon which an infringer is accountable for profits; hence we cannot accept Belford v. Scribner as a controlling authority in the instant case. But see, contra, Amdur, Copyright Law and Practice (1936) pp. 1158— 1162; Caplan, The Measure of Recovery in Actions for the Infringement of Copyright (1939) 37 Mich.L.Rev. 564, 571. Colonial Press was in no proper sense a partner with Larkin in marketing the infringing book and sharing profits from the sales thereof. Its relationship to Larkin was that of an independent contractor, manufacturing the book for a fixed contract price, which was payable whether or not Larkin made any profit from the sales of the book.
So far as we can find, no case since Bel-ford v. Scribner, involving either patent or copyright infringement, has held that co-infringers who are not partners are accountable for anything more than the profits which each infringer has individually received as a result of the infringement. In Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414, a copyright case, there was a dictum that one co-infringer “should not be charged with any part of the profits the other infringers made.” We do not find that anything to the contrary was held in Haas v. Leo Feist, Inc., D.C.S.D.N.Y.1916, 234 F. 105. In that case the defendant Leo Feist, Inc., was a publishing house which employed the defendant Piantadosi as a composer of melodies. Piantadosi composed a song which was held to be an infringement of the plaintiff’s' copyright. The infringing song was published by the corporate defendant. A decree for an accounting of profits went against both defendants. There is, however, nothing in the opinion to indicate that the individual defendant was to be held accountable for the net profits made by the publishing house; for all that appears, he was accountable only for what he received for the song from the corporate defendant. Nor does it appear that the corporate defendant was denied a deduction, as part of its costs, of what it paid to the individual defendant for the song. For an early case of copyright infringement in which it was recognized that each co-infringer was accountable only for the profits he received, see Stevens v. Gladding, C.C.R.I.1856, Fed. Cas.No. 13,399, 2 Curt. 608.
If the plaintiffs’ theory of joint accountability were correct, then in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825, Metro-Goldwyn would have been accountable not only for the profits it received but also for profits made by independent exhibitors to whom it rented the infringing picture. In the district court, 26 F.Supp. 134, 144, 145, it was ruled as follows:
“The question has been raised as to the liability of the several defendants for the profits made by their codefendants. Section 25 of the Copyright Act requires each infringer to account for the profits it received. The statute gives the complainant the right to recover those profits from that infringer, but no other infringer is jointly liable therefor. As to the damages sustained by a complainant through the infringement of his copyright, infringers who are joint tort feasors are jointly liable. * * *
“Loew’s, Inc. [an independent exhibitor], will not be held liable for the profits of the other defendants. The Pictures Corporation will not be held for the profits of Loew’s.”
The effort of the complainants to have each infringer charged with the aggregate profits made by all the infringers was apparently abandoned on appeal, for neither in the opinion of the circuit court of appeals (2 Cir., 106 F.2d 45) nor in that óf the Supreme Court was the point further alluded to.
We conclude, therefore, that the district court rightly refused to charge Colonial Press with the profits made by Larkin.
Plaintiffs challenge the finding of the district court that Colonial Press made no net profit on the printing contract. This point turns on the correctness of the court’s allowance of a deduction of $2,936.-25 for “overhead expenses.”
Colonial’s net bill to Larkin amounted to $8,091.93. Deducted from this was an item of $2,836.96 for direct labor cost in manufacturing the infringing book, an item of $1,588.24 for materials used, and an item of $994 which Colonial is obligated to pay University Press as commission for forwarding the job. Up to this point and disregarding any allowance for overhead expenses, Colonial shows an apparent profit of $2,672.73.
It might be suggested, with some force, that the profits for which an infringer is accountable should be calculated without any deduction of a fractional part of the fixed general overhead expenses which presumably would have been borne by him even had he not participated in the infringement complained of. Manufacturers are frequently glad to make a contract at a price which yields no net profit on a strict cost accounting basis but which does yield sufficient profit to carry a portion of the inescapable overhead. In such a case it would be difficult to deny that the infringer has reaped a benefit in dollars and cents from the infringement, for which he ought to be accountable. Possibly a deduction for overhead should be allowed in such a case when the infringement is innocent and denied when the infringement is conscious and deliberate. Cf. L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 48 S.Ct. 449, 72 L.Ed. 800; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We do not pursue this point because in the present case the plaintiffs say in their brief: “It is not contended that an in-fringer is barred from claiming credit for a particular expense which may be incurred in connection with the production of an infringing work simply because that expense is of a type included within ‘overhead expense.’ ” Furthermore, the cases seem to assume, without much discussion, that the infringer is entitled to a deduction of that portion of the overhead expense properly allocable to the particular job. Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566: “The calculation is to be made as a manufacturer calculates the profits of his business”; Myers v. Callaghan, C.C.N.D.Ill.1885, 24 F. 636, 638, 639, same case on appeal, sub nom. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 52, 53; Id., 1940, 309 U.S. 390, 409, 60 S.Ct. 681, 84 L.Ed. 825; Levin Bros. v. Davis Mfg. Co., 8 Cir., 1934, 72 F.2d 163; Ruth v. Stearns-Roger Mfg. Co., D.C.D. Colo.1935, 13 F.Supp. 697; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We assume that in a case like the present a deduction for overhead is allowable if properly established by proof. As stated in Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 54: “ ‘Overhead’ which does not assist in the production of the infringement should not be credited to the infringer; that which does, should be; it is a question of fact in all cases.” Section 25(b) provides that “in proving profits the plaintiff shall be required to prove sales only and the defendánt shall be required to prove every element of cost which he claims * * *.” The burden thus cast upon the defendant requires him to give evidence of more than a blanket undifferentiated item of “overhead”; he must give satisfactory evidence of each item of general expense or overhead, show that each item assisted in the production of the infringement, and offer a reasonably acceptable formula for allocating a portion of the general overhead to the particular job. A theoretically perfect allocation is impossible, but there must be a rough approximation within the limits of practicality.
The evidence offered by Colonial Press in respect to overhead did not, we 'think, meet its statutory burden of proof. Its only witness on this matter was the president of the corporation. He gave the figure of $278,382.82 as the total amount paid out for “productive labor” during 1939. $288,142.19 was the total amount of general overhead expenses for that year. Overhead for 1939 thus bore a relation of 103.5% to expenditures for productive labor. Taking 103.5% of $2,836.96 — the total direct labor cost of the job of printing the infringing book — the witness testified that $2,936.25 should be allocated as the overhead expense for the particular job. The above item of $288,142.19 for overhead was computed as follows: $365,128.71 (described as “cost of sales” less costs of material, paper and direct labor), plus a lump figure of $94,296.93 for “administrative costs”, less a lump figure of $171,283.45 for “house credits,” undefined. It was stated that “costs of sales” embraced “merchandise, non-productive labor, supplies, rent, depreciation, repairs, light and power, heat, insurance, house errors and other expenses.” The detailed breakdown of these items was not given, except for the sum of $24,200 as rent for the premises occupied by Colonial Press. “Administrative costs” were described as including “salaries;, clerical and executive, selling expense and provision for bad debts.” Here, again, there was no breakdown of the individual items, except that the witness testified that the “selling expenses” amounted to $24,600. No further specific figures were given. There seems to have been one duplication. Colonial was allowed to allocate to the particular job a portion of the 1939 “selling expenses” of $24,600. It was also allowed to deduct a specific item of $994 as commission payable to the University Press for forwarding the same job.
The foregoing evidence — unsatisfactory in its generality — is an insufficient basis for a finding as to which specific items of overhead expense assisted in the production of the infringement and which did not. See Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 94, 95; Ruth v. Stearns-Roger Mfg. Co., D.C.D.Colo. 1935, 13 F.Supp. 697, 706. It is, for instance, not apparent how the items for “house errors” and “provision for bad debts” assisted in the manufacture of the infringing book. The amount and character of “other expenses” are left wholly to speculation. It is clear that it is impossible to tell on the present record whether the relationship of 103.5% is a reasonable basis for making the allocation of overhead. Therefore, the case will have to go back to the district court for further proof on the items of overhead as they may affect the computation of the net profit or loss made by Colonial Press on the printing job.
Counsel for the plaintiffs strenuously objected to the presentation of the evidence offered by Colonial Press on overhead, because of its indefiniteness. The district court suggested in its opinion that plaintiffs “could have asked for Colonial’s books and examined them in detail in order to disprove the defendant’s contentions. This they did not attempt to do.” [38 F.Supp. 649, 654.] We think they had no need to do so, until Colonial Press had made out a case for the claimed deduction.
One matter that may affect the calculation of Colonial’s net profit or loss is the fact that though Colonial’s net hill to Larkin amounted to $8,091.93, it has actually received from Larkin only $6,517.01, leaving a balance owing to it of $1,574.92. If this amount of $1,574.92 is uncollectible, as may well be the case in view of the district court’s finding that “Larkin was no financial colossus,” Colonial will be entitled to a deduction therefor in computing its net profits. However, in the absence of evidence that this account receivable is uncollectible, no deduction will be allowed. See Ruth v. Stearns-Roger Mfg. Co., D.C.D.Colo.1935, 13 F.Supp. 697, 707.
The district court committed no abuse of discretion, so far as we can see, in allowing $1500 attorney’s fee as part of the costs against Larkin only and not against Colonial Press. See § 40 of the Copyright Act, 17 U.S.C.A. § 40; S. E. Hendricks Co., Inc., v. Thomas Pub. Co., 2 Cir., 1917, 242 F. 37, 42; Buck v. Crescent Gardens Operating Co., D.C.D.Mass.1939, 28 F.Supp. 576, 578.
No evidence of actual damages having been given, if Colonial Press made no profits for which it is accountable the assessment by the district court under § 25 (b) of statutory damages against Colonial in the minimum amount of $250 cannot be reviewed upon appeal. Douglas v. Cunningham, 1935, 294 U.S. 207, 210, 55 S.Ct. 365, 79 L.Ed. 862; Hartfield v. Peterson, 2 Cir., 1937, 91 F.2d 998, 1001. However, if the district court finds after further hearing upon remand that Colonial Press made profits for which it must account, the amount of such profits will be the measure of recovery, and it will no longer be permissible to decree statutory damages “in lieu of actual damages and profits.” Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S.Ct. 681, 683, 84 L.Ed. 825; Davilla v. Brunswick-Balke Collender Co. of New York, 2 Cir., 1938, 94 F.2d 567, 569. Cf. Johns & Johns Printing Co. v. Paull-Pioneer Music Corp., 8 Cir., 1939, 102 F.2d 282.
We find nothing of substance in the cross-appeal by Colonial Press. It was clearly proper to join the printer and the publisher as co-defendants. Rule 20(a), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. Colonial’s part in printing the infringing book under contract with the publisher Larkin rendered it liable as an infringer. Belford v. Scribner, 1892, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514; Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_attyfee
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Warren WEIL and Maria Galuppo, Plaintiffs-Appellees, Cross-Appellants, v. RETIREMENT PLAN ADMINISTRATIVE COMMITTEE of the TERSON CO., INC., the Terson Co., Inc., the Northern Trust Co., as Trustees of the Terson Co., Inc. Salaried Retirement Plan, Defendants-Appellants, Cross-Appellees.
Nos. 1126, 1239, Dockets 89-9223, 89-9255.
United States Court of Appeals, Second Circuit.
May 1, 1991.
Ellen S. Mendelson (Sidney Eagle, Mitchell Shenkman, Eagle & Fein, P.C., New York City, of counsel), for plaintiffs-appel-lees, cross-appellants.
Logan T. Johnston, Phoenix, Ariz. (Johnston, Maynard, Grant & Parker, Phoenix, Ariz., Richard W. Cutler, New York City, of counsel), for defendants-appellants, cross-appellees.
Shirley D. Peterson, Asst. Atty. Gen. (Gary R. Allen, Richard Farber, Bruce R. Ellisen, Attorneys, Tax Div., Dept, of Justice, Washington, D.C., Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City, of counsel), for U.S. as amicus curiae.
Before MESKILL, CARDAMONE and PIERCE, Circuit Judges.
ON PETITION FOR REHEARING
PIERCE, Senior Circuit Judge:
We grant the petition for rehearing of plaintiffs Warren Weil and Maria Galuppo. In our prior opinion, 913 F.2d 1045 (2d Cir.1990) (“Weil II”), familiarity with which is assumed, we reversed the district court’s judgment that a partial termination of the Retirement Plan for Salaried Employees of The Terson Company, Inc. (“Plan”) had occurred under 26 U.S.C. § 411(d)(3) when 33.4% of the Plan participants were discharged from their jobs in 1981. We held that in determining whether a partial termination had occurred, the district court should have focused only on the terminated plan participants whose benefits had not vested and that the ratio of terminated non-vested participants over total plan participants yielded a percentage, 16.4%, which did not qualify as a significant percentage on the facts presented.
After plaintiffs filed a petition for rehearing, we invited the Internal Revenue Service (“IRS”), the agency responsible for administering the partial termination statute, to submit a brief as amicus curiae and requested that defendants respond. The IRS has informed us that it believes a partial termination may occur if there is “a significant contraction of a plan, such as a significant reduction in the number of plan participants” and “all terminated participants, both vested and non-vested, should be counted in determining whether a partial termination has occurred.” Brief for Amicus at 6. The IRS thus measures partial terminations using the ratio of terminated plan participants (vested and non-vested) over total plan participants. Furthermore, the IRS states that it has used this ratio in previous revenue rulings and that its long-standing position is expressly set forth in its Plan Termination Handbook contained in the Internal Revenue Manual, Ch. 252(7) (Apr. 20, 1990), reprinted in 4 Administration Internal Revenue Manual (CCH) at 21.151. Id. at 8-9. Because serious questions as to the correctness of our holding have been raised, we believe it is necessary to reconsider how partial terminations should be measured.
When a court interprets a statute that has been construed by the administering agency, it must first ask:
whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted); accord Mead Corp. v. Tilley, 490 U.S. 714, 722, 109 S.Ct. 2156, 2161-62, 104 L.Ed.2d 796 (1989). Moreover, “ ‘[t]o uphold [the agency’s interpretation] “we need not find that [its] construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” ... We need only conclude that it is a reasonable interpretation of the relevant provisions.’ ” Aluminum Co. of Am. v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389, 104 S.Ct. 2472, 2479, 81 L.Ed.2d 301 (1984) (emphasis in original) (quoting American Paper Inst., Inc. v. American Elec. Power Serv. Corp., 461 U.S. 402, 422-23, 103 S.Ct. 1921, 1932-33, 76 L.Ed.2d 22 (1983) (quoting Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946))); see Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11; see also Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982) (interpretation of agency that administers statute is entitled to substantial deference).
The original provision governing terminations, 26 U.S.C. § 401(a)(7), was added to the Internal Revenue Code as part of the Self-Employed Individuals Tax Retirement Act of 1962, Pub.L. No. 792, § 2(2), 76 Stat. 809 (1962). As enacted in 1962, § 401(a)(7) provided in pertinent part:
A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that, upon its termination or upon complete discontinuance of contributions under the plan, the rights of all employees to benefits accrued to the date of such termination or discontinuance, to the extent then funded, or the amounts credited to the employees’ accounts are nonfor-feitable.
In its report on § 401(a)(7), the Committee on Ways and Means stated: “This new provision adds to the statute a requirement which has been in the Treasury regulations for many years.... [T]he bill precludes the possibility that contributions for employees which have been deducted for income-tax purposes may revert back to the employer.... This requirement should serve to prevent abuses resulting from termination of plans.” H.R.Rep. No. 378, 87th Cong., 1st Sess., reprinted in 1962-3 C.B. 261, 269. Presumably, intending to achieve this goal on a much broader basis, Congress made § 401(a)(7) applicable to all retirement plans, including plans provided by corporations, not merely to those that covered owner-employees. Id. at 275-76; S.Rep. No. 992, 87th Cong., 1st Sess., reprinted in 1962-3 C.B. 303, 328.
When Congress enacted § 401(a)(7) in 1962, it apparently did not contemplate the concept of partial termination. Then in 1963, in a treasury regulation, the Secretary of the Treasury explicitly introduced the concept of partial termination by defining termination as used in § 401(a)(7) to include “both a partial termination and a complete termination of a plan.” Tres.Reg. § 1.401-6(b)(2) (1963). Thereafter, § 401(a)(7) governed partial terminations.
Eleven years later, as part of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 (1988), Congress enacted 26 U.S.C. § 411(d)(3), which explicitly refers to partial termination, merely to restate then-existing § 401(a)(7) and to codify the definition of termination in Treasury Regulation § 1.401-6(b)(2). Anderson v. Emergency Medicine Assocs., 860 F.2d 987, 991 (10th Cir.1988). The legislative history of § 411(d)(3) states: “[T]he rule of full immediate vesting is still to apply in the case of a termination, or partial termination of a plan.” H.R.Conf.Rep. No. 1280, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin.News 5038, 5058; see S.Rep. No. 383, 93rd Cong., 2d Sess., 1974 U.S.Code Cong. & Admin.News 4890, 4935.
Section 411(d)(3), which is the subject of our particular concern herein, provides in relevant part:
a trust shall not constitute a qualified trust under section 401(a) unless the plan of which such trust is a part provides that—
(A) upon its termination or partial termination,
the rights of all affected employees to benefits accrued to the date of such termination, partial termination, or discontinuance, to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonforfeitable.
Although Congress did not provide a definition of partial termination, the House and Senate Reports state that “[e]xamples of a partial termination might include, under certain circumstances, a large reduction in the work force, or a sizeable reduction in benefits under the plan.” H.R.Rep. No. 807, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4670, 4731; S.Rep. No. 383, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4890, 4935. In addition, the corresponding Treasury Regulation provides in part:
Whether or not a partial termination of a qualified plan occurs (and the time of such event) shall be determined by the Commissioner with regard to all the facts and circumstances in a particular case. Such facts and circumstances include: the exclusion, by reason of a plan amendment or severance by the employer, of a group of employees who have previously been covered by the plan; and plan amendments which adversely affect the rights of employees to vest in benefits under the plan.
Treas.Reg. § 1.411(d)-2(b)(l) (1977).
In Weil II, we speculated that the primary congressional purpose of the partial termination statute was to protect the pension benefits of non-vested participants. 913 F.2d at 1050-51. It seemed logical to the district court and to us to consider only non-vested participants in a partial termination inquiry, since it was their rights to accrued benefits that were imperiled.
After further reflection upon the legislative history of the partial termination provisions, we are persuaded that the legislative intent behind § 411(d)(3) is ambiguous, and it is equally arguable that in enacting this section, Congress mainly intended to prevent employers from abusing pension plans to reap tax benefits. For example, the Third Circuit, in at least one case, has concluded that “[§ 411(d)(3)] is intended to prevent employers from maintaining pension plans for the purpose of deferring income, and thereby reducing their taxes, rather than for the purpose of providing retirement benefits for employees.” Bruch v. Firestone Tire & Rubber Co., 828 F.2d 134, 151 (3d Cir.1987), aff'd in part and rev’d in part on other grounds, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). In reaching that conclusion, the court reasoned that Congress pursued the goal of protecting employees from dismissals motivated by an employer’s desire to avoid paying pension benefits in other sections of ERISA and that “[ajttributing this goal to the partial termination provisions as well makes the partial termination provision seem both superfluous and clumsy.” Id. The Third Circuit’s analysis of the purpose of the partial termination provisions, however, has varied. See Chait v. Bernstein, 835 F.2d 1017, 1021 (3d Cir. 1987) (§ 411(d)(3) “defines termination for the purpose of vesting certain unvested employee benefits for workers who would otherwise be left out in the cold after a drastic and sudden change in the plan”); Vornado, Inc. v. Trustees of the Retail Store Employees’ Union Local 1262, 829 F.2d 416, 418 n. 2 (3d Cir.1987) (“The statute’s aim is to force employers to include language favorable to employees in the plan.”); United Steelworkers v. Harris & Sons Steel Co., 706 F.2d 1289, 1298 (3d Cir.1983) (discussing partial termination in terms of conditioning tax benefits upon employers’ compliance with rules designed to benefit employees; “[r]ules governing the effect of a ‘partial termination’ in the tax sense serve the purpose of helping to ensure that employees will not be deprived of their anticipated benefits”).
Based upon the conflicting interpretations by our sister circuit and upon our own reassessment as well, it appears to us that the legislative purpose behind § 411(d)(3) is far from clear. See Vornado, 829 F.2d at 418 n. 2 (“the purpose underlying § 411(d)(3) is not altogether obvious”); Bruch, 828 F.2d at 151 (“[I]t is not easy to divine the purpose of § 411(d)(3). Without a clear sense of the provision's purpose it is difficult to decide what should and should not constitute a partial termination. Clarification from Congress or the Internal Revenue Service as to the purpose of this provision would make it substantially easier to enforce.”). Finally, we recognize that the statute itself is entirely silent regarding how a partial termination is to be measured.
Having concluded that the congressional purpose behind the partial termination statute is unclear and that the statute is silent regarding the measurement of a partial termination, we next consider whether the IRS’ position is based on a permissible construction of § 411(d)(3). In our view, the IRS’ interpretation of § 411(d)(3) — that a partial termination occurs when there is a significant contraction of the plan, and therefore, all terminated plan participants must be considered in a partial termination inquiry — is a reasonable construction in light of the examples provided in the House and Senate Reports (“a large reduction in the work force, or a sizeable reduction in benefits under the plan”). Those examples suggest that Congress regarded a partial termination to be a sudden and dramatic change in the plan as a whole. Moreover, the language used in the treasury regulations, which refers to the exclusion of employees who have been covered by a plan, additionally supports the IRS’ position. We also find significance in the fact that no distinction was made between vested and non-vested plan participants in these sources. We therefore apply the ratio utilized by the IRS and, as the district court found, conclude that the Plan was partially terminated in 1981 when 33.4% of the Plan participants were discharged. Accordingly, we reinstate the district court’s order that defendants purchase annuities sufficient to provide benefits to plaintiffs equivalent to the actuarial present value of their benefits and its award of attorneys’ fees, costs and disbursements under 29 U.S.C. § 1132(g)(1) (1988), plus post-judgment interest.
In their answer to the petition for rehearing, defendants urge that the IRS is establishing a new rule that should be applied only prospectively. They argue that since they detrimentally relied on a 1981 determination letter — in which the IRS considered only non-vested participants in concluding that no partial termination had occurred during the years 1975-1980 — the IRS’ retroactive application of its “all-terminee analysis” would be an abuse of discretion. Even if the IRS has established a new rule, we are constrained to reject defendants’ argument by Dickman v. Commissioner, 465 U.S. 330, 104 S.Ct. 1086, 79 L.Ed.2d 343 (1984). There, plaintiffs argued that the Commissioner’s retroactive application of the changed interpretation of a tax law was manifestly unfair, since they detrimentally relied on the original, longstanding interpretation of the law in planning their financial affairs. The Court disagreed:
Even accepting the notion that the Commissioner’s present position represents a departure from prior administrative practice, which is by no means certain, it is well established that the Commissioner may change an earlier interpretation of the law, even if such a change is made retroactive in effect. E.g., Dixon v. United States, 381 U.S. 68, 72-75 [85 S.Ct. 1301, 1304-05, 14 L.Ed.2d 223] (1965); Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 183-184 [77 S.Ct. 707, 709-10, 1 L.Ed.2d 746] (1957). This rule applies even though a taxpayer may have relied to his detriment upon the Commissioner’s prior position. Dixon v. United States, supra [381 U.S.] at 73 [85 S.Ct. at 1304], The Commissioner is under no duty to assert a particular position as soon as the statute authorizes such an interpretation. See also Bob Jones University v. United States, 461 U.S. 574 [103 S.Ct. 2017, 76 L.Ed.2d 157] (1983).
Id. at 343, 104 S.Ct. at 1094 (footnotes omitted). Accordingly, it is our judgment that defendants’ “detrimental reliance” argument is unavailing. See id.; Commissioner v. Miller, 914 F.2d 586, 591-92 (4th Cir.1990); Cohen v. Commissioner, 910 F.2d 422, 427-28 (7th Cir.1990); Heitzman v. Commissioner, 859 F.2d 783, 786 (9th Cir.1988); Canton Police Benevolent Ass’n v. United States, 844 F.2d 1231, 1236-38 (6th Cir.1988); Consolidated Edison Co. v. United States, 782 F.2d 322, 325 (2d Cir.1986) (per curiam); Fogarty v. United States, 780 F.2d 1005, 1011 (Fed. Cir.1986); Becker v. Commissioner, 751 F.2d 146, 150 (3d Cir.1984); Yarbro v. Commissioner, 737 F.2d 479, 483 (5th Cir. 1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 959, 83 L.Ed.2d 965 (1985).
Defendants also contend that the plaintiffs failed to prove that the Plan was sufficiently funded at the time of the partial termination to provide benefits. We see no error in the district court’s conclusion, based upon recommendations by the IRS, which the court sought with the consent of the parties, that the Plan was sufficiently funded at the time of the partial termination.
Finally, we conclude the district court did not abuse its discretion in any way regarding its award of attorneys’ fees.
We have considered plaintiffs’ and defendants’ remaining arguments and find them to be without merit.
The petition for rehearing is granted. Parts III and IV of the prior opinion of this Court are vacated, and the judgment of the district court is affirmed.
. The Handbook was first brought to this Court's attention in plaintiffs' petition for rehearing. In their petition, plaintiffs also refer us to footnote two of a General Counsel Memorandum in which the "percentage reduction in [plan] participation” was measured "by dividing the total participant terminations during the plan year by the sum of the employee-participants at the beginning of the plan year plus the participants added during the plan year.” Gen. Couns.Mem. 39344 (Oct. 16, 1984).
. Section 401(a)(7) currently provides: "A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part satisfies the requirements of section 411 (relating to minimum vesting standards)." 26 U.S.C. § 401(a)(7) (1988).
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. MORGAN.
No. 31.
Argued October 19, 1953.
Decided January 4, 1954.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Acting Solicitor General Stern and Assistant Attorney General Olney.
By special leave of Court, pro hac vice, Jacob Abrams, argued the cause for respondent. Respondent filed a brief pro se.
Mr. Justice Reed
delivered the opinion of the Court.
This review on certiorari requires us to decide whether a United States District Court has power to vacate its judgment of conviction and sentence after the expiration of the full term of service.
On December 18, 1939, respondent pleaded guilty on a federal charge, in the Northern District of New York, and was given a four-year sentence which he served. Thereafter, in 1950, he was convicted by a New York court on a state charge, sentenced to a longer term as a second offender because of the prior federal conviction, and is now incarcerated in a state prison.
As courts of New York State will not review the judgments of other jurisdictions on habeas corpus or coram nobis, People v. McCullough, 300 N. Y. 107, 110, 89 N. E. 2d 335, 336-337, respondent filed an application for a writ of error coram nobis and gave notice of a motion for the writ in the United States District Court where his first sentence was received. Both sought an order voiding the judgment of conviction. The ground was violation of his constitutional rights through failure, without his competent waiver, to furnish him counsel. Johnson v. Zerbst, 304 U. S. 458. The District Court in an unreported decision treated the proceeding as a motion under 28 U. S. C. § 2255 and refused relief because it had no jurisdiction as the applicant was no longer in custody under its sentence, citing United States v. Lavelle, 194 F. 2d 202, a controlling authority on that point. On appeal, the Court of Appeals reversed. It held that 28 U. S. C. § 2255 did not supersede “all other remedies which could be invoked in the nature of the common law writ of error coram nobis.” As it considered that the remedy sought was of that kind and the application justified a hearing because the error alleged was “of fundamental character,” the Court of Appeals reversed and, without passing upon the sufficiency of the allegations, directed remand for further proceedings. United States v. Morgan, 202 F. 2d 67. Deeming the decision to conflict with United States v. Kerschman, 201 F. 2d 682, we granted certiorari. 345 U. S. 974.
The foregoing summary of steps discloses respondent’s uncertainty in respect to choice of remedy. The papers are labeled as though they sought a common-law writ of error coram nobis but the notice of the motion indicates that an order voiding the judgment is sought. In behalf of the unfortunates, federal courts should act in doing justice if the record makes plain a right to relief. We think a belated effort to set aside the conviction and sentence in the federal criminal case is shown. We therefore treat the record as adequately presenting a motion in the nature of a writ of error coram nobis enabling the trial court to properly exercise its jurisdiction. Adams v. McCann, 317 U. S. 269, 272. So treating the motion, Rule 35, Fed. Rules Crim. Proe., allowing the correction of “an illegal sentence at any time” is inapplicable. Sentences subject to correction under that rule are those that the judgment of conviction did not authorize.
Since this motion in the nature of the ancient writ of coram nobis is not specifically authorized by any statute enacted by Congress, the power to grant such relief, if it exists, must come from the all-writs section of the Judicial Code. This section originated in the Judiciary Act of 1789 and its substance persisted through the Revised Statutes, § 716, and the Judicial Code, § 262, to its present form upholding the judicial power to attain justice for suitors through procedural forms “agreeable to the usages and principles of law.” If there is power granted to issue writs of coram nobis by the all-writs section, we hold it would comprehend the power for the District Court to take cognizance of this motion in the nature of a coram nobis. See note 4, supra. To move by motion instead of by writ is purely procedural. The question then is whether the all-writs section gives federal courts power to employ coram nobis.
The writ of coram nobis was available at common law to correct errors of fact. It was allowed without limitation of time for facts that affect the “validity and regularity” of the judgment, and was used in both civil and criminal cases. While the occasions for its use were infrequent, no one doubts its availability at common law. Coram nobis has had a continuous although limited use also in our states. Although the scope of the remedy at common law is often described by references to the instances specified by Tidd’s Practice, see note 9, supra, its use has been by no means so limited. The House of Lords in 1844 took cognizance of an objection through the writ based on a failure properly to swear witnesses. See the O’Connell case, note 11, supra. It has been used, in the United States, with and without statutory authority but always with reference to its common-law scope — for example, to inquire as to the imprisonment of a slave not subject to imprisonment, insanity of a defendant, a conviction on a guilty plea through the coercion of fear of mob violence, failure to advise of right to counsel. An interesting instance of the use of coram nobis by the Court of Errors of New York is found in Davis v. Packard, 8 Pet. 312. It was used by the Court of Errors, and approved by this Court, to correct an error “of fact not apparent on the face of the record” in the trial court, to wit, the fact that Mr. Davis was consul-general of the King of Saxony and therefore exempt from suit in the state court.
This Court discussed the applicability of a motion in federal courts in the nature of coram nobis in United States v. Mayer, 235 U. S. 55, 67. There a convicted defendant alleged he discovered through no fault of his, only after the end of the term in which he was convicted, misconduct of an assistant United States attorney and concealed bias of a juror against him, the defendant. This Court refused to direct consideration of the motion after the term expired because the remedy, if any, was by writ of error or motion for new trial. As it was not applicable in the circumstances of the Mayer case, this Court refused to say whether a motion coram nobis would ever lie in federal courts. This Court has approved correction of clerical errors after the term. Wetmore v. Karrick, 205 U. S. 141, 154. However, we have not held that the writ of coram nobis or a motion of that nature was available in the federal courts.
In other federal courts than ours, there has been a difference of opinion as to the availability of the remedy. Chief Justice Marshall in Strode v. The Stafford Justices, 1 Brock. 162, 23 Fed. Cas. 236, overruled an objection to a writ of error coram nobis to set aside a fourteen-year-old judgment because of the death of one party prior to its rendition. In explication, the Chief Justice pointed out that the Judiciary Act of 1789, 1 Stat. 84, § 22, limited to five years the bringing of any writ of error and forbade it “for any error in fact.” In allowing the coram nobis, he held that the section showed the writ of error referred to was a writ on appeal and therefore the error in fact could not be examined except by coram nobis. The Courts of Appeals for the Sixth and Ninth Circuits have held the motion available for claims of insanity. The Third and Fourth Circuits have made similar rulings in cases similar to this. The Fifth Circuit remanded for inquiry into a movant’s allegation upon a similar motion that witnesses against him had been coerced by officers to commit perjury in testifying against him. In many other cases federal courts have taken cognizance of motions in the nature of coram nobis but denied them because the circumstances did not make coram nobis available. There are few cases where the power to consider a motion for coram nobis relief has been denied.
The contention is made that § 2255 of Title 28, U. S. C., providing that a prisoner “in custody” may at any time move the court which imposed the sentence to vacate it, if “in violation of the Constitution or laws of the United States,” should be construed to cover the entire field of remedies in the nature of coram nobis in federal courts. We see no compelling reason to reach that conclusion. In United States v. Hayman, 342 U. S. 205, 219, we stated the purpose of § 2255 was “to meet practical difficulties” in the administration of federal habeas corpus jurisdiction. We added: “Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions.” We know of nothing in the legislative history that indicates a different conclusion. We do not think that the enactment of § 2255 is a bar to this motion, and we hold that the District Court has power to grant such a motion.
Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice. There are suggestions in the Government’s brief that the facts that justify coram nobis procedure must have been unknown to the judge. Since respondent’s youth and lack of counsel were so known, it is argued, the remedy of coram nobis is unavailable. One finds similar statements as to the knowledge of the judge occasionally in the literature and cases of coram nobis. Such an attitude may reflect the rule that deliberate failure to use a known remedy at the time of trial may be a bar to subsequent reliance on the defaulted right. The trial record apparently shows Morgan was without counsel. United States v. Morgan, 202 F. 2d 67, 69. He alleges he was nineteen, without knowledge of law and not advised as to his rights. The record is barren of the reasons that brought about a trial without legal representation for the accused. As the plea was “guilty” no details of the hearing appear. Cf. De Meerleer v. Michigan, 329 U. S. 663. In this state of the record we cannot know the facts and thus we must rely on respondent’s allegations.
In the Mayer case this Court said that coram nobis included errors “of the most fundamental character.” Under the rule of Johnson v. Zerbst, 304 U. S. 458, 468, decided prior to respondent’s conviction, a federal trial without competent and intelligent waiver of counsel bars a conviction of the accused. Where it cannot be deduced from the record whether counsel was properly waived, we think, no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court. Otherwise a wrong may stand uncorrected which the available remedy would right. Of course, the absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise. Johnson v. Zerbst, supra, at 468; Adams v. McCann, supra, at 281; cf. Darr v. Burford, 339 U. S. 200, 218.
Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy-an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.
Affirmed.
New York Penal Law, § 1941.
28 U. S. C. § 2255:
“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
Darr v. Burford, 339 U. S. 200, 203-204:
“The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights. To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.”
Such a motion is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding. Kurtz v. Moffitt, 115 U. S. 487, 494. While at common law the writ of error coram nobis was issued out of chancery like other writs, Stephens, Principles of Pleading (3d Amer. ed.), 142, the procedure by motion in the case is now the accepted American practice. Pickett’s Heirs v. Legerwood, 7 Pet. 144, 147; Wetmore v. Karrick, 205 U. S. 141, 151; United States v. Mayer, 235 U. S. 55, 67. As it is such a step, we do not think that Rule 60 (b), Fed. Rules Civ. Proc., expressly abolishing the writ of error comm nobis in civil cases, applies. This motion is of the same general character as one under 28 U. S. C. § 2255. See Reviser’s Note. Cf. United States v. Kerschman, 201 F. 2d 682, 684. And see contra to the above note, People v. Kemnetz, 296 Ill. App. 119, 15 N. E. 2d 883.
United States v. Bradford, 194 F. 2d 197, 201; see also Tinder v. United States, 345 U. S. 565.
28 U. S. C. § 1651 (a): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Reviser’s Note:
“The revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts.”
1 Stat. 81-82:
“That all the before-mentioned courts of the United Statesj shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. . . .”
See United States Alkali Assn. v. United States, 325 U. S. 196, 201; cf. United States v. Beatty, 232 U. S. 463, 467.
2 Tidd’s Practice (4th Amer. ed.) 1136-1137:
“If a judgment in the King’s Bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court, by writ of error coram nobis, or quae coram nobis resident; so called, from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, before the king himself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict, or interlocutory judgment: for error in fact is not the error of the judges, and reversing it is not reversing their own judgment. So, upon a judgment in the King’s Bench, if there be error in the process, or through the default of the clerks, it may be reversed in the same court, by writ of error coram nobis: . . . .”
Stephens, Principles of Pleading (3d Amer. ed.), 143; 2 Bishop, New Criminal Procedure (2d ed.), 1181.
See citations in n. 10, and United States v. Plumer, 27 Fed. Cas. 561, 572, Mr. Justice Clifford; O’Connell v. The Queen, 11 Cl. & Fin. (H. L. Rep.) 155, 233, 252.
Archbold (7th ed., Chitty, 1840) 350, 389; 1 Holdsworth, History of English Law (1927), 224.
A collection of these cases appears in an article by Abraham L. Freedman, Esq., 3 Temple L. Q. 365, 372. See Bronson v. Schulten, 104 U. S. 410, 416.
Ex parte Toney, 11 Mo. 661; Adler v. State, 35 Ark. 517; Sanders v. State, 85 Ind. 318; Matter of Hogan v. Court, 296 N. Y. 1, 9, 68 N. E. 2d 849, 852-853. See also a discussion of the New York cases by Judge Stanley H. Fuld, The Writ of Error Coram Nobis, 117 New York L. J. 2212, 2230, 2248, issues of June 5, 6, 7, 1947; Note, 34 Cornell L. Q. 596. Spence v. Dowd, 145 F. 2d 451; cf. Hysler v. Florida, 315 U. S. 411; Taylor v. Alabama, 335 U. S. 252; People v. Green, 355 Ill. 468, 189 N. E. 500.
“. . . and even if it be assumed that in the case of errors in certain matters of fact, the district courts may exercise in criminal cases — as an incident to their powers expressly granted — a correctional jurisdiction at subsequent terms analogous to that exercised at common law on writs of error coram nobis (See Bishop, New Crim. Pro., 2d ed., § 1369), as to which we express no opinion, that authority would not reach the present case. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” Id., p. 69. See also Bronson v. Schulten, 104 U. S. 410, 416; Phillips v. Negley, 117 U. S. 665, 673.
In United States v. Smith, 331 U. S. 469, 475, note 4, we referred to the slight need for a remedy like coram nobis in view of the modern substitutes.
Allen v. United States, 162 F. 2d 193; Robinson v. Johnston, 118 F. 2d 998, 1001, vacated and remanded for further proceedings, 316 U. S. 649.
Roberts v. United States, 158 F. 2d 150; United States v. Steese, 144 F. 2d 439. See also United States v. Monjar, 64 F. Supp. 746.
Garrison v. United States, 154 F. 2d 106; cf. Pierce v. United States, 157 F. 2d 848.
Tinkoff v. United States, 129 F. 2d 21; Barber v. United States, 142 F. 2d 805; Spaulding v. United States, 155 F. 2d 919; United States v. Moore, 166 F. 2d 102; Crowe v. United States, 169 F. 2d 1022; Bice v. United States, 177 F. 2d 843; United States v. Rockower, 171 F. 2d 423; Farnsworth v. United States, 91 U. S. App. D. C. 121, 198 F. 2d 600. Cf. Strang v. United States, 53 F. 2d 820.
United States v. Kerschman, 201 F. 2d 682; Gilmore v. United States, 129 F. 2d 199.
56 Yale L. J. 197, 233; 34 Cornell L. Q. 598; Robinson v. Johnston, 118 F. 2d 998, 1001, vacated and remanded for further proceedings, 316 U. S. 649.
Brown v. Allen, 344 U. S. 443, 486; see Gayes v. New York, 332 U. S. 145, 149, note 3; note, 58 A. L. R. 1286.
Until Johnson v. Zerbst, 304 U. S. 458, there was no uniform practice in the federal courts to have the orders show the judges’ conclusion that there had been a competent waiver of counsel. Cf. United States v. Steese, 144 F. 2d 439, 443.
See note 15, supra. Barber v. United States, 142 F. 2d 805, 807; Bronson v. Schulten, 104 U. S. 410, 416; Powell, Appellate Proceedings (1872), 108; Black, Judgments (2d ed.), 460.
See also Walker v. Johnston, 312 U. S. 275; Glasser v. United States, 315 U. S. 60; Fed. Rule Crim. Proc. 44.
Cf. Brown v. Allen, supra, at 485-486.
Fiswick v. United States, 329 U. S. 211; Note, 59 Yale L. J. 786.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
HAWTHORNE et al. v. AUSTIN ORGAN CO.
No. 3599.
Circuit Court of Appeals, Fourth Circuit.
June 25, 1934.
PARKER, Circuit Judge, dissenting.
Murray M. McGuire, of Richmond, Va., and John S. Battle, of Charlottesville, Va. (Robert E. Taylor, of Charlottesville, Va., on the brief), for appellants.
H. W. Walsh, of Charlottesville, Va. (W. Eskridge Duke and Lyttelton Waddell, both of Charlottesville, Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and WEBB, District Judge.
SOPER, Circuit Judge.
This action in assumpsit was instituted on June 22) 1932; in the District Court by Austin Organ Company, a Maine corporation, as plaintiff, against H. K. Hawthorne, M. L. Rea, and R. Merritte Robinson, citizens of Virginia, to recover the sum of $12,870, with interest. The suit was based on five promissory notes payable to the plaintiff; one of April.10) 1930; for $2)700, payable six months after date,, with an attorney’s fee of 10' per cent, for collection if not paid at maturity, and four notes of December 10) 1929) for $2)-475 each, payable at intervals of one, two, three, and four years, respectively. The notes were signed by the three defendants as “Trustees High Street Baptist Church.” The defense pleaded was that the notes ’were not the individual personal obligations of the defendants, but were the obligations of the congregation of the church, executed upon its authority by the defendants, as its agents, in evidencei of the purchase price of an organ, pursuant to a contract under which the plaintiff agreed to sell and deliver the organ to the congregation; and that the notes were accepted by the plaintiff, not as the obligations of the defendants, but as the obligations of the congregation.
At the trial of the case, the plaintiff proved the notes and rested. The defendants thereupon offered in evidence a contract of February 1, 3929) between the Organ Company, as party of the first part, and High Street Baptist Church, as party of the second. part, signed by a'representative of the Organ Company and by the three defendants, as trustees of the church. The contract provided that the Organ Company should construct, erect, and sell to the church, a pipe organ, according to certain specifications, and that upon the acceptance of the organ the church should pay therefor the sum of $12,-900 as follows: $3,000, in cash, and the balance in four notes of $2,475 each, payable at yearly intervals, with interest at 6 per cent. It was further provided that in the event of default in the payment of any note given for the balance of the purchase price, all of the sums represented by the notes should become due and pajmble. The contract was approved by the congregation at a meeting held on February 1,1929', at which the report of a music committee recommending the purchase of the organ on the terms expressed was adopted, and the trustees of the church were authorized and requested to’ sign the contract.
The organ was installed and accepted by the church on August 11,1939. The cash payment of $3>0()0, however, was not made, and after certain negotiations the Organ Company accepted in lieu thereof $100 in cash and a four months’ note of December 10, 1939, for $2,900'. On the same date the remaining four notes in suit were executed and delivered for the balance of the purchase price. The execution of the notes bj^ the trustees was authorized at a meeting of the congregation on December 6,19291, at which a motion requesting the trustees to sign the notes was adopted. The sum of $200- was subsequently paid on the note of $2,900', and on April 10, 1930, a renewal note for six months for $2,700' was given in its place.
The plaintiff objected to the introduction of the contract in evidence on the ground that it had been finally merged in the notes, which became the obligations for payment upon which the defendants were bound. It seems to be true that the notes were accepted as payment for the organ, but the evidence referred to above was relevant to the defense, and the default provision of the contract was necessary to justify an action upon the last two notes prior to their maturity.
At the conclusion of the evidence in the court below, a motion of the plaintiff for a directed verdict in its favor was granted, and this, action is assigned as error in this appeal. The District Judge was of the opinion that the defendants were individually liable on the notes by reason of the established principle that a trustee is subject to personal liability upon a contract made by him in the course of the administration of the trust, unless, by the contract, it is provided that he shall not he personally liable. The rule is so stated in Tentative Draft No. 4, Restatement of Trusts of the American Law Institute, §§ 253) 264, and 255, and the authorities support the statement. Taylor v. Davis, 110 U. S. 330, 4 S. Gt. 147, 28 L. Ed. 163 ; Petition of Eddy (C. C. A.) 6 F. (2d) 196-198; Allegheny Tank Car Co. v. Culbertson (D. C.) 288 F. 406; Hussey v. Arnold, 185 Mass. 203, 70 N. E. 87; Philip Carey Co. v. Pingree (1916) 223 Mass. 352, 111 N. E. 857; Equitable Trust Co. v. Taylor (1928) 330 Ill. 43, 161 N. E. 62, 64; Feldman, v. Preston (1916) 194 Mich. 352, 3.00 N. W. 055; Truesdale v. Phila. Trust Co. (1895) 63 Minn. 49, 65 N. W. 133; Stanton Nat. Bank v. Swallow (1925) 113 Neb. 330, 203 N. W. 561; Riedell v. Stuart (1931) 151 Okl. 266, 2 P.(2d) 929, 76 A. L. R. 1469; Catlett v. Hawthorne, 157 Va. 372., 161 S. E. 47. Compare Boyle v. Rider, 136 Md. 286, 110 A. 524, where it was held that the intent of the parties not to hold a trustee personally liable upon a contract need not necessarily be shown in the contract itself, but may be evidenced by circumstances known to the parties at the time the contract was executed.
The general rule, however, has been modified, so far as negotiable instruments are concerned, by section 20 of the Negotiable Instruments Law, codified in section 5582 of the Virginia Code, which provides as follows: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” It is said in the Tentative Draft of the Restatement of Trusts, § 255., page 153, that this statute is applicable to a trustee who signs a negotiable instrument in such a manner as to manifest an intention to he liable not in his personal capacity, but only as trustee. The authorities likewise support this statement of the rule. Thus in New Georgia Nat. Bank v. Lippmann, 249 N. Y. 307, 310, 164 N. E..108,109', 60' A. L. R. 1344, the court was construing the liability of a person who signed an instrument containing words indicating that he was signing- in a representative capacity, when in fact he signed without authority. In holding that in such circumstances the signer was liable on the instrument, the court, through Cardozo, C. J., discussed the purpose of section 20, as follows:
“Before the statute was adopted, all manner of subtle distinctions had to be drawn before one could say where liability would rest. Brannon [Negotiable Instruments Law (4th Ed.)], supra; Meehem, Agency, vol. 1, §§ 1122, 3123. Many forms of signature indicating an intention to sign as agent for a designated principal were held to charge the agent personally. The hardship was mitigated by resort to- extrinsic evidence when the controversy was one between the original parties to the paper, but not when the paper was in the hands of a holder in due course. Thus, a note bearing the name of a corporation in the margin, but signed by the president and treasurer in their own names with the addition of their official titles, and thereafter discounted by a bank without notice dehors the instrument, was in law their individual promise. Casco Nat. Bank v. Clark, 139 N. Y. 307, 34 N. E. 908, 30 Am. St. Rep. 705; Merchants’ Nat. Bank v. Clark, 139 N. Y. 314, 34 N. E. 910, 36 Am. St. Rep. 710; First Nat. Bank v. Wallis, 150 N. Y. 455, 44 N. E. 1038, Many decisions to the like effect aro collated in the.text-books, see, e. g., Brannon’s Negot. Instr. I Law (4th Ed.) by Prof. Chufee, note to section 20, Mechem, supra. Slight variations of form led to variant conclusions. See, e. g., Barker v. Mechanic Fire Ins. Co., 3 Wend. [N. Y.] 94, 20 Ain. Dee. 664; Miller v. Roach, 150 Mass. 140; 23 N. E. 634, 6 L. R. A. 71; Meehem, § 1124. The refinement of distinction was mystifying even to the courts. It must have been moro mystifying to business men in the quick transactions of the market.
“The statute, as we read it, sweeps these subleties away. Whenever the form of the paper is sucli as fairly to indicate to the eye of common sense that the maker signs as agent or in a representative capacity, he is relieved of personal liability if duly authorized. Jump v. Sparling, 218 Mass. 324, 328, 105 N. E. 878; Consumers’ Twine Co. v. Mount Pleasant Co., 186 Iowa, 64,194 N. W. 290; Austin, Nichols & Co. v. Gross, 98 Conn. 782; 120 A. 596.”
See, also, American Trust Co. v. Canevin (C. C. A.) 184 F. 657; Gutelius v. Stanbon (D. C.) 39 F.(2d) 621; First Nat. Bank of Pennsboro v. Delancey, 109 W. Va. 136, 153 S. E. 908; Wilson v. Clinton, etc., Church, 138 Tcnn. 398, 198 S. W. 244; Adams v. Swig, 234 Mass. 584,125 S. E. 857; Bank of Spruce Pines v. Vance, 205 N. C. 303, 170 S. E. 119; Megowan v. Peterson, 173 N. Y. 1, 65 N. E. 738; Charles Nelson Co. v. Morton, 106 Cal. App. 144, 288 P. 845; Grafton Nat. Bank v. Wing, 172 Mass. 53.3, 53 N. E. 3067, 43 L. R. A. 833, 70 Am. St. Rep. 303; Bowen v. Farley, 256 Mass. 19; 152 N. E. 69; Korby v. Ruegamer, 3.07 App. Div. 491, 95 N. Y. S. 408; Wolff v. Plateau, 206 App. Div. 133, 200 N. Y. S. 646; Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Conner v. Clark, 12 Cal. 168, 73 Am. Dec. 529; Hall v. Jameson, 151 Cal. 606, 91 P. 518, 12 L. R. A. (N. S.) 1190,12 L Am. St. lisp. 137; True W. Jones Brewing Co. v. Flaherty, 80 N. H. 571, 120 A. 432. We have been referred to no- Virginia cases in which it is held that section 20' is applicable to trustees signing a contract as such, but it seems certain that the Virginia court regards with favor the rule established by the above-cited authorities, for there are numerous dicta to that effect in the opinion of Coal River Collieries v. Eureka C. & W. Co., 144 Va. 263, 132 S. E. 337, 339; 46 A. L. R. 485.
It will be noticed that a trustee is excused from personal liability only if he is duly authorized to sign the instrument, in a representative capacity. Reiving on this proviso, the plaintiff contends that no authority was given to the defendants by the church to sign the notes «in suit on its behalf. Reference is made to the resolution passed by the congregation of February 1, 3.929, wherein the report of the music committee was adopted, and the trustees of the church, were authorized and requested to sign the contract for the purchase of the organ; and also- to the resolution passed at the meeting of December 6, 1920, wherein the trustees were requested to sign the notes. The contention is that these resolutions did not empower the trustees to sign on behalf of the congregation, but merely to sign the contract themselves. The position is not tenable. The contract which the trustees wore authorized and requested to sign was expressly entered into between the Organ Company, as party of the first pari, and the church, as party of the second part, and it would be a perversion of the reasonable meaning of the resolutions to hold that the congregation did not authorize the trustees to sign the notes on its behalf, but merely on their account. •
The plaintiff goes further and contends that the church had no power under the Virginia statutes to authorize the trustees to sign a contract on its behalf which might become a charge upon the property held by the trustees for the uses of a religious congregation. Reference is made to sections 45 and 46 of the Virginia Code, in which if is provided that whenever any religious congregation shall deem that their interests will be promoted by a sale of tbeir land or by a mortgage thereof or deed of' trust thereon, any member of the congregation may prosecute a suit in the circuit court of the county where the land lies against the trustees in whom the legal title is, and the court may, if the congregation has given its assent and the court be of the opinion that the rights of others will not be violated, order that the desired action be taken.. The trustees themselves. may file such petition, and the court, upon evidence that the action is the wish of the congregation, may pass the desired order. The contention is that no action may be taken by the congregation or the trustees which may incumber the lands or property of the church unless proceedings are instituted in conformity with these statutes.
The answer to this argument is found in the decision of Cain v. Rea, 159l Va. 446> 166 S. E. 478, 480; which, was a suit instituted by an architect against the same trustees involved in the pending ease to enforce a mechanic’s lien on the property of the same church, for compensation for labor performed in connection with the erection of the church building under a contract between the architect and the church, which was authorized by the congregation and signed by the trustees. The main question in the ease was whether under the Virginia Mechanic’s lien Law, section 642© of the Virginia Code, a mechanic’s lien attaches to church property held by trustees. The sole defense to the suit was that the Legislature had provided only two methods under sections 45 and 46 by which church property might be incumbered; and since neither had been followed in the transaction between the architect and the church, he could not enforce his mechanic’s lien. The court said: “We are unwilling to concur in the contention that sections 45 and 46 prohibit a church congregation from making any contract which will affect the church property, except in the particulars enumerated in the statutes. The sections in question provide a convenient method for the sale or mortgaging of church property. They are barriers over which neither trustees nor individual members can step in order to destroy the corpus. They do not prohibit a church, in a congregational meeting, duly called in conformity with the rules of the church, from entering into a contract with a laborer or materiahnan to perform labor or furnish material.”
The court, in reaching this conclusion, relied largely on the decision in Linn v. Carson’s Adm’r, 32 Grat. (73 Va.) 170; wherein a church trustee filed a bill in equity to collect an amount which he had advanced for the erection of a church building; and it was held that the transaction between him and the church amounted to a contract which could be enforced against the church property in that ease. There the court said: “The Methodist Episcopal church at Winchester, though not a corporation, and incapable of incorporation under the constitution of the state, was an association of individuals, recognized by the constitution as a body capable of taking and holding land, under such limitations as might be prescribed by law, and entitled to be secured in the enjoyment of its property.”
In Cain v. Rea, the court expressly disapproved a statement in its prior decision in Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, to the effect that in Virginia a church or its congregation cannot contract except by reason of a specially held meeting and through a special committee appointed by the members attending the meeting. In that ease the board of stewards of a church was held personally liable on a contract in the name of the church, on the ground that the church eo nomine was not a legal entity, Was not competent to sue or be sued, and could not be a party to a contract. The final conclusion in Cain v. Rea was, that since the church had authorized the contract of employment, the architect’s lien for services rendered was enforceable against the church property. -
This decision seems to us conclusive upon the point under discussion; for if the congregation of a church has the capacity to contract, it must-possess legal personality, and the inherent power to authorize other persons to enter into a contract on its behalf. The full significance of the decision appears when it is noted that it followed closely upon the decision in Catlett v. Hawthorne, 157 Va. 372, 161 S. E. 47, wherein the defendants in the pending ease were held personally liable upon a note signed by them as trustees which had been given in payment of lighting fixtures for the church. They had secured a ruling in prior litigation that the church had not authorized the execution of the note in accordance with law, and it was held that they were therefore estopped, when sued personally, from contending that the payee was to look for payment to the congregation. It is also significant that the court’s attention was called to the provision of section 59‘ of the Constitution of Virginia, that the General Assembly shall not grant a charter of incorporation to any church or religious denomination, and to expressions in earlier cases such as Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, indicating that a church in Virginia1 is not a legal entity. See, also, Feuchtenberger v. Williamson, 137 Va. 578, 120 S. E. 257, which, holds that under the Mechanics Lien Statute, sections 6426 and 6436, only the interest of the contracting party in the land is subject to the lien.
It is true that the provisions of section 20 of the Negotiable Instruments Law suggest that ordinarily the authority of the maker of the instrument to sign in a representative capacity must proceed from some person against whom liability upon the instrument may be asserted. Compare Charles Nelson Co. v. Morton, 1.06 Cal. App. 144, 288 P. 845. It seems clear, however, from the decision in Cain v. Rea, that the congregation in the pending ease was not so devoid of legal personality that no liability could be fixed, upon it. Such a body is not only capable of taking and holding property, but it can make a. contract which may give rise to a lien upon its property. Moreover, under the statute law of Virginia, a church organization is liable to suit. Section 42 of the Code of Virginia enables trustees of a church, in their own names, to sue for and recover real and personal property held by them in trust, or to sue for damages for injury thereto; and also permits them to be sued in relation to the same. The scope of this section seems to ho limited to suits attacking the property or the legal title vested in the trustees. Globe Furniture Co. v. Jerusalem Church, 103 Va. 559, 49 S. E. 657. There is, however, a broader statute in section 6058 of the Virginia Code which provides for suits by and against unincorporated associations generally, and declares that they may sue or be sued raider their common name, and that judgments and execution against them shall bind their real and personal property in like manner as if they were incorporated. There appear to have been no decisions of the state courts as to the applicability of this statute to a church, but the language is sweeping and broad enough to include such a group. So it now appears that the property which a church owns may he made liable for the debts which it incurs under its power to make a contract. It follows that section 20’ of the Negotiable Instruments Law may be applied to a negotiable instrument executed on behalf of a church in Virginia, so as to give effect to the obvious purpose of the section to save from personal liability a person who signs a negotiable instrument in a representative capacity, when he is authorized to do so by one subject to the liability.
The effect of the decision of the Supreme Court of Appeals of Virginia, as we understand it, is in accord with the tendency of modern decisions to acknowledge the fact that associations of men, united in a common purpose, are endowed with personality which, for some purposes at least, the courts may recognize. It is insisted in some quarters that in the absence of legislative authority it is not proper for the courts in any case to view an association as a legal unit or juristic person, while other writers, without ignoring the traditional view, suggest that the line between bodies corporate and unincorporate is so indefinite in the decisions and statutes of to-day that a sharp distinction cannot always he made. Compare Warren, Corporate Advantages without Incorporation (19'29) and Dodd on Dogma and Practice in the Law of Associations, 42 Harvard Law Review, 977, June, 192.9; Stnrges, Unincorporated Associations as Parties to Actions, 33 Yale Law Journal, 9214. The more liberal view is not without support in the decisions o f the courts. In the well-known case of United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762i, the Supreme Court held that unincorporated labor unions are suable in the federal courts for torts, and that their funds, are subject to execution. Reference was made in the opinion (page 385 of 2159 II. S., 42 S. Ct. 570, 574), to “affirmative legal recognition of their existence and usefulness and provisions for their protection,” embodied in statutory provisions passed; by Congress and by the Legislatures of many states, and also to the influence upon the law side of litigation of the equity procedure by which the representation by one person of many in a suit is permitted with the result that the suable character of such an organization has been recognized without dispute in many jurisdictions. The court said.(pages 390, 391 of 259 U. S., 42 S. Ct. 570, 576) : “Though such a conclusion as to the suability of trades unions is of primary importance in the working out of justice and in protecting individuals and society from possibility of oppression and injury in their lawful rights from the existence of such powerful entities as trade unions, it is after all in essence and principle merely a procedural matter. As a matter of substantive law, all the members of the union engaged in a combination doing unlawful injury are liable to suit and recovery, and the only question is whether when they have voluntarily, and for the purpose of acquiring concentrated strength and the faculty of quick unit action and elasticity, created a self-acting body with great funds to accomplish their purpose, they may not be sued as this body, and the funds they have accumulated may not be made to satisfy claims for injuries unlawfully caused in carrying out their united purpose.”
We do not think that it can be said that the opinion was in strict accord with the traditional rule that a voluntary association may not be treated as a legal unit; for on the contrary there was the recognition of the fact that such an organization may be an entity or self-acting body, capable of possessing funds and subject as such to suit in the courts. It seems to us rather that the opinion represented an advance or natural development in the law by which the ancient rule was brought into conformity with modern needs that in various ways had been formally recognized in the litigation and statutes of the country.
In other connections, the Supreme Court has treated unincorporated aggregations as legal entities subject to liabilities. In BurkWaggoner Association v. Hopkins, 269 U. S. 116, 46- S. Ct. 48, 70 L. Ed. 183, it held that an unincorporated joint stock association, although a partnership under the state law, was a corporation within the definition of the Revenue Act of 1918 (40 Stat. 1057) and subject to the income taxes imposed by that act, and therefore overruled the contention of the association that what was called its property and income was in law the property and income of its members which could be taxed only after apportionment to the owners thereof. In Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577, 579, 72 L. Ed. 978, it was held that a business association known as a “Massachusetts Trust,” which was unincorporated but had some of the attributes of a corporation under the state law, could not claim for itself the privileges and immunities granted to associates as individual citizens by article 4, § 2, of the Federal Constitution. Discussing the matter, the court said: “Whether a given association is called a corporation, partnership, or trust, is not the essential factor in determining the powers of a state concerning it. The real nature of the organization must be considered. If clothed with the ordinary functions and attributes of a corporation, it is sub ject to similar treatment.”
It is obvious that in this decision the actuality of the situation rather than the technical distinction between incorporated bodies and voluntary associations was the controlling consideration.
Conversely, cases dealing with incorporated bodies are not wanting in which the corporate fiction has been ignored so that the situation might bo treated realistically and justice might be done. The Supreme Court itself on occasion has disregarded the fiction in tax cases in order to avoid injustice to the taxpayer or to the United States, as in Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142; Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1061, 33 A. L. R. 5201; U. S. v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180. See, also, Industrial Cotton Mills v. Commissioner (C. C. A.) 61 F.(2d) 291; Western Md. By. Co. v. Commissioner (C. C. A.) 33 F.(2d) 695. Compare New Colonial lee Co. v. Helvering, 54 S. Ct. 788, 78 L. Ed. 1348, decided May 28, 1934.
Modem legislation itself, reflecting the demands of the times, tends to obliterate the distinction. On the one hand, we find statutes like that codified in section 6058 of the Virginia Code, which permits an unincorporated association to sue and be sued under its common name, and provides that judgments and executions against it shall bind its real and personal property in like manner as if it were incorporated. These provisions may be viewed-as merely procedural; see Warren, Corporate Advantages without Incorporation (1929), Ch. 6; but they are none the less a recognition of the fact that an aggregation of men, which performs acts, incurs liabilities, and owns property as a body, has in fact.a personality which cannot be completely ignored by the law without introducing confusion and injustice in practical affairs. On the other hand, there are the liberal permissive laws of the several states which make possible the formation of a corporation by any group of individuals who see fit to take advantage of the opportunity. The liberality of these statutes emphasizes the unreality of the distinction between the two classes of aggregations, and the result is that the courts are led more and more to recognize the factual similarity between them. The Supreme Court of Appeals of Virginia was doubtless influenced by these considerations when it spoke in Linn v. Carson, supra, of a church as “an association of individuals, recognized * * * as a body capable of taking and holding land.”
The plaintiff further contends, irrespective of the liability of the defendants on the notes as trustees, that they are-personally liable as members of an unincorporated body, who participated in the making of the contract, and are in effect the principals on whose behalf the notes were executed. The general rule at common law is invoked that a voluntary association, not for profit, such as an unincorporated church or club, is not liable as such 011 its contracts because it lias no independent legal status, but the members thereof, who authorize or ratify the contract, are liable thereon upon general principles of agency. Thus it is said in Catlett v. Hawthorne, 157 Va. 372, 377, 161 S. E. 47, that members of an unincorporated church organization, who are actually instrumental in incurring liabilities for it, or authorize or ratify its transactions, are personally liable therefor. See the authorities collected in Vader v. Ballou, 151 Wis. 577,139 N. W. 413, 7 A. L. R. 216, 218, 222; Cousin v. Taylor, 115 Or. 472, 239 P. 96, 41 A. L. R. 750, 754; Jardine v. Superior Court in and for Los Angeles County, 213 Cal. 301, 2 P.(2d) 756, 79 A. L. R. 291; Sweetman v. Barrows, 263 Mass. 349, 161 N. E. 272, 63 A. L. R. 313.
It is by no means clear that under the Virginia law the liabilities of members of the congregation of a church upon contracts made in its name are as broad as the liabilities of members of the.ordinary unincoi’porated association, which has no existence at all in law. But if we assume that not only the church, hut also its members, are liable upon its contracts, we must still bear in mind that in the pending- case the contracts in suit are promissory notes governed by the Negotiable Instruments Law. Section 18 of the statute (Va. Code, § 5580) provides: “No person is liable on the instrument whose signature does not appear thereon except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to ihe same extent as if he had signed in his -own name.”
The rule enunciated in this section is declaratory of the common law (Daniel on Negotiable Instruments (6th Ed.) § 303; Cragin v. Lovell, 109 U. S. 194, 398, 3 S. Ct. 132; 27 L. Ed. 303; Texas L. & C. Co. v. Carroll & Iler, 63 Tex. 48, 51; Frailing v. Sieber, 168 Wis. 239, 169 N. W. 607), and no principal whose name is not disclosed upon the face of the instrupient may be held liable upon it. Maries v. Kindel (C. C. A.) 41 F.(2d) 584; Frailing v. Sieber, 168 Wis. 259, 169 N. W. 607; Mineral Belt Bank v. Elking Lead & Zinc Co., 173 Mo. App. 634, 158 S. W. 1066. It has been held that a note signed in a partnership name binds all the partners, under the second sentence of the section (Frazier v. Cottrell, 82 Or. 614, 162 P. 834; Patrick v. Wood & Sons, 162 Ga, 137, 133 S. E. 870), although a note signed by a partner individually for a partnership debt is not binding upon the partners who- did not sign (Marks v. Kindel, supra). But the name of a church, capable of contracting as a legal entity, when signed to a note with its authority, can hardly be viewed as the trade or assumed name of its members. The exception was designed to prevent the escape from liability of one who, instead of his own name, has used upon the instrument an artificial name to indicate the person to- bo bound; and the use of a group name, which, describes a juristic person capable of making a contract, was not in contemplation. Moreover, the exception does not appear to be relevant to a negotiable instrument in the name of a voluntary group, not organized for- profit, which has no existence as a legal entity, for if such a name should be considered as the trade or assumed, name of the members of the group, it would noces sarily stand for and bind all the members, and the established rule, that only participating members of such an organization are bound by acts done in its name, would be violated. On the other hand, if liability is confined to participating members only, there is conflict with the main purpose of the section to specify with definiteness the persons liable upon an instrument, and to confine that liability to those whose identity is disclosed or indicated thereby.
The mere fact that the defendants signed the notes in a representative capacity cannot give countenance to a suit to hold them as principals upon the basis of their membership in the church. It is not necessary under the Virginia statutes that a trustee appointed by the court to take title to the property of a church be a member of its congregation (see Virginia Code, § 39); so that it may not be inferred from the appearance of the names of the defendants in the notes that they were members of the church. They did not sign as members, and their signatures as trustees imported no personal undertaking under section 20 of the Negotiable Instruments Law, and did not make them parties in their individual capacity to the instrument. To hold them personally liable because of the extraneous fact that they were members of the congregation, would be to impose a liability upon persons not disclosed upon the face of the instrument at all. None of the cases cited by the plaintiff involve the precise situation here presented, for the association, in whose behalf the contract was therein made, was not regarded as an entity which could be bound. Only three of the cases (Evans v. Lilly, 95 Miss. 58, 48 So. 612; 21 Ann. Cas. 1087; Chick v. Trevett, 20 Me. 462; 37 Am. Dec. 68; Catlett v. Hawthorne, 157 Va. 3721, 377, 161 S. E. 47), involve suits upon promissory notes. In the first two, the signatures of the parties were hot regarded as indicating a representative capacity alone,
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_state
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10
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Roger L. SUMMER, Plaintiff-Appellant, v. LAND & LEISURE, INC., et al., Defendants-Appellees. Roger L. SUMMER, Plaintiff-Appellant Cross-Appellee, v. LAND & LEISURE, INC., et al., Defendants-Appellees Cross-Appellants.
Nos. 79-2429, 80-5297.
United States Court of Appeals, Fifth Circuit. Unit B
Dec. 28, 1981.
Byron G. Mathews, Jr., Lane, Mitchell & Harris, Claude Robert Murray, Jr., Miami, Fla., for Roger L. Summer.
Carl D. Liggio, New York City, Podhurst, Orseck & Parks, Joel D. Eaton, Michael S. Olin, Miami, Fla., for Arthur Young & Co.
Jacobs, Robbins & Gaynor, Guy M. Burns, St. Petersburg, Fla., for Raymond, James & Associates, Inc.
Jesse C. Jones, Miami, Fla., for Babcock, Bailey, Bailey, Sr., Bailey, Jr. and Land & Leisure, Inc.
Robert R. Fischer, pro se.
Robert Little, pro se.
Before GODBOLD, Chief Judge, FRANK M. JOHNSON, Jr. and ANDERSON, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
R. LANIER ANDERSON, III, Circuit Judge:
On February 23, 1978, appellant Roger L. Summer (referred to as “Summer” or “plaintiff” or “appellant”) filed this complaint in the United States District Court for the Southern District of Florida. Subject matter jurisdiction was predicated on alleged violations of the federal securities laws; however, several state law claims were also asserted under the district court’s pendent jurisdiction. Summer was an investor in Land & Leisure, Inc. (“L&L”). Between June 24, 1971, and January 3, 1973, he purchased, in eleven installments, a total of 9,500 shares of L&L common stock at a total cost of approximately $54,000. L&L stock did not fare well over the years. In his complaint, Summer alleges a conspiracy or scheme among the several defendants to defraud investors and to conceal the fraud. Count I of the complaint alleges a claim under § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and Rule 10(b)-5 of the Securities and Exchange Commission; Counts II and VI allege claims of common law fraud; Counts III, IV and V allege claims under §§ 11, 12(2), and 17 of the Securities Act of 1933, 15 U.S.C.A. §§ 77k, 77/(2) and 77q; Count VII alleges a claim under the Florida Blue Sky Law, Fla.Stat. §§ 517.21 and 517.301; Count VIII is a state claim of mismanagement and breach of fiduciary duties by corporate officers and directors; and Count IX is a state law claim for breach of the corporate opportunity doctrine. Defendants are Land & Leisure, Inc.; and Guy B. Bailey, Guy B. Bailey, Jr., Areca Stone Bailey, Charlotte Babcock, Robert Little, Jerome Grossman, and Robert Fischer, who were at one time or another officers or directors or both of L&L; and Raymond James Associates, Inc. (“Raymond”), the lead underwriters for L&L; and the accounting firm of Arthur Young & Co. which prepared the registration statement and prospectus for L&L. We sometimes refer to all defendants collectively as “defendants.” We sometimes refer to all defendants except Arthur Young and Raymond as the “corporate defendants,” 7. e., the corporation, Land and Leisure, Inc., and its several officers or directors. Defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). The district court granted the motion as to all the claims under federal law on the ground that they were barred on their face by the applicable statutes of limitations and, as there were no pending federal questions, exercised its discretion to dismiss the claims under state law. Furthermore, the district court determined that the complaint was frivolous and awarded attorney’s fees and costs in favor of the defendants, except Little, in the aggregate amount of $32,480. See § 11(e) of the Securities Act of 1933, 15 U.S.C.A. § 77k(e).
I. APPLICABLE STATUTES OF LIMITATIONS FOR CLAIMS UNDER THE FEDERAL SECURITIES LAWS
Our first task is to determine the applicable statutes of limitations for the federal securities claims. We note that more than seven years elapsed between the first purchase of stock and the filing of the complaint, and more than five years passed from the last purchase of stock and the filing of the complaint.
A. The Section 10(b) Claims.
Since § 10(b) of the 1934 Act, 15 U.S.C.A. § 78j(b), provides no statute of limitations, we look to the most analogous state statute of limitations. Under Florida law, Fla.Stat. § 517.21, provides for a two-year statute of limitations on actions for violation of Florida securities laws. See Nortek, Inc. v. Alexander Grant & Co., 532 F.2d 1013 (5th Cir.), rehearing denied, 536 F.2d 624 (1976). Section 517.21 was repealed on July 1, 1976, by Chapter 76-168, § 3 of the Laws of Florida of 1976. See Vigman v. Community National Bank & Trust Co., 635 F.2d 455, 460 n.10 (5th Cir. 1981). Fla.Stat. § 95.-11(5)(d) (amended 1975) provides for a three-year statute of limitations on actions for fraud. See Vigman v. Community National Bank & Trust Co., supra. We note that § 95.11(5)(d) was changed from three to four years on January 1, 1975. See Vigman v. Community National Bank & Trust Co., 635 F.2d at 460 n.11. The district court applied the four-year statute. Since the last sale was on January 3, 1973, and since the complaint was filed on February 23, 1978, which is more than four years, the district court concluded that plaintiff’s § 10(b) and Rule 10(b)-5 claims were barred. We need not decide which of the foregoing statutes of limitations apply in this case. Even assuming that the longest, the four-year statute, applies, it is clear that plaintiff’s § 10(b) and Rule 10(b)-5 claims are barred, in the absence of circumstances which would toll the statutes.
B. The Section 17 Claims.
With respect to the claims under § 17 of the 1933 Act (a portion of Count III), the appropriate state statute of limitation also governs. See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir. 1980); Newman v. Prior, 518 F.2d 97 (4th Cir. 1975). The district court correctly applied to the § 17 claims the same analysis as for the § 10(b) and Rule 10(b)-5 claims. See Nortek, Inc. v. Alexander Grant & Co., supra; Turner v. Lundquist, 377 F.2d 44 (9th Cir. 1967). Accordingly, the § 17 claims are also barred, unless the period was tolled.
C. The Section 11 and Section 12(2) Claims.
Sections 11 and 12(2) of the 1933 Act, 15 U.S.C.A. §§ 77k and 777(2) (a portion of Count III, Count IV and Count V), however, are governed by the limitation period contained in § 13 of the 1933 Act, 15 U.S.C.A. § 77m, which provides:
No action shall be maintained to enforce any liability created under § 77k or § 771 (2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, .... In no event shall any such action be brought to enforce a liability created under § 77k ... of this title more than three years after the security was bona fide offered to the public, or under § 777(2) of this title more than three years after the sale.
The district court held that the passage of more than three years between the alleged wrongful act and the commencing of this action is an absolute bar to the claims under §§ 11 and 12(2), 7. e., the normal rules of tolling do not apply after three years. Appellant does not seriously contest this ruling and it is consistent with a view of the majority of the courts to consider the question. See Brown v. Producers Livestock Loan Co., 469 F.Supp. 27 (D.Utah 1978); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899 (E.D.Wis.1978); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394 (M.D.La.1974). The Tenth Circuit has interpreted the almost identical language in the Interstate Land Sales Full Disclosure Act to constitute an absolute bar. Aldrich v. McCulloch Properties, Inc., 627 F.2d at 1042-43. But see In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 337 (N.D.Okl.1975). The court in Turner v. First Wisconsin Mortgage Trust, supra, rejected the plaintiff’s argument that the three-year period could be tolled by the defendant’s concealment of the claim. “Otherwise [§ 13] would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all.” 454 F.Supp. at 911. We find this reasoning convincing. We hold that the normal tolling rules are not applicable to toll the three-year period. Accordingly, we hold that appellant’s claims under § 11 and § 12(2) are absolutely barred and affirm the district court’s dismissal of those claims.
II. DID APPELLANT ALLEGE SUFFICIENT FACTS WHICH WOULD TOLL THE STATUTE OF LIMITATIONS ON THE § 10(b) AND § 17 CLAIMS?
While we relied upon state law for the appropriate statute of limitations, federal law determines “when the clock starts to running” for purposes of the statute of limitations. See Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967). “Under federal law, a cause of action under § 10(b) and Rule 10(b)-5 . . . accrues when the aggrieved party has either actual knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge thereof.” See Vigman v. Community National Bank & Trust Co., 635 F.2d at 459. Appellant claims that by the exercise of due diligence he did not discover the claims now asserted until 1977, within one year before the complaint was filed, and well within the appropriate statute of limitations whether it be two, three or four years.
We turn to the allegations of the complaint, particularly those of concealment of the facts by the defendants, which would tend to establish that plaintiff exercised due diligence in discovering the claims which he now asserts. The allegations throughout the complaint which would establish appellant’s due diligence or concealment of facts by the corporate defendants fall into three categories: (1) that the defendants conspired to fail to file required reports with the Securities and' Exchange Commission, to fail to file and mail stockholders reports and proxy statements, and to fail to call annual stockholders meetings; (2) that defendants attempted to lull appellant by telling him that reports on L&L’s financial condition would be forthcoming and that all was well with L&L; and (3) that defendants conspired to prevent the appellant from learning the true condition of the corporation by denying appellant access to corporate books and records, by falsely advising appellant that records had been lost or were unavailable, and by making false entries in the books and records. Appellant asserts, as a consequence of these actions, he did not reasonably discover the existence of the claims until 1977.
We are mindful of the standard for ruling on a Rule 12(b)(6) motion: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In granting the defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6), the district court held, as a matter of law, that the plaintiff was aware of facts which would have disclosed the alleged fraud. The facts relied upon by the district court were only three: first, Summer’s knowledge that the defendant corporation did not hold annual stockholders’ meetings; second, his knowledge that the defendant corporation did not send out annual stockholders’ reports; and third, his knowledge of the sharp decline in the value of the stock.
With respect to the decline in the price of the Land and Leisure stock, we note that the bulk of Summer’s purchases occurred after the substantial price decline, and that all the purchases were made through the underwriter, Raymond. It is a reasonable inference from the pleadings that the independent accounting firm, Arthur Young, continued to provide accounting services throughout the relevant time, including in particular after the time of the substantial price decline. If the price decline did not put the accounting firm and the underwriter on notice, it is a reasonable inference that it would not have put Summer on notice. We can conceive of several factual situations in which a price decline, under the circumstances here, would not be indicative of fraud in the least, e. g., a depressed real estate market caused either by tight money or recession.
With respect to the failure to send annual stockholders’ reports and hold annual stockholders’ meetings, none of the defendants have cited any case, nor have we found one, which holds that the mere failure to send such reports or hold such meetings is sufficient to put an investor on notice of facts which in the exercise of due diligence would have led to actual knowledge of fraud.
In the present posture of this case —a Rule 12(b)(6) dismissal — the three facts relied upon by the district court are simply not sufficient to justify a conclusion that “it appears beyond doubt that the plaintiff can prove no set of facts” which would adequately explain why plaintiff did not become suspicious. In fact, Summer has made significant allegations tending to explain his lack of suspicion and tending to support his allegation of due diligence. As against all defendants, Summer has alleged generally a conspiracy to fraudulently conceal from plaintiff the material facts. As against the corporate defendants, Summer specifically alleged misrepresentations on numerous occasions that reports of financial condition would be forthcoming, that all was well with the defendant Land and Leisure, and that annual meetings would be forthcoming. In addition, Summer alleged that he was denied access to records, and that there were attempts to prevent him from learning the true financial condition by hiding records, removing records, making false entries in records, and misrepresenting that records were also lost or destroyed. Accordingly, we hold with respect to all defendants, except Arthur Young and Raymond, that the district court erred in dismissing plaintiff’s complaint pursuant to Rule 12(b)(6). In Azalea Meats, Inc. v. Muscat, 386 F.2d 5 (5th Cir. 1967), we stated:
We disagree, however, with its disposition of the issue of due diligence on motions for summary judgment.
Recognizing that “ * * * the question whether a party had sufficient opportunity, so that in the exercise of reasonable diligence he would have discovered the facts forming the basis of his cause of action, may raise issues of fact which would have to be tried to a jury; * * * ”, the learned judge, on the facts contained in the record before us, treated it as a question of law to be determined by the court and arrived at the ultimate conclusion that: “Considering the depositions, documents and affidavits filed herein, there can be no question that plaintiff was put on notice as to the facts constituting its alleged cause of action no later than early September, 1961.” We note in passing that neither of the four cases relied upon by the trial court to support this result involved adjudication upon a motion for summary judgment.
The concept of due diligence is not imprisoned within the frame of a rigid standard; it is protean in application. A fraud which is flagrant and widely publicized may require the defrauded party to make immediate inquiry. On the other hand, one artfully concealed or convincingly practiced upon its victim may justify much greater inactivity. The presence of a fiduciary relationship or evidence of fraudulent concealment bears heavily on the issue of due diligence.
386 F.2d at 9 (footnotes omitted). Of course we express no opinion as to whether the record in the instant case on remand will develop such that the due diligence issue can be resolved on summary judgment, or whether a full trial will be necessary. However, we are confident that it was error to conclude that “it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 101-02. Accordingly, the dismissal of the complaint was error with respect to all defendants except Arthur Young and Raymond.
Because the district court concluded that Summer had knowledge of facts which should have led to his discovery of the fraud, the district court did not address the subsidiary argument of Arthur Young and Raymond that the complaint contains only conclusory allegations as against those two defendants. We agree with Arthur Young and Raymond that the complaint includes only conclusory allegations of fraudulent concealment as against Arthur Young and Raymond. Rule 9(b), Fed.R.Civ.P., requires that the elements of fraud be pleaded with particularity. Accordingly, we affirm the judgment of the district court to the extent that it dismissed the complaint with respect to Arthur Young and Raymond, but we hold that on remand Summer be granted leave to amend to assert more particularized allegations as against Arthur Young and Raymond, if he can do so. See 2A Moore’s Federal Practice, K 9.03 (indicating that dismissal for failure to comply with Rule 9(b) is almost always with leave to amend).
III. THE OTHER ISSUES ON APPEAL
Our disposition necessarily supplants the district court’s determination that the complaint was without merit and that the defendants were entitled to attorney’s fees. We therefore vacate the award of attorney’s fees, which also makes it unnecessary for us to address the issues on cross-appeal relating to the amount of attorney’s fees. Likewise, we reinstate the pendent state claims.
IV. CONCLUSION
We affirm the district court’s dismissal of the § 11 and § 12(2) claims as against all defendants. As against all defendants except Arthur Young and Raymond, we reverse the district court’s dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims and remand for further proceedings not inconsistent with this opinion. As to Arthur Young and Raymond, we affirm the dismissal of the § 10(b) and Rule 10(b)-5 claims and the § 17 claims, but direct that leave to amend be granted. The district court’s award of attorney’s fees is vacated. The pendent state claims are reinstated. All costs of this appeal shall be taxed against appellees.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
. The allegations of concealment are not contained within each and every count of the complaint; however, the allegations are contained at various points in the complaint. We believe it would be contrary to the liberal reading which we must give to a complaint upon motion to dismiss to consider the allegations of concealment only as to those counts in which the allegations are set forth. Having made such allegations with respect to some counts, and there being a reasonable inference that the allegations would likewise apply to the other counts, we surely cannot conclude that it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief.
. Defendants cite several cases in which a plaintiffs knowledge of the declining market price of securities has been a factor indicating that plaintiff had knowledge of facts which should have led to the discovering of the fraud. However, these cases apparently involved misrepresentations relating to the value of the securities — e. g., that the investment would produce a stable income with no risk — so that sharp declines in value shortly after such misrepresentation would in fact tend to indicate that the representation was false. See Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690 (8th Cir. 1981); Koke v. Stifel, Nicolaus & Co., 620 F.2d 1340 (8th Cir. 1980); Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir. 1980); and Hupp v. Gray, 500 F.2d 993 (7th Cir. 1974). In the instant case, a decline in market price is not inconsistent with the representations complained of nor otherwise suggestive of the fraud alleged.
. Arthur Young’s reliance upon Cook v. Avien, Inc., 573 F.2d 685 (1st Cir. 1978), is misplaced. Cook did not hold that the failure to hold a stockholders’ meeting constituted notice. In Cook, a stockholders’ meeting was in fact held, and plaintiff would have become aware of the misrepresentations had plaintiff attended. Id. at 696, n.22. Nevertheless, the First Circuit declined to adopt an inflexible rule imputing such knowledge to a shareholder who did not attend the meeting; rather, the court held only that the failure to attend was one factor to be weighed adversely to plaintiffs diligence. Id. at 695, n. 21.
. We note that most of the cases relied upon by the defendants were appeals from summary judgments rather than 12(b)(6) dismissals. The plaintiffs were allowed to support their claim with matters outside the pleadings.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
James Skip HULSEY, Plaintiff-Appellant, v. STATE OF TEXAS, et al., Defendants-Appellees.
No. 90-8568
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 19, 1991.
James Skip Husley, Amarillo, Tex., pro se.
R.E. Motsenbocker, James M. O’Leary, Shafer, Davis, McCollum, Ashley, O’Leary & Stoker, Odessa, Tex., for defendants-ap-pellees.
Before KING, GARWOOD, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge.
James Skip Hulsey filed a civil rights action in district court against the State of Texas, the City of Odessa, and Ted Hughes, an Odessa police officer. The court dismissed with prejudice Hulsey’s claims against the State of Texas for want of prosecution and granted summary judgment in favor of the City of Odessa and Officer Hughes. Hulsey now appeals the court’s judgment. We affirm.
In April 1989 Hulsey was on parole from prison after a previous state criminal conviction in Texas. Pursuant to an arrest warrant issued by the Texas Department of Pardons and Paroles, Officer Hughes arrested him in Odessa, Texas for a parole violation based on an allegation that he had committed rape. The next day, Hulsey was transferred to a jail in Ector County, Texas to await the disposition of his parole revocation proceedings.
While Hulsey waited in the Ector County jail, the Odessa Police Department conducted an investigation of the alleged rape. After Hulsey had been in the Ector County jail for five days, formal charges were brought against him in state court for sexual assault. The court appointed an attorney to represent Hulsey.
About two months later, the Odessa Police Department obtained an evidentiary search warrant from a state court judge. This warrant authorized police officers to transport Hulsey to a hospital for the purpose of taking samples of his blood, saliva, head hair, and pubic hair to use in investigating the sexual assault charges pending against him. Pursuant to this warrant, Officer Hughes took Hulsey to a hospital in Odessa.
Before taking the body samples, hospital employees requested that Hulsey sign a medical authorization and release. According to Hulsey, Officer Hughes threatened him with additional criminal charges if he refused to sign this form. Hulsey reluctantly signed the form and allowed hospital employees to take the body samples. Then Officer Hughes transported him back to the Ector County jail.
About eight months later, after consulting with his attorney, Hulsey pleaded guilty to the sexual assault charge. The trial judge sentenced him to a term of six years in prison. While incarcerated in the state prison in Huntsville, Texas, Hulsey filed this pro se suit against the State of Texas, the City of Odessa, and Officer Hughes.
Hulsey alleged that the defendants (1) unlawfully detained him for six days before filing a formal complaint, (2) took body samples from him without showing him a search warrant, (3) forced him to sign a hospital consent form authorizing release of body samples to the police, (4) refused to allow him to call his attorney before submitting to medical tests, and (5) denied him the right to a speedy trial.
The State of Texas moved to quash the summons on the grounds of improper service, and the court granted the motion. In the same order, however, the court directed Hulsey to obtain proper service on the State of Texas by serving the Secretary of State. In addition, the Clerk of Court sent Hulsey detailed instructions on obtaining proper service. When Hulsey failed to perfect service even after receiving these instructions, Hulsey’s claims against the State of Texas were dismissed with prejudice for want of prosecution.
The City of Odessa and Officer Hughes, the two remaining defendants, filed a motion for summary judgment. They supported this motion with documentary evidence, including a request for admissions propounded to Hulsey and his response to that request. Hulsey’s opposition to the motion consisted of little more than a request that the court deny the defendants' motion.
The court granted summary judgment for the City of Odessa and Officer Hughes. Hulsey now appeals, raising before this Court the same issues that he raised before the trial court. In addition, for the first time on appeal, he argues that the defendants (1) used an invalid search warrant to obtain body samples and (2) denied his right to an examining trial in state court. Finally, Hulsey files a motion for the appointment of counsel on appeal.
Standards of Review
We review a district court’s dismissal for want of prosecution only for an abuse of discretion. See Fournier v. Textron, Inc., 776 F.2d 532, 534 (5th Cir.1985); Porter v. Beaumont Enterprise & Journal, 743 F.2d 269, 271 (5th Cir.1984). In reviewing a grant of summary judgment, we apply the same standard of review applied by the district court. See Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989).
Summary judgment is appropriate only if, when viewed in the light most favorable to the nonmoving party, the record discloses “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Although we must draw all inferences in favor of the party opposing the motion, an opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of the pleadings. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984). A properly supported motion for summary judgment should be granted unless the opposing party produces sufficient evidence to demonstrate that a genuine factual issue exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
Because summary judgment is a final adjudication on the merits, courts must employ this device cautiously. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir.1986). In prisoner pro se cases, courts must be especially careful to “guard against premature truncation of legitimate lawsuits merely because of unskilled presentations.” Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir.1980).
Dismissal of the State
The district court issued an order that directed Hulsey to serve the State of Texas by serving the Secretary of State. Moreover, the Clerk of Court sent Hulsey detailed instructions on this process. Instead of following the court’s clear instructions, Hulsey filed a motion to dismiss the court’s order, arguing that he had exercised good faith in filing his suit and that someone else was responsible for the error in service.
The district court was appropriately lenient with Hulsey because of his status as a pro se plaintiff. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 750 (5th Cir.1987); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981). It not only allowed him a second chance at obtaining service but also instructed him on the proper procedure. In response, Hulsey disregarded a clear and reasonable court order. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640-43, 96 S.Ct. 2778, 2779-81, 49 L.Ed.2d 747 (1976).
“The right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law.” Birl, 660 F.2d at 593; see Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988). We conclude that the district court did not abuse its discretion in dismissing with prejudice Hulsey’s claims against the State of Texas.
Claim of Unlawful Detention
Hulsey alleges that after his arrest, he remained in jail for six days before any complaint was filed against him. The record clearly refutes this argument. In support of the motion for summary judgment, the defendants submitted a copy of the state magistrate’s advice of rights form signed by Hulsey at the time of his arraignment. This document establishes that Hulsey was arrested for a violation of the conditions of his parole. In opposing the motion for summary judgment, Hulsey failed to address this issue.
Furthermore, the summary judgment evidence reveals that Hulsey formally admitted that he was arrested for a parole violation. In response to the defendants’ request for admissions, Hulsey failed to deny the assertion that he was initially arrested for a parole violation. Under Federal Rule of Civil Procedure 36(a), a matter in a request for admissions is admitted unless the party to whom the request is directed answers or objects to the matter within 30 days. Fed.R.Civ.P. 36(a). Hulsey thus admitted that a parole violation was the basis of his initial arrest.
Under Rule 36(b), “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fed.R.Civ.P. 36(b); see Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985). Hulsey failed to make a motion for withdrawal or amendment of his admission. The defendants therefore conclusively established his detention after an arrest for a parole violation and attached conclusive proof to their motion for summary judgment.
Because of the overwhelming evidence of lawful detention for a parole violation and because of Hulsey’s failure to respond to this evidence, no genuine issue of material fact remains on the issue of Hulsey’s detention. The defendants are therefore entitled to summary judgment on this issue.
Validity of the Search Warrant
Hulsey argues for the first time on appeal that the search warrant authorizing the police to obtain body samples was invalid. Because Hulsey failed to raise this issue before the district court, we need not consider it on appeal. See Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
Failure to Serve the Search Warrant
Hulsey alleges that Officer Hughes failed to show him the search warrant before hospital employees took body samples. Assuming, as we must on consideration of summary judgment, that Hulsey’s version of the story is true, the fact that Hulsey did not see the warrant before the search does not invalidate the search under either federal or state law. See, e.g., United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit B 1981) (holding that the failure to deliver a copy of the search warrant to the party searched does not invalidate the search in the absence of a showing of prejudice); Smith v. State, 491 S.W.2d 924, 926 (Tex.Crim.App.), cert. denied, 414 U.S. 1025, 94 S.Ct. 451, 38 L.Ed.2d 317 (1973) (holding that failure to comply with the technical requirements for issuing a search warrant does not invalidate the search).
By alleging merely that he did not see the search warrant before the search, Hul-sey has failed to produce any evidence suggesting a genuine issue of material fact. The district court thus correctly granted summary judgment for the defendants, on this issue.
Use of Coercion to Obtain Signed Consent Form
Hulsey contends that Officer Hughes improperly coerced him to sign the hospital consent form by threatening him with additional criminal charges. Assuming that this allegation is true, we find that it provides no basis for relief. A valid search warrant had already been issued; the search, therefore, could have been legally conducted without a hospital consent form. See Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966). Obtaining a signed consent form — an administrative procedure of the hospital — is irrelevant to the validity of the search.
Furthermore, the allegation that Officer Hughes threatened him with additional criminal charges fails to suggest a violation of any other constitutional or statutory right. A complaint of excessive force by a police officer requires a showing that the plaintiff sustained a significant injury resulting from the use of excessive and improper force that was objectively unreasonable. See Johnson v. Morel, 876 F.2d 477, 479-80 (5th Cir.1989). The summary judgment evidence reveals that Hulsey failed to submit any evidence of significant injury or excessive force. The district court therefore appropriately granted summary judgment for the defendants on this issue.
Right to an Attorney in Signing the Consent Form
Hulsey argues that the defendants violated his constitutional rights by refusing to allow him to call his attorney before he signed the hospital consent form. Hulsey has no constitutionally protected right to avoid signing a hospital consent form. As we explained in the previous section, the search would have been legal even without the signed form because it was conducted pursuant to a valid search warrant.
Because the consent form was unrelated to the constitutional validity of the search, Hulsey had no constitutionally protected right to consult with an attorney before signing it. Since his claim on this issue is without merit, the district court correctly granted summary judgment for the defendants.
Right to a Speedy Trial
Hulsey claims in his brief that his constitutional right to a speedy trial has been denied. Hulsey, however, has failed to discuss this issue in his brief. Issues stated but not briefed need not be considered by this Court on appeal. Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir.1985).
Right to an Examining Trial
For the first time on appeal, Hulsey argues that he has been denied his right to an examining trial in state court. We will not consider on appeal issues not raised in the district court. See Hobbs, 752 F.2d at 1083, City of Waco v. Bridges, 710 F.2d 220, 227 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984); In re Novack, 639 F.2d 1274, 1276 (5th Cir.1981).
Motion for Counsel on Appeal
Hulsey has filed a motion in this Court for appointment of counsel on appeal. A civil rights complainant has no absolute right to the appointment of counsel. Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir.1988); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). In fact, the appointment of counsel is unnecessary unless a case presents exceptional circumstances. Ulmer, 691 F.2d at 212-213.
Among the factors we must consider in deciding whether to appoint counsel are the complexity of the issues and the ability of Hulsey to represent himself adequately. See id. at 213. The facts and issues in this case are neither novel nor complicated. Moreover, Hulsey has demonstrated in his brief and pleadings that he is capable of adequately presenting his ease. We therefore deny his motion for appointment of counsel.
Conclusion
After carefully considering the issues raised by Hulsey on appeal, we find no error in the district court’s dismissal of the State of Texas and grant of summary judgment for the other defendants. Viewing the record in the light most favorable to Hulsey, we find that he has failed to raise any genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law.
The judgment of the district court is AFFIRMED.
The motion for appointment of counsel on appeal is DENIED.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_stpolicy
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CITY OF ST. PETERSBURG v. MEYERS.
No. 6337.
Circuit Court of Appeals, Fifth Circuit.
Feb. 6, 1932.
Rehearing Denied March 4,1932.
Fred T. Saussy, of Tampa, Fla., and Raney H. Martin, of St. Petersburg, Fla., for appellant.
James R. Bussey, Sam H. Mann, Jr., and McKinney Barton, all of St. Petersburg, Fla., and Chas. D. Gould, of West Palm Beach, Fla., for appellee.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
SIBLEY, Circuit Judge.
This appeal results from the instruction of a verdict against the city of St. Peters-burg, Fla., in favor of Henry Meyers for a balance claimed under a contract to improve the city’s waterfront. The errors assigned relate to striking on demurrer certain pleas of the city, the rejection of evidence offered by it, and the instruction of the verdict. Meyers sued in three counts: The first a special count on his written contract alleging performance and a balance due; the second a common count for work done and materials furnished; and the third a common count for money due on an account stated. The trial developed without dispute that the special contract existed, had been performed, and that the balance duo on it had been stated. The contract was for the “dredging of two yacht basins and such other dredging as may be necessary to make the required fill shown in attached plan.” It bound the contractor “to dredge a turning basin and build and complete a good, firm, and substantial fill and breakwater in strict accordance with the plans, drawings, profiles and specifications.” The plans showed the two yacht basins and an estimate of 651,000' cubic yards for their excavation. The fill was shown as five neighboring sections requiring an estimated total of 1,300,000' cubic yards. These figures the contract stated to be mere estimates, and payment for the work was to be at a stated rate “for a cubic yard dredged from area indicated and deposited as shown on plans measured in place (fill measurement),” “Method of Measurement.- — The material removed will be measured by the cubic yard in place by means of soundings or cross-sections taken before tbe work starts and after completion of the filling. The attached plan * * * is believed to represent accurately the existing conditions. It will he verified and corrected if necessary by soundings taken shortly before dredging is begun. Monthly estimates will bo based on the surveys of the fill. As soon as practical after the completion of the entire work the area filled will he thoroughly examined by cross-sections and the final estimate will be made.” Kitchen, the city’s director of public works, was to be in charge of the work as engineer, and was given authority to “settle all disputes or questions of doubt that may arise as to the meaning of the plans or any clause of the specifications or method of doing the work.” Arbitration by three arbitrators was provided as to other matters. Monthly payments were to he made on the estimates of the engineer less 15 per cent., and full payment in ninety days after his final acceptance and estimate of the work. The contract does not provide that any estimate of the engineer shall he conclusive. No dispute exists about the dredging. Four of the five sections of the fill ran less than the original estimate. The fifth was estimated at 464,200 cubic yards, but was finally put at over 800',000 yards. A reduction of 34,000 yards was agreed to by the contractor and engineer, and a final estimate issued by the engineer which was accepted by tbe board of commissioners of the city, but not paid. In the light of these undisputed facts, we will examine the rulings complained of.
The second count for work- done and marterials furnished we will lay to one side as was done at the trial, because inconsistent with the special contract proved. We find no error in sustaining counts one and three against the demurrers thereto.
A plea of ultra vires, setting up the fact that a part of the fill was on land belonging to private citizens and the contract was therefore one to use the funds and credit of the city for the benefit of individuals contrary to the prohibition of the Constitution of Florida, art. 9, § 10, was properly stricken. The improvement of the city waterfront, the making of a harbor and a breakwater, with a public drive on the latter as shown by the plans, is upon its face a publie work. The city charter expressly gives power to construct and maintain ship channels, breakwaters, and drives, and to make contracts in connection therewith. Special Act 1913, c. 6772, § 2 (d). And again in section 24 power is given to compel the owners of low ground to fill or drain the same, and on default the city may fill at their expense, making the cost a lien on the property to- be enforced by assessment. The work proposed in this contract was within these powers of the city. The disposal of the dredgings from the city’s yacht basins on the land of others was not unlawful if consented to by them, and, if their land is benefited by filling and raising it, the city is not to be the loser, because the cost can be assessed upon the property and its owners. Another plea alleged that it was so assessed and the assessment resisted by the owners as exceeding the true cost by a bill for injunction to which the contractor was named a party; and that he not answering a decree pro confesso had been entered against him. This plea also was rightly stricken on demurrer, for a decree pro confesso entered by the clerk and not followed by a final decree is no estoppel; nor is it shown by the exhibited record that the contractor was eyer served with process. Other pleas set up that the yardage to be paid for was to be determined by the survey made before the fill was started, and by that after the fill was completed, and that thus measured the final estimate was wrong by the sum of $53,226.76, the balance sued for. The contractor contends that the pay is to be measured by the yardage actually put into the fill ascertained in any way the engineer sees fit. The repetition ten times in the contract of the expression “fill measurement” settles the intent that yardage placed in the fill was alone to be considered. Under the title “Method of Measurement” above quoted, it is provided “the material removed will be measured by the cubic yard in place by means of soundings and cross-sections taken before the work starts and after completion of the filling. * * * As soon as practical after the completion of the entire work the area filled will be thoroughly examined by cross-sections and final estimate will be made.” It is further provided: “Necessary bulkheads for confining and grading the materials, with necessary waste weirs, must be provided and maintained by the contractor without expense to the city.” From these provisions, it appears that only yardage in the fill that remains there when the final examination is made is to be counted; the contractor having the duty to place and confine the dredgings. But we think the aim of the contract as to payment is to compensate the contractor for each cubic yard so placed and confined, and that, while the two surveys are the primary and controlling measure of the yardage, if either can be shown to be in fact wrong the error is not beyond correction. On the trial it appeared that almost twice the yardage originally estimated is claimed to have gone into the “assessment section” of the fill, although the original estimates proved about right on all the other sections. Whether there was error in the first or final survey, or in the mathematical computation of their results, are questions not precluded by a fair interpretation of the contract. It is contended that the original survey of the fill was erroneous, in that it profiled in some places as the bottom what was really ooze or soft mud which ran out with the water as the fill was made. To the extent that this was true, we think that the contractor was entitled to a correction of the original survey. But there are possibly great engineering difficulties in ascertaining the true profile of the original bottom after the filling has been done. The survey, which was submitted to the contractor before he contracted with an invitation to inspect the bottom himself and with an offer to make other soundings if desired, is to be taken as presumptively correct, and to be disturbed only where clearly established to be wrong. In ruling upon the pleas, the court struck out the allegations concerning the yardage as measured by the first and last survey, but permitted to stand allegations that only the yardage stated was in fact permanently placed in the fill. Practically, the difference is slight. Under the pleas as allowed, the city by virtue of the contract could prove the yardage according to the surveys, when it would devolve upon the contractor to show error in them. We will not reversé the ruling on demurrer, but, as will appear, there was error in rejecting the city’s evidence offered under the pleas.
We have been referring to the first count on the special contract. The third count, which was upon an account stated, was met by the statutory general issue, “Never was indebted as alleged.” Comp. Gen. Laws Fla. 1927, § 4332, 4333, subd. 1. Special pleas claiming mistakes in the account in that the amount deposited in the fill was less than the amount stated because of duplications in the monthly estimates carried into the final estimate were stricken. An account stated anciently resulted when two merchants got together with their accounts, insimul eomputassent, and struck a balance; the law implying a promise, if not expressly made, that the balance would be paid. 3 Blk. Com. 162. Sometimes resort was had to equity to upset it for fraud or mistake, surcharging and falsification of the account being then in order. In modern times, an account stated arises from the mere rendering of an account of money transactions, with either a failure to object within a reasonable time, or an express approval by the other party. But an account stated is now hardly more than an admission of correctness which puts the burden on the objecting party to show wherein it is wrong. “A settled account is only prima facie evidence of its correctness, at law or in equity; it may be impeached by proof of fraud, or omission or mistake.” Perkins v. Hart, 11 Wheat. 237, 6 L. Ed. 463. “A stated account never gives to a party claiming under it the benefit of an absolute estoppel. It establishes prima facie the correctness of the items, and unless this presumption is overcome by proof of fraud, mistake, or error, it becomes conclusive; but that an account stated may be impeached for fraud, mistake, or error is well settled. The party impeaching it, however, has the affirmative of the issue and the burden of proof.” Martyn v. Amold, 36 Fla. 446, 18 So. 791; Withers v. Sandlin, 44 Fla. 253, 32 So. 829; Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445. The facts pleaded were therefore a proper defense. The question is whether the general issue denies only that the account has been stated, or whether it suffices also to permit proof of errors and mistakes in it without specially pleading them. In the three Florida eases cited, the general issue was treated as sufficient, although no question of pleading was raised. In Wittich v. Allison, 56 F. 796, this court passed directly upon the point in a ease from Florida holding the general issue to be sufficient. Courts in other states have held varying views'. 1 C. J., Accounts, §§ 359, 368. We hold it not harmful error in Florida to reject special pleas setting up the particular errors and mistakes relied on, although there are manifest advantages in having the issues thus specially defined.
In the trial, the plaintiff proved not only that there had been a final estimate for the amount sued for made by the engineer and accepted by the city, but also that the amount had been reached in the following way: The owners of the private property had objected to the amount proposed to be assessed on them as being erroneous, and the engineer had called in Col. Youngberg, another engineer, who, after some investigation, proposed a reduction of 34,000 yards. The engineer and the contractor agreed to the result, none of the board of commissioners being present. A final estimate was then presented to the board, and accepted by it under this statement: “Final estimate dredging fill on waterfront Sixth Avenue to Thirteenth Avenue, (Assessment fill). Mr. Kitchen explained the property owners objected to the amount of yardage; subsequently a complete cheek was made by Col. Young-berg, District Engineer, and he submitted a report substantiating the city’s measurements.” The District Judge was impressed that this was more than an account stated, and a compromise binding on all parties which could not be impeached unless for fraud, and he refused the offers of the city to prove that the computations under the surveys were erroneous and that the correction of the original profile by borings made since the fill as acted on by the engineer in making his final estimate was unreliable and mistaken, and that the true yardage was only what had been already paid for. The offers of proof were not very intelligibly made, but this was the intent of them. The plaintiff’s evidence did tend to show as between the engineer and contractor the compromise of a dispute by mutual concessions which constitute a consideration for the agreement. Hennessy v. Bacon, 137 U. S. 78, 11 S. Ct. 17, 34 L. Ed. 605. But a contract of compromise was not sued upon, nor did the act of the engineer in making one bind the city. His authority extended only to making a final estimate according to the city’s contract, and by no provision of that contract was his estimate made conclusive. The board of commissioners accepted the estimate made, thus admitting prima facie its correctness; but the proceedings before them do not indicate that they knew of any dispute with the contractor which had been compromised, or that with full knowledge they had ratified the compromise. They were told rather that a dispute with the property owners had been ended by upholding the city’s contention. It follows that the evidence offered to show the true indebtedness under the contract ought to have been admitted, and that issue submitted to the jury.
Interest was allowed against the city from September 6, 1927, a date ninety days after the final estimate, being the time fixed by the contract for final payment. Interest is not promised in the contract, and no statute of Florida provides for its payment by municipalities. Counties, as subdivisions of the state, are held not to owe interest not promised in their contracts. National Bank v. Duval County, 45 Fla. 496, 34 So. 894, 3 Ann. Cas. 457; Duval County v. Charleston Eng. & Const. Co. (Fla.) 134 So. 509, 512. This view has in some states been extended to municipalities, but more usually they are held on their business contracts to owe interest like private corporations. 2 Dillon Munic. Corp., § 867. Although when interest is not expressly promised they must be put into default. MeQuillen Munie. Corp., §§ 2099, 2635. The city’s charter, Sp. Acts 1913, e. 6772, § 67, provides: “Before any contractor or his representative shall require a final settlement on any contract in which a bond is required, said contractor or his representative, shall make and file with the City Clerk an affidavit that all claims for materials and labor to the date of settlement have been fully paid.” The declaration alleges that this affidavit was made and filed, but not until February 14, 1929; and such is the proof. The acceptance of the final estimate by the board of commissioners did not waive this requirement, nor is any other waiver pleaded or proven. The city was in no default, and the contractor not entitled to his money until the affidavit was filed. We .think him entitled to interest after, but not before, that date. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
‘ Reversed and remanded.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_4
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
PORTER v. GRANITE STATE PACKING CO. et al.
No. 4143.
Circuit Court of Appeals, First Circuit.
June 5, 1946.
Albert M. Dreyer, of Washington, D. C. (George Moncharsh, Deputy Adm’r of Enforcement, Milton Klein, Director, Litigation Division, and David London, Chief, Appellate Branch, all of Washington, D. C., and William B. Sleigh, Jr., Regional Litigation Atty., of Boston, Mass., on the brief), for appellant.
Joseph Kruger, of Boston, Mass. (Harold Widett and Widett & Kruger, all of Boston, Mass., and John P. Carleton, of Manchester, N. H., on the brief), for ap-pellees.
Before DOBIE, MAHONEY and WOODBURY, Circuit Judges.
PER CURIAM.
These are consolidated cases coming before us on appeal from an order of the district court denying the application by the Price Administrator for an injunction restraining defendants from violating § 4(a) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, §§ 901 et seq., 904 (a).
The Granite State Packing Company is the owner and operator of a slaughtering establishment in Manchester, New Hampshire. Alex Shapiro is the president and treasurer of the Packing Company and is also a director of that company and its majority shareholder. Mitchell Muskat is a director of the corporation, its office manager and one of its shareholders. The corporation and the two individuals above named are the defendants in these actions.
Pursuant to the authority vested in him by the Price Control Act, the Administrator promulgated certain regulations fixing maximum prices for the purchase of cattle.
In March, 1945, the Packing Company paid a total of $6,979.43 in excess of the price permitted by the Administrator’s regulations. In April, 1945, overpayments amounted to $4,771.48 and in May, 1945, overpayments totalled $6,816.69. The defendants did not deny these overpayments but contended that the violations were unintentional and attributable only to the difficulties inherent in the application of the regulations. They asserted that they had made a diligent effort to comply with the statute and regulations and acted in complete good faith.
The district court [62 F.Supp. 585, 587], found that the defendants made some effort to comply with the regulations but said that it was “not impressed with their claim that good faith was exercised and that sufficient and proper precautions were taken. These violations were of a substantial character” and occurred in consecutive months. The court added that: “Their failure to comply with the regulation was not wholly involuntary.” But the court refused to grant an injunction on the ground that the cessation of hostilities after the actions were instituted had caused the requirements of the government in respect to its demand for meat to be drastically revised. It did, however, order that the cases be retained on its docket “with the right of the administration on reasonable notice, and a showing that violations of the Act have been resumed, to again apply * * * for injunctive relief.” The court said that had it not been for the cessation of hostilities and the consequential drop in government demand for meat “a different conclusion than the one herein reached would have probably been indicated.”
It is clear that the granting of relief under the Price Control Act, as in all suits in equity, rests in the sound discretion of the court. The Hecht Company v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. But a court cannot deny injunctive relief because of the occurrence of an event which is not pertinent to the case at bar. The fact that hostilities had ceased is not a relevant consideration in the instant case. That event did not lessen the necessity for price control. But more significant, Congress has not seen fit to abolish price control. We cannot vitiate an Act of Congress on the theory that that Act is no longer necessary. Only Congress can repeal the Emergency Price Control Act. Until Congress sees fit to do so, we must enforce that Act as vigorously as we enforce any other legislative enactment.
The district court in denying the injunction placed great emphasis on the fact that hostilities had ceased. It should redetermine the question of the relief to be granted without consideration of that fact, and set forth in clear terms the basis for its conclusion.
The judgments of the District Court are vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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songer_interven
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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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
Mark David JOHNS, et al., Plaintiffs-Appellants, Cross Appellees, v. DEPARTMENT OF JUSTICE OF the UNITED STATES, et al., Defendants-Appellees, Angela Macias-Rosales, Intervenor-Appellee, Cross Appellant.
Nos. 80-5135, 81-5062.
United States Court of Appeals, Fifth Circuit.
Aug. 4, 1981.
Rehearings Denied Sept. 2,1981.
Joseph Nazzaro, North Miami Beach, Fla., Philip Dennis, Financial Planning Consultant, North Miami Beach, Fla., for plaintiffs-appellants, cross appellees.
Atlee W. Wampler, III, U. S. Atty., Peter Nimkoff and Richard A. Marshall, Jr., Asst. U. S. Attys., Miami, Fla., for defendants-appellees.
Elizabeth S. Baker, Legal Serv. of Greater Miami, Inc., Miami, Fla., Kathy Hamilton, Coral Gables, Fla., for Macias-Rosales.
Theodore Klein, Miami, Fla., Guardian Ad Litem for minor child Cynthia.
Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge.
Almost a full year has passed since this Court, in Johns v. Department of Justice, 624 F.2d 522 (5th Cir. 1980), considered an appeal from an order of a district court refusing to stay the deportation of Cynthia, then a four-year-old child, who, when she was one day old, had been brought to the United States from Mexico, where she had been born. The immigration judge, after a deportation hearing, had concluded that Cynthia had been brought to the United States illegally and had found her deportable. This decision had been affirmed by the Board of Immigration Appeals, which, however, had granted Cynthia the privilege of voluntary departure. Pursuant to an INS warrant issued on January 30, 1980, Cynthia had been taken from the Johns and had been placed in an institution under the care of Catholic Services Bureau (CSB), for what was then proposed to be a period of 48 to 72 hours, pending arrangement of air transportation to Mexico.
No appeal had been taken from the Board’s final order. Instead, Mark and Eileen Johns, who had brought Cynthia to the United States shortly after her birth and who had reared her as their daughter since then, had filed- suit to enjoin her deportation and for a writ of habeas corpus commanding that she be returned to their custody. Her natural mother, Angela Macias-Rosales, sought to intervene. She contended that the Johns had taken Cynthia illegally and asked that her child be returned to Mexico. The United States had sought dismissal of the proceeding. The district court had denied the Johns’ motion in its entirety and had denied Mrs. Macias-Rosales’ motion to intervene. The Johns had then filed an appeal to this Court.
Because Cynthia had not been represented in the deportation proceeding, we remanded the case to the district court with instructions to appoint a guardian ad litem
to represent Cynthia, to enjoin execution of the deportation order, and to direct the INS to conduct all further proceedings involving Cynthia contradictorily with her guardian ad litem.
It was apparent to all that, in view of her age, the temporary situation was traumatic to Cynthia and its protraction was undesirable. We had no jurisdiction to determine what her personal welfare required, however, because the only issues before us were whether her deportation should be enjoined and whether habeas corpus should be granted to the Johns. Contemplating further INS action, we ordered it to be completed within sixty days and further ordered subsequent district court proceedings to be completed within thirty days thereafter. To avoid further appellate delay, we retained jurisdiction.
Events thereafter, unfortunately, perhaps due to no one’s fault or more likely due to the fault of everyone but Cynthia, and to Cynthia’s continued detriment, took the leisurely course we had hoped to avoid. Our opinion was issued on August 1, 1980. On August 6, the district judge appointed Theodore Klein, Esq. and Rebecca Poston, Esq., both members of the Florida bar, as guardians ad litem for Cynthia. On August 22, the Johns filed a motion seeking her release to their custody pending resolution of the case. This was accompanied by psychiatric and psychological reports stating that the Johns were Cynthia’s “psychological parents” and that she should be returned to their care immediately lest she suffer permanent psychological harm. Cynthia’s mother countered with a motion to deny the Johns’ motion. The INS opposed the Johns’ motion on the grounds, inter alia, that the Johns might flee and that it was doubtful that they provided a desirable home environment. Mr. Klein, as guardian ad litem, also opposed the Johns’ motion. On September 23, the district judge denied the motion.
Meanwhile, on September 5, the federal defendants, represented by the Assistant U.S. Attorney, called the district court’s attention to the passage of time since the entry of this Court’s order and to the failure of either the INS or the guardian ad litem to institute any proceedings. The federal defendants recommended the appointment of a psychiatric and a psychological expert to assist the guardian ad litem. In apparent response to that action, the guardian ad litem petitioned this Court and we granted an additional fifteen days for completion of INS proceedings.
On October 30, Mr. Klein filed a request with the INS District Director for a “stay of deportation.” In the letter requesting the action, he recommended that “custody” be decided by a Florida court. On November 12, the District Director granted the stay by a letter addressed to Mr. Klein. The letter states, in part:
It is very evident from its decision that the Circuit Court is troubled by the fact that Cynthia Johns was not specifically represented by Counsel during the previous legal proceedings. The Court points out that even though Mr. and Mrs. Johns were frequently represented by Counsel, their interests do not necessarily coincide with those of Cynthia. The thrust of the Circuit Court’s decision is that Cynthia’s interests must be considered before a final decision is made regarding her deportation from the United States.
On the basis that the custody of Cynthia Johns will be litigated, and hopefully decided in a Florida Court proceeding, I am granting your request for a Stay of Deportation pending the outcome of those proceedings.
Mrs. Macias-Rosales promptly filed a motion requesting the federal District Court to order Cynthia’s deportation or, in the alternative, to declare the INS to be “without further authority to detain the child” and to “release the child forthwith to the natural mother.” The Johns opposed the motion and asked the Court to order the “immediate release of Cindy” to them.
Meanwhile, on December 5, the guardian ad litem filed a proceeding in the Family Division of the Florida state trial court “to determine the legal custody of Cynthia [Johns].” Mrs. Macias-Rosales, opposing his petition, disputed that court’s jurisdiction. From the Family Court’s decision that it had jurisdiction, she appealed. That appeal is now pending in the Florida Third District Court of Appeals.
The federal District Court treated the pleading filed before it as an application for review of the INS order staying deportation, and denied it on the basis that the District Director has discretion to determine whether to proceed with or to stay a deportation, and that no abuse of discretion had been shown. The District Judge added:
A determination as to the legal custodian of Cynthia is a factor of the utmost importance as to whether or not she will be deported. For that reason, the Guardian Ad Litem’s report supports the Director’s stay to allow further proceedings to determine what is in the best interests of Cynthia.
The Johns and Mrs. Macias-Rosales both filed a new appeal from this order, apparently without noting our retention of jurisdiction in the habeas corpus action, Case No. 80-5135. Because the new appeal was separately docketed as Case No. 81-5062, and none of the parties called special attention to it or requested expedited action, the case was handled routinely — as it should never have been — and its pendency did not reach this panel’s attention until briefing under the usual schedule was completed. Thus, the litigants, most of all Cynthia, who assuredly is the only completely innocent party, have again been victims of delays in the legal process.
In March 1981, Cynthia was finally transferred from the CSB institution to the care of a foster family under CSB supervision. She was attended by an INS guard 24 hours a day until July 23, when the CSB succeeded in having the guard removed. She remains in the foster home, her stay indefinite, her future uncertain. Recognizing this, as soon as the case again reached our attention, we suggested oral argument by conference telephone. All parties consented to this procedure and the case was orally argued. We now order the two nominally separate matters consolidated and consider both in this opinion.
I.
Two INS hearings and a sheaf of ex parte representations by those who contend for Cynthia’s custody leave the history of her separation from her mother and her entry into the United States still disordered. The following facts are culled from the INS hearing and the many documents filed in the various proceedings to which Cynthia has been subjected.
It appears certain that Cynthia is an alien, of Mexican nationality, and that Angela Macias-Rosales is Cynthia’s natural mother. Mrs. Macias-Rosales is 33 years of age, has two children, a girl about three years old and a boy about two years old, who reside with her in Rosarito, Baja California, where, she now operates a restaurant. Whether she is married to the person who is the father of these children and of Cynthia is disputed. There are representations that this man is married to someone else and cannot obtain a divorce. There is an account that Mrs. Macias-Rosales has two older children, aged ten and eleven, who live with her mother.
In 1975, the Johns went to Tijuana, Mexico, to adopt a child. They met Mrs. Macias-Rosales, apparently as a result of arrangements by intermediaries. They visited her in the hospital where Cynthia was born, and left the hospital with Cynthia the day after the child’s birth. They secured a Mexican birth certificate showing them as her natural and lawful parents, and, representing Cynthia to be their child, entered the United States. They, therefore, appeared to need no visa for her and had none.
Mrs. Macias-Rosales contends that the Johns kidnapped Cynthia. She has been attempting to locate Cynthia and secure the child’s return since the Johns left Mexico or shortly thereafter. The Johns claim that Mrs. Macias-Rosales surrendered Cynthia to them for adoption and that their procurement of a birth certificate was a de facto “informal” adoption. There is evidence that the Johns knew that this did not suffice as an adoption. There is evidence for and against the parental fitness of both the Johns and Mrs. Macias-Rosales.
After an INS hearing in California, the Immigration Judge found Cynthia to be deportable, but withheld his final decision for six months. He envisioned that the Johns might be able to adopt Cynthia by proceeding in California state courts and that this might enable Cynthia to remain in the United States. After the six-month period had elapsed, finding that the California courts had taken no action on the merits, the Immigration Judge ordered that Cynthia be deported. Thereafter, the Johns fled with Cynthia to Florida, where they were located several years later. After being located, they failed to report to the INS as they had apparently promised.. The INS, therefore, secured a warrant for Cynthia’s detention and refuses to return her even temporarily to their control.
II.
The Attorney General has primary responsibility for enforcing the statutes requiring the deportation of persons who are not lawfully in the United States. An alien is deportable if he has entered the United States unlawfully without an immigrant visa, 8 U.S.C. § 1251(a), and for a number of other reasons. See, e. g., 8 U.S.C. § 1251. Aliens who are determined to be deportable, “shall be deported” upon the order of the Attorney General. 8 U.S.C. § 1251. His responsibility in this regard is akin to his responsibility for enforcing the criminal laws: in both situations, he has discretion to refrain from instituting proceedings even though grounds for their commencement may exist. See C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.3e(l) (1981).
If the Attorney General has reason to suspect that an alien is subject to deportation, he may arrest the alien, 8 U.S.C. § 1252(a), or commence deportation proceedings without taking the alien into custody. The Attorney General discharges his responsibility for enforcing the deportation laws through the INS, a division of the Department of Justice, to which hp has delegated many of his responsibilities under the immigration laws. The District Director of the INS, therefore, normally makes the decision to institute deportation proceedings. An immigration judge (formerly called a special inquiry officer) then conducts proceedings to determine the alien’s deportability. Id. at § 1252(h). This is the “sole and exclusive procedure for determining the deportability of an alien” under the sections of law here involved. 8 U.S.C. § 1252(b). The immigration judge is empowered to make all decisions necessary to dispose fully of the case and may order that the alien be deported, that the proceedings be terminated favorably to the alien, or that discretionary relief should be afforded. The immigration judge’s order is final, subject, of course, to further administrative and eventual judicial review.
Deportation orders entered by immigration judges are reviewed initially by the Board of Immigration Appeals (BIA). The BIA is a delegate of the Attorney General and exercises the Attorney General’s reviewing authority in deportation cases. The BIA’s decision, absent exceptional circumstances, is administratively final, subject only to judicial review.
The Attorney General has six months after the order of deportation becomes final in which to effect the alien’s departure from the United States. 8 U.S.C. § 1252(c). During this six month period, the Attorney General has discretion to determine whether the alien should be detained or released on bond or conditional parole. 8 U.S.C. § 1252(c). At the termination of the six months, pursuant to a warrant of deportation issued by the district director, 8 C.F.R. § 243.2, the alien may be deported. If deportation during this time has not been “practicable, advisable, or possible or departure of the alien... has not been effected within such six month period,” the alien is subject to further supervision although detention is not permitted. 8 U.S.C. § 1252(c) & (d). See also 8 C.F.R. § 242.2(d), containing the Attorney General’s delegation of his supervisory power to the District Director.
III.
Deportation is not, however, the inevitable consequence of unauthorized presence in the United States. The Attorney General is given discretion by express statutory provisions, in some situations, to ameliorate the rigidity of the deportation laws. In other instances, as the result of implied authority, he exercises discretion nowhere granted expressly. By express delegation, and by practice, the Attorney General has authorized the INS to exercise his discretion. In fact, not only does the INS, as the Attorney General’s surrogate, exercise his quasi-prosecutorial discretion to commence or not to commence deportation, but even after a final order of deportation has been entered, the District Director exercises discretion to afford aliens relief from deportation.
If the Attorney General decides that an alien is unlawfully in the country, and should not be permitted to remain, he may permit the alien to depart voluntarily at the alien’s expense, see 8 U.S.C. § 1254(e), 8 C.F.R. 243.5; Boulamandis v. Brownell, 247 F.2d 83 (D.C.Cir.1957), so that the alien’s record will not show that he was involuntarily deported, thus creating a barrier to possible future lawful return. See C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.18b (1981); Comment, Suspension of Deportation: Illusory Relief, 14 S.D.L.Rev. 229, 253 (1976). The Attorney General is also authorized to “withhold deportation” of any alien to any country if the alien’s life or freedom would be threatened there on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1253(h).
The Attorney General also determines whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation. Although such a stay is usually designed to give a deportee a reasonable amount of time to make any necessary business or personal arrangements, both the length of and reason for the stay lie entirely within the discretion of the Attorney General or his delegate.
The Attorney General has adopted regulations giving the District Director discretionary authority, either on his own or on the request of a party, to stay an order of deportation for such time and under such conditions as the director thinks necessary. Neither the statute nor the regulations permit an administrative appeal from a decision regarding a requested stay to an immigration judge or the BIA. 8 C.F.R. 243.4. See Matter of Paduano, 13 I.N.S. 658 (1971). Although both these forms of discretionary relief were here, requested by the guardian ad litem, the request for deferred action was postponed by the District Director until the termination of the state court proceeding. The district director’s action was limited to granting a “stay of deportation.”
IV.
The entry of a final order of deportation or final action on a request for discretionary relief is subject to judicial review. Such review, of course, does not entail the substitution of a court’s judgment for that of the Attorney General or the designees who exercise his power. See, e. g., Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281, 290 (1963). The Attorney General’s order must be affirmed unless there has been an abuse of discretion or a complete failure to exercise discretion.
The forum for judicial review depends, however, on the nature of the challenged action. Jurisdiction to review “all final orders of deportation... made against aliens within the United States pursuant to administrative proceedings under [8 U.S.C. § 1252(b)]” lies exclusively in the courts of appeals. 8 U.S.C. § 1105a(a). See 5 U.S.C. §§ 1031 — 1042 (The Hobbs Act). Such a petition for review, however, may not be filed more than six months after the date of the final order of deportation.
The scope of the term “final orders of deportation” is not, of course, self-defining. Recognizing the desirability, reflected in 8 U.S.C. § 1105a, of minimizing multiple review, the Supreme Court held in Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), that the term includes in addition to the actual order of deportation, all orders closely related to the deportation proceeding and entered during deportation.proceedings conducted pursuant to 8 U.S.C. § 1252(b), such as the denial of voluntary departure or adjustment of status. See also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam).
If, on the other hand, ancillary determinations, such as granting a stay of deportation, are made outside the context of a proceeding under 8 U.S.C. § 1252(b), jurisdiction to review initially is not given to the courts of appeals. Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). Such ancillary administrative actions are subject to review in declaratory judgment actions, or by requests for injunctions, in the district courts under the Administrative Procedure Act, 5 U.S.C. § 702, and under 8 U.S.C. § 1329, an independent grant of jurisdiction, to the district courts, of cases arising under the immigration laws. See C. Gordon and H. Rosenfield, Immigration Law and Procedure § 8.8 (1981); Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 32 (1975). See also Comment, Judicial Review of Final Orders of Deportation,. 42 N.Y.U.L.Rev. 1155 (1967).
The right of the INS to hold an alien in custody pursuant to an order of deportation may also be challenged by application for a writ of habeas corpus. 8 U.S.C. § 1105(a). In such an action, brought initially in the district court, the alien may challenge the legality and constitutionality of his confinement by the INS.
V.
With these jurisdictional lines in mind, we examine the proceedings before us to
determine first, whether the District Court had jurisdiction of the proceedings involved in case No. 81-5062. Five days after the District Director granted what he termed a “stay of deportation,” Mrs. Macias-Rosales filed a motion in the district court requesting that the court either order deportation or declare that the INS is without authority to detain Cynthia and order that the child be released to her natural mother. Shortly after that motion was filed, the Johns filed a pleading urging the court to deny Mrs. Macias-Rosales’ motion and order the immediate release of Cynthia to their custody. The guardian ad litem, arguing in support of the INS action, opposed both of these motions.
The Johns and Mrs. Macias-Rosales are both “aggrieved parties” within the meaning of the Administrative Procedure Act. 5 U.S.C. § 702. They were, therefore, proper persons to appear in the district court.
The district court, treating the two motions as requests to review the entry of the stay, held that the District Director’s action was not arbitrary or capricious, and refused to vacate it. The relief sought by Mrs. Macias-Rosales was not, however, merely the vacation of the stay nor was it, of course, an attempt to appeal the 1977 deportation order. Her motion was an attempt to secure an order commanding deportation. This was plainly a “cause... arising under” the deportation provisions of the immigration laws, 8 U.S.C. § 1329, of which the District Court had jurisdiction. We, therefore, consider the order on its merits.
Our prior opinion, holding that the initial deportation proceedings were conducted without due process, effectively voided that prior adjudication. Had the deportation order remained in force, there would have been no need for further proceedings contradictorily with Cynthia’s guardian ad litem. Deportation of Cynthia would have followed as a matter of course absent the guardian’s intervention. As a result of our prior mandate, the final order of deportation, entered on December 16,1977, must be considered without force. Cynthia is, therefore, in the same position as any alien who appears deportable.
The prior deportation order being void for want of due process, the District Director had discretion either again to commence a deportation proceeding or not to do so. That discretion is, like prosecutorial discretion, immune from review in the courts. While the INS order is framed in terms of a “stay of deportation,” we treat it as a refusal to institute further proceedings and affirm the District Director’s authority to exercise his prosecutive discretion in that manner. We, therefore, affirm the District Court order refusing to vacate the stay.
VI.
The APA generally precludes judicial review of the manner in which the Attorney General chooses to exercise his discretionary authority to inquire into the immigration status of an alien who is seeking admission to this country or is here without proper documentation. Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1199 (9th Cir. 1975); 5 U.S.C. § 701(a)(2). It would, therefore, be inappropriate for us to instruct the District Director concerning the exercise of his discretion. Because, however, the District Director not only misinterpreted the effect of our prior decree on the deportation order, but also erred in his interpretation of the reasons for that decision, we amplify it, so that his future actions will not be improperly influenced by what may have been a lack of clarity in that opinion.
Our prior opinion must not be read as instructing the District Director that deportability of a person is to be determined solely by what is in that person’s best interests, whether the person be an adult or a child. None resist deportation save those who think it is in their best interests to remain. Instead our mandate was designed only to assure Cynthia due process by requiring that she be represented by a competent guardian ad litem with fidelity only to her. The effect of our prior judgment was to void the original order of deportation because the proceeding underlying that order deprived Cynthia of the process due her under the Constitution. We did not under-take to direct how the District Director should proceed so long as he accorded Cynthia due process.
Whether or not Florida courts have jurisdiction over Cynthia, they can in the proceeding presently pending determine only who is entitled to her custody. Save insofar as a custody determination decides whether a person is the “child” of a citizen, custody is not a statutory factor in determining deportability. See, e. g., 8 U.S.C. § 1101(b)(1)(F), 8 U.S.C. § 1401(a)(3); 8 C.F.R. 211.5. It was neither our order nor our. intention that the resolution of these protracted deportation proceedings await Florida court proceedings to determine Cynthia’s custody. Cf. Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978) (the presence of the alien children in the United States was concededly lawful but only their custody was contested).
All parties agree that Cynthia has been harmed by the disruption of her life that has already occurred. They differ only in how they would repair that part of her life. Her life is in limbo at a time when she is most in need of parental affection and guidance. It was not our direction that the District Director’s decision await another indefinitely prolonged period of legal thrust and counterthrust, but only that Cynthia’s due process rights be protected and her status be adjudicated without delay. This has been accomplished in part by the appointment of the guardian ad litem and by his appearance in all proceedings as Cynthia’s representative. It will be assured by his continued representation of her.
The Attorney General, as we have noted, has delegated his statutory authority to determine deportability and, if deportability is found, discretion in acting on that decision, to the District Director. That officer has a duty to decide whether to proceed against Cynthia. We perceive nothing in either the statute or the regulations that requires him to go through a sort of abstention process, particularly when the state court will decide only whether it has jurisdiction, and, if so, who should have custody of her. The issues before him, whether Cynthia is lawfully in this country, whether she should be deported, whether there is a statutory or factual basis for executive compassion and, if so, whether it should be extended to avoid deportation, and related questions, are no more difficult than issues such as moral turpitude, legality of entry, validity of marriage, and fraud and misrepresentation that are decided in immigration hearings daily. Important issues affecting Cynthia must be resolved, at least initially, and perhaps exclusively, by the District Director. Delay is an act of injustice to Cynthia, not of mercy. It is also, to a lesser degree, a prolongation of the anxiety and distress that disturbs the lives of Mrs. Macias-Rosales and Mr. and Mrs. Johns.
Because the guardian ad litem was appointed by the District Court and acts under the orders of that court, subject to our review, we do consider it appropriate to remind him that he was appointed to assure Cynthia due process and to safeguard her best interests; and that each of the many experts whose opinions are now in the record, whether consulted by him or, by Mrs. Macias-Rosales, or by the Johns, or appointed to advise this Court, has concluded that prolongation of the present crisis in Cynthia’s life is harmful to her, perhaps irreparably. We do not consider it necessary, as a matter of law, that the guardian ad litem await state court adjudication of Cynthia’s best interests. We require only that he satisfy himself that the action he recommends is in her best interests and that he then vigorously pursue that recommendation before the administrative agency and the courts. We intimate no opinion concerning the extent of his duties, if any, with regard to proceedings relating to Cynthia’s custody, a matter not within our jurisdiction.
VII.
The action of the INS in detaining a person is, as we have noted, subject to challenge by petition to the District Court for habeas corpus. 8 U.S.C. § 1105a(a)(9). The Johns raised the habeas corpus issue by a motion “on behalf of Cynthia.” The denial of that motion served as the basis for their initial appeal to this Court. In our prior opinion finding that the deportation proceeding was conducted in contravention of Cynthia’s due process rights, we did not address the merits of the Johns’ petition for habeas corpus. Mrs. Macias-Rosales has also filed a habeas corpus petition in the same District Court, but that case has been allotted to another judge. In neither case has the District Judge made any findings of fact concerning the merits.
A petition for habeas corpus in federal court challenges only the legality and the constitutionality of a person’s detention. See United States ex rel. Marcello v. INS, 634 F.2d 964, 965 (5th Cir. 1981). So long as the petitioner has standing to raise that issue, it neither requires nor permits the federal court to determine who, among private persons competing to care for another, has the right to custody. We find the record insufficient to determine whether the District Court erroneously denied the Johns’ habeas, corpus petition. Because the record contains only ex parte statements concerning the facts surrounding Cynthia’s birth and entry into this country, we are unable to determine whether she' is now being held illegally or unconstitutionally. This Court cannot review such an issue without the benefit of a final determination by a District Court based on its findings of fact. While a petition for habeas corpus directed at the INS is usually reviewed by reference only to the administrative record, the District Court may, if necessary, conduct a hearing to take evidence concerning illegal action that is not reflected in the record. Therefore, we remand the case initially appealed for a determination of the merits of the Johns’ habeas corpus application. In order to avoid duplication of effort, and possible inconsistency of results, that proceeding must be consolidated with Mrs. Mácias-Rosales’ petition and be considered by the same District Judge. The guardian ad litem should appear in the consolidated proceeding to assure that Cynthia, as a person, is accorded her legal rights. Perhaps redundantly, we stress that each habeas corpus proceeding challenges only the legality of Cynthia’s detention, from each of the petitioners, by the INS, and that in neither habeas proceeding does the federal District Court have jurisdiction to determine who, between Mrs. Macias-Rosales and the Johns, has the right to custody. Each of them is proceeding contradictorily with the INS and not against the other. See also note 32, supra.
VIII.
The District Court order issued pursuant to our mandate in case No. 80-5135, appointing guardians ad litem and ordering any deportation proceedings to be pursued contradictorily with them, is maintained in force. The order enjoining Cynthia’s deportation is maintained in force unless a final order of deportation is entered pursuant to proceedings conducted contradictorily with the guardian ad litem.
The District Court order in Case No. 81-5062, refusing to vacate what the district director called a stay of deportation, is affirmed.
Case No. 80-5135 is remanded for modification of the District Court’s order of August 6, 1980, for further proceedings consistent with this opinion. That cause, including the petition for habeas corpus set forth in it, is consolidated with the petition for habeas corpus filed by Mrs. Macias-Rosales and now pending in the District Court, and with Case No. 81-5062. All of these proceedings shall be allotted to the same judge for further proceedings consistent with this opinion.
This Court continues to retain jurisdiction so that any appeals can be expeditiously heard. To avoid the type of delay that occurred previously, the clerk will promptly notify the panel as soon as any pleading of any kind connected with this matter is filed in this Court. The briefing schedule will be set by the panel. The parties are instructed that any pleading filed is to bear Docket No. 80-5135 and the clerk’s special attention is to be directed to it by the attachment of a notice or letter stating: This is a matter in which the Court has retained jurisdiction and is to be given special attention as directed by prior court order.
SO ORDERED.
. We also granted Mrs. Macias-Rosales’ motion to intervene in support of the judgment of the district court.
. While the district court appointed both Mr. Klein and Ms. Poston as guardians ad litem, the pleadings and letters in the file have been signed only by Mr. Klein. We shall, therefore, refer to the court-appointed guardians as the “guardian ad litem.”
. This extension permitted'proceedings to continue until November 15, 1980. The guardian ad litem, apparently believing the entry of the stay by the INS relieved the INS and the guardian of responsibility to complete “all proceedings” by that date, did not communicate further with this Court until, in response to our request, he filed a brief on the issues raised by the present appeal.
. The action was filed in the Circuit Court of the 11th Judicial District in and for Dade County, Florida.
. Counsel inform us that the last brief in the state appellate court has not yet been filed and that the court’s decision cannot be expected before October or November 1981. If jurisdiction is sustained, further proceedings in the state trial court will be necessary to determine what is in Cynthia’s best interests. Its ultimate decision may be appealed. The guardian ad litem has informed us that he will act on the basis of the Florida trial court’s decision, and will not abide an appeal to take further action. His action, however, will not dictate a course to the INS. Although the INS has assured us that it also will be guided by the state court’s decision, this does not necessarily mean that it will accept a trial court decision that has been appealed and is being bitterly contested.
. A former commissioner of the INS estimated that as many as 700 grounds for deportation exist. Hearings on H.R. 4974 before the Subcommittee of the Senate Committee on Appropriations, 83d Cong. 1st Sess. 250 (1954).
. Although, before 1956, every deportation proceeding was commenced with an arrest, such proceedings are now customarily initiated by an order to show cause. See 21 F.R. 99-101; 8 C.F.R. § 242.1. An alien is now arrested only if the public interest requires incarceration or there is a substantial basis for a belief that the alien will flee. See generally C. Gordon & H. Rosenfield, Immigration Law and Procedure §§ 5.3a & 5.4a (1981).
The initial INS action taken in this case was the issuance of an order to show cause why Cynthia should not be deported. Only after the Johns absconded to Florida with Cynthia did the INS detain the child.
. See 8 U.S.C. § 1103(a); 8 C.F.R. 2.1 & 103.1.
. The statute exempts from deportation on certain grounds “an alien otherwise admissible at the time of entry” who is the “child of a United States citizen,” 8 U.S.C. § 1251(f), and provides for adjustment of status of other aliens, 8 U.S.C. I*. 1255, as well as for suspension of deportation of persons who have been present in the United States for lengthy periods. 8 U.S.C. § 1254. The term “child” for purposes of admission to the United States includes an adopted child and a child who is an orphan or who has been abandoned. 8 U.S.C. § 1101(b)(1)(F).
In addition, from time to time Congress has enacted statutes providing special provisions to permit alien refugees to remain in this country by authorizing the Attorney General to adjust their status. See, e. g., as to certain refugees, Act Nov. 2, 1966, P.L. 89-732, §§ 1-5, 80 Stat. 1161; and Act Oct. 20, 1976, P.L. 54-571, § 8, 90 Stat. 2706; as to Indochina refugees (Vietnam, Laos or Cambodia), Act of Oct. 28, 1977, P.L. 95-145, Title I, §§ 101-107
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_direct1
|
C
|
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 in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
C-B BUICK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 73-2068.
United States Court of Appeals, Third Circuit.
Argued Sept. 6, 1974.
Decided Nov. 14, 1974.
H. David Rothman, Pittsburgh, Pa., for petitioner.
William H. DuRoss, III, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.
Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
Petitioner C-B Buick, Inc. (Buick) appeals from that portion of the September 17, 1973 order of the NLRB (Board) which held that the petitioner had committed an unfair labor practice by violating Section 8(a)(5) and (1) of the National Labor Relations Act. The violation found by the Board was petitioner’s refusal to furnish certain financial data requested by the Union during collective bargaining sessions. On this appeal we are asked by petitioner to set aside that provision of the Board’s September 17, 1973 order which requires Buick to furnish the Union with the requested data. The Board has filed a cross-petition to enforce its entire order. For the reasons set forth below, we decline to enforce so much of the Board’s order as would require Buick at this time to furnish the financial data previously sought by the Union.
I.
In 1971, the Union was certified as the exclusive bargaining representative for eight service-and-parts department workers employed by Buick. Thereafter, Buick and the Union entered into a one-year collective bargaining agreement which expired on June 30, 1972. Prior to the expiration of this agreement, the Union’s business representative submitted certain demands to Buick relevant to a new agreement. Some four days prior to the first bargaining session (which had been scheduled for July 19, 1972) Buick’s president unilaterally met with the employees and informed them that Buick could not afford the Union’s demands and that if these demands had to be met Buick might be forced to close. This meeting, and a subsequent after-hours meeting at which Buick’s supervisor advised against union representation, led to the finding by the Board that Buick had violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act).
At the first two bargaining sessions held on July 19, 1972 and August 2, 1972, the Union’s demands were discussed. Buiek’s position at both sessions was that it could not afford to meet the various Union proposals. The Union thereupon asked to see Buick’s profit and loss statement, to determine for purposes of further contract negotiations whether Buick’s plea of poverty could be substantiated. Buick denied this request at the same time as it submitted counter proposals. Before the August 2, 1972 session ended however, Buick, without abandoning its position that the Union could not see its books, gave the Union an oral statement of Buick’s “pre-tax profits” for the preceding year. This session, like the first, ended without agreement on any issue.
On August 9, 1972 the Union filed with the NLRB an unfair labor practice charge against Buick, claiming (1) that Buick had bypassed the Union and dealt directly with its employees and had threatened them, and (2) that Buick had refused to disclose to the Union relevant employer financial data after asserting that Buick could not afford the Union contract proposals. The Administrative Law Judge who conducted the NLRB hearing on November 20, 1972, concluded that although Buick violated Section 8 (a)(5) and (1) by its direct dealings with and threats to its employees, Buick had not committed an unfair labor practice in failing to bargain collectively when it refused to provide the Union with the financial data requested during the bargaining sessions. The NLRB’s General Counsel filed limited exceptions to the Law Judge’s conclusions urging the Board to conclude that Buick’s conduct in refusing to furnish the Union with financial information constituted an unfair labor practice. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). On September 17, 1973, the Board, with one dissent, reversed the Administrative Law Judge’s conclusion and amended his order to require, inter alia, Buick to furnish the Union, “on request and within a reasonable time, that information sought by the Union relating to the respondent’s [Buick’s] claimed inability to pay the wage increases and other benefits requested by the Union.” (see footnote 3, supra).
Between the hearing conducted by the Administrative Law Judge on November 20, 1972 and the Board's order of September 17, 1973, negotiations between Buick and the Union had continued and on March 13, 1973 the parties entered into a new collective bargaining agreement. Buick thereupon petitioned the Board for reconsideration and for a stay of enforcement of the financial disclosure portion of the order, arguing that the signing of a new collective bargaining agreement mooted this issue. Buick’s petition was denied by the Board, with one dissent, on November 15, 1973. Thereupon, Buick sought this review of the Board’s order contending that so much of the order requiring disclosure of financial data should be set aside. Buick argues that the Board erred in finding Buick’s conduct to constitute an unfair labor practice, and that the disclosure issue is now moot in light of the existing collective bargaining agreement. The Board opposes such action and requests enforcement of its September 17, 1973 order.
II.
TRUITT VIOLATION
Buick argues, inter alia, that its refusal to supply the requested financial data was not a violation of the Act inasmuch as the Union was not bargaining in good faith and was the intransigent party. See, e. g., Boston Herald-Traveler Corp. v. NLRB, 223 F.2d 58, 63 (1st Cir. 1955). In support of this contention, Buick relies on the Administrative Law Judge’s finding that the Union, as the “intransigent” caused the breakdown in negotiations. Buick claims that the Board acted arbitrarily and in disregard of the Administrative Law Judge’s credibility determinations when it concluded that the breakdown in negotiations “was not so much due to intransigence on the part of the Union... as it was due to Respondent’s [Buick’s] adamancy in refusing to furnish the requested financial data.”
In reviewing Buick’s bargaining posture, the Board correctly recognized that Buick’s refusal to furnish the information requested of it must be examined in light of the Supreme Court’s decision in NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). In Truitt, the Union demanded a 10^ per hour wage increase. Truitt, the respondent, offered a 2^2 0 per hour increase, claiming that it could not afford to pay more and that any amount above 2V2 0 would “put it out of business.” The employer refused to permit an examination of its books when the Union asked for substantiation of its claimed inability to pay. The Supreme Court sustained the Board’s position that “an employer has not bargained in good faith where the employer claims it cannot afford to pay higher wages but refuses requests to produce information substantiating its claim.” 351 U.S. at 150, 76 S.Ct. at 754. In so holding, the Supreme Court stated:
“In their effort to reach an agreement here both the union and the company treated the company’s ability to pay increased wages as highly relevant. The ability of an employer to increase wages without injury to his business is a commonly considered factor in wage negotiations. Claims for increased wages have sometimes been abandoned because of an employer’s unsatisfactory business condition; employees have even voted to accept wage decreases because of such conditions.”
“Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy.”
351 U.S. at 152-153, 76 S.Ct. at 755. (footnote omitted).
This Court has held that it is a per se violation of the Act for an employer to refuse to furnish relevant requested information in the Truitt context. Curtiss-Wright Corp., Wright Aeronautical Division v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). Buick’s conduct and the record as developed therefore must be examined in light of these principles. The Board’s findings with respect to these facts bearing on its disclosure order will not be set aside if supported by “substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). We adhere to this standard even in instances, where as here, the Administrative Law Judge and the Board may differ. International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, 273 F.2d 243, 247 (3d Cir. 1959). The record reveals that the Board’s eonclusion is in accord with law and rests upon findings which are supported by substantial evidence. Hence, on review, we will not disturb the Board’s conclusion that a Truitt violation occurred. NLRB v. Truitt Mfg. Co., supra; see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); International Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, supra.
Buick, however, is not obliged to disclose to the Union its profit and loss data and its “books” merely because they might be helpful to the Union. See United Furniture v. NLRB, 388 F.2d 880 (4th Cir. 1967). It is only where an employer, in asserting its financial inability to meet the demands of the union refuses to disclose its. relevant financial data that the Truitt doctrine is applicable. Under such circumstances an employer must disclose, and a union must be permitted to know, the factual basis substantiating the employer’s assertion of economic inability. NLRB v. Truitt Mfg. Co., 351 U.S. at 152-153, 76 S.Ct. 753. If it were otherwise, the collective bargaining processes would be frustrated. Here, if the Union could not meaningfully evaluate Buick’s economic claims it could not determine whether the claims of financial inability were valid or spurious. Thus, absent Buick’s compliance with the Truitt mandate, the Board was justified in holding that Buick failed to bargain in good faith.
III.
ENFORCEMENT
Our task, however, has not been completed with our determination that Buick’s refusal to furnish financial information was properly held to constitute a violation of the Act. We must still resolve the question of whether we should presently enforce the Board’s disclosure order.
Our power to enforce Board orders is equitable in nature and is properly invoked only when the relief sought is consistent with principles of equity. NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953). Accordingly, where the power of this Court is to be exercised for the enforcement of a Board order requiring the disclosure of financial data, the order must be appropriate for present enforcement. NLRB v. Eanet, 85 U.S.App.D.C. 371, 179 F.2d 15, 17, 21 (1948), reh. denied, 179 F.2d 17 (1949). See also New Standard Publishing Co., Inc. v. Federal Trade Comm., 194 F.2d 181, 183 (4th Cir. 1952). When enforcing Board orders our function is not to put our stamp of authority automatically upon whatever request is made of us, NLRB v. Eanet, supra, nor should we enter an enforcement decree “... in the absence of any showing whatever, based on reasonably recent inquiry, that a decree of court is appropriate or necessary.” NLRB v. Eanet, 179 F.2d at 22. An order of the Board when judicially confirmed must “... like the injunction order of a court, state with reasonable specificity the acts which the respondent is to do or refrain from doing....” NLRB v. Express Publishing Co., 312 U.S. 426, 433, 61 S.Ct. 693, 698, 85 L.Ed. 930 (1941).
With these teachings in mind, we direct our inquiry first to Buick’s contention of “mootness” and then to the controlling issue of relevance.
IV.
MOOTNESS
Buick asserts that even if it is held to have committed an unfair labor practice in refusing to furnish requested financial data to the Union (as we so hold), the Board’s order requiring disclosure should be denied enforcement. Buick argues that the three-year collective bargaining agreement executed after Buick failed to make disclosure of its books renders present disclosure moot. Buick claims that any information it could be obliged to furnish now has been made stale by the passage of time and can serve no useful purpose to the Union either in its role as a bargaining agent or in its role administering the new collective bargaining agreement.
On the other hand, the Board contends that the subsequent execution of the collective bargaining agreement does not “moot” its disclosure order. The Board argues that the forced production of Buick’s economic information would prevent Buick from profiting from its unfair labor practice. Such information, says the Board, could also be used by the Union in “(1) implementing, enforcing or modifying the current agreement; (2) proposing additional requests; (3) formulating future demands or requests; and/or (4) evaluating and assessing the credibility of Respondent’s assertions and claims or the viability of its bargaining position during future negotiations and meetings.”
We requested additional post argument briefing, concerning the effect of implementing the Board’s proposed order at this time, during the period of the existing agreement; and at its termination.
A Board order, lawful when made, does not become moot solely “because changing circumstances indicate that the need for it may be less than when made.” NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Indeed, under the circumstances presented here, we reject Buick’s contention that the signing of a collective bargaining agreement subsequent to a Truitt violation by the employer automatically renders moot a Board order under review which pertains to the refusal to furnish relevant information. We regard Buick’s proscribed conduct as being capable of repetition in some relevant context with the Union. Cf. Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The significance of the contract execution on March 13, 1973 must therefore be measured by considerations of relevancy (see our discussion infra) rather than by considerations of mootness.
V.
RELEVANCE
An essential ingredient in establishing an unfair labor practice under the doctrine announced in Truitt is that the information withheld be relevant. Relevance, in this case, should be measured with respect to the Union’s statutory functions [the negotiation and administration of the collective bargaining agreement, NLRB v. Acme Indus. Co., 385 U.S. 432, 437, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); International Tel. & Tel. Corp. v. NLRB, 382 F.2d 366, 371-372 (3d Cir. 1967), cert. denied, 389 U.S. 1039 (1968)] and with respect to the ongoing relations of the parties.
A. Negotiation
Based on the record presented, there is no showing that the information requested during the period of contract negotiations in July and August 1972 is relevant or can be of use to the Union in carrying out its statutory responsibility as an exclusive bargaining agent. While the provision of the Board’s order here challenged does not delineate the period of time for which records must be produced, the Board has conceded in its supplemental brief that its order pertains only to those records of Buick which were in existence and available on or before July 19, 1972. There are no pending bargaining negotiations between Buick and the Union. On this record, we find it difficult to understand how the financial data requested by the Union on July 19, 1972 and on August 2, 1972 is now relevant to a present negotiating or bargaining issue, even though we hold that such relevance once existed. We have not been shown and we will not speculate that the disclosure of Buick’s 1971 or 1972 financial data at this time can serve any useful collective bargaining purpose. Cf. NLRB v. Eanet, supra. In so holding, we reject the Board’s contention that if Buick’s records indicated that Buick could have afforded higher labor costs, the Union could presently modify the existing agreement’s wage or benefit provisions by an action under § 301 of the Act. 29 U.S.C. § 185.
We have been shown no authority where during the term of a collective bargaining agreement, modifications of that agreement’s contractual provisions have been permitted as a result of a pre-contract Truitt violation. § 301 applies to actions for the violation of contracts. An unfair labor practice does not necessarily result in a contract violation which would invoke the jurisdiction of federal courts pursuant to § 301, cf. Adams v. Budd Co., 349 F.2d 368 (3d Cir. 1965); Proctor & Gamble Independent Union v. Proctor & Gamble Manufacturing Co., 312 F.2d 181 (2d Cir. 1962, cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963), especially where, as here, no necessary or sufficient connection is shown between the unfair labor practice and the contract. Moreover, nowhere has it been claimed that the Union has sought to modify the present contract, or wage or benefit provisions any time after the execution of the contract on March 13, 1973.
B. Union Administration
The record is also silent with respect to the Union’s needs for such financial information in order to “administer” the collective bargaining agreement. We realize that a union is entitled to information necessary to prosecute grievances, NLRB v. Acme Indus. Co., supra, but there is no showing that the information requested has any present or future relevance to such a situation. Indeed, we are not aware of any grievances past or present pending under the present contract provisions. There is no indication that the Union’s obligation to “administer” the collective bargaining agreement might be affected by the information sought. See International Tel. & Tel. Corp. v. NLRB, 382 F.2d at 371-372. The predictions of the Board as to how such information may be employed by the Union are mere speculation. As such, no demonstration of relevance has been shown. Absent such a showing, we cannot say that present enforcement of the Board’s financial disclosure order would achieve ends “fairly said to effectuate the policies of the Act.” See NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953).
C. During Term of Contract
Although the record discloses no pending grievances or issues, it is conceivable that under the existing agreement a problem may arise in a context where Buiek’s financial information may become relevant. We cannot know at this time: (a) whether Buick will plead economic inability; (b) whether if such plea is made, Buick will then refuse disclosure of its substantiating data; (c) whether under the circumstances then existing Buick’s conduct would constitute an unfair labor practice; (d) whether the records which are subject to the Board’s September 17, 1973 order (i. e., pre-July 1972 records) and the only records with which we are concerned here, would have any relevance whatsoever to the particular issue then disputed; and (e) whether the collective bargaining provisions of the existing contract would have any effect on the dispute. The mere cataloging of the myriad issues to be faced, as to which neither of the parties can have knowledge at this time, fortifies our view that the enforcement of the Board’s order would be inappropriate. We cannot anticipate from Buick’s past conduct that it will take unlawful action in the future, nor will we grant enforcement of an order to restrain the possible future commission of a new violation unrelated to that with which Buick was here charged. See NLRB v. Express Publishing Co., 312 U.S. 426, 435-437, 61 S.Ct. 693, 85 L.Ed. 930 (1941).
In light of this discussion, we refrain from comment on the potential application of the Truitt doctrine to any viable issue that might arise during the course of the present agreement. It is sufficient for our purposes here to recognize that the record is deficient, both with respect to the relevance of a Truitt violation during the term of the contract, and the relevancy of pre-July 1972 financial information to an issue which has not now and may never arise.
D. Termination of Contract
The collective bargaining agreement executed on March 13, 1973 does not expire by its terms until March 1976. We cannot know now whether Buick will claim inability to meet Union demands when and if a renewal of that contract is negotiated. We do not and cannot know from this record whether Buick if asked for financial data, will refuse to furnish such information. “Thus, while the board’s discretion in ordering affirmative action is wide and should not lightly be disturbed, it has its limits. Certainly, a court of appeals has some responsibility for the effects of its own decree....” NLRB v. Kingston Cake Co., 206 F.2d at 611. We cannot, consistent with our equitable role, defer to the Board’s discretion in ordering affirmative action by Buick without knowing the context within which a subsequent violation might arise — or if indeed a subsequent violation will ever occur. (See our discussion under Part, V.C., supra). As a court of equity, we will not engage in such a vain endeavor.
VI.
We are fully cognizant of those cases in which orders have been enforced after a change in circumstances. See, e. g., NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6th Cir. 1963) (enforcement of order despite the employer having discontinued operations and having gone out of business). But an examination of those cases reveal that in each instance the Board’s order provided a “cease-and-desist” sanction which would subject the employer to contempt proceedings if the acts constituting the unfair labor practice were to be resumed. Here, there is no such proposed cease- and-desist sanction in the Board’s remedial order as its respects the production of financial information. As the Board recognizes in its supplemental brief, its order would not subject Buick to contempt proceedings with respect to future collective bargaining conduct. Thus, the Board recognizes, as do we, that under certain limited circumstances a violation of the Act may go unpunished. Our objective, however, is to effectuate the policies of the Act, and not necessarily to impose punitive sanctions where the “punishment” may not be relevant to correct the violation committed.
We emphasize again that our refusal to enforce the Board’s order is prompted by the dilution in relevancy occasioned by the passage of time and the execution of the present collective bargaining agreement. In respect to remedial orders for Truitt violations, it is our view that to effectuate the policies of the Act, the information to be furnished by the employer must have current relevancy both to the Union in the proper performance of its functions and to the issues involved. We consider the execution of the new agreement under the circumstances then existing, to be but one factor in establishing the relevance of the information to be supplied to the Union for carrying out its functions.
Accordingly, so much of the Board’s order as requires the disclosure of Buick’s financial data will be.set aside and enforcement as to that portion of the September 17, 1973 order will be denied. Enforcement will be ordered as to the remainder of the Board’s order. Each party shall bear its own costs.
. 29 U.S.C. § 158(a)(5) and (1) provides:
“(a) It shall be an unfair labor practice for an employer—
(I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;...
(5) to refuse to bargain collectively with the representative of his employees, subject to the provisions of section 159(a) of this title.”
Section 8(d) of the Act, 29 U.S.C. § 158(d), provides:
“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder.”
. The Union is the International Association of Machinists & Aerospace AVorkers, District Local 63, AFL-CIO.
. The original order was issued by the Administrative Law Judge and in relevant part provided :
Respondent C-B Buick, Inc., its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Bypassing the Machinists and dealing directly with its employees concerning the Machinists’ demands for a new contract and threatening them that such demands or a strike to enforce them might cause it to go out of business; telling its employees that they could do better. dealing with it through a supervisor than through their exclusive bargaining agent.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively and exclusively with Machinists as the exclusive bargaining representatives of the unit found appropriate herein concerning rates of pay, wages, hours and terms and conditions of employment and, if agreement is reached, embody such understanding in a written agreement.
On September 17, 1973, the Board amended the original order by adding paragraph 2(b), which requires Buick to :
(b) Furnish the Union, on request and within a reasonable time, that information sought by the Union relating to the Respondent’s claimed inability to pay the wage. increases and other benefits requested by the Union.
Buick does not challenge any provision of the Board’s final order other than paragraph 2(b). The Board seeks enforcement of the order as amended.
. On this appeal, Buick does not challenge this finding.
. The Union’s request for Buick’s financial data sought an examination of the profit and loss statement and “the books.” (Tr. 65-66). Though this request was somewhat vague, Buick’s duty to furnish information on the Union’s request is not defeated by the failure to ask for the precise kind of information which the employer has available, as long as the employer has data of a similar nature to that requested by the Union. See NLRB v. Western Wirebound Box Co., 356 F.2d 88 (9th Cir. 1966).
. The new collective bargaining agreement is for a term of three years. It contains substantially the same provisions as were contained in the preceding one-year contract. The current collective bargaining agreement provides, however, for an increase in wages, holidays and fringe benefits.
. We have jurisdiction to entertain this matter pursuant to 29 U.S.C. § 160(f).
. Decision of Administrative Law Judge, JD-33-73, Case No. 6-CA-6244, at 10. (Issued January 30, 1973).
. C-B Buick, Inc. and International Ass’n of Machinists & Aerospace Workers, District Lodge No. 63, AFL-CIO, 200 NLRB No. 10, 84 LRRM 1173, 1175 (1973).
. We reject Buick’s contention that its oral statement to the Union of its preceding years “pre-tax profits” sufficed to substantiate its claim of economic inability and sufficed to bar a finding of an unfair labor practice premised upon a Truitt violation. A partial oral presentation of financial data, even if it is of an uncomplicated nature, cannot be held to have satisfied the employer’s duty to furnish information to the Union in a context such as this one. Cf. J. I. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958). Moreover, the information to be furnished must be from current data. See NLRB v. Rybold Heater Co., 408 F.2d 888 (6th Cir. 1969).
. Counsel for General Counsel’s Opposition to Respondent’s Petition for Reconsideration, For Remand to Adduce Additional Evidence if Necessary and for a Stay of Enforcement, Case No. 6-CA-6244, dated October 29, 1973.
. Article 3 of the existing collective bargaining agreement provides as follows :
The Company agrees that it will negotiate with the Union during the term of this Agreement concerning any matter involving the wages, hours and working conditions of the employees which is not specifically provided for in this Agreement. Any disputes which are not settled by negotiations shall be subject to the Grievance and Arbitration Provisions, provided for in this Agreement.
Article 20 establishes a four-step grievance procedure;
Article 21 provides for arbitration.
. We can consider the issue of mootness although it obviously was not raised before the Administrative Law Judge. When after the issuance of an NLRB order, circumstances arise which may affect the propriety of enforcing the order, this Court has discretion to decide the matter itself or to remand it to the Board for further consid-ration. NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575, reh. denied, 331 U.S. 868, 67 S.Ct. 1725, 91 L.Ed. 1872 (1947). We regard the issue before us as essentially one of law, and we do not find it necessary to remand this proceeding for further factual findings.
. The initial demand for financial data was made in July 1972. The record is silent as to the manner and form of Buick’s record keeping and as to Buick’s fiscal year. Hence, we cannot tell if Buick’s books and records would have reflected monthly or year-end figures through June 1972, or calendar year figures through December 1971, or figures through any other intermediate date.
. 29 U.S.C. § 185 in pertinent part provides :
(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
. In this regard, we note that suits for the breach of a bargaining representative’s duty of fair representation may be brought under section 301(a) only if a sufficient connection is shown between the contract and the breach. See Leskiw v. Local 1470, IBEW, 464 F.2d 721 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972); International Longshoremen’s & Warehousemen’s Union v. Kuntz, 334 F.2d 165 (9th Cir. 1964).
The cases to which the Board refers us do not support the Board’s contention that the Union may seek modification of the existing contract. An analysis of Mearns v. Lewis, 168 F.Supp. 134 (N.D.W.Va.1958), aff’d 268 F.2d 427 (4th Cir. 1959) and Local Union No. 600, United Auto Aircraft & Agricultural Implement Workers of America, UAW-CIO v. Ford Motor Co., 113 F.Supp. 834 (E.D. Mich.1953) reveals that both cases involved attempts to rescind collective bargaining agreements on the basis that fraudulent representations were used to induce one of the parties to execute the particular agreement. Absent affirmative showings that the challenged contracts were the result of fraudulent representations, the courts in each case rejected the party’s contentions and upheld the contractual provisions although implicitly recognizing the viability of such a doctrine. Here, there is no claim, nor would the record support such a claim of fraudulent inducement. We do not equate the Truitt conduct of Buick (after which the agreement was executed) with fraudulent activities designed to induce a party to enter into a contract.
. But cf. General Elec. Co. v. NLRB, 466 F.2d 1177, 1184 (6th Cir. 1972).
. AVe recognize that the Board is not precluded by tlie grievance and arbitration provisions of the existing collective bargaining agreement from finding that Buick violated its statutory duty to bargain in good faith under section 8(a) (5) and (1) by refusing to furnish the Union with relevant financial data. See NLRB v. Acme Indus. Co., 385 U.S. 432, 437-438, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). The Board is not required to await an arbitrator’s determination of tlie relevancy of information requested by tlie Union before seeking to enforce the statutory duty to bargain in good faith. Acme, supra. Nor do we hold that a directive to Buick to furnish relevant financial information must necessarily arise through the grievance and arbitration procedures. See Curtiss-Wright, 347 F.2d at 71; cf. NLRB v. Strong, 393 U.S. 357, 360-361, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); NLRB v. C & C Plywood Corp., 385 U.S. 421, 428-429, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967).
. In this connection we are mindful of the caution expressed by the Supreme Court:
“We do not hold, however, that in every case in which economic inability is raised as an argument against increased wages it automatically follows that the employees are entitled to substantiating evidence. Each case must turn upon its particular facts. The inquiry must always be whether or not under the circumstances of the particular case the statutory obligation to bargain in good faith has been met.”
NLRB v. Truitt Mfg. Co., 351 U.S. at 153-154, 76 S.Ct. at 756 (footnotes omitted).
Counsel were asked to prepare and submit in their supplemental briefs the form of an order which if enforced would accomplish this quoted principle. No such submission was received. It may be that the Board attempted to resolve the issue of present and future application of its order by limiting the scope of records to be furnished. See p. 1093 Part, V. A., supra.
. As we analyze the Board’s disclosure order and the affirmative action which it would impose upon Buick, we fail to
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
George CROCKETT, Jr., individually in his capacity as a member of the United States House of Representatives, et al., Appellants, v. Ronald Wilson REAGAN, individually and in his capacity as President of the United States, et al.
No. 82-2461.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 18, 1983.
Decided Nov. 18, 1983.
As Amended Nov. 18, 1983.
Peter Weiss, New York City, a member of the Bar, Second Dept. Appellate Div. of N.Y., pro hac vice by special leave of Court with whom Ira Lowe and Reverend Robert F. Drinan, S.J., Washington, D.C., were on brief, for appellants. Frank E. Deale, New York City, also entered an appearance for appellants.
Vincent M. Garvey, Atty., Dept. of Justice, with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty. and Brook Hedge, Atty., Dept, of Justice, Washington, D.C., were on brief, for appellees. Neil H. Koslowe, Washington, D.C., Atty. for Dept. of Justice also entered an appearance for appellees.
Steven M. Schneebaum and Keith R. Fisher, Washington, D.C., were on the brief for Intern. Human Rights Law Group, ami-cus curiae, urging reversal.
Sara E. Lister and Sarah E. Burns, Washington, D.C., were on brief, for Nat. Council of Churches of Christ in the United States of America, et al., amici curiae, urging reversal.
Alan Dranitzke, Washington, D.C., was on brief, for Catholic Peace Fellowship, et al., amici curiae, urging reversal.
Jose Acosta, El Paso, Tex., was on brief, for Border Ass’n for Refugees from Central America, amicus curiae, urging reversal.
Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calió, Washington, D.C., were on brief, for Senators Jepsen, et ah, amici curiae, urging affirmance.
Before EDWARDS and BORK, Circuit Judges, and LUMBARD, Senior Circuit Judge, United States Court of Appeals for the Second Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981).
PER CURIAM:
This is an appeal from the dismissal of a suit brought by 29 Members of Congress against President Reagan and other United States officials, challenging the legality of the United States’ presence in, and military assistance to, El Salvador. The principal contention of the plaintiffs-appellants is that United States military officials have been introduced into situations in El Salvador where imminent involvement in hostilities is clearly indicated by the circumstances and, consequently, the President’s failure to report to Congress is a violation of both the War Powers Resolution (“WPR”) and the war powers clause in the Constitution. The appellants also alleged that violations of human rights by the Government of El Salvador are pervasive and that, in the absence of a certification of “exceptional circumstances” by the President, United States military assistance to El Salvador violates the Foreign Assistance Act of 1961 (“FAA”). In pursuing their claims, plaintiffs-appellants have sought, inter alia, an injunction directing that the appellees immediately withdraw all United States Armed Forces, weapons, military equipment and aid from El Salvador and prohibiting any further aid of any nature.
The District Court dismissed all of plaintiffs’ claims without resolution of the merits of their suit. Crockett v. Reagan, 558 F.Supp. 893 (D.D.C.1982). Judge Joyce Green held that the war powers issue presented a non justiciable political question. In particular, Judge Green found that the trial court did not have the resources or expertise to resolve the particular factual disputes involved in this case, id. at 898, 899, and that Congress had taken no action which would suggest that it viewed our involvement in El Salvador as subject to the WPR. Id. at 899. Judge Green’s dismissal of the FAA claim was based on the equitable discretion doctrine, which counsels judicial restraint where á congressional plaintiff’s dispute is primarily with his or her fellow legislators. Riegle v. Federal Open Market Committee, 656 F.2d 873, 881 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).
We have reviewed with care the parties’ contentions and submissions and we can find no error in the judgment of the District Court. We therefore affirm the dismissal of this case for the reasons stated by the District Court.
So ordered.
. 50 U.S.C. §§ 1541-1548 (1976). Section 4(a) of the WPR, 50 U.S.C. § 1543(a) (1976) provides:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
. U.S. Const, art. 1, § 8, cl. 11.
. 22 U.S.C. §§ 2151-2443 (1976 & Supp. V 1981). Section 502B of the FAA prohibits security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights,” unless the President certifies that “extraordinary circumstances exist warranting provision of such assistance.” 22 U.S.C. § 2304(a)(2) (Supp. V 1981).
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_casesource
|
024
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
NATIONAL LABOR RELATIONS BOARD v. BURNUP & SIMS, INC.
No. 15.
Argued October 15, 1964.
Decided November 9, 1964.
Arnold Ordman argued the cause for petitioner. With him on the brief were Solicitor General Cox, Dominick L. Manóli and Norton J. Come.
Erie Phillips argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
Two employees in respondent’s plant, Davis and Harmon, undertook to organize the employees who worked there. The Superintendent was advised by another employee, one Pate, that Davis and Harmon, while soliciting him for membership in the union, had told him the union would use dynamite to get in if the union did not acquire the authorizations. Respondent thereafter discharged Davis and Harmon because of these alleged statements. An unfair labor practice proceeding was brought. The Board held that the discharges violated §§' 8 (a)(1) and 8 (a) (3) of the Act,61 Stat. 136,140-141,29 U. S. C. §§ 158 (a)(1) and (a)(3). It found that Pate’s charges against Davis and Harmon were untrue and that they had actually made no threats against the company’s property; and it concluded that respondent’s honest belief in the truth of the statement was not a defense. 137 N. L. R. B. 766, 772-773.
The Court of Appeals refused reinstatement of Davis and Harmon, holding that since the employer acted in good faith, the discharges-were not unlawful. 322 F. 2d 57. We granted the petition for certiorari because of a conflict among the. Circuits. Cf. with the opinion below Labor Board v. Industrial Cotton Mills, 208 F. 2d 87; Labor Board v. Cambria Clay Products Co., 215 F. 2d 48; Cusano v. Labor Board, 190 F. 2d 898.
We find it unnecessary to reach the questions raised under § 8 (a)(3) for we are of the view that in thé context of this record § 8 (a)(1) was plainly violated, whatever the employer’s motive. Section 7 grants employees, inter alia, “the right to self-organization, to form, join, or assist labor organizations.” Defeat of those rights by employer action does not necessarily depend on the existence of an anti-union bias. Over and again the Board has ruled that §8 (a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer’s good faith, when it is shown that the misconduct never occurred. See, e. g., Mid-Continent Petroleum Corp., 54 N. L. R. B. 912, 932-934; Standard Oil Co., 91 N. L. R. B. 783, 790-791; Rubin Bros. Footwear, Inc., 99 N. L. R. B. 610, 611. In sum, § 8 (a) (1). is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.
That rule seems to us to be in conformity with the policy behind §8 (a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8 (a)(1) right that is controlling. We are not in the realm of managerial prerogatives. Rather we are concerned with the manner of soliciting union membership over which the Board has been entrusted with powers of surveillance. See Garment Workers v. Labor Board, 366 U. S. 731, 738-739; Labor Board v. Erie Resistor Corp., 373 U. S. 221, 228-229. Had the alleged dynamiting threats been wholly disassociated from § 7 activities quite different considerations might apply.
Reversed.
Sections 8 (a)(1) and (3) .read as follows:
“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 7;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”
As an alternative ground for its finding that the Act had been violated) the Board held that Pate’s allegation was merely “seized up [on]” by the respondent as an “excuse” for the discharges of Davis and Harmon. 137 N. L. R. B. 766, 772-773. The Court of Appeals, however, rejected without discussion this suggestion of the existence of anti-union bias. 322 F. 2d 57, 59, 61. In its petition for writ of certiorari the Board expressly stated that “The propriety of this action [by the Court of Appeals] is not questioned here.” In fight of this concession it is unnecessary for us to determine whether the Board’s alternative finding of a discriminatory motivation is supported by substantial evidence.
The Rubin Bros, case made a qualification as to burden of proof. Prior thereto the burden was on the employer to prove that the discharged employee was in fact guilty of the misconduct. Rubin Bros, said that “once such an honest belief is established', the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct.” 99 N. L. R. B., at 611.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_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.
Morris COHEN, d/b/a Piehler Furs, Petitioner, Appellant, v. Arthur T. WASSERMAN, Trustee, Appellee.
No. 5124.
United States Court of Appeals First Circuit.
Heard Oct. 5, 1956.
Decided Dec. 5, 1956.
Alan J. Dimond, Boston, Mass., with whom Widett & Kruger, Boston, Mass., was on brief, for appellant.
Julius Thannhauser, Boston, Mass., with whom Wasserman & Salter, Boston, Mass., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from an order of the United States District Court for • the District of Massachusetts affirming an order of the referee in bankruptcy, entered on February 29, 1956, denying petitioner-appellant’s petition for the establishment of a lien in the amount of $968 on the proceeds of an eminent domain proceeding, held by the respondentappellee, trustee in bankruptcy.
There being no issue as to the facts, they may be briefly summarized as found by the referee. The petitioner-appellant, Morris Cohen, an individual doing business as Piehler Furs, brought suit against the bankrupt, Antoinette G. Monks, by writ dated August 8, 1949 with an ad damnum of $975. On August 9, 1949, acting under said writ, the appellant caused an attachment to be made on the bankrupt’s real estate located in Suffolk County in the Commonwealth of Massachusetts. On September 8, 1949 the bankrupt’s real estate, which was subject to the aforementioned attachment, was taken by the Commonwealth by exercise of the right of eminent domain. On March 10, 1950 the appellant obtained a judgment against the bankrupt in the amount of $968. Within thirty days from the entry of the judgment the sheriff purported to levy on the bankrupt’s interest in the attached real estate in Suffolk County. The sheriff immediately suspended further levy by “reason of prior attachments.” Presumably, the “prior attachments” mentioned in the sheriff’s return referred to the interest of the Commonwealth in the property resulting from the eminent domain proceeding.
Receivers of the bankrupt’s property having been appointed on April 11, 1950 by the Superior Court of Suffolk county, the appellant, on May 11, 1950, filed a petition for leave to intervene in the receivership proceeding, alleging that the bankrupt, by virtue of a letter dated February 14, 1950 had ordered the proper state officer to pay appellant $951.98 out of the proceeds of the eminent domain proceeding with respect to the real estate in Suffolk County, and praying that appellant’s claim be established as a preferred claim. This petition was never acted upon by the court, and it is not of any significance on this appeal.
On May 25, 1950 bankruptcy proceedings were initiated by an involuntary petition. Subsequently, the Commonwealth paid to the respondent-appellee, trustee in bankruptcy, $32,000 on account of a $48,000 judgment obtained by the appellee ($16,000 of said judgment having been paid to prior mortgagees) for the taking of the bankrupt’s real estate. No part of the appellant’s claim was paid by the appellee.
The referee, concluding that the title of the bankrupt to the real estate under attachment was extinguished by the taking under eminent domain on September 8, 1949, and that the attachment made by petitioner was extinguished as a result of the eminent domain proceeding, ordered that appellant’s petition to establish a lien, filed August 25, 1955, be denied. This appeal is taken from an order of the district court entered on April 17, 1956 affirming the referee’s action.
The question presented is whether appellant’s mesne process attachment under Massachusetts law created a valid lien which was transformed into an equitable lien upon the taking of the attached real estate by eminent domain and, as such, was enforceable against the proceeds of the taking even though judgment was not obtained by appellant until after the taking by eminent domain, and notwithstanding that the actual proceeds of the condemnation were not recovered by the trustee until after the owner of the property had been declared bankrupt.
Appellee mainly contends that where realty under mesne process attachment is taken by right of eminent domain the attachment lien is extinguished, and no equitable lien against the proceeds of the taking arises to take its place, because the lien of attachment is merely inchoate. To answer this contention we must first determine the nature of the lien created by appellant’s mesne process attachment of August 9, 1949.
It is clear that the nature of such a lien depends wholly upon the local law. Yumet & Co. v. Delgado, 1 Cir., 1917, 243 F. 519, Massachusetts courts have stated that “an attachment of property on mesne process is a specific charge upon the property,” Davenport & Others v. Tilton, 1845, 10 Met. 320, 327, 51 Mass. 320, and, further, that it “doubtless creates an immediate lien,” Gardner v. Barnes, 1871, 106 Mass. 505, 506. These cases are consistent with an earlier Supreme Court holding from which it can be gathered that in Massachusetts, for purposes of the bankruptcy law of 1841, an attachment on mesne process created a lien equal in stature to a common law lien, or a lien acquired after judgment. See Peck v. Jenness, 1849, 7 How. 612, 48 U.S. 612, 12 L.Ed. 841.
That a lien, in Massachusetts, arising from mesne process attachment, is a perfected charge or encumbrance upon the attached property from the time of attachment, is evidenced by the language in In re Blair, D.C.Mass.1901, 108 F. 529, 530, where the court stated that where “the lien is created by the attachment, the judgment and levy create no new or additional lien, but only enforce a lien already existing.” See also Gatell v. Millian, 1 Cir., 1924, 2 F.2d 365; In re Crafts-Riordon Shoe Co., D.C.Mass.1910, 185 F. 931. But see Ex parte Foster, C.C.D.Mass.1842, 9 Fed.Cas. p. 508, No. 4,960.
In light of these decisions we believe that mesne process attachment in Massachusetts creates a valid lien on the property attached from the time the attachment is made. A subsequent judgment for the plaintiff does no more than establish the fact that the lien was rightly obtained. Yumet & Co. v. Delgado, supra, 243 F. at page 520. If the lien is inchoate in any way, we believe it is only so as to its enforceability against the encumbered property. The lien cannot be enforced by the attaching plaintiff against the property until he has recovered judgment. See Yumet & Co. v. Delgado, supra at page 520. But, that enforceability of the lien is not available to the plaintiff until judgment is recovered, does not affect the existence and quality of the attachment as a valid lien, as evidenced by the fact that anyone taking the property after the attachment could take it only subject to the lien.
Having concluded that the appellant had a valid lien at the time of the taking of the attached property by the Commonwealth on September 8, 1949, we must next determine what became of the lien after the taking by eminent domain. Although no Massachusetts cases dealing with this very question have come to our attention, the law is well settled elsewhere that a lien creditor may enforce his lien in equity against the proceeds of an eminent domain award. This principle is enunciated in 2 Nichoís, Eminent Domain, § 5.74 (3d Ed. 1950):
“A lien is not a proprietary interest or an estate in the land, upon which it stands, but is a remedy against it, and, as the legislature may constitutionally impair a remedy without compensation, when land subject to lien is taken by eminent domain, the holder of the lien is not entitled to be made a party, or to recover compensation from the condemnor. It is, however, well settled that the award stands in place of the land, and is subject to the same liens, and that consequently a lienor may proceed against the award upon general equitable principles, and without the aid of any statute. He may have his lien satisfied out of the fund awarded to the owners of the legal title as compensation for the land in advance of other creditors.”
That this court undoubtedly would have applied a statutory form of this equitable principle in People of Puerto Rico v. United States, 1 Cir., 1942, 131 F.2d 151, certiorari denied 1943, 318 U.S. 775, 63 S.Ct. 832, 87 L.Ed. 1144, but for the finding that the tax lien under Puerto Rico statutes did not attach prior to the taking of the property by eminent domain, appears abundantly clear from the holding in People of Puerto Rico v. PaloSeco Fruit Co., 1 Cir., 1943, 136 F.2d 886.
Where property was taken by eminent domain, the title to the land vesting in the United States, the Second Circuit recognized that the lien of a first mortgagee was transferred to the award. United States v. Certain Lands in Borough of Brooklyn, 2 Cir., 1942, 129 F.2d 577. In considering whether a tax lien survived the taking of the property by eminent domain, the Third Circuit stated that the “condemnation award when made stands in the place of the land and the rights of all persons may be treated as though transferred to the award.” United States v. 25,936 Acres of Land, etc., 3 Cir., 1946, 153 F.2d 277, 279.
Moreover, the Massachusetts courts, in analagous situations, have applied the general principle “by which, in equity, one who has a lien upon property may follow the proceeds, and enforce his lien thereon, if there is no remedy at law.” Worcester v. Boston, 1901, 179 Mass. 41, 50, 60 N.E. 410, 412. Thus, in the Worcester case it was held that the mortgagee had an equitable lien upon any surplus proceeds remaining in the hands of the tax authorities who had sold the mortgaged property in a tax sale. In so holding, the court cited an earlier decision, Wiggin v. Heywood, 1875, 118 Mass. 514, where a creditor who had a mesne process attachment on property that was sold at a mortgage foreclosure, prior to recovery of judgment by him, was allowed to maintain a bill in equity to impress an equitable lien upon any surplus proceeds remaining in the hands of the mortgagee. The instant case is strikingly similar to the Wiggin case with the only variable being that here it was the taking by eminent domain instead of a mortgage foreclosure that extinguished the attaching creditor’s rights at law. This difference cannot serve to distinguish the instant case from it in view of the broad language of the court in the Wiggin case [at pages 516-517]:
“No means being provided by the common law or by statute for the attaching creditor to enforce his right in this fund, a case is presented in which a court of chancery, according to its well settled practice, will afford a remedy, to the same effect and upon the same conditions, as nearly as may be, as in proceedings at law in like cases.”
Where the collector of taxes of the City of Boston sought in equity to impress the city’s legal tax lien upon the proceeds held by a second mortgagee of certain real estate taken by eminent domain, the court recognized the general principle of the Wiggin case, and seems to have denied the collector the requested relief on the technical ground that his powers, being strictly statutory, authorized him to .proceed only “against the person assessed,” and the second mortgagee was not that person. Collector of Taxes v. Revere Building, Inc., 1931, 276 Mass. 576, 580, 177 N.E. 577, 578, 79 A.L.R. 112.
Based on the above precedents, we conclude that appellant’s mesne process attachment of August 9, 1949, constituting a valid lien, was transformed into an equitable lien upon the taking of the attached property by eminent domain on September 8, 1949, which equitable lien continued until appellant had reduced his claim to judgment, finally attaching upon the condemnation award paid to the appellee, trustee in bankruptcy, on February 25, 1953. From the time of the taking of the property, August 9, 1949, to the time the award was recovered by appellee, February 25, 1953, appellant’s equitable lien may be considered as attaching to the right of action that first Monks, the bankrupt, and then her trustee had against the Commonwealth for the taking of the property.
Since the lien arose upon attachment, on August 9, 1949, some ten months before the petition in bankruptcy was filed, it cannot be argued that appellant could not acquire a lien because the property of the bankrupt had come into the custody of the bankruptcy court. It is well established that, “The trustee takes the property of the bankrupt, in cases unaffected by fraud in the same condition that the bankrupt, himself, held it and subject to all valid legal or equitable liens thereon not expressly rendered void by the terms of the Bankruptcy Act [11 U.S.C.A. § 1 et seq.].” Porter v. Searle, 10 Cir., 1955, 228 F.2d 748, 750.
Appellee also contends that appellant lost his equitable lien since he failed to implement it by seizure on execution of property of the bankrupt within thirty days after recovery of judgment as provided by Mass.Ann.Laws c. 223, § 59 (1955).
The record shows that on March 13, 1950, three days after recovery of judgment, execution was issued. Further, that on April 7, 1950, the sheriff suspended further levy presumably due to the fact that the property had been taken by the Commonwealth on September 8, 1949. The appellant could not comply with the statute by enforcing his lien on the proceeds by legal or equitable process in a Massachusetts state court, since no process of attachment, legal or equitable, could have been brought against the taking authority, the Commonwealth, an indispensable party to any proceeding to enforce the lien on the proceeds prior to payment. McCarthy Co. v. Rendle, 1916, 222 Mass. 405, 111 N.E. 39. The Commonwealth cannot be impleaded in its own courts except by its consent clearly manifested by the legislature, and this consent has not been given with respect to either bills to reach and apply or attachment by trustee process. McCarthy Co. v. Rendle, supra; Dewey v. Garvey, 1881, 130 Mass. 86. Under such circumstances, where it is clear that the petitioner’s only means of enforcing his lien was to bring the present petition against the trustee in bankruptcy after the trustee had received the payment of the eminent domain award, it would be inequitable to apply the thirty day statutory limitation.
Neither can the appellant be considered as having lost his right to a lien due to his delay in bringing this action. Although appellant waited a period of two and one half years after appellee had recovered the eminent domain award, it cannot be fatal to his petition because appellee has not shown any injury or detrimental change of position due to the delay.
A judgment will be entered vacating the order of the district court and remanding the case to that court for the entry of an order consistent with this opinion.
. Although this date does not appear in the findings of the referee, it is included in appellee’s brief as a matter of judicial record.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
NATIONAL SURETY CORPORATION v. WILLIAMS.
No. 11519.
Circuit Court of Appeals, Eighth Circuit.
April 9, 1940.
Rehearing Denied May 1, 1940.
Roy H. Callahan, of New York City (J. W. House, C. H. Moses, W. H. Holmes, and Eugene R. Warren, all of Little Rock, Ark., on the brief), for appellant.
Edward H. Coulter, of Little Rock, Ark. (Boone T. Coulter, of El Dorado, Ark., and Kenneth W. Coulter, of Little Rock, Ark., on the brief), for appellee.
Before STONE, SANBORN, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
This is an appeal from a judgment against the appellant, defendant in the district court, in an action tried to the court without a jury.
At the outset we are confronted with a motion by appellee to dismiss the appeal. The motion as amended is based upon two grounds: (1) That the transcript of the record was not filed within the time provided by law; and (2) that the points and specifications of error filed by appellant are not sufficient to present any question for review.
The situation giving rise to the claim that the appellant was tardy in filing the transcript in this court is as follows: Judgment was entered in the district court March 13, 1939. On that day appellant attempted to give notice of appeal by endorsing on the judgment notice of appeal and its allowance. On March 28, 1939, appellant filed notice of appeal in accordance with the requirements of Rule 73, subsection '(a), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. On May 2, 1939, appellant procured an order extending the time for filing the transcript. May 2, 1939, was more than 40 days after March 13, 1939, and less than 40 days after March 28, 1939. If the notice of appeal endorsed on the judgment was a legal notice of appeal and set the period of limitation in motion, the court was without jurisdiction to grant an extension of time. Rule 73(g) of the Rules of Civ'il Procedure. If the period was not set in motion until the notice of March 28, 1939, was filed the court had jurisdiction, and the motion to dismiss on the first ground should be overruled.
The Rules of Civil Procedure were in force at the time the judgment was entered on March 13, 1939. These rules superseded all former methods of appeal in civil cases to which they are applicable. See Note 1 to Rule 73 of Rules of Civil Procedure. The order of extension of time for filing the record in this court made on May 2, 1939, was within the 40 day period prescribed by subsection (g) of rule 73. But, assuming that the method of instituting an appeal prescribed by rule 73 is not exclusive, and that the allowance of the appeal noted in the judgment of March 13, 1939, was sufficient to confer jurisdiction upon this court (See Crump v. Hill, 5 Cir., 104 F.2d 36), it does not follow that this court is without jurisdiction and that the appeal must be dismissed. Rule 73(a) provides that: “Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal.” Rule 73(g) provides that: “In all cases the district court in its discretion and with or without motion or notice may extend the time for filing the record on appeal and docketing the action, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed * * *.” The order of March 13, 1939 (the original order) prescribed no time for filing and docketing the record. Presented with this situation, and in view of the fact that no remedy for a delayed order of extension of time is prescribed by the rule, we are not disposed to dismiss the appeal. See Mutual Benefit Health & Accident Ass’n v. Snyder, 6 Cir., 109 F.2d 469.
The gist of the second ground of the motion is that the points and specifications of error are too voluminous and prolix. The assignments are subject to criticism in this regard, but under the circumstances present we are not disposed to dismiss the appeal for this reason. The Rules of Civil Procedure were new at that time, and counsel were exercising an abundance of caution. The motion to dismiss the appeal is denied.
The appellee has also filed a motion to tax a penalty for delay. The motion is based upon the theory that the appeal is without merit, and that it was taken only for delay. Upon examining the record we are convinced that the appeal was taken in good faith. The motion is denied.
The controversy on the merits presents the question whether the appellant assumed liability as surety for certain surcharges in a guardian’s account adjudged by the Circuit Court of Arkansas on appeal from the probate court.
On August 3, 1926, Gordon Freeman was appointed by the probate court of Union County, Arkansas, guardian of the person and property of the plaintiff, Walter Williams, then a minor. Freeman fded two guardian’s bonds in the proceeding in the probate court, one dated February 1, 1927, for $29,000, and one dated February 19, 1927, for $10,000, on both of which bonds National Surety Company of New York was surety. The obligation of the first bond was that the guardian should faithfully account to his ward for the moneys coming into his hands, and that of the second that he “shall faithfully discharge his duties as Guardian * * * according to law.”
While the bonds were in force and effect there came into the hands and possession of the guardian money of his ward in the sum of $11,887.32. Williams came of age March 30, 1933, and on June 10, 1933, Freeman filed his account and settlement in the probate court. Exceptions were filed to the account, and, on a hearing, the probate court found that the guardian was indebted to Williams in the sum of $5,224.81.
The guardian appealed from the decision of the probate court to the Circuit Court of Union County. When the cause came on for hearing in that court on November 8, 1937, the guardian did not appear, and the cause was “submitted to the court upon the pleadings and records from the Probate Court.” Upon “inspecting the same” the court found that upon his appointment as guardian “there came into the hands and possession of the said Gordon Freeman the sum of $11,887.32 belonging to the said ward, Walter Williams; that on the 10th day of June, 1933, the said Gordon Freeman, Guardian, filed his purported settlement, which was the only settlement ever filed by said guardian, wherein said guardian accounted for the expenditure of $7,333.86.” The court then set out the number of the items or vouchers as they appeared on the account or settlement of the guardian comprising the expenditures allowed, and also listed a “Loan to Christine Bryan, $950.00”, a “Loan to William Turnage, $2750.00” and “$25.00 per month for support, education and maintenance of Walter Williams for 82 months in accordance with order of Probate Court, $2050.00.” “Total, $7,333.86.” The court then proceeded: “leaving a balance in said guardian’s hands as of June 10, 1933, of $4,553.46 unaccounted for; the court further finds that the said loans were unauthorized, and that said guardian’s account should be surcharged with the amount thereof, to-wit, $3,700.00, making a total aggregate due from said Gordon Freeman, former guardian, the sum of $8,253.46” with interest from June 10, 1933. On November 10, 1937, the sum of $660 was paid on one of the unauthorized loans, leaving a balance due from the guardian on the surcharge of $7,593.46.
On April 29, 1933, the National Surety Company, by the superintendent of insurance of New York, as rehabilitator, entered into a contract with the appellant, National Surety Corporation, by the terms of which the appellant for due consideration assumed and agreed to pay all losses of the old company occurring on and after the 1st day of May, 1933, and all losses as to which no notice was received by the old company prior to midnight of April 30, 1933, under certain types of bonds enumerated, “subject to the following exclusions and exceptions: * * *
“(c) Liability for losses arising from, or caused by, acts committed prior to May 1st, 1933, under fiduciary court bonds covering risks involving estates held or administered by persons or corporations acting in a fiduciary or trust capacity.”
In 1937 Williams brought this suit against the appellant. In his complaint he alleged the foregoing facts and demanded judgment for $7,593.46 with interest at 6 per cent, from June 10, 1933. It was further alleged that the judgment in the Circuit Court of Union County, Arkansas, against the guardian had not been paid, except the one payment of $660; that the acts causing the losses complained of occurred subsequently to May 1, 1933; and that the provisions of the contract of April 29, 1933, which seek to exclude liability for losses caused by acts committed prior to May 1, 1933, are null and void. The answer of the defendant (appellant) consisted of a general denial and an allegation that by the terms of the contract of April 29, 1933, it did not assume liability for the claims asserted by the plaintiff.
Upon the trial in the district court it was conceded, as it is in this court, that the guardian’s bonds were valid obligations of the National Surety Company as surety; that the judgment of the Circuit Court of Union County, Arkansas, is a valid judgment and that it was not appealed from; and that the assumption contract of April 29, 1933, is a valid contract, with the exception of the claim of the plaintiff that the provision excluding liability for losses occurring before May 1, 1933, is invalid. The principal issue in the lower court, as it is here, was whether the acts of the guardian causing the losses complained of were committed prior to May 1, 1933, or subsequently. On this issue the plaintiff introduced in evidence the judgment of the Union Circuit ■ Court of November 8, 1937, and rested. He relied upon the recitations of that judgment entry. The appellant, over the objection of the appellee, introduced in evidence the account and settlement of the guardian filed in the probate court on June 10, 1933, and which was before and considered by the Circuit Court on appeal. It was stipulated that the Turnage and Bryan loans referred to in the judgment of the Circuit Court were made in 1927, 1928, and 1929.
Upon the case thus made, two questions are presented: (1) Did the losses adjudged by the Circuit Court of Arkansas occur prior or subsequent to May 1, 1933, within the meaning of the assumption contract of April 29, 1933? and (2) Is the provision of that contract excluding liability for losses occurring prior to May 1, 1933, valid ?
1. Assuming the validity of the contract of April 29, 1933, there is no dispute between the parties as to its proper interpretation. There could not well be a disagreement upon this point. The language is simple. It has been heretofore construed by this court in the case of National Surety Corporation v. Ellison, 8 Cir., 88 F.2d 399, 403, and by the courts of New York in several cases. In the Ellison case, supra, this court said the corporation di'd not as-_ sume “Liability for losses arising from, or caused by, acts committed * * * before May 1st, 1933”; but that it did assume liability for such losses “arising from, or caused by, acts committed” after May 1, 1933. In so holding the court relied upon the plain language of the contract and the decision of the Supreme Court of New York, Appellate Division, in the case of Coleman v. National Surety Corporation, 244 App.Div. 244, 278 N.Y.S. 826, wherein it was held that the corporation assumed liability under the contract for the trust estate as it existed May 1, 1933. The dispute here, as suggested above, is not with reference to the meaning of the contract, but with regard to its application to the proof. In other words, the dispute relates to the meaning and effect of the evidence.
The issue tendered by the plaintiff cast the burden upon him to prove that the losses occurred (1) after May 1, 1933, and (2) that they arose out of, or were caused by, acts of the guardian committed after May 1, 1933. Considering that the judgment of the Circuit Court was sufficient to sustain the burden and that it is res judicata he introduced the judgment in evidence and rested. Counsel for appellant then obtained a stipulation that the loans were made prior to May 1, 1933, and introduced in evidence the guardian’s account of settlement which had been before the ’Circuit Court. Both these items of proof were objected to on the grounds in substance that they were irrelevant and immaterial. The facts, however, that the loans were .made prior to May 1, 1933, and that the settlement was considered by the Circuit Court were not denied.
Considering first the proof in respect of the $3,700.00 of loans, it will be observed that when the plaintiff rested he had not shown when the loss occurred, nor when the act committed by the guardian out of which the loss arose occurred. He had not sustained the burden of proof resting upon him, even had the stipulation as to the dates of the loans not been made. The judgment of the Circuit Court does not state when the loans were made; but that question was settled by the stipulation. It showed conclusively that the unauthorized act o’f making the loans occurred prior to May 1, 1933. The surcharge for this item clearly was not caused by, nor did it arise out of, an act committed after May 1, 1933.
Neither could the plaintiff rely upon .the judgment of the Circuit Court to establish the dates of the losses aggregating the sum of $4,553.46. Plaintiff errs in construing the words of the judgment, “leaving a balance in said guardian’s hands as of June 10, 1933, of $4,553.46 unaccounted for”, to mean that the guardian had these funds in his possession at that time unexpended. The judgment entry must be read in its entirety properly to be construed. The court found that upon the guardian’s appointment “there came into his hands and possession * * * $11,887.32”; and by “inspecting” the “settlement” filed by the guardian the court selected the items by number, description and amount which had been expended “in accordance with order of the Probate Court”, and disallowed all other items shown on the “settlement”. The emphasis in tile judgment entry in reference to the $4,553.46 item belongs on the words “unaccounted for.” It is not a finding, when fairly construed, that the guardian had these funds in his possession on June 10, 1933. This is shown by comparing the language in this clause of the judgment with the language used in connection with the original fund of $11,887.32. The court to denote possession there said this sum “came into the hands and possession of the said Gordon Freeman.” The whole judgment entry shows plainly that the court was considering and passing on the propriety of the items listed by the guardian in his purported “settlement.” An examination of the settlement leaves no doubt as to the meaning of the judgment entry, for it shows the dates when the expenditures were made; and in view of the ambiguity of the judgment entry it was admissible to show the dates. It shows that all of the items making up the sum of $4,553.46 were expended prior to May 1, 1933, except items aggregating $155.75, for which the appellant admits liability. Certainly the act giving rise to the loss was committed by the guardian when he expended the trust fund without the authority of the Probate Court. That is the meaning and the only meaning of the judgment of the Circuit Court.
It is apparent from the brief that the plaintiff’s theory in regard to the nature of the proof necessary to sustain the burden of proof was due to a misapprehension of the decision of this court in the case of National Surety Corporation v. Ellison, supra. That case was submitted upon motions for judgment. There were but two items of loss, and the only question to be determined on the merits was whether the acts giving rise to the losses had been committed by the administratrix before or after May 1, 1933. Owing to the nature of the two items a determination of the date ■of the act required a consideration of the admitted facts and a construction of the probate laws of Minnesota and the orders ■of the Probate Court pursuant to such laws. Such is not the situation in the instant case. In this case the facts in evidence fail to support the burden of proof resting upon the plaintiff without reference to the probate laws of Arkansas or the powers of the probate courts.
2. The appellee alleged in his petition and argues in his brief that the appellant should be held liable for the debts of the National Surety Company without regard to the limitations in the contract of April 29, 1933. This contention is based upon the theory that the appellant received practically all the assets of the old company and should therefore be held liable for its debts as a matter of law.
The record is almost completely lacking in any evidence to sustain this contention. It clearly appears from the transcript of the record of the rehabilitation proceedings in New York and from the oral testimony in the trial below that the new corporation received assets of the old company of an approximate market value of $11,858,000. In return the new corporation transferred all of its stock to the Superintendent of Insurance of the State of New York who had charge of the affairs of the old company. It also appears from the record of the New York proceedings that following the transfer the old company had assets of an approximate market valuation of $32,760,000, including the stock of the new corporation valued at $4,000,000. The testimony is to the effect that this stock was later sold by the Superintendent of Insurance and that the cash proceeds of $10,-031,000 were held by him for the benefit of the creditors of the old company. It is therefore clear that on the evidence in this record the appellee’s contention can not be sustained.
In its answer and amended answer in the District Court the appellant denied liability. At the conclusion of the trial in requested findings of fact and conclusions of law it in effect offered to confess judgment for $155.75 with interest from the date of the demand made upon it. Since that is the sum for which we find the plaintiff is entitled to recover the judgment will be for that amount, and as so modified the judgment is affirmed. All costs in the District Court incurred prior to March 14, 1939, should be taxed to the appellant and costs incurred since that date, including the costs in this court, should be taxed to the appellee.
Modified and affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
ÆTNA INS. CO. OF HARTFORD, CONN., v. LICKING VALLEY MILLING CO.
Circuit Court of Appeals, Sixth Circuit.
May 13, 1927.
No. 4750.
1. Exceptions, bill of <@=>60(l) — Failure to observe rule requiring filing assignment of errors before settling bill of exceptions held not to invalidate bill settled without objection (Circuit Court rule 10).
Failure to observe Circuit Court rule 10, requiring filing assignment of errors at or before settling bill of exceptions, will not invalidate bill of exceptions, where bill was settled without objection on that score, and was included by stipulation of counsel in list of papers which should constitute entire record on writ of error.
2. Trial <@=>177 — Court was empowered to pass on facts, where each party at conclusion of trial by jury asked for directed verdict.
Where, at conclusion of trial by jury, each party without reservation asked court for direction of verdict in its favor on all of the issues, court was empowered to pass on facts.
3. Appeal and error <@=>997(3) — Appellate court must accept fact conclusions of trial court, after motion by both parties for directed verdict, supported by substantial testimony.
Circuit Court of Appeals is bound to accept the fact conclusions of trial court, after motion for directed verdict by both parties, so far as supported by any substantial testimony.
4. Insurance <@=>665(2) — Evidence held to support conclusion that there was previous valid oral contract pursuant to which policy was issued.
Evidence helé to support conclusion of trial judge, in action on alleged policy of fire insurance, that there was a . previous valid oral contract of insurance pursuant to which policy was issued.
.5. Appeal and error <@=>1012 (2) — Weight of testimony is net for consideration by appellate court, where conclusions of trial judge are supported by evidence.
Where there is substantial evidence to support conclusions of trial judge, the weight of testimony given at trial is not for consideration by Circuit Court of Appeals.
6. Appeal and error <@=>499(1) — Error cannot be predicated on overruling objection, ground of which does not appear in record.
No error can be predicated on overruling of objection, where ground of objection does not appear in record.
7. Evidence <@=>121 (2) — Agent’s statement to plaintiff, after telephoning Insurer’s agent that insurance was in effect, held admissible as res gestae.
In action on alleged policy of fire insurance, statement of agent, after telephoning agent for insurer relative to securing policy, that insurance was in effect, helé aduissible as part of res gestae.
8. Insurance <@=>131 (I) — Oral insurance contract held not void for lack of express agreement as to company, duration of risk, amount of premium, and credit therefor.
Oral contract of insurance held'• not void for lack of express agreement as to company in which insurance was to be placed, duration of risk, amount of premium, and subject of credit to insured therefor.
9. Insurance <@=>I3I>(I) — Insurance' contract need not be in writing, unless required' by statute or other positive regulation.
Unless forbidden by statute or other positive regulation, it is not necessary to validity of contract to insure that it be in writing.
10. Insurance <@=>130(1) — Minds of parties must have in some way met relative to elements of insurance contract, in order that it constitute valid contract.
In order that contract to insure constitute a valid contract, it is necessary that minds of parties be shown to have in some way met in regard to elements of contract.
In Error • to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.
Action by the Licking Valley Milling Company against the ¿Etna Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings error.
Affirmed.
Joseph S. Laurent, of Louisville, Ky. (Robert G. Gordon, of Louisville, Ky., on the brief), for plaintiff in error.
Robert C. Simmons, of Covington, Ky. (Shelley D. Rouse and Wm. A. Price, both of Covington, Ky., and L. P. Fryer, of Butler, Ky., on the brief), for defendant in error.
Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
KNAPPEN, Circuit Judge.
This writ is to review a judgment for defendant in error (plaintiff below) upon an alleged policy of fire insurance on plaintiff’s mill, machinery, grain, etc., therein.
1. On the threshold we are met with the suggestion, in the brief of plaintiff in error on the merits, that the bill of exceptions be stricken from the record or disregarded because the assignment of errors was not filed “at or before the settling of the bill of exceptions,” as directed by the .first para- • graph of our rule 10, entitled “Bills of Exceptions.” We are disposed to treat the nonobservanee of this provision as not invalidating the bill of exceptions, for the reason, if for no other, that the bill seems to' have been settled without objection on that score, and was included by stipulation of counsel in the list of papers which “should constitute the entire record on writ of error.”
2. At the conclusion of trial by jury each party (without reservation) asked the court for direction of verdict in its favor upon all of the issues. The court was thus empowered to pass upon the facts necessary to decision, and this court is bound to accept the fact conclusions' of the trial court, so far as supported by any substantial testimony. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654; Williams v. Vreeland, 250 U. S. 295, 298, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038; Minaban v. Gd. Trunk Western Ry. Co. (C. C. A. 6) 138 F. 37, 41; ThomasBonner Co. v. Hooven, etc., Co. (C. C. A. 6) 284 F. at page 392. Judgment was entered for plaintiff for the amount of the loss.
3. Coming to the merits: Plaintiff was the owner of the mill in question, located at Boyd, Ky. .It desired $5,000. insurance on the mill building, etc., $5,000 on engine, boilers, machinery, etc., and $2,000 on grain and seeds and had agreed to place the insurance with one Bennett, an insurance agent at Boyd, who had no agency for defendant. Bennett made application for the insurance by telephone to one Stone, defendant’s agent at Cynthiana, who as defendant’s representative took applications for, wrote and countersigned policies (blanks for which were provided him with the signature of the president already stamped or printed on them). Thereupon Stone, on September 11, 1923, wrote in favor of plaintiff a uniform standard fire insurance policy for $12,000 upon the property in question, divided as applied for, for a term of six months next ensuing, on a stated premium therefor of $193.20, sending (in connection with his daily report) one copy to defendant and another to the actuarial bureau at Louisville. The fire occurred January 26, 1924.
Defendant denies that the policy written by Stone ever became operative. The premium was not in fact paid or tendered before the fire, but it was tendered by plaintiff and refused by defendant after the fire. Until that time the original policy had apparently remained in Stone’s possession. After the fire defendant furnished plaintiff blank proofs of loss, together with copy of the policy which Stone had written.
Defendant contends that, as matter of law, no valid written contract of insurance was made for lack of delivery and no valid oral contract for lack of agreement as to (a) the company in which the insurance was to be placed; (b) the duration of the risk; (e) the amount of the premium; and (d) the subject of credit to plaintiff for the premium.
Stone testified that he represented two companies besides defendant, that he had previously brokered one or two policies for and divided commissions with Bennett on insurance which the latter could not write in companies he represented; that he had at one time written $10,000 on the contents of the building in Hartford, but had never written any insurance upon the building; that in his conversation with Bennett the latter asked him if he could place $12,000 of insurance for plaintiff, $5,000 on building, $5,000 on machinery and $2,000 on contents; that he told Bennett that the latter knew that sort of insurance was extremely hard to place, but he would endeavor to place it for him, but for him (Bennett) not to regard it insured until he (Bennett) heard from him (Stone); that after this he had his business associate “issue” the policy, which he left in his office until he could get returns from the company as to whether the latter would accept, “as we frequently do with our customers on a hazardous risk”; that he thereupon made out his daily report, and that when defendant received copy of that report from the actuarial bureau it wired him “not to accept” the application; that he thereupon immediately called up Bennett and told him that defendant had declined the risk; and that that closed the incident. He further said that when he wrote the poliey he gent no communication to the actuarial < bureau or to defendant, other than his usual daily report; that he sent no letter of explanation.
On the other hand, plaintiff’s business manager, who had applied to Bennett for the insurance, testified that he was in the room when Bennett went to the telephone and called up some one, adding, “I couldn’t tell who it was, but he afterwards told me it was Stone;” that he heard Bennett “mention the $10,000 and the $2,000; this was all I heard in the conversation of Bennett;” that the name of the company was not mentioned (presumably this was the conversation to which Stone referred), and that “after the conversation over the ’phone he [Bennett] told me the insurance was in effect. I asked him about when this would go into effect, but I am not positive whether he said at noon, or the following day at noon, but it was one of the two. So I went off, assured that the insurance was on.” The manager further testified that Bennett did not notify Mm the insurance was af-terwards canceled, nor did he receive notice from any one that such cancellation had taken place; that two days after the fire he called on Stone and asked about the policy, and received the reply, “Well, you haven’t got any insurance,” saying further that “they had written the insurance, but that the policy was canceled in four days after he sent the policy,” that he (Stone) “had told Mr. Bennett to notify us and that he [Stone] had put our policy in the 2Etna Insurance Company.” Bennett did not testify. Defendant’s counsel complains that “the' district court brushed aside, as not worthy of any consideration, the testimony of Mr. Stone in this case,” and argues in favor of his credibility. Questions of credibility are not for our determination. The court was not bound to believe Stone’s statement that he had told Bennett that defendant had declined the risk. Stone does not say he told Bennett the policy had been canceled.
Plaintiff’s president testified that on the morning after the fire he asked Stone “if he wrote the insurance on the mill, and he said ■he did; he said he insured it and wrote the policy, but he said he got word immediately to cancel. I told him that he did not tell us anything about it; that we thought it was insured. He said he insured it and wrote the policy, but he said the company wired him to cancel it. I told him he did not notify us of any cancellation. So he said he didn’t know who the owners were.” Stone, in addition to disputing certain statements of plaintiff’s manager and president referred to, said he did not agree to deliver the policy, nor did he agree with any one that it was to become effective prior to the time he should hear from the company. Manifestly defendant’s alleged direction that the policy be canceled could not, without notice to plaintiff, destroy an immediate effect policy such as Stone had power to issue.
The trial judge did not believe Stone’s testimony that the policy was not issued to take present effeet, but was to take effect only if the company, after a lapse of a week or 10 days, failed to object. The judge held that, “notwithstanding Stone’s testimony to the contrary, the evidence preponderates in favor of the position that there was a previous valid oral contract of insurance pursuant to which the policy was issued,” and that “it is difficult, if not impossible, to account for Stone issuing the policy and reporting its issuance to the defendant and the actuarial bureau at Louisville, on the basis that there was not a previous oral contract of insurance entered into by the communication of Stone with plaintiff through Bennett. That he did so was inconsistent with the [asserted] fact that he had said to Bennett that he would endeavor to place the insurance and let him know if he succeeded, and that he should not regard the property as insured until he had heard from him definitely. The defendant and the actuarial bureau did not understand that no contract of insurance had been entered into. On the contrary, they were made to understand that there had.”
We think that, independently of the testimony as to Bennett’s statement following his telephone -conversation with Stone, there was substantial evidence tending to support the above-stated conclusion of the trial judge. The weight of the testimony is not for our consideration. Kentucky Coal Lands Co. v. Mineral Development Co. (C. C. A. 6) 295 F. 257.
The testimony as to Bennett’s statement above mentioned was received against defendant’s objection and exception. It would seem enough to say that the ground of the objection does not appear in the record (Pennsylvania Co. v. Whitney [C. C. A. 6] 169 F. 572, 575; Robinson v. Van Hooser [C. C. A. 6] 196 F. 620, 624), and that thus no error could be predicated upon the overruling of the objection.
However, we are disposed to think that the statement whs admissible as part of the res gesta, for we interpret the manager’s testimony as a whole as meaning that Bennett’s statement was made at the'close of the telephone conversation.
Defendant contends that a res gestee statement made by a person who is not a party to a suit (Bennett represented plaintiff) “is allowable only when it is made on an exciting occasion while the speaker is influenced by external circumstances of physical shock or stress of nervous excitement which stills the reflective faculties and removes their control.”
We cannot assent to this proposition, which is opposed to numerous decisions, among which are Tuekerman v. United States (C. C. A. 6) 291 F. 958, 970 (where the person whose statement was admitted was neither a party nor the representative of a party to the suit), certiorari denied 263 U. S. 716, 44 S. Ct. 137, 68 L. Ed. 522; Richmond v. Foreman (C. C. A. 4) 267 F. 363, 365 (where the statements in question were of a representative of the party); In re Bradley (D. C.) 263 F. at page 447, affirmed (C. C. A. 2) 269 F. 784; Baron v. United States (C. C. A. 6) 286 F. 822, 826, certiorari denied 262 U. S. 749, 43 S. Ct. 524, 67 L. Ed. 1213. The above comment on the Tucker-man Case is substantially applicable. Chicago, M. & St. P. Ry. Co. v. Chamberlain (C. C. A. 9) 253 F. 429, 430 (where the statement in question was made by plaintiff before the accident, and in the absence of shock,. stress, or excitement, and was described by the court as being “in immediate causal relation to the act — a relation not broken by the interposition of a voluntary individual wariness seeking to manufacture evidence for itself”; St. Clair v. United States, 154 U. S. 134, 149, 14 S. Ct. 1002, 38 L. Ed. 936, where the court cites with approval the definition of res geste found in 1 Wharton on Evidence (2d Ed.) § 259, 1879.
The judgment must therefore be affirmed, unless defendant is right in its contention that the oral contract of insurance was void for lack of agreement as to the company in which the insurance was to be placed, the duration of the risk, the amount of the premium, and the subject of credit to plaintiff therefor. We are unable to agree with this broad contention.
Unless forbidden by statute or other positive regulation, it is not necessary to tbe validity of a contract to insure that it be in writing. Hartford Fire Ins. Co. v. Tatum (C. C. A.) 5 F.(2d) 169, 171; Fireman’s Fund Ins. Co. v. Norwood (C. C. A. 8) 69 F. 71, 75, and cases cited; Lee v. Lewelling (C. C. A. 8) 281 F. at page 960. While the broad general rule is that a contract to insure is invalid, unless its elements are agreed upon expressly or by implication, or means are provided for their determination, the controlling authorities do not imperatively require express proof of definite agreement thereon. The better rule is that the minds of the parties must be shown to have in some way met in regard to those subjects. Eames v. Home Insurance Co., 94 U. S. 621, 626, 629, 24 L. Ed. 298, 630. In that ease lack of agreement as to duration- of risk was disregarded, upon the testimony of the insured that he supposed (as he had a right to suppose) that he would get the same kind of a policy which had been issued on the property before. In that ease (the application was in writing) the property was fully described (as here), the amount of the insurance was named (as here), and the insured proposed a certain premium, the agent requiring a higher rate. The court thought the insured later agreed to modification in this respeet. He had not paid the premium, nor had the duration of the risk been mentioned (the printed application did not call for it). In sustaining the validity of the contract to insure the court said (page 629): “It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid, if demanded In that case' the insured had had a previous policy for one year. Upon the subject of the premium it was said: “He had not paid the premium, it is true; but it is shown that this was not required until the policy was made out and delivered. * * * If parties’ could not be made secure until all the formal documents were executed and delivered * * * the beneficial effect of this benign contract of insurance would often be defeated and rendered unavailable.”
In Hartford Fire Insurance Co. v. Tatum, supra, it was held that the duration and amount of premium payable under a parol contract of insurance were sufficiently established where it was obvious that the parties intended the contract should be the same as a prior builder’s risk insurance contract between the same parties and at the same rate; also that in an action on a parol insurance policy evidence that the defendant’s local agent customarily kept 90 per cent, of the policies written by him in his safe was held admissible upon plaintiff’s failure to call for and insist upon possession of the policy. These cases illustrate the liberal tendency of the courts in sustaining oral contracts for insurance.
Upon the subject of delivery, in El Dia Insurance Co. v. Sinclair (C. C. A. 2) 228 F. 833, 838, it is said: “If there is a binding contract of insurance, the fact that the policy is not delivered until after the loss has occurred does not defeat the insured’s right to a recovery under it. Mich. Pipe Co. v. Mich. F. & M. Insurance Co., 92 Mich. 482, 52 N. W. 1070, 20 L. R. A. 277 ; Commercial Insurance Co. v. Hallock, 27 N. J. Law, 645, 72 Am Dec. 379. Indeed, the courts have held that a policy drawn up and signed by the proper officers wants no further delivery. It is a valid policy as soon as signed, and becomes then the property of the insured, and is held by the insurer for his use.” Certiorari denied, 241 U. S. 661, 36 S. Ct. 449, 60 L. Ed. 1226; and see Donnelly v. Ætna Life Insurance Co., 222 Mich. 214, 219, 221, 192 N. W. 585.
In the instant ease the trial judge said: “I think, in the matter of the duration of the risk and the premium, that it must be •taken that it was the understanding that defendant was to fix them, which it did by the policy of insurance which it issued.” As to the failure to name the company issuing the policy, the court said: “Then as to the defendant not being named, and plaintiff not knowing that it was the party which had insured his property until after the fire, I think it must be taken that the oral contract of insurance was made by Stone on behalf of defendant, and it was liable thereon on the doctrine of undisclosed principal. Tf not liable on this ground, its liability may be based on the ground set forth in Mich. Pipe Co. v. Mich. F. & M. Insurance Co., 92 Mich. 482 [52 N. W. 1070, 20 L. R. A. 277].”
The District Judge was of opinion that the Kentucky statute did not make Bennett defendant’s agent. He found it unnecessary (as we do) to determine whether Stone constituted Bennett a subagent to advise plaintiff of defendant’s aetion regarding the policy, for the reason that it seemed to him that the evidence preponderates in favor of the position that there was' a previous oral valid contract of insurance.
As to the failure to pay premium and collect for the policy, the court said: “There was testimony tending to show a more or less general custom to give credit for the premium;” also “as to its not calling for the policy itself, the custom in that neighborhood seems to have been for the agent to hold the policy. Its failure to call for the amount of the premium and to pay it may be accounted for by negligence, but more likely by the desire to get all the credit possible.”
In our opinion the court below reached the correct conclusion, and its judgment for recovery upon the policy must be affirmed.
As the trial judge said: “The effect of this testimony was that defendant had entered into a contract of insurance with plaintiff, but had subsequently canceled it.”
In view of Stone’s office records, this statement, if made, could not well have been, justified.
The “res geste may be, therefore, defined as those circumstances which are the unde-signed incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may compromise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of a litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced hy the calculating policy of the actors. In other words, they must stand in immediate casual [causal] relation to the act — a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.” This definition is in substance the opening paragraph of the definition of res gestas in Words and Phrases.
All italics in this opinion ours.
In Mich. Pipe Co. v. Mich. F. & M. Insurance Co., supra, at page 498 (52 N. W. 1074), it is said: “The name of the company, the location and amount of the risk, in each ease, had been committed to Schmeck [the local insurance agent]. The rate of premium not having been paid or fixed by the parties, plaintiff became liable to pay the usual or ‘going rate. The policies contained no provision that they should not become operative until the premiums were paid [such is the ease here]. Schmeck had written other policies for the same parties, and had afterwards, in the usual course, collected his premiums, and no demand was made for the premiums at the time that the insurance was applied for. In determining such matters, consideration must be had for the manner in which the business has been usually carried on. To lay down the rule that in all cases the premiums must expressly be agreed upon and paid, or credit expressly given, would be contrary to the general understanding among business men, and contrary to prevailing methods.”
True, the rate inserted in the policy by Stone was not the published rate, but it apparently was not corrected by the bureau. It would seem a not unnatural or illogical inference that the six-months period as to the duration of the insurance was inserted as the usual period for nonpreferred risks.
In that case the insurance agent represented “several companies. He was directed to place a given amount of insurance. It was not expected that he would place the entire risk in any one company. It was perhaps known that no one company would assume the whole amount of insurance. The companies were not mentioned.” It was held that no liability attached to any of the companies until something further was done, but that in the selection of the companies, and in the location and distribution of the risk, Schmeck [the local agent] acted as agent for the plaintiff.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_threejudgefdc
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
DIXON v. DUFFY, WARDEN.
No. 4.
Argued October 16, 1951.
Continued November 5, 1951.
Further continued May 12, 1952.
Decided December 8, 1952.
Franklin C. Stark, acting under appointment by the Court, argued the cause and filed a brief for petitioner.
Clarence A. Linn, Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, and Howard S. Goldin, Deputy Attorney General.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
This case originated on October 21, 1950, when petitioner, a prisoner in San Quentin, filed an application for a writ of habeas corpus in the Supreme Court of California. That court, summarily, but with two dissents, denied the application. To review this decision, petitioner applied to this Court for certiorari. The Court granted the petition, 341 U. S. 938, and thereafter appointed counsel to represent the petitioner. 342 U. S. 805.
The Attorney General of California appeared for respondent. At the bar of this Court, he argued that the judgment of the Supreme Court of California rested on an adequate nonfederal ground. Admitting that habeas corpus is ordinarily an available means to California prisoners to challenge the constitutionality of the proceedings which resulted in their incarceration, the Attorney General told us that the writ was unavailable in this particular case, to this particular petitioner because he could have and should have presented his federal claim in an appeal from his original conviction. Counsel for petitioner vigorously opposed this contention, insisting that habeas corpus was an available remedy under California law, that the federal question was properly before the court.
This Court, of course, does not sit to determine matters of state law; nor is it the appropriate forum to resolve the argument raised by the earnest objections of the Attorney General of California.
Accordingly, we followed our precedents. We continued the cause “for such period” as would “enable counsel for petitioner to secure a determination from the Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.” 342 U. S. 33, 34. (Emphasis supplied.)
Counsel for petitioner, in December 1951, duly filed in the Supreme Court of California a “Petition for Determination of Basis of Judgment” which requested an expression by that court on the issue raised by our order. Subsequently, the Clerk of this Court received a letter from the Clerk of the Supreme Court of California relative to this question. But we received no official determination of the issue from the Supreme Court of California.
We could not regard the letter from the Clerk of the Supreme Court of California as a “sufficient ‘determination’ of the question raised in our order of November 5, 1951.” Therefore, on May 12, 1952, we “further continued” the cause on our docket to enable counsel for petitioner to secure from the Supreme Court of California its official determination as requested by our earlier order. 343 U. S. 393.
Though some months have now elapsed, we still have received no advice from the Supreme Court of California. We are informed, however, that the California court advised petitioner’s counsel informally that it doubted its jurisdiction to render such a determination. And, although counsel subsequently submitted briefs to the contrary, the California court again informed counsel, through its Clerk, that it was powerless, for want of jurisdiction, to issue any further official expression on the case. It appears, then, that so long as this cause continues on our docket, counsel cannot procure that which we asked him to procure.
We granted certiorari in this case “because of a serious claim that petitioner had been deprived of his rights under the Federal Constitution.” 342 U. S. 33. This Court, alone, is the final arbiter of such a claim, and our grant of certiorari should entitle petitioner to the chance to have the matter resolved by this Court — provided that the state judgment was not based on an adequate state ground. If the state judgment was based on an adequate state ground, the Court, of course, would be without jurisdiction to pass upon the federal question. Doubt has since arisen that such, jurisdiction exists. These circumstances should not now act to deprive petitioner of his day in this Court, but they do require that we take scrupulous care, as we have so often done before, to determine our jurisdiction. This involves further delay, and in this case further delay is regrettable. But delay is necessary unless we are to resolve the jurisdictional issue by simply assuming the nonexistence of an adequate state ground though in fact one may exist.
To the end that the doubt in this case may be resolved, we vacate the judgment of the Supreme Court of California and remand the cause for further proceedings. A new judgment may be entered, and petitioner also may be informed by an official determination from the Supreme Court of California whether or not that judgment rests on an adequate state ground.
So ordered.
Loftus v. Illinois, 334 U. S. 804 (1948); Herb v. Pitcairn, 324 U. S. 117 (1945).
See Neilson v. Lagow, 12 How. 98, 109-110 (1852).
See, e. g., Jennings v. Illinois, 342 U. S. 104 (1951); Loftus v. Illinois, supra; Herb v. Pitcairn, supra. Minnesota v. National Tea Co., 309 U. S. 551 (1940); Honeyman v. Hanan, 300 U. S. 14 (1937).
Cf. Jennings v. Illinois, supra; Minnesota v. National Tea Co., supra; Honeyman v. Hanan, supra.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
SELECTIVE SERVICE SYSTEM et al. v. MINNESOTA PUBLIC INTEREST RESEARCH GROUP et al.
No. 83-276.
Argued April 23, 1984
Decided July 5, 1984
Burger, C. J., delivered the opinion of the Court, in which White, Rehnquist, Stevens, and O’Connor, JJ., joined, and in Parts I, II-B, III, and IV of which Powell, J., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 859. Brennan, J., post, p. 862, and Marshall, J., post, p. 862, filed dissenting opinions. Blackmun, J., took no part in the decision of the case.
Solicitor General Lee argued the cause for appellants. With him on the briefs were Acting Assistant Attorney General Willard, Deputy Solicitor General Bator, John H. Garvey, and Neil H. Koslowe.
William J. Keppel argued the cause for appellees. With him on the brief was E. Gail Suchman
Peter B. Ellis filed a brief for the Trustees of Boston University as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for Swarthmore College et al. by Thomas P. Preston and Robert D. Williams; and for the University of Minnesota et al. by Stephen S. Dunham, William P. Donohue, Roderick K. Daane, Patricia Eames, and James D. Miller.
Chief Justice Burger
delivered the opinion of the Court.
We noted probable jurisdiction to decide (a) whether § 12(f) of the Military Selective Service Act, 96 Stat. 748, 50 U. S. C. App. § 462(f), which denies federal financial assistance under Title IV of the Higher Education Act of 1965 to male students who fail to register for the draft under the Act, is a bill of attainder; and (b) whether § 12(f) compels those students who elect to request federal aid to incriminate themselves in violation of the Fifth Amendment.
I
Section 3 of the Military Selective Service Act, 62 Stat. 605, as amended, 50 U. S. C. App. §453, empowers the President to require every male citizen and male resident alien between the ages of 18 and 26 to register for the draft. Sections 12(b) and (c) of that Act impose criminal penalties for failure to register. On July 2, 1980, President Carter issued a Proclamation requiring young men to register within 30 days of their 18th birthday. Presidential Proclamation No. 4771, 3 CFR 82 (1981).
Appellee students (hereafter appellees) are anonymous individuals who were required to register before September 1,1982. On September 8, Congress enacted the Department of Defense Authorization Act of 1983, Pub. L. 97-252, 96 Stat. 718. Section 1113(a) of that Act added § 12(f) to the Military Selective Service Act. Section 12(f)(1) provides that any person who is required to register and fails to do so “in accordance with any proclamation” issued under the Military Selective Service Act “shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965.” Section 12(f)(2) requires applicants for Title IV assistance to file with their institutions of higher education a statement attesting to their compliance with the draft registration law and regulations issued under it. Sections 12(f)(3) and (4) require the Secretary of Education, in agreement with the Director of Selective Service, to prescribe methods for verifying such statements of compliance and to issue implementing regulations.
Regulations issued in final form on April 11, 1983, see 48 Fed. Reg. 15578, provide that no applicant may receive Title IV aid unless he files a statement of compliance certifying that he is registered with the Selective Service or that, for a specified reason, he is not required to register. 34 CFR § 668.24(a) (1983). The regulations allow a student who has not previously registered, although required to do so, to establish eligibility for Title IV aid by registering, filing a statement of registration compliance, and, if required, verifying that he is registered. § 668.27(b)(1). The statement of compliance does not require the applicant to state the date that he registered.
In November 1982 the Minnesota Public Interest Research Group filed a complaint in the United States District Court for the District of Minnesota seeking to enjoin the operation of § 12(f). The District Court dismissed the Minnesota Group for lack of standing but allowed three anonymous students to intervene as plaintiffs. 557 F. Supp. 923 (1983); 557 F. Supp. 925 (1983). The intervenors alleged that they reside in Minnesota, that they need financial aid to pursue their educations, that they intend to apply for Title IV assistance, and that they are legally required to register with the Selective Service but have failed to do so. This suit was informally consolidated with a separate action brought by three other anonymous students making essentially the same allegations as the intervenors.
In March 1983 the District Court granted a preliminary injunction restraining the Selective Service System from enforcing § 12(f). After finding that appellees had demonstrated a threat of irreparable injury, the court held that appellees were likely to succeed on the merits. First, the District Court thought it likely that § 12(f) was a bill of attainder. The court interpreted the statutory bar to student aid as applicable to students who registered late. Thus interpreted, the statute “clearly singles out an ascertainable group based on past conduct” and “legislatively determines the guilt of this ascertainable group.” Doe v. Selective Service System, 557 F. Supp. 937, 942, 943 (1983). The court viewed the denial of aid as punishment within the meaning of the Bill of Attainder Clause because it “deprives students of the practical means to achieve the education necessary to pursue many vocations in our society.” Id., at 944. Second, the District Court found it likely that § 12(f) violated appel-lees’ Fifth Amendment privilege against compelled self-incrimination. In the District Court’s view, the statement of compliance required by § 12(f)(2) compels students who have not registered for the draft and need financial aid to confess to the fact of nonregistration, which is a crime. 50 U. S. C. App. § 462(a).
On June 16, 1983, the District Court entered a permanent, nationwide injunction against the enforcement of § 12(f). The court held that the regulations making late registrants eligible for aid were inconsistent with the statute and concluded that the statute was an unconstitutional attainder. It also held the statute to violate appellees’ constitutional privilege against compelled self-incrimination.
On June 29, we stayed the District Court’s June 16 order pending the timely docketing and final disposition of this appeal. Selective Service System v. Doe, 463 U. S. 1215. We noted probable jurisdiction on December 5, 1983, 464 U. S. 1006, and we reverse.
II
The District Court held that § 12(f) falls within the category of congressional actions that Art. I, § 9, cl. 3, of the Constitution bars by providing that “[n]o Bill of Attainder . . . shall be passed.” A bill of attainder was most recently described by this Court as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of General Services, 433 U. S. 425, 468 (1977); see United States v. O’Brien, 391 U. S. 367, 383, n. 30 (1968); United States v. Lovett, 328 U. S. 303, 315 (1946). Appellants argue that § 12(f) does not satisfy any of these three requirements, i. e., specification of the affected persons, punishment, and lack of a judicial trial.
A
In forbidding bills of attainder, the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial “specifically designated persons or groups.” United States v. Brown, 381 U. S. 437, 447 (1965). Historically, bills of attainder generally named the persons to be punished. However, “[t]he singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons.” Communist Party of United States v. Subversive Activities Control Board, 367 U. S. 1, 86 (1961). When past activity serves as “a point of reference for the ascertainment of particular persons ineluctably designated by the legislature” for punishment, id., at 87, the Act may be an attainder. See Cummings v. Missouri, 4 Wall. 277, 324 (1867).
In Cummings the Court struck down a provision of the Missouri post-Civil War Reconstruction Constitution that barred persons from various professions unless they stated under oath that they had not given aid or comfort to persons engaged in armed hostility to the United States and had never “‘been a member of, or connected with, any order, society, or organization, inimical to the government of the United States.’” Id., at 279. The Court recognized that the oath was required, not “as a means of ascertaining whether parties were qualified” for their professions, id., at 320, but rather to effect a punishment for having associated with the Confederacy. Although the State Constitution did not mention the persons or groups required to take the oath by name, the Court concluded that in creating a qualification having no possible relation to their fitness for their chosen professions, the Constitution was intended “to reach the person, not the calling.” Ibid.
On the same day that it decided Cummings, the Court struck down a similar oath that was required for admission to practice law in the federal courts. Ex parte Garland, 4 Wall. 333 (1867). Like the oath considered in Cummings, the oath “operate[d] as a legislative decree of perpetual exclusion” from the practice of law, id., at 377, since past affiliation with the Confederacy prevented attorneys from taking the oath without perjuring themselves. See Cummings v. Missouri, supra, at 327. In both Cummings and Garland, the persons in the group disqualified were defined entirely by irreversible acts committed by them.
The District Court in this case viewed § 12(f) as comparable to the provisions of the Reconstruction laws declared unconstitutional in Cummings and Garland, because it thought the statute singled out nonregistrants and made them ineligible for aid based on their past conduct, i. e., failure to register. To understand the District Court’s analysis, it is necessary to turn to its construction of the statute. The court noted that § 12(f) disqualifies applicants for financial assistance unless they have registered “in accordance with any proclamation issued under [§3 of the Military Selective Service Act],” and that Proclamation No. 4771 requires those born after January 1, 1963, to register within 30 days of their 18th birthday. See 3 CFR 82 (1981). In the court’s view, the language of § 12(f), coupled with the Proclamation’s 30-day registration requirement, precluded late registrants from qualifying for Title IV aid. Having construed § 12(f) as precluding late registration, the District Court read the statute to be retrospective, in that it denies financial assistance to an identifiable group — nonregistrants—based on their past conduct. The District Court acknowledged that implementing regulations would allow students who had not previously registered to become eligible for Title IV benefits by registering, see 34 CFR § 668.27(b)(1) (1983), but the court declared those regulations to be void because they conflicted with what the District Court viewed as § 12(f )’s requirement of registration within the time prescribed by Proclamation No. 4771.
We reject the District Court’s view that § 12(f) requires registration within the time fixed by Proclamation No. 4771. That view is plainly inconsistent with the structure of § 12(f) and with the legislative history. Subsection (f)(4) of the statute requires the Secretary of Education to issue regulations providing that “any person” to whom the Secretary proposes to deny Title IV assistance shall be given notice of the proposed denial and “not less than thirty days” after such notice to “establis[h] that he has complied with the registration requirement.” 50 U. S. C. App. § 462(f)(4). The statute clearly gives nonregistrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid. See 34 CFR § 668.27(b)(1) (1983). To require registration within the time fixed by the Presidential Proclamation would undermine this provision allowing “any person” 30 days after notification to establish compliance with the registration requirement. This was clearly a grace period.
The District Court also ignored the relevant legislative history. Congress’ purpose in enacting § 12(f) was to encourage registration by those who must register, but have not yet done so. Proponents of the legislation emphasized that those failing to register timely can qualify for aid by registering late. The District Court failed to take account of this legislative purpose. See Heckler v. Edwards, 465 U. S. 870 (1984). Nor did its construction of § 12(f) give adequate deference to the views of the Secretary of Education, who had helped to draft the statute. Miller v. Youakim, 440 U. S. 125, 144 (1979); see 128 Cong. Rec. 18363 (1982) (remarks of Rep. Solomon).
The judicial function is “not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations,” CSC v. Letter Carriers, 413 U. S. 548, 571 (1973). Section 12(f) does not make late registrants ineligible for Title IV aid.
Because it allows late registration, § 12(f) is clearly distinguishable from the provisions struck down in Cummings and Garland. Cummings and Garland dealt with absolute barriers to entry into certain professions for those who could not file the required loyalty oaths; no one who had served the Confederacy could possible comply, for his status was irreversible. By contrast, § 12(f)’s requirements, far from irreversible, can be met readily by either timely or late filing. “Far from attaching to . . . past and ineradicable actions,” ineligibility for Title IV benefits “is made to turn upon continuingly contemporaneous fact” which a student who wants public assistance can correct. Communist Party of United States v. Subversive Activities Control Board, 367 U. S., at 87.
B
Even if the specificity element were deemed satisfied by § 12(f), the statute would not necessarily implicate the Bill of Attainder Clause. The proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group. In determining whether a statute inflicts punishment within the proscription against bills of attainder, our holdings recognize that the severity of a sanction is not determinative of its character as punishment. Flemming v. Nestor, 363 U. S. 603, 616, and n. 9 (1960). That burdens are placed on citizens by federal authority does not make those burdens punishment. Nixon v. Administrator of General Services, 433 U. S., at 470; United States v. Lovett, 328 U. S., at 324 (Frankfurter, J., concurring). Conversely, legislative intent to encourage compliance with the law does not establish that a statute is merely the legitimate regulation of conduct. Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct. United States v. Brown, 381 U. S., at 458-459. It is thus apparent that, though the governing criteria for an attainder may be readily indicated, “each case has turned on its own highly particularized context.” Flemming v. Nestor, supra, at 616.
In deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.” Nixon, supra, at 473, 475-476, 478. We conclude that under these criteria § 12(f) is not a punitive bill of attainder.
1
At common law, bills of attainder often imposed the death penalty; lesser punishments were imposed by bills of pains and penalties. The Constitution proscribes these lesser penalties as well as those imposing death. Cummings v. Missouri, 4 Wall., at 323. Historically used in England in times of rebellion or “violent political excitements,” ibid., bills of pains and penalties commonly imposed imprisonment, banishment, and the punitive confiscation of property. Nixon, supra, at 474. In our own country, the list of punishments forbidden by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific employments or professions.
Section 12(f) imposes none of the burdens historically associated with punishment. As this Court held in Flemming v. Nestor, supra, at 617, “the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed,” and Congress has inflicted “nothing approaching the ‘infamous punishment’ of imprisonment” or other disabilities historically associated with punishment.
Congress did not even deprive appellees of Title IV benefits permanently; appellees can become eligible for Title IV aid at any time simply by registering late and thus “carry the keys of their prison in their own pockets.” Shillitani v. United States, 384 U. S. 364, 368 (1966). A statute that leaves open perpetually the possibility of qualifying for aid does not fall within the historical meaning of forbidden legislative punishment.
2
Our inquiry does not end with a determination that § 12(f) does not inflict punishment in its historical sense. To ensure that the Legislature has not created an impermissible penalty not previously held to be within the proscription against bills of attainder, we must determine whether the challenged statute can be reasonably said to further nonpunitive goals. Nixon, 433 U. S., at 475-476.
The legislative history reflects that § 12(f) represents the considered congressional decision to further nonpunitive legislative goals. Congress was well aware that more than half a million young men had failed to comply with the registration requirement. The legislators emphasized that one of the primary purposes of § 12(f) was to encourage those required to register to do so.
Conditioning receipt of Title IV aid on registration is plainly a rational means to improve compliance with the registration requirement. Since the group of young men who must register for the draft overlaps in large part with the group of students who are eligible for Title IV aid, Congress reasonably concluded that § 12(f) would be a strong tonic to many nonregistrants.
Section 12(f) also furthers a fair allocation of scarce federal resources by limiting Title IV aid to those who are willing to meet their responsibilities to the United States by registering with the Selective Service when required to do so. As one Senator stated:
“This amendment seeks not only to increase compliance with the registration requirement but also to insure the most fair and just usage of Federal education benefits. During these times of extreme budgetary constraints, times when even the most worthwhile programs are cut back drastically, this Government has every obligation to see that Federal dollars are spent in the most fair and prudent manner possible. ... If students want to further their education at the expense of their country, they cannot expect these benefits to be provided without accepting their fair share of the responsibilities to that Government.”
Certain aspects of the legislation belie the view that § 12(f) is a punitive measure. Section 12(f) denies Title IV benefits to innocent as well as willful nonregistrants. Yet punitive legislation ordinarily does not reach those whose failure to comply with the law is not willful. Thus, in stressing that the legislation would reach unintentional violators, 128 Cong. Rec. 18355-18356 (1982) (remarks of Rep. Solomon); id., at 18357 (remarks of Rep. Simon); id., at 9666 (remarks of Sen. Stennis), proponents indicated that they intended to regulate all nonregistrants, rather than to single out intentional nonregistrants for punishment. In this same nonpunitive spirit, Congress also allowed all nonregistrants to qualify for Title IV aid simply by registering late, instead of choosing to punish willful nonregistrants by denying them benefits even if they registered belatedly.
We see therefore that the legislative history provides convincing support for the view that, in enacting § 12(f) Congress sought, not to punish anyone, but to promote compliance with the draft registration requirement and fairness in the allocation of scarce federal resources. Section 12(f) clearly furthers nonpunitive legislative goals.
C
Because § 12(f) does not single out an identifiable group that would be ineligible for Title IV aid or inflict punishment within the meaning of Bill of Attainder Clause, we hold that the District Court erred in striking down § 12(f) as an impermissible attainder.
Ill
Appellees assert that § 12(f) violates the Fifth Amendment by compelling nonregistrants to acknowledge that they have failed to register timely when confronted with certifying to their schools that they have complied with the registration law. Pointing to the fact that the willful failure to register within the time fixed by Proclamation No. 4771 is a criminal offense punishable under §§ 12(a) and (b), they contend that § 12(f) requires them — since in fact they have not registered — to confess to a criminal act and that this is “compulsion” in violation of their Fifth Amendment rights.
However, a person who has not registered clearly is under no compulsion to seek financial aid; if he has not registered, he is simply ineligible for aid. Since a nonregistrant is bound to know that his application for federal aid would be denied, he is in no sense under any “compulsion” to seek that aid. He has no reason to make any statement to anyone as to whether or not he has registered.
If appellees decide to register late, they could, of course, obtain Title IV aid without providing any information to their school that would incriminate them, since the statement to the school by the applicant is simply that he is in compliance with the registration law; it does not require him to disclose whether he was a timely or a late registrant. See n. 2, supra. A late registrant is therefore not required to disclose any incriminating information in order to become eligible for aid.
Although an applicant who registers late need not disclose that fact in his application for financial aid, appellants concede that a late registrant must disclose that his action is untimely when he makes a late registration with the Selective Service; the draft registration card must be dated and contain the registrant’s date of birth. 32 CFR § 1615.4 (1983). This raises the question whether § 12(f) violates appellees’ Fifth Amendment rights because they must register late in order to get aid and thus reveal to the Selective Service the failure to comply timely with the registration law. Appel-lees contend that, under our holding in Lefkowitz v. Turley, 414 U. S. 70, 83-84 (1973), the very risk that they will be ineligible for financial aid constitutes “compulsion” within the meaning of the Fifth Amendment.
In Turley we held that “the plaintiffs’ [architects’] disqualification from public contracting for five years as a penalty for asserting a constitutional privilege is violative of their Fifth Amendment rights.” Id., at 83. However, nonregistrants such as appellees are not in the same position as potential public contractors in Turley. An 18-year-old male who refuses to register is, of course, subject to prosecution for failure to register, but he is not compelled by law to acknowledge his failure to comply. Only when he registers — including a late registration — will he be asked to state his date of birth and thus acknowledge that he did not timely register.
None of these appellees has registered and thus none of them has been confronted with a need to assert a Fifth Amendment privilege when asked to disclose his date of birth. Unlike the architects in Turley, these appellees have not been denied the opportunity to register and in no sense have they been disqualified for financial aid “for asserting a constitutional privilege.” Ibid.
It is well settled that, “in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself,” Minnesota v. Murphy, 465 U. S. 420, 427 (1984); “[ajnswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying,” Gardner v. Broderick, 392 U. S. 273, 276 (1968). However, these appellees, not having sought to register, have had no occasion to assert their Fifth Amendment privilege when asked to state their dates of birth; the Government has net refused any request for immunity for their answers or otherwise threatened them with penalties for invoking the privilege as in Turley. Under these circumstances, § 12(f) does not violate their Fifth Amendment rights by forcing them to acknowledge during the registration process they have avoided that they have registered late.
> I — I
We conclude that § 12(f) does not violate the proscription against bills of attainder. Nor have appellees raised a cognizable claim under the Fifth Amendment.
The judgment of the District Court is
Reversed.
Justice Blackmun took no part in the decision of this case.
Title IV of the Higher Education Act of 1965, 20 U. S. C. § 1070 et seq., provides financial assistance to qualified students in postsecondary educational programs. Title IV aid is available at both colleges and universities, as well as at numerous kinds of business, trade, and technical schools. §§ 1085(b), (c), 1088.
The regulations include a model statement of registration compliance that the Secretary of Education has indicated satisfies the requirements of 34 CFR § 668.24(a) (1983):
“STATEMENT OF EDUCATIONAL PURPOSE/ REGISTRATION COMPLIANCE
“_I certify that I am not required to be registered with Selective Service, because:'
“_I am female.
“_I am in the armed services on active duty (Note: Members of the Reserves and National Guard are not considered on active duty.)
“_I have not reached my 18th birthday.
“_I was born before 1960.
“_I am a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands.
“_I certify that I am registered with Selective Service.
“Signature:_
“Date:_
“NOTICE: You will not receive title IV financial aid unless you complete this statement and, if required, give proof to your school of your registration compliance. . . .” 34 CFR § 668.25 (1983).
We agree with appellants that the statute does not single out an identifiable group and that the denial of Title IV aid does not constitute punishment. Appellants also argue that § 12(f) does not dispense with a judicial trial, noting that a hearing is provided in the event of disagreement between the applicant and the Secretary about whether the applicant has registered, § 12(f)(4), and that the decision made at that hearing is subject to judicial review. Appellants’ argument is meritless. Congress has not provided a judicial trial to those affected by the statute.
128 Cong. Rec. 18356 (1982) (remarks of Rep. Whitehurst); ibid. (remarks of Rep. Solomon); id., at 18369 (remarks of Rep. Stratton); id., at 9664 (remarks of Sen. Hayakawa); id., at 9666 (remarks of Sen. Jepsen).
Id., at 18356 (remarks of Rep. Whitehurst); id., at 18357 (remarks of Rep. Simon); id., at 18368 (remarks of Rep. Montgomery); id., at 18369 (remarks of Rep. Stratton). As Senator Stennis stated:
“I thought of the proposition here where some youngster might have overlooked signing up or might have misunderstood it or had not been correctly informed, but he is not going to be penalized for that because he still has complete control of the situation. All he will have to do is just to comply with the law, and that will automatically make him eligible so far as this prohibition or restriction is concerned.” Id., at 9666.
As the Solicitor General points out, one construction of the statute that avoids a constitutional problem is to make aid contingent on registration in the manner, but not the time, required by any proclamation. See Presidential Proclamation No. 4771, 3 CFR 84 (1981) (“Persons who are required to be registered shall comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service”).
All of the appellees in this case had failed to comply with the registration requirements when § 12(f) was enacted. As to 18-year-olds who have entered the class of nonregistrants after August 9, 1982 — 30 days before the enactment of § 12(f) — the statute is clearly prospective; ineligibility for financial aid is merely a deprivation in addition to potential criminal liability for the failure to register for the draft.
“The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.” 328 U. S., at 324.
See, e. g., United States v. Brown, 381 U. S. 437 (1965), in which Communist Party members were barred from offices in labor unions; United States v. Lovett, 328 U. S. 303 (1946), in which the law in question cut off salaries to three named Government employees; Cummings v. Missouri, 4 Wall. 277 (1867), in which a priest was disqualified from practicing as a clergyman; and Ex parte Garland, 4 Wall. 333 (1867), in which lawyers were barred from the practice of law.
Appellees argue that the underpinnings of Flemming have been removed by Goldberg v. Kelly, 397 U. S. 254, 262 (1970), and Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Goldberg held only that public assistance “benefits are a matter of statutory entitlement for persons qualified to receive them,” 397 U. S., at 262, and that due process affords qualified recipients a pretermination evidentiary hearing to guard against erroneous termination. The Court stressed that “the crucial factor in this context ... is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” Id., at 264 (emphasis in original). Mathews reached the same conclusion with respect to disability benefits. Even Flemming noted that the interest of a covered employee under the Social Security Act “fall[s] within the protection from arbitrary governmental action afforded by the Due Process Clause,” 363 U. S., at 611, while holding that Congress’ disqualification of certain deportees from receipt of Social Security benefits was not an attainder, id., at 617.
See, e. g., 128 Cong. Rec. 18356 (1982) (remarks of Rep. Solomon); id., at 9666 (remarks of Sen. Jepsen).
See id., at 18356 (remarks of Rep. Solomon); id., at 18369 (remarks of Rep. Stratton); id., at 9664 (remarks of Sen. Hayakawa); id., at 9666 (remarks of Sen. Stennis); ibid, (remarks of Sen. Jepsen).
The Military Selective Service Act, 50 U. S. C. App. §453, requires certain males between the ages of 18 and 26 to register. Those who fail to register, though required to do so, are a significant part of the class to which Title IV assistance is otherwise offered. Title IV aid is available for a broad range of postsecondary educational programs at colleges, universities, and vocational schools. 20 U. S. C. § 1085(a); see n. 1, supra.
128 Cong. Rec. 9664-9665 (1982) (remarks of Sen. Hayakawa); see also id., at 9664 (remarks of Sen. Mattingly); id., at 18356 (remarks of Rep. Montgomery).
Applying the third part of the Nixon test, the District Court concluded that § 12(f) is a punitive measure. But the District Court relied in part on the statements of legislators who opposed the statute because they thought the statute punished nonregistrants. 128 Cong. Rec. 18358-18359 (1982) (remarks of Rep. Edgar); id., at 18359-18360 (remarks of Rep. Goldwater); id., at 9666 (remarks of Sen. Durenberger). These statements are entitled to little, if any, weight, since they were made by opponents of the legislation. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394-395 (1951).
The District Court also relied on several isolated statements expressing understandable indignation over the decision of some nonregistrants to show their defiance of the law. See 128 Cong. Rec. 18356 (1982) (remarks of Rep. Montgomery); id., at 9665 (remarks of Sen. Hayakawa). But such statements do not constitute “the unmistakable evidence of punitive intent which ... is required before a Congressional enactment of this kind may be struck down.” Flemming v. Nestor, 363 U. S. 603, 619 (1960).
The dissent reads Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), to create in this case an exception to the normal rule requiring assertion of the Fifth Amendment privilege. In Marchetti and Grosso, however, anyone who asserted the privilege on a wagering return did not merely call attention to himself; the very filing necessarily admitted illegal gambling activity. Those cases are therefore clearly distinguishable on their facts. See Grosso, at 73 (Brennan, J., concurring); United States v. Sullivan, 274 U. S. 259, 263 (1927).
Appellees also assert that § 12(f) violates equal protection because it discriminates against less wealthy nonregistrants. That argument is meritless. Section 12(f) treats all nonregistrants alike, denying aid to both the poor and the wealthy. But even if the statute discriminated against poor nonregistrants because more wealthy nonregistrants could continue to pay for their postsecondary educations, the statute must be sustained if rationally related to a legitimate Government interest. Harris v. McRae, 448 U. S. 297, 322-324 (1980). That standard is easily met here, because § 12(f) is rationally related to the legitimate Government objectives of encouraging registration and fairly allocating scarce federal resources. See supra, at 854.
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_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.
MORTGAGE ASSOCIATES, INC., Plaintiff-Appellant, v. Max CLELAND, Administrator of Veterans’ Affairs, Defendant-Appellee.
No. 80-2152.
United States Court of Appeals, Seventh Circuit.
Argued April 1, 1981.
Decided July 2, 1981.
David S. Kreisman, Oak Brook, 111., for plaintiff-appellant.
Edward Moran, Asst. U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chief, Civ. Div., Chicago, 111., for defendant-appellee.
Before CUMMINGS, Circuit Judge, GIBSON, Senior Circuit Judge, and CUDAHY, Circuit Judge.
The Honorable Floyd R. Gibson, Senior Circuit Judge of the Eighth Federal Circuit, is sitting by designation.
PER CURIAM.
Plaintiff Mortgage Associates, Inc. appeals from a district court order granting summary judgment to defendant, the Administrator of Veterans’ Affairs, on plaintiff’s claim to recover on a loan guaranty contract executed under the Veterans’ Home Loan Guaranty Program (38 U.S.C. §§ 1801-1827). 494 F.Supp. 683. We reverse.
I
According to those allegations of the complaint admitted in defendant’s answer, plaintiff on November' 4, 1974, received from veteran Benjamin L. Swanson and his wife Roberta a mortgage note for $21,200 and a mortgage securing the note. The mortgage was a first lien on the Swansons’ residence at 1305 Franklin Avenue, Winthrop Harbor, Illinois. A month thereafter, defendant issued plaintiff a Loan Guaranty Certificate under 38 U.S.C. § 1803. This Certificate guaranteed 58.96% of the $21,-200 indebtedness, and in reliance on the Guaranty, plaintiff advanced the Swansons $21,200 to purchase the Winthrop Harbor real estate.
The complaint also shows that plaintiff filed a complaint to foreclose the mortgage in Lake County, Illinois, Circuit Court on June 14, 1977, and that a decree of foreclosure and sale was entered on August 23, 1977. Pursuant thereto, plaintiff caused the premises to be scheduled for sale to the highest cash bidder on September 26, 1977. Plaintiff notified the Veterans’ Administration of the scheduled sale and awaited its written specification of the amount to be bid by plaintiff which, if plaintiff was the successful bidder, would be credited to the Swansons’ indebtedness to plaintiff under a Veterans’ Administration regulation and Handbook.
Instead of complying with its Lender’s Handbook (n. 1 supra), the Veterans’ Administration on September 22, 1977, orally advised a secretary employed by the Chicago law firm representing plaintiff to have the firm make a $17,650 bid at the September 26th foreclosure sale. A day after the projected sale, defendant wrote plaintiff to bid that amount. The letter was allegedly received by plaintiff in its Milwaukee, Wisconsin, office on September 30, 1977.
At the sale at the Lake County Circuit Court plaintiff successfully bid $24,617.54, the full indebtedness, instead of $17,650, “through inadvertence, mistake or clerical error.” The $24,671.54 amount was mistakenly typed by a secretary in the documents used by the law firm’s associate when bidding at the foreclosure sale. Thereafter plaintiff notified defendant that it wished to convey the property to defendant by assignment of the certificate of sale. But when defendant learned that plaintiff was the successful bidder for the property at $24,617.54, defendant refused to accept plaintiff’s election to sell the property to him for $17,650, denied its claim under the Loan Guaranty, and credited the indebtedness with the $24,617.54, thus wiping out the amount still owed plaintiff on the Loan Guaranty.
In October 1977, the same Lake County court, at plaintiff’s request, ordered that the September 26, 1977, judicial sale and order approving it be “vacated and held for naught” and that plaintiff be allowed to proceed with another judicial sale. On November 21, 1977, plaintiff became the successful bidder for $17,650, the amount previously specified by defendant. The second judicial sale was approved by judicial order, with distribution entered.
Even though defendant suffered no harm or prejudice through the correction of the error, it refused to honor plaintiff’s then $7,212.70 claim under the Loan Guaranty but ultimately accepted the property for $17,650, which was paid to plaintiff on June 26, 1978 (App. 32, 81-87). Consequently, plaintiff initiated this action in January 1979, seeking $8,143.90 with interest under defendant’s Loan Guaranty, plus reasonable attorney’s fees and costs.
After defendant answered the complaint, plaintiff filed a motion for summary judgment supported by affidavits and exhibits. Thereafter the defendant filed his motion for summary judgment (also supported by affidavits and exhibits), claiming that the first judicial sale discharged the debt of the veteran and relieved the Veterans’ Administration of any liability under the Loan Guaranty, and that if it were now required to honor the Guaranty it would have to attempt to proceed against the veteran. The district judge entered a pretrial order which included a statement of all uncontested facts. This statement showed that if the correct sale bid had been made on September 26, 1977, or if that sale had been continued to November 21, 1977, the plaintiff would have been entitled to $8,143.90, the amount sought in the complaint, plus interest, costs and reasonable attorney’s fees.
On June 12,1980, the district court filed a Memorandum Opinion granting defendant’s motion for summary judgment and denying plaintiff’s motion for summary judgment. The controlling regulatory scheme was succinctly described in the Memorandum Opinion as follows:
“Under the regulatory scheme of the Veterans’ Home Loan Program, when an amount is specified by the Administrator, that amount is the minimum amount which the Administrator will credit to the veteran’s indebtedness. 38 C.F.R. § 36.-4320. If the lender bids the specified amount at the sale and is the successful bidder, he shall have the option to convey the property to the Administrator. If the property is sold for an amount in excess of the amount specified, the sale price shall be credited to the veteran’s indebtedness, and if the lender is the successful bidder he shall not have the option to convey the property to the Administrator. In this manner, the regulations seek to protect the interests of the veteran, the Administrator, and the lender.”
When, as here, the mortgagee is the successful bidder for the specified amount, it can retain the security for the specified amount or, as here, elect to convey the security to the Administrator for the specified amount and receive from the Administrator the difference between that amount and the total guaranteed debt (App. 22).
Judge Marovitz observed that under the applicable regulations the Veterans’ Administrator is not required to specify the minimum amount to be credited to a veteran’s indebtedness as a result of a foreclosure sale, but that under the Veterans’ Administration Lender’s Handbook, the Administrator, upon receipt of timely notice of a foreclosure sale, which was concededly given here, “shall notify the lender in writing either of the amount specified or that no amount will be specified.” As the court noted, the Administrator admittedly did not follow this provision of his Lender’s Handbook. If defendant had complied with the requirement in Paragraph 7073 of his Lender’s Handbook and sent plaintiff the required written notice of the specified amount to be bid, this error would almost surely have been avoided. Indeed defendant’s Director of Loan Guaranty Services criticized defendant’s Chicago office for not having given notice of the amount specified for the first sale directly to plaintiff and for not having confirmed the September 22 telephone conversation amount specified to plaintiff’s Chicago law firm’s secretary “immediately by registered letter or telegraph to the holder and its attorneys (See M26-4 paragraph 2.19a)” (App. 81). The court correctly concluded that by publishing the Handbook and encouraging firms like plaintiff to rely upon it, the Administrator had become bound by its provisions. However, because plaintiff admitted that its bid at the first sale was also caused by the legal secretary’s negligence, the court refused to upset the Administrator’s decision to declare his and plaintiff’s rights fixed according to the terms of the first sale. Therefore the Administrator’s motion for summary judgment was granted. This appeal followed.
II
38 U.S.C. § 1816 is applicable to this case and provides that in the event of a default in the payment of a loan guaranteed by the Veterans’ Administration, the holder of the obligation is to notify the Administrator “who shall thereupon pay to such holder the guaranty not in excess of the pro rata portion of the amount originally guaranteed.” As the Supreme Court stated in United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554,1561, 6 L.Ed.2d 908, “Congress intended the guaranty provision to operate as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors [like plaintiff] to provide 100% financing for a veteran’s home.” The guaranty is considered the equivalent of a down payment because in the event of a default the lender can look to the loan guaranty to avoid or limit the loss. As Shimer construed the statute, the mortgagee can demand to have the amount of guaranty applied against its unpaid claim “on the date of default” (367 U.S. at 378, 81 S.Ct. at 1558). The Court added that the Administrator’s regulations are a reasonable accommodation of the statutory ends “first, of making a federal guarantee the substantial equivalent of a down payment, and, second, of protecting both the Veterans’ Administration and the veteran from unnecessary loss on a foreclosure sale” (367 U.S. at 385, 81 S.Ct. at 1562). Here the plaintiff holder of the Loan Guaranty Certificate was unfairly denied the “substantial equivalent of a down payment” because of an inadvertent error in the first Illinois foreclosure sale which was corrected pursuant to Ill.Rev.Stats. (1979) ch. 110, § 50(5).
On September 27, the Veterans’ Administration belatedly specified to plaintiff in writing that in connection with the foreclosure sale of the Winthrop Harbor property, the “Administrator requires that there be credited to the indebtedness as the specified amount $17,650.00” (App. 21). Under 36 C.F.R. § 36.4320(a), this specification becomes “the minimum amount which should be credited to the indebtedness of the borrower on account of the value of the security to be sold.” And under 38 C.F.R. § 36.4323(e), the Veterans’ Administrator is then relegated to indemnification from the veteran. As Shimer establishes, the regulations of the Veterans’ Administration “were intended to create a uniform system for determining the Administration’s obligation as guarantor, which in its option would displace state law” (367 U.S. at 377, 81 S.Ct. at 1557), so that defendant cannot resort to Illinois law to support its claim that the first bid extinguished its guaranty obligation.
Defendant also argues that the parties’ rights were fixed by the first sale. However, the term “date of sale” is defined in 38 C.F.R. § 36.4320(i)(l) “as the date of the event [e. g. sale, confirmation of sale when required under local practice * * *] which fixes the rights of the parties in the property.” Because the first sale was vacated for mistake, the rights of these parties were derived from the results of the second sale. Indeed in June 1978 the Administrator purchased from plaintiff for $17,650 the Certificate of Sale issued in connection with the $17,650 second sale. Therefore it would be inequitable to let the Administrator reduce the indebtedness to plaintiff by $24,671.54, the amount bid at the first sale, instead of by the $17,650 it actually paid plaintiff. Defendant cannot successfully argue that under its Lender’s Handbook plaintiff had intended to acquire the property for its own use because even on the date of the first sale, plaintiff elected to convey the property to the Administrator.
To support its contention that the rights of the parties were fixed by the first sale, defendant cites its Manual M26-4 par. 3.12c, but that only covers a “first valid sale,” whereas here the first sale was decreed “held for naught.” In addition, that provision states “if circumstances warrant, in order to afford the holder the maximum relief permissible under the governing law, Central Office’s prior approval may be obtained to purchase the property pursuant to 38 U.S.C. § 1820 for the specified amount.” Here to avoid an inequitable windfall, the defendant should have permitted plaintiff to purchase the property at the November 21 sale for the $17,650 it specified in its tardy letter of September 27, and credited that amount against the indebtedness. In any event, Manual M26-4 is described by defendant as “an internal VA document” and therefore is not a regulation binding on lenders (Br. 12, n. 7).
Defendant also relies on his solicitor’s opinion No. 122-51 (1951) to support his argument that the rights of the parties were irrevocably fixed by the first sale. However, this opinion was not a part of the regulations or Lender’s Handbook, nor was it disseminated for general use to lenders. Furthermore, it does not harmonize with the Home Loan Guaranty Program which, as stated, was to provide the holder of a loan certificate guaranty the “substantial equivalent of a down payment” in order to induce lenders to participate in the program. United States v. Shimer, supra, at 374, 385, 81 S.Ct. at 1561-1562. Indeed, as Shimer determined, under the Veterans’ Home Loan Guaranty Program, the statute entitled a mortgagee to receive the amount of the guaranty on “demand to have applied against his unpaid claim on the default” 367 U.S. at 378, 81 S.Ct. at 1558; see also 38 U.S.C. § 1819. Congress intended that “there shall be credited against the unpaid debt at least what the Administrator regards as the fair value of the property.” 367 U.S. at 380, 81 S.Ct. at 1559. Here that was the $17,650 orally specified by defendant on September 22, so that it is immaterial as to defendant’s guaranty that plaintiff’s first bid exceeded that sum.
Since defendant accepted and derived benefits from the November 21, 1977 sale, plaintiff is entitled to recover its loan guaranty claim under the same sale. By virtue of our decision, the defendant will be in no different situation than if the initial sale had been done correctly. We are not invalidating any of defendant’s regulations or manuals but merely hold that they are partly inapplicable to this unique situation where defendant would otherwise be receiving a windfall from an inadvertent and non-prejudicial mistake.
The judgment of June 12, 1980, is reversed and remanded with directions to enter judgment in favor of plaintiff in the amount of $10,366.16 plus costs.
. The regulation specified was 38 C.F.R. § 4320 and the defendant’s Lender’s Handbook paragraph specified was 7073. The latter requires the defendant, after the mortgagee sends it an appropriate notice of sale, to write the mortgagee “the specified amount which shall be credited to the indebtedness of the borrower on account of the value of the security, or * * * that no amount will be specified” (Addendum E to plaintiffs brief).
. By January 31, 1980, this amount had escalated to $10,366.16 (App. 13), the amount ultimately sought in the court below (App. 1). The plaintiffs briefs in this Court do not request attorney’s fees and therefore that prayer in the complaint is held to be waived.
. Paragraphs 12 and 13 of the complaint, admitted in paragraphs 12 and 13 of defendant’s answer (App. 12, 24-25).
Although defendant contends that plaintiffs current arguments were not raised in the district court, our examination of plaintiffs memorandum of law filed below satisfies us that the issues raised before us by plaintiff are not truly new.
. If either party challenges this amount of damages, Judge Marovitz is directed to conduct a hearing on the amount of damages alone. The reply brief requests only $10,366.16 and costs.
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:
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songer_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
MARICOPA COUNTY, Plaintiff-Appellee, v. AMERICAN PIPE AND CONSTRUCTION CO. et al., DefendantsAppellants.
No. 24737.
United States Court of Appeals, Ninth Circuit.
Aug. 28, 1970.
Rehearing Denied Oct. 26, 1970.
Hamley, Circuit Judge, dissented in part and filed opinion.
Gibson, Dunn & Crutcher, Los Ange-les, Cal., for Smith Scott & United Concrete Pipe.
Pierce T. Selwood (argued), of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for Martin-Marietta Corp.
Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for U.S. Indus.
Jesse O’Malley (argued), of Musick, Peeler & Garrett, Los Angeles, Cal., for U.S. Steel.
George Jansen, Wayne Pitluck, of Sullivan, Marinos, Augustine & Delafield, San Diego, Cal., for American Pipe & Constr. and Am. Concrete.
Gordon Johnson (argued), of Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for Kaiser Steel Corp.
Evans, Kitchel & Jenckes, Phoenix, Ariz., for O’Malley Gannaway Concrete Pipe.
Dominic B. King, Pittsburgh, Pa., for U.S. Steel.
Ronald W. Meyer (argued), Deputy County Atty., Moise Berger, Maricopa County Atty., R. E. Johnson, of Johnson, Bebeau & Timbanard, Phoenix, Ariz., for plaintiff-appellee.
O’Melveny & Myers, Los Angeles, Cal., Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Olmstead, Stine & Campbell, Ogden, Utah, amicus curiae.
Before HAMLEY and BROWNING, Circuit Judges, and THOMPSON, District Judge.
Honorable Bruce R. Thompson, United States District Judge for the District of Nevada, sitting by designation.
PER CURIAM:
We affirm the order of the district court denying appellants’ motion for summary judgment. We affirm on the grounds stated in the district court’s opinion, except that we do not pass upon the soundness of the district court’s dictum that a government antitrust proceeding filed more than one year subsequent to the termination of a prior government antitrust proceeding could not toll the running of the statute of limitations on private treble damage actions. Nor do we pass upon the contention, made for the first time in a reply brief in this court, that a partial summary judgment should have been granted because American Pipe and Construction Company was not named as a defendant in two of the five civil actions commenced by the government. We see no reason to depart from the general rule that a district court judgment should not be reversed on grounds not raised below. Our affirmance is without prejudice, however, to the filing in the district court by appellants of a motion for partial summary judgment raising this new issue.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_adminrev
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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 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".
MOVING PHONES PARTNERSHIP L.P., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Thomas Domencich and Committee for a Fair Lottery, Romulus Engineering, Inc., James E. Martin, Jr., CSH Cellular, Gilcom Cellular, L.P., PC Cellular, Inc., RSA Cellular Company, AAT R S A Company, L.P., Excellence II, Elleron Cellular Corporation, Sunde Cellular Communications, Inc., Intervenors.
Nos. 91-1611, 91-1613 through 91-1617, 91-1621, 91-1626, 91-1627, 91-1628, 91-1629 and 91-1636.
United States Court of Appeals, District of Columbia Circuit.
Argued April 8, 1993.
Decided July 30, 1993.
Rehearing and Suggestions for Rehearing En Banc Denied Oct. 5, 1993.
A. Thomas Carroccio, for appellants. With him on the joint brief were J. Laurent Scharff, Gertrude J. White, Michael F. Mor-rone, Mark F. Evens, Michael R. Bennet, Richard O. Wolf, Edward R. Kump, Denise Moline, and Lloyd D. Young. Glen Franklin Koontz also entered an appearance for appellants in Nos. 91-1611, 91-1613, 91-1614, 91-1615, and 91-1616.
Sue Ann Kanter, Counsel, F.C.C., for ap-pellee. On the brief were Renee Licht, Gen. Counsel; Daniel M. Armstrong, Associate Gen. Counsel; and Roberta L. Cook, Counsel, F.C.C. John E. Ingle and Robert L. Pettit, Counsel, F.C.C., also entered appearances for appellee.
Mark D. Schneider argued the cause for intervenors Thomas Domencich and Committee for a Fair Lottery; James E. Martin, Jr.; CSH Cellular; Gilcom Cellular, L.P.; PC Cellular, Inc.; RSA Cellular Co., Michael B. Azeez; Excellence II; Elleron Cellular Corp.; Percival Vaz; Larsen Cellular Associates; AAT RSA Company, L.P'.; Marco Communications Corp.; and Sunde Cellular Communications, Inc. With him on the joint brief were Carter G. Phillips, Carl W. Northrop, Stephen Kaffee, Kenneth E. Hard-man, Benito Gaguine, Arthur V. Belendiuk, Thomas Gutierrez, Eliot J. Greenwald, David J. Kaufman, Thomas L. Siebert, and Paul C. Besozzi. George L. Lyon, Jr. entered an appearance for intervenor Gilcom Cellular, L.P. Michael D. Sullivan entered an appearance for intervenor Romulus Engineering, Inc. Richard S. Myers entered an appearance for intervenor Optima Cellular Partnership. Stephen E. Coran entered an appearance for intervenor Excellence II.
Before MIKVA, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
Appellants, all partnerships, applied to the Federal Communications Commission (“Commission” or “FCC”) for authorization to construct and operate cellular systems. The FCC dismissed the applications on the ground that each proposed to include one or more alien general partners, violating alien ownership restrictions in the Communications Act (“Act”), 47 U.S.C. § 310(b) (1991 Supp.), and the FCC’s rules. Because the Commission reasonably interpreted the Act as prohibiting the grant of a radio license to a partnership with aliens among its general partners, and because the dismissal of appellants’ applications was reasonable and consistent with the FCC’s strict rules for proeess-ing cellular- applications, we affirm the Commission’s decision.
I.
A. Regulatory Framework
In 1981, the Commission adopted rules to govern commercial implementation of cellular telephone service, 47 C.F.R. § 22 subpart K (1993). In doing so, the FCC divided the spectrum into two frequency blocks, for “wireline carriers” (telephone companies) and “nonwireline carriers” (applicants other than telephone companies), to allow two cellular carriers to be licensed in each market area. Confronting a growing demand for cellular service, the FCC solicited applications for nonwireline cellular systems in each designated márket and adopted expedited application filing and processing rules designed to minimize the administrative burden on its staff and to permit orderly processing of thousands of cellular applications. See, .e.g., Cellular Communication Systems, 86 F.C.C.2d 469, 498-601 (1981), modified, 89 F.C.C.2d 58 (1982), further modified, 90 F.C.C.2d 571 (1982), petition for review dismissed, United States v. FCC, No. 82-1526 (D.C.Cir.1984).
After experiencing significant delays in its expedited comparative hearing process, the Commission decided that selection among competing applications could be conducted most efficiently through lottery in all markets beyond the largest thirty. Under the current procedures, the FCC includes in the lottery all applications that facially comply with processing requirements' and contain a certification that the application is complete and contains all information required by the application form and the FCC’s cellular rules. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) 407, 410 & n. 16. The FCC applies a “letter-perfect” standard to the pre-lottery requirements. Applications not complying with the initial requirements are dismissed and lose any further opportunity to be considered in the lottery. Id.
The Commission’s staff reviews only the application selected by lottery to ensure that it is acceptable for filing-that is, that it complies with FCC rules, regulations, and other requirements. 47 C.F.R. § 22.20(a)(2). If the application does not meet the standards for acceptability, it is dismissed without further consideration. If, however, it is acceptable, it is placed on public notice as the tentative selectee, offering unsuccessful applicants the opportunity to challenge the application. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) at 410.
To speed the selection process, Commission rules prohibit the filing of amendments to cellular applications until after a qualified tentative selectee has been announced for a particular market. Only tentative selectees may file amendments, and only minor amendments are permitted. Cellular Lottery Order, 98 F.C.C.2d at 220; 47 C.F.R. § 22.918(b): Applicants filing defective applications therefore have no opportunity to file amendments either-before or after the lottery to bring applications into compliance with acceptability criteria should they prevail in the lottery. Lottery Further Reconsideration Order, 59 Rad.Reg.2d (P & F) at 410 n. 17; see also, e.g., REM Communication, 3 F.C.C.R. 3705 (1988).
In the consolidated appeals before us, appellants, seventeen disappointed cellular applicants, challenge the FCC’s decisions dismissing their applications upon discovery that each proposed to operate its licensed radio common carrier facility with one or more general partners who were aliens. The Commission held that the applications violated section 310(b)(3) of the Communications Act, prohibiting the grant of radio licenses to aliens and to corporations having a certain level of alien ownership or having aliens as officers or directors. 47 U.S.C. § 310(b)(3) (1988), ■ incorporated in section 22.4 of the FCC’s rules. 47 C.F.R. § 22.4(b)(3) (1993).
B. Proceedings Below
In the earliest of these proceedings, Continental Cellular, appellant in case No. 91-1621, applied for a cellular radio facility on the nonwireline frequency to service the Alaska 2 (Bethal) Rural Services Area (“RSA”), on July 15, 1988. Like all the appellants, Continental certified that it had complied with the requirements of section 310(b) of the Communications Act and section 22.4(b) of the Commission’s rules. Its application was selected in the lottery. See PN Rep. No. CL-88-168 (F.C.C. released Sept. 27, 1988). The Commission’s Mobile Services Division Staff examined. Continental’s application and rejected it as unacceptable for filing -because Continental had proposed to operate as a general partnership with at least three alien general partners in violation of section 310(b)(3) of the Act and section 22.4(b)(3) of the FCC rules. The Commission denied reconsideration of the dismissal, holding that the staff had properly concluded that the inclusion of aliens as general partners violated the prohibitions of section 310(b)(3). The FCC also rejected Continental’s argument that alien general partners could exempt themselves from the statutory restrictions by accepting a partnership agreement purporting to insulate them from the management of partnership affairs, and concluded that even if such an exemption were permissible, Continental’s partnership agreement was insufficient to establish such insulation. Continental Cellular I, 5 F.C.C.R. at 691-92.
With its petition for reconsideration, Continental submitted an amendment seeking to change its general partnership to a limited partnership with the alien partners becoming limited partners. The Commission held that Continental’s application could not be amended to comply with alien ownership rules, as it had properly been found defective and unacceptable for filing. 5 F.C.C.R. at 693 n. 9, (citing 47 C.F.R. § 22.918(b) and REM Communication, 3 F.C.C.R. 3705). Continental appealed the FCC’s order to this court, which remanded the case to the Commission for further consideration of the record at FCC’s request.
In the interim, each of the other appellants was named the tentative selectee for a market in which it had won the lottery. Each, however, had filed as a general partnership, including between one and four alien partners. Following the lotteries, each sought to file a curative amendment to change its general partnership to a limited partnership or to remove the alien general partners. As it had with regard to the Continental application, the staff dismissed the other applications as ineligible for filing, because they had proposed ownership structures that did not comply with the requirements of section 310(b)(3) and section 22.4(b)(3) of the FCC’s rules.
Continental and the other appellants petitioned for reconsideration. The Commission consolidated their cases with Continental’s. Continental Cellular II, 6 F.C.C.R. 6834, 6835 (1991). The FCC refused to reconsider the’ dismissals, holding that appellants’ applications properly were dismissed as unacceptable for filing. It ruled that the inclusion, of aliens as general partners as originally proposed violated section 310(b)(3), whether or not alien general partners purported to insulate themselves from management of partnership affairs, and that even were such a statutory exemption permissible, none of the applicants had made a showing of such insulation. Likewise, the Commission rejected contentions of some appellants that dismissal of the applications denied them their Fifth Amendment right to equal protection regardless of alienage. Finally, the FCC declined to accept amendments curing the violation of section 310(b)(3), holding that under clear Commission rules and precedent, curative amendments may not be submitted for a defective cellular application. 6 F.C.C.R. at 6836, (citing Progressive Cellular III B-2, 5 F.C.C.R. 2772 (1990)); REM Communication, 3 F.C.C.R. 3705 (1988).
II.
Section 310(b) prohibits the grant of radio licenses, including licenses in the common carrier service, to aliens and to corporations evidencing specific levels of alien ownership or control. Section 310(b)(3) forbids the grant of a radio license to any corporation in which an officer- or director is an alien, or of which more than twenty percent of the stock is owned or voted by aliens. The Commission adopted the statutory language verbatim in its rules governing mobile radio services, including the cellular service. 47 C.F.R. § 22.4. These alien ownership restrictions reflect a long-standing determination to “safeguard the United States from foreign influence” in broadcasting. Kansas City Broadcasting Co., 5 Rad.Reg. (P & F) 1057, 1093 (1952). This policy against allowing aliens to have any controlling influence in a licensee was established long before the applications at issue were filed. No less well established is the tenet of partnership law that a general partner has control of partnership affairs as- against the outside world. Section 9(1), Uniform Partnership Act; Picone v. Comm’l Paste Co., 215 Miss. 114, 60 So.2d 590 (1952). Although the language of section 310(b) and the corresponding rule refers to corporations only, the statutory restrictions have been extended to noncorpo-rate entities and associations. In Wilner and Scheiner, 103 F.C.C.2d 511 (1985), recon. in part, 1 F.C.C.R. 12 (1986) (“Wilner & Scheiner Reconsideration Order ”), the FCC applied the alien ownership restrictions of section 310(b) to limited partnerships and other types of partnership and corporate interests. In that decision, the FCC held that for purposes of section 310(b), the position occupied by general partners in a partnership is directly comparable to that of officers and directors in a corporation, see 103 F.C.C.2d at 520 n. 3; therefore, alien general partners are in a position to exercise foreign influence in broadcast media, in contravention of the national security policy underlying the statute.
Although broadcast radio stations were the dominant medium when the national security policy underlying section 310(b) was developed, the rationale is equally applicable to common carrier radio stations, as they, also, are part of the nation’s eommuni-cations network. Despite their concession that “the national security purpose of Section 310(b) can be a legitimate reason for discrimination against aliens,” Pet.Br. at 37, appellants assert a constitutional claim that this court should extend a strict standard of review to distinctions based on alienage. We disagree.
Supreme Court precedent instructs that classifications based on alienage in federal statutes are permissible so long as the challenged statute is not a “wholly irrational” means of effectuating a legitimate government purpose. Mathews v. Diaz, 426 U.S. 67, 83, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976). In Mathews, the Court unanimously upheld denial of Medicare benefits to certain aliens. Similarly, in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), the Court held that a state statute limiting membership in the state police force to U.S. citizens did not violate the Equal Protection Clause of the Fourteenth Amendment. In upholding the legislation, the Court made clear that it had “never suggested that [legislation imposing restraints on aliens] is inherently invalid, nor have we held that all limitations on aliens are suspect.” Id. at 294, 98 S.Ct. at 1069. Instead, the Court explained, the application of strict scrutiny to the exclusion of aliens as a class has been limited to “exclusions [which] struck at the noncitizens’ ability to exist in the community” by denying them essential welfare assistance, educational benefits, or the right to engage in public employment or the practice of licensed professions. Id. at 295, 98 S.Ct. at 1070. The opportunity to own a broadcast or common carrier radio station is hardly a prerequisite to existence in a community. Therefore, we apply a rational basis, review rather than a strict scrutiny test.
The national security policy satisfies the requirement that there be a “showing of some rational relationship between the interest sought to be protected and the limiting classification.” Id. at 296, 98 S.Ct. at 1070. We thus deny appellants’ constitutional claim.
Appellants next turn to statutory claims. In analyzing their arguments, we use the framework of inquiry laid out in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43,104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter.... [I]f [however] the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Appellants first argue that the Commission’s practices deviate from the plain meaning of section 310(b). They assert that because the statute specifically bars aliens from “holding” licenses, the statute permits aliens to apply for them. Thus, they argue, in dismissing their applications, the FCC improperly interpreted and relied on section 310(b) of the Communications Act. Appellants’ attempted plain meaning argument rests on a non sequitur. The statute’s prohibition on aliens holding licenses cannot, sensibly be construed to plainly, or even likely, grant permission for aliens to file license applications. It would avail appellants little to have the right to file a licensing applicar tion when they could not, because of their composition, hold a license were it awarded to them.
Nor can appellants credibly claim to have been unfairly surprised by the FCC interpreting the presence of alien general partners in their organization as violations of section 310(b)(3); Wilner and Scheiner extended the Communications Act’s prohibition of the grant of broadcast licenses to corporations with aliens serving as officers or directors to partnerships with aliens serving as general partners.
In light of the foregoing, it is clear that a ban on alien ownership exists; what is lacking is a clear direction from Congress as to the point at which the FCC will effectuate the ban. Under the second step of Chevron, that decision belongs to the agency provided only that its' interpretation is a reasonable 'one, consistent with the statute. Here, it is clear that the Commission’s regulatory scheme is entirely consistent with the congressional mandate embodied in section 310(b), as tested by the Chevron analysis.
The FCC intended the cellular lottery process as a quick, simple method'for selecting prospective licensees. See Cellular Lottery Order, 98 F.C.C.2d at 179-82, 219-22; Cellular Lottery Further Reconsideration, 59 Rad.Reg.2d (P & F) at 409. Under these cellular application processing rules and procedures, the Commission properly concluded that an application that does not comply with all the rules and requirements, including both procedural and substantive requirements relating to the filing and content of the application, must be dismissed.
The procedures set out by the Commission indicate that compliance was an important element in the FCC’s decision to announce a successful applicant as the tentative selectee. See 47 C.F.R. § 22.20(a); Cellular Lottery Order, 98 F.C.C.2d at 195. In amending section 22.918(b) to “strictly limit[ ] the filing of amendments to applications ... under lottery selection procedures,” id. at 220, the Commission barred amendments throughout the application process, and limited subsequent amendments to those intended to correct minor errors or omissions in otherwise qualified applications. Prior Commission decisions support this interpretation. See, e.g., REM Communication, 3 F.C.C.R. 3705; Progressive Cellular III B-2, 5 F.C.C.R. 2772, 2773 (1990). Indeed, appellants present no evidence suggesting that the Commission ever has allowed applicants to file amendments to establish their basic qualifications to become licensees.
Nor can appellants prevail by arguing that the FCC offered insufficient notice that applications violating section 310(b) of the Act and section 22.4 of the FCC rules were unsuitable for filing and would be dismissed. Taken together, the rule governing acceptability, 47 C.F.R. § 22.20(a)(2), and the rule governing acceptance of amendments to applications, 47 C.F.R. § 22.918(b), alerted prospective applicants that they had to possess the qualifications to be a licensee on the day of filing, that one such qualification was compliance with section 310(b), and that no curative amendments would be accepted for noncomplying applications. This notice was all that was necessary.
Thus, there is no support for appellants’ contention that the Commission erred in not exempting from section 310(b)(3) partnerships in which alien general partners contractually relinquish control and management. Aside from the deviation from the “letter-perfect” rule that such an exception would entail, appellants have failed to show that the FCC was unreasonable in concluding that it had no power to accord an exemption to individuals holding positions otherwise subject to section 310(b) simply because they agree not to exercise the power of their positions. Continental Cellular I, 5 F.C.C.R. at 692; Continental Cellular II, 6 F.C.C.R. at 6836; Wilner and Scheiner Reconsideration Order, 1 F.C.C.R. at 14-15. Appellants cannot successfully defend their contention that they effectively cured the violation simply by ensuring that the alien partners could not control the partnership. Even as a practical matter, though the proffered partnership agreements vested day-to-day control in a single managing partner, they neither excluded alien general partners from involvement in the management or operation of the partnership, nor precluded an alien from holding the position of managing partner. In these circumstances, the FCC could reasonably conclude that the proposed agreements were insufficient to remove the alien general partners from the restriction of section 310(b)(3), even assuming such an exemption were available. Continental Cellular II, 6 F.C.C.R. at 6836.
When Congress has intended to give the Commission discretion to depart from a specified level of control in section 310(b), it has spoken explicitly. See 47 U.S.C. § 310(b)(4). The absence of such plain language here only supports the FCC’s interpretation.
CONCLUSION
The FCC’s rules and regulations for selection of cellular licensees made clear that all applications had to qualify for selection before any amendments would be allowed. Because each appellant before us listed an alien as a general partner in the first instance, in violation of the Commission’s rules implementing section 310(b) of the Communications Act, their applications did not qualify for selection on the date of filing and therefore could not be awarded. The Commission was well within its authority to dismiss the applications, and wfe therefore affirm its order.
It is so ordered.
. Cellular Lottery Order, 98 F.C.C.2d 175, 179 (1984), recon., 101 F.C.C.2d 577 (1985), further recon., 59 Rad.Reg.2d (P & F) 407 (1985) (Lottery Further Reconsideration Order), aff'd in relevant part, Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C.Cir.1987).
. Unlike the other appellants, Quadrangle Communications did hot convert to a limited partnership because its only alien general partner died after its original application had been filed. Instead, Quadrangle amended its application to reflect the fact of the partner’s death, and requested a waiver of section 22.922 of the Commission’s rules, 47 C.F.R. § 22.922, to permit an involuntary transfer of the deceased partner’s interest to the non-alien executrix of the partner's estate. Though the FCC subsequently remanded Quadrangle's application, because Quadrangle, like the other appellants, failed to conform with the Commission’s "letter-perfect" cellular application processing rules and procedures, we vacate the remand and deny Quadrangle’s appeal.
. We note that Foley involves state, rather than federal, regulation of aliens. Even so, for the purposes of this case, that fact represents a distinction without a difference. The denial of Medicare benefits which survived the rational basis test in Mathews could well withstand the Foley analysis, which applied strict scrutiny to "exclusions [which] struck at the noncitizens’ ability to exist in the community,” 435 U.S. at 295, 98 S.Ct. at 1070, based on the Court’s conclusion that such exclusions were "inconsistent with the congressional determination to admit the alien to permanent residence.” Id. In fact, the facets of community life from which aliens may not be excluded, including eligibility for public employment, educational benefits, or "welfare assistance essential to life itself,” are those that, if withheld, would directly cause economic dependence or physical harm. In contrast, receipt of Medicare benefits, while desirable, might legitimately be considered a perquisite of citizenship, insofar as a government’s decision not to extend' such benefits to aliens does not necessarily involve withholding of essential welfare assistance, as would, for example, the denial of food stamps or emergency services at a hospital.
Question: What 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.
TRANSCONTINENTAL GAS PIPE LINE CORP. v. STATE OIL AND GAS BOARD OF MISSISSIPPI et al.
No. 84-1076.
Argued October 8, 1985
Decided January 22, 1986
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, and Marshall, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Powell, Stevens, and O’Connor, JJ., joined, 'post, p. 425.
John Marshall Grower argued the cause for appellant. With him on the briefs were Jefferson D. Stewart, R. Wilson Montjoy II, R. V. Loftin, Jr., and Thomas E. Skains.
Jerome M. Feit argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Lee, William H. Satterfield, Joseph S. Davies, and John H. Conway.
Ed Davis Noble, Jr., Assistant Attorney General of Mississippi, argued the cause for appellee State Oil and Gas Board of Mississippi. With him on the brief were Edwin Lloyd Pittman, Attorney General, and R. Lloyd Arnold, Assistant Attorney General. Glenn Gates Taylor argued the cause for appellee Coastal Exploration, Inc. With him on the brief was Kenneth I. Franks. Walker L. Watters and David T. Cobb filed a brief for appellee Getty Oil Co.
Briefs of amici curiae urging reversal were filed for the Interstate Natural Gas Association of America by Harold L. Talisman and John H. Cheatham III; and for Associated Gas Distributors by Frederic Moring.
Briefs of amici curiae urging affirmance were filed-for the State of Texas by Jim Mattox, Attorney General, David R. Richards, Executive Assistant Attorney General, and Larry J. Laurent and Manual Rios, Assistant Attorneys General; and for the National Governors’ Association by Benna Ruth Solomon and Joyce Holmes Benjamin.
David Crump filed a brief for the Legal Foundation of America as amicus curiae.
Justice Blackmun
delivered the opinion of the Court.
We are confronted again with the issue of a state regulation requiring an interstate pipeline to purchase gas from all the parties owning interests in a common gas pool. The purchases would be in proportion to the owners’ respective interests in the pool, and would be compelled even though the pipeline has pre-existing contracts with less than all of the pool’s owners.
This Court, in Northern Natural Gas Co. v. State Corporation Comm’n of Kansas, 372 U. S. 84 (1963), struck down, on pre-emption grounds, a virtually identical regulation. In the present case, however, the Supreme Court of Mississippi ruled that the subsequently enacted Natural Gas Policy Act of 1978 (NGPA), 92 Stat. 3351, 15 U. S. C. §3301 et seq., effectively nullified Northern Natural by vesting regulatory power in the States over the wellhead sale of gas. The Mississippi Supreme Court went on to hold that the Mississippi regulation did not impermissibly burden interstate commerce. Because of the importance of the issues in the functioning of the interstate market in natural gas, we noted probable jurisdiction. 470 U. S. 1083 (1985).
I
The Harper Sand gas pool lies in Marion County in southern Mississippi. Harper gas is classified as “high-cost natural gas” under NGPA’s § 107(c)(1), 15 U. S. C. § 3317(c)(1), because it is taken from a depth of more than 15,000 feet. At the time of the proceedings before appellee State Oil and Gas Board of Mississippi, six separate wells drew gas from the pool. A recognized property of a common pool is that, as gas is drawn up through one well, the pressure surrounding that well is reduced and other gas flows towards the area of the producing well. Thus, one well can drain an entire pool, even if the gas in the pool is owned by several different owners. The interests of these other owners often are referred to as “correlative rights.” See, e. g., Miss. Code Ann. § 53-1-1 (1972 and Supp. 1985).
Some owners of interests in the Harper Sand pool, such as appellee Getty Oil Co., actually drill and operate gas wells. Others, such as appellee Coastal Exploration, Inc., own smaller working interests in various wells. Normally, these lesser owners rely on the well operators to arrange the sales of their shares of the production, see App. 26, although some nonoperator owners contract directly either with the pipeline that purchases the operator’s gas or with other customers.
Appellant Transcontinental Gas Pipe Line Corporation (Transco) operates a natural gas pipeline that transports gas from fields in Texas, Louisiana, and Mississippi for resale to customers throughout the Northeast. Beginning in 1978, Transco entered into 35 long-term contracts with Getty and two other operators, Florida Exploration Co. and Tomlinson Interests, Inc., to purchase gas produced from the Harper Sand pool. In line with prevailing industry practice, the contracts contained “take-or-pay” provisions. These essentially required Transco either to accept currently a certain percentage of the gas each well was capable of producing, or to pay the contract price for that gas with a right to take delivery at some later time, usually limited in duration. Take-or-pay provisions enable sellers to avoid fluctuations in cash flow and are therefore thought to encourage investments in well development. See Pierce, Natural Gas Regulation, Deregulation, and Contracts, 68 Va. L. Rev. 63, 77-79 (1982).
Transco entered into these contracts during a period of national gas shortage. Transco’s contracts with Getty and Tomlinson obligated it to buy only Getty’s and Tomlinson’s own shares of the gas produced by the wells they operated, while its contracts with Florida Exploration required it to take virtually all the gas Florida Exploration’s wells produced, regardless of its ownership. See App. 107. But demand was sufficiently high that Transco also purchased, on a noncontract basis, the production shares of smaller owners, such as Coastal, in the Getty and Tomlinson wells. Id., at 155. In the spring of 1982, however, consumer demand for gas dropped significantly, and Transco began to have difficulty selling its gas. It therefore announced in May 1982 that it would no longer purchase gas from owners with whom it had not actually contracted. See, e. g., id., at 41-42. Transco refused Coastal’s request that it be allowed to ratify Getty’s contract, and made a counteroffer, which Coastal refused, either to purchase Coastal’s gas at a significantly lower price than it was obligated to pay under its existing contracts or to transport Coastal’s gas to other customers if Coastal arranged such sales. See id., at 66-69. Fifty-five other noncontract owners of Harper gas, however, did accept such offers from Transco. See 457 So. 2d 1298, 1309 (Miss. 1984).
Getty and Tomlinson cut back production so that their wells produced only that amount of gas equal to their ownership interests in the maximum flow. The immediate economic effect of the cutback was to deprive Coastal of revenue, because none of its share of the Harper gas was being produced. The ultimate geological effect, however, is that gas will flow from the Getty-Tomlinson areas of the field, which are producing at less than capacity, to the Florida Exploration areas; gas owned by interests that produce through Getty’s and Tomlinson’s wells thus may be siphoned away. Moreover, because of the decrease in pressure, gas left in the ground, such as Coastal’s gas, may become more costly to recover and therefore its value at the wellhead may decline.
I — I h — I
On July 29, 1982, Coastal filed a petition with appellee State Oil and Gas Board of Mississippi, asking the Board to enforce its Statewide Rule 48, a “ratable-take” requirement. Rule 48 provides:
“Each person now or hereafter engaged in the business of purchasing oil or gas from owners, operators, or producers shall purchase without discrimination in favor of one owner, operator, or producer against another in the same common source of supply.”
Rule 48 never before had been employed to require a pipeline actually to purchase noncontract gas; rather, its sole purpose appears to have been to prevent drainage, that is, to prevent a buyer from contracting with one seller and then draining a common pool of all its gas. See 457 So. 2d, at 1306. The Gas Board conducted a 3-day evidentiary proceeding. It found Transco in violation of Rule 48, and, by its Order No. 409-82, filed Oct. 13, 1982, ordered Transco to start taking gas “ratably” (i. e., in proportion to the various owners’ shares) from the Harper Sand pool, and to purchase the gas under nondiscriminatory price and take-or-pay conditions.
Transco appealed the Gas Board’s ruling to the Circuit Court of the First Judicial District of Hinds County, Miss. In the parts of its opinion relevant to this appeal, the Circuit Court held that the Gas Board’s authority was not preempted by either the Natural Gas Act of 1938 (NGA), eh. 556, 52 Stat. 821, 15 U. S. C. §717 et seq., or the NGPA; that the NGPA effectively overruled Northern Natural; and that the Gas Board’s order did not run afoul of the Commerce Clause of the United States Constitution.
The Mississippi Supreme Court affirmed that portion of the Circuit Court’s judgment. 457 So. 2d 1298 (1984). With respect to Transco’s pre-emption claim, the court recognized that, prior to 1978, the Federal Energy Regulatory Commission (FERC) and its predecessor, the Federal Power Commission, possessed “plenary authority to regulate the sale and transportation of natural gas in interstate commerce.” Id., at 1314. Under the interpretation of that authority in Northern Natural, where a Kansas ratable-take order was ruled invalid because the order “invade[d] the exclusive jurisdiction which the Natural Gas Act has conferred upon the Federal Power Commission,” 372 U. S., at 89, Mississippi’s “authority to enforce Rule 48 requiring ratable taking had been effectively suspended — preempted, if you will, and any orders such as Order No. 409-82 would have been wholly unenforceable.” 457 So. 2d, at 1314. But the court went on to conclude that the enactment of the NGPA in 1978 removed FERC’s jurisdiction over “high-cost” gas (the type produced from the Harper Sand pool). Under § 601(a)(1) of the NGPA, “the Natural Gas Act of 1938 (NGA) and FERC’s jurisdiction under the Act never apply to deregulated gas” (emphasis added), 457 So. 2d, at 1316, and “[t]hat message is decisive of the preemption issue in this case.” Ibid.
The court also found no implicit pre-emption of Rule 48. Transco’s compliance with the Rule could not bring it into conflict with any of FERC’s still-existing powers over the gas industry. The court noted that, under Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm’n, 461 U. S. 375, 384 (1983), a federal determination that deregulation was appropriate was entitled to as much weight in determining pre-emption as a federal decision to regulate actively. Although the NGPA stemmed from Congress’ desire to deregulate the gas industry, the court found that “[hjowever consistent a continued proscription on state regulation might have been with the theoretical underpinnings of deregulation, the Congress in NGPA in 1978 did not ban state regulation of deregulated gas.” 457 So. 2d, at 1318.
In addressing the Commerce Clause issue, the court relied on the balancing test set out in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970): when a state law “regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Id., at 142. In weighing the benefit against the burden, a reviewing court should consider whether the local interest “could be promoted as well with a lesser impact on interstate activities.” Ibid. The court found that Rule 48 had a legitimate local purpose — the prevention of unfair drainage from commonly owned gas pools. It identified the principal burden on interstate commerce as higher prices for the ultimate consumers of natural gas. But, under Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S. 179, 186-187 (1950), higher prices do not render a state regulation impermissible per se under the Commerce Clause. Also, Congress expressed a clear intent in enacting the NGPA that “all reasonable costs of production of natural gas shall be borne ultimately by the consumer. . . . Congress within the scope of its power under the affirmative Commerce Clause has expressly authorized such increases.” 457 So. 2d, at 1321. Transco had identified one other potential burden on interstate commerce: Rule 48 would require it to take more gas from Mississippi’s fields than would otherwise be the case, thereby leading Transco to reduce its purchases from Louisiana and Texas. But the Mississippi court rejected this argument, noting both that Texas and Louisiana had their own ratable-take regulations, which presumably would protect their producers, and that the actual cause of any such effect was Transco’s imprudent entry into take-or-pay contracts, rather than the State’s ratable-take requirement. Transco knew of Rule 48’s existence when it entered into its various contracts and should have foreseen the risk that it would be required to purchase smaller owners’ shares. Moreover, since Transco was permitted to pass along its increased costs, the consumer ultimately would bear this burden, which was “simply one inevitable consequence of the free market policies of the era of deregulation with respect to which Transco is vested by the negative Commerce Clause with no right to complain.” Id., at 1322.
Finally, the court rejected Transco’s argument that the State could have served the same local public interest through a ratable-production order rather than through a ratable-take order. It held that it need not even consider whether less burdensome alternatives to the ratable-take order existed, because Transco had failed to meet the threshold requirement of demonstrating an unreasonable burden on interstate commerce.
Ill
If the Gas Board’s action were analyzed under the standard used in Northern Natural, it clearly would be pre-empted. Whether that decision governs this case depends on whether Congress, in enacting the NGPA, altered those characteristics of the federal regulatory scheme which provided the basis in Northern Natural for a finding of pre-emption.
In that case this Court considered whether the “comprehensive scheme of federal regulation” that Congress enacted in the NGA pre-empted a Kansas ratable-take order. 372 U. S., at 91. • Northern Natural Gas Company had a take-or-pay contract with Republic Natural Gas Company to purchase all the gas Republic could produce from its wells in the Hugoton Field. Northern also had contracts with other producers to buy their production, but those contracts required it to purchase their gas only to the extent that its requirements could not be satisfied by Republic. Id., at 87. Northern historically had taken ratably from all Hugoton wells, but, starting in 1958, it no longer needed all the gas the wells in the field were capable of producing. It therefore reduced its purchases from the other wells, causing drainage toward Republic’s wells. The Kansas Corporation Commission, which previously had imposed a ratable-production order on the Hugoton producers, then issued a ratable-take order requiring Northern to “take gas from Republic wells in no higher proportion to the allowables than from the wells of the other producers.” Id., at 88.
Kansas argued that its order represented a permissible attempt to protect the correlative rights of the other producers. The Court rejected this contention. Section 1(b) of the NGA, 15 U. S. C. § 717(b), provided that the Act’s provisions “shall not apply ... to the production or gathering of natural gas.” But the Court, it was said, “has consistently held that ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” 372 U. S., at 90. Since Kansas’ order was directed not at “a producer but a purchaser of gas from producers,” ibid., Northern, being a purchaser, was not expressly exempted from the Act’s coverage.
Although it was “undeniable that a state may adopt reasonable regulations to prevent economic and physical waste of natural gas,” Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S., at 185, the Court did not view the ratable-take rule as a permissible conservation measure. Such measures target producers and production, while ratable-take requirements are “aimed directly at interstate purchasers and wholesales for resale.” Northern Natural, 372 U. S., at 94.
The Court identified the conflict between Kansas’ rule and the federal regulatory scheme in these terms: Congress had “enacted a comprehensive scheme of federal regulation of ‘all wholesales of natural gas in interstate commerce.’” Id., at 91, quoting Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 682 (1954). “[UJniformity of regulation” was one of its objectives. 372 U. S., at 91-92. And, it was said:
“The danger of interference with the federal regulatory scheme arises because these orders are unmistakably and unambiguously directed at purchasers who take gas in Kansas for resale after transportation in interstate commerce. In effect, these orders shift to the shoulders of interstate purchasers the burden of performing the complex task of balancing the output of thousands of natural gas wells within the State .... Moreover, any readjustment of purchasing patterns which such orders might require of purchasers who previously took un-ratably could seriously impair the Federal Commission’s authority to regulate the intricate relationship between the purchasers’ cost structures and eventual costs to wholesale customers who sell to consumers in other States” (emphasis in original). Id., at 92.
Northern Natural’s finding of pre-emption thus rests on two considerations. First, Congress had created a comprehensive regulatory scheme, and ratable-take orders fell within the limits of that scheme rather than within the category of regulatory questions reserved for the States. Second, in the absence of ratable-take requirements, purchasers would choose a different, and presumably less costly, purchasing pattern. By requiring pipelines to follow the more costly pattern, Kansas’ order conflicted with the federal interest in protecting consumers by ensuring low prices.
Under the NGA, the Federal Power Commission’s comprehensive regulatory scheme involved “utility-type rate-making” control over prices and supplies. See Haase, The Federal Role in Implementing the Natural Gas Policy Act of 1978, 16 Houston L. Rev. 1067, 1079 (1979). The FPC set price ceilings for sales from producers to pipelines and regulated the prices pipelines could charge their downstream customers. But “[i]n the early 1970’s, it became apparent that the regulatory structure was not working.” Public Service Comm’n of New York v. Mid-Louisiana Gas Co., 463 U. S. 319, 330 (1983). The Nation began to experience serious gas shortages. The NGA’s “artificial pricing scheme” was said to be a “major cause” of the imbalance between supply and demand. See S. Rep. No. 95-436, p. 50 (1977) (additional views of Senators Hansen, Hatfield, McClure, Bartlett, Weicker, Domenici, and Laxalt).
In response, Congress enacted the NGPA, which “has been justly described as ‘a comprehensive statute to govern future natural gas regulation.’” Mid-Louisiana Gas. Co., 463 U. S., at 332, quoting Note, Legislative History of the Natural Gas Policy Act, 59 Texas L. Rev. 101, 116 (1980). The aim of federal regulation remains to assure adequate supplies of natural gas at fair prices, but the NGPA reflects a congressional belief that a new system of natural gas pricing was needed to balance supply and demand. See S. Rep. No. 95-436, at 10. The new federal role is to “overse[e] a national market price regulatory scheme.” Haase, 16 Houston L. Rev., at 1079; see S. Rep. No. 95-436, at 21 (NGPA implements “a new commodity value pricing approach”). The NGPA therefore does not constitute a federal retreat from a comprehensive gas policy. Indeed, the NGPA in some respects expanded federal control, since it granted FERC jurisdiction over the intrastate market for the first time. See the Act’s §§311 and 312, 15 U. S. C. §§3371 and 3372.
Appellees argue, however, that §§601(a)(l)(B)(i) and (ii), 15 U. S. C. §§3431(a)(l)(B)(i) and (ii), stripped FERC of jurisdiction over the Harper Sand pool gas which was the subject of the Gas Board’s Rule 48 order, thereby leaving the State free to regulate Transco’s purchases. Section 601(a)(1)(B) states that “the provisions of [the NGA] and the jurisdiction of the Commission under such Act shall not apply solely by reason of any first sale” of high-cost or new natural gas. Moreover, although FERC retains some control over pipelines’ downstream pricing practices, § 601(c)(2) requires FERC to permit Transco to pass along to its customers the cost of the gas it purchases “except to the extent the Commission determines that the amount paid was excessive due to fraud, abuse, or similar grounds.” According to appel-lees, FERC’s regulation of Transco’s involvement with high-cost gas can now concern itself only with Transco’s sales to its customers; FERC, it is said, cannot interfere with Transco’s purchases of new natural gas from its suppliers. Appellees believe that the Gas Board order concerns only this latter relationship, and therefore is not pre-empted by federal regulation of other aspects of the gas industry.
That FERC can no longer step in to regulate directly the prices at which pipelines purchase high-cost gas, however, has little to do with whether state regulations that affect a pipeline’s costs and purchasing patterns impermissibly intrude upon federal concerns. Mississippi’s action directly undermines Congress’ determination that the supply, the demand, and the price of high-cost gas be determined by market forces. To the extent that Congress denied FERC the power to regulate affirmatively particular aspects of the first sale of gas, it did so because it wanted to leave determination of supply and first-sale price to the market. “[A] federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left -unregulated, and in that event would have as much preemptive force as a decision to regulate” (emphasis in original). Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm’n, 461 U. S., at 384. Cf. Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 150-151 (1976).
The proper question in this case is not whether FERC has affirmative regulatory power over wellhead sales of § 107 gas, but whether Congress, in revising a comprehensive federal regulatory scheme to give market forces a more significant role in determining the supply, the demand, and the price of natural gas, intended to give the States the power it had denied FERC. The answer to the latter question must be in the negative. First, when Congress meant to vest additional regulatory authority in the States it did so explicitly. See §§ 503(c) and 602(a), 15 U. S. C. §§3413(c) and 3432(a). Second, although FERC may now possess less regulatory jurisdiction over the “intricate relationship between the purchasers’ cost structures and eventual costs to wholesale customers who sell to consumers in other States,” Northern Natural, 372 U. S., at 92, than it did under the old regime, that relationship is still a subject of deep federal concern. FERC still must review Transco’s pricing practices, even though its review of Transco’s purchasing behavior has been circumscribed. See App. 148-150, 170. In light of Congress’ intent to move toward a less regulated national natural gas market, its decision to remove jurisdiction from FERC cannot be interpreted as an invitation to the States to impose additional regulations.
Mississippi’s order also runs afoul of other concerns identified in Northern Natural. First, it disturbs the uniformity of the federal scheme, since interstate pipelines will be forced to comply with varied state regulations of their purchasing practices. In light of the NGPA’s unification of the interstate and intrastate markets, the contention that Congress meant to permit the States to impose inconsistent regulations is especially unavailing. Second, Mississippi’s order would have the effect of increasing the ultimate price to consumers. Take-or-pay provisions are standard industrywide. See Pierce, 68 Va. L. Rev., at 77-78; H. R. Rep. No. 98-814, pp. 23-25, 133-134 (1984). Pipelines are already committed to purchase gas in excess of market demand. Mississippi’s rule will require Transco to take delivery of noncontract gas; this will lead Transco not to take delivery of contract gas elsewhere, thus triggering take-or-pay provisions. Trans-co’s customers will ultimately bear such increased costs, see App. 161, unless FERC finds that Transco’s purchasing practices are abusive. In fact, FERC is challenging, on grounds of abuse, the automatic passthrough of some of the costs Transco has incurred in its purchases of high-cost gas. See App. 177-178. In any event, the federal scheme is disrupted: if customers are forced to pay higher prices because of Mississippi’s ratable-take requirement, then Mississippi’s rule frustrates the federal goal of ensuring low prices most effectively; if FERC ultimately finds Transco’s practices abusive and refuses to allow a passthrough, then FERC’s and Mississippi’s orders to Transco will be in direct conflict.
The change in regulatory perspective embodied in the NGPA rested in significant part on the belief that direct federal price control exacerbated supply and demand problems by preventing the market from making long-term adjustments. Mississippi’s actions threaten to distort the market once again by artificially increasing supply and price. Although, in the long run, producers and pipelines may be able to adjust their selling and purchasing patterns to take account of ratable-take orders, requiring such future adjustments in an industry where long-term contracts are the norm will postpone achievement of Congress’ aims in enacting the NGPA. We therefore conclude that Mississippi’s ratable-take order is pre-empted.
IV
Because we have concluded that the Gas Board’s order is pre-empted by the NGA and NGPA, we need not reach the question whether, absent federal occupation of the field, Mississippi’s action would nevertheless run afoul of the Commerce Clause.
The judgment of the Supreme Court of Mississippi is therefore reversed.
It is so ordered.
Order No. 409-82 directed Transco “forthwith to comply with Statewide Rule 48 of the State Oil and Gas Board of Mississippi in its purchases of gas from the said Harper Sand Gas Pool in Greens Creek and East Mor-gantown Fields, and. . . ratably take and purchase gas without discrimination in favor of one owner, operator or producer against another in the said common source of [sic] pool; and, specifically, in the event it so chooses and elects to take and purchase gas produced from the said common pool, Transco shall ratably take and purchase without discrimination in favor of the operators Getty and Tomlinson against Coastal, the Fairchilds, and Inexco.” App. to Pet. for Cert. 112a.
Transco’s other claims, a void-for-vagueness challenge, a Takings Clause argument, and various state-law claims, were rejected with one exception. The court found that, although the Gas Board had the power to order Transco to take ratably from the Harper Sand pool, it lacked the power to prohibit Transco from paying different prices for gas owned by nonparties to its original contracts. Therefore, Transco need pay Coastal only the current market price, rather than the higher price it was paying Getty and Tomlinson under its contracts with them.
A ratable-production order in essence allocates pro rata among interest owners the right to produce the amount of gas demanded. For example, if one interest owner owns 75% of the gas in a common pool with 100 units of gas and demand is 60 units, then the majority owner will be permitted to sell only 45 of his units, even though he owns, and is capable of producing, 75 units.
The Court noted, 340 U. S., at 185, that it had “upheld numerous kinds of state legislation designed to curb waste of natural resources and to protect the correlative rights of owners through ratable taking, Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U. S. 210 (1932),” but it is clear from the context of that statement that those challenges had involved claims by gas owners under the Due Process and Equal Protection Clauses, rather than claims of federal pre-emption: “These ends have been held to justify control over production even though the uses to which property may profitably be put are restricted.” Id., at 185-186.
On October 31, 1985, FERC issued an initial decision, Transcontinental Gas Pipe Line Corp., 33 FERC ¶63,026, finding that Transeo’s purchases of Harper Sand gas pursuant to the ratable-take order were not imprudent. But the grounds on which the Administrative Law Judge rested his conclusion demonstrate how Mississippi’s action impermissibly interferes with FERC’s regulatory jurisdiction.
FERC’s staff had requested the judge to order Transco “to pursue a least-cost purchasing strategy irrespective of Rule k8. ” Id., at 65,073 (emphasis in original). The judge refused: “In my view, Transco is entitled, indeed is required, to follow the decisions of the Mississippi authorities until and unless they be overturned by the Supreme Court of the United States.” Id., at 65,074.
Had the judge considered FERC’s claim on the merits, the conflict between the federal and state schemes would be patent. But his belief that he was constrained to find Transco’s practices reasonable because they were undertaken in compliance with Mississippi law is almost as demonstrative of pre-emption. First, Mississippi cannot be permitted to foreclose what would otherwise be more searching federal oversight of purchasing practices. Second, the mere exercise of federal regulatory power, even if it does not result in invalidation of the challenged act, shows continued federal occupation of the field. Since no evidence exists to suggest Congress intended FERC’s power to be circumscribed by state action, Rule 48 is pre-empted.
The dissent’s complaint that Congress did not intend to decontrol supply and demand, post, at 433, n. 5, misses the point. Congress clearly intended to eliminate the distortive effects that NGA price control had had on supply and demand. To suggest that Congress was willing to replace this distortion with a distortion on price caused by a State’s decision to require pipelines and, ultimately, interstate consumers, to purchase gas they do not want — the purpose of the order in this case — requires taking an artificially formalistic view of what Congress sought to achieve in the NGPA.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appnonp
|
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 "groups and associations". 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, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
OREGON v. MATHIASON
No. 76-201.
Decided January 25, 1977
Per Curiam.
Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which his confession was critical to the State’s case. At trial he moved to suppress the confession as the fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona, 384 U. S. 436 (1966). The trial court refused to exclude the confession because it found that Mathiason was not in custody at the time of the confession.
The Oregon Court of Appeals affirmed respondent’s conviction, but on his petition for review in the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that although Mathiason had not been arrested or otherwise formally detained, “the interrogation took place in a ‘coercive environment’ ” of the sort to which Miranda was intended to apply. The court conceded that its holding was contrary to decisions in other jurisdictions, and referred in particular to People v. Yukl, 25 N. Y. 2d 585, 256 N. E. 2d 172 (1969). The State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of Oregon. We think that court has read Miranda too broadly, and we therefore reverse its judgment.
The Supreme Court of Oregon described the factual situation surrounding the confession as follows:
“An officer of the State Police investigated a theft at a residence near Pendleton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a 'close associate’ of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with a note asking him to call because ‘I’d like to discuss something with you.’ The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p. m. The patrol office was about two blocks from defendant’s apartment. The building housed several state agencies.
“The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant’s fingerprints were found at the scene. The defendant sat for a few .minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.
“At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p. m. when the defendant left the office.
“The officer gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial.” 275 Ore. 1, 3-4, 549 P. 2d 673, 674 (1976).
The Supreme Court of Oregon reasoned from these facts that:
“We hold the interrogation took place in a 'coercive environment.’ The parties were in the offices of the State Police; they were alone behind closed doors; the officer informed the defendant he was a suspect in a theft and the authorities had evidence incriminating him in the crime; and the defendant was a parolee under supervision. We are of the opinion that this evidence is not overcome by the evidence that the defendant came to the office in response to a request and was told he was not under arrest.” Id., at 5, 549 P. 2d, at 675.
Our decision in Miranda set forth rules of police procedure applicable to “custodial interrogation.” “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U. S., at 444. Subsequently we have found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect’s term of imprisonment on a separate offense, Mathis v. United States, 391 U. S. 1 (1968), and to questioning taking place in a suspect’s home, after he has been arrested and is no longer free to go where he pleases, Orozco v. Texas, 394 U. S. 324 (1969).
In the present case, however, there is no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a %-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody “or otherwise deprived of his freedom of action in any significant way.”
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be ifnposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
The officer’s false statement about having discovered Mathiason’s fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.
The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
So ordered.
Mr. Justice Brennan would grant the writ but dissents from the summary disposition and would set the case for oral argument.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_notice
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice? 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".
Richard PICKUS et al., Appellees, v. UNITED STATES BOARD OF PAROLE, Appellant.
No. 73-1987.
United States Court of Appeals, District of Columbia Circuit.
Argued March 11, 1974.
Decided Oct. 11, 1974.
Rehearing Denied Dec. 10, 1974.
Victor D. Stone, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, was on the brief for appellant. Earl J. Sil-bert, U. S. Atty. and Robert M. Werdig, Jr., Asst. U. S. Atty., entered appearances for appellant.
Victor H. Kramer, Washington, D. C., with whom Richard B. Wolf, William L. McGovern, Abe Krash and Patrick F. J. Macrory, Washington, D. C., were on the brief for appellees.
Before HASTIE, Senior Circuit Judge for the Third Circuit, and ROBB and WILKEY, Circuit Judges.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
HASTIE, Senior Circuit Judge:
Section 4 of the Administrative Procedure Act (hereinafter, the Act) 5 U.S.C. § 553, requires that federal agency rule-making be attended by advance public notice and opportunity for interested persons to participate through oral or written submission of data or opinion. For many years the United States Board of Parole has published guidelines which specify many of the factors which it considers in the exercise of its discretion to parole eligible federal prisoners. E. g., Rules of the United States Board of Parole (1971). It has never complied with section 4 of the Act.
In May, 1972, the appellees, three federal prison inmates, petitioned the appellant Board of Parole to conduct a public rule-making proceeding consistent with section 4 of the Act, to amend various of its stated rules. Since the Board failed to act on their petition, appellees filed their complaint in the district court in January, 1973. The complaint did not specifically request the court to declare that any of the Board’s rules had been illegally promulgated, but sought only to compel a response to the petition, pursuant to §§ 4(d), 6(d), and 10(e) (A) of the Act. In March, 1973, after appel-lees filed a motion for judgment by default, Maurice Sigler, Chairman of the Parole Board, denied appellees’ May, 1972, petition in a letter to their attorney.
The parties then presented various motions and arguments to the district court, with consequent sharpening and modifying of the issues in the case. The Board admitted that it is an agency as that term is defined in section 2(a) of the Act, 5 U.S.C. § 551(1), and moved to dismiss the complaint as mooted by Mr. Sigler’s letter denying appellees’ petition. The court accepted the Board’s concession, but correctly ruled the case not moot, because a controversy still existed over the validity of the rules then in effect. The court then suggested that those rules could be valid if and only if they were exempted from the effect of section 4. Accordingly, the case went forward on the issues of whether the denial of the inmate’s petition for a public rule-making proceeding was arbitrary, and whether the rules then in effect should be declared void for failure to comply with section 4 of the Act. Following the submission of memoranda of law, the court held that the rules were void and ordered the Board to adopt replacements in proceedings which complied with the Act. The Board has appealed from that order.
The jurisdiction of the district court is the first issue that requires consideration. 'In a number of decisions, this court has recognized Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, as an independent source of jurisdiction that empowers district courts to review much agency action regardless of the amount in controversy. Independent Broker-Dealers’ Trade Ass’n v. Securities and Exchange Commission, 1971, 142 U.S.App.D.C. 384, 442 F.2d 132, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57; Scanwell Laboratories, Inc. v. Shaffer, 1970, 137 U.S. App.D.C. 371, 424 F.2d 859; Hurley v. Reed, 1961, 110 U.S.App.D.C. 32, 288 F.2d 844; Robbins v. Reed, 1959, 106 U.S.App.D.C. 51, 269 F.2d 242; but compare Pan American World Airways, Inc. v. Civil Aeronautics Board, 1968, 129 U.S.App.D.C. 159, 392 F.2d 483; Kansas City Power & Light Co. v. McKay, 1955, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780. Decisions of other courts of appeals on this question are irreconcilably conflicting. The Supreme Court has not clearly and explicitly settled the matter, but we read the Court’s decisions as lending significant support to the view that Section 10 of the Administrative Procedure Act does authorize district courts to entertain suits challenging the validity of agency action without regard for the amount in controversy. Citizens To Preserve Overton Park, Inc. v. Volpe, 1971, 401 U.S. 402, 91 S.Ct. 828, 28 L.Ed.2d 168; Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Rusk v. Cort, 1962, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, aff’g, D.D.C.1960, 187 F.Supp. 683.
We hold that the district court had jurisdiction to entertain the present complaint under the mandate of Section 10(a) of the Act, 5 U.S.C. § 702, that “a person . . . adversely affected or aggrieved by agency action . is entitled to judicial review thereof;” the provision of Section 10(b), 5 U.S.C. § 703, that the “form of proceeding for judicial review is any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction”; and the requirement of Section 10(e), 5 U.S.C. § 706, that the “reviewing court shall . . . (2) hold unlawful and set aside agency action, findings and conclusions found to be . . . (D) without observance of procedure required by law. . . .”
We have considered the Board’s argument that its promulgation of parole selection criteria is not subject to judicial review — whether or not subject to the Act — because release on parole is committed to agency discretion within the meaning of Section 10 of the Act, 5 U.S.C. § 701(a)(2), by 18 U.S.C.' § 4203(a). But we are not reviewing the granting or denying of parole in a particular case, action which may reflect an unreviewable exercise of agency discretion. We are not even reviewing the merits of the rules and standards the Board has adopted. The appellees’ complaint and our consequent adjudication address themselves solely to the procedures by which those rules may be formulated. The justiciability of such a complaint depends upon Section 10, particularly subsection (e), of the Act, as already discussed, not the discretionary character of the Board’s determinations as to when parole shall be granted. The giving of notice of rule-making and the consideration of consequent submissions by interested persons might inform, but would not otherwise impinge upon, the Board’s discretion in framing its standards and guidelines.
We turn now to the merits of the appeal. The procedure below and certain events subsequent to the entry of judgment necessitate preliminary identification of the issues that are properly before us. First, although the complaint did not specifically ask for a declaration that the rules then in effect were invalid, and although it was never formally amended, the general prayer for necessary, just, and proper relief, coupled with the above mentioned focusing of the parties’ attention upon their basic controversy about the rules’ validity, justified the district court’s adjudication of that issue. See also Rule 54(c), F.R.C.P. Thus, unless the question of the validity of the rules which the district court invalidated has since been mooted, that issue is properly before this court.
The mootness issue arises from the fact that on September 19, 1973, the Parole Board published new rules. 38 Fed.Reg. 26652, 31942. The first publication altered many of the Board’s procedures for hearing and deciding parole applications. It also placed in the Federal Register, with slight change, the criteria for parole selection which appear in the 1971 Rules, supra. Those regulations, however, were made applicable to only one part of the country, and they do not apply to two of the appellees.
The November announcement consists of a complex, detailed table which purports to state the range of months which the Board will require an inmate to serve depending upon the severity of his offense (six classifications) and his “salient factor score” (four classifications), a number computed according to factors also announced in the November publication. The November regulation apparently applies nationwide and may largely replace prior rules regarding the criteria used for parole selection, though no such statement appears. In any event, the November regulation speaks to one of the areas of Board operation which the original complaint addressed. Within that area it is a more rigid structuring of the Board’s discretion than were the criteria it replaces. Indeed, it is designed to, and almost surely will lead to, more nearly uniform decisions, and more restricted decision-making. In these circumstances, the Board’s September and November pronouncements preserve, rather than moot, the original controversy over the validity of rules adopted without compliance with Section 4 of the Act.
As it promulgated the November regulation, the Board asserted that it was not subject to the Act, the belief of the court below notwithstanding. 38 Fed.Reg. 31942. The Board reasoned then and contends on this appeal that it is not an “agency” as that term is defined in the Act, although in the district court it conceded that it is such an “agency” and subject to the Act. Appellees do not rely on that concession and we shall dispose of the Board’s present contention on its merits.
Section 2(a) of the Act defines agency for purposes of the Act as “each authority of the United States”, other than certain exclusions. None of the specified exclusions embraces the Board. Moreover, this court has said that the Act, including the definitional section, should be received hospitably. See, e. g., Soucie v. David, 1971, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1073; Chotin Towing Corp. v. Federal Power Commission, 1957, 102 U.S.App.D.C. 69, 250 F.2d 394. Legislative history, though sparse, supports a broad, inclusive reading of the Act. S.Doe.No.248, 79th Cong., 2d Sess. (1946) at 196, 253, 305, 354.
None of the Board’s arguments for exemption are impressive. The fact that the legislative history of the Act makes no reference to the Board or its unique problems is not significant because the same is true for a great number of agencies that unquestionably are covered. Indeed, the bill was not drafted as one which dealt with particular agencies by name, but rather as a regulation of particular types of functions in which agencies of the Executive Branch generally engage. S.Doc.No.348 at 191 (S.Rep.), 250 (H.R.Rep.). Thus, some types of functions were exempted, not particular Executive Departments or agencies. Such functions as this case presents were not exempted.
The Board’s legislative history argument seems, if anything, contrary to its position. The Walter-Logan bill, H.R. Bill No. 6324, 76th Cong. 3d Sess. (1940), a predecessor of the Act which President Roosevelt vetoed, contained an express exemption for the Department of Justice that would have covered the Board. S.Doc.No.145, 76th Cong., 3d Sess. (1940) at 24-25. The Act, however, contains no exemption for either the Department or the functions at issue here. Its draftsmen were familiar with the then recently ill-fated Walter-Logan bill and deliberately adopted a different scheme. Whether, as the Board argues, “the rationale for exemption of the criminal process . . . remains viable”, is irrelevant to this case since Congress abandoned that approach.
We find unpersuasive an argument of the Board that it is exempt because the Probation Service is exempt. The exemption of the latter is warranted not by the functions it performs as the Board suggests, but by its status as an auxiliary of the courts, which, unlike agencies of the executive branch, are specifically excluded.
The Board also argues that Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, holding that the due process clause does not require appointment of counsel in every parole revocation proceeding of an indigent person, suggests that the Act does not apply to the Board, because Section 6(a) of the Act, 5 U.S.C. § 555(b), authorizes counsel at agency hearings. But aside from the fact that Gagnon involved the application of the Constitution to the states, not the impact of a statutory regulation of federal administration, Section 6(a) does not suggest that the appointment of counsel is required. Hyser v. Reed, supra n. 7, 115 U.S.App.D.C. 254, 318 F.2d at 237.
A major Board contention is that, functionally viewed, its actions here at issue are exempt from the rule-making procedures because they are either general statements of policy, interpretative rules, or rules relating to agency organization, practice or procedure, all of which are explicitly exempted by Section 4 (a). We now consider each of those categories.
Several courts have ruled that agency action cannot be a general statement of policy if it substantially affects the rights of persons subject to agency regulations. Lewis-Mota v. Secretary of Labor, 2d Cir. 1972, 469 F.2d 478, 482; Texaco, Inc. v. Federal Power Commission, 3d Cir. 1969, 412 F.2d 740, 744; National Motor Freight Traffic Ass’n v. United States, D.D.C.1967, 268 F.Supp. 90, 95-97, aff’d, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19; cf., Public Service Commission of State of New York v. Federal Power Commission, 1967, 126 U.S.App.D.C. 26, 373 F.2d 816; rev’d in part on other grounds, 1968, 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388; see also Seaboard World Airlines v. Gronouski, D.D.C.1964, 230 F.Supp. 44. As the cited cases state, that outer boundary of the general policy exemption derives from congressional purpose in enacting Section 4 — that the interested public should have an opportunity to participate, and the agency should be fully informed, before rules having such substantial impact are promulgated.
The guidelines which the Board had adopted prior to this action, Rules, supra, at 14-16, were of a kind calculated to have a substantial effect on ultimate parole decisions. They consist of nine general categories of factors, broken down into a total of 32 sub-categories, often fairly specific. Although they provide no formula for parole determination, they cannot help but focus the decision-maker’s attention on the Board-approved criteria. They thus narrow his field of vision, minimizing the influence of other factors and encouraging decisive reliance upon factors whose significance might have been differently articulated had Section 4 been followed.
The November regulation is more formula like, and hence has an even greater impact on an inmate’s chances for parole. Under that regulation the amount of time an inmate serves in prison will depend on five elements, three of which the regulation firmly controls. First, it places each offense in one of six categories of relative severity. The determination into which category a given offense falls places a particular minimum and maximum on the amount of time almost all offenders will serve. Second, an inmate’s salient factor score is determined according to rigid criteria, items A-I, 38 Fed.Reg. 31945. Under the rule, the score is computed using only those criteria, and the quantitative input of each is specified as well. Computation of the score is a purely mechanical operation. Third, the chart sets a narrow range of months of imprisonment that will be required for a given category of offense and a given salient factor score. This is not to suggest that these determinants are either unfair or undesirable, but merely that they have significant consequences. Thus, the rules which define parole selection criteria, new and old, are substantive agency action, for they define a fairly tight framework to circumscribe the Board’s statutorily broad power.
Additionally, these are not interpretative rules. As the word interpretative suggests, and as the legislative history makes clear, interpretative rules consist of administrative construction of a statutory provision on a question of law reviewable in the courts. S.Doc.No.248, supra at 18-19. Treasury Regulations interpreting the Internal Revenue Code are a prime example. The Board's statements are not interpretations of a statute’s meaning. Rather, they are self imposed controls over the manner and circumstances in which the agency will exercise its plenary power. They have the effect of law and are not reviewable except for arbitrariness. Hence, they are not the kind of action Congress undertook to exempt from statutory requirements that regulate the rule-making process. S.Doe.No.248, supra at 18-19; accord, Gibson Wine Co. v. Snyder, 1952, 90 U.S.App.D.C. 135, 194 F.2d 329; National Ass’n of Ins. Agents v. Board of Governors of the Federal Reserve System, 1974, 160 U.S.App.D.C. 144, 489 F.2d 1268.
In keeping with the type of action Congress sought to exempt, a matter “relating to practice or procedure” means technical regulation of the form of agency action and proceedings. This category too, should not be deemed to include any action which goes beyond formality and substantially affects the rights of those over whom the agency exercises authority. Certainly, it does not include formalized criteria adopted by an agency to determine whether claims for relief are meritorious. Kessler v. F. C. C., 1963, 117 U.S.App.D.C. 130, 326 F.2d 673, 679-682; Ranger v. F. C. C., 1961, 111 U.S.App.D.C. 44, 294 F.2d 240, 244; Seaboard World Airlines, supra.
Judged by the same standards, the Board’s regulations concerning parole hearings also seem not to fall within any of the exemptions from Section 4. These are no more interpretative rules, general statements of policy, matters relating to personnel, or matters left to agency discretion than are the criteria used to dispose of parole applications. The Board’s argument that these are rules of agency procedure and practice is more substantial, but, as stated above, adherence to congressional purpose counsels a construction of this exemption that excludes from its operation action which is likely to have considerable impact on ultimate agency decisions. If the regulations regarding parole hearings are likely to produce parole decisions different from those which alternatives would be likely to produce, then the exemption should not apply. On the other hand, such a regulation as Section 2.15, which merely prescribes order and formality in the transaction of Board business, is clearly within the procedure and practice exemption.
The district court properly decided that the Board’s challenged rules, as they existed when this suit was filed, were essentially invalid. Moreover, since the new guidelines for decision upon the granting of parole adopted during the pendency of this suit are invalid for the same reason, the district court’s order that any replacements be adopted in proceedings that conform to the Act continues to be appropriate and essentially correct. However, the district court shall be free to modify its judgment to specify and exclude from its mandate any existing rules of a type that, under the rationale of this opinion, could properly be adopted without notice and opportunity to be heard.
The judgment is affirmed.
. Rules has been published in successive edition since 1930. A copy of the 1971 edition, in effect when the complaint was filed, appears in the record.
. The petition focused on 28 C.F.K. §§ 2.14, 2.15, 2.16 and Rules at 14-16 (general factors in parole selection) but apparently contemplated the possibility of wholesale reform of the Board’s procedures. Two public interest groups were co-petitioners, but are not parties to this action.
. This court has stayed the order of the district court pending appeal.
. Cases which hold the Act to be an independent grant of district court jurisdiction include Bradley v. Weinberger, 1st Cir. 1973, 483 F.2d 410; Brandt v. Hickel, 9th Cir. 1970, 427 F.2d 53; Brennan v. Udall, 10th Cir. 1967, 379 F.2d 803; Deering Milliken, Inc. v. Johnston, 4th Cir. 1961, 295 F.2d 856; see also, In re School Board of Broward County, Florida, 5th Cir. 1973, 475 F.2d 1117.
Two circuits have reached contrary decisions : e. g., Zimmerman v. United States Government, 3d Cir. 1970, 422 F.2d 326; Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 8th Cir. 1967, 370 F.2d 529; but see State Highway Commission of Missouri v. Volpe, 8th Cir. 1973, 479 F.2d 1099 (noting intervening Supreme Court decisions).
Decisions of the Second Circuit recognize intra-circuit conflict: Toilet Goods Ass’n v. Gardner, 2d Cir. 1966, 360 F.2d 677, aff’d, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; Aguayo v. Richardson, 2d Cir. 1973, 473 F.2d 1090.
. The requirement that the reviewing court be one of “competent jurisdiction” can reasonably be read as a recognition of generally ajiplicable venue requirements.
. 5 U.S.C. § 551(1) (1970) :
For the purpose of this subchapter—
(1) “agency” means each authority of the United States, whether or not it is within or subject to review by another agency, but does not include—
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;
or except as to the requirements of section 552 of this title—
(E) agencies composed of representatives of the parties or of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions ;
(G) military authority exercised in the field in time of war or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;
. Revocation proceedings have often been held not subject to the Act, e. g., Hyser v. Reed, 1963, 115 U.S.App.D.C. 254, 318 F.2d 225, 237 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315, Hiatt v. Compagna, 5th Cir. 1949, 178 F.2d 42, aff’d by an equally divided court, 1950, 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639, but whether the Board was an agency was not at issue.
In Hurley v. Reed, supra, 110 U.S.App.D.C. at 34, 288 F.2d at 846, this court said that “the Board is clearly an administrative agency . ” although that was not the issue there.
. This court has ruled that at least retained counsel must be permitted at revocation proceedings. Compare, Ilyser, supra, with Glenn v. Reed, 1961, 110 U.S.App.D.C. 85, 289 F.2d 462.
. The Section 4(a) exemption is by its terms from only the notice requirement, but Section 4(b) applies only if Section 4(a) also applies.
The Board also claims exemption under the agency personnel provision of Section 4, 5 U.S.C. § 553(a) (2), asserting that prisoners are Board personnel. AVe reject this argument as frivolous. Prisoners are a Board regulated group, not its employees.
. For example, the September 24 promulgation dropped certain factors. Compare, e. g., Rules, supra at 15 (E, F) with 38 Fed.Reg. at 26654 (§ 2.24(e), (f)).
. The other two factors, not controlled by the regulation, the (1) when within the specified range an inmate should be released, and (2) whether circumstances warrant departure from the chart. Given that the first of these provides some flexibility, the second is likely to receive infrequent use.
Question: Decisions that affect life, liberty, or property must be preceded by adequate notice and an opportunity for a fair hearing. Did the agency give proper notice?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_dissent
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY.
No. 82-1096.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1982.
Decided Jan. 4, 1983.
Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant.
John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee.
Before WRIGHT, EDWARDS and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion concurring and dissenting in part filed by Circuit Judge BORK.
TABLE OP CONTENTS
Page
Introduction_____________________________ 1097
I. BACKGROUND _____ 1097
II. THE USE OP A TIME-OF-REQUEST
CUT-OPP DATE......—......... 1100
A. Applicable Law_________________ 1100
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date......... 1102
C. The Reasonableness of the Agency’s Procedure in This Instance________ 1103
Page
III. THE REFERRAL PROCEDURE_____ 1105
A. “Agency Records” Covered by the Act.......................... 1105
B. Treatment of Documents Obtained From Other Agencies____________ 1109
IV. INVOCATION OP THE “INTELLIGENCE SOURCE” EXEMPTION.... 1112
CONCLUSION.............. ni4
HARRY T. EDWARDS, Circuit Judge:
We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act (“FOIA” or “the Act”). The District Court granted appellee’s motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an an-publicized Central Intelligence Agency (“CIA” or “the agency”) rule which had the effect of limiting the FOIA search to materials in the agency’s possession on the date when appellant made his initial request for documents. This “time-of-request cut-off” policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee’s motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation (“FBI”). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). Because we conclude that the District Court’s rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings.
I. Background
The outcome of this case turns substantially upon nuances in its facts. Accordingly, the procedural background to this appeal will be described at some length.
Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the “People’s Temple” in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered.
Despite the extensive attention given the Jonestown Tragedy, the character of the People’s Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones’ congregation. On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the “Peoples Temple.”
The treatment accorded McGehee’s request during the following month is not entirely clear from the record. It appears that the agency’s Information and Privacy Division (“IPD”), the office that coordinates responses to requests for information, determined that two other divisions—the Directorate of Operations (“DO”) and the Office of Security (“OS”)—were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were “tasked”—i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee’s request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference (“NFAC/OCR”), had completed a computer search in response to an earlier FOIA request very similar to McGehee’s (the “Douglas request”) and had identified relevant documents in the agency’s possession. However, no immediate effort was made to retrieve those documents either. Instead, McGehee’s request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a “processing queue,” the CIA’s system for dealing with FOIA requests on a “first-in-first-out basis.”
This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee’s request. Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. Never did the agency inform McGehee that it had adopted December 22, 1978 as a “cutoff date” for its searches.
On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. On March 3, 1981, the court set a deadline of May 5,1981, by which time the agency was to complete its processing of McGehee’s request, release all nonexempt responsive material, and submit a Vaughn index cataloging any withheld documents. Soon thereafter the court granted the agency’s motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court’s directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee’s request. It disposed of those materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them.
The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 “other agency” documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the “other agency” records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. The fate of the FBI document does not appear from the record.
In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated “People’s Temple” and had not sought information under any closely related headings—e.g., the Reverend James Jones or Jonestown. See App. 191.
On January 19,1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee’s motion for an in camera inspection of the withheld and edited documents to test the basis for the agency’s refusal to release them, granted the CIA’s motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA’s motion for summary judgment as to the remainder of the suit. This appeal followed.
II. The Use of a Time-of-Request Cut-off Date
McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related.
A. Applicable Law
We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted:
[A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it.
Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents.
Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency’s invocation of a statutory exemption to justify withholding of material. Two considerations indicate that the same rule should govern the issue before us. One is that the information bearing upon the reasonableness of any temporal or other limitation on a search effort is within the agency’s exclusive control. The other is that the Act as a whole is clearly written so as to favor the disclosure of any documents not covered by one of the enumerated exemptions. Insofar as burdens of persuasion are generally assigned to parties advancing disfavored contentions, the agency should bear the responsibility of convincing the trier of fact that its less than comprehensive search is reasonable under the circumstances
Third, the fact that the subject of this appeal is the grant of appellee’s motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows:
It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.”... [Moreover, the] “ ‘inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion.’ ”
Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id.
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date
In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny.
The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of the time of a request as a temporal limit to a FOIA search.
C. The Reasonableness of the Agency’s Procedure in This Instance
Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions.
The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cutoff dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure.
In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example:
Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search
Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released.
We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.”
It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency’s argument that its present practice is “reasonable” would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony. It should be clear, however, that to prevail on this issue, the agency will have to do better than it has thus far.
One additional aspect of this general problem merits brief attention. It would be extremely difficult for the CIA to convince us that it may “reasonably” use any cut-off date without so informing the requester. Such notification would involve an insignificant expenditure of time and effort on the part of the agency. And it would enable the requester to submit supplementary demands for information if he felt so inclined. Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform requesters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid.
III. The Referral Procedure
McGehee’s second allegation of error is that the District Court improperly granted the CIA’s motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee’s claim are well known but their application to the specific question presented has never been resolved.
A. “Agency Records” Covered by the Act
The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held:
The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records.” Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.
Id. at 150, 100 S.Ct. at 968.
The CIA argues vigorously that the District Court’s decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not “agency records” within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling.
Evaluation of this argument proves surprisingly difficult because of the absence of statutory or precedential guidance. As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of “agency records,” never defines that crucial phrase. A reading of the legislative history yields insignificant insight into Congress’ conception of the sorts of materials the Act covers. And we gain little by ransacking the case law interpreting the FOIA; no appellate court has expressed an opinion on the question of the legal status of documents prepared by one agency in the possession of another
This and other courts have, on occasion, been called upon to decide whether other materials of ambiguous form or origin fall within the category of “agency records.” It is upon some of those decisions that the District Court and the CIA principally rely in justifying the position they take in the instant ease. Unfortunately, none of the cases in question is apposite. It has been held that, under certain circumstances, records in an agency’s possession that originated with Congress do not constitute “agency records” for the purpose of the FOIA. Likewise, materials prepared by or for the judiciary that eventually find their way into the hands of an agency eovered by the Act have been held to fall outside the crucial category. The same is true of documents prepared by the President or his personal staff. But two factors distinguish all of these cases from the situation before us. First, each of the departments of government listed above is itself exempt from the coverage of the FOIA. Second, special policy considerations militate against a rule compelling disclosure of records originating in these three bodies merely because such documents happen to come into the possession of an agency. Congress, we have held, should not be forced to abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents with those agencies “to facilitate their proper functioning in accordance with Congress’ originating intent”). The courts, similarly, have an important interest in controlling the dissemination of their documents to the public, yet, to facilitate the operation of the penal system, often must make those records available to departments of government covered by the Act. Finally, the importance of the confidentiality of communications between the President and his immediate advisors, combined with the likelihood that records of those exchanges will find their way into portions of the “Executive Office of the President” covered by the Act, render undesirable a per se rule that such documents are “agency records.” In the present case, by contrast, the organs of government that first compiled the records—the State Department and FBI—clearly are covered by the Act. And no policy considerations comparabie to those requiring special protection for documents emanating from Congress, the courts or the President’s personal staff are applicable.
In sum, the question whether a document in the possession of one agency that originated in another constitutes an “agency record” for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole.
It has often been observed that the central purpose of the FOIA is to “open[ ] up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions. Each of these objectives—and particularly the last—would be best promoted by a rule that all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.”
This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act.
B. Treatment of Documents Obtained From Other Agencies
Our conclusion that the documents the CIA obtained from the State Department and FBI constitute “agency records” does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were “(1) ‘improperly’; (2) ‘withheld’” by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court’s three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms. Nor does the legislative history of the Act provide us much guidance. Once again, therefore, we are cast back upon the premises and objectives of the FOIA as a whole. Those considerations suggest the following definitions:
“ WithholdingCertainly a categorical refusal to release documents that are in the agency’s “custody” or “control” for any reason other than those set forth in the Act’s enumerated exemptions would constitute “withholding.” Interpretive problems arise only in the context of processing or referral procedures that are likely to result eventually, but not immediately, in the release of documents. The legal status of such procedures seems to us best determined on the basis of their consequences. We conclude, in other words, that a system adopted by an agency for dealing with documents of a particular kind constitutes “withholding” of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.
“Improper’’: We are persuaded by Justice Stevens’ opinion in Kissinger that sensible explication of the term “improper” in this context requires incorporation of a standard of reasonableness. Thus, “withholding” of the sort just described will be deemed “improper” unless the agency can offer a reasonable explanation for its procedure. The form such an explanation would be most likely to take would be a showing that the procedure significantly improves the quality of the process whereby the government determines whether all or portions of responsive documents are exempt from disclosure. Naturally, the more serious the resultant impediments to obtaining records or the longer the resultant delay in their release, the more substantial must be the offsetting gains offered by the agency to establish the reasonableness of its system. At the extreme, a procedure that, in practice, imposed very large burdens on requesters (eg., by compelling them to pay huge processing costs or to submit separate requests to a number of independent bodies) or that resulted in very long delays would be highly difficult to justify.
A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.
There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body. Nor is the extent of the accompanying impairment of McGehee’s ability to gain access to those records apparent. We therefore remand the case with instructions to afford the parties opportunity to adduce additional relevant evidence.
We recognize that the standards we adopt today are not “bright line” tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act:
Sample Procedure for Processing Documents Originating with Other Agencies
An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an “intent to control” test. Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents.
To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it | undertook ah examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned “intent to control” test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency.
The system we outline, by promoting (i) the processing by the agencies to which requests are submitted of a substantial percentage of the “other agency” records in their possession and (ii) the rapid referral to the originating bodies of the remainder, would mitigate the two most serious hardships associated with the extant automatic referral systems: the inconvenience to requesters of being compelled to assert their rights in two or more independent administrative fora and the long delays resulting from the superimposition of two or more processing sequences.
If, in a given case, the “intent to control” test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner’s request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to Fed.R.Civ.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above.
IV. Invocation of the “Intelligence Source” Exemption
McGehee’s final allegation of error concerns the District Court’s decision to grant summary judgment on the ground that all material withheld by the agency was properly exempt from disclosure under the Act. The CIA defends the ruling below on the ground that it has established that the material in question is covered by FOIA exemptions (1) and (3). In the context of the instant case, the agency observes, those two provisions are functionally equivalent: both shield all information whose disclosure would result in revelation of the identities of “intelligence sources.”
The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA’s motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context:
[Sjummary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted).
The CIA in the instant case satisfies the first and second branches of this composite test. The affidavits submitted by Louis J. Dube describe in considerable detail the grounds for the exemptions claimed by the agency and the reasons why each relevant document falls into one of the categories delineated. The agency likewise passes the third component of the test; no representation made in the Dube affidavits is controverted by other evidence in the record.
On the fourth and final requirement, however, the CIA stumbles. We find that the record contains significant evidence suggesting that the agency has not processed McGehee’s request in good faith. Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee’s reasonably straightforward request; indeed, the agency made no substantive response whatsoever until compelled to do so by order of the District Court. Second, the CIA failed to disclose the fact that it was using December 22, 1978, as a cut-off date. The cumulative weight of this evidence of bad faith is enough to vitiate the credit to which agency affidavits are ordinarily entitled. Accordingly, the District Court’s grant of summary judgment was erroneous.
It remains to be decided what should be the proper remedy on remand. McGehee urges two solutions on us. First, he requests an instruction to the District Court to permit him to conduct discovery to ascertain the basis of the agency’s claim that disclosure of the withheld material would reveal the identities of “intelligence sources.” Second, he seeks a directive to the District Court to conduct an in camera examination of the documents in question to determine whether the invocations of exemptions were justified.
With regard to the first option, the CIA argues vigorously that an explanation for its actions any fuller than that already made would itself compromise national security. Such a claim should not be disregarded lightly. Although evidence of agency bad faith, as we have shown, undermines the credibility of many of the CIA’s allegations, we are unwilling to respond by exposing the agency to McGehee’s discovery, at least if there exists any alternative method of testing the agency’s right to rely upon the statutory exemptions.
We turn, therefore, to the second proposed remedy. In a recent case, we summarized the considerations that should guide a district court in deciding whether to conduct an in camera inspection of withheld records. In Allen v. CIA, 636 F.2d 1287, 1298-99 (D.C.Cir.1980), we identified the following as relevant factors: (a) the number and length of the documents at issue; (b) whether further public justification of the invocation of exemptions is inappropriate because “such justification[ ] would reveal the very information sought to be protected”; (c) the existence and strength of “evidence of bad faith on the part of the agency”; (d) whether the contents of the documents are in dispute; (e) the agency’s acquiescence in such a proceeding; and (f) the strength of the public interest in disclosure of the withheld materials (particularly applicable when the question of whether the agency is “properly serving its public function” is involved). Factors (e) and (f), in the instant case, provide McGehee little aid; the CIA actively resists an in camera inspection and the “public interest” in revelation of what the CIA knows about the Jonestown incident seems minor. Factors (a) through (d), however
Question: What is the number of judges who dissented from the majority?
Answer:
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sc_certreason
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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.
PETERS v. KIFF, WARDEN
No. 71-5078.
Argued February 22, 1972
Decided June 22, 1972
Marshall, J., announced the Court’s judgment and delivered an opinion, in which Douglas and Stewart, JJ., joined. White, J., filed an opinion concurring in thé judgment, in which BreNNAN and Powell, JJ., joined, post, p. 505.- Burger, C. J., filed a dissenting opinion, in which BlackmuN and RehNQüist, JJ'., joined, post, p. 507.
Edward T. M. Garland argued the cause and filed a brief for petitioner.
Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, . and Courtney Wilder Stanton and David L. G. King, Jr., Assistant Attorneys General.
Jack Greenberg, James M. Nabrit III, and Cluirles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal.
Mr. Justice Marshall
announced the judgment of the Court and an opinion in which Mr. Justice Douglas and Mr. Justice Stewart join.
Petitioner alleges that Negroes were, systematically excluded from the grand jury that indicted him and the petit jury that convicted him of burglary in the Superior Court of Muscogee County, Georgia. In consequence he contends that his conviction is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because he is not himself a Negro, the respondent contends that he has hot suffered any unconstitutional discrimination, and that his conviction' must stand. ' On that ground, the Court of Appeals affirmed the denial of his petition for federal habeas corpus. 441 •F. 2d 370' (CA5 1971). We granted certiorari. 404 U. S. 964 (1971). We reverse.
I
At the- outset, we reject the contention that the only-issue before this Court is petitioner’s challenge to the composition of the grand jury that indicted him. The respondent argues that the challenge to the petit jury is not before us, because it fails to appear in the list of questions presented by the petition for certiorari. We do not regard that omission as controlling, however, in light of the fact that the two claims have been treated together at every stage of the proceedings below, they are treated together in the body of the petition for certiorari, and they are treated together in the brief filed by petitioner on. the merits in this Court. Petitioner cannot fairly be said to have abandoned his challenge to the petit jury, and the State has had ample opportunity to respond to that challenge, having done so at length below.
Moreover, in this case the principles governing the two claims are identical. First, it appears that the same selection process was used for both the grand jury and the petit jury. Consequently, the question whether jurors were in fact excluded on the basis of race will be answered the same way for both tribunals. Second, both the grand jury and the petit jury in this case must be measured solely by the general Fourteenth Amendment guarantees of due process and equal protection, and not by the specific constitutional provisions for the grand' jury and the petit jury. For the Fifth Amendment right to a grand jury does not apply in a state prosecution. Hurtado v. California, 110 IT. S. 516 (1884). And the Sixth Amendment right to a petit jury, made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Duncan v. Louisiana, 391 U. S. 145 (1968), does not apply to state trials that took place before the decision in Duncan, as petitioner’s trial did. DeStefano v. Woods, 392 U.S. 631 (1968). Accordingly, we turn now to the commands of equal protection and of due process.
II
This Court has never before considered a white defendant’s challenge to the exclusion of Negroes from jury service. The essence of petitioner’s claim is this: that the tribunals that indicted and convicted him were constituted in a manner that is prohibited by the Constitution and by statute; that the impact of that error on any individual trial is unascertainable; and that consequently any indictment or conviction returned by such tribunals must be set aside.
There can be no doubt that, if petitioner’s allegations are true, both tribunals involved in this case were illegally constituted. He alleges that Negroes were systematically excluded from both the grand jury and the petit jury. This Court has repeatedly held that the Constitution prohibits such selection practices, with respect to the grand jury, the petit jury, or both. Moreover, Congress has made it a crime for a public official to exclude anyone from a grand or petit jury on the basis óf race, 18 U. S. C. § 243, and this Court upheld the statute, approving the congressional determination that such exclusion would violate the express prohibitions of the Equal Protection Clause. Ex parte Virginia, 100 U. S. 339 (1880). The crime, and the unconstitutional state action, occur whether the- defendant is white or Negro, whether he is acquitted or convicted. In short, when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim.
It is a separate question, however, whether petitioner is entitled to the relief he seeks on the basis of that constitutional violation. Respondent argues that even if the grand and petit juries were unconstitutionally selected, petitioner is not entitled to relief on that account because he has not shown how he was harmed by the error. It is argued that a Negro defendant’s right to challenge the exclusion of Negroes from jury service rests on a presumption that a jury so constituted will be prejudiced against him; that no such presumption is available to a white defendant; and consequently that a white defendant must introduce. affirmative evidence of actual harm in order to establish a basis for relief.
That argument takes too narrow a view of the kinds of harm that flow from discrimination in jury selection. The exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of related constitutional values.
In Strauder v. West Virginia, 100 U. S. 303, 308-309 (1880), this Court considered the question from the point of view of the Negro defendant’s right to equal protection of the laws. Btrauder was part of a landmark trilogy oí cases, in which this Court first dealt with the problem of racial discrimination in jury selection. In Strauder itself, a Negro defendant sought to remove his criminal trial to the federal. courts, pursuant to statute, on the. ground that Negroes were excluded by law from the grand and petit juries in .the state courts; the Court upheld his claim. In Virginia v. Rives, 100 U. S. 313 (1880), a Negro defendant sought removal on the ground that there were in fact no Negroes in the venire from which his jury was drawn; the Court held that, without more, his claim did not come within the precise terms of the removal statute. Finally, in Ex parte Virginia, 100 U. S. 330 (1880), a state judge challenged the' statute under which he was convicted for the federal crime of excluding Negroes from state grand and petit juries; the Court upheld the statute as a valid means of enforcing the Equal Protection Clause. Because each of these three cases was amenable to decision on the narrow basis of an analysis of the Negro defendant’s right to equal protection, the Court brought all three under that single analytical umbrella.
But even in 1880 the Court recognized that other constitutional values were implicated. In Btrauder, the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the “privilege of participating equally '. . . in the administration of justice,” 100 U. S., at 308, and it stigmatizes the whole class, even those who . do not wish to participate, by declaring them unfit for jury service and thereby putting “a-brand upon them, affixed by law, an assertion of their inferiority.” Ibid. It is now clear that injunctive relief is available to vindicate these interests of the excluded jurors and the stigmatized class. Carter v. Jury Commission of Greene County, 396 U. S. 320 (1970); Turner v. Fouche, 396 U. S. 346 (1970); White v. Crook, 251 F. Supp. 401 (MD Ala. 1966).
Moreover, the Court has also. recognizecLthat the exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded, class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. In Williams v. Florida, 399 U. S. 78 (1970), we sought to delineate some of the essential features of the jury that is guaranteed, in certain circumstances, by the Sixth Amendment. We concluded that it comprehends; inter alia, “a fair possibility for obtaining a representative cross-section of the community.” 399 U. S., at 100. Thus if the Sixth Amendment were applicable here, and petitioner were challenging a pqst-Duncan petit jury, he would clearly have standing to challenge the systematic exclusion of any identifiable group from jury service.
The precise question in this case, then, is whether a State may subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition, and leave the defendant without recourse on the ground that he had in any event no right to a grand or petit jury at all. We conclude, for reasons that follow, that to do so denies the defendant due process of law.
Ill
“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136 (1955). The due process right to a competent and impartial tribunal is quite separate from the right to any particular form of proceeding. Due process requires a competent and impartial tribunal in administrative hearings, Goldberg v. Kelly, 397 U. S. 254, 271 (1970), and in trials to a judge, Tumey v. Ohio, 273 U. S. 510 (1927). Similarly, if a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that Jury-
Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law. Thus a defendant cannot, consistent with due process, be subjected to trial by an insane juror, Jordan v. Massachusetts, 225 U. S. 167, 176 (1912), by jurors who are intimidated by the threat of mob violence, Moore v. Dempsey, 261 U. S. 86 (1923), or by jurors who have formed a fixed opinion about the case from newspaper publicity, Irvin v. Dowd, 366 U. S. 717 (1961).
Moreover, even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias. This rule, too, was well established long before the right to jury trial was made applicable in state trial's, and does not depend on it. Thus it has been invoked in trials to a judge, e. g., Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955); Mayberry v. Pennsylvania, 400 U. S. 455 (1971); and in pre-Duncan state jury trials, e. g., Turner v. Louisiana, 379 U. S. 466 (1965); Estes v. Texas, 381 U. S. 532, 550 (1965). In Tumey v. Ohio, supra, this Court held that a judge could not, consistent with due process, try a case when he had a financial stake in the outcome, notwithstanding the possibility that he might resist the temptation to be influenced by that interest. And in Turner v. Louisiana, supra, the Court held that a jury could not, consistent with due process, try a case after it had been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association. , As this Court said in In re Murchison, supra, “[f] airness of course requires an absence of actual' bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” 349 U. S., at 136.
These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create' the appearance of bias in the decision of j individual cases, and they increase the risk of actual ¡ bias as well.
If it were possible to say with confidence that the risk of bias resulting from the arbitrary action involved here is confined to cases involving Negro defendants, then perhaps the right to challenge the tribunal on . that ground could be similarly confined. The case of the white defendant might then be thought to present a species of" harmless error.
But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact.that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. First, if we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of- race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society.
Moreover, we are unwilling to make the assumption Ji that the exclusion of Negroes has relevance only for j j issues involving race. When any large and identifiable1 segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance, in any case that may be presented.
It is in the nature of the practices here challenged that proof of actual harm, or. lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958); In re Winship, 397 U. S. 358, 370-373 (1970) (Harlan, J., concurring). In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.
■ Accordingly, we hold that, whatever his race, a criminal ¡defendant has standing to challenge the systein used to select his grand or petit jury, on the ground that it Arbitrarily excludes from service the members of any race, and thereby denies him due process of law. This certainly is true in this case, where the claim is that Negroes were systematically excluded from jury service. For Congress has made such exclusion a crime. 18 U. S. C. § 243.
IV
Having resolvfed the question of standing, we turn briefly to the further disposition of this case. There is, of course, no question here of justifying the .system under attack. For whatever may be the law with regard to other exclusions from jury service, it is clear beyond all doubt that the exclusion of Negroes cannot pass constitutional muster. Accordingly, if petitioner’s allegations are correct, and Negroes were systematically excluded from his grand and petit juries, then he was indicted, and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand. Since he was precluded from proving the facts alleged in support of his claim, the judgment must be reversed and the case remanded for further proceedings consistent with this opinion.
Reversed and remanded.
The history of this litigation is long and- complicated. Petitioner was indicted on June 6, 1966. His first trial resulted in a conviction that was reversed on Fourth Amendment grounds, 114 Ga. App. 595, 152 S. E. 2d 647 (1966). A second trial, held on December 8, 1966, resulted in the conviction challenged here, which was affirmed, 115 Ga. App. 743, 156 S. E. 2d 195 (1967). Petitioner for the first time raised the claim of discriminatory jury selection in a petition for federal habeas corpus, which was summarily denied on July 5, 1967. The Court of Appeals affirmed on the ground that petitioner had failed to exhaust then-available state remedies with respect to his otherwise highly col-orable claim, 397 F. 2d 731, 735-741 (CA5 1968). Petitioner then filed a second petition for federal habeas corpus on the same ground, alleging that intervening state court decisions clearly foreclosed his claim in the state courts. That petition was denied on the grounds (1) that it was repetitious, (2) that petitioner had failed to exhaust, and (3) that his claims were lacking in merit. App. 15. The Court of Appeals again affirmed, rejecting the first two grounds and resting entirely on the third, i. e., rejecting petitioner’s substantive claims. 441 F. 2d 370 (1971). The exhaustion point thus having been resolved in petitioner’s favor below, the State quite properly does not press it here.
See Brief for Appellee in Court of Appeals 28-43.
The jury lists were made up from the tax digests, which were by law segregated according to race; moreover, the jury lists contained a proportion of Negroes much smaller than the proportion in the population or intthe tax digests.- The jury-selection system of Muscogee County, Georgia, was explored in detail and struck down as unconstitutional in Vanleeward v. Rutledge, 369 F. 2d 584 (CA5 1966), contemporaneously with petitioner’s trial. On petitioner’s first federal appeal, the Court of Appeals suggested, though it did not hold, that the Vanleeward findings and conclusions oh this point ihould be regarded as conclusive with respect to Peters, and thereby the expense and delay of a full evidentiary hearing might be avoided, 397 F. 2d, at 740.
A number of state courts and lower federal courts have imposed a “same class” rule on challenges to discriminatory jury selection, holding that the exclusion of a class from jury service is subject to challenge only by a member of the excluded class. Only a few courts have rejected the rule; e. g., Allen v. State, 110 Ga. App. 56, 137 S. E. 2d 711 (1964) (not followed by other panels of same court); State v. Madison, 240 Md. 265, 213 A. 2d 880 (1965). The cases are collected, and criticized, in Note, The Defendant’s Challenge to a Racial Criterion in Jury Selection, 74 Yale L. J. 919 (1965). See also Note, The Congress, The Court and Jury Selection; 52 Va. L. Rev. 1069 (1966); This Court avoided passing on the "same class” rule in Fay v. New York, 332 U. S. 261, 289-290 (1947), and has never since then approved or rejected it.
He also claims his own rights under the Equal Protection Clause have been violated, a claim we need not consider in light of our disposition.
Alexander v. Louisiana, 405 U. S. 625 (1972); Arnold v. North Carolina, 376 U. S. 773 (1964); Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. Georgia, 350 U. S.. 85 (1955); Cassell v. Texas, 339 U. S. 282 (1950); Hill v. Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940); Pierre v. Louisiana, 306 U. S. 354 (1939); Rogers v. Alabama, 192 U. S. 226 (1904); Carter v. Texas, 177 U. S. 442 (1900); Bush v. Kentucky, 107 U. S. 110 (1883).
Avery v. Georgia, 345 U. S. 559 (1953); Hollins v. Oklahoma, 295 U. S. 394 (1935).
Sims v. Georgia, 389 U. S. 404 (1967); Jones v. Georgia, 389 U. S. 24 (1967) ; Whitus v. Georgia, 385 U. S. 545 (1967); Coleman v. Alabama, 377 U. S. 129 (1964); Patton v. Mississippi, 332 U. S. 463 (1947); Hale v. Kentucky, 303 U. S. 613 (1938); Norris v. Alabama, 294 U. S. 587 (1935); Martin v. Texas, 200 U. S. 316 (1906); Neal v. Delaware, 103 U. S. 370 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880).
The principle of the representative jury was first articulated by this Court as a requirement of equal protection, in cases vindicating the right of a Negro defendant to challenge the systematic exclusion of Negroes from his grand and petit juries. E. g., Smith v. Texas, 311 U. S. 128, 130 (1940). Subsequently, in the exercise of its supervisory power over federal courts, this Court extended the principle, to permit any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. E. g., Glasser v. United States, 315 U. S. 60, 83-87 (1942); Thiel v. Southern, Pacific Co., 328 U. S. 217, 220 (1946); Ballard v. United States, 329 U. S. 187 (1946). Finally it emerged as an aspect of the constitutional right to jury trial in Williams v. Florida, 399 U. S. 78, 100 (1970).
It is of course a separate question whether his challenge would prevail, i. e., whether the exclusion might be found to have sufficient justification. . See Rawlins v. Georgia, 201 U. S. 638, 640 (1906), holding that' a State may exclude certain occupational categories from jury service “on the bona fide ground that it [is] , for the good of the community that their regular work should not be interrupted.” We have no occasion here to consider what interests might justify an exclusion, or what standard should be applied, since the only question in this case is not the validity of an exclusion but simply standing to challenge it.
Or the class may be expanded slightly to include white civil rights workers, see Allen v. State, 110 Ga. App. 56, 62, 137 S. E. 2d 711, 715 (1964) (alternative holding).
In rejecting, for the federal courts, the exclusion of women from jury service, this Court made the following observations, which are equally relevant to the exclusion of other discernible groups:
“The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.” Ballard v. United States, 329 U. S. 187, 193-194 (1946) (footnote omitted).
Hill v. Texas, 316 U. S. 400, 406 (1942).
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_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
GREAT LAKES HOTEL CO. v. COMMISSIONER OF INTERNAL REVENUE.
Circuit Court of Appeals, Seventh Circuit.
December 20, 1928.
Petition for Rehearing withdrawn February 18, 1929.
No. 4041.
Edwin H. Cassels, of Chicago, Ill., for petitioner.
John V. Groner, of Norfolk, Va., for respondent.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
EVAN A. EVANS, Circuit Judge.
Through this appeal petitioner seeks to set aside the decision of the Board of Tax Appeals whereby it was adjudged to be indebted to the United States for income and profit taxes for the year 1920 in the sum of $28,-707.30. The taxpayer’s sole contention is that it was affiliated with H. L. Stevens & Co. and four other companies in the year 1920, within the meaning of section 240 of the Revenue Act of 1918 (40 Stat. 1081), and it is therefore entitled to offset its profits by the losses sustained by these other companies.
Even if not affiliated with all these companies, it contends that it was affiliated with the Olmsted Hotel Company and this affiliation necessitates a substantial reduction in its taxes.
Petitioner accepts the findings made by the Board of Appeals, but excepts to the conclusions which a majority of the board (six members dissented) drew from the findings. This conclusion was: “On consideration of all the facts presented we are of the opinion that petitioner was not affiliated with H. L. Stevens & Co. or with any of its alleged affiliated corporations, during 1920,”
Respondent argues that this is a finding of fact, and, inasmuch as petitioner has not brought up the evidence, it must be accepted by this court as a verity. While we agree with the respondent that it is immaterial whether a finding of fact appears under the heading “conclusions of law,” we are convinced that the above quotation from the board’s findings of fact and conclusions of law is, in this instance, a conclusion of law— not a finding of fact.
The specific findings of fact which the board made show clearly that the quoted statement was nothing more nor less than the board’s conclusion drawn from such detailed facts. Let us assume, to demonstrate the point, a simpler, but similar, situation. Instead of six corporations, assume there were two. Instead of a group of majority stockholders, there was but one. Instead of holding 71 per cent, or 78 per cent, of the. stock, assume his ownership of the stock of both corporations exceed 99 per cent. Then assume further that these facts were all separately and specifically found, and also, as here, the general statement appeared that the two corporations were not affiliated within the meaning of section 240 of the Revenue Act. That the latter statement was a conclusion of the board, not a finding of fact, no one would question.
• Petitioner, therefore, may present his assignment of error which challenges the correctness of this conclusion.
The findings cover some 15 closely printed pages and describe in detail the corporate character and the activities of each of the so-called affiliated companies. A detailed statement, showing the names of each stockholder and the number of shares each stockholder holds in each company, also appears.
H. L. Stevens & Co., with H. L. Stevens as its president, is a Maine corporation whose business is to design and supervise the construction of hotels in the United States and Canada. It carries' a staff of experienced architects, engineers, construction and equipment mem, hotel operators, and experts in hotel operation and financing.
The Olmsted Hotel Company, one of the so-called affiliated corporations, was organized in Ohio by the Stevens Company, and for the purpose of operating the Winton Hotel at Cleveland, Ohio. The Stevens Company took a lease of the hotel, but transferred the local management to the Olmsted Hotel Company.
The Lake Erie Hotel Company was also an Ohio company organized by the Stevens Company to operate the hotel at Ashtabula. The building and the equipment were designed by the Stevens Company in the same way as the petitioner which also was an Ohio corporation organized by the Stevens Company for operating the Olmsted Hotel at Cleveland.
The Olmsted Hotel was designed, op’erated, and equipped by, and under the supervision of, Stevens & Co. The petitioner holds the lease and conducts the Olmsted Hotel, although the hotel proper was first leased to one David Olmsted, with an understanding that it was to be assigned by him to a corporation to be formed by the Stevens Company. Petitioner was then organized to take over this lease, and Olmsted assigned the lease to the petitioner. The money for the purchase of all the stock originally issued was furnished by the Stevens Company, but the stock was issued in the name of Olmsted, who indorsed the certificates in blank. The minority stockholders in all of these companies were' individuals who were acquainted with, or friendly to, the officers of the Stevens Company or to Olmsted.
The Valley Farm Company was a Wisconsin corporation, organized by the Stevens Company for the purpose of organizing and operating a large fruit and stock farm in Wisconsin, the intention being to have said farm furnish the dairy products, the fruit, and certain vegetables for said hotels.
The Metropolitan Mortgage Company was a Delaware corporation, organized for the purpose of financing the Stevens Company hotels and properties. All of the officers and principal employees of the Stevens Company and the other affiliated companies constituted what is referred to by the parties as the Stevens organization. The president of the Stevens Company was the head of the organization.
Each of the so-called affiliated companies reported through its managing officers daily to Stevens on blanks furnished by the Stevens Company. A monthly magazine was sent to all the members of the organization and was used as an advertising medium. Weekly and monthly bulletins, prepared by Stevens Company, were sent out to all members of the Stevens organization. The annual reports of all the companies were kept at all times in a single record book. All the companies had the same fiscal year. The system of accounting of all the affiliated companies was devised and put into operation and continuously supervised by the Stevens Company. All leases, all important contráete, or contracts for concessions, were submitted to the Stevens Company for approval. The same general counsel acted for all companies. The Stevens Company provided a fund for loaning money to employees of all the affiliated companies upon the same terms. Bonus or saving funds were provided for the Stevens organization, available to all employees of all affiliated companies. All parties seemed to agree that the legal title to the stock was in the Stevens associates, and the equitable title.thereto rested in the individuals of the Stevens organization.
In 1920, 71 per cent, of the stock of the Great Lakes Hotel Company was owned by the Stevens Company, or by members of the Stevens organization. Fifty per cent, of sneh stock belonged to H. L. Stevens & Co. Seventy-eight per cent, of the Olmsted Hotel Company was owned by H. L. Stevens & Co., or by the members of the H. L. Stevens organization, and 71 per cent, of the Lake Erie Hotel Company was similarly owned. Seventy-one per cent, of the Metropolitan Mortgage Company was similarly owned. Of the stock of the Great Lakes Hotel Company, 95.5 was similarly owned.
Respecting the affiliation of the petitioner and the Olmsted Hotel Company, it appeared that 95.9 per cent, of the stock of the Great Lakes Hotel Company and 90.7 per cent, of the Olmsted Hotel Cempany was held by the same interests.
Section 240 reads as follows:
“(a) That corporations which are affiliated within the meaning of this section shall, under regulations to be prescribed by. the Commissioner, with the approval of the Secretary, make a consolidated return of net income and invested capital for the purposes of this title and title III, and the taxes thereunder shall be computed and determined upon the basis of sileh return. * * *
“In any ease in which a lax is assessed upon the basis of a consolidated return, the total tax shall bo computed in the first instance as a unit and shall then be assessed upon the respective affiliated corporations in such proportions as may be agreed upon among them, or, in the absence of any such agreement, then on the basis of the net income properly assignable to each. * * *
“(b) For the purpose of this section two or more domestic corporations shall be deemed to be affiliated.
“(1) if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or
“(2) if substantially all the stock of two or more corporations is owned or controlled by the same interests.”
The Treasury Department Regulations, articles 631 and 633 of Regulation 45, read:
“T~he Underlying Necessity for Consolidated Returns.• — -The provision of the statute requiring affiliated corporations to file consolidated returns is based upon the principle of levying the tax according to the true net income and invested capital of a single business enterprise, even though the business is operated through more than one corporation. Where one corporation owns the capital stock of another corporation or other corporations, or where the stock of two or more corporations is owned by the same interests, a situation results which is closely analogous to that of a business maintaining one or more branch establishments. In the latter case, because of the direct ownership of the property, the invested capital and net income of the branch form a part of the invested capital and net income of the entire organization. Where such branches or units of a business are owned and controlled through the medium of separate corporations, it is necessary to require a consolidated return in order that the invested capital and net income of the entire group may bo accurately determined. Otherwise, opportunity would be afforded for the evasion of taxation by the shifting of income through price fixing, charges for services and other means by which income could bo arbitrarily assigned to one or another unit of the group. In other cases without a consolidated return excessive taxation might be imposed as a result of purely artificial conditions existing between corporations within a controlled group.
“Corporations will be deemed to be affiliated (a) when one domestic corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or (b) when substantially all the stock of two or more domestic corporations is owned or controlled by the same interests. The words 'substantially all the stock’ cannot be interpreted as meaning any particular- percentage but must be construed according to the facts of the particular case. The owning or controlling of 95 per cent, or more of the outstanding voting capital stock (not including stock in the treasury) at the beginning of and during the taxable year «will be deemed to constitute an affiliation within the meaning of the statute. Consolidated returns may, however, be required even though the stock ownership is less than 95 per cent. When the stock ownership or^ control is less than 95 per cent., but in excess of 50 per cent., a full- disclosure of affiliations should be made, showing all pertinent facts, including the stock owned or controlled in each subsidiary or affiliated corporation and the percentage of such stock owned or controlled to the total stock outstanding. Such statements should preferably be made in advance of filing the return, with a request for instructions as to whether a consolidated return should be made. In any event such a statement should be filed as part of the return. The words 'the same interests’ shall be deemed to mean the same individual or partnership or the same individuals or partnerships, but when the stock of two or more corporations is owned or controlled by two or more individuals or by two or more partnerships, a consolidated return is not required unless the percentage of stock held by each individual or each partnership is substantially the same in each of the affiliated corporations.”
The determination of this appeal turns upon the construction that is given to the terms “substantially all of the stock” “controlled through closely affiliated interests” and “owned or controlled by the same interests,” as these expressions are used in section 240 (b) above quoted.
Without going into an extensive discussion, we will merely state our conclusions, whieh are:
(a) The word “controlled,” as used in this section, is more comprehensive than the word “owned.”
(b) The “same interests” and “closely affiliated interests” describe the same group, the latter expression enlarging what might otherwise be embraced in the term “same interests.” Both expressions were intended to include more than “same owner.” An examination of the facts in each, ease is necessary to ascertain who, among the stockholders, comprise the group thus designated.
(c) “Substantially all the stock” is a lax, indefinite expression, whieh, under the rulings of the board, is equivalent to “a large majority.” Its limitations cannot be defined' with exactness or certainty. When the Commissioner promulgated article 633 of its Regulations 45 and announced that ownership of more than 51 per cent, of the capital stock of the corporation might, under certain circumstances, be “substantially ' all of the stock,” he was exercising legislative rather than administrative powers and acting beyond his authority.
Applying these conclusions to the facts in the ease before us, we have no hesitancy in holding that the majority stockholders in each of the six corporations comprise a group whieh comes within the statutory designation of “closely affiliated interests.” They were guided in their action by a common interest and their common object was attained by all corporations pursuing the same methods through the same agencies. In addition to owning more than one-half of the stock, these “closely affiliated interests” controlled other stock. For example, there was an understanding that if any minority stockholder wished to sell his stock, it should first be offered for sale to H. L. Stevens & Co., and as a matter of practice such minority stockholders offered their stock to H. L. Stevens & Co., and this company actually purchased the stock thus offered. In addition the various minority stockholders executed proxies to the “closely affiliated interests” by the terms of whieh the latter were authorized to vote for, and act for, the former. A large group of minority stockholders made sworn statements that “at the time they purchased their stock * * * they had full confidence in the rectitude and business ability of H. L. Stevens and that- they anticipated that he would continue as president of the Stevens Co. and that if they desired to sell their stock it was their understanding they should first offer it for sale to H. L. Stevens & Co.”
Upon this record, we are satisfied that such stock was controlled by the so-called closely affiliated interests and that such stock, added to the stock owned by the group- that' comprised the closely affiliated interests, constituted substantially all of the stock of these corporations.
It follows from what has been said that petitioners and H. L. Stevens & Co., the Metropolitan Mortgage Company, Olmsted Hotel Company, the Lake Erie Hotel Company, and Talley Farm were affiliated domestic corporations within the meaning of section 240 (b), and were required to make a consolidated return of their net income, and should have their taxes computed and determined upon the basis of such consolidated return.
The order appealed from is reversed, with directions to proceed in accordance with the views expressed in this opinion.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Stephen N. SOFFRON et al., etc., Defendants, Appellants, v. S. W. LOVELL & COMPANY, Inc., et al., Plaintiffs, Appellees.
No. 5232.
United States Court of Appeals First Circuit.
July 1, 1957.
Arthur D. Thomson, Boston, Mass., for appellants.
Robert B. Russell, Boston, Mass., with whom Porter, Chittick & Russell, Boston, Mass., was on brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
The plaintiffs-appellees, all of them dealers in shell fish, alleging that they had each received letters from counsel for the defendants-appellants threatening them with suit for infringing United States Patent No. 2,726,157, brought this suit in the court below under Title 28 U.S.C. §§ 2201 and 2202 for a judgment declaring either that they were not infringing the above patent, or that it was invalid on the ground that the method of preparing sea clams to provide a fryable product covered by the: patent was known and had been in public use more than one year prior to March 18, 1953, when application for the above patent was filed in the United States Patent Office.
The defendants-appellants answered, and thereupon the plaintiffs-appellees, submitting depositions, moved for summary judgment under Rule 56, F.R.Civ. P. 28 U.S.C. The District Court on the basis of these depositions, the pleadings, and an affidavit filed by the defendants-appellants, granted the motion after hearing and entered an appropriate judgment of injunction from which the defendants-appellants have taken this appeal.
For years the small soft shell clam dug at low tide along the northeastern coast of the United States has been esteemed as a delicacy either steamed or fried. During the 1940’s the supply of these clams sharply decreased while the demand for them increased. The Soffron brothers, the defendants-appellants herein, who are, and for many years have been, dealers in shell fish, set out to find a solution. After extensive experiments they found that for frying purposes a substitute for the small soft shell clam lay in lengthwise slices of uniform thickness of the propulsive organ or foot, sometimes called the tongue, of the much larger sea or hen clam. They developed a slicing machine suitable for their purposes, which they operated in strictest secrecy in their plant, and put their product on the market in February or March 1951. It met with commercial success, and about two years later, on March 18, 1953, they filed the application for a United States patent for their method which on December 6, 1955, ripened into the patent in suit. All three claims of the patent are in issue. Claim Two is typical. It reads:
“2. The method of preparing sea clams to provide a product suitable for frying, which consists in removing the clam from the shell, separating the foot portion from the body of the clam, and slicing the foot portion of the clam lengthwise thereof in slices of substantially uniform thickness throughout the slice, the preferred thickness of the slices being in a range between %" and Mo".”
There can be no doubt, indeed the Soffron brothers freely admit, that they put their sea clam product on the market early in 1951, and that the patent covering the method by which they prepared their product was not applied for until about two years later. They assert, however, that the condition for patent-ability imposed by § 102(b) of Title 35, U.S.C., quoted in material part in the margin, has been met because they always practiced their patented method in secret in a locked room in their plant, the windows of which were painted over and to which only themselves and trusted employees bound to secrecy were ever admitted.
The District Court rejected this contention on the authority of Metallizing Engineering Co., Inc. v. Kenyon Bearing, and Auto Parts Co., Inc., 2 Cir., 153 F.2d 516, certiorari denied, 328 U.S. 840, 66 S.Ct. 1016, 90 L.Ed. 1615, rehearing denied, 1946, 328 U.S. 881, 66 S.Ct. 1364, 90 L.Ed. 1648, and entered the judgment from which this appeal is taken. We agree with the result reached by the District Court but find no occasion either to reject or to accept the doctrine of the case on which it relied.
The District Court and the Court of Appeals in the Metallizing Engineering Co. case were concerned with a patent for a method for procuring a satisfactory bond between a metallic surface, such as a worn machine part in need of being built up, and metal sprayed thereon in molten form. The District Court, D.C. Conn.1945, 62 F.Supp. 42, found that the patentee had used his bonding process more than a year prior to the date of his application for a patent covering it, and that his purpose in so doing was in the main commercial, an experimental purpose in connection with such use being only subordinate. But it found (at page 47) that the patentee had used his novel process in strict secrecy and furthermore that “the nature of the process could not have been deduced from inspection or physical tests upon specimens of the processed product in the hands of the public.” On the basis of these findings, the District Court, in reliance upon decisions of the Court of Appeals for the Second Circuit, held that the alleged infringer had not sustained its defense of prior public use by the inventor. The Court said (at page 57):
“ * * * I conclude that a process invention which, as here, does not involve the use of an article invention may be practiced in secret, and the sale of its product will not be held to constitute a public use of the invented process if the plaintiff [i. e. the patentee] sustains the burden of proving that at the time the product is sold the process could not have been learned from the product.”
Then the Court went on to say that it thought its conclusion in harmony with “the law defining public use” and added:
“If, as is well established * * *, an invented machine may be secretly operated and its product freely sold without involving a public use or sale of the invention inherent in the machine, 1 can see no reason whatever for withholding the same immunity from an invented process, provided it is proved that the inherent invention could not be learned from the product sold. Certainly here is nothing in the statute to require a distinction.”
The Court of Appeals for the Second Circuit reversed. It accepted the District Court’s findings of fact and it conceded as settled law that a fatal prior public use of a process was established when it appeared that the product of the process had been in public use for more than the time specified in the statute and the process could be detected from the product. Moreover, it conceded that its earlier decisions supported the District Court’s conclusion that a patentee’s commercial use for more than the statutory period of the product of a process practiced in secret did not invalidate a patent on the process unless the product disclosed the process by which it was made. But, expressly overruling its decisión in Peerless Roll Leaf Co. v. H. Griffin & Sons, Co., 2 Cir., 1928, 29 F.2d 646, it held that any commercial use, i. e. any use except for private enjoyment or experimental purposes, by a patentee of the product of a process practiced for more than a year prior to application for a patent for the process was fatal to patentability without regard to whether the product disclosed his process to those familar with the art involved or whether it did not. That is to say, the Court of Appeals held that a patentee’s commercial exploitation of his .secret process by competitive use of its product for more than a year prior to his application for a patent forfeited his right to a process patent even though the public may have learned nothing about the process from its product.
In this case we do not need to go as far as the Court of Appeals for the Second Circuit went in the Metallizing Engineering Co. case for it seems to us very evident that the method or process covered by the Soffron brothers’ patent was fully disclosed to the public by the product of their process which they put on the market approximately two years before they applied for their patent.
It is true that counsel in this case have not focused their attention sharply on this disclosure point and that the District Court made no finding as to whether the Soffron brothers’ marketed product did or did not disclose their secretly practiced process to the public. Nevertheless, we think the record clearly indicates that anyone familiar with the art involved would certainly recognize the Soffron brothers’ product as a clam product, and would never mistake it for a whole soft shell clam because of the absence from the product of any digestive organs. Furthermore, anyone could see at a glance that it was a sliced product, each slice of substantially uniform thickness, and those with any knowledge of the physical structure of clams would know that the slices must have been cut from the tongue or foot portion. And from the size of the slices they would recognize that the slices could not have come from the foot of a small soft shell clam but must have come from that organ of the larger sea or hen clam with which they certainly would be familiar, for that clam had for years been used both as bait, and when ground up, in chowder.
We think the foregoing is not only evident from an inspection of the product but is also clearly implicit in the deposition filed by the plaintiffs-appellees of a veteran dealer in clams from the State of Maine who saw the Soffron product soon after it came onto the market and attempted to imitate it, although apparently without much success because he did not succeed in devising a satisfactory machine to slice the tongues lengthwise. Perhaps we, as persons with only a consumer’s knowledge of clams, could not say with assurance that persons more familiar with that succulent bivalve mollusk would from bare inspection necessarily recognize that the foot portion was sliced lengthwise. But the defendants-appellants in their deposition in opposition to the motion for summary judgment conceded that persons familiar with the size, shape and structure of the tongue of a sea clam could determine from inspection of their product that that organ had been sliced lengthwise. Moreover one of the brothers testified in his deposition that anyone comparing their product with that of the not too successful competitor whose deposition was mentioned above could tell that their product was sliced lengthwise and that the competitor’s was not.
In the face of the foregoing we think it would be a wholly superfluous gesture to send this case back to the district court for a categorical finding that the patentees’ product disclosed the process which they practiced in secret for more than two years before they applied for their patent. That their product disclosed their process is so clear that any finding to the contrary would be clearly erroneous.
A judgment will be entered affirming the judgment of the District Court.
. The defendants-appellants’ ownership of this patent is not disputed.
. Federal jurisdiction over the subject matter of the suit is conferred by Title 28 U.S.C. § 1338(a) for it is one arising under an Act of Congress relating to patents.
. “A person shall be entitled to a patent unless—
* * * * *
“(b) the invention was * * * in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States * *
. Certainly this must bo so for at the very least the purpose of the statutory provision is to prevent anyone from ohtaining a patent' covering matter which has been known to the public, that is to say; to the part of the public familiar with the art involved, for more than a year. And certainly a process or method, although practiced in the deepest secrecy, is known to the public if the product of the process is known to the public and the product discloses the method or process by which it was made.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SCOTT v. CALIFORNIA.
No. 241,
Misc.
Decided December 5, 1960.
Morris Lavine for appellant.
Stanley Mosk, Attorney General of California, William E. James, Assistant Attorney General, William B. McKesson and Lewis Watnick for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for certiorari, certiorari is denied.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_certreason
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
UNITED STATES GYPSUM CO. v. NATIONAL GYPSUM CO. et al.
No. 11.
Argued November 5-6, 1956.
Decided February 25, 1957.
Bruce Bromley argued the cause for appellant. With him on the brief were Cranston Spray, Robert C. Keck and Hugh Lynch, Jr.
Samuel I. Rosenman argued the cause for the National Gypsum Co., appellee. With him on the brief were Elmer E. Finck, Seymour D. Lewis, Malcolm A. Hoffmann and Seymour Krieger.
Norman A. Miller argued the cause for the Certain-Teed Products Corporation, appellee. With him on the brief were Donald N. Clausen and Herbert W. Hirsh.
Solicitor General Rankin, Assistant Attorney General Hansen, Charles H. Weston and Edward Knufj filed a memorandum for the United States, appellee.
Mr. Justice Harlan
delivered the opinion of the Court.
United States Gypsum Company appeals from a decree of a three-judge court of the United States District Court for the District of Columbia, entered December 9, 1954. This decree modified a final decree of that court, entered May 15, 1951, against Gypsum, the appellees National Gypsum Company and Certain-teed Products Corporation, and others, in a civil antitrust proceeding instituted by the Government in 1940. The modification was a provision ordering Gypsum to dismiss with prejudice four suits which it had brought in three different federal district courts against National, Certain-teed, and two other co-defendants in the antitrust proceeding, to recover compensation or damages for the pendente lite use of certain of its patents during the period February 1, 1948, to May 15, 1951.
At the outset some mention of the prolonged antitrust proceeding is required to put the present post-decree controversy in context. In that proceeding the Government charged Gypsum, National, Certain-teed, and a number of other corporate and individual defendants with conspiracy to restrain and monopolize interstate commerce in gypsum board and other gypsum products in violation of §§ 1, 2 and 3 of the Sherman Act. The crux of the Government’s charges was the alleged illegality of Gypsum’s system of industry-wide uniform patent licensing agreements containing clauses giving Gypsum the right to fix prices on gypsum board and products. In 1946, at the close of the Government’s case, the District Court dismissed the complaint. On appeal this Court, on March 8, 1948, reversed and remanded the case for further proceedings. Thereafter the District Court, with one dissent, interpreting this Court’s decision to mean that Gypsum’s multiple uniform price fixing patent licenses were illegal per se under the antitrust laws, granted the Government’s motion for summary judgment, accepting as true the defendants’ proffer of proof. On November 7, 1949, the District Court entered a decree which, among other things, adjudged Gypsum’s patent licensing agreements illegal, null and void, enjoined the performance of such agreements, provided for limited compulsory nonexclusive licensing of Gypsum’s patents on a reasonable royalty basis, and reserved jurisdiction over the case and parties for certain purposes. On appeals by both the Government and Gypsum, this Court, in 1950, dismissed Gypsum’s appeal, affirmed the summary judgment below, and held the Government entitled to broader relief in certain respects, remanding the case for that purpose. Meanwhile, in noting probable jurisdiction on the Government's appeal, this Court enjoined the defendants from carrying out the price fixing provisions of their current license agreements, and from entering into any agreements or engaging in concerted action in restraint of trade. This preliminary injunction, entered May 29, 1950, remained in force until the new final decree of the District Court was entered on May 15, 1951.
After this Court’s 1948 reversal of the District Court’s original order of dismissal, National, Certain-teed, and Gypsum’s other co-defendant licensees ceased paying royalties under their license agreements. Following the May 15, 1951, decree, National and Certain-teed, as authorized by Article VI of that decree, entered into new license agreements, effective May 15, for the future use of Gypsum’s patents, such licenses containing no price fixing clauses; the royalty rate was the same as under the old licenses, except that the licensee’s returns on unpatented gypsum products did not enter into its measure. The new licenses were without prejudice to Gypsum’s claim for compensation for the use of the patents during the period February 1, 1948, to May 15, 1951. The respondents not having paid for that period, Gypsum, in 1953, brought suit against them in the Iowa federal court. The complaints in these suits asserted three separate grounds for recovery: (a) the royalty provisions of the old license agreements (Counts I and II); (b) quantum meruit for the reasonable value of the use of the patents (Counts III and IV); and (c) damages for patent infringement (Count V).
Thereafter, National and Certain-teed, claiming that the institution of the Iowa actions violated the 1951 decree, and that in any event Gypsum was barred from recovery by reason of unpurged misuse of the patents involved, petitioned the antitrust court to enjoin further prosecution of the actions. The Government also filed a separate petition to enjoin Gypsum from maintaining any action based on the illegal license agreements, but took no position on Gypsum’s right to recover for the period in question on the grounds of quantum meruit or patent infringement. Gypsum’s answers to these petitions in substance alleged that the District Court was without jurisdiction to grant the relief sought by the petitioners, and put in issue all of the allegations on which the right to relief was predicated.
The District Court decided that it had jurisdiction to grant relief (one judge dissenting), and, after hearing the parties through briefs and oral argument, but without taking any evidence beyond that already of record in the antitrust proceeding, concluded that the 1951 decree should be modified so as to enjoin the prosecution of Gypsum’s suits. The court held that prosecution of Counts I and II, which declared upon the illegal license agreements, could not be maintained under the terms of the 1951 decree. Although finding that the other three Counts were not barred by that decree, it further held that the suits should be prohibited in their entirety because of Gypsum’s unpurged misuse of its patents. There followed the modifying decree of December 9, 1954, from which this appeal was taken. We noted probable jurisdiction. 350 U. S. 946. For the reasons given hereafter we conclude that, except as it related to the two causes of action based on the illegal license agreements (Counts I and II), this proscriptive modification of the 1951 decree was not justified by the record before the District Court.
I.
Preliminarily, we conclude that three aspects of the lower court’s holding must be upheld. First, we think that Article X of the 1951 decree, reserving to the antitrust court jurisdiction, upon application of “any of the parties” to the decree, to make such “directions” and “modifications” as may be appropriate to the “carrying out” and “enforcement” of the decree, provided a fully adequate basis for the jurisdiction exercised below. United States v. Swift & Co., 286 U. S. 106, 114; Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502. See also Chrysler Corp. v. United States, 316 U. S. 556. Gypsum argues that insofar as the relief granted below was rested upon patent misuse, instead of a construction of the 1951 decree which was the basis of enjoining the prosecution of Counts I and II of Gypsum’s suits, the lower court’s decision involved a determination of a collateral private controversy between this group of antitrust defendants, rather than a “carrying out” or “enforcement” of the terms of that decree. But we think that whether Gypsum was barred from recovery in these suits by reason of the abuse of its patent rights was a problem sufficiently related to the rationale of the 1951 decree to bring it within the reserved jurisdiction clause. This is especially so because patent misuse was the essence of the old antitrust litigation, and its continuance or renewal were thus issues peculiarly within the province of the antitrust court, whose determination would avoid multiple litigation and possibly conflicting decisions on that issue among the courts in which Gypsum had brought suit.
Likewise we conclude that there is no basis for disturbing the District Court’s determinations that prosecution of Counts I and II, based on the old license agreements, was not permissible under the 1951 decree, but that its terms did not reach the quantum meruit and infringement Counts.
The outcome of this appeal then turns on whether the District Court was right in holding as a matter of law that Gypsum was barred from any kind of recovery for the pendente lite use of its patents because of their unpurged misuse. It is now, of course, familiar law that the courts will not aid a patent owner who has misused his patents to recover any of their emoluments accruing during the period of misuse or thereafter until the effects of such misuse have been dissipated, or “purged” as the conventional saying goes. Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488; B. B. Chemical Co. v. Ellis, 314 U. S. 495; Edward Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U. S. 394; MacGregor v. Westinghouse Electric & Mfg. Co., 329 U. S. 402; Mercoid Corp. v. Minneapolis Honeywell Regulator Co., 320 U. S. 680. The rule is an extension of the equitable doctrine of “unclean hands” to the patent field. In terms of this case this means that Gypsum may not recover from these appellees for their use of its patents between February 1, 1948, and May 15, 1951, if Gypsum has been guilty of misuse of the patents since 1948, or if the original misuse found in the antitrust litigation remained unpurged. This issue, of course, involves essentially a question of fact. And since the record is barren of any facts with respect to the situation existing in the gypsum industry since 1941, we think that the District Court erred in holding purely as a matter of law that an unpurged misuse had been shown.
II.
Putting aside the two contract Counts, the enjoining of which we have held was sufficiently supported by the court’s finding that they could not be maintained under the terms of the 1951 decree, there are three aspects to the lower court’s holding as to the remaining Counts. First, the court held those Counts barred because Gypsum had engaged in “fresh” patent misuse — misuse unrelated to the original antitrust litigation. Secondly, it was held that since the “old” misuse adjudicated in the antitrust proceeding had continued unpurged, recovery must in any case be barred. And finally, the court held that irrespective of purge, the “old” misuse itself was sufficient to bar the patent infringement Count. We discuss each of these holdings in turn.
A.
The “fresh” misuse found by the lower court was simply the fact of the inclusion of Counts I and II in the 1953 suits. These Counts sought recovery of royalties under the illegal licensing agreements. Such inclusion, the court held, was a renewed attempt to enforce these illegal agreements, and as such should be regarded as a new misuse of the patents which barred recovery under the other Counts as well. We do not agree.
The five Counts in Gypsum’s complaints were merely alternative legal theories for reaching a single end, namely, recovery for the pendente lite use of Gypsum’s patents. Had the complaints declared only upon the quantum meruit and infringement Counts the mere bringing of the suits could then hardly have been regarded as fresh misuse, even though recovery might be defeated by showing some independent unpurged misuse of the patents involved. For as the lower court recognized, such recovery by way of quantum meruit or damages for infringement was not “expressly or impliedly” touched by the terms of the 1951 decree. Gypsum explains the inclusion of the two contract Counts as precautionary pleading to fend against the possibility that the defendants, if sued only for quantum meruit and infringement, might set up the license agreements in defense. Such alternative pleading is expressly sanctioned by the Federal Rules of Civil Procedure, Rule 8, and, even though that defense has turned out to be untenable in light of the lower court’s findings, we think that it distorts the doctrine of patent misuse to hold that recourse to this method of pleading here vitiated the other Counts of the complaints.
Moreover, in view of what transpired before the antitrust court in the hearings relating to the settlement of the 1949 decree, we are by no means satisfied that Gypsum was not entitled to a bona fide guess, at least as a matter of alternative pleading, that the decree would not be interpreted as barring the collection of these interim royalties. At those hearings counsel for one of the defendants, Celotex, without remonstrance by either of these respondents, stated:
“In order that United States Gypsum will have no misunderstanding of my position, I want them to know that my suggestion [that the decree should declare the licenses ‘illegal, null and void’] is in no sense based on any hope or desire on my part to get out of any license fees during any interim period, and if we can agree ... as far as my client is concerned, we are willing to let the royalty rate [of the new compulsory licenses], whatever it is, agreed upon apply back to the time when we ceased paying royalties. I just want to make it clear to all that we are not attempting by this declaration of illegality of them to find some way of avoiding the license fees which during this [litigation] none of us have paid.”
Further, both the Government and the other co-defendants at that time seem to have regarded the “illegal, null and void” provisions of the decree as simply the equivalent of “cancellation” of the licenses. In view of the narrow adjudication of violation by this Court, infra, p. 470, we cannot say that Gypsum could not have reasonably entertained the belief that the price fixing provisions of the license agreements would ultimately be held separable from the basic undertaking to pay royalties. Indeed, the new licenses, authorized by the decree, which omitted the price fixing clauses, carried the same royalty rate on products made under the patents.
We conclude that in the circumstances present here it was error to regard the inclusion of the contract Counts as constituting a “fresh” patent misuse on Gypsum’s part.
B.
We come next to the holding that the “old” misuse, found in the antitrust proceeding, continued unpurged through the 1948-1951 period. And here we are met immediately by the fact that the record before the antitrust court is completely bare of any facts relating to this period, or indeed any period after 1941. For the Government’s proof in the antitrust case, presented from 1940 to 1944, concerned the gypsum industry prior to and until 1941, and no further evidence has ever been introduced into any of these litigations. We thus know literally nothing about the state of the gypsum industry between 1948, when this Court, on evidence not extending beyond 1941, first held that there had been an antitrust violation, and 1951. How, then, can we assume that this earlier violation, adjudicated for the first time in 1948, continued thereafter?
The answer to this question depends on the nature and extent of that violation. According to Gypsum, the only illegality ever adjudicated was the fixing of prices on gypsum materials under the industry-wide uniform price fixing clauses of patent licenses which were found to have been the product of concerted action between Gypsum and its co-defendants. In other words, Gypsum, relying on the 1949 decree, which followed this Court’s first decision, and its underlying findings, argues that the maintenance of uniform patent licenses with price fixing clauses was the only patent misuse ever found. It then points out that it offered to prove below that price fixing in the industry stopped in 1941, and that the licenses were rescinded in 1948. Add to this the fact that the 1949 decree, and again this Court’s 1950 interlocutory decree, enjoined Gypsum from enforcing these licenses, and, says Gypsum, the inference arises that the only patent misuse ever adjudicated had ceased by 1948 — an inference at least sufficient to allow the issue to go to trial on the facts.
According to appellees National and Certain-teed, however, the adjudication of misuse in the antitrust proceeding was much broader, encompassing the regimentation of the entire gypsum industry, the restraint of commerce in unpatented gypsum products, the elimination of jobbers, and the standardization of trade practices throughout the industry. This broad view of the character of the antitrust violation rests upon this Court’s 1950 decision, which held the 1949 decree too narrow and allowed the Government the broader relief embodied in the 1951 decree. Appellees argue that the fact that this Court felt it necessary to broaden the 1949 decree involved by necessity an adjudication of broad patent misuse, misuse not prohibited by the 1949 decree and therefore left un-purged by it. In other words, the argument runs, the broadening of the decree by this Court necessarily involved a holding that Gypsum was guilty of violations not proscribed by the original decree, violations which existed unpurged during part or all of the 1948-1951 period, since they were first adjudicated by this Court in 1950 and presumptively continued until 1951, when they were finally dealt with by the 1951 decree.
Appellees’ argument is ingenious, but incorrect. The course of decisions in the antitrust litigation clearly shows that the only misuse ever adjudicated was that arising from the uniform price fixing provisions of the license agreements. In the original suit the only undisputed issue of fact was that Gypsum had given its competitors uniform patent licenses containing a price fixing clause. The Government also charged Gypsum with a variety of other abuses, including price fixing on unpatented articles, elimination of jobbers, and standardization of trade practices. All of these charges were put in issue by Gypsum. On the appeal from the original dismissal of the proceedings, this Court held that the uniform price fixing licenses constituted a per se antitrust violation, and also that the Government’s evidence as to the other matters constituted a prima jade case of additional violation. On remand, the District Court, instead of going into a factual trial of these other matters, granted summary judgment on the price fixing violation. This left all of the other matters still at issue. They continued to remain at issue after the ensuing appeals to this Court, for in affirming the summary judgment and broadening the 1949 decree, this Court made it clear that it was proceeding solely on the basis of the narrow antitrust violation found by the District Court:
“We agree with a statement made by counsel for the Government in argument below that as a 'matter of formulating the decree’ many facts offered to be proven would have effect upon the conclusion of a court as to the decree’s terms. However, we read the preliminary statement of the District Court . . . as an adjudication of violation of the Sherman Act by the action in concert of the defendants through the fixed-price licenses, accepting as true the underlying facts in defendants’ proof by proffer. The trial judges understood the summary judgment to be, as Judge Stephens said, ‘limited to that one undisputed question.’ Judge Garrett and Judge Jackson agreed. That conclusion entitled the Government only to relief based on that finding and the proffered facts. On that basis we dismissed United States Gypsum’s appeal from the decree, and on that basis we examine the Government’s objection to the decree.
“[A decree] is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal. . . .
“. . . We turn then to the Government’s proposals for modification of the decree.on the assumption that only a violation through concerted industry license agreements has been proven, but recognizing, as is conceded by defendants, that relief, to be effective, must go beyond the narrow limits of the proven violation.” 340 U. S., at 87-89, 90.
Thus we see that the only patent misuse that has ever been established in this long-drawn-out litigation is concerted price fixing under the former patent licenses, and that the 1950 holding of this Court was not an adjudication of other violations but only an application of the well-known principle that relief in antitrust cases may range beyond the narrow area of proven violations. Nothing, therefore, in the broadening of the decree supports the inference that the acts prohibited therein and left open in the 1949 decree continued in the pendente lite period or, in fact, had ever taken place. Perhaps Gypsum did engage in broad regimentation of the industry, as charged in the Government’s 1940 complaint, and perhaps such misuse or its effects continued through 1951. But there is nothing in this record to show that any such hypothesis is true, and no part of it has ever been proved. The question is one of fact, and Gypsum is entitled to go to trial on it.
Nor is it enough to sustain the judgment below to say, as appellees do, that the conceded “old” misuse, consisting of industry-wide price fixing through uniform patent licenses, should be presumed to have continued unpurged into the 1948-1951 period. The record shows, without dispute so far, that for seven years before the beginning of the 1948-1951 period Gypsum had not engaged in price fixing, and that for two of those three years price fixing had been under injunction. These factors raised a sufficient inference of purge prior to the critical period to entitle Gypsum to go to trial on the point and to prevent the court from granting what in effect was summary judgment. Cf. United States v. Oregon State Medical Society, 343 U. S. 326. Nor do we think this conclusion is overcome by the lower court's findings that the “five acts” of purge offered by Gypsum were not sufficient to establish purge. We express no opinion upon the merits of these findings, for their sufficiency can hardly be judged in isolation from the facts as to competitive conditions in the gypsum industry during the 1941-1951 period, on which the record is silent. And other alleged antitrust violations are not now available to appellees as acts of misuse, for as to them Gypsum has not yet had its day in court.
We conclude, therefore, that the judgment below cannot be supported on the basis of the claimed unpurged “old” misuse.
C.
We pass lastly to the lower court’s holding that the “old” misuse, without regard to purge, barred the infringement Count of Gypsum’s suits. In effect this holding was that, because “of the practical and legal situation,” proscription of this Count should be added by relation back, as it were, to the relief already accorded by the 1951 decree. Admittedly such relief was neither obtained nor sought by the Government in either the 1949 or 1951 decree proceedings. To be sure one of the prayers for relief in the Government’s antitrust complaint in 1940 had been that the defendants should be enjoined from bringing any action for infringement of any of the patents involved or from attempting to collect in any way royalties or fees for their use until all misuse had been abandoned and its consequences dissipated. In the subsequent 1949 and 1951 decree and appellate proceedings, however, this item of proposed relief was never adverted to, much less pressed upon the courts. And even in the 1953-1954 modification proceedings, and now, the Government does not contend that Gypsum is precluded from maintaining the infringement Count. The conclusion seems inescapable that the Government’s original request for such relief was in effect withdrawn. In this state of affairs we think this relief should not have been added to the decree in 1954, in the absence of proof of intervening circumstances indicating its need in the public interest. Cf. Hughes v. United States, 342 U. S. 353. There was no such proof, and without it the proscription of the infringement Count amounted to the imposition of an unwarranted penalty on Gypsum.
Nor do we think that anything in the Hartford-Empire cases, 323 U. S. 386, 324 U. S. 570, to which the lower court attached much weight, justifies what was done here. The basic difference between Hartford and this case is that in Hartford the injunction against infringement suits on Hartford’s misused patents was part of the original relief granted the Government, whereas here that relief was added, without the taking of any evidence as to justifying intervening circumstances, some five years after the original decree was entered in the District Court, and three years after its enlargement pursuant to the 1950 decision of this Court, which made no mention of this type of relief.
Moreover, the factors justifying such relief in Hartford were quite different from those involved here, in that the litigated findings of fact as to Hartford’s violation of the antitrust laws were much broader than anything found here. See supra, p. 470. Beyond this, in Hartford only infringement suits against nondefendants were enjoined, and not, as here, suits against co-defendants; and despite the breadth of Hartford’s violations, this Court held that Hartford was entitled to quantum meruit compensation for the pendente lite use of its patents unless further violations of the antitrust laws during that period were shown. No such violations on Gypsum’s part were shown or claimed by the Government or appellees, except for the inclusion of the contract Counts in Gypsum’s suits, a contention which has already been met. And although the Court in Hartford struck down royalty-free compulsory licensing as part of the relief, the District Court here in effect held these appellees entitled to three years’ free use of Gypsum’s patents. We thus find no parallel between this case and Hartford.
Our conclusions then are these: The enjoining of Counts I and II of Gypsum’s Iowa suits was proper, and upon remand the District Court may, by appropriate modification of the decree of May 15, 1951, or otherwise, require Gypsum to discontinue and dismiss such Counts with prejudice. The enjoining of Counts III, IV and V of those suits was not justified upon this record, and as to them the case should be remanded to the District Court for the taking of evidence upon the issues of misuse and purge as they may relate to the period since February 1, 1948. We think it appropriate that these issues should be tried and disposed of by the antitrust court rather than the Iowa court, both because of reasons already given, supra, pp. 463-464, and because of the antitrust court’s familiarity with what has occurred in these protracted litigations. However, should the antitrust court conclude that Gypsum is not barred fom recovery on Counts III, IV or V by reason of unpurged patent misuse, we think that the trial and disposition of all other issues, including any defense of patent invalidity, should then take place in the District Courts in which the two suits are pending. There is no reason why the three-judge court should be burdened with such issues.
Accordingly, we reverse the judgment below and remand the case to the District Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Clark took no part in the consideration or decision of this case.
Throughout this opinion United States Gypsum Company will be referred to as “Gypsum,” National Gypsum Company as “National,” and Certain-teed Products Corporation as “Certain-teed.”
The suits against National and Certain-teed were brought in the Northern District of Iowa. The other two suits were brought in the District of New Jersey, against Newark Plaster Company, and in the Southern District of New York, against Ebsary Gypsum Company. These latter suits have been settled and are not before us.
26 Stat. 209 (1890), as amended, 15 U. S. C. §§ 1-3.
67 F. Supp. 397.
333 U. S. 364.
The opinion of the court, and the dissenting opinion of the late Judge Stephens, are not officially reported. They appear at pp. 137-140, 478, of the record on this appeal.
339 U. S. 959.
339 U. S. 960.
340 U. S. 76.
339 U. S. 960.
The significance of these various holdings as it bears upon the issues in the present controversy is dealt with later. Infra, pp. 468-473.
In the case of National and Certain-teed the default period began with the February 1, 1948 royalties, due March 20, 1948.
The lower court, regarding Count III as declaring upon a contract implied in law, described that Count as being for “indebitatus assumpsit.” The appellant says it was for “quantum meruit.” As nothing here turns on the characterization, we shall refer to both Counts III and IV as “the quantum meruit” Counts.
The Iowa court, upon motions by National and Certain-teed, stayed all proceedings in the two actions pending the determination of the antitrust court now under review.
The Government takes the same position in this Court.
124 F. Supp. 573. Judge Cole dissented on the jurisdictional ground. 124 F. Supp. 598. On December 9, 1954, the District Court denied reconsideration, Record, p. 1136; and on June 30, 1955, it denied Gypsum’s motion for a new trial. 134 F. Supp. 69.
The court also held that Count III should be barred because it was “but a left-handed, indirect method for recovering such royalties.” The court did not elaborate on this, but since it held that this Count was not “expressly or impliedly” covered by the 1951 decree we think this additional ground requires no separate discussion.
The operative part of the decree reads as follows: “Defendant United States Gypsum Company is hereby ordered and directed to discontinue and to dismiss, with prejudice to United States Gypsum Company, its pending actions as follows: against National Gypsum Company, in the United States District Court for the Northern District of Iowa; against Certain-Teed Products Corporation, in the same District Court . . . .”
Article X reads: “Jurisdiction of this cause, and of the parties hereto, is retained by the Court for the purpose of enabling any of the parties to this decree, or any other person, firm or corporation that may hereafter become bound thereby in whole or in part, to apply to this Court at any time for such orders, modifications, vacations or directions as may be necessary or appropriate (1) for the construction or carrying out of this decree, and (2) for the enforcement of compliance therewith.”
Article IV of the 1951 decree had adjudicated as to all defendants that these license agreements were “unlawful under the antitrust laws of the United States and illegal, null and void.” Article V enjoined the defendants from “performing” such agreements. Cf. Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227. It might be well to add that the 1951 decree would similarly prevent the use of these illegal agreements as defenses by co-defendants National and Certain-teed against the quantum meruit and infringement Counts of Gypsum’s suits.
As appears, infra, p. 474, the Government at one time had sought to bar all such claims for recovery on the patents, but later in effect abandoned that request for relief.
Counts I and II were also held barred on these grounds.
We assume that if the inclusion of Counts I and II constituted a “fresh” patent misuse, the fact that they were not asserted until 1953 would make no difference in their effectiveness to bar recovery for the 1948-1951 period.
National had in fact pleaded that defense in the suit against it. But see n. 20, supra.
In view of this conclusion it is unnecessary to deal with the contention that the lower court’s holding also violated 35 U. S. C. §271 (d).
See n. 6, supra.
340 U. S. 76. This relief included the extension of the injunctive provisions to the entire United States (instead of merely the East) and to all gypsum products (instead of only gypsum board), compulsory licensing for an indefinite period (instead of for only 90 days), such licensing to include after-acquired (instead of only existing) patents.
333 U. S. 364.
3 39 U. S. 960.
340 U. S. 76.
As we have seen, supra, pp. 460-461, the Court dismissed Gypsum’s appeal from the 1949 decree. 339 U. S. 959.
That this Court's expansion of the 1949 decree did not involve a corresponding holding of broader violation is illustrated by what was done with respect to the geographical area covered by the decree. The Government’s complaint charged Gypsum with violation only in the eastern part of the United States. There was never any claim, much less proof, that Gypsum engaged in any improper activities in the West. Yet the Court granted the Government’s prayer that the 1949 decree be broadened to cover the whole United States. This was done not because it was alleged or proved that Gypsum had done anything illegal in the West, but simply on the theory that effective relief required that the decree be broader than the “proven violation.”
340 U. S. 76.
National makes a further contention as to the quantum meruit Counts. It argues that these Counts in any event were properly proscribed because they related to an illegal transaction. But the rule on which National relies applies only where the quantum meruit claim declares upon an implied agreement which, had it been reduced to an express contract, would itself have been illegal; that is, a contract where the kind of consideration moving between the parties is wholly against public policy, as, for example, a contract to commit murder. The implied contract here was not of that character, for certainly an express contract simply for reasonable compensation for the use of Gypsum’s patents would not have been illegal.
yre recognize that the composition of the three-judge court has completely changed since the main antitrust case was tried. Even so, the present court has acquired an intimate knowledge of the record.
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_district
|
G
|
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".
Mathew L. EVANS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 17034.
United States Court of Appeals Seventh Circuit.
March 17, 1969.
Mathew L. Evans, pro se.
Lionel Brazen, Manuel Rosenstein, Chicago, Ill., for appellant.
Thomas A. Foran, U. S. Atty., Michael B. Cohen, Chicago, Ill., for appellee, John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.
Before CASTLE, Chief Judge, FAIR-CHILD and CUMMINGS, Circuit Judges.
CASTLE, Chief Judge.
Petitioner appeals from the district court’s denial of his pro se motion to vacate his sentence, which was imposed for violation of the narcotics laws, and for an evidentiary hearing, under 28 U.S.C. § 2255. In his petition before the district court, petitioner alleged two grounds. The first was the Government’s knowing use of perjured testimony at petitioner’s trial. The second was entrapment.
Regarding the first ground, petitioner stated that on the evening of February 14, 1966, one of the witnesses who had testified at the trial that day, Agent Meyers, was asked by petitioner, in the presence of the United States attorney, the defense attorney, and two friends of petitioner, why he lied on the witness stand. Petitioner then alleges: “His answer to this question was, ‘that the whole case was a lie.’ And this statement petitioner can prove by indisputable testimony, with an evidentiary hearing.”
Regarding the entrapment charge, petitioner merely stated that entrapment as a matter of law could be shown from the transcript.
On appeal, petitioner raises the additional issue that counsel should have been appointed to assist petitioner in his preparation of the petition. We shall discuss these issues in the order raised.
PERJURY
The out-of-eourt statement of the witness which petitioner relies upon as proof of knowing use of perjured testimony by the Government was allegedly made after that witness testified at trial, but before the end of the trial the next day. Even if the fact that this statement was made was proven at an evidentiary hearing, it would not be grounds for vacating petitioner’s sentence.
We agree that in some cases the allegation of the use of perjured testimony would entitle a petitioner to an evidentiary hearing. See Smith v. United States, 259 F.2d 125 (9th Cir. 1958) ; United States v. Derosier, 229 F.2d 599 (3rd Cir. 1956). However, the fact that the alleged statement was known to petitioner and his counsel during the trial compelled petitioner to raise this issue then or not at all. When a criminal defendant, during his trial, has reason to believe that perjured testimony was employed by the prosecution, he must impeach the testimony at the trial, and “cannot have it both ways. He cannot withhold the evidence, gambling on an acquittal without it, and then later, after the gamble fails, present such withheld evidence in a subsequent proceeding under 28 U.S.C. § 2255.” Green v. United States, 256 F.2d 483, 484 (1st Cir. 1958). See also Decker v. United States, 378 F.2d 245, 251 (6th Cir. 1967), and cases cited therein.
The petition in the instant case is not, contrary to counsel’s assertion, inartisti-eally or unclearly drawn. It is quite clear from the face of the petition and from the record what is being asserted. Since petitioner’s contention on this point, even if the fact that the statement was made is assumed, is legally insufficient to entitle petitioner to relief, an evidentiary hearing would have served no purpose.
ENTRAPMENT
Petitioner cites Banks v. United States, 249 F.2d 672 (9th Cir. 1957) for the proposition that the defense of entrapment may be raised in a collateral attack under 28 U.S.C. § 2255. However, in United States v. Bailey, 331 F.2d 218, 220 (7th Cir. 1964), this Court pointed out that the Ninth Circuit, in a subsequent appeal by Banks after remand to the district court, and again in Black v. United States, 269 F.2d 38 (9th Cir. 1959), withdrew from the position taken by the earlier Banks case. As Judge Duffy pointed out in Bailey, 331 F.2d at 220:
“Except for the first Banks case, no authority has been cited to us which sustains the petitioner’s position in this case. On the contrary, the courts have been practically unanimous in holding the defense of entrapment cannot be used by collateral attack under 28 U.S.C. § 2255. Some of these decisions are: Stanley v. United States, 9 Cir., 239 F.2d 765 ; Turner v. United States, 8 Cir., 262 F.2d 643, 645; Way v. United States, 10 Cir., 276 F.2d 912, 913; Davis v. United States, 5 Cir., 205 F.2d 516; United States v. Buford, D.C.E.D.Wis., 165 F.Supp. 940, 941.”
APPOINTMENT OF COUNSEL
Petitioner contends that, although he did not request counsel below, counsel should have been appointed to assist him in preparing his petition before the district court. In La Clair v. United States, 374 F.2d 486, 489 (7th Cir. 1967), this Court stated that, although appointment of counsel in a § 2255 proceeding may be required in certain cases, “appointment of counsel for indigents in habeas corpus and Section 2255 proceedings rests in the sound discretion of the district courts unless denial would result in fundamental unfairness impinging on due process rights.” See also Mitchell v. United States, 359 F.2d 833, 835 (7th Cir. 1966).
Under the facts of the instant case, where the two grounds alleged in the petition show conclusively that petitioner is entitled to no relief, we find no abuse of the district court's discretion in failing to appoint counsel, sua sponte, to represent petitioner in the proceedings before it.
For the foregoing reasons, the judgment below is affirmed.
The Court expresses its appreciation to Attorneys Lionel I. Brazen and Manuel Rosenstein, members of the Chicago, Illinois bar, for their excellent service on appeal as court-appointed counsel for petitioner.
Affirmed.
. Reported at 258 F.2d 318, 319 (9th Cir. 1958).
. See, e. g., Campbell v. United States, 318 F.2d 874 (7th Cir. 1963) ; Milani v. United States, 319 F.2d 441 (7th Cir. 1963).
. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the Supreme Court noted the practice of most federal courts to appoint counsel in post-convietion proceedings only after the court determines “that issues are presented calling for an evidentiary hearing.”
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_altdisp
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Melvin STEVENS et al., Appellants, v. ROCK SPRINGS NATIONAL BANK, a Bank Corporation chartered under the United States banking statutes, et al., Appellees.
No. 73-1728.
United States Court of Appeals, Tenth Circuit.
May 22, 1974.
Philip P. Whynott, Cheyenne, Wyo., for appellants.
Gary M. Greenhalgh, Rock Springs, Wyo., for appellee, Rock Springs National Bank.
Ted O. Simóla, Cheyenne, Wyo., for appellee, Adams Sales, Inc.
Frederick G. Loomis, of Loomis, Lazear, Wilson & Pickett, Cheyenne, Wyo., for appellee, Redman Industries, Inc.
Before CLARK, Associate Justice Retired, and HILL and SETH, Circuit Judges.
Of the Supreme Court of the United States, Sitting by Designation.
SETH, Circuit Judge.
The appellants, Mr. and Mrs. Melvin Stevens and Mr. and Mrs. Samuel Hinkle, filed this action on behalf of themselves and others similarly situated, alleging as their principal claim that the appellees, Adams Sales, Incorporated, and Rock Springs National Bank, failed to make various disclosures required by the Truth in Lending Act (15 U.S.C. § 1601 et seq.) in connection with the financing of mobile homes purchased by the appellants.
A pendent state claim was also asserted under Wyo.Stat. § 40-2-403 which provides generally that a seller in a consumer credit transaction may not accept a negotiable instrument other than a check as evidence of the buyer’s obligation. An additional pendent claim was asserted by the Stevens’ against Adams Sales and Redman Industries, Incorporated, based on allegedly fraudulent representations as to the condition of the trailer which they purchased.
On motion by the defendants and after receiving affidavits submitted by the parties, the district court dismissed the Truth in Lending Act claim for the reason that the one-year limitations period prescribed in 15 U.S.C. § 1640(e) had run as to the named plaintiffs. The pendent state claims were thereupon dismissed for lack of subject matter jurisdiction. A finding was also made that the prerequisites for a class action had not been shown.
The principal issue on this appeal is the construction of 15 U.S.C. § 1640(e), which provides:
“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” (Emphasis added.).
The other subsections of section 1640 establish the civil liability of creditors and, in certain instances, their assignees when disclosures required by the Truth in Lending Act have not been made. It is readily apparent that subsection (e) is both a grant of subject matter jurisdiction and a statement of limitations. It is the latter aspect which we must consider here, particularly the reference point which is somewhat ambiguously described as the “date of the occurrence of the violation.”
A chronology of events is helpful in presenting the issues. The record shows that Mr. and Mrs. Stevens arranged for the purchase of their mobile home on July 19, 1971, at which time they executed a purchase agreement, a promissory note, and a security agreement, each on a form provided by the seller, Adams Sales. The purchase agreement form which they signed contained spaces in which terms pertaining to the financing of the purchase could be written. For the most part, these spaces were completed on the Stevens agreement, and in addition Rock Springs National Bank was identified as the creditor.
Mr. and Mrs. Hinkle’s purchase followed a different pattern. On April 4, 1972, they signed a purchase agreement form similar to the one signed by the Stevens. On this form, however, the spaces provided for the credit information were left blank and no identification of the creditor was made. The agreement simply indicated a lump sum which the Hinkles intended to finance. Furthermore, it was not until about two weeks later that the Hinkles signed a promissory note and security agreement in favor of Rock Springs National Bank.
This action commenced with the filing of the complaint on April 13, 1973.
Having been enacted in 1968, the Truth in Lending Act and particularly its limitations provisions have been the subject of relatively little litigation. To our knowledge only one other Circuit has considered the meaning of section 1640(e) as applied to circumstances similar to these. This was Wachtel v. West, 476 F.2d 1062 (6th Cir.), which involved the alleged failure to make Truth in Lending Act disclosures in connection with a loan secured by a second mortgage on the plaintiffs’ home. The transaction there occurred on October 28, 1970, and the complaint was filed on April 25, 1972. The plaintiffs argued that the duty to make the disclosures was continuing and that the one-year period had therefore not run. This contention was rejected by the Sixth Circuit with the following analysis:
“It thus appears that a credit transaction which requires disclosures under the Act is completed when the lender and borrower contract for the extension of credit. The disclosures must be made sometime before this event occurs. If the disclosures are not made, this violation of the Act occurs, at the latest, when the parties perform their contract ... In the present case performance of the contract and violation of the disclosure requirement took place on October 28, 1970, and the one-year statute of limitations began to run on that date.”
While in this opinion we do not necessarily adopt the Sixth Circuit’s reference to the date of “performance” as the date on which the violation occurs, we nevertheless agree generally with the proposition that violation of the disclosure requirements, with the possible exception of those respecting the limited right of rescission under 15 U.S.C. § 1635, occurs at a specific time from which the statute will then run. Thus it does not necessarily become a continuing failure or breach.
Additional support for this proposition is provided by other provisions of the Act, and by Regulation Z (12 C.F.R. § 226), the administrative interpretation of the Act by the Board of Governors of the Federal Reserve System. 15 U.S.C. § 1639 identifies the disclosures which must be made with respect to particular types of consumer loans. Subsection (b) of that section requires that, with certain exceptions, those disclosures “shall be made before the credit is extended.” Such timing seems consistent with and essential to the principal objective of the Act which, as stated in 15 U.S.C. § 1601, is to enable the consumer “to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” Regulation Z more definitely prescribes the timing requirement by requiring, that the disclosure be made “before the transaction is consummated.” 12 C.F.R. § 226.8(a). Consummation is defined in another subsection which provides:
“The transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.” (12 C.F.R. § 226.2(cc); emphasis added).
In the case of Bissette v. Colonial Mortgage Corp. of D.C., 155 U.S.App.D.C. 360, 477 F.2d 1245, the District of Columbia Circuit considered these same provisions in holding that where no contractual relationship had arisen between the mortgagor and mortgagee prior to the time of closing, and where the required disclosures had been made at that time, no violation of the Act occurred. We might also note that in that case the mortgagor had also executed a purchase agreement several months prior to the closing.
Thus, we must hold that under the Act and current regulation, the disclosure requirements may be satisfied without penalty at any time prior to the contracting to extend credit, and no violation can occur until such a credit contract is executed.
Accordingly, we agree with the district court that the one-year limitations period had run as to the Stevens, and they are barred from maintaining their claim under the Act. Since the pendent claim asserted in the third count is theirs alone, dismissal of it was also proper.
A different situation exists with the Hinkle’s claim. The April 4th purchase agreement, aside from indicating an amount to be financed, contained no terms relating to the extension of credit and did not identify the prospective creditor. Thus it does not appear that the Hinkles became bound on the credit aspects of their purchase until April 17, 1972, when they signed the note and security agreement. In view of our discussion, and the cited authorities, we fail to see how the asserted violations could have occurred prior to that time. When the Hinkles filed their complaint on April 13, 1973, they were therefore within the one-year period, and dismissal of the action as to them was improper.
Rock Springs National Bank urges us to affirm dismissal as to it in any event for the reason that it was never responsible for making the disclosures to the Hinkles. This is a matter, however, for the consideration of the trial court.
The second count of the complaint, stating a pendent state claim under a Wyoming statute by the Hinkles, was dismissed because the supporting federal claim had been dismissed. The dismissal is set aside, but in so doing we express no view as to whether it should be entertained as a pendent claim. Such a decision is within the sound discretion of the trial court.
The relationship between the limited right of rescission under 15 U.S.C. § 1635, which must also be disclosed in appropriate transactions, and the one-year limitations period prescribed in section 1640(e) presents special problems outside the scope of this decision.
Finally, we note that the district court found that the prerequisites for a class action had not been shown. While in Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir.), we acknowledged that a class action might be brought under the Truth in Lending Act, we do not believe the trial court abused its discretion in not allowing this action to be so maintained. The record demonstrates that the facts varied considerably between the Stevens and Hinkle transactions. Such variations would likely affect the rights and liabilities of the parties and would presumably occur in Adams Sales’ other transactions as well. This alone would be sufficient reason to deny the class action.
The judgment of the district court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent herewith.
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondent
|
028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
MOORE v. ILLINOIS
No. 76-5344.
Argued October 3, 1977
Decided December 12, 1977
Patrick J. Hughes, Jr., argued the cause and filed briefs for petitioner.
Charles H. Levad, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the briefs was William J. Scott, Attorney General.
Mr. Justice Powell
delivered the opinion of the Court.
Petitioner was convicted of rape and related offenses. At trial the complaining witness testified on direct examination by the prosecution that she had identified petitioner at a preliminary hearing at which he was not represented by counsel. The State Supreme Court affirmed petitioner's convictions, and the Federal District Court and Court of Appeals denied habeas corpus relief. We granted certiorari because of an apparent conflict between the decisions below and our holdings with respect to the right to counsel at corporeal identifications in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Kirby v. Illinois, 406 U. S. 682 (1972). We reverse.
I
The victim of the offenses in question lived in an apartment on the South Side of Chicago. Shortly after noon on December 14, 1967, she awakened from a nap to find a man standing in the doorway to her bedroom holding a knife. The man entered the bedroom, threw her face down on the bed, and choked her until she was quiet. After covering his face with a bandana, the intruder partially undressed the victim, forced her to commit oral sodomy, and raped her. Then he left, taking a guitar and a flute from the apartment.
When police arrived, the victim gave them a description of her assailant. Although she did not know who he was and had seen his face for only 10 to 15 seconds during the attack, she thought he was the same man who had made offensive remarks to her in a neighborhood bar the night before. She also gave police a notebook she had found next to her bed after the attack.
In the week that followed, police showed the victim two groups of photographs of men. From the first group of 200 she picked about 30 who resembled her assailant in height, weight, and build. From the second group of about 10, she picked two or three. One of these was of petitioner. Police also found a letter in the notebook that the victim had given them. Investigation revealed that it was written by a woman with whom petitioner had been staying. The letter had been taken from the woman’s home in her absence, and petitioner appeared to be the only other person who had access to the home.
On the evening of December 20, 1967, police arrested petitioner at his apartment and held him overnight pending a preliminary hearing to determine whether he should be bound over to the grand jury and to set bail. The next morning, a policeman accompanied the victim to the Circuit Court of Cook County (First Municipal District) for the hearing. The policeman told her she was going to view a suspect and should identify him if she could. He also had her sign a complaint that named petitioner as her assailant. At the hearing, petitioner’s name was called and he was led before the bench. The judge told petitioner that he was charged with rape and deviate sexual behavior. The judge then called the victim, who had been in the courtroom waiting for the case to be called, to come before the bench. The State’s Attorney stated that police had found evidence linking petitioner with the offenses charged. He asked the victim whether she saw her assailant in the courtroom, and she pointed at petitioner. The State’s Attorney then requested a continuance of the hearing because more time was needed to check fingerprints. The judge granted the continuance and fixed bail. Petitioner was not represented by counsel at this hearing, and the court'did not offer to appoint counsel.
At a subsequent hearing, petitioner was bound over to the grand jury, which indicted him for rape, deviate sexual behavior, burglary, and robbery. Counsel was appointed, and he moved to suppress the victim’s identification of petitioner because it had been elicited at the preliminary hearing through an unnecessarily suggestive procedure at which petitioner was not represented by counsel. After an evidentiary hearing the trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim’s identification.
At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing. She also testified that the defendant on trial was the man who had raped her. The prosecution’s other evidence linking petitioner with the crimes was the letter found in the victim’s apartment. Defense counsel stipulated that petitioner had taken the letter from his woman friend’s home, but he presented evidence that petitioner might have lost the notebook containing the letter at the neighborhood bar the night before the attack. The defense theory was that the victim, who also was in the bar that night, could have picked up the notebook by mistake and taken it home. The defense also called witnesses who testified that petitioner was with them in a college lunchroom in another part of Chicago at the time the attack was committed.
The jury found petitioner guilty on all four counts, thus rejecting his theory and alibi. The trial court sentenced him to 30 to 50 years in prison. The Illinois Supreme Court affirmed. People v. Moore, 51 Ill. 2d 79, 281 N. E. 2d 294 (1972). It rejected petitioner’s argument that the victim’s identification testimony should have been excluded, on the ground that the prosecution had shown an “independent basis” for the identification. Id., at 86, 281 N. E. 2d, at 298. After this Court denied certiorari, 409 U. S. 979 (1972), petitioner sought a writ of habeas corpus from the Federal District Court. He contended that admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights. Relying on the transcript from the state proceedings, the District Court denied the writ in an unpublished opinion, again on the ground that the prosecution had shown an independent basis for the identification. App. 31-35. The Court of Appeals for the Seventh Circuit affirmed in an unpublished opinion, United States ex rel. Moore v. Illinois, 534 F. 2d 331 (1976), and we granted certiorari. 429 U. S. 1061 (1977).
II
United States v. Wade, 388 U. S. 218 (1967), held that a pretrial corporeal identification conducted after a suspect has been indicted is a critical stage in a criminal prosecution at which the Sixth Amendment entitles the accused to the presence of counsel. The Court emphasized the dangers inherent in a pretrial identification conducted in the absence of counsel. Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused. Such a suggestion, coming Jrom a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial. Id., at 229, 235-236. If an accused’s counsel is present at the pretrial identification, he can serve both his client’s and the prosecution’s interests by objecting to suggestive features of a procedure before they influence a witness’ identification. Id., at 236, 238. In view of the “variables and pitfalls” that exist at an uncounseled pretrial identification, id., at 235, the Wade Court reasoned:
“[T]he first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ” Id., at 235-236.
Wade and its companion case, Gilbert v. California, 388 U. S. 263 (1967), also considered the admissibility of evidence derived from a corporeal identification conducted in violation of the accused’s right to counsel. In Wade, witnesses to a robbery who had identified the defendant at an uncounseled pretrial lineup testified at trial on direct examination by the prosecution that he was the man who had committed the robbery. The prosecution did not elicit from the witnesses the fact that they had identified the defendant at the pretrial lineup. Nevertheless, because of the likelihood that the witnesses’ in-court identifications were based on their observations of the defendant at the uncounseled lineup rather than at the scene of the crime, the Court held that this testimony should have been excluded unless the prosecution could “establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” 388 U. S., at 240.
Gilbert differed from Wade in one critical respect. In Gilbert the prosecution did elicit testimony in its case-in-chief that witnesses had identified the accused at an uncounseled pretrial lineup. The Court recognized that such testimony would “enhance the impact of [a witness’] in-court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial.” 388 U. S., at 273-274. Because “[t]hat testimony [was] the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality [,]’ Wong Sun v. United States, 371 U. S. 471, 488,” the prosecution was “not entitled to an opportunity to show that the testimony had an independent source.” Id., at 272-273; see also Wade, supra, at 240 n. 32. The Court announced this exclusionary rule in the belief that such a sanction is necessary “to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Gilbert, supra, at 273. The Court therefore reversed the conviction and remanded to the state court for a determination of whether admission of this evidence was harmless constitutional error under Chapman v. California, 386 U. S. 18 (1967). 388 U. S., at 274.
In Kirby v. Illinois, 406 U. S. 682 (1972), the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications Conducted “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U. S., at 689. This is so because the initiation of such proceedings “marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Id., at 690. Thus, in Kirby the plurality held that the prosecution’s evidence of a robbery victim’s one-on-one stationhouse identification of an uncoun-seled suspect shortly after the suspect’s arrest was admissible because adversary judicial criminal proceedings had not yet been initiated. In such cases, however, due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Id., at 690-691; Neil v. Biggers, 409 U. S. 188 (1972); Stovall v. Denno, 388 U. S. 293 (1967); see generally Manson v. Brathwaite, 432 U. S. 98 (1977).
III
In the instant case, petitioner argues that the preliminary hearing at which the victim identified him marked the initiation of adversary judicial criminal proceedings against him. Hence, under Wade, Gilbert, and Kirby, he was entitled to the presence of counsel at that confrontation. Moreover, the prosecution introduced evidence of this uncounseled corporeal identification at trial in its case-in-chief. Petitioner contends that under Gilbert, this evidence should have been excluded without regard to whether there was an “independent source” for it.
The Court of Appeals took a different view of the case. It read Kirby as holding that evidence of a corporeal identification conducted in the absence of defense counsel must be excluded only if the identification is made after the defendant is indicted. App. 45-46. Such a reading cannot be squared with Kirby itself, which held that an accused’s rights under Wade and Gilbert attach to identifications conducted “at or after the initiation of adversary judicial criminal proceedings,” including proceedings instituted “by way of formal charge [or] preliminary hearing.” 406 U. S., at 689. The prosecution in this case was commenced under Illinois law when the victim’s complaint was filed in court. See Ill. Rev. Stat., ch. 38, § 111 (1975). The purpose of the preliminary hearing was to determine whether there was probable cause to bind petitioner over to the grand jury and to set bail. §§ 109-1, 109-3. Petitioner had the right to oppose the prosecution at that hearing by moving to dismiss the charges and to suppress the evidence against him. § 109-3 (e). He faced counsel for the State, who elicited the victim’s identification, summarized the State’s other evidence against petitioner, and urged that the State be given more time to marshal its evidence. It is plain that “the government ha[d] committed itself to prosecute,” and that petitioner found “himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689. The State candidly concedes that this preliminary hearing. marked the “initiation of adversary judicial criminal proceedings” against petitioner, Brief for Respondent 8, and n. 1; Tr. of Oral Arg. 32, 34, and it hardly could contend otherwise. The Court of Appeals therefore erred in holding that petitioner’s rights under Wade and Gilbert had not yet attached at the time of the preliminary hearing.
The Court of Appeals also suggested that Wade and Gilbert did not apply here because the “in-court identification could hardly be considered a line-up.” App. 45. The meaning of this statement is not entirely clear. If the court meant that a one-on-one identification procedure, as distinguished from a lineup, is not subject to the counsel requirement, it was mistaken. Although Wade and Gilbert both involved lineups, Wade clearly contemplated that counsel would be required in both situations: “The pretrial confrontation for purpose of identification may take the form of a lineup... or presentation of the suspect alone to the witness.... It is obvious that risks of suggestion attend either form of confrontation....” 388 U. S., at 229; see also id., at 251 (White, J., dissenting in part and concurring in part); cf. Stovall v. Denno, supra; Kirby v. Illinois. Indeed, a one-on-one confrontation generally is thought to present greater risks of mistaken identification than a lineup. E. g., P. Wall, EyeWitness Identification in Criminal Cases 27-40 (1965); Williams & Hammelmann, Identification Parades — I, Crim. L. Rev. 479, 480-481 (1963). There is no reason, then, to hold that a one-on-one identification procedure is not subject to the same requirements as a lineup.
If the court believed that petitioner did not have a right to counsel at this identification procedure because it was conducted in the course of a judicial proceeding, we do not agree. The reasons supporting Wade’s holding that a corporeal identification is a critical stage of a criminal prosecution for Sixth Amendment purposes apply with equal force to this identification. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case. The victim, who had seen her assailant for only 10 to 15 seconds, was asked to make her identification after she was told that she was going to view a suspect, after she was told his name and heard it called as he was led before the bench, and after she heard the prosecutor recite the evidence believed to implicate petitioner. Had petitioner been represented by counsel, some or all of this suggestiveness could have been avoided.
In sum, we are unpersuaded by the reasons advanced by -the Court of Appeals for distinguishing the identification procedure in this case from those considered in Wade and Gilbert. Here, as in those cases, petitioner’s Sixth Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. The courts below thought that the victim’s testimony at trial that she had identified petitioner at an uncounseled pretrial confrontation was admissible even if petitioner’s rights had been violated, because there was an “independent source” for the victim’s identification at the uncounseled confrontation. 51 Ill. 2d, at 86, 281 N. E. 2d, at 298; App. 35 (District Court), 45-46 (Court of Appeals). But Gilbert held that the prosecution cannot buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused’s Sixth Amendment rights, even if it can prove that the pretrial identification had an independent source. “That testimony is the direct result of the illegal lineup 'come at by exploitation of [the primary] illegality,’ ” Gilbert, 388 U. S., at 272-273, and the prosecution is “therefore not entitled to an opportunity to show that the testimony had an independent source.” Id., at 273. Because the prosecution made use of such testimony in this case, petitioner is entitled to the benefit of the strict rule of Gilbert.
IV
In view of the violation of petitioner’s Sixth and Fourteenth Amendment right to counsel at the pretrial corporeal identification, and of the prosecution’s exploitation at trial of evidence derived directly from that violation, we reverse the judgment of the Court of Appeals and remand for a determination of whether the failure to exclude that evidence was harmless constitutional error under Chapman v. California, 386 U. S. 18 (1967). See Gilbert, supra, at 274. That court also will be free on remand to re-examine the other issues presented by the petition, upon which we do not pass.
Reversed and remanded.
Me. Justice Stevens took no part in the consideration or decision of this case.
Counsel for petitioner explicitly drew the court’s attention to our then recent decision in United States v. Wade, 388 U. S. 218 (1967): “If we may look at the Wade case, Your Honor, it has as its holding, Your Honor, the requirement that a defendant have an attorney at an identification procedure....” Trial Transcript 132.
Among the factors to be considered in making this determination are “the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” 388 U. S., at 241.
In United States v. Ash, 413 U. S. 300 (1973), the Court held that the Sixth Amendment does not require that defense counsel be present when a witness views police or prosecution photographic arrays.. A photographic showing, unlike a corporeal identification, is not a “trial-like adversary confrontation” between an accused and agents of the government; hence, “no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.” Id., at 317. Moreover, even without attending the prosecution’s photographic showing, defense counsel has an equal chance to prepare for trial by presenting his own photographic displays to witnesses before trial. But “[duplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs.” Id., at 318 n. 10. An accused nevertheless is entitled to due process protection against the introduction of evidence of, or tainted by, unreliable identifications elicited through unnecessarily suggestive photographic displays. Id., at 320; Manson v. Brathwaite; Simmons v. United States, 390 U. S. 377 (1968).
Immediately before the State's Attorney asked the victim to identify petitioner, he stated:
“This is an allegation of rape and deviate sexual assault. It’s a home invasion of an apartment in Hyde Park and the victim was raped and forced to commit an oral copulation. Taken from her was a guitar and other instruments. When the defendant was arrested upon an arrest warrant signed by the Judge of the Court, the articles, the guitar and other instruments were found in the apartment, as were the clothes described of the man that attacked her that day.” App. 48-49.
It appears from the record that although a guitar and a flute were found in petitioner’s apartment when he was arrested, they were not the ones taken from the victim’s apartment and they were not introduced into evidence at petitioner’s trial. Transcript of Proceedings at Hearing of Feb. 5, 1968, p. 10; Trial Transcript 4A-45, 400-401. Neither was any clothing.
For example, counsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view petitioner in a less suggestive setting. See, e. g., United States v. Ravich, 421 F. 2d 1196, 1202-1203 (CA2), cert. denied, 400 U. S. 834 (1970); Mason v. United States, 134 U. S. App. D. C. 280, 283 n. 19, 414 F. 2d 1176, 1179 n. 19 (1969). Short of that, counsel could have asked that the victim be excused from the courtroom while the charges were read and the evidence against petitioner was recited, and that petitioner be seated with other people in the audience when the victim attempted an identification. See Allen v. Rhay, 431 F. 2d 1160, 1165 (CA9 1970), cert. denied, 404 U. S. 834 (1971). Counsel might have sought to cross-examine the victim to test her identification before it hardened. Cf. Haberstroh v. Montanye, 493 F. 2d 483, 485 (CA2 1974); United States ex rel. Riffert v. Rundle, 464 F. 2d 1348, 1351 (CA3 1972), cert. denied sub nom. Riffert v. Johnson, 415 U. S. 927 (1974). Because it is in the prosecution’s interest as well as the accused’s that witnesses’ identifications remain untainted, see Wade, 388 U. S., at 238, we cannot assume that such requests would have been in vain. Such requests ordinarily are addressed to the sound discretion of the court, see United States v. Ravich, supra, at 1203; we express no opinion as to whether the preliminary hearing court would have been required to grant any such requests.
The existence of an “independent source” was thought to be demonstrated by the victim’s selection of a picture of petitioner from the second photographic
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
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.
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT 20, MUSKOGEE, OKLAHOMA; Natalie Sams and F. Clarence Sams, minors who sue by their parents, Mr. and Mrs. Nathan Sams, and Mr. and Mrs. Nathan Sams, individually; Thomas Buckley, Robert Buckley and John Buckley, minors who sue by their parents, Mr. and Mrs. William A. Buckley, and Mr. and Mrs. William Buckley, individually; Jennifer Parker, a minor who sues by her parents, Mr. and Mrs. Kenneth Parker, and Mr. and Mrs. Kenneth Parker, individually; and the Class of all those School Districts, School Children, Parents and Property Owners in the State of Oklahoma who are Similarly Situated with the above Named Plaintiffs, Plaintiffs-Appellants, v. STATE OF OKLAHOMA; State of Oklahoma ex rel. the Commissioners of the Land Office; Jack Blackwell, the County Treasurer of Oklahoma County; Jim Parkinson, the County Treasurer of Tulsa County; and Oscar Thomas, the County Treasurer of Muskogee County, in their official capacities and representing the class of all County Treasurers of Oklahoma, Defendants-Appellees, and Board of Education of Independent School District 1, Sulphur, Oklahoma, et al., Intervenors-Appellees.
No. 89-68.
United States Court of Appeals Tenth Circuit.
April 14, 1969.
Rehearing Denied May 5, 1969.
Tom R. Mason, Muskogee, Okl., and Maurice H. Merrill, Norman, Okl. (Norman & Wheeler and Bonds, Matthews & Mason, Muskogee, Okl., were with them on the brief), for plaintiffs-appellants.
Bert Barefoot, Jr., Oklahoma City, Okl. (C. J. Engling, Asst. Atty. Gen. for State of Oklahoma, was with him on the brief), for defendants-appellees.
John A. Claro, Oklahoma City, Okl. (Bert Barefoot, Jr., Edward H. Moler and Barefoot, Moler, Bohanon & Barth, Oklahoma City, Okl., were with him on the brief), for intervenors-appellees other than Independent School Dist. 1 of Tulsa County, Okl.
C. H. Rosenstein, Tulsa, Okl. (Rosenstein, Livingston, Fist & Ringold, Tulsa, Okl., were with him on the brief), for intervenor-appellee Independent School Dist. 1 of Tulsa County, Okl.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The claim of the plaintiffs-appellants is that Oklahoma treats them unequally in the distribution of taxes collected for school purposes from utilities operating in more than one county. Jurisdiction is asserted under 28 U.S.C. § 1343(3) in that plaintiffs are deprived of the equal protection guaranteed by the Fourteenth Amendment. A three-judge district court was requested and denied. The trial court dismissed the action for lack of subject-matter jurisdiction and this appeal followed.
The action was brought by the Board of Education of a Muskogee, Oklahoma, school district and by parents and taxpayers suing in their own behalf and in behalf of their school children. The defendants are the State of Oklahoma and various state and local officials whose duties relate to the collection and distribution of taxes. Several school districts were permitted to intervene on the side of the defendants.
The allegations of the complaint are these. The Oklahoma Constitution, Art. X, § 12a, provides that taxes on utilities operating in more than one county “shall be paid into the Common School Fund * * * of this State.” In Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, the Oklahoma Supreme Court held that this constitutional provision was not self-executing and that in the absence of legislation the county treasurers could not pay into the Common School Fund the mentioned taxes. The Oklahoma legislature has not enacted the necessary implementing legislation. This failure deprives the plaintiffs of equal protection because the children are denied an equal opportunity for education, because the individual taxpayers are required to pay more taxes, and because the school district is denied its “equalized share of the school ad valorem taxes,” assured by Art. X, § 12a. The plaintiffs seek a decree enjoining the county treasurers from paying taxes collected on utilities operating in more than one county to the local school districts, directing the state legislature to enact implementing legislation, and, in the event of such legislation, ordering the Commissioners of the Land Office to apportion. and distribute the taxes throughout the state as other “Common School Funds.”
A single judge may dismiss for lack of subject-matter jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. His refusal to convene a three-judge court may be reviewed by the court of appeals. Idlewild Bon-Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. If the trial court was correct in holding that subject-matter jurisdiction is not alleged,, there is no need of pursuing further the question of the need for a three-judge court.
The complaint before us does not attack the constitutionality of any state statute or of any administrative order. The claims are (1) the decision in Linthicum v. School District No. 4 of Choctaw County, 49 Okl. 48, 149 P. 898, that § 12a of the Oklahoma Constitution is not self-executing is wrong, and (2) accepting Linthicum, the state legislature has denied the plaintiffs equal protection by not implementing § 12a. If the complaint is read liberally, it can be taken as an over-all attack on the Oklahoma system of distribution of school funds. If such is the intent, we do not know what law or what official act is relied on as a denial of equal protection.
The plaintiffs say that the apportionment decisions, e. g. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and Moss v. Burkhart, W.D.Okl., 220 F.Supp. 149, support their right to a three-judge district court. In those cases the constitutionality of specific state apportionment statutes was attacked. Other decisions cited by plaintiffs are similarly distinguishable. In Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650, the charge was that a state statute was unconstitutional. Flast v. Cohen, Secretary of Health, Education, and Welfare, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was concerned with the constitutionality of a federal statute. King, Commissioner, Department of Pensions and Security v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, related to the constitutionality of a state regulation.
The decision in Linthicum that § 12a is not self-executing is an interpretation by the highest court of Oklahoma of the constitution of that state. It is conclusive on the point and is binding on us. Senn v. Tile Layers Protective Union, Local No. 5, 301 U.S. 468, 477, 57 S.Ct. 857, 81 L.Ed. 1229. The claim that Linthicum was decided wrongly goes to the construction of the state constitution and does not deny a federal constitutional right. We cannot overturn Linthicum.
The failure of the legislature to implement § 12a is not the denial of a right, privilege, or immunity secured by the Constitution of the United States. No allegation of the complaint charges that any plaintiff, any group of plaintiffs, or any class which they claim to represent have been discriminated against in the collection and distribution of tax moneys because of race, color, religion, or any other personal attribute. Absent such allegations, the claim is simply that they want a different allocation of the public revenues. In Allied Stores of Ohio, Inc. v. Bowers, Tax Commissioner of Ohio, 358 U.S. 522, 526, 79 S.Ct. 437, 440, 3 L.Ed.2d 480, the Supreme Court said that when the states are dealing with their proper domestic concerns and do not entrench on federal prerogatives or violate the guaranties of the federal constitution, they “have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests.” See also Thompson v. Allen County, 115 U.S. 550, 555 and 556, 6 S.Ct. 140, 29 L.Ed. 472.
The question of whether taxes collected from utilities operating in more than one .county should be used in the county where the property is located or distributed generally on some basis to all the counties of the state presents a policy matter for determination by the state — not by the federal judiciary. See McInnis v. Shapiro, N.D.Ill., 293 F.Supp. 327, affirmed sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308. The use of taxes in the county where the taxed property is located does not, of itself, constitute an invidious discrimination or unreasonable classification. We agree with the trial court that subject-matter jurisdiction is not present.
The trial court dismissed the State of Oklahoma as a defendant on the ground of sovereign immunity and no express consent to suit. The action was correct. Hamilton Manufacturing Company v. Trustees of the State Colleges in Colorado, 10 Cir., 356 F.2d 599, 601, and cases there cited.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_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).
Robert WILLIAMS and Henry J. Williams, Appellants, v. UNITED STATES of America, Appellee.
No. 17216.
United States Court of Appeals Ninth Circuit.
April 27, 1961.
B. W. Minsky, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan and Edward M. Medvene, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG, and MERRILL, Circuit Judges.
BARNES, Circuit Judge.
Appellants Robert and Henry Williams were charged in several counts, and convicted in one and two counts, respectively, of concealing and transporting, heroin in violation of 21 U.S.C.A. § 174. William Allen, a co-defendant of appellants, was convicted on ten pleas of guilty of the sale or concealment and transportation of heroin. Apprehension of these defendants was effected by federal narcotics agents and Los Angeles County Sheriff’s Deputies with the aid of Francis Jones, a special employee of the Federal Bureau of Narcotics. The district court’s jurisdiction to try this offense rests upon 18 U.S.C. § 3231. This court has jurisdiction on appeal. 28 U.S.C. § 1291.
On June 21, 1960, Jones contacted Allen and told him that he would probably want to buy some heroin on the following day. On June 22, 1960, after contacting law enforcement officers, Jones again called Allen and agreed to meet him at his residence. Jones, supplied with $160.00 of government funds and a Fargo listening device, was taken by the officers to the vicinity of Allen’s home. Jones entered Allen’s residence, the government agents maintaining a fixed surveillance on the building. Jones waited with Allen until about 11:00 A.M., when a 1960 Blue Oldsmobile Sedan pulled up in front of Allen’s house. Allen indicated that this was his connection, and requested Jones and two other persons in the building to wait in the back bedroom. Jones gave Allen $100.00 in government funds and then joined the two other men in the back bedroom. Robert Williams left the 1960 Blue Oldsmobile Sedan and walked to the door of Allen’s house where Allen was waiting for him. Both men walked back toward Williams’ car, and then, after a few moments returned to and entered, Allen's house. Williams then left the residence, went to the passenger side of his car, picked up a package and returned to the residence. At approximately 11:20 A.M. Williams left the house, returned to his car and departed from the area. As soon as Williams had left the house, Allen called Jones into the room and gave him a condom containing heroin. Jones left the house and was under continuous surveillance until he met the law enforcement officers a short time later. He gave the officers the heroin and the remaining $60.00 of advance funds supplied by the government.
On June 24, 1960, substantially the same sequence of events transpired.
In the evening on July 7th, Allen called Jones and told him that he could get a half ounce of heroin for $125.00. The following morning, at 7:45 A.M. Allen called Jones again and told him that Robert “Bobby” Williams’ brother, Henry “Sonny” Williams, would be at Allen’s house about 9:00 A.M. Again Jones met with federal and local agents, was searched, supplied with government funds and a Fargo listening device, and was taken to the vicinity of Allen’s residence. Jones entered Allen’s residence and waited until about 10 :50 A.M. when Henry “Sonny” Williams, driving a white 1959 Ford convertible drove past Allen’s residence and blew the horn. Allen said, “Here he is now,” and ran from the house. About five minutes later, Allen came back, got the money from Jones, and left. A few minutes later Allen returned and said that “Sonny” would call in about five minutes. Allen would then meet “Sonny” at Lorraine Walk and Gáge streets to get the heroin. About ten minutes later the telephone rang and Allen, after conversing a short while, left the house. Allen walked along Lorraine Walk to Gage and entered Williams’ car. A few moments later Allen left the car, ran back to his residence, and gave Jones the heroin.
After Allen had left the vehicle, “Sonny” Williams drove away from the area; being followed by two officers. While Williams was driving, officer Landry saw Williams “looking back” and apparently putting something in his mouth. When the officers arrested Williams they asked him to open his mouth, but he did not do so, until he had swallowed. The officer found, on Williams’ person, $15.00 of the money that they had given Jones to purchase the heroin. Later the same day, Williams told a narcotics agent that he wasn’t feeling well because he had swallowed some money.
Appellants raise two points in this appeal. First they contend that the trial court erred in denying their motion for a bill of particulars. Secondly, they claim that error was committed when the court admitted evidence of statements made by Allen outside the presence of appellants. We consider each matter in turn.
1. Alleged error in denial of bill of particulars.
Appellants claim that their motion for a bill of particulars should have been granted to inform them of (a) exactly when and where the heroin was sold; (b) the person to whom defendant allegedly sold and transferred the heroin; (c) whether the buyer at the time of the alleged sale was in the employ of the government; (d) whether the buyer was acting at the instance of the government at the time of the sale.
The indictment, itself, provided notice of the days on which the transactions occurred, though not of the exact time of day. The indictment also revealed the name of the person to whom the heroin was sold. In this connection, however, it should be noted that appellants were not convicted on charges of selling narcotics; they were convicted only of concealing and transporting narcotics, or facilitating such actions.
With the foregoing in mind, we find only one of appellants’ allegations to be significant. The exact location of the alleged offense may very well be a fact essential to the preparation of a defense to charges of concealing and transporting heroin. A defendant is entitled to a bill of particulars insofar as it is necessary to enable him adequately to prepare a defense. Rodella v. United States, 9 Cir., 1960, 286 F.2d 306, 310. It would seem then, that the trial court’s failure to grant a bill of particulars, to the extent of revealing the exact geographical sites of the alleged offenses, might be an abuse of discretion. Under the circumstances of this case, however, there was, we believe, no abuse of discretion. An abuse of discretion does not occur unless defendants are actually surprised in the progress of the trial; it must appear that appellants’ substantial rights have been prejudiced by the denial of the bill. Schino v. United States, 9 Cir., 1954, 209 F.2d 67, 70.
In the instant action, the government filed its trial memorandum, revealing the exact location of the June 22 and June 24 transactions, on September 8, 1960, one week before trial. Appellants’ bland assertion that they were surprised is not supported by anything more significant than the further allegation that there was no way for them adequately to prepare their case. These conclusory statements, of course, do not support a claim of prejudice to appellants’ substantial rights. Nor did appellants at the time of trial make any showing of surprise; ask for any continuance of the trial; or rely on any alleged prejudice on their motion for new trial. They urge their legal position now at too late a date.
2. Alleged error in admission into evidence of co-defendant Allen’s statement, made in the absence of appellants.
Appellants contend that Allen’s statements made to Jones, gave color to the acts of appellants. Such statements, made outside the presence of appellants, could not, appellants assert, be admitted in evidence without independent proof of a conspiracy between Allen and appellants.
In Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537, we summarized the case law relevant to the same contention appellants here make. We reaffirm what we there held (at pages 539, 540). Clearly no charge or proof of conspiracy need be produced in order to justify the admission of a confederate’s statements, made in the defendant’s absence. Such third party statements may be admitted if there is adequate independent evidence of a concert of action between the third party and the defendants. In the case at bar, the observations of the several law enforcement officers and special employee Jones, unsupported by any reference to Allen’s declarations, constitute facts sufficient to establish a concert of action between Allen and appellants. To repeat the evidence, without any reference to Allen’s statements, it is established that Robert Williams arrived at Allen’s house on June 22, 1960. At that time the only persons in Allen’s residence were Allen, Jones and two others, the last three named being in the back bedroom when Williams entered the house. Williams went to the door of the house and met Allen; Williams then left the residence and removed a package from his car. Williams next entered the residence and remained a few moments. When Williams left, Allen gave Jones the heroin. A repetition of these events occurred on June 24, 1960. It is a fair inference from such data, that appellant Robert “Bobby” Williams and Allen were acting in concert.
Again without reference to any statements by Allen, it is established that Henry “Sonny” Williams drove to Allen’s house on July 8, 1960, and sounded his car horn. Allen, thereupon ran from his house, returning about five minutes later. Jones then gave Allen $150.00 of government funds. Allen departed and in a few minutes returned. After receiving a telephone call, Allen again departed and walked to the intersection of Lorraine Walk and Gage where he entered Williams’ car. After a short time Allen left the car, returned to his residence and gave Jones the heroin. In the meantime, Henry “Sonny” Williams was apprehended and found to be in possession of some of the money ($15.00) which Jones had previously given Allen. Again the data is sufficient to support an inference that Henry “Sonny” Williams and Allen were acting in concert.
The cases relied upon by appellants (Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920; Braatelien v. United States, 8 Cir., 1945, 147 F.2d 888; Nibbelink v. United States, 6 Cir., 1933, 66 F.2d 178; and Kuhn v. United States, 9 Cir., 1928, 26 F.2d 463) are distinguishable. All deal with situations where actual conspiracy is charged, and the co-conspirators’ statements are admitted in order to link defendants with the conspiracy. Here conspiracy was not charged, and Allen’s statements were admitted to prove that appellants had committed certain substantive acts. Furthermore, the cases relied upon by appellants stand only for the proposition that the declarations of a coconspirator cannot be admitted against another conspirator unless independent evidence tends to establish the existence of the conspiracy and the third party’s connection with it. Such independent evidence, of course, may be and usually is entirely circumstantial. Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920, 925. As we have seen, there is circumstantial evidence in the instant case which tends to establish a concert of action between each appellant and Allen.
Of course, appellant Robert Williams, while admitting the visits described hereinabove on June 22 and 24th, 1960, to Allen’s house, and appellant Henry Williams, admitting the meeting on July 8th, 1960, at Lorraine Walk and Gage streets, each by use of the respective automobiles described by the various witnesses, ascribe such contact to innocent purpose and friendly companionship with codefendant Allen. At best, this creates a conflict in the evidence, decided adversely to appellants by the trial court. Such factual determination is not clearly erroneous. It is therefore binding on this court.
Finding no error, we affirm.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the 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, Appellee, v. Charles Wallace NOLAN, Jr., Appellant.
No. 76-1177.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Jan. 25, 1977.
Decided March 22, 1977.
Jon K. Sargent, Asst. U. S. Atty., District of Kansas, Wichita, Kan. (E. Edward Johnson, U. S. Atty., Wichita, Kan., on the brief), for appellee.
C. Rabón Martin of Baker, Baker & Martin, Tulsa, Okl., for appellant.
Before LEWIS, Chief Judge, and PICKETT and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
Charles Wallace Nolan (Nolan) appeals from a jury conviction on charges stemming from an indictment alleging that he imported controlled substances into the United States in violation of 21 U.S.C.A. § 952(a).
On July 3, 1975, an air waybill was executed in New Delhi, India, by Paul Edward Donegan, pertaining to a crate consigned to Nolan in Emporia, Kansas. Nolan had been in India approximately one month before the crate was shipped. While in India, Nolan had purchased certain musical instruments contained in the crate.
When the crate arrived in the United States, the Customs Director sent a notice to Nolan at Emporia directing him to pick up the package at the airport in Wichita, Kansas. The Customs Director then ran a computer check with the Department of the Treasury for information regarding Nolan. The computer provided information that Nolan had been convicted of a drug importation violation in the Commonwealth of Great Britain in 1973. This prompted the Customs Agent to conduct a careful examination of the crate. By drilling holes in the crate, he determined that it was hollow and that it contained a controlled substance, i. e., marijuana.
After Nolan arrived at the Wichita airport to receive the package, he pointed to the crate with the sitar and drums at its side and remarked “I see you have got my stuff.” He said that he had gone to India for about six weeks to learn to play the sitar. Nolan was then arrested, whereupon he said that he had “never been to India” and that he knew nothing of the controlled substance in the crate.
Nolan moved for a suppression of the controlled substance. The motion was denied following a full hearing.
At trial, the government offered the testimony of the Customs Director regarding Nolan’s British conviction originally revealed by the Treasury Department computer, to show a justifiable basis for the search. The government also presented the testimony of the British Customs Agent who had apprehended Nolan for importing various contraband materials into the Commonwealth in 1973, ostensibly for the purpose of showing knowledge, intent, motive, common plan and scheme. The British Agent testified about custodial admissions of Nolan, the court proceedings, the presentence investigation and the judicial disposition. The government showed the “street value” of the marijuana and argued to the jury that Nolan hoped to reap great profits from it. Nolan did not present any evidence. The trial court instructed, inter alia, that one of the jury’s functions was to find the defendant guilty or innocent (as compared to the normal standard of not guilty).
Nolan was sentenced to three years imprisonment, followed by a two year probationary term.
On appeal Nolan argues that the court erred (1) in admitting testimony dealing with the prior British conviction; (2) in admitting evidence and argument regarding Nolan’s forthcoming distribution of the contraband; (3) in upholding the verdict inasmuch as the evidence was not sufficient to support a conviction; and (4) in instructing the jury.
I.
Nolan contends that the court erred in admitting testimony regarding Nolan’s pri- or British conviction for the importation of hashish.
In 1973, when Nolan was en route from New Delhi, India, to the United States he landed at a London airport. During that stop, a British Customs Agent discovered contraband on Nolan’s person and in the base of some wooden lamps he was carrying. The British Customs Agent was allowed to testify about a confession Nolan made to him in Britain and that Nolan was charged with and pled guilty to violation of the British importation laws. We hold that this testimony is admissible.
A.
Nolan contends that an alien criminal conviction is inadmissible, per se, in a United States federal criminal proceeding; and, in the alternative, that before admitting such a criminal conviction, it must be shown that each and every United States constitutional safeguard afforded criminal defendants was complied with in the foreign country where the conviction was obtained.
The government asserts that this issue was not raised at trial and therefore the appellate court should not consider it. In reviewing the record we find, however, that the issue was raised at trial and thus preserved for our consideration. [R., Vol. Ill, p. 115.]
Nolan admits that he does not have any authority directly in point. He relies on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). His reliance on Burgett, supra, is misplaced. The Court there held that a conviction violative of the constitutional right to counsel cannot be introduced “to support guilt or enhance punishment.” 389 U.S., at 115, 88 S.Ct., at 262. The British conviction was not introduced “to support guilt or enhance punishment.” It was introduced solely for the purpose of showing intent, design, a continuing course of conduct, guilty knowledge, mental disposition, capacity, habit, plan, motive or identity. Therefore, Burgett, supra, is inapplicable.
We have repeatedly held that evidence of uncharged crimes, wrongs or alleged prejudicial acts may be received for purposes proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975); United States v. Parker, 469 F.2d 884 (10th Cir. 1972); United States v. Pick-ens, 465 F.2d 884 (10th Cir. 1972); United States v. Pauldino, 443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S. 882, 92 S.Ct. 212, 30 L.Ed.2d 163 (1971); United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). The evidence in question in each of the above cited cases was not that of a criminal conviction, but it was that of criminal activity. It follows, then, that the evidence introduced under this exception need not be a constitutionally valid criminal conviction. Even if Nolan’s British conviction should not meet our federal constitutional demands, it is still admissible under this exception. Furthermore, Fed.Rules of Evid. Rule 404(b), 28 U.S.C.A. supports this conclusion by reference to admission of evidence of “Other crimes, wrongs or acts.” That rule does not require proof of a conviction such as that required under Rule 609 of the Federal Rules of Evidence.
We need not decide if a British conviction is admissible to prove guilt or enhance punishment. That issue is not before us.
We hold that an alien conviction is admissible for the purpose of proving a common plan, motive, opportunity, intent, knowledge, identity or absence of mistake if relevant and material to the charges and issues raised in the federal prosecution. The proof of Nolan’s British conviction was used for these purposes in the instant case.
B.
In a related issue, Nolan contends that evidence of his prior British conviction was inadmissible under Fed.Rules of Evid. Rules 404(b) and 403, 28 U.S.C.A.
A British Customs Agent was allowed to testify as to the importation of contraband into England by Nolan two years before the instant incident. The agent stated: that the contraband was shipped from New Delhi, India, in the base of wood lamps; that Nolan told the British agent that he paid a man in New Delhi to put the contraband in the wooden lamps, and that he intended to smoke part of it; that Nolan pled guilty to the British charge; that Nolan was fined $250.00 and that a prison sentence was defaulted because Nolan left the country. The trial court instructed the jury that this evidence was not admissible for proof of the crime charged, nor for proof that Nolan acted in conformity with his bad character, and further that the evidence should not be considered as constituting a separate or additional crime. The jury was specially instructed that this evidence was admissible exclusively for purposes going to proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and for absence of mistake or accident. The jurors were instructed to consider same entirely within these confines.
The general rule is that evidence of illegal activities other than those charged is ordinarily inadmissible. There are, however, several well-recognized exceptions to the rule, including receipt of such evidence in order to prove motive, opportunity, identity, absence of mistake or accident. United States v. Freeman, supra; United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972); United States v. Pauldino, supra.
We note that Rule 404(b), supra, is not exclusionary in the sense of the above rule of our Court. Rather, it would allow the admission of uncharged illegal acts unless the only purpose for their admission is to prove the criminal disposition of the defendant. We hold that under either rule, however, the evidence of Nolan’s prior conviction is admissible.
The probative value of proof of the commission of the prior crime must outweigh the prejudice. Rule 403, supra. This determination is properly within the trial judge’s discretion. United States v. Drumright, 534 F.2d 1383 (10th Cir. 1976), U.S. Appeal Pending; United States v. Baca, 444 F.2d 1292 (10th Cir. 1971), cert. denied, 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). A critical issue in the case at hand was Nolan’s intent and knowledge. Proof of the British conviction was very relevant in the proof of those elements of the crime. In view of its obvious probative value, we hold that the trial court did not abuse its discretion in admitting this evidence.
In United States v. Parker, supra, we announced some guidelines to test whether evidence of uncharged illegal acts should be admitted: (1) the evidence must tend to establish intent, knowledge, motive, identity, or absence of mistake or accident; (2) the evidence must be so related to the importation of contraband that it serves to establish intent, knowledge, motive, identity, or absence of mistake or accident; (3) the evidence must have real probative value, not just possible worth; and the uncharged illegal act must be close in time to the crime charged. See also: United States v. Burkhart, supra.
Evidence that Nolan had imported hashish into England certainly supports the elements of knowledge, intent, and motive.
The instant case is quite similar to United States v. Marshall, 526 F.2d 1349 (9th Cir. 1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376. There, evidence of cocaine possession was introduced in a heroin distribution trial to show knowledge, intent and motive. The court held:
. Both heroin and cocaine are ‘narcotic drugs’ under 21 U.S.C. § 802(16); if the jury could find Marshall knew the character and uses for the cocaine, they might reasonably infer that he knew the character and uses of heroin.
526 F.2d, at 1360-1361.
Various circuit courts have admitted into evidence proof of other illegal controlled substance activities in a trial dealing with illegal controlled substance charges, as establishing various elements of the crime. United States v. Wixom, 529 F.2d 217 (8th Cir. 1976); United States v. Brettholz, 485 F.2d 483 (2d Cir. 1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974); United States v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972). We repeat that the evidence of the British conviction was certainly probative of Nolan’s intent, knowledge, motive, and absence of mistake or accident.
The factual situation in the instant case and in the British case are so similar that a strong relationship is established. In both cases the controlled substance was imported from New Delhi, India, concealed in wood. The fact of concealment in wood is significant because Nolan confessed to the British Customs Agent that his contact in India was in the business of concealing contraband in wood for exportation. Further, the two transactions are similar in relation to the controlled substance. The British conviction involved hashish, a derivative of Cannabis, and the instant case involved marijuana, also a derivative of Cannabis. The two incidents occurred only two years apart. They were near in time.
We hold that the trial court met all of the guidelines of Parker, supra. There was no abuse of discretion in the admission of evidence of Nolan’s prior British conviction. Furthermore, the requirements of Rule 404(b), supra, were met.
C.
Nolan contends that the trial court committed prejudicial error in allowing testimony of his prior record to show justification for the search of the packing crate.
U.S. Customs Director William O’Donnell testified that when the shipping crate arrived at the Wichita International Airport, he ran a computer check of Nolan’s name with the Department of the Treasury. This yielded information of the British conviction. Armed with this information, he undertook an examination cf the crate and discovered the contraband.
Nolan offered to confess the validity of the search if his prior conviction could be withheld from the jury. He offered to stipulate that he would admit that there was probable cause for the search if “the whole English affair was kept completely out of the record.” [R., Vol. Ill, p. 133.] This, of course, would have precluded any evidence of the British crime from being introduced. We have heretofore held that the testimony of the British customs agent as to the British crime was properly introduced under Rule 404(b), supra. Accordingly, we hold that Nolan’s offer to stipulate was properly rejected.
As Nolan asserts, O’Donnell’s testimony relative to the computer-check information was not properly admitted, inasmuch as it went only to the validity of the search, involving a question of law for the court and no issue of relevance for jury determination. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294,1 L.Ed.2d 278 (1957); Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895). Even so, we hold that it is harmless error in light of the admissibility of the testimony elicited from the British Customs Agent. Nolan’s stipulation would have prevented the admission of any part of “the whole English affair” which clearly was self-serving. We hold that O’Donnell’s testimony did not create prejudicial error and that it did not contribute to the conviction. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
D.
Nolan contends that the trial court erred in permitting the British Customs Agent to establish Nolan’s British conviction by oral testimony alone, without presentation of duly certified and authenticated copies of the foreign judgment.
The trial judge offered to have the supporting documents of the British conviction marked when Nolan’s counsel objected. Nolan’s counsel stated that he did not want them marked. This occurred at the very time the British Customs Agent was testifying. [R., Vol. Ill, p. 254.] Under these circumstances, Nolan is bound by his own conduct of waiver. His objection here is untimely. He rejected the trial court’s offer to cause the subject documents to be marked for identification and made no subsequent objection as to their admissibility. Further, the British Agent testified that he had charged Nolan personally with the British crime and that he (the agent) was present throughout the British court proceedings against Nolan. Obviously, the agent had first hand, independent knowledge of the facts he testified to.
We hold that the British Agent’s testimony was admissible. There was no abuse of discretion in its admission. Absent an abuse of discretion by the trial court, an appellate court is bound to uphold its ruling as to the materiality and relevancy of proffered evidence. Young v. Anderson, 513 F.2d 969 (10th Cir. 1975); United States v. Twilligear, 460 F.2d 79 (10th Cir. 1972); United States v. Brown, 411 F.2d 1134 (10th Cir. 1969).
E.
Nolan contends that his in-custodial confession to the British Customs Agent in 1973 should not have been admitted because it was not shown that Nolan was given the necessary warnings dictated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Concededly, Nolan was not given the specific Miranda warnings. He was told, however, that “he was not obliged to say anything unless he wished to do so but anything he did say may be put into writing and may be given in evidence.” [R., Vol. Ill, p. 246.]
In any event, this contention is without merit. The Miranda warnings are “not essential to the validity of a confession which has been given in a foreign country.” United States v. Mundt, 508 F.2d 904, 906 (10th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975); United States v. Chavarria, 443 F.2d 904 (9th Cir. 1971). The reasoning in United States v. Chavarria, supra, is applicable:
. Miranda was intended as a deterrent to unlawful police interrogations. When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police. Therefore, so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible. .
443 F.2d, at 905.
II.
Nolan argues that the trial court erred in allowing Agent Miller to testify as to the street value of the contraband seized and that a mistrial should have been granted when the prosecutor stated in his closing argument that:
The defendant knew exactly what he was doing and he hoped to profit by it, to-wit, under the testimony of Special Agent Jim Miller, who testified as to the value, the street value of the marijuana, approximately $20 an ounce. There were approximately 120 ounces, $2,400, which is not too bad for a day’s work.
* * * * * *
The defendant got caught with his ‘hand in the cookie jar’ and now he has to take his medicine. It is that simple. [R., Vol. Ill, pp. 302-304.]
Nolan contends that this statement persuaded the jury that he was going to sell the marijuana which he had imported, thus constituting a crime with which he had not been charged.
We hold that the testimony as to the value of the marijuana does not constitute grounds for a mistrial. The trial court properly admitted evidence of the value of the marijuana in order to show a motive for importing it. In that light the testimony relative to the “street value” is both relevant and material. It is common knowledge that contraband is imported into the United States for great profit. The relevancy and materiality of evidence are matters within the sound discretion of the trial court. That judgment will not be disturbed unless there is a clear showing of abuse of discretion. Young v. Anderson, supra; United States v. Twilligear, supra; United States v. Brown, supra.
The prosecutor’s closing argument could be interpreted in two ways: it could imply that Nolan was going to make a profit by selling the marijuana; or, it could imply that Nolan was going to use the marijuana himself and thus save the money it would require if he “bought” it on the “street.” When a controlled substance is imported there would seem to be only two reasons for its importation: either for personal use or for resale. The prosecutor’s remarks related to these inferences. While either inference may suggest a crime for which Nolan was not charged, and therefore should not have been broached by the Government, still no serious prejudicial error occurred. We do not attribute a lack of intelligence or common sense to jurors in arriving at judgments. The prosecutor is entitled to reasonable latitude in drawing inferences from the record in his closing argument. While we agree that the prosecutor should not have made the challenged remarks, we cannot say that they constituted plain error affecting Nolan’s substantial rights in light of the entire record. Fed.R. Crim.P. rule 52(a), 18 U.S.C.A.; United States v. Gilbert, 447 F.2d 883 (10th Cir. 1971).
III.
Nolan contends that the evidence is insufficient as a matter of law to support his conviction in that it does not demonstrate that he either shipped or caused the contraband to be shipped.
The appellate court does not weigh conflicting evidence or pass on the credibility of witnesses. United States v. Downen, 496 F.2d 314 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974). The evidence, and all reasonable inferences, must be viewed in the light most favorable to the government. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975).
The evidence viewed in the light most favorable to the government is that:
1. Nolan had been in India just prior to the shipment of the contraband.
2. Nolan had made arrangements to receive the crate prior to its arrival.
3. Nolan stated that the sitar was his, and that he had been in India to learn to play the sitar contained in the crate; however, following his arrest, he recanted, stating that he had never been to India.
4. Nolan knew of an agent in India who would pack contraband in wood for him. Nolan had previously illegally imported a similar controlled substance into Great Britain.
Thus it was shown that Nolan knew of the shipment of the crate before it arrived; that he could arrange for a shipment of this type; and that he knew that importation of marijuana was illegal.
IV.
Nolan contends that the trial court erred in: (a) instructing on circumstantial evidence; (b) instructing on the function of the jury; (c) by refusing to instruct the jurors that they could not presume that because Nolan received the crate that he had shipped it; and (d) by refusing to instruct that the jury should be reluctant to find guilt because of the greater propensity to convict in a narcotics case. We find these issues to be individually and collectively without merit.
(a)
Nolan contends that the trial court erred by instructing the jury that before circumstantial evidence can establish a fact it must be the only reasonable conclusion but it need not exclude every other possible hypothesis. Nolan asserts that the trial court should have instructed that every reasonable hypothesis of innocence must be excluded.
Nolan “admits that the court’s instruction is not inherently prejudicial, . ” [Appellant’s Brief, p. 46.] The form of instructions is committed to the discretion of the trial court and there is no requirement that the court use the exact language as that requested, provided the issues of the case are adequately covered. United States v. Newson, 531 F.2d 979 (10th Cir. 1976). We hold that the instruction on circumstantial evidence is not erroneous.
(b)
Nolan contends that the trial court erred in instructing the jury that its function was to find Nolan guilty or innocent. The trial court did instruct that:
. The only matter before you is the question of whether or not the defendant is guilty or innocent of the crime charged in the indictment. [Emphasis supplied.]
[R., Vol. Ill, p. 324.]
The trial court also instructed the jury that there is a presumption of innocence; that a verdict of guilty cannot be returned unless the prosecution has proved that the accused is guilty beyond a reasonable doubt of every essential element of the crime charged [R., Vol. Ill, p. 309.]; that if two conclusions can be reasonably drawn from the evidence, “one of innocence and one of guilty, you should adopt the former” [R., Vol. Ill, p. 311.]; and that it is incumbent “ . . . upon the United States to establish by the evidence to your satisfaction beyond a reasonable doubt, ... every material allegation of the offense.” [R., Vol. Ill, p. 319.]
We hold that the totality of the instructions correctly apprised the jury of its function. United States v. Pennett, 496 F.2d 293 (10th Cir. 1974).
(c)
Nolan contends that the jury should have been instructed that there is no presumption that a person who receives a package knows that the package contains contraband. Nolan does not cite any authority for this proposition. We hold that the instructions taken as a whole properly stated the law as to Nolan’s requisite knowledge.
(d)
Nolan would also have had the jury instructed that the average juror has a greater propensity to return a guilty verdict in a prosecution involving drugs and that the jurors should be careful to avoid this propensity. He can cite no authority beyond his bald contention that the proposition is “common knowledge among the criminal defense law.” There is no basis for the adoption of such an instruction. The jurors were instructed to avoid any prejudice they may have for the government.
WE AFFIRM.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_judgdisc
|
C
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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 any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. 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".
GENERAL GLASS INDUSTRIES CORPORATION, on behalf of itself, and all others similarly situated, v. MONSOUR MEDICAL FOUNDATION; Monsour Medical Center, individually and as successor to Keystone Medical Management Company; William J. Monsour, M.D.; and A.V. Papa, Jr.; Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania, as Statutory Liquidator of Keystone Medical Services, Inc., Inter-venor in D.C., General Glass Industries Corporation, Appellant.
No. 91-3839.
United States Court of Appeals, Third Circuit.
Argued May 19, 1992.
Decided Aug. 17, 1992.
Fredric E. Orlansky (argued), Vincent A. DeFalice, Riley & DeFalice, P.C., Pittsburgh, Pa., Lewis B. Gardner, General Glass Industries Corp., Jeanette, Pa., for appellant General Glass Industries Corp.
Jerome Cochran (argued), Alan A. Gar-finkel, Klett, Lieber, Rooney & Schorling, Pittsburgh, Pa., for Monsour Medical Foundation, Monsour Medical Center, Inc. and Al Papa, Jr.
Kathryn L. Simpson (argued), Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, Pa., for Constance B. Foster.
Robert Pfaff, Pfaff, McIntyre, Dugas & Hartye, Hollidaysburg, Pa., for William J. Monsour, M.D.
Before: HUTCHINSON, COWEN and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal by General Glass Industries Corporation (“GGI”) requires us to determine whether a complaint asserting causes of action, some of which are not derivative of the causes of action maintained by the intervenor, the Insurance Commissioner'of the Commonwealth of Pennsylvania (“Commissioner”) in state liquidation proceedings against an insolvent insurer, may be dismissed by the district court on the grounds of abstention pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). We will vacate the district court’s abstention order and remand to the district court to stay this action pending conclusion of the state court proceedings.
I.
Keystone Medical Management Company, a named defendant in the action brought by GGI, had established a health care company, Keystone Medical Services, Inc., which had sold employee health insurance coverage to GGI in December, 1987. On September 4, 1990, the Commonwealth Court of Pennsylvania granted the petition of the Commissioner and issued an amended order for the liquidation of the insolvent Keystone Medical Services, Inc. In November, 1990, GGI filed a complaint in the United States District Court for the Western District of Pennsylvania, asserting RICO, ERISA and state tort law claims against Monsour Medical Foundation, Monsour Medical Center individually and as successor to Keystone Medical Management Company, William Monsour, M.D., and A.V. Papa, Jr.
On February 20, 1991, and thereafter on March 27, 1991, first Monsour, and then the Commissioner who had been granted intervention, moved to dismiss the complaint of GGI, arguing that the district court should abstain from exercising its jurisdiction, so as not to interfere with the liquidation proceedings which were continuing in state court.
GGI opposed these motions on the grounds that abstention was not warranted because GGI’s claims against Monsour were not derivative of the Commissioner’s actions, and were not available to, and could not be prosecuted by, the Commissioner. The Commissioner, while arguing for abstention, nevertheless stated that it had no objection to a stay of the federal action pending resolution of the state court suit.
The district court referred the motions to dismiss to a Magistrate Judge for decision. After discussing abstention under both Burford and Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Magistrate Judge recommended that the motions to dismiss be granted on the basis of Burford abstention, fearing that if the plaintiff’s action were allowed to continue, it would disrupt the ongoing state court liquidation proceedings. Those proceedings involve the acquisition, marshall-ing, and distribution of assets of the insolvent insurer, Keystone Medical Services, Inc. (“KMS”). The Magistrate Judge held that these same assets were the subject of GGI’s complaint. On November 1, 1991, the district court granted the Commissioner’s and Monsour’s motions to dismiss based on the report and recommendation of the Magistrate Judge. GGI filed a timely Notice , of Appeal.
II.
GGI is a manufacturer of sheet glass and employs approximately 300 workers. GGI had purchased employee health insurance from Keystone Medical Services, Inc. The complaint of GGI asserted claims under federal and state law. GGI alleged, among other claims, that the defendants had wasted KMS’ assets, unlawfully converted health insurance premiums, and had breached fiduciary duties owing to employee welfare benefit plans of GGI. GGI also alleged that, by the time that liquidation of KMS was ordered, KMS had unpaid medical claims of $1.7 million, of which $250,000 had been incurred by GGI employees.
GGI’s complaint also charged Monsour with various misrepresentations of fact. These misrepresentations, it. is alleged, caused GGI to incur higher health insurance premium costs for the remainder of its contract with KMS, and also caused damage to GGI’s reputation. It was alleged as well that GGI employees suffered damages by having to pay medical claims that should have been paid by KMS, and by having health insurance benefits decrease and premium contributions increase, in order to pay for health benefits of a lesser quality.
The RICO and ERISA counts of GGI’s complaint essentially stem from the activities of Monsour in its conduct of KMS’ business. Similarly, the state law claims refer to the various intentional actions of Monsour which GGI contends resulted in the legal and equitable claims for which relief is sought.
The district court, adopting the Report and Recommendation of the Magistrate Judge, rejected the arguments for abstention based on Colorado River abstention. The district court recognized that GGI raised claims under ERISA, RICO and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, that may not be raised by the Commissioner in state court proceedings, and thus the federal and state court proceedings were not truly du-plicative as required for a district court to abstain under Colorado River. The district court held, however, that Monsour and the Commissioner had met the requirements for Burford abstention and thus dismissed GGI’s complaint. It found that the regulation of an insolvent insurer and its rehabilitation presented the type of complex regulatory scheme, reflecting a policy of substantial state concern, which is among the prerequisites for Burford abstention.
Turning to other factors supporting Bur-ford abstention, the district court contrasted GGI’s claims with those presented by University of Maryland v. Peat Marwick Main & Co., 923 F.2d 265 (3d Cir.1991), which the district court found “instructive since it sets forth a framework for determining when a suit poses a danger of interfering with a state’s efforts to regulate matters of public concern.” (A 263). In Peat Marwick, we reversed the decision of the district court to abstain under Burford. We held, among other things, that the claims against the independent auditor, which had certified financial statements of the insurer on which the insureds had relied to their detriment, did not threaten to disrupt the regulatory scheme at issue in the ongoing liquidation proceedings.
In Peat Marwick, the plaintiffs’ claims were held to be non-derivative because they were brought against an auditor of the insurance company and were based on breaches of duty to the plaintiffs and not to the insolvent insurer, id. at 274. Although the district court conceded (A 267-68) that GGI had raised claims in federal court that could not be raised in the state proceeding, and GGI sought relief to which the Commissioner was not entitled, it also found that GGI was seeking the same funds pursued by the Commissioner. The district court, by adopting the Magistrate Judge’s report, held that any funds improperly converted from KMS were part of the “estate” of KMS, and GGI’s action would thus interfere with the ongoing state proceedings. It concluded, therefore, that abstention was appropriate and dismissed GGI’s complaint.
The Magistrate Judge, in his opinion, reported that “[b]oth defendants and inter-venor [Commissioner] argue in the alternative that this case should be stayed until such time as the state court liquidation is completed.” (A 260).
Because the district court dismissed GGI’s complaint, we must take GGI’s allegations to be true. See Monaghan v. Deakins, 798 F.2d 632 (3d Cir.1986), aff'd, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). We review the propriety of the district court’s order which abstained from exercising jurisdiction to avoid interfering with state administrative proceedings, under a standard wherein “the underlying legal questions are subject to plenary review, although the decision to abstain is reviewed for abuse of discretion.” Peat Marwick, 923 F.2d at 269.
III.
In Burford v. Sun Oil, 319 U.S. 315, 332, 63 S.Ct. 1098, 1106, 87 L.Ed. 1424 (1943), the Supreme Court considered abstention appropriate where “questions of regulation of the industry ... so clearly involves [sic] basic problems of [state] policy that equitable discretion should be exercised to give the [state] courts the first opportunity to consider them.” Burford had been granted a permit by the Texas Railroad Commission to drill four wells in an East Texas oil field. Sun Oil Company attacked the validity of the Commission’s order. It did so in federal district court. The court, after discussing the complexities of the Texas regulatory system, under which the spacing of wells and the rights of separate owners to a share of the common oil reservoir is regulated, held that the federal courts should abstain, thereby declining to exercise their jurisdiction in such a case to avoid interruption, delay, and conflict with the operation of the state administrative scheme.
The abstention doctrine announced in Burford “limited interference by the lower federal courts in determinations of inherently local matters made by state courts pursuant to a complex state regulatory scheme.” Peat Marwick, 923 F.2d at 270. In cases where “certain ‘traditional abstention requirements’ ” are present, id. the district court may exercise its discretion to abstain. The Supreme Court has summarized the requirements for Burford abstention thus:
Where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings and orders of state administrative agencies: (1) when there are “difficult questions of state law bearing upon public problems of substantial public import whose importance transcends the results in the case at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (citation omitted).
Pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1012, Congress ensured that the power to regulate the insurance industry is vested in the states:
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance
Where the district court’s exercise of jurisdiction would interfere with ongoing proceedings pursuant to a state regulatory scheme, such as a regulatory scheme concerning the insurance industry, the district court, under a Burford analysis, may abstain. Pennsylvania has expressed its strong state interest in regulating insurance companies through a complex regulatory scheme, known as the Insurance Department Act, 40 Pa.Cons.Stat.Ann. § 1 et seq., the stated purpose of which is “the protection of the interests of insureds, creditors, and the public generally.” This purpose is effected through “regulation of the insurance business by procedures and substantive rules on the entire insurance business,” early detection of troubled insurers, with prompt corrective remedial measures, and “efficiency and economy of liquidation” where necessary. See 40 Pa. Cons.Stat.Ann. § 221.1(c). “Generally, Burford abstention is justified where a complex regulatory scheme is administered by a specialized state tribunal having exclusive jurisdiction.” United Services Automobile Ass’n v. Muir, 792 F.2d 356, 364 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987).
Even in the face of liquidation proceedings instituted against an insolvent insurer pursuant to a regulatory scheme such as Pennsylvania’s, the decision of a district court to abstain remains within the district court’s discretion. In Lac D'Amiante Du Quebec v. American Home Assurance Co., 864 F.2d 1033, 1047 (3d Cir.1988), we refused to
lay down a per se rule that district courts must always abstain from an action against an insurance company the instant a state court places the company in liquidation proceedings. The decision as to whether abstention is appropriate may require an inquiry into the facts of the specific case before the court.
In Lac D'Amiante, 864 F.2d at 1045, we observed that the states have a strong interest in regulation of the insurance industry because
... solvent and healthy insurance coverage is an essential state concern. The McCarran-Ferguson Act specifically provides that it is in the public interest for states to continue serving their traditional role in the federal system and indicates the special status of insurance in the realm of state sovereignty.
In that case, a seller of asbestos sought indemnity from its insurers for sums it had paid out in connection with asbestos-related claims. The defendant insurers were in liquidation proceedings pursuant to the New York regulatory scheme with the New York Superintendent of Insurance as the statutory receiver. We noted “that most courts that have discussed this question have held abstention or stay or dismissal appropriate in the circumstance of a suit against an insurer in liquidation proceedings.” Id.
In Lac D’Amiante, we reversed the district court’s decision not to abstain, holding that the facts of the record in Lac DAmi-ante clearly indicated that “assumption of jurisdiction by the federal court in a suit against an insolvent insurer in liquidation proceedings would be highly destructive of the state's regulatory scheme..” Id. at 1045. In Peat Marwick, we recognized similar concerns, even though we held that claims against Peat Marwick did not involve Pennsylvania’s regulation of insurance companies. We “assume[d], without deciding, that regulation of insolvency and rehabilitation proceedings of insurance companies can provide the ‘complex regulatory scheme’ or ‘coherent policy with respect to a matter of substantial public concern’ that are among the prerequisites for invoking Burford abstention.” 923 F.2d at 270 n. 6.
In Peat Marwick, we examined the appropriate conditions for Burford abstention when deciding an action for damages against an insurance company’s independent auditor. The defendant auditor, Peat Marwick, and the intervenor Commissioner both filed motions to dismiss the federal action. The district court granted the Commissioner’s motion to dismiss on the grounds that it should abstain under Bur-ford.' We reversed the decision of the district court, holding that abstention was not justified in such a case, because “Pennsylvania’s regulatory scheme governing insurance company insolvencies is not concerned with protecting auditors” 923 F.2d at 272, and thus Peat Marwick’s “connection to the state regulatory mechanism (governing insolvency proceedings) that Burford abstention is designed to protect [was] simply too attenuated.” 923 F.2d at 271. We noted that “Burford abstention may be ordered in insurer insolvency cases only where one .of the. parties to the action in which the federal court abstains is the insolvent insurer or its receiver, trustee, officers, and the like.” Id.
A.
As an initial matter, GGI argued that abstention was inappropriate because its complaint seeks money damages at law and GGI argues that a federal court can only abstain under a Burford analysis when considering a claim for equitable relief.
In Lac D'Amiante, 864 F.2d at 1045, we reviewed Supreme Court cases discussing abstention and stated that “these cases suggest that the distinction between legal and equitable relief is no longer important in the abstention context....” However, Lac DAmiante itself addressed a claim for declaratory, not monetary, relief. On the other hand, the Supreme Court in Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), affirmed a decision to abstain under Burford, in a case involving RICO claims for money damages. But see Peat Marwick, 923 F.2d at 272 (intimating that Burford abstention should not be extended beyond equitable claims).
Decisional authority remains inconclusive as to whether Burford abstention may be ordered only in cases of an equitable nature, or whether, as Lac DAmiante states in dictum, the distinction between legal and equitable relief is not dispositive in abstention cases. Hence, we are hesitant to sustain GGI’s claim that the district court’s abstention order should be reversed, relying solely on the ground that GGI seeks money damages, rather than either declaratory or injunctive relief.
B.
GGI also contends that its claims against Monsour are not derivative of the Commissioner’s action, but are rather claims resulting from breaches of duties owed to GGI by Monsour. GGI points out that its claims are beyond the scope of the Commissioner’s action, arguing, for example, that even if the Commissioner had standing to pursue a RICO claim, the nature of the Commissioner’s claim and the relief that the Commissioner could obtain is vastly different.
In sum, GGI charges that the Commissioner is not seeking, and cannot seek, damages sufficient to make GGI and members of its putative class whole for the injuries that they have suffered by reason of Monsour’s actions. Thus, GGI concludes that, because its claims are materially different from the Commissioner’s and because its claims are non-derivative, the relief which it seeks cannot be satisfied by the Commissioner’s state court proceeding.
On the other hand, the Commissioner argues that GGI’s claims are derivative of the Commissioner’s claims and are the same as those of other KMS-insured claimants on whose behalf the Commissioner is seeking recovery in the liquidation proceedings. Thus, the Commissioner would have us sustain the district court’s abstention order because, as the Commissioner argues, the policies underlying the Pennsylvania insurance regulatory scheme would be frustrated if the district court permitted interference with the state court liquidation proceedings.
We are satisfied that there are differences between the claims asserted by GGI and those available to the Commissioner. See Kelly v. Overseas Investors, Inc., 18 N.Y.2d 622, 272 N.Y.S.2d 773, 219 N.E.2d 288 (1966) (per curiam) (Insurance Commissioner has no standing under Pennsylvania law to assert the creditors’ claims against Defendants who misrepresented company’s assets); Kinter v. Connolly, 233 Pa. 5, 81 A. 905 (1911) (receiver of insolvent insurance company cannot assert the creditors’ claims concerning the misrepresentation of company’s assets that induced the creditors to do business with the company).
We are also satisfied that some of the claims of GGI overlap and are derivative of the claims which the Commissioner is asserting in its state court proceeding. However, we are mindful as well that we should not permit interference in the marshalling of KMS’ assets and that the Commissioner, in the discharge of her duties, should not experience disruption by parallel court actions. Those concerns, because of the nature of GGI’s claims which have yet to be tested at trial, are not entirely resolved either by the principles of Lac D’Amiante, which ordered abstention, or by the principles of Peat Marwick, which did not.
In order to give effect to the teachings of Burford, which require that the Commissioner be allowed to conduct her state court liquidation proceedings without interference, we hold that the district court’s discretion was properly exercised by granting Burford abstention'. We do so, however, only to the extent that GGI’s claims dovetail with, or parallel, those of the Commissioner. To the extent that GGI has asserted claims which are broader than, and different from, the Commissioner’s, we hold that the district court improperly exercised its discretion by dismissing GGI’s action.
We are not called upon here to either identify in detail the particular claims that are broader than, or different from, the Commissioner’s, nor would it be appropriate for us to attempt to identify the parallel claims which GGI and the Commissioner have asserted and which they share. Rather, we will, while sustaining the exercise of Burford abstention, vacate so much of the district court’s order dismissing GGI’s action and provide that, after the state proceedings have been concluded, GGI may, if it desires to pursue any or all of the claims not satisfied through the Commissioner’s liquidation proceedings, prosecute them in the district court.
This disposition will preserve GGI’s claims and will permit GGI, after conclusion of the state proceedings, to specify and evaluate those claims for which relief was not found available in the liquidation action, and to seek redress for such claims in federal court. GGI may then pursue those remaining claims, if any, without having impaired or interfered with the Commissioner’s actions in her liquidation proceedings.
In structuring our present holding, we have been influenced to a degree by our earlier decision in Williams v. Red Bank Bd. of Educ., 662 F.2d 1008 (3d Cir.1981). In Williams, we affirmed an order of abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court had dismissed a suit brought under 42 U.S.C. § 1983 by Williams, a teacher who claimed tenure and damages and contended that the filing of administrative charges against her for her behavior in the classroom and at a public meeting of the Board of Education, had violated her constitutional rights. We held that the district court was correct in abstaining in the face of the ongoing state administrative tenure proceeding. However, due to uncertainty as to the relief which Williams might be afforded, and the possibility that claims which Williams might not be able to pursue in the state proceeding might be lost, we directed that a stay, rather than a dismissal of the federal proceedings, be ordered so that Williams’ federal claims might be pursued, if any remained, after the completion of the state proceedings.
Our action in Williams, was followed by a similar action in Monaghan v. Deakins, 798 F.2d 632 (3d Cir.1986), aff'd, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). In Deakins, officers of the Division of Criminal Justice in New Jersey had seized the plaintiffs’ papers and records after a search of the premises of the plaintiffs’ corporation. The plaintiffs thereafter filed a complaint pursuant to 42 U.S.C. § 1983, in the District Court for the District of New Jersey, charging that the search was unlawful and seeking damages and a preliminary injunction which would return all the seized documents. The defendant officials moved to dismiss the plaintiffs’ complaint, contending that the district court should abstain because of the then ongoing state (grand jury) proceedings. The district court held that abstention was appropriate and dismissed the complaint, having also held that it would not issue an injunction. On appeal, we affirmed the denial of the preliminary injunction, but also held that the district court had erred in dismissing plaintiffs’ claim for money damages and attorneys’ fees, stating,
it is settled in this circuit that a district court, when abstaining from adjudicating a claim for injunctive relief, should stay and not dismiss accompanying claims for damages and attorney fees when such relief, is not available from the ongoing state proceedings.
Deakins, 798 F.2d at 635.
Thus at the same time that we approved the district court’s abstention order, we directed that the district court stay the plaintiffs’ federal claims that could not be vindicated in the state proceeding. That decision was affirmed by the Supreme Court, stating,
... even if the Younger doctrine requires abstention here, the District Court has no discretion to dismiss rather than to stay claims for monetary relief that cannot.be redressed in the state proceeding.
Deakins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988).
The Court specifically referred to our Williams decision when it said:
In reversing the District Court’s dismissal of the claims for damages and attorney’s fees, the Court of Appeals applied the Third Circuit rule that requires a District Court to stay rather than dismiss claims that are not cognizable in the parallel state proceeding. 798 F.2d, at 635, citing Crane v. Fauver, 762 F.2d 325 (1985) and Williams v. Red Bank Bd. of Ed., 662 F.2d 1008 (1981). The Third Circuit rule is sound. It allows a parallel state proceeding to go forward without interference from its federal sibling, while enforcing the duty of federal courts “to assume jurisdiction where jurisdiction properly exists.” Id. at 1024-
Id. at 202-03, 108 S.Ct. at 529-30.
Thus, the principles of Burford, informed by the instruction of Williams and Deakins, lead us to conclude that the district court’s order of Burford abstention should be sustained, but that GGI’s complaint should not be dismissed. Rather, the district court should have permitted the parallel state proceeding to go forward while retaining jurisdiction over GGI’s action, in order to be certain that non-parallel and non-derivative claims, as well as claims peculiar to GGI alone, might thereafter be prosecuted.
C.
Our disposition, in affirming abstention, but requiring that the district court retain jurisdiction also avoids the troublesome question of whether any of the claims in GGI’s complaint would be barred by an applicable statute of limitations defense.
The district court was evidently satisfied that no limitations bar would prevent GGI from pursuing claims that were not vindicated by the Commissioner’s state court proceedings. Yet, we have held in Bailey v. Ness, 733 F.2d 279 (3d Cir.1984), that even a dismissal without prejudice does not protect against statute of limitations defenses. In Bailey, id. at 283, we said:
A dismissal of a party’s suit, even without prejudice, simply does not protect the party from a statute of limitations problem should the state court proceedings take a long time. The possibility warrants a safeguarding of a party’s interest in being able to bring suit. Consequently, we believe that under such circumstances it is improper to dismiss a party’s claims; a proper course would be to stay the federal court proceedings until the state court proceedings have run their course or have run out of time in which to be brought.
Similarly in Williams, 662 F.2d at 1024 n. 16, we held that the district court should have stayed the federal proceeding so that there was “no possibility of a statute of limitations bar to Williams’ claim, other than may have existed at the time her complaint was filed.” Moreover, in Dea-kins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988), the Supreme Court discussed with approval our decisions concerning the necessity of retaining jurisdiction in the context of abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The limitation concern addressed in Deakins but pertaining to Younger is equally applicable here:
In both Crane v. Fauver, 762 F.2d, at 329, and Williams v. Red Bank Bd. of Educ., 662 F.2d at 1024, n. 16, the Court of Appeals recognized that unless it retained jurisdiction during the state proceeding,. a plaintiff could be barred permanently from asserting his claims in the federal forum by the running of the applicable statute of limitations.
484 U.S. at 203 n. 7, 108 S.Ct. at 530 n. 7.
IV
We will affirm the district court’s Bur-ford abstention order, thereby enabling the Commissioner’s state court action to proceed without interference. At the same time we will vacate the district court’s order which dismissed GGI’s complaint and will remand to the district court with the direction that the district court retain jurisdiction over GGI’s complaint and stay GGI’s action until the conclusion of the Commissioner’s state court action. At that time, if issues remain, which have not been satisfied in the state court action, the district court should, consistent with the foregoing opinion, conduct such further proceedings as may be required.
Each party will bear its own costs.
. For ease of reference throughout this opinion, we will refer to all defendants as "Monsour.”
. Pursuant to the statutory liquidation procedures mandated by 40 Pa.Stat.Ann. §§ 221.1-221.63 (Supp.1991), Keystone’s assets, liabilities, and any causes of action, were placed in the hands of the Commissioner. As part of her actions to recover receivables and all monies diverted by defendants from the insolvent insurer, the Commissioner filed a complaint in the Commonwealth Court of Pennsylvania (No. 308 M.D.1989) against the defendants alleging common law fraud and negligence. The Commissioner sought to recover premium payments converted from Keystone and monies improperly diverted from Keystone to related corporations.
. GGI’s complaint was brought as a class action, comprised of all employers who had contracted for health insurance benefits for their employees from KMS, and non-defendant employees who were beneficiaries of such plans. Although GGI moved for class certification, in light of the dismissal of its complaint, no decision on class certification was ever rendered.
. The jurisdiction of the state courts extends to RICO claims. See Tafflin v. Levitt, 493 U.S. 455, 460, 110 S.Ct. 792, 795, 107 L.Ed.2d 887 (1990) (holding that "with respect to civil claims arising under RICO, we hold that state courts retain their presumptive authority to adjudicate such claims”). In this case, however, it is the policyholder, GGI, not the Commissioner, that has standing to bring a RICO action alleging predicate acts of fraud in the inducement to purchase insurance policies, because the injuries and hence the damages resulting from such activities cannot be claimed as the property of KMS’ estate.
. The Magistrate Judge’s report, adopted by the district court, observed:
It should also be noted that, if plaintiff is entitled to greater relief based upon the claims which are raised herein, he may still obtain that relief after the conclusion of the state court proceedings. The attempt to raise these claims in the federal court, and a refusal on abstention grounds, should work as a tolling of any applicable statute of limitations.
(A 268 n. 1)
. On appeal, at oral argument, all parties were asked if they would unconditionally concede to vacating the district court’s order of dismissal in light of their purported earlier lack of objection to a stay of the proceedings by the district court until such time as the state court liquidation proceedings had been concluded. Monsour’s response was not unconditional, hence this opinion.
. Peat Marwick's motion to dismiss was not decided by the district court, in light of the district court’s order granting the Commissioner’s motion to abstain. 923 F.2d at 267 n. 2.
.GGI posits:
Even if the Insurance Commissioner has standing to assert a RICO claim against Defendants for injuries resulting to Keystone Medical from the unlawful conversion of premium funds, any such claim would be substantially different from the one asserted by GGI in this case. GGI alleges that Defendants engaged in a pattern of racketeering activity arising out of both predicate acts of mail fraud and unlawful conversion of the assets of an employee welfare benefit plan. While the Insurance Commissioner, standing in the shoes of Keystone Medical, might predicate a RICO claim upon the unlawful conversion of premium funds, she would be estopped from relying upon Defendant’s fraudulent solicitation of premiums inuring to the benefit of Keystone Medical. See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, Fed.Sec.L.Rep. p. 98615 (7th Cir.1982), cert. denied, 459 U.S. 880, 103 S.Ct. 117 [177, 74 L.Ed.2d 145] (1982).
Appellant’s Brief at 13 n. 1.
. We have determined that a claim is derivative if the injury alleged by the plaintiffs is
"primarily to the corporation, and is an injury to the plaintiff creditor insofar as it decreases the assets of the corporation to which he must look for satisfaction of his debt, then the suit is for a tort suffered by the corporation, and properly brought by the trustee.”
Peat Marwick, 923 F.2d at 273, quoting In re Western World Funding, Inc. 52 B.R. 743, 775 (Bankr.D.Nev.1985).
. The district court acknowledged that the damages sought by GGI exceed the damages sought by the Commissioner and that "the claims presented [by GGI] differ from those in the state court proceeding in that here plaintiff seeks to vindicate the rights of a policyholder, and does not seek recovery on behalf of KMS.” (A 264).
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-2
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E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
SEVILLE INDUSTRIAL MACHINERY CORP., Appellant v. SOUTHMOST MACHINERY CORP., Tri-State Machinery Corp., Norman Gellman, individually and doing business as Southmost Machinery Corp., and Tri-State Machinery Corp., and Paolo Alfieri, individually and doing business as Southmost Machinery Corp.
No. 83-5575.
United States Court of Appeals, Third Circuit.
Argued May 14, 1984.
Decided Sept. 6, 1984.
As Amended Sept. 17, 1984.
Arthur H. Rosenberg (argued), New York City, for appellant.
Michael B. Himmel (argued), Alain Leibman, Greenbaum, Greenbaum, Rowe, Smith, Bergstein, Yohalem & Brack, Newark, N.J., for appellees.
Before GIBBONS and HUNTER, Circuit Judges, and SYLVIA H. RAMBO, District Judge.
Honorable Sylvia H. Rambo, United States District Judge for the Middle District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This appeal arises from a dismissal with prejudice of a civil complaint charging violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1982), along with pendent state claims for fraud, breach of contract, and conversion. These claims arose from a series of transactions spanning a twenty-one month period and involving the sale of some seven hundred pieces of industrial equipment.
Plaintiff, Seville Industrial Machinery Corp. (“Seville”), alleges that defendants, Southmost Machinery Corp. (“Southmost”), Tri-State Machinery Corp. (“Tri-State”), Norman Gellman, and Paolo Alfieri, fraudulently induced Seville to enter into various purchase, consignment, joint venture and service agreements regarding this machinery, and that this fraud constituted a “pattern of racketeering” in violation of RICO, 18 U.S.C. § 1962(b), (c), & (d) (1982).
The United States District Court for the District of New Jersey dismissed the complaint on defendants’ motion. 567 F.Supp. 1146 (D.N.J.1983). The district court judge dismissed Count One for failing to plead the elements of a RICO offense properly, Fed.R.Civ.P. 12(b)(6), and for failing to plead the underlying acts of fraud with ■ sufficient particularity, Fed.R.Civ.P. 9(b). The judge dismissed the remaining state law claims for lack of pendent jurisdiction, We believe that the district court erred in concluding that Count One did not state a cause of action under RICO, and in concluding that the underlying fraud was not pleaded with sufficient particularity. Consequently, we will reverse in part, affirm in part, and remand to the district court for further proceedings.
I
Seville is a New Jersey corporation engaged in the business of buying and selling industrial machinery. Southmost, a Texas corporation, and Tri-State, a New Jersey corporation, are also in the business of buying and selling industrial machinery, Gellman is an officer and controlling person of Southmost and of Tri-State, and Alfieri is an officer and controlling person of Southmost.
Seville alleges that beginning in May, 1981, it was induced by defendants to enter into a number of sale and other transactions involving over seven hundred pieces of industrial machinery, listed in Exhibits A through E attached to the complaint. Specifically, Seville alleges that defendants caused Seville to ship to them the machinery described in Exhibits A to C on consignment, representing that when the machinery was resold defendants would remit to Seville its purchase price along with fifty percent of the profits from resale. Second, Seville alleges that defendants in- ' duced to enter into a joint venture to purchase the equipment described in Exhib- ^ ® ^or resa^e by defendants, promising to Pay Seville its pro rata share of the profits and of the cost of acquisition, Third, Seville alleges that it sold the machinery described in Exhibit D to defendants> on defendants’ promise to pay Seville its Purchase price. Finally, Seville alleges that ^ a§>reed to provide certain services in connection with the sale of the equipment liáted in Exhibit E, on defendants’ promise compensation for those services. App. •a^ Se-
Defendants never fulfilled their promises to pay Seville under these consignment, joint venture, purchase and service contracts. Seville alleges in its complaint that defendants made numerous fraudulent misrepresentations and omissions of material facts in each of these transactions, and that Seville relied on these misrepresentations and omissions in shipping the seven hundred Pieces of machinery to defendants,
Count One of Seville’s complaint alleges that defendants have violated the provisions of RICO by these actions. That Act makes it unlawful, inter alia, for any person to acquire or maintain any interest in or control of an “enterprise” through “a pattern of racketeering activity.” 18 U.S.C. § 1962(b) (1982). RICO also makes ^ unlawful for any person employed by or associated with any enterprise to conduct the a^a*rs °t the enterprise through a pattern of racketeering activity.. 18 U.S.C. § 1962(c) (1982).
An “enterprise” is defined to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact though not a legal entity.” 18 U.S.C. § 1961(4) (1982). “Racketeering activity” is defined to include state law crimes such as murder, bribery, and extortion, and a specified list of federal crimes that includes mail fraud, 18 U.S.C. § 1341 (1982), wire fraud, id. § 1343 (1982), and interstate transportation and sale of stolen and fraudulently obtained goods, id. §§ 2314-2315 (1982). 18 U.S.C. § 1961(1) (1982). A “pattern of racketeering activity” requires at least two acts of racketeering activity within a ten year period. 18 U.S.C. § 1961(5) (1982).
In brief, RICO makes it unlawful to acquire or maintain control of an enterprise— broadly defined to include virtually any de facto or de jure association — through a pattern of criminal activity, or to use such an enterprise to engage in a pattern of criminal activity. 18 U.S.C. § 1962(b), (c) (1982). It is also unlawful to conspire to perform these acts. 18 U.S.C. § 1962(d) (1982). While RICO is primarily a criminal statute, it also provides for civil remedies, including a cause of action for treble damages, available to “[a]ny person injured in his business or property by reason of a violation of section 1962 ____” 18 U.S.C. § 1964(d) (1982). Count One of Seville’s complaint is stated to have been brought pursuant to this section.
Seville alleges that the four defendants, Southmost, Tri-State, Gellman, and Alfieri, are “enterprises” within the meaning of the Act, and that defendants in the course of their scheme violated federal laws prohibiting wire fraud, mail fraud and interstate transportation of stolen or fraudulently obtained goods. Seville alleges that defendant Gellman, through this pattern of racketeering activity, maintained an interest in or control of Southmost and Tri-State in violation of section 1962(b). Seville further alleges that Gellman, through his employment and association with Southmost and Tri-State, conducted their activities through this pattern of racketeering activity in violation of section 1962(c). Seville alleges similar violations with respect to Alfieri and his control of and association with Southmost.
The district court ruled that Count One did not properly plead the existence of any “enterprise,” and further that the underlying allegations of fraud lacked the particularity required by Fed.R.Civ.P. 9(b). He dismissed the complaint without leave to amend, stating, “A RICO cause of action has not been pleaded and probably cannot be pleaded in the circumstances set forth in the complaint.” 567 F.Supp. at 1158.
II
A. Pleading the Existence of an Enterprise
Seville in its complaint alleged that “[djefendants Southmost, Tri-State, Gellman and Alfieri are enterprises ____” App. at 4. The district court conceded that each of the defendants fell within the literal meaning of the definition of “enterprise” provided in section 1961(4). But, the court concluded, Seville’s complaint was deficient because it did not further allege the three attributes of an enterprise outlined by this court in United States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied sub nom. Ciancaglini v. United States, — U.S. —, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983).
Riccobene analyzed and explained a Supreme Court ease, United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), which like Riccobene involved an appeal from conviction under RICO’s criminal provisions. In Riccobene this court stated that in order to establish the existence of an enterprise, the government must demonstrate 1) that the enterprise is an ongoing organization with some sort of framework or superstructure for making or carrying out decisions; 2) that the members of the enterprise function as a continuing unit with established duties; and finally 3) that the enterprise must be separate and apart from the pattern of activity in which it engages. 709 F.2d at 221-24. The court below ruled that because Seville failed to plead these three attributes, Count One did not state a cause of action under RICO and must be dismissed.
In so ruling, the district court confused what must be pleaded with what must be proved. Riccobene and Turkette certainly stand for the proposition that a plaintiff, to recover, must prove that an alleged enterprise possesses the three described attributes. But neither case speaks to what must be pleaded in order to state a cause of action. The district court erred in applying the Riccobene-Turkette proof analysis to the allegations in Seville’s complaint.
We need cite no authority for the proposition that the Federal Rules of Civil Procedure were designed to eliminate the vagaries of technical pleading that once plagued complainants, and to replace them with the considerably more liberal requirements of so-called “notice” pleading. Under the modern federal rules, it is enough that a complaint put the defendant on notice of the claims against him. It is the function of discovery to fill in the details, and of trial to establish fully each element of the cause of action. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215 (1969).
In the present case, Seville identified the four entities it believed were the enterprises that had been marshalled against it. The rules of pleading require nothing more at this early juncture than that bare allegation.
Because it dismissed Count One for failing to plead an enterprise properly, the district court discussed but did not decide another issue raised by defendants— whether a defendant may also be an enterprise. The essence of the RICO offense is a defendant acting through or upon an enterprise. Some courts have suggested that because both a defendant and an enterprise are required to make out the offense, they cannot be the same entity. See, e.g., United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); Parnes v. Heinold Commodities, Inc., 548 F.Supp. 20, 23-24 (N.D.Ill.1982). The district court was uncertain whether, by identifying three elements of a RICO offense in Riccobene, we implied that no fourth element— that is, separate identities of defendants and enterprises — exists. We need not decide this question here. As we have already held, the Riccobene proof standard is simply inapplicable to test the sufficiency of pleadings in a RICO case.
We conclude that Seville has properly alleged the existence of four separate enterprises, and reverse the part of the district court's judgment that held to the contrary.
B. Pleading Fraudulent Acts . With Particularity
A second reason given by the district court for dismissing Count One of Seville’s complaint is that Seville failed to plead the circumstances of the fraudulent acts that form the alleged pattern of racketeering activity with the particularity required by Rule 9(b). Seville charged defendants with violating federal wire and mail fraud statutes, and with violating federal laws prohibiting the interstate transportation and sale of fraudulently obtained goods. The district court found the allegations of fraud inherent in each of these offenses deficient because Seville did not describe the date, place or time of the phone calls and letters that defendants allegedly used in furtherance of their fraudulent scheme. In addition, the district court objected that the complaint failed to set forth “with even minimal particularity the details of the alleged fraud or misrepresentations.” 567 F.Supp. at 1156.
We approach this question mindful of our recent admonition that in applying Rule 9(b), “focusing exclusively on its ‘particularity’ language .‘is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules.’ ” Christidis v. First Pennsylvania Mortgage Trust, 717 F.2d 96, 100 (3d Cir.1983) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1298, at 407 (1969)). We conclude that the district court subjected Seville’s allegations of fraud to too strict a scrutiny. Rule 9(b) requires plaintiffs to plead with particularity the “circumstances” of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. It is certainly true that allegations of “date, place or time” fulfill these functions, but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud. In the present case, Seville adequately satisfied the requirements of Rule 9(b) by incorporating into the complaint a list identifying with great specificity the pieces of machinery that were the subject of the alleged fraud. Moreover, Seville, divided this list into five “exhibits” and identified which pieces of equipment were the subject of which alleged fraudulent transaction. The complaint sets forth the nature of the alleged misrepresentations, and while it does not describe the precise words used, each allegation of fraud adequately describes the nature and subject of the alleged misrepresentation. In sum, we conclude that Seville has alleged the fraud-based offenses with sufficient particularity to withstand a motion to dismiss under Rule 9(b).
The district court also found that Seville’s allegation that defendants had violated 18 U.S.C. §§ 2314 & 2315 (1982), prohibiting the interstate transportation and sale of stolen or fraudulently obtained goods worth more than $5,000, insufficient because although Seville alleged total damages amounting to $759,039, it failed to allege that the goods in question were worth more than $5,000.
Plaintiffs would have been well advised to plead the $5,000 requirement with greater specificity, as it is an essential element of the offense. But here again, the district court read Seville’s allegations too strictly. Rule 8(f) requires a court scrutinizing pleadings to construe them “as to do substantial justice.” By refusing to construe Seville’s allegations that defendant transported and sold, or caused to be transported and sold, the machinery in interstate commerce, App. at 7, together with Seville’s allegations that it was thereby injured to the extent of $754,039, the district court failed to heed the admonition of Rule 8(f). Plaintiff must, of course, be prepared at trial to prove with certainty that the goods transported and sold by defendants were worth more than $5,000; but we will not deny Seville the opportunity to do so by reading its allegations as narrowly as did the district court. We hold that Seville has properly pleaded that defendants’ conduct violated 18 U.S.C. §§ 2314 & 2315 (1982).
Ill
Seville has properly pleaded the elements of a claim alleging violations of section 1962(b) and section 1962(c), and the district court consequently erred in dismissing Count One of Seville’s complaint.
In accordance with the foregoing opinion, we will reverse the judgment of the district court in part, affirm in part, and remand for further proceedings consistent with this opinion.
. Alfieri was never served with the summons or complaint and has not entered an appearance at any stage of this litigation.
. As we must in reviewing grants of motions to dismiss, we take as true the well-pleaded facts alleged in the complaint.
. "[P]erson" is defined to include "any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S.C. § 1961(3) (1982).
. Because RICO was enacted pursuant to the commerce clause, it extends only to acts involving an enterprise "engaged in, or the activities of which affect, interstate or foreign cornmerce." 18 U.S.C. § 1962(b) & (c) (1982).
. In the district court and in its brief on appeal, Seville attempts to argue that it properly pleaded more enterprises than these four, and that its complaint should be read to allege as an enterprise any possible combination of the four named enterprises. To support this position, Seville relies on its allegations in the complaint that the four defendants/enterprises conspired with each other to defraud Seville.
The district court rejected this argument on the ground that a conspiracy to perform the underlying criminal offenses, standing alone, is not sufficient to allege the existence of an enterprise. 567 F.Supp. at 1152. We agree. It is an essential element of the RICO cause of action that the "enterprise” be apart from the underlying pattern of racketeering activity. By limiting its allegations of conspiracy to the underlying offenses, Seville has affirmatively negated the existence of the third Riccobene factor: an enterprise separate and apart from the pattern of activity in which it engages. By its pleading, Seville has precluded itself from proving at trial that the four defendants together, of any lesser combination, formed an "enterprise." Unless the district court allows Seville to amend its complaint, Seville will be permitted to establish as enterprises only the four entities it specifically identified as such in its complaint.
. For example, U 11B describes one of the alleged acts of fraud:
[Defendants] Represented to Seville that if the industrial machinery listed in Exhibits A and C were shipped on consignment to either Southmost, Tri-State, Gellman or Alfieri, that the industrial machinery would be resold, and that the purchase price paid by Seville for this equipment along with a 50% pro rata share of the profits resulting from resale would be distributed and paid back to Seville.
App. at 5-6.
. The district court also held that Seville had failed to plead the interstate component of the § 2314 and § 2315 offenses with the required particularity, since it had not alleged where and when the alleged transportation of fraudulently obtained goods occurred. The court applied Rule 9(b) to reach this holding. We hold this to be error. Rule 9(b) requires that fraud be pleaded particularly; it does not require that every element of an offense that includes fraud also be pleaded particularly. Seville adequately pleaded the interstate component of the offenses.
. The district court found insufficient Seville's claim that defendants had violated § 1962(d), which makes it unlawful to conspire to violate § 1962(b) or § 1962(c). We affirm the district court’s dismissal of this conspiracy claim. Seville’s complaint alleges only that the defendants conspired to commit the acts of fraud that constitute the alleged pattern of racketeering activity. As the district court correctly noted, § 1962(d) prohibits conspiracies to knowingly further the affairs of the enterprise; mere agreement to commit the predicate acts is not sufficient to support a charge of conspiracy under § 1962(d).
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_petitioner
|
055
|
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.
YOUNG v. RAGEN, WARDEN.
No. 50.
Argued November 17, 1948.
Decided June 6, 1949.
Edward’ H. Levi argued the cause and filed a brief for petitioner in No. 50.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent in No. 50. With him on the brief were George F. Barrett, then Attorney. General, Raymond S. Sarnow and James C. Murray, Assistant Attorneys General.
Petitioners pro se in Mise. Nos. 47, 106, 109, 184, 372 and 374.
Herbert A. Friedlich, by appointment of the Court, . for petitioner in No. 760.
Ivan A. Elliott,- Attorney General of Illinois, and William C. Wines, Assistant Attorney General, were on the . briefs for respondent in Mise. Nos. 106, 109 and 184, and No. 760. With them on the brief in No. 760 were James C. Murray and Raymond S. Sarnow.
Mr. Chief Justice Vinson
delivered ■ the opinion of thp Court.
We are once again faced with the recurring problem of determining what,- if any, is the appropriate post-trial procedure in .Illinois by which claims of infringement of federal rights may be raised. See Woods v. Nierstheimer, 328 U. S. 211; Marino v. Ragen, 332 U. S. 561; Loftus v. Illinois, 334 U. S. 804. In 1946, petitioner pleaded guilty to an indictment charging' him with having committed burglary and larceny and wap sentenced to five to seven years imprisonment. A year later he filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, Illinois, the sentencing, court, containing allegations which, if true, raise substantial questions under the due process clause of- the Fourteenth Amendment. The Attorney General of Illinois concedes that petitioner is entitled to a hearing into the truth or falsity of the charges. The court to which the petition for a writ of habeas corpus was directed denied the petition without holding a hearing, however, for the reason that it “is insufficient in law and substance.” We granted the petition for a writ of certiorari, 334 U. S. 810, to consider the question thus presented.
The Attorney General explains the circuit court’s denial of the petition for the writ as based upon state procedural grounds: that habeas corpus was not an appropriate remedy for the relief of denials of due process. He contends, however, that while the circuit court was correct in its interpretation of Illinois law when it denied the petition/ certain statements in the Illinois Supreme Court’s opinions, in People v. Loftus, 400 Ill. 432, 81 N. E. 2d 495; People v. Shoffner, 400 Ill. 174, 79 N. E. 2d 200; and People v. Wilson, 399 Ill. 437, 78 N. E. 2d 514, all of which were handed down subsequent to the circuit court’s denial of relief, strongly indicate that habeas corpus would now be the appropriate Illinois procedure in a case such as' the one before us. His contention is, in other words, that while the petition for habeas corpus was properly denied when acted upon below, the decisions just cited probably broaden the scope of habeas corpus in Illinois, so that a denial of a hearing would be erroneous if the petition were again presented to the circuit court.
The situation is further complicated, however, by the •fact that many circuit courts, whose decisions upon habeas corpus are unreviewable by the staté supreme court under Illinois law, have continued to deny petitions for habeas corpus on procedural grounds since the supreme court’s “announcement” in People v. Loftus, supra. The Attorney General’s position concerning these denials, as we understand it, is that these decisions may be wrong, depending upon whether his interpretation of the Loftus “announcement” is the correct one, but that whether right or wrong, they are decisions solely upon a question of Illinois procedural law and thus do not warrant invocation of the jurisdiction of this Court.
Of course we do not review state decisions which rest upon adequate nonfederal grounds, and of course Illinois may choose the procedure it deems appropriate for the vindication of federal rights. Loftus v. Illinois, supra. But it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of a claim of denial of a federal right. And that is the effect of the denials of'habeas corpus in a number of cases now before this Court, for in none of the cases does the Attorney General suggest that either of the other two Illinois post-trial remedies, writ of error and coram nobis, is appropriate. Unless habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in • cases of this kind. The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts, see Ex parte Hawk, 321 U. S. 114 and cases cited, presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met. If there is' now no.-post-trial procedure by which federal .rights may be vindicated- in Illinois, we wish to be advised of that fact upon remánd of this case. '
Seven other petitions for certiorari which raise substantial questions under the due-process clause of the Fourteenth Amendment are now before-this Court following denials of habeas corpus'by Illinois circuit courts or the Criminal Court of Cook County. - In none of these cases was a hearing held or the petitioner, pérmitted to submit proof of the truth of his allegations. In three instances, the denial of habeas corpus occurred prior t.o the supreme court’s “announcement” in People v. Loftus, supra, as was true- in the case of Young. A similar disposition of these petitions is therefore required.
Four petitions for certiorari involve denials of habeas corpus subsequent to the Loftus “announcement.” It may well be that these decisions represent the opinion of four Illinois cirepót judges that habeas corpus is not an appropriate remedy under Illinois law despite the Loftus opinion. Out of an abundance of caution, we have concluded, however, that these cases should also be remande.d to the state courts, since it is possible that the Lo'ftus- “announcement” was not brought to their attention or its possible significance pointed out. As in the other cases, we wish to be advised, if a hearing is again denied, whether the court is of the opinion that habeas corpus is not an appropriate remedy in Illinois in cases raising questions under the. due-process clause of the Fourteenth Amendment.
• Accordingly, the order denying the. petition for a writ of habeas corpus in No. 50, Young v. Ragen, is vacated and the cause remanded for consideration of the present availability of habeas corpus in the light of the State Supreme Court’s “announcement” in People v. Loftus, supra, and other relevant Illinois decisions. The petitions for certiorari in No. 47, Misc., Evans v. Nierstheimer; in No. 106, Misc., Willis v. Ragen; im No. 109, Misc., Thompson v. Ragen; in No. 184, Misc., Lewis v. Ragen; in No. 372, Misc., Sherman v. Ragen et al.; and in No. 374, Misc., Banks v. Ragen, are granted. The orders denying petitions for writs of habeas corpus in these cases, together with that in No. 760, Smith v. Ragen are vacated and the" causes remanded for similar consideration;
Orders will be entered accordingly.
Existing law as declared by Ex parte Hawk was made a part of the statute by the new Judicial Code, 28 U. S. C. §2254, which provides:
“An application for a writ- of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless' it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an. absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
Certiorari granted, 336 U. S. 966. (Docketed as Xo. 265, Misc.)
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Hollis G. BYRD, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director Texas Department of Corrections, Respondent-Appellee.
No. 83-2049.
United States Court of Appeals, Fifth Circuit.
June 8, 1984.
Garland D. Mclnnis, Jr., Houston, Tex. (court-appointed), for petitioner-appellant,
Jim Mattox, Atty. Gen., Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before RUBIN, JOHNSON and DAVIS, Circuit Judges.
JOHNSON, Circuit Judge:
Appellant Hollis G. Byrd is in the custody of the State of Texas pursuant to a 30-year sentence resulting from his 1974 conviction for “robbery with firearms.” Tex.Penal Code Ann. art. 1408 (Vernon 1925). On appeal from the district court’s denial of habeas corpus relief, Byrd presents this Court with three claims of alleged constitutional deprivation. Specifieally, Byrd contends that he was subjected to prosecutorial vindictiveness, that his due process rights were violated when two jurors from a former trial testified at the punishment phase of his 1974 trial, and that he was deprived of due process when the jury at his 1974 trial was informed of a prior conviction and probated sentence. We affirm the district court’s denial of relief.
I. BACKGROUND
¡n 1964j Byrd pled guilty to robbery in the state district court in Potter County, Texas (hereinafter referred to as Potter County conviction). Byrd received a ten year sentence, which was suspended, and he was placed on probation for a period of ten years. One month later, Byrd’s probation was revoked and he was sentenced to confinement for a period of not less than five years nor more than ten years. Byrd was no^ represented by counsel at the probation revocation/sentencing hearing.
Byrd was released from custody in 1972 and, soon thereafter, committed another robbery. In April 1972, Byrd was indicted and convicted for “robbery by assault,” based upon an indictment that made no mention of the use of a firearm. The controlling 1925 Texas Penal Code at that time provided:
If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary f°r We> or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.
Tex.Penal Code Ann. art. 1408 (Vernon 1925) (emphasis added). Byrd’s sentence was enhanced by the 1964 Potter County conviction; he received life imprisonment, Byrd then sought state habeas corpus relief from his life sentence in the state district court in which his 1972 robbery by assault trial was held. Byrd alleged that the Potter County conviction was improperly used for enhancement since he was not represented by counsel at the probation revocation hearing. The state district court granted Byrd a new trial in Decernber 1972.
In June 1974, Texas again moved against Byrd for the 1972 robbery. A new indictment was obtained which did not allege “robbery by assault” (without the use of a firearm). Though the 1974 indictment grew out of the identical facts that were available to the State in 1972, the 1974 indictment alleged that the robbery was accomplished with the aid of a firearm. Byrd was tried and convicted on the “robbery with firearms” charge under the same article 1408 of the 1925 Texas Penal Code. Byrd elected, however, to be punished under the then new 1974 Texas Penal Code, which set the limits of imprisonment for robbery with firearms at five years to life, See, note 1, supra.
At the punishment phase of the 1974 trial, the jury was permitted to be informed of Byrd’s 1964 Potter County conviction, The jury was also informed that Byrd was placed on probation for the Potter County conviction, but was not informed of the later revocation of Byrd’s probation. Furthermore, at the punishment phase, the State offered as witnesses two jurors from the 1972 trial to testify as to Byrd’s character. The 1974 jury sentenced Byrd to 30 years’ imprisonment, the conviction and sentence were affirmed on direct appeal, and, after exhausting his state remedies, Byrd commenced this habeas corpus proceeding in the federal district court. The magistrate recommended that the writ be granted on the basis of Byrd’s claim that the prosecutor had exercised impermissible vindictiveness in reprosecuting on a more serious offense than that involved in the original 1972 indictment. The federal district court disagreed, and after directing the magistrate to make recommendations on Byrd’s two remaining claims, rendered judgment dismissing the action. This appea] f0j]0we(j
II. PROSECUTORIAL VINDICTIVENESS
The most serious of Byrd’s attacks upon the federal district court’s judgment alleges that Byrd’s due process rights were violated by the prosecutor’s vindictive actions in “upping the ante” in the 1974 indictment — i.e., changing the charge from robbery by assault (without firearms) to robbery with a firearm. According to Byrd, the prosecution vindictively decided to increase the charges in an attempt to punish Byrd for pursuing state habeas corpus relief. We disagree.
The law in this Circuit on prosecutorial vindictiveness is well developed, the most recent explication of which appears in United States v. Krezdorn, 718 F.2d 1360 (5th Cir.1983) (en banc). In Krezdorn, having discussed the historical underpinnings of the doctrine of prosecutorial vindictiveness, the en banc court set forth the test for resolution of a claim of prosecutorial vindictiveness. Writing for the Court, Chief Judge Clark stated:
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.
Id. at 1365. Byrd’s claim of prosecutorial vindictiveness must be examined according to these principles.
The threshold question in Byrd’s case, of course, is whether the 1974 indictment subjected him to a more severe charge than the charge contained in the 1972 indictment. Our resolution of this issue requires this Court to examine the change in charges from Byrd’s viewpoint. See, Blackledge v. Perry, 94 S.Ct. at 2102. As the Supreme Court noted in Blackledge, due process is violated by a possibility of increased punishment, on retrial, that poses a realistic likelihood of vindictiveness. Actual vindictiveness need not be shown, since the fear alone of vindictiveness may deter a defendant’s exercise of appeal or collateral attack. Id. at 2102.
It is to be remembered that Byrd was convicted in 1972 of robbery by assault under the 1925 Penal Code, art. 1408; Byrd’s sentence was enhanced by the Potter County conviction and he received a life sentence. By pursuing his proper collateral remedies (state habeas corpus), Byrd, in late 1972, was granted a new trial. His benefit on retrial was two-fold. First, Byrd knew the maximum penalty was life imprisonment, and was then aware that the odds favored a lesser sentence, since the enhancement charge (Potter County conviction) on state habeas corpus review had been set aside. Second, Byrd knew that since the new trial would take place after January 1, 1974, Byrd was in a position to elect to be sentenced under the then new 1974 Penal Code, which set the maximum penalty for robbery by assault (without firearms) at twenty years. See, Note 1, supra.
However, neither of what will be characterized as Byrd’s expectations were borne out. Perhaps realizing that, if prosecuted for robbery by assault (without firearms), Byrd could elect a maximum punishment exposure of not more than twenty years confinement (under the new 1974 Penal Code), the prosecutor secured an indictment for “robbery with firearms,” again to be enhanced by the 1964 Potter County conviction. Under the old 1925 Texas Penal Code, robbery with firearms carried a maximum penalty of death. See, Tex.Penal Code Ann. art. 1408 (Vernon 1925). The death penalty, however, had been declared unconstitutional in June 1972. See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, because of Furman only, a conviction for the offense of robbery with firearms carried the same maximum penalty under the old act (1925 Penal Code) as did robbery by assault (1925 Penal Code); both maximum punishments being life imprisonment. Furthermore, Byrd’s statutory right to elect punishment under the new 1974 Penal Code was rendered meaningless because of the new charge of robbery with firearms: under either statute he would face anywhere from five years to life. See, note 1, supra.
The question of whether Byrd was subjected to an increase in the severity of the charges is arguable. On the one hand, due to Furman, the new charges subjected Byrd to no more punishment than he had previously faced and, in fact, received. That punishment was life imprisonment. Even the range of punishment — five years to life — was the same. On the other hand, the prosecutor’s action could be deemed to increase the severity of the charges to which Byrd was exposed: as his retrial was not to be held until after the effective date of the 1974 Penal Code, Byrd was vested with the statutory right (if convicted) to elect the new Act’s punishment for the offense for which he was already indicted, robbery by assault (without firearms). See, note 2, supra. Under the new 1974 Penal Code, this offense is punishable by a term of not less than two, and no more than 20 years, a significant reduction in his maximum allowable sentence.
If the severity of the charges in the instant case (the new indictment for robbery with firearms) is to be measured by comparison with the severity of the charges in the prior case (the old indictment for robbery withowi firearms) at the time jeopardy attached for Byrd on that old indictment, it will be apparent that there has been no change in the severity of the charges. The range of punishments (five years to life) in each is virtually identical.
However, if the severity of the charges in the instant case (the new indictment for robbery with firearms) is to be measured by comparison with the severity of the charges in the prior case (the old indictment for robbery without firearms) at any time after the effective date of the new 1974 Penal Code, it will be apparent that a significant change in the severity of the charges has occurred. Under the new charge, the range of punishment is five years to life. Under the old charge — as modified by the new 1974 Penal Code — the range of punishment is two years to twenty years. Since we are admonished to view the issue from Byrd’s perspective, we find the charge more severe. In Byrd’s view, he was deprived of his right to elect punishment under the 1974 Penal Code for robbery by assault (without firearms) and was thereby deprived of the possibility of confinement for a maximum twenty years and, once again, faced the possibility of confinement for life.
Nevertheless, this does not end this Court’s inquiry. That more severe charges have been employed is not dispositive, for “the ‘Due Process Clause’ is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of vindictiveness.” Blackledge v. Perry, 94 S.Ct. at 2102.
Recognizing this principle in Krezdorn, the en banc court stated:
If any objective event or combination of events of those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created.
United States v. Krezdorn, 718 F.2d at 1365.
So the question arises: Was there any objective event or combination of events which should indicate that the prosecutor was motivated by a purpose other than a vindictive desire to deter or punish appeals? As noted, because of the change in the 1974 Texas Penal Code, robbery by assault (without firearms) carried a much less severe sentence (20 years) than that contained in the 1925 Texas Penal Code (life). This objective event — the Texas Legislature’s amendment of the Texas Penal Code — in combination with the other events in Byrd’s proceedings, should have indicated to the reasonable minded defendant that the prosecution’s decision to increase the charge was motivated not by a desire to “punish the pesky defendant,” but by a desire to expose Byrd to the same maximum sentence he faced in the 1972 trial — life imprisonment. Such a reasonable motive on the part of the prosecution could not be characterized as vindictive.
For these reasons, Byrd’s prosecutorial vindictiveness claim must fail. Byrd fails to establish a presumption of prosecutorial vindictiveness since the events in his case should indicate to the reasonable minded defendant that the prosecution’s decision to increase the severity of the charges was motivated by a legitimate, non vindictive purpose. Certainly, we cannot describe as vindictive, the prosecution's attempt to expose Byrd to the same range of punishment he faced at the original trial.
III. THE REMAINING ISSUES
A. The Admissibility of Byrd’s 1964 Conviction and Probated Sentence
Byrd maintains he was denied due process when the jury learned of his 1964 felony conviction and probated sentence, even though the jury did not learn that the probation was later revoked at a hearing in which Byrd allegedly was not represented by counsel. It is well settled that a defendant has a constitutional right to counsel at a joint parole revocation/sentencing proceeding. See, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), held retroactive by, McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). As the magistrate’s opinion notes, however, Byrd exhausted the instant claim — that he was deprived of due process when the jury learned of the 1964 conviction and probated sentence — in his most recent state habeas corpus action, (cause number 13,754) obtaining an adjudication on the merits that there had been no denial of counsel at the 1964 proceeding. See, Record, Vol. I at 9. After conducting an evidentiary hearing, the state trial court entered fact findings that Byrd was advised of his right to counsel, but waived his right at the parole revocation hearing. These findings must be afforded a presumption of correctness under 28 U.S.C. § 2254(b). See, Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Accordingly, Byrd has failed to demonstrate, as a factual matter, that he did not waive his right to counsel.
Nevertheless, it was established that Byrd was represented by counsel at his 1964 prosecution and conviction. The law is clear that Byrd’s 1964 conviction could be brought to the attention of the jury, even if the subsequent revocation of the probated sentence was invalid. The conviction remained valid for impeachment purposes under Texas law; see 3A Tex. Code Crim.Pro. § 37.07(3)(a) (Vernon 1974), and no due process problem arose through the introduction of the conviction and probated sentence. See, Langston v. Estelle, 544 F.2d 1331 (5th Cir.1977).
B. Former Jurors Testify
Byrd maintains that he was deprived of his due process right to a fair trial when two jurors from his 1972 robbery by assault trial were permitted to testify as character witnesses at his 1974 robbery by firearms trial. The record indeed indicates that two former jurors, who had no independent knowledge of Byrd other than that received while jurors at his 1972 trial, were permitted to take the stand and testify that they were familiar with Byrd’s character in the community and that his character was bad. See, Record, State Trial Transcript, Vol. Ill, at 598-606. However, no objection to the admissibility of this evidence was made by Byrd’s counsel. While Byrd’s counsel made one minor objection to the form of the prosecutor’s questions and once leveled a hearsay objection to the former juror’s testimony, the testimony’s admissibility or the juror’s qualifications to testify were never objected to by defense counsel. Indeed, Byrd-concedes that the Texas Court of Criminal Appeals expressly refused to consider this issue since Byrd failed to make an objection to the testimony in terms of federal constitutional law. See, Record, Vol. I at 89. In light of Byrd’s failure to object to the challenged testimony, we need not address the merits of this issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
IV. CONCLUSION
We have thoroughly reviewed the record in light of Byrd’s contentions and have concluded that he was not the subject of prosecutorial vindictiveness, was not deprived of due process by the introduction of his prior conviction and probated sentence, and failed to properly preserve the issue on the former jurors’ testimony for review. Accordingly, the district court’s judgment is affirmed in all respects.
AFFIRMED.
. Certain changes in Texas law after Byrd’s 1972 indictment bear heavily upon our resolution of Byrd’s prosecutorial vindictiveness claim. Hence, we set forth these changes in Texas law in some detail.
t a 4.1. r- „ , „ j , j In 1974, the Texas Penal Code was amended and the provisions of article 1408 of the 1925 „ J-4Í Texas Penal Code were separated into four sec-lions. Under the new 1974 Texas Penal Code, robbery by assault (without a firearm) was defined as follows:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony , secón egree.
3 Tex.Penal Code Ann. § 29.02 (Vernon 1974). As a second d fe, robbery b assauIt under the 1974 Texas PenaI Code exposed a defendant to the following realm of punishment*
(a) individual adjudged guilty of a felony 0f the second degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed 110,000.
1 Tex.Penal Code Ann. § 12.33 (Vernon 1974). Under the 1974 Texas Penal Code, robbery with a firearm was defined in the following terms:
(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon.
(b) An offense under this section is a felony of the first degree
3 Tex.Penal Code Ann. § 29.03 (Vernon 1974). A violation of section 29.03 would subject the defendant to punishment for a first degree felony, which carried the following realm of punishment: ■
An individual adjudged guilty of a felony of the first degree shall be punished by confinement in the Texas Department of Corrections for life or for any term of not more than 99 years or less than 5 years.
j Tex.Penal Code Ann. § 12.32 (Vernon 1974).
. Byrd was permitted to elect to be punished under the 1974 Texas Penal Code pursuant to legislative authorization. 1973 Texas Acts, chap 399 § 6(c) Section 6(c) provides:
In a cJiminaí f tionu P“dinS °« or menc„ed on after the effective date of this Act, f°r an °^ense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.
. See, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
. See, note 1, supra.
. See, note 2, supra.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Erwin Pascacio CLOTIDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Olivia Gertrude CHATTEN, Defendant, Appellant.
Nos. 88-1902, 88-2039.
United States Court of Appeals, First Circuit.
Heard May 5, 1989.
Decided Dec. 20, 1989.
Ramon E. Dapena, for appellant Erwin Pascacio-Clotida.
Frank Catala Morales, Bayamon, P.R., for appellant Olivia Gertrude Chatten.
Jose A. Quiles, Asst. U.S. Atty., Chief, Criminal Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.
Before SELYA and ALDRICH, Circuit Judges, and RE, Judge.
The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
RE, Chief Judge:
Appellants, Erwin Clotida and Olivia Chatten, appeal from a judgment of conviction entered on August 15, 1988, following a jury trial in the United States District Court for the District of Puerto Rico. Clo-tida and Chatten were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, importation of cocaine, and possession of cocaine on board an aircraft in violation of United States Code, Title 18, Section 2, and Title 21, Sections 841(a)(1), 952(a), and 955.
Clotida and Chatten contend that the district court erred in denying their respective motions for acquittal made at the close of the government’s case-in-chief pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Clotida also contends that the trial judge “committed a reversible error by allowing the prosecutor to present, as rebuttal evidence, a substantial part of his case in chief, [a] ... confession by the appellant[,] ... Clotida.”
The threshold question as to both Clotida and Chatten is whether they waived their rights on their Rule 29 motion because of their failure to have renewed the motion at the close of all the evidence. A question is also presented as to whether, under the circumstances of this trial, the government’s use of Clotida’s inculpatory statements in rebuttal rendered the trial unfair by unconstitutionally impairing his fifth amendment right to testify in his own defense.
Since, after having offered his own testimony as a defense, Clotida failed to renew his motion for acquittal at the close of all the evidence, his motion is deemed waived. His conviction, therefore, may only be reviewed under a “manifest injustice” standard. Upon an examination of all the evidence presented at trial, we find the evidence against Clotida to be sufficient to sustain a verdict of guilty. Since we find his contention as to the government’s rebuttal evidence to be without merit, Cloti-da’s judgment of conviction is affirmed.
Since Chatten did not offer any evidence in her own defense, her Rule 29 motion is not deemed waived. Therefore, only evidence presented in the government’s casein-chief may be considered. Since the evidence against Chatten “is largely circumstantial the test is ‘whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.’ ” United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978) (quoting Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964)). The total evidence presented by the government in its case-in-chief against Chatten fails to support the jury’s verdict of guilty beyond a reasonable doubt. Since her Rule 29 motion should have been granted, the judgment of conviction is reversed.
BACKGROUND
Clotida and Chatten, residents of the Netherlands, went on vacation in Ecuador to “look for a beach.” At trial, during cross-examination, Clotida, in response to questions by the prosecutor, admitted that he had purchased the airline tickets in Amsterdam on February 16, 1988, with his own money.
Clotida testified that he and Chatten arrived in Quito, Ecuador on February 27, 1988. While in Quito, Clotida claims to have been introduced to Serapio by a certain Vivian, who had travelled with Clotida and Chatten from Amsterdam to Quito. Serapio asked Clotida if he would take some luggage back to Amsterdam for him. Serapio told Clotida that he would receive a “reward” if he delivered the luggage at the airport in Amsterdam to “someone there who would have a sign in his hand with the name Serap[io] on it and [Clotida would] give it to that person.” Clotida stated that because he was “broke,” he accepted Sera-pio’s offer.
Clotida testified that Serapio gave him “two pieces of luggage with clothing....” According to Clotida, he did not check the contents of the suitcases until the night before he left Quito, March 5, 1988. Cloti-da testified that he opened the suitcases “[t]o make sure that there were only clothes in there, and that was so, there were only clothes in there.”
Clotida also stated that because he had no suitcases of his own, he intermingled his and Chatten’s clothes with those of Sera-pio. In addition, he testified that he borrowed a large suitcase from Vivian, in exchange for a smaller suitcase which he had brought to Ecuador. On cross-examination, Clotida denied that he detected cocaine in the clothes in the suitcases given to him by Serapio. He admitted, however, that he did spray deodorant on his clothes, “so that they wouldn’t smell like the others.”
In his testimony, Clotida also stated that, on March 6, 1988, he and Chatten boarded an Iberia flight departing from Quito, Ecuador to Amsterdam, the Netherlands, with stop-overs in San Juan and Madrid. In the course of a cargo inspection in San Juan, United States Customs Inspector Hector Albino of the Contraband Enforcement Team (CET) noticed a “heavy” suitcase emitting a “chemical” or “perfume-like odor.” Upon opening the suitcase, Inspector Albino found “various clothing which were soaked, that felt moist, wet, sticky to the touch, like they were starched.” Inspector Albino made a field test which consisted of cutting a section of the garment and placing it in a tube with a chemical. He obtained a blue color reaction which indicated the presence of cocaine.
Inspector Albino proceeded to notify other members of the CET including the team leader, Juan Otado. Inspector Otado instructed the CET to check all luggage to Amsterdam, and, in particular, to check the baggage tag numbers of the luggage to see if they corresponded with the one containing the contraband. Upon further investigation, Customs Inspectors Nilsa Perez and Luis Gonzalez found two additional suitcases with the same baggage tag numbers. These suitcases were opened, and they too contained clothing which a field test revealed were impregnated with cocaine.
The Customs Inspectors seized the suitcases and proceeded to identify the passengers to whom they belonged. They asked flight attendants to search for passengers whose final destination was Amsterdam. Flight information indicated that, of the three persons who were bound for Amsterdam, one cancelled, leaving only Clotida and Chatten.
The Customs Inspectors went to the pre-boarding area to find Clotida and Chatten to verify that they were the owners of the suitcases in question. This verification was made by matching the baggage claim tickets Clotida had in his possession with those of the suitcases containing the contraband.
Clotida and Chatten were arrested, and were read their Miranda Rights in English. Because he stated he did not understand English, Clotida was also read his rights in Spanish. On Clotida’s person were found the airline tickets, boarding passes, baggage claim tickets, and passports for both him and Chatten. In addition, Clotida was in possession of a formula for sodium carbonate (Na2C03).
Clotida and Chatten were then taken to the Customs enclosure area where they were given the Miranda Warning in written form. Clotida was also given a “Waiver of Rights” form, which he signed, after he was told he was free to sign it “if he wanted to.”
While Clotida was in the Customs enclosure area the seized suitcases were weighed. In answer to Inspector Otado’s question as to the weight of the suitcases, Inspector Albino responded that the gross weight of the luggage was 133 lbs. Upon hearing this, Clotida commented “[tjhat’s not correct because there’s only 32 pieces of clothing that are saturated with cocaine.”
At trial, in its case-in-chief, the government called as witnesses Customs Inspectors Albino, Otado, Perez and Gonzalez. They all testified as to their roles and actions as to the discovery and examination of the three suitcases which contained the contraband. Inspectors Albino and Otado also testified as to what took place when Clotida was taken into custody and was brought to the Customs enclosure area.
The government also called Sergeant Hiram Gomez Santini, of the Puerto Rico Police Department, who is assigned to the Drug Enforcement Agency (DEA). Sergeant Gomez testified that he was called to the airport on March 6, 1988, so that the Customs Inspectors could turn over the evidence seized in the arrest of Clotida and Chatten. He also testified as to what was done to the evidence once it came into his possession.
The government’s last witness in its case-in-chief was Dorothy Ann Roman, a chemist, of the DEA. After qualifying as an expert, Ms. Roman described the analysis she performed on the contraband. She testified that “the net weight of the cocaine ... extracted [from the clothing] would amount to 5,895 grams.” When questioned about the formula for sodium carbonate, which Clotida had on his person, she testified that sodium carbonate was “a common way ... to extract cocaine from another substance.”
At the close of the government’s case, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Clotida and Chatten moved for acquittal. Based on the evidence presented in the government’s casein-chief the motions were denied. In denying the motions the district court stated:
Certainly, from that evidence a juror can make reasonable inferences to the effect that they planned this trip to go to a source of cocaine, to procure the cocaine, to conceal the cocaine as best as possible in the way it was impregnated into the clothing, and to bring that cocaine back to Holland, and that they both knew what was happening and they both knew that that was the purpose of the trip.
The defense consisted solely of the testimony of Clotida. Essentially, Clotida testified as to his trip to Ecuador with Chatten, and how he came to meet Serapio. He testified that “there were only clothes [in the suitcases],” and that he did not see any drugs. Clotida sought to exculpate Chat-ten by testifying that she had no knowledge of his meeting with Serapio, and that she had not aided him in packing the suitcases.
On cross-examination, Clotida denied that he had made the statement to Customs Inspectors, that there were “32 pieces of clothing ... saturated with cocaine.” At the close of the defense, neither Clotida nor Chatten renewed their Rule 29 motion.
In rebuttal, the government impeached Clotida’s testimony using statements he made after his arrest. Sergeant Hiram Gomez Santini testified that, after his arrest, Clotida was taken to the DEA district office in San Juan, and it was there that Clotida told Sergeant Gomez that:
he looked inside the bag, touched the clothes, tasted them and smelled them and he determined that it was cocaine, and that a strong odor was coming from the clothing and that he was afraid of being detected by the authorities so he sprayed deodorant on the clothing and spread them in three different bags.
The jury found Clotida and Chatten guilty on all three counts of the grand jury indictment.
I. The Rule 29 Motions
In pertinent part, Rule 29(a) of the Rules of Criminal Procedure provides that:
The court on motion of a defendant ... shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
Fed.R.Crim.P. 29(a). The proper procedure for making a Rule 29(a) motion is set forth in the case of United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978):
Under [this] rule, a defendant who moved for a judgment of acquittal at the close of the government’s case must move again for a judgment ... at the close of the entire case if he thereafter introduces evidence in his [own] defense because, by presenting such evidence, the defendant is deemed to have withdrawn his motion and thereby to have waived any objection to its denial.
A. As to Defendant Erwin Clotida
Clotida failed to renew his Rule 29 motion at the close of the entire case after having offered evidence in his own defense. This failure, therefore, constitutes a waiver of Clotida’s Rule 29(a) motion. See United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). Hence, on this appeal, Clotida may only prevail if it is demonstrated, after an examination of all the evidence offered at trial, that it would be a “gross” or “manifest injustice” to sustain the conviction. See United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir.1989); United States v. Cheung, 836 F.2d 729, 730 n. 1 (1st Cir.1988) (per curiam).
The evidence at the trial reveals clearly that there is no doubt that Clotida carried the luggage or suitcases for financial gain. Furthermore, the circumstances indicate that Clotida was in constructive possession of the luggage. It is not questioned that Clotida was in possession and control of the baggage claim tickets. In addition, on Clo-tida’s person was found the chemical formula to extract the cocaine from the impregnated clothing.
Other than the testimony of Clotida, which was refuted by the government and disbelieved by the jury, there is no evidence to rebut the inference that Clotida knew that the clothing was impregnated with cocaine. Sergeant Gomez testified that Clotida admitted his knowledge of the cocaine in the suitcase, and, in fact, tried to conceal its odor by spraying with deodorant. Moreover, Clotida’s spontaneous utterance at the Customs enclosure area that there were “32 pieces of clothing ... saturated with cocaine” was found by the district court to be “voluntarily given ... prompted by himself without any question propounded to him.”
Hence, as to Clotida, the evidence overwhelmingly supports the verdict of the jury. His testimony, that he was vacationing in Ecuador in search of a beach, and there met a stranger from whom he received the impregnated clothes, strains credibility. Since it was entirely reasonable for the jury to disbelieve his testimony, his conviction is clearly not a “manifest injustice.”
B. As to Defendant Olivia Chatten
Chatten did not present any evidence in her own defense, nor did her attorney examine her codefendant, Clotida. It has been uniformly held that if a defendant “rests v/ithout introducing evidence of his own he need not renew his [Rule 29] motion in order to preserve his objection to the sufficiency of the evidence. The motion need not be renewed, and defendant waives nothing, even if a eodefendant has offered evidence.” C. Wright, Federal Practice and Procedure, § 463 (2d ed. 1982) (footnotes omitted); see also Lopez, 576 F.2d at 843 (codefendant’s testimony favorable to defendant not deemed to waive defendant’s prior Rule 29 motion).
On the facts presented, therefore, Chat-ten did not waive the Rule 29 motion which she made at the close of the government’s case-in-chief. Accordingly, in order to sustain Chatten’s conviction it must be shown that, when examined in a light most favorable to the government, the evidence presented in the government’s case-in-chief, including all inferences that may be drawn therefrom, would permit a reasonable juror to find guilt beyond a reasonable doubt. See Lopez, 576 F.2d at 843. Hence, in the language of Lopez, “[sjince we can review the sufficiency of the evidence only as of the time the Rule 29 motion was made, we consider only the government’s testimony in chief and exclude the ... evidence presented by codefendant” Clotida. Id. See also United States v. Evans, 572 F.2d 455, 475 (5th Cir.), cert. denied sub nom. Tate v. United States, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); United States v. Polizzi, 500 F.2d 856, 904 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963).
Clotida and Chatten are charged with aiding and abetting each other in the commission of the offenses of possession with the intent to distribute cocaine, importation of cocaine, and the possession of cocaine aboard an aircraft. To help determine whether a party is an aider or abettor, the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), articulated the following test:
In order to aide and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”
(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)).
In contrast to the evidence against Cloti-da, Chatten’s connection with the criminal enterprise is based entirely on circumstantial evidence. Circumstantial evidence has been defined as “proof which does not actually assert or represent the proposition in question, but which asserts or describes something else, from which the trier of fact may either (i) reasonably infer the truth of the proposition, ... or (ii) at least reasonably infer an increase in the probability that the proposition is in fact true.... ” 1 D. Louisell & C. Mueller, Federal Evidence § 94 (1977). It has been noted that “[t]he ... general problem of circumstantial proof is to determine whether proffered evidence indirectly or inferentially supports the proposition sought to be proved.” Id. at § 91.
It cannot be doubted, however, that circumstantial evidence is often very probative. As Professor Wigmore notes, without allowing the introduction of evidence that permits “an inference upon an inference,” “hardly a single trial could be adequately prosecuted.” 1A J. Wigmore, Evidence § 41 (1983). Indeed, “the courts in general have recognized that circumstantial evidence may, in given settings, have equal if not greater weight than direct evidence.” 1 C. Torcía, Wharton’s Criminal Evidence § 5 (14th ed. 1985). Furthermore, it is important to note that, in the context of review of a motion for acquittal, “no legal distinction exists between circumstantial and direct evidence.” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986).
The evidence presented by the government, in its case-in-chief against Chatten, is insufficient to sustain the jury’s verdict of guilty. United States v. Glover, 814 F.2d 15 (1st Cir.1987), represents a fair example of the farthest that this court has ventured in sustaining a conviction based entirely on circumstantial evidence. In Glover, the defendant was convicted of a conspiracy to possess cocaine with intent to distribute. On appeal, the defendant argued that the evidence was insufficient to support her conviction, “because there was no direct connection between her and either the drugs found in [her codefendant’s] possession or the drug paraphernalia found in her home.” Id. at 16. This court, however, sustained the conviction because the evidence showed that the defendant knew certain facts about the presence and location of the cocaine. Id. at 16-17.
In Glover, the court concluded that: [T]he evidence of [the defendant’s] knowledge of open drug activity in her apartment, combined with her control of the closet containing the cash, permitted the inference that she at least tacitly agreed to participate in a plan to possess cocaine with the intent to distribute it in which her role included providing the premises for the drug venture and controlling the funds generated as a result of it.
Id. at 17. Hence, we held that “the evidence, viewed as a whole in the light most favorable to the government, together with all legitimate inferences that can be drawn from it, was sufficient for a reasonable jury to conclude that [the defendant] conspired with the intent to distribute cocaine.” Id. at 16-17.
In the present case, the evidence relied on to connect Chatten to the crime charged does not approach the evidence present in Glover. Rather, this is “a case of ‘mere presence’ in which [Chatten] was convicted simply because she was present at the scene of a crime and shared a relationship with the perpetrator.” Id. at 17. Hence, the present case is more closely analogous to United States v. Mehtala, 578 F.2d 6 (1st Cir.1978), rather than Glover.
In Mehtala, the defendant was convicted of knowingly aiding and abetting in the importation of marijuana by boat. On appeal, this court noted that “[t]he Government’s entire proof consisted of Mehtala’s presence on the ship ... and inferences of a close relationship with the [ship’s] captain.” Id. at 10. The court stated that there was “[n]o evidence ... that Mehtala embarked on the voyage for any purpose other than a pleasure cruise. There [was] no indication that she had a prior association with the captain, that she used marijuana, or that she had been engaged in previous drug operations.” Id. The court reasoned that:
Even if through the supposed close relation between Mehtala and the ... captain, Mehtala obtained knowledge of the presence of the marijuana, this knowledge would not be sufficient to convict her of aiding and abetting. “Mere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.”
Id. (quoting United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977)). Hence, in Mehtala, this court reversed the conviction because the government had not proved the defendant’s guilt beyond a reasonable doubt. See id.
In this case, the government, in its casein-chief, presented no evidence that Chat-ten assisted Clotida in the smuggling of cocaine, or, even apart from assisting, had any knowledge of the presence of the cocaine. The government’s case against Chatten consisted of the evidence of the clothing, impregnated with cocaine and found in the suitcases with baggage tag numbers that matched those in the possession of Clotida.
The evidence is clear, as the arresting officer Inspector Albino testified, that it was Clotida who “had both airline tickets, all the baggage claim tickets and both their passports.” From the government’s casein-chief, the only evidence that may be said to connect or tie Chatten to the crime was the fact that she was present at the airport in San Juan, and had accompanied Clotida from Quito, Ecuador.
The remainder of the government’s case dealt with the events that followed after the evidence was seized, and after Clotida and Chatten were arrested. That part of the testimony of Customs Inspectors Albino and Otado, which related to the events inside the Customs’ enclosure area, pertained only to Clotida. The testimony of Sergeant Hiram Gomez Santini related to what happened to the contraband after it was released by Customs, and the testimony of Roman, a chemist for the DEA, dealt with the tests performed on the contraband. Indeed, the only testimony which pertained directly to Chatten after her arrest, related to the reading of her Miranda Warning.
In sum, no evidence in the government’s case-in-chief indicated that Chatten “associate^] [herjself with the venture, that [s]he participate^] in it as in something that [s]he wishe[d] to bring about, that [s]he [sought] by h[er] action to make it succeed.” See Nye & Nissen, 336 U.S. at 619, 69 S.Ct. at 769. It has been stated that “[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt, nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.” United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977) (citations omitted).
Chatten reaps the full benefit of the presumption of innocence. The presumption of innocence of an accused in a criminal trial is a fundamental principle of the common law. Blackstone, in his commentaries, discussing presumptions in the criminal law, asserted that “the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” 4 W. Blackstone, Commentaries 352. In McKinley’s Case, 33 How.St.Tr. 275, 506 (1817), Lord Gillies of the High Court of Justiciary at Edinburgh asserted that “the presumption in favour of innocence is not to be re-dargued by mere suspicion.... I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman....” The origins of the presumption of innocence may be found in ancient Rome, and, indeed, can be traced to the codes of Athens and Sparta. See Coffin v. United States, 156 U.S. 432, 453-55, 15 S.Ct. 394, 402-03, 39 L.Ed. 481 (1895).
In the United States, with commendable brevity, Wigmore states that “[t]he presumption of innocence is fixed in our law.” 9 Evidence § 2511 (emphasis omitted). In Coffin, in a portion of the opinion that is still valid and worthy of quotation, Justice Edward White stated that it “is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin, 156 U.S. at 453, 15 S.Ct. at 402. The Coffin Court, in stressing the importance of the presumption of innocence, concluded “that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf....” Id. at 460, 15 S.Ct. at 405. Professor Wigmore, however, notes that “[n]o presumption can be evidence; it is a rule about the duty of producing evidence.” 9 Evidence § 2511 (emphasis in original) (citation omitted). In the words of Professor Wigmore, the “tem-poary aberration” caused by Coffin, as to the evidentiary effect of the presumption of innocence, “was soon afterwards discarded in the court of its origin.” Id. (citing Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897); Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910)).
The presumption is nonetheless basic and essential. An American scholar writes that it “is a substantive principle of law which is so engrained in the accusatorial system of American justice that no one challenges its preferred and unquestioned position.” M. Bassiouni, Criminal Law and Its Processes § 2.2 (1969). The presumption also reflects a universally accepted norm proclaimed as a human right and fundamental freedom in article 11 of the Universal Declaration of Human Rights. G.A.Res. 217, 3 U.N.GAOR 71, 73, U.N.Doc. A/810, at art. 11 (1948) (“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law....”).
In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), the Supreme Court held that the due process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Beyond the rule that places the burden upon the prosecution of producing evidence to prove the accused guilty, Professor Wigmore states that “the presumption of innocence ... conveys for the jury a special and additional caution ... to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.” 9 Evidence § 2511 (emphasis in original).
Chatten did not waive her Rule 29 motion. Considering, therefore, that the evidence presented by the government in its case-in-chief, including all inferences that could be drawn therefrom, was insufficient to have permitted the jury to find her guilty beyond a reasonable doubt, Chat-ten's conviction was improper. Hence, the district court erred in denying Chatten’s Rule 29 motion.
The essence of any truly civilized criminal justice system is fairness in the individual case. In reversing Chatten’s conviction, we are reminded that “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent [persons] are being condemned.” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072. To deem the evidence presented against Chatten adequate would do violence to the presumption of innocence, and the due process requirement that a defendant be proved guilty beyond a reasonable doubt.
II. The Prosecution’s Rebuttal
Clotida also argues that, “in allowing the prosecutor to bring [in] what amounted to a confession through rebuttal,” the district court abused its discretion by permitting the “surprise” of the defendant. Clotida asserts that the “sandbagging” tactics of the prosecution effectively deprived him of his fifth amendment right to testify in his own defense by impairing his ability to make an intelligent decision as to whether or not to testify.
It has been stated that “[t]he function of rebuttal is to explain, repel, counteract or disprove evidence of the adverse party. The fact that testimony would have been more proper for the case-in-chief does not preclude the testimony....” United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir.) (citation omitted), cert. denied sub nom. King v. United States, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980). As the Supreme Court noted in Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976), the order in which the parties present their evidence is totally within the discretion of the trial court.
In determining whether the trial court has abused its discretion in any particular case, three factors must be considered: “(1) surprise to the defendant, (2) defendant’s opportunity to meet the proof, and (3) detriment to the defendant because of the order in which the evidence was introduced.” Luschen, 614 F.2d at 1170.
Notwithstanding Clotida’s assertion, the facts and circumstances indicate that there was no “surprise” in this case. With full knowledge of the facts, Clotida assumed the risk of the consequences of testifying contrary to his own prior inculpatory statements. Surely, he can hardly claim “surprise” if the government would attempt to rebut his testimony, and delve into damaging statements that he had made after his arrest in the presence of DEA agents. Regardless of purpose or motive, whether to assert his innocence or exculpate Chatten, it was clearly his decision to testify and risk the consequences of rebuttal evidence.
Unlike cases in which there is non-disclosure by the prosecution, in violation of Rule 16, the government in this case allowed a complete open-file discovery so that Clotida was fully aware of the risks of taking the stand. See United States v. Gladney, 563 F.2d 491 (1st Cir.1977). Under the circumstances presented, there was no violation of Clotida’s constitutional right to testify or remain silent.
CONCLUSION
In agreement with the district court, we hold that Clotida waived his Rule 29 motion, and that there is no “manifest injustice” in sustaining the jury’s verdict of conviction. Additionally, we hold that the district court did not abuse its discretion in permitting the government’s rebuttal evidence.
The conviction of Chatten must be reversed because the evidence presented in the government’s case-in-chief, including all inferences drawn therefrom, does not support the jury’s verdict of guilty beyond a reasonable doubt. Her Rule 29 motion, therefore, should have been granted. Accordingly, the judgment of the district court is affirmed as to Clotida and reversed as to Chatten.
So Ordered.
. The testimony of Clotida, which is outside the government’s case-in-chief, established that Olivia Chatten was involved in an extramarital affair with Clotida, accompanied him from the Netherlands to Ecuador, and lodged with him in the same hotel room. Clotida also testified that he intermingled his and Chatten’s clothes with the clothes given to him by Serapio, and put them all in the suitcases. For purposes of the Rule 29 motion, however, we may only consider the evidence in the government’s case-in-chief and exclude the testimony of Clotida. See Lopez, 576 F.2d at 843. See also Evans, 572 F.2d at 475; Polizzi, 500 F.2d at 904; Cephus, 324 F.2d at 893.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_numresp
|
4
|
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.
Lorraine KROMNICK, Lorraine Brancato, Gladys Hirsh and Regina Katz v. SCHOOL DISTRICT OF PHILADELPHIA, and Board of Education of the School District of Philadelphia, Appellants.
No. 83-1144.
United States Court of Appeals, Third Circuit.
Argued Nov. 29, 1983.
Decided July 17, 1984.
Eugene F. Brazil, General Counsel, Martin Horowitz, Asst. General Counsel, School District of Philadelphia, Germaine Ingram (argued), University of Pennsylvania Law School, Philadelphia, Pa., for appellants.
Robert M. Goldich (argued), Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellees.
Thomas K.' Gilhool (argued), Michael Churchill, Stephen F. Gold, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for amici curiae Barbara Jordan, Gwendolyn Saunders, Cora Bazmore, Glenda Billings Poole and Linda Hewson.
Michael Hardiman, Asst. General Counsel, Pennsylvania Human Relations Commission, Philadelphia, Pa., for amicus curiae Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission.
Richard C. Dinkelspiel, Maximilian W. Kempner, Co-Chairmen, William L. Robinson, Norman J. Chachkin, Lawyers’ Committee for Civil Rights Under Law, Walter A. Smith, Jr., David F. Grady, Julie E. Stumpe, Hogan & Hartson, Washington, D.C., for amicus curiae Lawyers’ Committee for Civil Rights Under Law.
Steven A. Asher, LaBrum & Doak, Philadelphia, Pa., Justin Finger, Jeffrey P. Sinensky, Leslie K. Shedlin, Anti-Defamation League of B’nai B’rith, New York City, Richard L. Berkman, Boston, Mass., Samuel Rabinove, Andrea S. Klausner, American Jewish Committee, New York City, Paul T. Sosnowski, Polish-American Congress, Philadelphia, Pa., Marc D. Stern, American Jewish Congress, New York City, for amici curiae Anti-Defamation League of B’nai B’rith, American Jewish Committee, Polish-American Congress and American Jewish Congress.
Before GIBBONS, SLOVITER, Circuit Judges, and CALDWELL, District Judge.
Hon. William W. Caldwell, United States District ■ Judge for the Middle District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The School District of Philadelphia appeals from the orders of the district court permanently enjoining it from complying with its policy under which some teachers are transferred to other schools to maintain racial integration of faculty in each school. Teachers subject to transfer contend, and the district court agreed, that this policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Kromnick v. School District, 555 F.Supp.249 (E.D.Pa.1983). We • reverse the judgment of the district court.
I.
FACTS AND PROCEDURAL HISTORY
A.
Challenged Policy
Under the policy challenged in this action, the Philadelphia Board of Education seeks to maintain a faculty ratio at each school of between 75% and 125% of the system-wide proportions of white and black teachers. As a result, the racial composition of each school’s faculty reflects that of the overall teaching staff.
To reach this objective, the School District annually reassigns some classroom teachers to other schools. The reassignment plan operates in two phases. First, there is a determination of the need for staff at each school. Because of declining student enrollment, each year many schools have fewer positions. Open positions are staffed in order of accumulated seniority at the school, and the least senior teachers are transferred from the school. However, if that would cause the school to fall outside the 75%/125% range, teachers of the overrepresented race are transferred even though they have more seniority. Also, if retirements cause a racial imbalance in the school’s faculty outside the 75%/125% range, again the least senior teachers of the overrepresented race are transferred even though they may have more seniority than teachers of the other race. Only a small percentage of teachers transferred are transferred in derogation of seniority. In the last year,.approximately 50 or 60 of the 1,100 teachers transferred were transferred to maintain the 75%/125% racial balance.
In the second phase of the reassignment plan, all the transferred teachers are entitled to choose new schools in descending seniority order, unless their choice would bring the selected schools outside the 75%/125% range. If so, those teachers are required to forego their preferred choice of transfer.
In considering the School District’s policy, it is also necessary to keep in mind several factors. First, layoffs, as opposed to transfers, are determined by strict seniority. App. Ill at 185a; Brief for Appellees at 6. Second, teachers required to be transferred retain accumulated “building seniority,” whereas those who seek transfers generally lose that seniority. App. II at 137a. This affects transfer rights for the following school year. Third, transferred teachers retain a “right of return," or priority to any vacancies that recur at their former schools, if return will not upset the racial balance. App. Ill at 192a-93a.
B.
Development of the Policy
The Philadelphia School System has long suffered from de facto segregation by race of students and faculty. Under Pennsylvania law, school districts may take steps to rectify a racial imbalance that is the product of de facto segregation as well as of de jure origin. Balsbaugh v. Rowland, 447 Pa. 423, 438, 290 A.2d at 85, 93 (1972). Also, the state, through the agency of the Pennsylvania Human Relations Commission (PHRC), may require a plan to eliminate de facto racial imbalances in schools. 447 Pa. at 432-33, 290 A.2d at 90; Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 233 A.2d 290 (1967).
In 1968, the PHRC began proceedings under state law to compel the elimination of racially identifiable schools in Philadelphia. See School District v. Pennsylvania Human Relations Commission, 6 Pa. Cmmw. 281, 294 A.2d 410 (1972), affd as to other parties, 455 Pa. 52, 313 A.2d 156 (1973), (School District I); Pennsylvania Human Relations Commission v. School District, 23 Pa.Cmmw. 312, 352 A.2d 200 (1976) (School District II); Pennsylvania Human Relations Commission v. School District, 30 Pa.Cmmw. 644, 374 A.2d 1014 (1977), affd, 480 Pa. 398, 390 A.2d 1238. (1978) (School District III); Pennsylvania Human Relations Commission v. School District, 66 Pa.Cmmw. 154, 443 A.2d 1343 (1982) (School District IV). The state courts have generally preferred to allow the School District to establish “voluntary” plans in response to prodding by the PHRC because, as the Pennsylvania Supreme Court noted, the School District has “primary responsibility for the choice and implementation of an effective desegregation program.” School District III, 480 Pa. at 428, 390 A.2d at 1253 (quoting Pennsylvania Human Relations Commission v. Chester School District, 427 Pa. 157, 181, 233 A.2d 290, 302 (1967)). The most recent state court action resulted in a consent agreement for a desegregation plan involving use of “magnet” schools. Despite these lengthy proceedings, the students of the School District still attend racially identifiable schools. See School District IV, 66 Pa.Cmmw. at 174, 443 A.2d at 1352.
PHRC guidelines espouse integration of faculty as well as of students as a means to eliminate the racial identifiability of schools and to achieve equal education for their students. See School District II, 23 Pa. Cmmw. at 317, 352 A.2d at 203. In 1969, the PHRC entered into a consent decree with the School District that required each elementary school to have at least 20% and each secondary school to have at least 10% of both black and white teachers. App. II at 115a. This decree supplemented a policy imposed in 1965, and still continuing,' of assigning newly hired teachers in a manner that furthers racial balance. Appellee teachers do not attack this race-conscious initial assignment, which they consider “reasonable”. Brief for Appellees at 4-5. Assignment on this basis aided faculty integration when there was an upsurge in hiring but voluntary transfers were also restricted in an effort to reach the 20% and 10% goals. Kromnick v. School District, 555 F.Supp. at 250.
In 1978, the School District’s teacher assignment policies were again rewritten, this time because of the requirements of the federal government. In order to receive financing to assist in desegregation, the School District applied for federal aid then available under the Emergency School Aid Act (ESAA) Title VI, § 601, 20 U.S.C. §§ 3191-3207 (Supp V. 1981) (repealed effective October 1, 1982). The Office of Civil Rights (OCR), of the Department of Health, Education and Welfare denied the.application because the School District’s desegregation plan was unsatisfactory. Among the deficiencies cited was insufficient integration of classroom teachers. The then-applicable ESAA regulations administered by OCR provided:
No educational agency shall be eligible for assistance under the Act if... it has... any practice, policy or procedure which results in discrimination on the basis of race... including the assignment of full-time classroom teachers to the schools of such agency in such manner as to identify any of such schools as intended for students of a particular race, color or national origin..
45 C.F.R. § 185.43(b)(2) (1978) (emphasis added), redesignated 280.22(e) (1980) (repealed effective October 1, 1982). OCR found that teacher assignments in Philadelphia were “racially identifiable” despite the District’s compliance with the numerical goals imposed under its consent decree with the PHRC. In 1978 the School District’s student population was 64.2% black, 6% Hispanic, and 31.6% white and its faculty was 63% white, 36% black and 1% other. OCR found that of 280 schools, 114 had 90% black students, whereas 60 schools had 80% white students. 61% of the black teachers were assigned to the schools with 90% black students, but only 8% were assigned to the schools with 80% white students. App. I at 58a-59a, 66a. OCR concluded that many schools that were racially identifiable by students had racially identifiable faculties and were “readily identifiable by the racial composition of their teaching staffs as intended for students of a particular race ____ in violation of 45 C.F.R. 185.43(b)(2).” App. I at 59a.
OCR found that the District’s teacher assignment policies had allowed too much choice of assignment for teachers in a system with de facto segregation. After intimating that this amounted to a conscious policy that might be unlawful or unconstitutional, the agency declined to revoke a determination of ineligibility, and concluded:
[C]ompliance with the [PHRC consent decree]... was not sufficient to overcome the persistent pattern of racial identification of schools by faculty assignment ____ In fact, the district has continued to allow teacher choice to determine teaching assignments even though, as the district representatives admitted, residential areas in the city are de facto segregated and teachers tend to choose schools nearest to their homes. Thus, it is our view that the natural, probable and foreseeable result of your district’s teacher assignment policies was to maintain the racial identifiability of schools by the composition of their teaching staffs.
Letter from Herman R. Goldberg to Dr. Michael P. Marcase (August 8, 1978), App. I at 71a.
ESAA regulations provided for a “waiver” of eligibility if the district undertook remedial action “so that the proportion of minority group full-time teachers at each school is between 75 percentum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole.” 45 C.F.R. § 185.44(d)(3) (1978), redesignated 34 C.F.R. § 280.30(c) (1980), (repealed effective October 1, 1982). The School Board voted to comply with this 75%/125% standard, and adopted the policy described above, which went into effect immediately for the 1978-79 school year and has been continued for each year since. As a result, the School District received federal funds annually for desegregation.
C.
Procedural History and Continued Use of the Policy
Four white teachers transferred under the 75%/125% policy, Lorraine Kromnick, Lorraine Brancato, Gladys Hirsh and Regina Katz, filed suit against the School District in December 1981, seeking declaratory and injunctive relief as well as money damages under the Constitution. Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. Plaintiffs contended that the policy was an impermissible racial classification, but did not argue that its impact fell disproportionately on whites or blacks as a group.
The district court denied plaintiffs’ motion for preliminary injunction primarily because the policy was mandated by OCR. See Kromnick v. School District, 555 F.Supp. 249, 252 (E.D.Pa.1983). The court then granted plaintiffs’ motion for certification as representatives, for declaratory and injunctive relief, of a mixed-race class of teachers affected by the 75%/125% policy. The court also directed the School District to determine if OCR continued to require use of the 75%>/125% policy. Id. at 252.
On June 23, 1982, the Office of Civil Rights of the Department of Education, now responsible for the ESAA program, found the School District “substantially in compliance” with the regulations. The agency commended the system for integrating the faculty and stated that the district “is under no further obligation to continue to meet the 75%/125% standard.” The agency also stated that “the district must continue to use nondiscriminatory policies” in placing teachers, and was “free to continue to maintain [the 75%/125% policy] if it so chooses.” Letter from Frederick T. Cioffi, Director, Elementary and Secondary Education Division, Litigation, Enforcement and Policy Service, Department of Education to Superintendent Michael Mar-case (June 23, 1982), App. II at 74a-75a.
The School Board voted, on August 2, 1982, to continue using the 75%/125% policy for the upcoming school year. Although the Board made no specific findings as to the continued need for this particular policy and did not canvass alternative race-conscious policies, the Board heard a report by its personnel department, later confirmed in a written study, that if the 75%/125% policy were abandoned in favor of free choice in teacher assignments, the level of faculty integration would slip.
At the trial on plaintiffs’ motion for permanent injunction, the plaintiff teachers dropped their contention that the plan was unlawful for the years 1978-82, and limited their claims to the new period of voluntary adherence. Brief for Appellees at 3 n. 2. The district court now held for plaintiffs, concluding that continued voluntary adherence to the 75%/125% policy violated the Equal Protection Clause o.f the United States Constitution and Title VII of the Civil Rights Act of 1964.
The court found that the policy’s current purpose “is not to remedy past discrimination in teacher assignments, but to guard against the possibility that the system will revert to its pre-1978 level of racial imbalance in faculty assignments,” and therefore termed the policy “an elective racial quota.” 555 F.Supp. at 252. The court held that the School District had failed to show that the policy was substantially related to achievement of the legitimate and important objective of enhancing educatiónal opportunities for school children, because it had not demonstrated “through empirical evidence” the likelihood of reversion to prior levels of segregation, but had only presented “sheer speculation.” Id. at 254. It held, moreover, that the School District had failed to demonstrate the unavailability of “nondiscriminatory alternatives for maintaining faculty integration.” Id.
The court then distinguished cases from other circuits upholding such reassignment plans because in those cases the plans were remedial devices, whereas it viewed continued use of the 75%/125% policy as not remedial, but aimed at maintaining racial balance for its own sake. Id. The court held that continued use of the policy violated Title VII for essentially the same reasons as it violated the Constitution. Id. at 255-56. The court stated, “The salient and ultimately fatal characteristic of the District’s quota system is that its only function is to preserve the existing racial percentages.” Id. at 255. The policy “continues to allow race to be the sole criterion affecting employment once the desired end is actually met.” Id.
The district court entered an order enjoining use of the 75%/125% policy as it applies to both phases of the transfer process. The court initially granted only prospective relief “because of the District’s good faith reliance upon the OCR determination... that the District could continue its use of the 75%/125% standard,” id. at 256; however, the court later granted plaintiffs’ motion to amend the judgment and ordered that defendants restore those teachers transferred after August 1982 under the challenged policy.
The School District filed a timely appeal from this final order, and this court granted its motion to stay the district court’s orders pending appeal. This court denied a motion to intervene by several parents of children enrolled in Philadelphia public schools, Barbara Jordan et al., but allowed them to participate by briefing and oral argument as amici curiae. The PHRC submitted a brief as amicus curiae as did the Lawyer’s Committee for Civil Rights Under Law and the Anti-Defamation League of B’nai B’rith, on behalf of itself and other ethnic organizations.
II.
EQUAL PROTECTION
The Supreme Court signalled the beginning of the end of institutionalized racism in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). As the Court later stated, “School boards... were... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 1693-94, 20 L.Ed.2d 716 (1968) (citations omitted). Congress joined in the Court’s view of the invidiousness of racial discrimination and passed a series of laws, including the Civil Rights Act of 1964, outlawing discrimination in many areas. Racism, however, has not been eliminated, but the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution have been restored to their intended race-conscious and remedial function. “[N]o decision of [the Supreme] Court has ever adopted the proposition that the Constitution must be color blind.” Regents of the University of California v. Bakke, 438 U.S. 265, 336, 98 S.Ct. 2733, 2771, 57 L.Ed.2d 750 (1978) (opinion of Brennan, J., joined by White, Marshall, and Blackmun, JJ.). Rather, experience has taught us that “[i]n order to get beyond racism, we must first take account of race.” Id. at 407, 98 S.Ct. at 2807 (separate opinion of Blackmun, J.). See also Williams v. City of New Orleans, 729 F.2d 1554, 1573 (5th Cir.1984) (in banc) (Wisdom, J., concurring in part and dissenting in part).
In only two cases has the Supreme Court reached the merits of a party’s contention that a governmental remedial program considering race as a factor violates the Equal Protection Clause of the Fourteenth Amendment. In the first, Regents of the University of California v. Bakke, supra, decided in 1978, the Court’s judgment was grounded on Title VI of the Civil Rights Act of 1964, which a majority of the Court viewed as coextensive with the Equal Protection Clause. The Court concluded that the University of California’s preferential admissions program for student applicants from certain minority groups violated Title VI. The Court, however, also held that the state medical school should not be enjoined from according any consideration to race in its admissions process. 438 U.S. at 272, 98 S.Ct. at 2738. In the second, Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court held that a provision of the Public Works Employment Act of 1977, requiring a set-aside of at least 10% of federal funds granted for local public works projects for purchases from
minority-owned businesses, did not violate the Equal Protection Clause.
In Bakke, five Justices (the Chief Justice and Justices Stewart, Powell, Rehnquist, and Stevens) concluded that the preferential admission plan violated Title VI. Justice Powell was the only Justice who expressed the opinion that the plan was unconstitutional as well. Justices Brennan, White, Marshall, and Blackmun would have upheld the plan under both Title VI and the Constitution. In Fullilove, seven Justices concluded that a Congressionally enacted preference for minority'contractors was constitutional, but did so under three separate opinions applying differing legal tests. Notwithstanding the differing views of the Justices, it is clear that a majority of the Supreme Court members have opined that not every race-conscious measure is constitutionally impermissible. Nothing in either of these cases impairs this court’s earlier holding in Porcelli v. Titus, 431 F.2d 1254,' 1257 (3d Cir.1970) (per curiam), cert, denied, 402 U.S. 944, 91 S.Ct. 1612, 29 L.Ed.2d 1Í2 (1971), that “state action based partly on considerations of color, when col- or is not used per se, and in furtherance of a proper governmental objective, is not necessarily a violation of the Fourteenth Amendment.”
The absence of an Opinion of the Court in either Bakke or Fullilove and the concomitant failure of the Court to articulate an analytic framework supporting the judgments makes the position of the lower federal courts considering the constitutionality of affirmative action programs somewhat vulnerable. Nevertheless, it is necessary, as a preliminary matter, to determine the level of scrutiny to be employed in reviewing a claim that state action violated the Equal Protection Clause.
In Bakke, Justices Brennan, White, Marshall, and Blackmun articulated a standard, similar to that developed in gender-discrimination cases, that “racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives.” 438 U.S. at 359, 98 S.Ct. at 2783. Justice Powell, after distinguishing cases involving “remedies for clearly determined constitutional violations,” id. at 300, 98 S.Ct. at 2753, viewed remedial classifications as “suspect,” and justifiable only if the State “show[s] that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary... to the accomplishment’ of its purpose or the safeguarding of its interest.” Id. at 305, 98 S.Ct. at. 2756. The remaining Justices did not reach the constitutional issue in Bakke, and therefore did not comment on the level of scrutiny.
In Fullilove, Chief Justice Burger (joined by Justice White and by Justice Powell, who also drafted his own concurrence) declined to adopt a specific test in his opinion but held that the minority, contracting program passed constitutional muster under either of the above tests. 448 U.S. at 492, 100 S.Ct. at 2781. Justice Marshall (joined by Justices Brennan and Blackmun) adhered to the intermediate test articulated by Justice Brennan in Bakke. Id. 448 U.S. at 519, 100 S.Ct. at 2795. Justice Stevens dissented in Fullilove, finding the program not “narrowly tailored,” but without advocating a general theory applicable to remedial classifications. Id. 448 U.S. at 552, 100 S.Ct. at 2812. Justice Stewart, joined by Justice Rehnquist, dissented and advocated a color-blind position that barred preferences unless ordered by a court for the “sole purpose... [of] eradicating] the actual effects of illegal discrimination.” Id. at 528, 100 S.Ct. at 2799.
The nature of the state action in this case is unique. In both Bakke and Fullilove, the governmental action imposed a preference based on race, which resulted in an undeniable detriment to members of the nonpreferred race. Thus in Bakke, the reservation of slots for. minorities under the admissions plan created, as stated in Justice Powell’s determinative opinion, “a line drawn on the basis of race and ethnic status” which meant that “white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” 438 U.S. at 289, 98 S.Ct. at 2747. Similarly, in Fullilove, the 10% set aside for minorities concededly could “have the effect of awarding some contracts to MBE’s which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions.” 448 U.S. at 484, 100 S.Ct. at 2777 (opinion of Burger, C.J.). Even in the context of these clear preferences, the members of the Court disagreed on the appropriate level of scrutiny, with some members opting for a strict scrutiny standard, while others stated that an intermediate standard was appropriate when the goal was remedial.
The 75%/125% program challenged in this action creates no preference of the type usually associated with claims of “reverse discrimination.” There is no contention that teachers are either hired or laid off on the basis of race. There is no contention that teachers are promoted on the basis of race. There is no contention that any classification with any monetary significance is made on the basis of race. The challenge is to a policy that only affects assignment of teachers to schools. Ordinarily, this is a function within the exclusive prerogative of the school district, unless a collective bargaining agreement imposes restrictions. In this instance, however, the collective bargaining agreement incorporates the 75%/125% policy, and has done so year after year. Since the program is racially neutral, requiring the transfer of both black and white teachers, and there has been no showing of disparate impact upon one race, it is questionable whether the policy is one effecting a discrimination of constitutional dimension.
Indeed, there is an innate inconsistency in plaintiffs’ position on this issue. Plaintiffs do not challenge the constitutionality of the school district’s policy to assign teachers initially to schools in such manner as will integrate the school’s faculty. Furthermore, they do not suggest that the policy limiting voluntary transfer on race considerations is constitutionally offensive. They suggest no basis, grounded in constitutional principles,.why involuntary transfer of teachers, unlike these other unchallenged race-conscious strategies, involves a constitutional discrimination in the absence of a contractual right that is being overridden.
No case has suggested that the mere utilization of race as a factor, together with seniority, school need, and subject qualification, is prohibited. Since the classification is not preferential, it might most appropriately be reviewed for its rational relationship to a legitimate government objective, under which standard it would be patently valid. At most, since there is some element of racial classification, albeit not of preference, the appropriate level of scrutiny would be the intermediate level suggested by four members of the Court in Bakke, in which the classification was indeed preferential.
The appropriate question under that standard is whether the classification “serve[s] important governmental objectives” and is “substantially related to achievement of those objectives.” Bakke, 438 U.S. at 359, 98 S.Ct. at 2783 (opinion of Brennan, J.). The School District articulates its goal as the integration of the faculties of the public schools of the City of Philadelphia so that public school pupils will have the opportunity to be taught by an integrated faculty. The district court agreed that “the governmental objective of maintaining desegregated school faculties in order to enhance the educational opportunities of the school children is indeed a legitimate and important objective.” 555 F.Supp. at 254. It held, however, that the 75%/125% plan had not been shown to be “substantially related to achievement” of the objective. Id. It was in this regard that the district court erred. The evidence is unmistakable and unchallenged that during the period of the operation of the 75%/125% program, the goal of integrating faculties of the public schools was substantially furthered. See, e.g., App. I at 75a.
Although the district court stated that it was applying an intermediate standard of review, it did not do so in fact since it imposed on the School District the burden to show by empirical evidence that the district would “revert back to prior levels of segregation” if the 75%/125% policy were not used, and that “other nondiscriminatory alternatives” could not be used for “maintaining faculty integration.” 555 F.Supp. at 254. By imposing on the School District these requirements, the district court in fact was using a strict, indeed a most exacting, standard of scrutiny, one we conclude was inappropriate under these facts. In neither Bakke nor Fullilove did a majority of the Court hold that such a strict scrutiny standard was appropriate even when the racial classification imposed a preference. Thus, its use by the district court in this case cannot be sustained.
Furthermore, even if the intermediate standard of review applied above were not deemed apt, the result would be the same if we apply the more rigorous standard used to evaluate affirmative action programs under which members of minority groups are given a preference. In reviewing such a preference, Chief Justice Burger in Fullilove declined to select a particular standard of scrutiny and instead reviewed the racial classification against the underlying concerns common to the opinions previously expressed in Bakke. As an alternative holding, therefore, we adopt that course which was also utilized recently by Judge Kravitch in her opinion reviewing a chailenge to a race-conscious affirmative action plan for county contracts in South Florida Chapter v. Metropolitan Dade County, 723 F.2d 846, 851-52 (11th Cir.1984).
The relevant factors that emerge from the Supreme Court opinions are (1) the importance and validity of the remedial aim, (2) the competence of the agency to choose such a remedy, and (3) the tailoring of the remedy so as to limit the burden suffered by others. We do not suggest that this list is complete, but rather believe that it provides a framework in which tó determine whether this plan is permissible or entails Unconstitutional racial discrimination.
A.
Remedial Purpose
One of the linchpins of appellees’ argument is its contention that the 75%/125% policy serves no remedial purposé and that, as a result, the legal precedent supporting a more flexible scrutiny for remedial plans is inapplicable. It bases its argument on the district court’s determination that the “purpose [of the policy] is to preserve the status quo and not to remedy past discreimination.” 555 F.Supp. at 256. We believe the district court’s narrow view of the parameters of a remedial purpose was erróneous as a matter of law, and that its finding that the 75%/125% policy in this case was not remedial was clear error.
The district court apparently believed that once the School District was relieved by the OCR in 1982 of the obligation to maintain the 75%/125% policy, its action in continuing that policy ceased to be remedial. The district court ignored the 15 year history of state proceedings against the School District, which are still pending in state court, directed to effecting integration of the Philadelphia public school system. The long history of Philadelphia public schools as “racially identifiable” as either “white schools” or “black schools” cannot be gainsaid. As early as 1969 the School District was operating under a consent decree entered into with the Pennsylvania Human Relations Commission requiring it to remove the racial imbalance among teachers in its schools.
The opinions of the Pennsylvania courts provide graphic evidence of the continuing efforts by the PHRC to require the School District to submit a plan that would be effective in eliminating racial imbalance in its schools, the submission of plans repeatedly held inadequate by the PHRC and the Commonwealth Court, and the failure, as yet, to reach the goal of racial balance. In the context of repeated court and administrative orders to eliminate the racial identifiability of schools, the School District’s plan to further this end by integrating faculty must be considered remedial as a vital part of the ongoing effort to achieve a unitary school system. Thus, the fact that the four year federal phase of this long history concluded in 1982 cannot signify an end to the remedial nature of efforts made toward this goal. In fact, at the time of the hearing before the district court, the School District was still obligated by court order to implement a desegregation plan that would “accomplish[ ] the desegregation of schools which contain all or nearly all black students.” School District IV, 66 Pa.Cmmw. at 177, 443 A.2d at 1353.
Furthermore, because our society has not yet achieved full integration among its component races in important areas of public life, including housing, employment, and public education, a reasonable plan designed to foster racial balance of public schools’ teachers must be considered as directed toward remedying still existent racism, even without an applicable court order or pending administrative proceeding.
In Philadelphia, as around the nation, many minority students live and attend school in racially isolated regions of the city. National experience strongly suggests that, as a result, these students! educational opportunities have been unnecessarily limited. Schools are great instruments in teaching social policy, for students learn not only from books, but from the images and experiences that surround them. One such lesson is of a spirit of tolerance and mutual benefit
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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sc_petitioner
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134
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., et al. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al.
No. 79-488.
Argued March 25, 26, 1980
Decided May 12, 1980
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Burger, C. J., and Powell, Rehnquist, and Stevens, JJ., filed a dissenting statement, post, p. 334.
James R. Dickens argued the cause for petitioners. With him on the briefs were C. Lee Coulter and N. Huntley Holland.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief for the federal respondent were Solicitor General McCree, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager. Herman L. Wacker filed a memorandum for Local Union No. 89, International Brotherhood of Electrical Workers, respondent under this Court’s Buie 21 (4).
Avrum M. Goldberg, William R. Weissman, Robert E. Williams, Douglas S. McDowell, and Philip Elman filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Barry L. Goldstein and Jack Greenberg filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.
Mr. Justice White
delivered" the opinion of the Court.
The issue in this case is whether the Equal Employment Opportunity Commission (EEOC) may seek classwide relief under §706 (f)(1) of Title VII of the Civil Rights Act of 1964 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure. The Court of Appeals for the Ninth Circuit held that certification was not required. 599 F. 2d 322 (1979). Because this is a recurring issue on which the federal courts are divided, we granted certiorari, 444 U. S. 989 (1979). We affirm the judgment.
I
Four employees of General Telephone Company of the Northwest, Inc. (General Telephone), filed charges with the EEOC complaining of sex discrimination in employment. After investigation, the EEOC found reasonable cause to suspect discrimination against women, and in April 1977 brought suit in the United States District Court for the Western District of Washington under § 706 (f)(1) of Title VII, as amended, § 4, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (l). The EEOC named as defendants General Telephone and its subsidiary, West Coast Telephone Company of California, Inc. (hereinafter collectively referred to as General Telephone), as well as the certified bargaining agent, Local Union No. 89, International Brotherhood of Electrical Workers. The complaint alleged discrimination against female employees in General Telephone’s facilities in the States of California, Idaho, Montana, and Oregon, in the form of restrictions on maternity leave, access to craft jobs, and promotion to managerial positions; it sought injunctive relief and backpay for the women affected by the challenged practices.
The complaint did not mention Federal Rule of Civil Procedure 23, and the EEOC did not seek class certification pursuant to that Rule. In August 1977, the EEOC moved pursuant to Federal Rule of Civil Procedure 42 (b) “for an order bifurcating the issue of class liability from the issue of individual damages.” The District Court referred the motion to a Magistrate, see Title VII, §706 (f)(5), and General Telephone moved “for an order dismissing the class action aspects” of the complaint.
The Magistrate concluded that the EEOC was hot required to comply with Rule 23 and recommended that the motion be denied. The District Court adopted the recommendation, denied the motion to dismiss, and then certified the issue for interlocutory appeal to the Ninth Circuit. The Court of Appeals accepted the appeal, see 28 U. S. C. § 1292 (b), and affirmed the District Court’s ruling.
II
We agree with the Court of Appeals that Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices. We rely on the language of Title VII, the legislative intent underlying the 1972 amendments to Title VII, and the enforcement procedures under Title VII prior to the amendments.
A
Title VII protects all employees of and applicants for employment with a covered employer, employment agency, labor organization, or training program against discrimination based on race, color, religion, sex, or national origin. Section 706 (a) empowers the EEOC “to prevent any person from engaging in any unlawful... practice” as set forth in the Title. Section 706 (f)(1) specifically authorizes the EEOC to bring a civil action against any respondent not a governmental entity upon failure to secure an acceptable conciliation agreement, the purpose of the action being to terminate unlawful practices and to secure appropriate relief, including “reinstatement or hiring..., with or without back pay,” for the victims of the discrimination. See § 706 (g).
Title VII thus itself authorizes the procedure that the EEOC followed in this case. Upon finding reasonable cause to believe that General Telephone.had discriminated against female employees, the EEOC filed suit seeking a permanent injunction against the discriminatory practices, remedial action to eradicate the effect of past discrimination, and “make whole” backpay, with interest, for persons adversely affected by the unlawful practices. Given the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule 23, and the Rule has no application to a § 706 suit.
Of course, Title VII defendants do not welcome the prospect of backpay liability; but the law provides for such liability and the EEOC’s authority to sue for it. Moreover, the EEOC here requested relief only on behalf of “those persons adversely affected” and “in an amount to be proved at trial.” App. 11. There is no claim or suggestion of unjustified, windfall backpay awards. That backpay relief is authorized is no basis- for imposing the Rule 23 framework in an EEOC enforcement action. We do no more than follow a straightforward reading of the- statute, which seems to us to authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act.
B
This understanding of the statute is supported by the purpose of the 1972 amendments of providing the EEOC with enforcement authority. The purpose of the amendments, plainly enough, was to secure more effective enforcement of Title VII. As Title VII was originally enacted as part of the Civil Rights Act of 1964, the EEOC’s role in eliminating unlawful employment practices was limited to “informal methods of conference, conciliation, and persuasion.” Civil actions for enforcement upon the EEOC’s inability to secure voluntary compliance could be filed only by the aggrieved person. § 706 (e), 78 Stat. 260. Congress became convinced, however, that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII.” S. Rep. No. 92-415, p. 4 (1971). The 1972 amendments to § 706 accordingly expanded the EEOC’s enforcement powers by authorizing the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII. In so doing, Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. The amendments did not transfer all private enforcement to the EEOC and assign to that agency exclusively the task of protecting private interests. The EEOC’s civil suit was intended to supplement, not replace, the private action. Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 45 (1974). The EEOC was to bear the primary burden of litigation, but the private action previously available under § 706 was not superseded. Under § 706 (f)(1), the aggrieved person may bring his own action at the expiration of the 180-day period of exclusive EEOC administrative jurisdiction if the agency has failed to move the case along to the party’s satisfaction, has reached a determination not to sue, or has reached a conciliation or settlement agreement with the respondent that the party finds unsatisfactory. The aggrieved person may also intervene in the EEOC’s enforcement action. These private-action rights suggest that the EEOC is not merely a proxy for the victims of discrimination and that the EEOC’s enforcement suits should not be considered representative actions subject to Rule 23. Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by “the overriding public interest in equal employment opportunity... asserted through direct Federal enforcement.” 118 Cong. Rec. 4941 (1972). When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.
c
Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect “a pattern or practice” of discrimination. These actions did not depend upon the filing of a charge with the EEOC; nor were they designed merely to advance the personal interest of any particular aggrieved person. Prior to 1972, the Department of Justice filed numerous § 707 pattern-or-practice suits. 118 Cong. Rec. 4080 (1972) (remarks of Sen. Williams). In none was it ever suggested that the Attorney General sued in a representative capacity or that his enforcement suit must comply with the requirements of Rule 23; and this was true even though specific relief was awarded to individuals not parties to the suit.
The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his own motion. In discussing the transfer, Senator Hruska described § 707 actions as “in the nature of class actions” 118 Cong. Rec. 4080 (1972). Senator Williams then noted that, upon the transfer, “[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a 'pattern or practice’ charge and those which the [EEOC] will be able to bring.” Id., at 4081. Senator Javits agreed with both Senators: “The EEOC... has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice.” Senator Javits further noted that “if [the EEOC] proceeds by suit, then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits.... [T] he power to sue... fully qualifies the [EEOC] to take precisely the action now taken by the Department of Justice.” Id., at 4081-4082. As we have said, the Department of Justice brought its suits in the name of the United States and without obtaining certification under Rule 23 — it did not sue as a representative of the persons aggrieved — and we must assume Congress’ familiarity with the procedure. It is clear that with the 1972 amendments Congress intended the EEOC to proceed in the same manner; and thus, given the context, it is similarly clear that the references in debate to “class” suits referred to the availability of relief and not the procedure that would be applicable in such actions.
Ill
It is also apparent that forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards but seemingly authorized by § 706 (f) (1). The undesirability of doing either supports our conclusion that the procedural requirements of the Rule do not apply.
A
Rule 23 (a), see n. 3, supra, imposes the prerequisites of numerosity, commonality, typicality, and adequacy of representation. When considered in the light of these requirements, it is clear that the Rule was not designed to apply to EEOC actions brought in its own name for the enforcement of federal law. Some of the obvious and more severe problems are worth noting.
The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations. Title VII, however, applies to employers with as few as 15 employees. When judged by the size of the putative class in various cases in which certification has been denied, this minimum would be too small to meet the numerosity requirement. In such cases, applying Rule 23 would require the EEOC to join all aggrieved parties despite its statutory authority to proceed solely in its own name.
The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff’s claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party’s stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable. See, e. g., EEOC v. General Electric Co., 532 F. 2d 359, 366 (CA4 1976); EEOC v. McLean Trucking Co., 525 F. 2d 1007, 1010 (CA6 1975). The latter approach is far more consistent with the EEOC’s role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.
We note finally that the adequate-representation requirement is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class. In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes. But unlike the Rule 23 class representative, the EEOC is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged. The individual victim is given his right to intervene for this very reason. The EEOC exists to advance the public interest in preventing and remedying employment discrimination, and it does so in part by making the hard choices where conflicts of interest exist. We are reluctant, absent clear congressional guidance, to subject §706 (f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute.
B
We observe that General Telephone does not urge application of Rule 23 to EEOC enforcement actions in the expectation or hope that the agency could not comply and would be forced to drop its action against General Telephone. Indeed, petitioners urge that the EEOC, in proper cases, would be able to meet the Rule 23 requirements. Brief for Petitioners 16-22. As we understand, petitioners’ objective in seeking to invoke Rule 23 is aimed at securing a judgment in the EEOC’s suit that will be binding upon all individuals with similar grievances in the class or subclasses that might be certified. We are sensitive to the importance of the res judicata aspects of Rule 23 judgments, but we are not free to depart from what we believe the statutory design to be.
We have noted in a related context the interface between employment discrimination remedies under a collective-bargaining agreement and those under Title VII. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), held that the employee did not forfeit Title VII relief by invoking the grievance and arbitration procedures under the collective-bargaining contract. We noted that "federal courts have been assigned plenary powers to secure compliance with Title VII.” Id., at 45. Similarly, the courts retain remedial powers under Title VII despite a finding by the EEOC of no reasonable cause to believe that Title VII has been violated. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 798-799 (1973). We have also stressed the strong congressional intent to provide “make whole” relief to Title VII claimants: “ ‘The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible....’ 118 Cong. Rec. 7168 (1972).” Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975).
The 1972 amendments retained the private right of action as “an essential means of obtaining judicial enforcement of Title VII,” Alexander v. Gardner-Denver Co., supra, at 45, while also giving the EEOC broad enforcement powers. In light of the “general intent to accord parallel or overlapping remedies against discrimination,” 415 U. S., at 47, we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all “class” members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved. Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 (1977).
The courts, however, are not powerless to prevent undue hardship to the defendant and should perform accordingly. The employer may, by discovery and other pretrial proceedings, determine the nature and extent of the claims that the EEOC intends to pursue against it. Here, as we have noted, the EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof. It also goes without saying that the courts can and should preclude double recovery by an individual. Cf. Alexander v. Gardner-Denver Co., supra, at 51, n. 14. Also, where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action. The Title VII remedy is an equitable one; a court of equity should adjust the relief accordingly.
IV
We hold, therefore, that the EEOC may maintain its § 706 civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23. The judgment of the Ninth Circuit is accordingly
Affirmed.
The Chief Justice, Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens, for the reasons that are well stated by the Court of Appeals for the Fifth Circuit in EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978), would reverse the judgment in this case.
The Fifth Circuit previously addressed this same issue and held that certification was required. EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978). The District Courts have decided the issue both ways.
Section 706 (f)(1) provides in pertinent part:
“If within thirty days after a charge is filed with the Commission..., the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge.... The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission.... If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.”
Rule 23 provides in pertinent part:
“(a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
"(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) the prosecution of separate actions by or against individual members of the class would create a risk of
“(A) inconsistent or varying adjudications' with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appel1_2_3
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
PLUMBERS & FITTERS, LOCAL 761, Appellant, v. MATT J. ZAICH CONSTRUCTION CO., Appellee.
No. 22566.
United States Court of Appeals Ninth Circuit.
Dec. 5, 1969.
Albert Brundage (argued), of Brundage & Hackler, Julius Reich, Paul Crost, Los Angeles, Cal., for appellant.
Darrell P. McCrory (argued), of Monteleone & McCrory, Los Angeles, Cal., for appellee.
Before CHAMBERS, MERRILL and ELY, Circuit Judges.
ELY, Circuit Judge.
Appellee Zaich Construction, plaintiff below, sued the appellant union (Plumbers) under section 303(a) of the Taft-Hartley Act, 29 U.S.C. § 187(a). The action was based on alleged unfair labor practices in the form of unlawful picketing. The District Court’s judgment awarded money damages, including attorneys’ fees, and Plumbers appeals.
Zaich Construction Co. and Zaich Co. are two separate corporations owned by one Matt J. Zaich. Both are engaged in the construction business and specialize in “underground engineering.” Zaich Construction, through its membership in Associated General Contractors, an employers’ trade association, had a collective bargaining agreement with the Laborers’ Union (Laborers). Zaich Co. was a member of the Underground Engineering Contractors Assn., through which it had agreements with both Laborers and appellant Plumbers. Zaich Construction’s contract with Laborers contained no arbitration clause, but Zaich Co.’s contracts with both unions provided for arbitration of all disputes by the National Joint Board for the Settlement of Jurisdictional Disputes in the Construction Industry (NJB).
In July 196.2 Zaich Construction commenced work involving the laying of pipe for a particular water project. Early in the next month, August, Plumbers sought a contract with Zaich Construction under which Plumbers’ members would be employed on the job, but the company refused to sign an agreement. Although Plumbers then picketed the job site, it failed to achieve its objective through that means. Plumbers then submitted the dispute to the NJB, attempting to invoke that body’s jurisdiction under Plumbers’ contract with Zaich Co.
NJB notified Zaich Construction and Laborers that the dispute had been submitted for its determination. Zaich Construction and Laborers both notified the NJB that they would not be bound by arbitration because their contract did not provide for it. The arbitrator proceeded to a determination that Plumbers was entitled to the job, but Zaich Construction refused to comply with the order. Plumbers picketed the job site in November 1962, and a work stoppage occurred. In December following, the Regional Director of the NLRB petitioned the District Court for an injunction against the. picketing, which was granted. See 29 U.S.C. § 160 (Z). The NLRB then conducted a hearing under § 10 (k), 29 U.S.C. § 160(k) and determined, in August 1963, that Laborers, not Plumbers, was the proper union whose members should be employed on the job.
Plumbers respected the Board’s determination that it had no right to a contract on the job, but in November 1963 Zaich Construction filed its suit, basing its claim on the picketing*’that had occurred before the NLRB proceedings. In this appeal, Plumbers contends (1) that there could be no violation of § 8(b) (4) (D) absent its refusal to obey an order of the NLRB, (2) that the District Court should have pierced the corporate veils and treated Zaich Co. and Zaich Construction as one employer, and (3) that attorneys’ fees were improperly awarded. We discuss the contentions seriatim.
(1) Need for prior NLRB determination.
As before stated, appellee brought its action under section 303 of the Taft-Hartley Act, which provides relief by way of money damages for anyone injured by an unfair labor practice described in section 8(b) (4). Section 8(b) (4) describes four purposes for which a union cannot strike or picket. Jurisdictional disputes are included in the description in section 8(b) (4) (D), with the result that money damages are recoverable by an employer or other person who is injured by the activities of a union in a jurisdictional dispute.
Plumbers argues that the money damages authorized under section 303 cannot be recovered unless the NLRB has first determined that a union’s conduct constitutes an unfair labor practice under section 8(b) (4) (D) and the union has then violated the Board’s order. This argument is based on the last sentence of section 10(k), which reads:
“Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.”
The contention is that there can be no unfair labor practice under section 8(b) (4) (D) if the parties comply with the decision of the Board. This argument would equate the “charge” referred to in section 10 (k) with any action brought by a private party, although the literal language of the statute refers only to charges brought before the Board.
This specific contention was rejected by the Supreme Court in International Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952). The Court held that actions under section 303 were not dependent on prior administrative determinations, despite the statutory scheme which is provided for the determination of jurisdictional disputes. The Court noted that section 303 contained no provision indicating a need for administrative determination and that the special hearing provided for in section 10 (k) simply constituted a means of settling the underlying dispute if the parties were unable to do so voluntarily. Under this rationale, the section 303 remedy remains separate and independent of the section 10 (k) & (Z) provisions for settlement. The policy underlying this decision is crystal clear: Unions should not be permitted to injure employers as they pursue their inter-union squabbles. If possible, the dispute should be arbitrated; if the outside union has no contract requiring arbitration, then it should petition the Board in a representational action under section 8(a) (3).
Appellant contends that Juneau Spruce was overruled by Congress when section 303 was amended in 1959. At the time of the Juneau Spruce decision, each of the unfair labor practices of section 8(b) (4) was spelled out in section 303 for purposes of money damages. In 1959 section 303 was amended so that the unfair practices covered were incorporated into section 303 by reference to section 8(b) (4). Plumbers argues that this change was designed to make it clear that the entire statutory machinery for settlement of jurisdictional disputes under 8(b) (4) was to be incorporated into section 303 along with the substantive definition.
This argument has been presented and rejected in at least one case since the amendment of the statute. In Public Constructors, Inc. v. Electrical Workers, Local 400, 55 CCH Lab.Cas. ¶ 11,883 (D.N.J.1967), an employer brought an action under section 303 for damages incurred as a result of a jurisdictional dispute. The unions argued that the 1959 statutory amendment Undermined the decision in Juneau Spruce and established that a prior determination by the NLRB was a prerequisite to a lawsuit under section 303. The New Jersey District Court answered,
“We compliment the defendants on the ingenuity of their argument; however, we reject it. In arriving at our decision, we find it most significant that there is nothing in the legislative history accompanying the 1959 amendment which supports defendants’ contention. If Congress had intended to legislatively overrule the Juneau case, we are confident that they would have so indicated. In the face of a silent record, we will not attribute to Congress an intent to reinterpret section 303 by such subtle means.”
Id. at 18,894.
We have likewise searched the legislative history of the 1959 amendment in vain for any indication that Congress intended anything beyond a “scrivener’s preference for abbreviated language.” See id. at 18,894; 1959 U. S.Code Congressional and Administrative News, p. 2138 et seq. Therefore, we hold that it was not necessary that the union must have violated an NLRB order before the employer was entitled to institute, and successfully maintain, its suit for damages under section 303.
(2) Piercing the corporate veil.
Appellant next contends that Zaich Construction Co. was the alter ego of Matt J. Zaich and Zaich Co. and that Zaich Construction should thus be bound by the arbitration clauses in the contracts that Zaich Co. had with both unions. We reject Plumbers’ argument principally because we are not convinced that piercing the corporate veil would be appropriate for the purpose of enforcing an arbitration provision in one corporation’s contract against the second corporation. Moreover, in the circumstances of this case, we are not prepared to overturn the District Court’s finding that neither corporation was the alter ego of the other.
The threshold question of whether piercing would be proper for the purpose intended is rarely articulated with any clarity. In principle, however, the disregarding of the corporate form of business should not rest on the manner of doing business in general but should rest on the effect that the manner of doing business has on the particular transaction involved. See, e.g., Oppenheim, The Close Corporation in California — Necessity of Separate Treatment, 12 Hastings L.J. 227, 231 (1961) and authorities therein cited and discussed. Generally speaking, the doctrine is designed to prevent a person from doing injury and then escaping responsibility by hiding behind a corporate shield.
Piercing the corporate veils here would require the determination that the separate corporations were designed to avoid an obligation to assign work or an obligation to arbitrate the jurisdictional dispute. Rather than proving an intent on the part of the employer to avoid such obligations, Plumbers proved that the corporate structure was designed for tax purposes. The contractual relationships were thus an offshoot of the employers’ pre-determined corporate structure. At least to some extent, the contracts were dictated by the fact that Zaich Construction was ineligible for membership in the Underground Engineering Contractors’ Association.
The District Court found as a fact that the two corporations were separate entities. We are not compelled on this record to disturb this finding, especially in light of Plumbers’ own conduct. Plumbers was fully aware of the corporate structure and was, of course, at liberty to bargain and organize within the Zaich structure as it stood. There was no evidence of misrepresentation by appellee of or acts on its part which might have justified application of any principle of estoppel against it. Plumbers apparently did not seek either NLRB certification as the bargaining representative of appellee’s employees nor did it seek judicial compulsion of arbitration. After this dispute arose, Plumbers did seek to negotiate a contract with appellee, apparently recognizing the separate character of the two corporations. All of these factors, when considered with the deference which should be accorded the determination of the District Court and a similar finding by the NLRB, convince us that the conclusion of the District Court on the point under discussion was not clearly erroneous.
(3) Attorneys’ Fees.
The District Court awarded damages to Zaieh Construction in the sum of $19,443.96. The judgment is affirmed as to $15,126.75, the sum awarded as general damages.
The balance of the judgment, some $4,317.21, was attributed to “Legal fees for injunction matters.” Plumbers contests the award of legal fees on the grounds that the unfair labor practice charges were filed by an employers’ association, that the section 10 (Z) injunction was actually secured by the Government, and that the section 10 (k) proceedings before the Board do not give rise to recoverable attorneys’ fees. Finally, Plumbers contends that since the proof did not show how much of the total attorneys’ fees were attributable to each segment of the controversy, then none of the fees should be allowed as damages.
We agree with Plumbers that when it is possible to prove damages by definite calculation, they should be proved in detail. Christiansen v. Mechanical Contractors Bid Depository, 230 F.Supp. 186, 194 (D.Utah 1964). Cf. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S. Ct. 248, 75 L.Ed. 544 (1932). We do not agree, however, that failure to particularize the elements of damages should lead to entire disallowance of the claim.
Our court has held that when damages are claimed for several distinct elements and the trial court has made a lump sum award, the case should be remanded for supplemental findings of fact on the issue of damages. Carpenters Local 1273 of United Brotherhood of Carpenters and Joiners of America v. Hill, 398 F.2d 360 (9th Cir. 1968). In that case, the lump sum was less than the total of each of the claimed elements of damages so that we had no adequate basis for review as to each element. Here, the award was equal to that claimed, but there is nothing which reveals a specified amount attributable to each element.
Accordingly, we remand to the District Court for supplemental findings of fact on the issue of damages. The parties may be able to reach a stipulated breakdown of the claimed attorneys’ fees. On the other hand, an evidentiary hearing may be required. In any event, we cannot resolve the attorneys’ fee problem without more detailed findings of fact as to the specific elements of the attorneys’ fees. If the District Court again awards attorneys’ fees, and if the amount of the award varies from the amount specified in the judgment now before us, an amended judgment must, of course, be entered.
Following entry of the supplemental findings and amended judgment, if any, the cause shall be transferred to this court, together with a supplemental transcript. The parties shall, within twenty days thereafter, file simultaneous supplemental briefs on the question of attorneys’ fees and the matter will be reviewed on the present record as so supplemented, without further oral argument. Should an amended judgment award damages less than the original $4,317.21 figure, the present appellee may take a cross-appeal, which will be consolidated with this appeal and heard on the present and supplemented record as described above. Cf. Carpenters Local 1273 of United Brotherhood of Carpenters and Joiners of America v. Hill, 398 F.2d 360 (9th Cir. 1968).
Affirmed in part; Remanded for limited proceedings.
. In its brief, Plumbers makes the assertion, not challenged by appellee, that “This object [picketing to compel compliance with an arbitration award] is a legitimate one, and does not violate the Act. See Syracuse Supply Co., 139 N.L. R.B. 778, 780-81 (1962) ; Pacific Maritime Ass’n, 137 N.L.R.B. 119, 126 (1962).” In light of our disposition of the threshold question of piercing the corporate veil, it is unnecessary that we here express our analysis of the assertion. Interested readers are referred to Local 1976, United Brotherhood of Carpenters and Joiners of America v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) ; NLRB v. Longshoremen, Local 1291, 345 F.2d 4 (3d Cir. 1965) ; NLRB v. Operating Engineers, Local 825, 326 F.2d 213 (3d Cir. 1964) ; Bernstein, Nudging and Shoving All Parties to a Jurisdictional Dispute Into Arbitration, 78 Harv.L.Rev. 784 (1965) ; Bond, The Concurence Conundrum: The Overlapping Jurisdiction of Arbitration and the National Labor Relations Board, 42 S.Cal. L.Rev. 4 (1969).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_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.
UNITED STATES of America, Appellant, v. CROSLAND CONSTRUCTION COMPANY, Inc., Pacific Employers Insurance Company, and American Indemnity Company, Appellees.
No. 6891.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 18, 1954.
Decided Dec. 1, 1954.
Fred E. Youngman, Sp. Asst. to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and A. F. Prescott, Sp. Assts. to Atty. Gen., N. Welch Morrisette, Jr., U. S. Atty., and Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C., on the brief), for appellant.
Thomas E. McCutchen, Columbia, S. C., (Whaley & McCutchen and Hoover C. Blanton, Columbia, S. C., on the brief), for appellees Pacific Employers Ins. Co. and American Indemnity Co.
' Before PARKER, Chief Judge, SOP-ER, Circuit Judge, and THOMSEN, District Judge.
THOMSEN, District Judge.
The only question presented by this appeal is whether the sureties on a bond eonditiofied that “the principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in” a contract between the Crosland Construction Company, Inc. (the principal) and the Newberry County Memorial Hospital of Newberry, South Carolina (the obli-gee) for the construction of certain alterations and additions to said hospital, are liable to the United States under that bond for federal income withholding taxes under Sec. 1622 et seq., I.R.C., Title 26 U.S.C.A. and Federal Insurance Contributions Act taxes under Sec. 1400 et seq., I.R.C., which were deducted and withheld by the principal from wages paid to employees engaged in the performance of said contract, but not paid over to the Government as required by law.
Other claims in addition to the one pressed on this appeal were made against the principal and the sureties in the amended complaint filed by the Government in the district court. The sureties moved for an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard arguments based on the pleadings and affidavits submitted by the parties, and filed an opinion and order entering judgment in favor of the sureties. U. S. v. Crosland Construction Co., Inc., D.C., 120 F.Supp. 792. From that order and judgment the Government has appealed, but is pressing only the question stated above.
The parties do not contend that the language of the bond is extended or limited by any contract provision or statute. The question is simply whether the Government’s claim is covered by the terms of the bond, quoted above.
The relevant statutes and regulations are set out in the note below. From a consideration of all of them, we conclude, as did the majority of the Tenth Circuit in United States Fidelity & Guaranty Co. v. U. S., 201 F.2d 118:
“ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120.
That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S., 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312, in which it was held that the Government’s claim against the contractor for amounts withheld could not be set off against amounts due the contractor’s assignee because of the provision of the Assignment of Claims Act, 54 Stat. 1029, 31 U.S.C.A. § 203, that “ ‘such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.’ ” The Supreme Court said:
“The requirement that Graham withhold taxes from the ‘payment of wages’ to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code. Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham’s embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the withheld taxes which Graham held as trustee for the United States pursuant to § 3661 of the Code. Assignor Graham’s indebtedness to the United States arose, we think, ‘independently’ of the contract.” 345 U.S. at pages 645, 646, 73 S. Ct. at page 920.
We agree with the Fifth Circuit: “Though measured by the amount of wages, the money due the United States was owing as taxes and not as wages.” General Casualty Co. of America v. U. S., 205 F.2d at page 755. Such a claim is not covered by the bond in this case. The judgment of the District Court must be
Affirmed.
. There were two bonds given by the principal and the sureties to the obligee —one a performance- bond in the u-sual form, the other a payment bond conditioned as set out above. The perform-anee bond was involved in some of the ' questions discussed in the district court; the claim pressed on this appeal is under the payment bond.
. Internal Revenue Code of 1939, as amended, Title 26 U.S.C.A. § 35, 57 Stat. 126; § 322(a) (2), 58 Stat. 231; § 1400 et seq., 61 Stat. 793, 64 Stat. 477, esp. §§ 1401, 1402, 1427, 1430; § 1608, 53 Stat. 188; § 1622 et seq., 57 Stat. 126, 62 Stat. 110, 64 Stat. 906, esp. §§ 1622(a) (d) (e), 1623, 3627; § 3661, 53 Stat. 448. T. R. 116, See. 405.301. T.R. 128, Sec. 408.304.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
COMMISSIONER OF INTERNAL REVENUE v. BOLLINGER et al.
No. 86-1672.
Argued January 13, 1988
Decided March 22, 1988
Scalia, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case.
Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Durney, Deputy Solicitor General Lauber, Richard Farber, and Teresa E. McLaughlin.
Charles R. Hembree argued the cause for respondents. With him on the brief was Philip E. Wilson.
F. Kelleher Riess filed a brief for Gary R. Frink et al. as amici curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
Petitioner, the Commissioner of Internal Revenue, challenges a decision by the United States Court of Appeals for the Sixth Circuit holding that a corporation which held record title to real property as agent for the corporation’s shareholders was not the owner of the property for purposes of federal income taxation. 807 F. 2d 65 (1986). We granted certiorari, 482 U. S. 913 (1987), to resolve a conflict in the Courts of Appeals over the tax treatment of corporations purporting to be agents for their shareholders. Compare George v. Commissioner, 803 F. 2d 144, 148-149 (CA5 1986), cert. pending, No. 86-1152, with Frink v. Commissioner, 798 F. 2d 106, 109-110 (CA4 1986), cert. pending, No. 86-1151.
I
Respondent Jesse C. Bollinger, Jr., developed, either individually or in partnership with some or all of the other respondents, eight apartment complexes in Lexington, Kentucky. (For convenience we will refer to all the ventures as “partnerships.”) Bollinger initiated development of the first apartment complex, Creekside North Apartments, in 1968. The Massachusetts Mutual Life Insurance Company agreed to provide permanent financing by lending $1,075,000 to “the corporate nominee of Jesse C. Bollinger, Jr.” at an annual interest rate of eight percent, secured by a mortgage on the property and a personal guarantee from Bollinger. The loan commitment was structured in this fashion because Kentucky’s usury law at the time limited the annual interest rate for noncorporate borrowers to seven percent. Ky. Rev. Stat. §§360.010, 360.025 (1972). Lenders willing to provide money only at higher rates required the nominal debtor and record titleholder of mortgaged property to be a corporate nominee of the true owner and borrower. On October 14, 1968, Bollinger incorporated Creekside, Inc., under the laws of Kentucky; he was the only stockholder. The next day, Bollinger and Creekside, Inc., entered into a written agreement which provided that the corporation would hold title to the apartment complex as Bollinger’s agent for the sole purpose of securing financing, and would convey, assign, or encumber the property and disburse the proceeds thereof only as directed by Bollinger; that Creekside, Inc., had no obligation to maintain the property or assume any liability by reason of the execution of promissory notes or otherwise; and that Bollinger would indemnify and hold the corporation harmless from any liability it might sustain as his agent and nominee.
Having secured the commitment for permanent financing, Bollinger, acting through Creekside, Inc., borrowed the construction funds for the apartment complex from Citizens Fidelity Bank and Trust Company. Creekside, Inc., executed all necessary loan documents including the promissory note and mortgage, and transferred all loan proceeds to Bollinger’s individual construction account. Bollinger acted as general contractor for the construction, hired the necessary employees,‡ and paid the expenses out of the construction account. When construction was completed, Bollinger obtained, again through Creekside, Inc., permanent financing from Massachusetts Mutual Life in accordance with the earlier loan commitment. These loan proceeds were used to pay off the Citizens Fidelity construction loan. Bollinger hired a resident manager to rent the apartments, execute leases with tenants, collect and deposit the rents, and maintain operating records. The manager deposited all rental receipts into, and paid all operating expenses from, an operating account, which was first opened in the name of Creekside, Inc., but was later changed to “Creekside Apartments, a partnership.” The operation of Creekside North Apartments generated losses for the taxable years 1969, 1971, 1972,1973, and 1974, and ordinary income for the years 1970, 1975, 1976, and 1977. Throughout, the income and losses were reported by Bollinger on his individual income tax returns.
Following a substantially identical pattern, seven other apartment complexes were developed by respondents through seven separate partnerships. For each venture, a partnership executed a nominee agreement with Creekside, Inc., to obtain financing. (For one of the ventures, a different Kentucky corporation, Cloisters, Inc., in which Bollinger had a 50 percent interest, acted as the borrower and titleholder. For convenience, we will refer to both Creekside and Cloisters as “the corporation.”) The corporation transferred the construction loan proceeds to the partnership’s construction account, and the partnership hired a construction supervisor who oversaw construction. Upon completion of construction, each partnership actively managed its apartment complex, depositing all rental receipts into, and paying all expenses from, a separate partnership account for each apartment complex. The corporation had no assets, liabilities, employees, or bank accounts. In every case, the lenders regarded the partnership as the owner of the apartments and were aware that the corporation was acting as agent of the partnership in holding record title. The partnerships reported the income and losses generated by the apartment complexes on their partnership tax returns, and respondents reported their distributive share of the partnership income and losses on their individual tax returns.
The Commissioner of Internal Revenue disallowed the losses reported by respondents, on the ground that the standards set out in National Carbide Corp. v. Commissioner, 336 U. S. 422 (1949), were not met. The Commissioner contended that National Carbide required a corporation to have an arm’s-length relationship with its shareholders before it could be recognized as their agent. Although not all respondents were shareholders of the corporation, the Commissioner took the position that the funds the partnerships disbursed to pay expenses should be deemed contributions to the corporation’s capital, thereby making all respondents constructive stockholders. Since, in the Commissioner’s view, the corporation rather than its shareholders owned the real estate, any losses sustained by the ventures were attributable to the corporation and not respondents. Respondents sought a redetermination in the United States Tax Court. The Tax Court held that the corporation was the agent of the partnerships and should be disregarded for tax purposes. 48 TCM 1443 (1984), ¶ 84, 560 P-H Memo TC. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed. 807 F. 2d 65 (1986). We granted the Commissioner’s petition for certiorari.
II
For federal income tax purposes, gain or loss from the sale or use of property is attributable to the owner of the property. See Helvering v. Horst, 311 U. S. 112, 116-117 (1940); Blair v. Commissioner, 300 U. S. 5, 12 (1937); see also Commissioner v. Sunnen, 333 U. S. 591, 604 (1948). The problem we face here is that two different taxpayers can plausibly be regarded as the owner. Neither the Internal Revenue Code nor the regulations promulgated by the Secretary of the Treasury provide significant guidance as to which should be selected. It is common ground between the parties, however, that if a corporation holds title to property as agent for a partnership, then for tax purposes the partnership and not the corporation is the owner. Given agreement on that premise, one would suppose that there would be agreement upon the conclusion as well. For each of respondents’ apartment complexes, an agency agreement expressly provided that the corporation would “hold such property as nominee and agent for” the partnership, App. to Pet. for Cert. 21a, n. 4, and that the partnership would have sole control of and responsibility for the apartment complex. The partnership in each instance was identified as the principal and owner of the property during financing, construction, and operation. The lenders, contractors, managers, employees, and tenants — all who had contact with the development — knew that the corporation was merely the agent of the partnership, if they knew of the existence of the corporation at all. In each instance the relationship between the corporation and the partnership was, in both form and substance, an agency with the partnership as principal.
The Commissioner contends, however, that the normal indicia of agency cannot suffice for tax purposes when, as here, the alleged principals are the controlling shareholders of the alleged agent corporation. That, it asserts, would undermine the principle of Moline Properties v. Commissioner, 319 U. S. 436 (1943), which held that a corporation is a separate taxable entity even if it has only one shareholder who exercises total control over its affairs. Obviously, Moline’s separate-entity principle would be significantly compromised if shareholders of closely held corporations could, by clothing the corporation with some attributes of agency with respect to particular assets, leave themselves free at the end of the tax year to make a claim — perhaps even a good-faith claim— of either agent or owner status, depending upon which choice turns out to minimize their tax liability. The Commissioner does not have the resources to audit and litigate the many cases in which agency status could be thought debatable. "Hence, the Commissioner argues, in this shareholder context he can reasonably demand that the taxpayer meet a prophylactically clear test of agency.
We agree with that principle, but the question remains whether the test the Commissioner proposes is appropriate. The parties have debated at length the significance of our opinion in National Carbide Corp. v. Commissioner, supra. In that case, three corporations that were wholly owned subsidiaries of another corporation agreed to operate their production plants as “agents” for the parent, transferring to it all profits except for a nominal sum. The subsidiaries reported as gross income only this sum, but the Commissioner concluded that they should be taxed on the entirety of the profits because they were not really agents. We agreed, reasoning first, that the mere fact of the parent’s control over the subsidiaries did not establish the existence of an agency, since such control is typical of all shareholder-corporation relationships, id., at 429-434; and second, that the agreements to pay the parent all profits above a nominal amount were not determinative since income must be taxed to those who actually earn it without regard to anticipatory assignment, id., at 435-436. We acknowledged, however, that there was such a thing as “a true corporate agent... of [an] owner-principal,” id., at 437, and proceeded to set forth four indicia and two requirements of such status, the sum of which has become known in the lore of federal income tax law as the “six National Carbide factors”:
“[1] Whether the corporation operates in the name and for the account of the principal, [2] binds the principal by its actions, [3] transmits money received to the principal, and [4] whether receipt of income is attributable to the services of employees of the principal and to assets belonging to the principal are some of the relevant considerations in determining whether a true agency exists. [5] If the corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. [6] Its business purpose must be the carrying on of the normal duties of an agent.” Ibid, (footnotes omitted).
We readily discerned that these factors led to a conclusion of nonagency in National Carbide itself. There each subsidiary had represented to its customers that it (not the parent) was the company manufacturing and selling its products; each had sought to shield the parent from service of legal process; and the operations had used thousands of the subsidiaries’ employees and nearly $20 million worth of property and equipment listed as assets on the subsidiaries’ books. Id., at 425, 434, 438, and n. 21.
The Commissioner contends that the last two National Carbide factors are not satisfied in the present case. To take the last first: The Commissioner argues that here the corporation’s business purpose with respect to the property at issue was not “the carrying on of the normal duties of an agent,” since it was acting not as the agent but rather as the owner of the property for purposes of Kentucky’s usury law. We do not agree. It assuredly was not acting as the owner in fact, since respondents represented themselves as the principals to all parties concerned with the loans. Indeed, it was the lenders themselves who required the use of a corporate nominee. Nor does it make any sense to adopt a contrary-to-fact legal presumption that the corporation was the principal, imposing a federal tax sanction for the apparent evasion of Kentucky’s usury law. To begin with, the Commissioner has not established that these transactions were an evasion. Respondents assert without contradiction that use of agency arrangements in order to permit higher interest was common practice, and it is by no means clear that the practice violated the spirit of the Kentucky law, much less its letter. It might well be thought that the borrower does not generally require usury protection in a transaction sophisticated enough to employ a corporate agent — assuredly not the normal modus operandi of the loan shark. That the statute positively envisioned corporate nominees is suggested by a provision which forbids charging the higher corporate interest rates “to a corporation, the principal asset of which shall be the ownership of a one (1) or two (2) family dwelling,” Ky. Rev. Stat. §360.025(2) (1987) — which would seem to prevent use of the nominee device for ordinary home-mortgage loans. In any event, even if the transaction did run afoul of the usury law, Kentucky, like most States, regards only the lender as the usurer, and the borrower as the victim. See Ky. Rev. Stat. § 360.020 (1987) (lender liable to borrower for civil penalty), § 360.990 (lender guilty of misdemeanor). Since the Kentucky statute imposed no penalties upon the borrower for allowing himself to be victimized, nor treated him as in pari delicto, but to the contrary enabled him to pay back the principal without any interest, and to sue for double the amount of interest already paid (plus attorney’s fees), see Ky. Rev. Stat. § 360.020 (1972), the United States would hardly be vindicating Kentucky law by depriving the usury victim of tax advantages he would otherwise enjoy. In sum, we see no basis in either fact or policy for holding that the corporation was the principal because of the nature of its participation in the loans.
Of more general importance is the Commissioner’s contention that the arrangements here violate the fifth National Carbide factor — that the corporate agent’s “relations with its principal must not be dependent upon the. fact that it is owned by the principal.” The Commissioner asserts that this cannot be satisfied unless the corporate agent and its shareholder principal have an “arm’s-length relationship” that includes the payment of a fee for agency services. The meaning of National Carbide’s fifth factor is, at the risk of understatement, not entirely clear. Ultimately, the relations between a corporate agent and its owner-principal are always dependent upon the fact of ownership, in that the owner can cause the relations to be altered or terminated at any time. Plainly that is not what was meant, since on that interpretation all subsidiary-parent agencies would be invalid for tax purposes, a position which the National Carbide opinion specifically disavowed. We think the fifth National Carbide factor — so much more abstract than the others — was no more and no less than a generalized statement of the concern, expressed earlier in our own discussion, that the separate-entity doctrine of Moline not be subverted.
In any case, we decline to parse the text of National Carbide as though that were itself the governing statute. As noted earlier, it is uncontested -that the law attributes tax consequences of property held by a genuine agent to the principal; and we agree that it is reasonable for the Commissioner to demand unequivocal evidence of genuineness in the corporation-shareholder context, in order to prevent evasion of Moline. We see no basis, however, for holding that unequivocal evidence can only consist of the rigid requirements (arm’s-length dealing plus agency fee) that the Commissioner suggests. Neither of those is demanded by the law of agency, which permits agents to be unpaid family members, friends, or associates. See Restatement (Second) of Agency §§ 16, 21, 22 (1958). It seems to us that the genuineness of the agency relationship is adequately assured, and tax-avoiding manipulation adequately avoided, when the.fact that the corporation is acting as agent for its shareholders with respect to a particular asset is set forth in a written agreement at the time the asset is acquired, the corporation functions as agent and not principal with respect to the asset for all purposes, and the corporation is held out as the agent and not principal in all dealings with third parties relating to the asset. Since these requirements were met here, the judgment of the Court of Appeals is
Affirmed.
Justice Kennedy took no part in the consideration or decision of this case.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Nicholas Anthony MOCCIA, Defendant, Appellant.
No. 81-1532.
United States Court of Appeals, First Circuit.
Argued April 9, 1982.
Decided June 16, 1982.
John A. Macoul, Lawrence, Mass., by appointment of the Court, for appellant.
Helen J. Forsyth, Asst. U. S. Atty., Concord, N. H., with whom W. Stephen Thayer, III, U. S. Atty., Concord, N. H., was on brief, for appellee.
Before CAMPBELL, BOWNES, and BREYER, Circuit Judges.
BREYER, Circuit Judge.
Defendant/appellant Nicholas Moccia was convicted of possessing two drugs— marijuana and diethylpropion — with intent to distribute. 21 U.S.C. §§ 812 (Schedule I(c)(10)), 841; 21 C.F.R. § 1308.14(e)(1) (1981). He was sentenced under the “Dangerous Special Drug Offender” statute, 21 U.S.C. § 849, to two concurrent fifteen-year terms. He attacks his conviction and sentence on several grounds. In our view, both must stand.
1. Defendant’s first claim is that the trial court erred in allowing the Government to tell the jury that he had previously been convicted in state court for possession of marijuana. The relevant federal rule of evidence is 404(b), which states,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This rule codifies the common law doctrine forbidding the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged. Although this “propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance. 2 Weinstein’s Evidence ¶ 404[04] at 404-26 (1980); Note, Procedural Protections of the Criminal Defendant — A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crimes, 78 Harv.L.Rev. 426, 436 (1964). Where the evidence has some “special” probative value, however, — where, for example, it is relevant to something other than mere “character” or “propensity,” — it “may” be admitted. The trial judge then must weigh the special relevance against the prejudicial risk, taking into account the likely hostile jury reaction that underlies the common law rule. United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); 2 Weinstein’s Evidence §§ 404[08], 404[18]. See also United States v. Byrd, 352 F.2d 570, 574-75 (2d Cir. 1965) (Friendly, J.).
In this case there was a “special” factor making the past conviction more than an effort to produce a “bad character/propensity” chain of inference. Evidence was introduced showing that federal agents had found marijuana and diethylpropion buried under some dog food in the freezer room of the farmhouse where defendant lived with his wife (the owner). Bags of marijuana were also found in the barn under a chicken coop. While defendant offered to stipulate that he knew marijuana and diethylpropion were “controlled” substances, and that whatever he did, he did “knowingly” and “intentionally,” cf. United States v. Mohel, 604 F.2d 748 (2d Cir. 1979), he would not stipulate that he knew the drugs were in the freezer room or under the chicken coop. By introducing the past conviction, the Government thus, in part, sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction.
Such an inference would not have been difficult to draw. The jury might have thought a past possessor is more likely to associate with those who use and keep and talk freely about nearby marijuana; it might have thought a past possessor is more likely to spot marijuana under a chicken coop; it might have thought a past possessor is less likely to throw away marijuana if he comes across it. None of these inferences — all supporting a conclusion of “knowledge” — depends entirely upon the “bad character/propensity” chain of reasoning. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). Cf. United States v. Merryman, 630 F.2d 780, 786 (10th Cir. 1980). But see United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Thus, they escape the absolute bar of the Rule’s first sentence.
The question of balancing relevance and risk is more difficult, but we believe that the trial court acted within its discretion. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); 2 Weinstein’s Evidence ¶ 404[18] at 404-110 & n.16. On the one hand, the court refused to allow the Government to do more than simply read the prior charge. It instructed the jury to consider the conviction only for its tendency to show knowledge or intent and to ignore whatever light it shed on character or propensity. And the prior conviction (for possession of “more than one pound” of marijuana) was not for a shocking or heinous crime likely to inflame the jury.
On the other hand, there was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed. Drug-related equipment was found in public rooms on the farm. Large amounts of cash were found in the defendant’s room. The defendant and his wife sold the farm and fled from New Hampshire one month before they were initially to be tried (four years ago). And, the defendant had made two highly incriminating admissions: the day of the search he told one of the agents that they should have waited a few days to raid the farm as the Mexican crop had not yet been harvested. The next day he told two deputy marshals (in their words) that the Government
really blew it. I was going to get two tons of marijuana. In fact, I was talking to the guy on the phone when you raided the place.... I really needed the two tons to get out of the hole, . .. but after this, ... I’ll never hear from the guy again.
In the face of this evidence, the defense presented no witnesses.
While all this evidence lessened the need for introducing the prior conviction, it also lessened the likelihood of any prejudicial effect — to the point where, even were we to find the evidence inadmissible (which we do not), the error would have been harmless. See United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978); 2 Weinstein’s Evidence ¶ 404[18] at 404-111 & n.19.
2. Defendant complains of the trial judge’s instruction that the jury not consider any lesser included offenses “until or unless you have arrived at a reasonable doubt on the offenses charged.” Defendant does not complain about the well-established rule that a jury is to consider lesser included offenses only after a determination of “not guilty” is reached on the primary charge. See 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 58.15. Rather, he states that this charge somehow implied that the defendant had the burden of coming forward with evidence that would lead the jury to find a reasonable doubt. He claims the charge implied to the jury that “reasonable doubt” had to be created instead of existing from the outset.
We disagree. At the end of the trial, the judge charged the jury as follows:
Consider ... whether the government has sustained its burden of proving beyond a reasonable doubt each offense of possession with intent to distribute with which [Moccia] is charged.
If you find that such burden has been sustained, that is the end of the case as to him. You will have established his guilt as to such offense or offenses. If, however, you find that a reasonable doubt exists as to either or both of such offenses, you must then turn to the issue of whether he is guilty of the lesser included offenses of possession of controlled substances, and here again must consider whether the government has sustained its burden of proof beyond a reasonable doubt as to each of the elements of those offenses. If it has, then he is guilty of the lesser included offense. If it has not, then you must find him not guilty.
The judge then gave the challenged instruction:
I caution you do not turn to the lesser included offense until or unless you have arrived at a reasonable doubt on the offenses charged, that is, possession with intent to distribute.
Taken as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Thomann, 609 F.2d 560, 565-66 (1st Cir. 1979), this charge certainly seems adequate as to the burden of proof on “reasonable doubt.” Moreover, the judge properly charged the jury several different times as to “reasonable doubt” and “presumptions of innocence.” We find no violation of “due process” or “fair treatment,” In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970), or any other basis for complaint.
3. Finally, defendant makes three arguments attacking the “enhanced” fifteen-year concurrent sentences he received as a “dangerous special” drug offender under 21 U.S.C. § 849. First, he claims that at his “enhancement” hearing, the trial judge should not have considered hearsay evidence, evidence derived from “illegal” wiretaps, and evidence not specified in the notice that the statute requires the Government to give prior to trial, 21 U.S.C. § 849(a). The short and conclusive answer to these objections is that the Comprehensive Drug Abuse Prevention and Control Act (of which § 849 is a part) specifically states that,
no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purposes of imposing an appropriate sentence. ...
21 U.S.C. § 850. This provision codifies the principle that when setting a sentence, a judge can consider a virtually unrestricted range of information, see United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978), including hearsay, United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), other information that might be inadmissible at trial, United States v. Williamson, 567 F.2d 610, 615 (4th Cir. 1977), and evidence not specified in a § 849(a) pretrial notice. See United States v. Ilacqua, 562 F.2d 399, 403 (6th Cir. 1977), cert. denied, 435 U.S. 906, 917, 947, 98 S.Ct. 1453, 1473, 1532, 55 L.Ed.2d 497, 508, 545 (1978). We see no reason to depart from this rule in the case of wiretap evidence where, as here, attacks on that evidence have been raised and rejected in a prior criminal prosecution in state court.
Second, defendant claims the Government failed to show that he is both “special” and “dangerous” by a “preponderance of the information.” See United States v. Sutton, 415 F.Supp. 1323, 1325-27 (D.D.C.1976); 21 U.S.C. § 849(b). Again, we disagree. In showing that defendant was “special,” the Government produced evidence that he was a “professional,” United States v. Sutton, 415 F.Supp. at 1325, which is to say that his offenses were committed
as a part of a pattern of dealing in controlled substances which was criminal under applicable laws of any jurisdiction,
which constituted a substantial source of his income, and
in which he manifested special skill or expertise; .. .
21 U.S.C. § 849(e)(2). The “pattern” was evidenced by the fact that only a year previously defendant had been found in the same place, -with the same “farmhands,” and with 740 pounds of marijuana. State v. Moccia, 119 N.H. 169, 400 A.2d 44 (1979); 21 U.S.C. § 849(e). That defendant’s drug sales provided a “substantial source of his income” was shown by the tax court’s decision in Moccia v. Commissioner, No. 708-78 (June 4, 1979) and by his 1976 tax return. The decision indicates that defendant’s drug profits amounted to several hundred thousand dollars in 1976 — far more than the 50 percent of declared income ($30,000) that the statute requires. 21 U.S.C. § 849(e). Defendant argues that the tax court’s decision rests upon unlawful wiretap evidence. No policy of the law, however, requires us to go behind that decision to examine its evidentiary basis where the decision itself was used only for sentencing purposes, and where, in any event, defendant’s attacks on the wiretap evidence have been heard, and rejected, by the New Hampshire courts. In any event, defendant’s claim that the income projections are unreliable because the wiretap lasted Only eleven days is frivolous. The projections imply that defendant’s drug profits exceeded the requisite $15,000 during just the period of the wiretap itself! Finally, defendant’s “special skill” was shown by his prior conviction, his flight before trial, and this same wiretap evidence (which revealed that defendant was in charge of a good-sized operation, and that he described himself as a “dealer’s dealer”). In sum, the trial judge’s finding that defendant was “special” was adequately supported by the evidence, which the judge identified in the record as the statute requires. 21 U.S.C. § 849(b).
The statute’s special definition of “dangerous” requires that the judge find that
a period of confinement longer than that provided for [the] felonious violation [in question] is required for the protection of the public from further criminal conduct by the defendant.
21 U.S.C. § 849(f). In our view, the judge’s finding that defendant was “special” was also adequate to support a finding of “dangerous.”
Third, defendant claims that his sentence is disproportionately severe. 21 U.S.C. § 849(b). We note that there are certain mitigating factors in defendant’s background. Nonetheless, the fifteen-year sentence is considerably less than the twenty-five years the Government sought. It is seven years more than the sentence he might have been given were he not a “special” and “dangerous” offender. See 21 U.S.C. § 841(b)(1)(B) and (b)(2). Yet, it is still only three years more than the sentence that might have been imposed had defendant’s earlier drug conviction been under federal rather than state law. See 21 U.S.C. § 841(b)(1)(B). The evidence, suggesting that he was a serious professional dealer, who repeated his crimes, and who fled the jurisdiction when caught, convinces us that this is not a case for interfering with the sentence.
In sum, we reject defendant’s arguments, and the conviction and sentence are
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-6
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - property disputes".
BECKER STEEL CO. OF AMERICA v. HICKS, Alien Property Custodian, et al.
No. 269.
Circuit Court of Appeals, Second Circuit.
July 17, 1933.
Townsend & Kindleberger, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant.
George Z. Medalie, U. S. Atty., of New York City, Roy St. Lewis, Asst. Atty. Gen., Philip M. Marcum, of New York City, Sp. Atty. in alien property matters, and Thomas E. Rhodes, Sp. Asst, to Atty. Gen., for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The bill of complaint in this suit, filed in 3922, charged that the Alien Property Custodian had improperly seized 2,500' shares of treasury stock of the Becker Steel- Company of America and sold it for $20,000. A decree was entered on August 21, 1925, adjudging that the shares were at the time of the seizure treasury stock belonging to the complainant Becker Steel Company of America and not subject to seizure and sale as the property of an alien, and decreeing that the defendants Frederick C. Hicks, as Alien Property Custodian, and Frank White, as Treasurer of the United States, pay to the complainant the sum of $20,000, being the amount of the proceeds of the sale of the slock. No appeal was taken from this decree. In October, 1925, the Treasurer of the United States paid to the Becker Steel Company $16,112.16, and the complainant, through its solicitors, gave a satisfaction of the decree and the complainant executed a release to Frank White as Treasurer of the United States and Frederick C. Hicks as Alien Property Custodian, as well as other ’public officials, which recited that, although the gross proceeds of the sale of the shares of stock was $20,000, that amount had been reduced by $3,887.84 through the necessary expense incurred in connection with the sale, leaving the net proceeds returnable to the complainant at $16,112.16.
Prior to the time of the receipt by Becker Steel Company of the cheek for $16,112.-16, its solicitors were informed that, unless the receipt and release as prepared were executed by it and the warrant for the satisfaction of the decree was executed by its solicitors, the cheek for $16,112.16 would not be paid over. The Alien Property Custodian did not have in his custody or control the sum of $20,000 when decreed to be paid by him, for expenses had been already paid out aggregating $3,887.84 in the trust. An account was rendered by the Alien Property Custodian’s office in September, 1931, showing that the expenses in connection with the appraisal, advertising and sale of the stock were the following:
Emery, Booth,'Janny & Varney.....$210.15
American Appraisal Co............ 375.00
Haskins & Sells Audit............. 60.00
Prank Presbrey Co., Advertising ... 311.99.
Prank Presbrey Co., Printing...... 624.33
R. H. Weller..................... 500.00
J. L. Lang....................... 968.75
W. E. Chilton, Leg. Ser.......... 500.00
E. N. Jones, Expenses............. 87.62
C. F. Diehey..................... 50.00
Dist. Nat! Bk. Wash. Dep. Pee .... 200.00
$3,887.84
None 'of the foregoing expenses was incurred or paid at the request of Becker Steel Company.
Frederick C. Hicks, who had been appointed to the office of Alien Property Custodian on April 10, 1925, died on December 14, 1925, and Howard Sutherland was appointed Alien Property Custodian on December 24, 1925. Frank White resigned and ceased to hold the office of Treasurer of the United States on April 30, 1928. He was succeeded in that office by H. T. Tate, who resigned in January, 1929, and on January 18, 1929, Walter O. Woods was appointed. More than six months elapsed between the appointment of Howard Sutherland and Walter O, Woods to their respective offices, of Alien Property Custodian and Treasurer of the United States and February 8,1932, when Becker Steel Company moved in this suit to substitute Howard Sutherland as Alien Property Custodian in the place of Frederick C. Hicks and Walter O. Woods as Treasurer of the United States in the place of Frank White and to require the Alien Property-Custodian to pay to the Becker Steel Company the sum of $3,887.64, with interest thereon from February 20, 1919.
At the time of the signing of the receipt and satisfaction, the Supreme Court had not rendered the decision in Henkels v. Miller, 271 U. S. 298, 46 S. Ct. 524, 70 L. Ed. 953, 51 A. L. R. 229, whereby interest was allowed upon property of American citizens seized by the Alien Property. Custodian under the Trading with the Enemy Act. After this decision, interest on the $16,112.16, amounting to $3,093.50, was paid to Becker Steel Company. On April 28, 1930, in Eseher v. Woods, 281 U. S. 379, 50 S. Ct. 337, 74 L. Ed. 918, the Supreme Court held that the Alien Property Custodian was not entitled to deduct from property mistakenly seized administration expenses not shown to have been incurred in respect to that particular property. Thereafter the motion was made in this suit to substitute Howard Sutherland as Alien Property Custodian in the place of Frederick C. Hicks, and Walter O. Woods as Treasurer of the United States in place of Frank White, and to recover the $3,887.64 of expenses withheld, with interest. Judge Goddard denied the motion on the ground that the time to bring in Howard Sutherland and Walter O. Woods had expired and because without such substitution no relief could be granted. From that decree this appeal is taken.
The survival of actions, suits, or proceedings is governed by the Act of Congress of February 13, 1925 (28 U. S. C. § 780 [28 USCA § 780]) which provides that:
“Where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, * * 81 and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.”
Paragraph 4 of Rule 19 of the Supreme Court of the United States (28 USCA § 354) likewiso deals with the survival of actions against officials, and provides that:
“Where a public officer, by or against whom a suit is brought, dies or ceases to hold the office while the suit is pending in a federal court, either of first instance or appellate, the matter of abatement and substitution is covered by section 11 of the Act of February 13, 1925 (§ 780 of this title). Under that section a substitution of the successor in office may be effected only where a satisfactory showing is made within six months after the death or separation from office.”
It seems unnecessary to discuss all the various objections leveled at Judge Goddard’s decree. It is enough that neither Howard Sutherland, the Alien Property Custodian, nor Walter O. Woods, the Treasurer of the United States, was made a party to this suit, and that the time within which either might be joined had expired prior to the making of the motion to bring them in. Obviously, whatever the merits of the controversy, no effective relief could be granted without their presence.
The correctness of the decree by the court below depends on whether the suit was “pending” when the motion for substitution was made. If it was, the motion came too late, because it was not made “within six months after * '* * (the) * * * separation from office” of the prior incumbents —the time limit which the statute prescribes if the suit is not to abate.
It is to be noticed that no cause of action is asserted against the officials, sought to be substituted, on any theory that they have funds in their possession belonging to the Becker Steel Company which they are wrongfully withholding. The proceeds of the stock sold by the former Alien Property Custodian to the extent of $16,112.16 was turned over to Becker Steel Company, and the remaining $3,887.84 was paid by the former Treasurer of the United States to third parties who performed services in connection with the sale by the Alien Property Custodian. Under such circumstances, recovery from any succeeding official would not be based upon his personal acts, but upon a responsibility imposed upon him in his official capacity for the acts of a predecessor.
Prior to 1899, an action against an officer of the United States as such abated on the ending of his term. Gorham Mfg. Co. v. Wendell, 261 U. S. 1, 43 S. Ct. 313, 67 L. Ed. 505; Irwin v. Wright, 258 U. S. 219, 42 S. Ct. 293, 66 L. Ed. 573; Le Crone v. McAdoo, 253 U. S. 217, 40 S. Ct. 510, 64 L. Ed. 869; Pullman Co. v. Croom, 231 U. S. 571, 34 S. Ct. 182, 58 L. Ed. 375; Murphy v. Utter, 186 U. S. 95, 22 S. Ct. 776, 46 L. Ed. 1070; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 18 S. Ct. 441, 42 L. Ed. 873; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 17 S. Ct. 225, 41 L. Ed. 621; The Secretary v. McGarrahan, 9 Wall. 298, 19 L. Ed. 579. To avoid the inconvenience and injustice often inherent in such a situation, Congress passed the Act of February 8, 1899 (chapter 121, 30 Stat. 822 [28 USCA § 780 note]), which was the forerunner of the Act of February 13, 1925 (chapter 229, § 11, 43 Stat. 941, 28 U. S. C. § 780 [28 USCA § 780]), governing the present ease. Under each of these statutes a showing of the need of the continuance of a suit ponding against a public official was required in order to revive or maintain it against his successor in office, and an application to continue it had to be made to the court within a specified time. The time (six months) had already elapsed in the case at bar when the motion was made before Judge Goddard.
Ample authority exists for holding that, though a Una] judgment has been entered, the cause is still pending until the judgment is satisfied. This is the general rule in New York and in many of the other states of the Union.
In New York, the Constitution of 1846 (article 14, § 5) provided that jurisdiction of all suits and proceedings pending in the Courts of Common Pleas should become vested in the Supreme Court. In Wegman v. Childs, 41 N. Y. 159, an action had been commenced in the Court of Common Pleas and had proceeded to judgment therein. After the Constitution of 1846 went into effect, proceedings supplementary to execution wore instituted in the Supreme Court, and a receiver in sequestration was appointed in that court who brought a suit to set aside a conveyance by the judgment debtor as a fraud upon the plaintiff. It was contended that the Supreme Court had no jurisdiction over the judgment and hence no control over the ancillary suit. But the New York Court of Appeals sustained the jurisdiction of the Supreme Court, and said that “the suit must be regarded as pending, whether the same has proceeded to final judgment or not, provided any further judicial action may be required in the suit.” It also remarked that in Suydam v. Holden, (Selden’s Notes of Cases in the Court of Appeals, No. 4, 16) it had already held that the Supreme Court had power under the, Constitution of 1846 to vacate the entry of satisfaction of a final decree of the former Court of Chancery entered on its record prior to 1846, on the return of an execution unsatisfied and to order'a new execution to be entered on the decree. In reaching its conclusion, the Court of Appeals followed the English decision of Howell v. Bowers, 2 C. M. & R. 621. There a judgment had been obtained in the Court of Great Sessions, but, before any execution had issued, an act of the British Parliament was passed transferring “all suits at law depending” in that court to the Court- of Exchequer. The suit was transferred and Baron Parke, speaking for the Court of Exchequer, said: “This court can interfere only in cases of depending suits, but all unsatisfied judgments are pending suits within the meaning of the act.”
In Mitchell & Rammelsburg Furniture Co. v. Sampson (C. C.) 40 F. 805, Judge Pardee, in construing the meaning of the word “pending” under a Louisiana statute providing for the transfer of causes from courts which had been superseded, held that it embraced proceedings to enforce a judgment rendered prior to a transfer. Various other courts have given the word the same interpretation. Ulshafer v. Stewart, 71 Pa. 170; Chapin v. James, 11 R. I. 86, 23 Am. Rep. 412; Scherrer v. Caneza, 33 La. Ann. 314; Mann v. Blount, 65 N. C. 99; O’Maley v. Reese, 1 Barb. (N. Y.) 643; Gates v. Newman, 18 Ind. App. 392, 46 N. E. 654; Ex parte Howland, 3 Old. Cr. 142, 104 P. 927, Ann. Cas. 1912A, 840; Sweetser v. Fox, 43 Utah, 40, 134 P. 599; 47 L. R. A. (N. S.) 145, Ann. Cas. 1916C, 620.
The appellant cites various decisions, such as Midkiff v. Colton (C. C. A.) 242 F. 373, in which actions that had gone to final judgment were not treated for certain purposes as “pending,” but we cannot see that the situation in any of them at all resembled the present. Since the passage of the acts of Congress allowing suits against public officials to be revived against their successors, it would seem quite unreasonable on the face of things that a judgment should be- unenforceable because an official has parted with his office. To carry forward' “pending” proceedings and yet to except the very step that renders them efficacious ignores realities. But for the statute (28 U. S. C. § 780 [28 USCA § 780]), the suit could not be revived at all. It is quite illogical for the complainant to seek a revivor and at the same time to neglect to take action within the time which the act of Congress prescribes.
The complainant has little grievance on the merits. Instead of litigating its rights, it settled with the Alien Property Custodian and waited for years before making its motion, hoping that the decision of the Supreme Court in Escher v. Woods, 281 U. S. 379, 50 S. Ct. 337, 74 L. Ed. 918, might apply to this ease.
We hold that this suit was “pending” until the judgment was satisfied, that under such circumstances it could only be maintained against the present officials if revived pursuant to statute, and that the time to effect a revivor had elapsed when the motion before Judge Goddard was made. His decree is accordingly affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
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sc_issuearea
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
UNITED STATES v. FORDICE, GOVERNOR OF MISSISSIPPI, et al.
No. 90-1205.
Argued November 13, 1991
Decided June 26, 1992
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, O’Connor, Kennedy, Souter, and Thomas, JJ., joined. O’Connor, J., post, p. 743, and Thomas, J., post, p. 745, filed concurring opinions. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 749.
Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Roger Clegg and Barbara S. Drake, Deputy Assistant Attorneys General, and Jeffrey R Minear. Alvin O. Chambliss, Jr., argued the cause for petitioners in No. 90-6588. With him on the briefs were Lawrence Young and Robert Pressman.
William F. Goodman, Jr., argued the cause for respondents in both cases. With him on the brief were Mike Moore, Attorney General of Mississippi, and Paul H. Stephenson III and William F. Ray, Special Assistant Attorneys General.
Together with No. 90-6588, Ayers et al. v. Fordice, Governor of Mississippi, et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the State of Tennessee by Charles W. Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Christine Modisher, Assistant Attorney General; for Alcorn State University by Gilbert Kujovich; for Jackson State University by Deborah McDonald and Carrol Rhodes; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius Le-Vonne Chambers, Charles Stephen Ralston, Norman J. Chachkin, John W. Garland, Janell M. Byrd, and John A Powell; and for the National Bar Association et al. by J. Clay Smith, Jr., and Herbert O. Reid, Sr.
Briefs of amici curiae urging affirmance were filed for the Board of Trustees of the University of Alabama by C. Glenn Powell and Stanley J. Murphy; and for Charles E. “Buddy” Roemer III, Governor of the State of Louisiana, et al. by John N. Kennedy, Joseph J. Levin, Jr., Margaret E. Woodward, and TK Shelby McKenzie.
Joseph A. Califano, Jr., pro se, and David S. Tatel filed a brief of amicus curiae for Joseph A. Califano, Jr., et al.
Justice White
delivered the opinion of the Court.
In 1954, this Court held that the concept of “ ‘separate but equal’ ” has no place in the field of public education. Brown v. Board of Education, 347 U. S. 483, 495 (Brown I). The following year, the Court ordered an end to segregated public education “with all deliberate speed.” Brown v. Board of Education, 349 U. S. 294, 301 (1955) (Brown II). Since these decisions, the Court has had many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary schools. In these cases we decide what standards to apply in determining whether the State of Mississippi has met this obligation in the university context.
I
Mississippi launched its public university system in 1848 by establishing the University of Mississippi, an institution dedicated to the higher education exclusively of white persons. In succeeding decades, the State erected additional postsecondary, single-race educational facilities. Alcorn State University opened its doors in 1871 as “an agricultural college for the education of Mississippi’s black youth.” Ayers v. Allain, 674 F. Supp. 1523, 1527 (ND Miss. 1987). Creation of four more exclusively white institutions followed: Mississippi State University (1880), Mississippi University for Women (1885), University of Southern Mississippi (1912), and Delta State University (1925). The State added two more solely black institutions in 1940 and 1950: in the former year, Jackson State University, which was charged with training “black teachers for the black public schools,” id., at 1528; and in the latter year, Mississippi Valley State University, whose functions were to educate teachers primarily for rural and elementary schools and to provide vocational instruction to black students.
Despite this Court’s decisions in Brown I and Brown II, Mississippi’s policy of de jure segregation continued. The first black student was not admitted to the University of Mississippi until 1962, and then only by court order. See Meredith v. Fair, 306 F. 2d 374 (CA5), cert. denied, 371 U. S. 828, enf’d, 313 F. 2d 532 (1962) (en bane) (per curiam). For the next 12 years the segregated public university system in the State remained largely intact. Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University each admitted at least one black student during these years, but the student composition of these institutions was still almost completely white. During this period, Jackson State and Mississippi Valley State were exclusively black; Alcorn State had admitted five white students by 1968.
In 1969, the United States Department of Health, Education and Welfare (HEW) initiated efforts to enforce Title VI of the Civil Rights Act of 1964, 42 U. S. C. §2000d. HEW requested that the State devise a plan to disestablish the formerly de jure segregated university system. In June 1973, the Board of Trustees of State Institutions of Higher Learning (Board) submitted a plan of compliance, which expressed the aims of improving educational opportunities for all Mississippi citizens by setting numerical goals on the enrollment of other-race students at state universities, hiring other-race faculty members, and instituting remedial programs and special recruitment efforts to achieve those goals. App. 898-900. HEW rejected this Plan as failing to comply with Title VI because it did not go far enough in the areas of student recruitment and enrollment, faculty hiring, elimination of unnecessary program duplication, and institutional funding practices to ensure that “a student’s choice of institution or campus, henceforth, will be based on other than racial criteria.” Id., at 205. The Board reluctantly offered amendments, prefacing its reform pledge to HEW with this statement: "With deference, it is the position of the Board of Trustees... that the Mississippi system of higher education is in compliance with Title VI of the Civil Rights Act of 1964.” Id., at 898. At this time, the racial composition of the State’s universities had changed only marginally from the levels of 1968, which were almost exclusively single race. Though HEW refused to accept the modified Plan, the Board adopted it anyway. 674 F. Supp., at 1530. But even the limited effects of this Plan in disestablishing the prior de jure segregated system were substantially constricted by the state legislature, which refused to fund it until fiscal year 1978, and even then at well under half the amount sought by the Board. App. 896-897, 1444-1445, 1448-1449.
Private petitioners initiated this lawsuit in 1975. They complained that Mississippi had maintained the racially seg-regative effects of its prior dual system of postsecondary education in violation of the Fifth, Ninth, Thirteenth, and Fourteenth Amendments, 42 U. S. C. §§1981 and 1983, and Title VI of the Civil Rights Act of 1964, 42 U. S. C. §2000d. Shortly thereafter, the United States filed its complaint in intervention, charging that state officials had failed to satisfy their obligation under the Equal Protection Clause of the Fourteenth Amendment and Title VI to dismantle Mississippi’s dual system of higher education.
After this lawsuit was filed, the parties attempted for 12 years to achieve a consensual resolution of their differences through voluntary dismantlement by the State of its prior separated system. The board of trustees implemented reviews of existing curricula and program “mission” at each institution. In 1981, the Board issued “Mission Statements” that identified the extant purpose of each public university. These “missions” were clustered into three categories: comprehensive, urban, and regional. “Comprehensive” universities were classified as those with the greatest existing resources and program offerings. All three such institutions (University of Mississippi, Mississippi State, and Southern Mississippi) were exclusively white under the prior de jure segregated system. The Board authorized each to continue offering doctoral degrees and to assert leadership in certain disciplines. Jackson State, the sole urban university, was assigned a more limited research and degree mission, with both functions geared toward its urban setting. It was exclusively black at its inception. The “regional” designation was something of a misnomer, as the Board envisioned those institutions primarily in an undergraduate role, rather than a “regional” one in the geographical sense of serving just the localities in which they were based. Only the universities classified as “regional” included institutions that, prior to desegregation, had been either exclusively white — Delta State and Mississippi University for Women — or exclusively black — Alcorn State and Mississippi Valley State.
By the mid-1980’s, 30 years after Brown, more than 99 percent of Mississippi’s white students were enrolled at University of Mississippi, Mississippi State, Southern Mississippi, Delta State, and Mississippi University for Women. The student bodies at these universities remained predominantly white, averaging between 80 and 91 percent white students. Seventy-one percent of the State’s black students attended Jackson State, Alcorn State, and Mississippi Valley State, where the racial composition ranged from 92 to 99 percent black. Ayers v. Attain, 893 F. 2d 732, 734-735 (CA5 1990) (panel decision).
II
By 1987, the parties concluded that they could not agree on whether the State had taken the requisite affirmative steps to dismantle its prior de jure segregated system. They proceeded to trial. Both sides presented voluminous evidence on a hill range of educational issues spanning admissions standards, faculty and administrative staff recruitment, program duplication, on-campus discrimination, institutional funding disparities, and satellite campuses. Petitioners argued that in various ways the State continued to reinforce historic, race-based distinctions among the universities. Respondents argued generally that the State had fulfilled its duty to disestablish its state-imposed segregative system by implementing and maintaining good-faith, nondiscriminatory race-neutral policies and practices in student admission, faculty hiring, and operations. Moreover, they suggested, the State had attracted significant numbers of qualified black students to those universities composed mostly of white persons. Respondents averred that the mere continued existence of racially identifiable universities was not unlawful given the freedom of students to choose which institution to attend and the varying objectives and features of the State’s universities.
At trial’s end, based on the testimony of 71 witnesses and 56,700 pages of exhibits, the District Court entered extensive findings of fact. The court first offered a historical overview of the higher education institutions in Mississippi and the developments in the system between 1954 and the filing of this suit in 1975. 674 F. Supp., at 1526-1530. It then made specific findings recounting post-1975 developments, including a description at the time of trial, in those areas of the higher education system under attack by plaintiffs: admission requirements and recruitment; institutional classification and assignment of missions; duplication of programs; facilities and finance; the land grant institutions; faculty and staff; and governance. Id., at 1530-1550.
The court’s conclusions of law followed. As an overview, the court outlined the common ground in the action: “Where a state has previously maintained a racially dual system of public education established by law, it assumes an ‘affirmative duty’ to reform those policies and practices which required or contributed to the separation of races.” Id., at 1551. Noting that courts unanimously hold that the affirmative duty to dismantle a racially dual structure in elementary and secondary schools also governs in the higher education context, the court observed that there was disagreement whether Green v. School Bd. of New Kent County, 391 U. S. 430 (1968), applied in all of its aspects to formerly dual systems of higher education, i. e., whether “some level of racial mixture at previously segregated institutions of higher learning is not only desirable but necessary to ‘effectively’ desegregate the system.” 674 F. Supp., at 1552. Relying on a Fifth Circuit three-judge court decision, Alabama State Teachers Assn. (ASTA) v. Alabama Public School and College Authority, 289 F. Supp. 784 (MD Ala. 1968), our -per curiam affirmance of that case, 393 U. S. 400 (1969), and its understanding of our later decision in Bazemore v. Friday, 478 U. S. 385 (1986), the court concluded that in the higher education context, “the affirmative duty to desegregate does not contemplate either restricting choice or the achievement of any degree of racial balance.” 674 F. Supp., at 1553. Thus, the court stated: “While student enrollment and faculty and staff hiring patterns are to be examined, greater emphasis should instead be placed on current state higher education policies and practices in order to insure that such policies and practices are racially neutral, developed and implemented in good faith, and do not substantially contribute to the continued racial identifiability of individual institutions.” Id., at 1554.
When it addressed the same aspects of the university system covered by the findings of fact in light of the foregoing standard, the court found no violation of federal law in any of them. “In summary, the court finds that current actions on the part of the defendants demonstrate conclusively that the defendants are fulfilling their affirmative duty to disestablish the former de jure segregated system of higher education.” Id., at 1564.
The Court of Appeals reheard the action en bane and affirmed the decision of the District Court. Ayers v. Allain, 914 F. 2d 676 (CA5 1990). With a single exception, see infra, at 741, it did not disturb the District Court’s findings of fact or conclusions of law. The en banc majority agreed that “Mississippi was... constitutionally required to eliminate invidious racial distinctions and dismantle its dual system.” Id., at 682. That duty, the court held, had been discharged since “the record makes clear that Mississippi has adopted and implemented race neutral policies for operating its colleges and universities and that all students have real freedom of choice to attend the college or university they wish_” Id., at 678.
We granted the respective writs of certiorari filed by the United States and the private petitioners. 499 U. S. 958. (1991).
Ill
The District Court, the Court of Appeals, and respondents recognize and acknowledge that the State of Mississippi had the constitutional duty to dismantle the dual school system that its laws once mandated. Nor is there any dispute that this obligation applies to its higher education system. If the State has not discharged this duty, it remains in violation of the Fourteenth Amendment. Brown v. Board of Education and its progeny clearly mandate this observation. Thus, the primary issue in these cases is whether the State has met its affirmative duty to dismantle its prior dual university system.
Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation. Thus we have consistently asked whether existing racial identifiability is attributable to the State, see, e. g., Freeman v. Pitts, 503 U. S. 467, 496 (1992); Bazemore v. Friday, supra, at 407 (White, J., concurring); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 434 (1976); Gilmore v. City of Montgomery, 417 U. S. 556, 566-567 (1974); and examined a wide range of factors to determine whether the State has perpetuated its formerly de jure segregation in any facet of its institutional system. See, e. g., Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 250 (1991); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 18 (1971); Green v. School Bd. of New Kent County, supra, at 435-438.
The Court of Appeals concluded that the State had fulfilled its affirmative obligation to disestablish its prior de jure segregated system by adopting and implementing race-neutral policies governing its college and university system. Because students seeking higher education had “real freedom” to choose the institution of their choice, the State need do no more. Even though neutral policies and free choice were not enough to dismantle a dual system of primary or secondary schools, Green v. School Bd. of New Kent County, 391 U. S. 430 (1968), the Court of Appeals thought that universities “differ in character fundamentally” from lower levels of schools, 914 F. 2d, at 686, sufficiently so that our decision in Bazemore v. Friday, supra, justified the conclusion that the State had dismantled its former dual system.
Like the United States, we do not disagree with the Court of Appeals’ observation that a state university system is quite different in very relevant respects from primary and secondary schools. Unlike attendance at the lower level schools, a student’s decision to seek higher education has been a matter of choice. The State historically has not assigned university students to a particular institution. Moreover, like public universities throughout the country, Mississippi’s institutions of higher learning are not fungible — they have been designated to perform certain missions. Students who qualify for admission enjoy a range of choices of which institution to attend. Thus, as the Court of Appeals stated, “[i]t hardly needs mention that remedies common to public school desegregation, such as pupil assignments, busing, attendance quotas, and zoning, are unavailable when persons may freely choose whether to pursue an advanced education and, when the choice is made, which of several universities to attend.” 914 F. 2d, at 687.
We do not agree with the Court of Appeals or the District Court, however, that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the State has completely abandoned its prior dual system. That college attendance is by choice and not by assignment does not mean that a race-neutral admissions policy cures the constitutional violation of a dual system. In a system based on choice, student attendance is determined not simply by admissions policies, but also by many other factors. Although some of these factors clearly cannot be attributed to state policies, many can be. Thus, even after a State dismantles its segregative admissions policy, there may still be state action that is traceable to the State’s prior de jure segregation and that continues to foster segregation. The Equal Protection Clause is offended by “sophisticated as well as simple-minded modes of discrimination.” Lane v. Wilson, 307 U. S. 268, 275 (1939). If policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational practices. Freeman, supra, at 494; Dowell, supra, at 250; Green, supra, at 439; Florida ex rel. Hawkins v. Board of Control of Fla., 350 U. S. 413, 414 (1956) (per curiam). We also disagree with respondents that the Court of Appeals and District Court properly relied on our decision in Bazemore v. Friday, 478 U. S. 385 (1986). Bazemore neither requires nor justifies the conclusions reached by the two courts below.
Bazemore raised the issue whether the financing and operational assistance provided by a state university’s extension service to voluntary 4-H and Homemaker Clubs was inconsistent with the Equal Protection Clause because of the existence of numerous all-white and all-black clubs. Though prior to 1965 the clubs were supported on a segregated basis, the District Court had found that the policy of segregation had been completely abandoned and that no evidence existed of any lingering discrimination in either services or membership; any racial imbalance resulted from the wholly voluntary and unfettered choice of private individuals. Bazemore, supra, at 407 (White, J., concurring). In this context, we held inapplicable the Green Court’s judgment that a voluntary choice program was insufficient to dismantle a de jure dual system in public primary and secondary schools, but only after satisfying ourselves that the State had not fostered segregation by playing a part in the decision of which club an individual ehose to join.
Bazemore plainly does not excuse inquiry into whether Mississippi has left in place certain aspects of its prior dual system that perpetuate the racially segregated higher education system. If the State perpetuates policies and practices traceable to its prior system that continue to have segre-gative effects — whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system — and such policies are without sound educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system. Such policies run afoul of the Equal Protection Clause, even though the State has abolished the legal requirement that whites and blacks be educated separately and has established racially neutral policies not animated by a discriminatory purpose. Because the standard applied by the District Court did not make these inquiries, we hold that the Court of Appeals erred in affirming the District Court’s ruling that the State had brought itself into compliance with the Equal Protection Clause in the operation of its higher education system.
IV
Had the Court of Appeals applied the correct legal standard, it would have been apparent from the undisturbed factual findings of the District Court that there are several surviving aspects of Mississippi’s prior dual system which are constitutionally suspect; for even though such policies may be race neutral on their face, they substantially restrict a person’s choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies or eliminate them.
It is important to state at the outset that we make no effort to identify an exclusive list of unconstitutional remnants of Mississippi’s prior de jure system. In highlighting, as we do below, certain remnants of the prior system that are readily apparent from the findings of fact made by the District Court and affirmed by the Court of Appeals, we by no means suggest that the Court of Appeals need not examine, in light of the proper standard, each of the other policies now governing the State’s university system that have been challenged or that are challenged on remand in light of the standard that we articulate today. With this caveat in mind, we address four policies of the present system: admissions standards, program duplication, institutional mission assignments, and continued operation of all eight public universities.
We deal first with the current admissions policies of Mississippi’s public universities. As the District Court found, the three flagship historically white universities in the sys-tern — University of Mississippi, Mississippi State University, and University of Southern Mississippi — enacted policies in 1963 requiring all entrants to achieve a minimum composite score of 15 on the test administered by the American College Testing Program (ACT). 674 F. Supp., at 1531. The court described the “discriminatory taint” of this policy, id., at 1557, an obvious reference to the fact that, at the time, the average ACT score for white students was 18 and the average score for blacks was 7. 893 F. 2d, at 735. The District Court concluded, and the en banc Court of Appeals agreed, that present admissions standards derived from policies enacted in the 1970’s to redress the problem of student unpreparedness. 914 F. 2d, at 679; 674 F. Supp., at 1531. Obviously, this midpassage justification for perpetuating a policy enacted originally to discriminate against black students does not make the present admissions standards any less constitutionally suspect.
The present admissions standards are not only traceable to the de jure system and were originally adopted for a discriminatory purpose, but they also have present discriminatory effects. Every Mississippi resident under 21 seeking admission to the university system must take the ACT test. Any applicant who scores at least 15 qualifies for automatic admission to any of the five historically white institutions except Mississippi University for Women, which requires a score of 18 for automatic admission unless the student has a 3.0 high school grade average. Those scoring less than 15 but at least 13 automatically qualify to enter Jackson State University, Alcorn State University, and Mississippi Valley State University. Without doubt, these requirements restrict the range of choices of entering students as to which institution they may attend in a way that perpetuates segregation. Those scoring 13 or 14, with some exceptions, are excluded from the five historically white universities and if they want a higher education must go to one of the historically black institutions or attend junior college with the hope of transferring to a historically white institution. Proportionately more blacks than whites face this choice: In 1985, 72 percent of Mississippi’s white high school seniors achieved an ACT composite score of 15 or better, while less than 30 percent of black high school seniors earned that score. App. 1524-1525. It is not surprising then that Mississippi’s universities remain predominantly identifiable by race.
The segregative effect of this automatic entrance standard is especially striking in light of the differences in minimum automatic entrance scores among the regional universities in Mississippi’s system. The minimum score for automatic admission to Mississippi University for Women is 18; it is 13 for the historically black universities. Yet Mississippi University for Women is assigned the same institutional mission as two other regional universities, Alcorn State and Mississippi Valley State — that of providing quality undergraduate education. The effects of the policy fall disproportionately on black students who might wish to attend Mississippi University for Women; and though the disparate impact is not as great, the same is true of the minimum standard ACT score of 15 at Delta State University — the other “regional” university — as compared to the historically black “regional” universities where a score of 13 suffices for automatic admission. The courts below made little, if any, effort to justify in educational terms those particular disparities in entrance requirements or to inquire whether it was practicable to eliminate them.
We also find inadequately justified by the courts below or by the record before us the differential admissions requirements between universities with dissimilar programmatic missions. We do not suggest that absent a discriminatory purpose different programmatic missions accompanied by different admissions standards would be constitutionally suspect simply because one or more schools are racially identifiable. But here the differential admissions standards are remnants of the dual system with a continuing discriminatory effect, and the mission assignments “to some degree follow the historical racial assignments,” 914 F. 2d, at 692. Moreover, the District Court did not justify the differing admissions standards based on the different mission assignments. It observed only that in the 1970’s, the board of trustees justified a minimum ACT score of 15 because too many students with lower scores were not prepared for the historically white institutions and that imposing the 15 score requirement on admissions to the historically black institutions would decimate attendance at those universities. The District Court also stated that the mission of the regional universities had the more modest function of providing quality undergraduate education. Certainly the comprehensive universities are also, among other things, educating undergraduates. But we think the 15 ACT test score for automatic admission to the comprehensive universities, as compared with a score of 13 for the regionals, requires further justification in terms of sound educational policy.
Another constitutionally problematic aspect of the State’s use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the minimum ACT score specified for the particular institution, without also resorting to the applicant’s high school grades as an additional factor in predicting college performance. The United States produced evidence that the American College Testing Program (ACTP), the administering organization of the ACT, discourages use of ACT scores as the sole admissions erite-rion on the ground that it gives an incomplete “picture” of the student applicant’s ability to perform adequately in college. App. 1209-1210. One ACTP report presented into evidence suggests that “it would be foolish” to substitute a 3- or 4-hour test in place of a student’s high school grades as a means of predicting college performance. Id., at 193. The record also indicated that the disparity between black and white students’ high school grade averages was much narrower than the gap between their average ACT scores, thereby suggesting that an admissions formula which included grades would increase the number of black students eligible for automatic admission to all of Mississippi’s public universities.
The United States insists that the State’s refusal to consider information which would better predict college performance than ACT scores alone is irrational in light of most States’ use of high school grades and other indicators along with standardized test scores. The District Court observed that the board of trustees was concerned with grade inflation and the lack of comparability in grading practices and course offerings among the State’s diverse high schools. Both the District Court and the Court of Appeals found this concern ample justification for the failure to consider high school grade performance along with ACT scores. In our view, such justification is inadequate because the ACT requirement was originally adopted for discriminatory purposes, the current requirement is traceable to that decision and seemingly continues to have segregative effects, and the State has so far failed to show that the “ACT-only” admissions standard is not susceptible to elimination without eroding sound educational policy.
A second aspect of the present system that necessitates. further inquiry is the widespread duplication of programs. “Unnecessary” duplication refers, under the District Court’s definition, “to those instances where two or more institutions offer the same nonessential or noneore program. Under this definition, all duplication at the bachelor’s level of nonbasie liberal arts and sciences course work and all duplication at the master’s level and above are considered to be unnecessary.” 674 F. Supp., at 1540. The District Court found that 34.6 percent of the 29 undergraduate programs at historically black institutions are “unnecessarily duplicated” by the historically white universities, and that 90 percent of the graduate programs at the historically black institutions are unnecessarily duplicated at the historically white institutions. Id., at 1541. In its conclusions of law on this point, the District Court nevertheless determined that “there is no proof” that such duplication “is directly associated with the racial identifiability of institutions,” and that “there is no proof that the elimination of unnecessary program duplication would be justifiable from an educational standpoint or that its elimination would have a substantial effect on student choice.” Id., at 1561.
The District Court’s treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. It can hardly be denied that such duplication was part and parcel of the prior dual system of higher education — the whole notion of “separate but equal” required du-plicative programs in two sets of schools — and that the present unnecessary duplication is a continuation of that practice.
Broion and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II, 349 U. S., at 300. The court’s holding that petitioners could not establish the constitutional defect of unnecessary duplication, therefore, improperly shifted the burden away from the State. Second, implicit in the District Court’s finding of “unnecessary” duplication is the absence of any educational justification and the fact that some, if not all, duplication may be practicably eliminated. Indeed, the District Court observed that such duplication “cannot be justified economically or in terms of providing quality education.” 674 F. Supp., at 1541. Yet by stating that “there is no proof” that elimination of unnecessary duplication would decrease institutional racial identifiability, affect student choice, and promote educationally sound policies, the court did not make clear whether it had directed the parties to develop evidence on these points, and if so, what that evidence revealed. See id., at 1561. Finally, by treating this issue in isolation, the court failed to consider the combined effects of unnecessary program duplication with other policies, such as differential admissions standards, in evaluating whether the State had met its duty to dismantle its prior de jure segregated system.
We next address Mississippi’s scheme of institutional mission classification, and whether it perpetuates the State’s formerly de jure dual system. The District Court found that, throughout the period of de jure segregation, University of Mississippi, Mississippi State University, and University of Southern Mississippi were the flagship institutions in the state system. They received the most funds, initiated the most advanced and specialized programs, and developed the widest range of curricular functions. At their inception, each was restricted for the education solely of white persons. Id., at 1526-1528. The missions of Mississippi University for Women and Delta State University, by contrast, were more limited than their other all-white counterparts during the period of legalized segregation. Mississippi University for Women and Delta State University were each established to provide undergraduate education solely for white students in the liberal arts and such other fields as music, art, education, and home economies. Id., at 1527-1528. When they were founded, the three exclusively black universities were more limited in their assigned academic missions than the five all-white institutions. Alcorn State, for example, was designated to serve as “an agricultural college for the education of Mississippi’s black youth.” Id., at 1527. Jackson State and Mississippi Valley State were established to train black teachers. Id., at 1528. Though the District Court’s findings do not make this point explicit, it is reasonable to infer that state funding and curriculum decisions throughout the period of de jure segregation were based on the purposes for which these institutions were established.
In 1981, the State assigned certain missions to Mississippi’s public universities as they then existed. It classified University of Mississippi, Mississippi State, and Southern Mississippi as “comprehensive” universities having the most varied programs and offering graduate degrees. Two of the historically white institutions, Delta State University and Mississippi University for Women, along with two of the historically black institutions, Alcorn State University and Mississippi Valley State University, were designated as “regional” universities with more limited programs and devoted primarily to undergraduate education. Jackson State University was classified as an “urban” university whose mission was defined by its urban location.
The institutional mission designations adopted in 1981 have as their antecedents the policies enacted to perpetuate racial separation during the de jure segregated regime. The Court of Appeals expressly disagreed with the District Court by recognizing that the “inequalities among the institutions largely follow the mission designations, and the mission designations to some degree follow the historical racial assignments.” 914 F. 2d, at 692. It nevertheless upheld this facet of the system as constitutionally acceptable based on the existence of good-faith racially neutral policies and procedures. That different missions are assigned to the universities surely limits to some extent an entering student’s choice as to which university to seek admittance. While the courts below both agreed that the classification and mission assignments were made without discriminatory purpose, the Court of Appeals found that the record “supports the plaintiffs’ argument that the mission designations had the effect of maintaining the more limited program scope at the historically black universities.” Id., at 690. We do not suggest that absent discriminatory purpose the assignment of different missions to various institutions in a State’s higher education system
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
sc_casesourcestate
|
17
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
UNITED STATES v. YELLOW CAB CO. et al.
No. 22.
Argued November 14-15, 1949.
Decided December 5, 1949.
Charles H. Weston argued the cause for the United States. With him on the brief were Solicitor Ceneral Perlman, Assistant Attorney General Bergson, Joseph W. Bishop, Jr. and J. Roger Wollenberg.
Jesse Climenko argued the cause for appellees. With him on the brief was Harold S. Lynton.
Mr. Justice Jackson
delivered the opinion of the Court.
This suit in equity, under §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, originally included three charges of violation: (1) conspiracy to restrain and monopolize transportation of interstate travelers by taxicab between Chicago railroad stations and their homes, offices and hotels; (2) conspiracy to eliminate competition for the business of transporting passengers between different Chicago railroad stations; and (3) conspiracy to restrain and monopolize the sale of taxicabs by control of the principal companies operating them in Chicago, New York, Pittsburgh and Minneapolis. On a previous appeal this Court held the first of the charges not to state a case within the statute, and that charge no longer concerns us. United States v. Yellow Cab Co., 332 U. S. 218. The court below found that the Government failed to prove the second charge and no appeal is taken from that part of the judgment, so that charge has been eliminated. We have held that the residue of the complaint, embodying the third charge, alleges a cause of action within the statute, but only on the expressed assumption that the facts alleged are true, United States v. Yellow Cab Company, supra, at 224; but the trial court has found that the Government, at the trial, has failed on all the evidence to prove its case. 80 F. Supp. 936. The cause is before us by a direct appeal under the Expediting Act, 15 U. S. C. § 29, and not by an exercise of our discretionary jurisdiction.
The first question proposed by the Government is whether the evidence sustains the findings of fact by the District Court. This is the basic issue, and the Government raises no question of law that has an existence independent of it. This issue of fact does not arise upon the trial court’s disregard or misunderstanding of some definite and well-established fact. It extends to almost every detail of the decision, the Government saying that the trial court “ignored . . . substantially all of the facts which the Government deemed significant.”
What the Government asks, in effect, is that we try the case de novo on the record, reject nearly all of the findings of the trial court, and substitute contrary findings of our own. Specifications of error which are fundamental to its case ask us to reweigh the evidence and review findings that are almost entirely concerned with imponderables, such as the intent of parties to certain 1929 business transactions, whether corporate officers were then acting in personal or official capacities, what was the design and purpose and intent of those who carried out twenty-year-old transactions, and whether they had legitimate business motives or were intending to restrain trade of their competitors in car manufacture, such as General Motors, Ford, Chrysler and Packard.
These were the chief fact issues in a trial of three weeks’ duration. The Government relied in large part on inferences from its 485 exhibits, introduced by nine witnesses. The defendants relied heavily on oral testimony to contradict those inferences. The record is before us in 1,674 closely-printed pages.
The Government suggests that the opinion of the trial court “seems to reflect uncritical acceptance of defendants’ evidence and of defendants’ views as to the facts to be given consideration in passing upon the legal issues before the court.” We see that it did indeed accept defendants’ evidence and sustained defendants’ view of the facts. But we are unable to discover the slightest justification for the accusation that it did so “uncritically.” Also, it rejected the inferences the Government drew from its documents, but we find no justification for the statement that it “ignored” them. The judgment below is supported by an opinion, prepared with obvious care, which analyzes the evidence and shows the reasons for the findings. To us it appears to represent the considered judgment of an able trial judge, after patient hearing, that the Government’s evidence fell short of its allegations- — a not uncommon form of litigation casualty, from which the Government is no more immune than others.
Only last term we accepted the view then advanced by the Government that for triers of fact totally to reject an opposed view impeaches neither their impartiality nor the propriety of their conclusions. We said, “We are constrained to reject the court’s conclusion that an objective finder of fact could not resolve all factual conflicts arising in a legal proceeding in favor of one litigant. The ordinary lawsuit, civil or criminal, normally depends for its resolution on which version of the facts in dispute is accepted by the trier of fact. . . .” Labor Board v. Pittsburgh Steamship Co., 337 U. S. 656, 659.
Rule 52, Federal Rules of Civil Procedure, provides, among other things:
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them. If defendants’ witnesses spoke the truth, the findings are admittedly justified. The trial court listened to and observed the officers who had made the records from which the Government would draw an inference of guilt and concluded that they bear a different meaning from that for which the Government contends.
It ought to be unnecessary to say that Rule 52 applies to appeals by the Government as well as to those by other litigants. There is no exception which permits it, even in an antitrust case, to come to this Court for what virtually amounts to a trial de novo on the record of such findings as intent, motive and design. While, of course, it would be our duty to correct clear error, even in findings of fact, the Government has failed to establish any greater grievance here than it might have in any case where the evidence would support a conclusion either way but where the trial court has decided it to weigh more heavily for the defendants. Such a choice between two permissible views of the weight of evidence is not “clearly erroneous.”
Judgment affirmed.
Me. Justice Douglas and Mr. Justice Clabk took no part in the consideration or decision of this case.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES v. KAISER.
No. 8305.
Circuit Court of Appeals, Seventh Circuit.
Oct 28, 1943.
Writ of Certiorari Denied Jan. 3, 1944.
See 64 S.Ct. 431.
Raymond F. Hayes and J. Glenn Shehee, both of Chicago, 111., for appellant.
J. Albert Woll and Mary D. Bailey, both of Chicago, 111., for the United States.
Before MAJOR, KERNER, and MIN-TON, Circuit Judges.
MAJOR, Circuit Judge.
Defendant, after trial by jury, was found guilty of violating the Harrison Narcotic Act, 26 U.S.C.A. Int.Rev.Code, § 2554(a). Upon such finding, the court entered judgment from whence comes this appeal. The indictment contains two counts, in each of which the defendant is charged with selling morphine sulphate to George Hollenbeck. The first sale is charged to have been made June 30, 1942 and the second August 10, 1942.
Four witnesses testified for the government, Hollenbeck and three narcotic agents. Hollenbeck testified that he made the purchases from the defendant as charged, and was strongly corroborated by the testimony of the agents, who had furnished him with the money to make such purchases and with whom he was cooperating.
The sole issue presented on this appeal is that of entrapment. We are confronted with what may well be termed an extraordinary situation in that no such defense was interposed in the court below. The defense there relied upon was that of alibi. The defendant specifically denied making the sales as charged or that he at any time had transactions of any character with Hollenbeck. He definitely fixed his whereabouts at a place where ■ it would have been impossible for him to have made the sales as testified to by Hollenbeck. Two witnesses testified on behalf of defendant and corroborated his defense of alibi.
At the conclusion of the government’s proof, as well as at the conclusion of all the proof, defendant’s' counsel moved “the court to instruct the jury to return a verdict of not guilty.” No question having been raised as to entrapment, the court’s charge to the jury made no reference thereto, although the court at the conclusion of its charge specifically inquired, “Are there any other matters that I ought to instruct upon?” The response from defendant’s counsel to such inquiry was, “I think that is fair.” So far as the record discloses, the defense of entrapment was mentioned for the first time in the notice of appeal, which stated as one of its grounds, “The evidence affirmatively shows that the defendant was entrapped, etc.”
It is a well settled rule that an appellate court will review only questions brought to the attention of the trial court and upon which the trial court has made a ruling. Ayers v. United States, 8 Cir., 58 F.2d 607 (and cases therein cited). The defendant makes the ingenious argument that notwithstanding no claim of entrapment was made during the trial, it was raised by his motion for directed verdict and passed upon by the court in its denial of such motion. In our judgment, this contention is wholly without merit; in fact, it is doubtful if defendant’s general motion was sufficient to raise any question, even the sufficiency of the evidence. A motion in identical language was held insufficient in Ayers v. United States, supra, 58 F.2d at page 608, wherein the court quoted with approval from Mansfield Hardwood Lumber Co. v. Horton, 8 Cir., 32 F. 2d 851, as follows: “* * * that such motion, request, or other equivalent action must be based upon a specific ground or grounds stated in apt words and brought sharply to the attention of the court; that a ruling must be obtained and an exception preserved. A general motion stating no grounds is not sufficient.”
To countenance the contention made in this court would license a defendant to play hide and seek with the courts. It would permit him, after suffering an adverse decision on one defense in the lower court, to invoke another in the appellate court. The situation is further aggravated in the instant appeal from the fact that the defense sought to be invoked is inconsistent with that relied upon below. The defense of entrapment is a concession that the crime has been committed, but the law invokes an estoppel against the government because of the conduct of its officers. Sorrells v. United States, 287 U.S. 435, 445, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249. It is difficult to conceive of a competent attorney arguing to a court and jury that the defendant did not make the alleged sales, but, if so, he was entrapped. It is little wonder that counsel here had nothing to do with the case below and that counsel there had nothing to do with it here.
This court, in United States v. Ginsburg, 7 Cir., 96 F.2d 882, considered a similar situation, and while it perhaps was not the decisive point in the case, used language pertinent to the instant situation. On page 886 of 96 F.2d, the court said: “It is also to be noted that appellant made no defense of entrapment in the District Court, tendered no instructions on that question, and made no objections that none were given upon that subject. His sole defense was that he did not sell the drug, and at no time had it in his possession, or aided in concealing it. Under these circumstances the contention is not tenable.”
Even without precedent, however, we would have no hesitancy in holding that the procedure sought to be invoked in the instant case should not be tolerated. To do so would seriously impair the orderly administration of justice. For a reviewing court to sustain a defense that was not relied upon or called to the attention of the trial court would be unfair both to That court and to the government. It is essential that the court be advised of the contentions of the respective parties and make disposition thereof as justice requires. Likewise, it is essential that the government be advised of the issues before the court so as to present its case and make its proof conformable to such issues. Evidence immaterial and inadmissible on the defense of alibi may become relevant and admissible where the defense is entrapment. In Sorrells v. United States, supra, 287 U.S. on page 451, 53 S.Ct. on page 216, 77 L.Ed. 413, 86 A.L.R. 249, the court, in referring to the defense of entrapment, said: “The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.”
Holding as we do that on this record the defense of entrapment cannot be raised, the judgment of the court below is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
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.
Jacob GARELICK and Sidney Garelick, co-partners, trading under the firm name of Capitol Automotive Supply Co., Plaintiffis-Appellants, v. GOERLICH’S, INC., Defendants-Appellees.
No. 15291.
United States Court of Appeals. Sixth Circuit.
Oct. 30, 1963.
William E. Speer, Detroit, Mich., for appellants.
Fred A. Smith, Toledo, Ohio, for ap-pellees, Carolyn J. McNeill, Cobourn, ' Yager, Smith & Flavey, Toledo, Ohio, . on the brief.
Before WEICK, Circuit Judge, TAYLOR, District Judge, and DARR, Senior District Judge.
PER CURIAM.
The lower court sustained defendant-appellee’s motion for summary judgment made in plaintiff-appellants’ cause of action for treble damages under the antitrust laws [15 U.S.C.A. § 15] upon the ground that the four year statute of limitations [15 U.S.C.A. § 15b] had barred the right to sue. The suit is based on section 1 of the Sherman Act [15 U.S.C.A. § 1]..
The uncontroverted proof revealed that prior to October 1956, the plaintiffs-appellants were distributors for the defendant-appellee’s products. By letter dated September 4, 1956, defendant-ap-pellee notified plaintiffs-appellants that it would cease doing business with them on October 1, 1956, and did so. This suit was instituted January 17, 1962, more than five years after the receipt of such letter.
Unless some legal reason appears to the contrary, it is obvious that the four year statute of limitations had run at the time this suit was begun. The plaintiffs-appellants so concede.
The plaintiffs-appellants interposed two affidavits stating that two incidents occurred, one in February 1959 and the other in October 1961, which were overt acts and each incident resulted in an accrual of the cause of action. This position would be correct provided that either one or both of the overt acts caused damage to the plaintiffs-appellants. All the authorities are in accord that a right of action for a civil conspiracy under the antitrust laws accrues from the commission of the last overt act causing injury or damage. Suckow Borax Mines Consol, v. Borax Consol., 9 Cir., 185 F.2d 196, certiorari denied 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680, rehearing denied 341 U.S. 912, 71 S.Ct. 620, 95 L.Ed. 1349; Momand v. Universal Film Exchanges, 1 Cir., 172 F.2d 37, certiorari denied 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118, rehearing denied 337 U.S. 934, 69 S.Ct. 1493, 93 L.Ed. 1740; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742, certiorari denied 315 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 73 F.2d 333, 97 A.L.R. 133, certiorari denied 294 U.S. 719, 55 S.Ct. 546, 79 L.Ed. 1251; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 232 F.2d 190.
If the statute of limitations were tolled, or an accrual of a suit set up by an overt act which did not cause damage, “ * * * it would effectively destroy the statute of limitations as a statute of peace.” Crummer Co. v. Du Pont, 5 Cir., 223 F.2d 238, 248, certiorari denied 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755.
The affidavit as to the incident occurring in February 1959 is to the effect that a representative of plaintiffs-appellants called defendant-appellee and asked to be reinstated as a distributor and the person who answered the telephone said he was sending Mr. Perkins to call on plaintiffs-appellants, but that Perkins never called.
The affidavit concerning the incident of October 1961 states that a representative of the defendant-appellee called on plaintiffs-appellants to sell defendant-appellee’s products. Someone speaking for plaintiffs-appellants stated that he was surprised that a representative would seek to sell them as defendant-appellee had refused to sell to plaintiffs-appellants. The salesman said he would take it up with the principal but plaintiffs-appellants heard nothing further.
The conduct on these two occasions might be overt acts but obviously the plaintiffs-appellants were not in anyway injured or damaged thereby. The incidents were simply acts that reflected that defendant-appellee continued in refusing to sell its products to plaintiffs-appellants.
The District Judge’s ruling was correct and the judgment is accordingly affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
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.
MASSEY-HARRIS CO. v. GILL.
No. 725.
Circuit Court of Appeals, Tenth Circuit.
March 30, 1933.
Robert Burns, Paul N. Lindsey; and Owen & Looney, all of Oklahoma City, Okl., for appellant.
Claude Nowlin, of Oklahoma City, Okl. (John R. Guyer and Nowlin, Spielman & Thomas, all of Oklahoma City, Okl., on the brief), for appellee.
Before COTTERAL and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.
COTTERAL, Circuit Judge.
The Massey-Harris Company appeals from a judgment in favor of George A. Gill, in a suit he brought to recover damages sustained when a tractor owned by the company ran upon and injured him.
It was specified in thé petition that the defendant, a manufacturer of farm machinery, was demonstrating its tractors during a tractor show at Wichita, Kan., to a large number of persons, including the plaintiff; that the defendant left one of the tractors in gear and unguarded, and some one, either an employee of the company or a bystander, pressed the starter button, which caused it to run into and upon the plaintiff and produce the injuries.
At the close of the evidence, the plaintiff was allowed to amend his petition to conform to the proof by alleging that the tractor was left standing in the street, with a rear wheel upon a block of wood, facing defendant’s warehouse; that two employees were left to guard the tractor; that an employee of the company set the motor running, and that the danger of its being started by some one pulling the levers was fully realized by defendant; that the defendant knew and appreeiat-ed the danger; that the employees failed to take any care or caution against the starting of the tractor, and by their negligence it moved forward, ran over the sidewalk and into the building, where plaintiff was struck and injured. The defense was a denial of negligence, and further that the injury, if any, was due to plaintiff’s contributory negligence.
The ease was tried to a jury. The defendant interposed a motion to direct a verdict in its favor, and assigns as errors the denial of that motion and the rendition of judgment.
The theory of the defendant was that, in order to recover, the plaintiff was required to show the tractor was a dangerous instrumentality, as he failed to show that any of defondant’s employees started the tractor in motion and thereby caused the injury to the plaintiff. Many authorities are cited to show a motor vehicle is not a dang-erous instrumentality, among them a ease decided by this court. Woody v. Utah Power & Light Co., 54 F.(2d) 220. It is more accurate to say that a motor vehicle is not inherently, but only potentially, such an instrumentality. District of Columbia v. Colts, 282 U. S. 63, 51 S. Ct. 52, 75 L. Ed. 177. But wo find the question quite unnecessary and unimportant in this case, as the evidence shows the defendant left the tractor in the control of its employees, and their acts, attributable to the defendant, showed a want of ordinary precaution to avert the injury.
The demonstration was put on to a crowd of invitees. The defendant’s employees Straight and Turner were left in charge of the tractor. Straight placed it in position with a rear wheel on a block of wood. Hampton, one of defendant’s service men, started the motor, left it unattended, and faced away from it when it moved. Straight testified that any person in the crowd behind the tractor could have taken hold of the levers and started the tractor; that he did not watch that crowd, knew the engine was in motion, and by starting might injure bystanders; that he realized it would be very dangerous to let the tractor run through the crowd; that it was his duty to prevent that, and he had been guarding it, and particularly at the rear of the machine, but his attention was diverted by a man who spoke to him, and he turned his back to the machine.
Turner, another of defendant’s service men, testified he saw Hampton start the motor; that the starter button had been pressed shortly before the tractor started and ran across the sidewalk into the building; that any person at the back of the tractor could easily reach and handle the gears; tha-t he was talking to a customer when it started; that, as lie saw Hampton, a competent man, was in charge, he paid no further attention to it. Hampton also testified the tractor had a self-starting device, starting the motor on the battery by pressing the button, and, when the tractor started moving, it automatically transferred to magneto. He stated that he relied on Straight and Turner to see that nothing happened to start the tractor into the erowd. The plaintiff was an invited guest, and was in the act of shaking hands with some representative of the defendant when the tractor rail upon him.
Wo think that the demonstration of. the tractor called for the performance of a duty on defendant’s part to guard against injury to those assembled about it, and that, if the omission of that duty resulted in the plaintiff’s injury, it was a case of actionable negligence. Chicago, R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134 P. 876; Coast S. S. Co. v. Brady (C. C. A.) 8 F.(2d) 16. The defendant appreciated the danger by placing its agents as guards over the tractor. But they were remiss in the exercise of their duties, and permitted their attention to be diverted, when the tractor was caused by some one to run to the place of injury. The defendant was responsible for their omission of duty. The jury was well justified in finding there was negligence on their part, and this was the proximate cause of the accident. There was no evidence of contributory negligence on plaintiff’s part.
The trial court properly charged the jury that, in order for the plaintiff to recover, it must find that defendant’s negligence was the proximate cause of plaintiff’s injuries, that they were the natural and probable result, and that they ought to have been foreseen by the defendant in the exercise of the care a reasonable and prudent man would exercise, in the light of all the surrounding circumstances. Stanolind Oil & Gas Co. v. Brown (C. C. A.) 62 F.(2d) 398; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U. S. 249, 26 L. Ed. 1070; Snider v. Sand Springs Ry. Co. (C. C. A.) 62 F.(2d) 635.
The case was one for the jury. The defendant was not entitled to a peremptory instruction. Finding no error in the record, the judgment in this case is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
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, Plaintiff-Appellee, v. John RUPPEL, Defendant-Appellant.
No. 83-2380
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 9, 1984.
Rehearing and Rehearing En Banc Denied March 7, 1984.
Robert W. Ritchie, Richard A. Hamra, II, Knoxville, Tenn., for defendant-appellant.
Robert J. Wortham, U.S. Atty., Beaumont, Tex., Sidney M'. Glazer, Acting Chief, Robert J. Erickson, Deputy Chief, Appellate Section, Crim. Div., U.S. Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.
PER CURIAM:
John Ruppel was convicted in May 1980 of conspiring to violate the drug laws and of possession of marijuana with intent to distribute. 21 U.S.C. §§ 841, 846 (1976 & Supp.1981). Among the eight claims asserted in Ruppel’s direct appeal was that of prosecutorial vindictiveness. Ruppel argued that the Government violated due process when it reindicted him to bring the conspiracy and substantive drug charges after an earlier RICO indictment resulted in a mistrial because the jury was unable to reach a verdict. We affirmed Ruppel’s conviction. 666 F.2d 261 (5th Cir.), cert. denied, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). “Absent evidence of actual retaliation, mere reindictment after a mistrial due to a hung jury is insufficient to demonstrate the realistic likelihood of prosecutorial vindictiveness .... ” 666 F.2d at 267 (footnote omitted). Ruppel now challenges his conviction collaterally, 28 U.S.C. § 2255 (1976), raising as his sole ground the Supreme Court’s intervening decision in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The district court denied relief, and we affirm.
Ruppel reads Goodwin to establish that changes in the charging decision made after the initial trial presumptively result from improper prosecutorial motives. The Goodwin Court undoubtedly focused on the salient differences between pretrial and posttrial settings in determining whether a presumption of prosecutorial vindictiveness applied. 457 U.S. at 371, 102 S.Ct. at 2493. But Goodwin and every other prosecutorial vindictiveness decision since the doctrine was announced have been rooted in the proposition that one cannot be punished for exercise of a protected right. E.g., id. at 371, 102 S.Ct. at 2488; Bordenkircher v. Hayes, 434 U.S. 357, 362-64, 98 S.Ct. 663, 667-68, 54 L.Ed.2d 604 (1978); North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). Appellant unmoors developing doctrine from this original principle by ignoring one crucial fact: the altered charge in his case cannot have resulted from any exercise of right on his part. His first trial mistried not because of any action of appellant, but because the jury was simply unable to reach a verdict.
This case therefore presents no possibility of vindictiveness because Ruppel made no move for which the Government’s decision to reindict can be seen as exacting retribution. Compare United States v. Thurnhuber, 572 F.2d 1307, 1309-11 (9th Cir.1977) (no vindictiveness in addition of counts after mistrial on hung jury) with United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407, 415-16 (1974) (vindictiveness presumed from increased charges after trial court granted mistrial on defendant’s motion). But see United States v. Motley, 655 F.2d 186 (9th Cir.1981). The freedom of criminal defendants to exercise their legal rights is neither infringed nor chilled by the possibility that should the jury be unable to reach a verdict the prosecutor might “up the ante.” See United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) (en banc). We find nothing in Goodwin to undermine our original decision that due process was not violated by reindictment in this case.
AFFIRMED.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MARTIN v. HIATT, Warden.
No. 12666.
United States Court of Appeals Fifth Circuit.
May 9, 1949.
Rehearing Denied May 25, 1949.
Joe Freels Martin, of Atlanta, Ga., in prop. per.
Walter G. Cooper, of Atlanta, Ga., for amicus curiae Robt. Clayton St. Clair.
J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
This is another of the more than 1500 petitions for habeas corpus that have been filed in recent years in the Atlanta Division of the United States District Court for the Northern District of Georgia, wherein release from the custody of 'the United States Penitentiary at Atlanta has been sought
The petitioner here, who was sentenced to imprisonment for three years for violation of the National Motor Vehicle Theft Act, Title 18, U.S.C., Sec. 408 [now §§ 2311-2313], by the United State's District Court for the Eastern District of Kentucky, alleges that he was illegally held in custody without arraignment or bail from May 7 to May 21, 1948, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution; that between these dates petitioner was subjected to repeated and protracted questioning by members of the Kentucky State Highway Patrol and of the Federal Bureau of Investigation, during which “petitioner was threatened and coerced by use of reference to his past record and threatened’ reprisal against a you'ng lady in company of petitioner at the time of his arrest”; that he was advised that if he would sign a confession, the young lady in question would be released and he would be given an early trial rather than having to wait until the October term of the Court; that petitioner took notice of thi-s advice and having the welfare of the young lady in mind, as well as the threats of irrelevant matters, and being ignorant and untutored and without the advice of counsel or friends, he agreed to, and did, sign a confession, waive indictment, and plead guilty, in consequence of which he was sentenced. In short, he alleges violation of due process in being held without bail or arraignment between May 7 and May 21, 1948, and in being intimidated into signing a statement while being so held for such period.
The writ issued and upon final hearing the petitioner’s application was denied and he was remanded to the custody of the respondent because of the failure of the petitioner to comply with Sec. 2255 of Title 28 U.S.C.A., which reads in part as follows:
Ҥ 2255. Federal custody; remedies on motion attacking sentence
“A prisoner in custody under sentence of a court of Che United States claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
“A motion for such relief -may be made ■at any time.”
* * * * * *
“An application for a writ of 'habeas-corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to-the court which sentenced him, or that such court has denied 'him relief, unless it also appears that the remedy by motion is-inadequate o-r ineffective to test the legality of his detention.”
Petitioner, -appealing here, asserts that Sec. 2255 is in violation of Article 1, Sec. 9, Clause 2, of the Federal Constitution,, which provides that:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Concededly the great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion, and the sole question presented to us is whether o-r not Sec. 2255 is tantamount to a suspension of the writ.
The great writ is of such -antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status-has been far from static.
No attempt will be made here to trace its development through the ages, but it is interesting to note that since the First Judiciary Act of 1789 the statutes have provided that judges of the Supreme and District Courts of the United States should have the right to issue writs of habeas corpus, etc., “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”
From time immemorial it was thought that trial courts, State and Federal, had been invested with the primary duty of safeguarding the constitutional rights of defendants, and from the time of the enactment of the statute of 1789 until the present the courts have held in at least half a thousand cases that the writ of (habeas corpus cannot be used as a substitute for a writ of error or an appeal.
But for some reason, not readily discernible, there seems to 'have grown up the notion that final judgments in criminal trials in the lower courts should be attended by no favorable presumptions, and that only in the higher courts of the United States does constitutional justice really abide. In drawing to such courts the power through 'habeas corpus to supervise the “intrinsic fairness” of criminal trials in both State and Federal courts, there has been not only a disinclination to accord full faith and credit to final judgments of trial courts of competent jurisdiction but also a readiness to grant permission to petitioners, admittedly guilty of serious offenses, to dispute, orally, collaterally, and as often as they chose, the solemn records and final judgments of the courts.
It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. It was doubtless to these ends that Congress .passed Chap. 153, Title 28 U.S.C.A., §§ 2241 to 2255, inclusive, whereby to provide that an -attack upon a final judgment of conviction by a Federal court in a criminal case ought usually to be made first in the court that rendered such judgment, proximate to which the records, the witnesses, and the alleged despoilers of constitutional rights generally reside. It was doubtless believed that there the petitioners could get at these despoilers in frontal, rather than collateral, attacks, no more handicapped by estoppels of records or judgments than if the attacks were made in places far remote if they also alleged that the violated Constitution or “intrinsic fairness” was on their side. Then, if sudh a petitioner’s effort were an ineffective test or if he failed to succeed in the court that had cast the yoke upon him, the right of appeal would still be his; and if either or' both of these efforts should prove inadequate, then he should still have access to the great, age-old, and grossly abused writ of habeas corpus ad subjiciendum.
The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Section 454 [now § 2242], Title 28 U.S.C.A. If the petitioner be held under a judgment of a State court, a showing that he has exhausted his State remedies or that the State affords him no remedy is a condition precedent to maintaining the writ in the Federal court. If petitioner appeal's from a judgment of a court of the United States in a proceeding where the detention complained of is by virtue of process issued out of a State court, Sec 466 [now § 2253], Title 28 U.S.C.A., provides that no appeal will be allowed unless the judge of the United States court who rendered the final decision, or a judge of the appellate court, certifies that there is probable cause for the appeal.
The procedure in habeas corpus has been the subject of change by legislation down through the centuries but the intent and purpose of the writ have remained substantially unchanged. In the passage of Chapter 153, supra, Congress has not undertaken to suspend the writ but has set up procedure that is designed to supply a more appropriate remedy to those -unlawfully detained as well as to preserve the 'writ for those who are entitled to it and at the same time to protect it from abuse by those who do not deserve it, but who clamor for it incessantly. The additional remedy provided above has not ended or suspended the writ of habeas corpus although it may have lessened its abuse by placing some emphasis on the finality of final judgments against collateral attacks without limit, thereby rendering perjury less tempting to tho-se of little veracity, convenient memory, or evil purpose.
The Act in question has had the approval of the Judicial Conference of Senior Circuit Judges, the Congress of the United States, and United States District Courts in the cases of Lowe v. Humphrey, Warden, 80 F.Supp. 442, and Wong v. Vogel, 80 F.Supp. 723. Moreover, a presumption of constitutionality attends the Act. The provisions of Sec. 2255 — which are the only provisions of the chapter here under consideration — whether viewed as an additional method of testing the validity of a detention or as conditions precedent to the issuance of a writ, appear not only to he reasonable and valid but also as a highly desirable means of lessening the abuse of the writ.
The judgment of the lower Court is affirmed.
The order of the Court erroneously refers to the section as 2455 of Title 28 U.S.C.A. but the record clearly shows that the section involved was 2255 of Title 28 U.S.C.A.
Jenks, 18 Quarterly Law Review (1902), p. 64, et seq.
See 1 Stat. 81, Sec. 377, Title 28 U. S.C.A.; § 1651, Title 28 U.S.Code Annotated Judiciary and Judicial Procedure.
Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172.
Carter v. Illinois, supra.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re MARINE STEVEDORING CORPORATION. HANDFORD v. UNITED STATES.
No. 9487.
Circuit Court of Appeals Third Circuit.
Argued June 11, 1948.
Decided Aug. 18, 1948.
Roger M. Yancey, of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., H. G. Morison, Asst. Atty. Gen., and A. B. Holman, Atty., Department of Justice of Washington, D. C., on the brief), for appellant.
Herman W. Klausner, of Jersey City, N. J. (Carey & Lane, of Jersey City, N.J., on the brief), for appellee.
Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.
BIGGS, Circuit Judge.
The question attempted to be presented by the parties in the appeal at bar, though not by the record, is whether the United States is barred from filing a claim based on fraud by Section 57, sub. n of the Bankruptcy Act as amended, 11 U.S.C.A. § 93 sub. n. The court below, affirming a decision of the referee in bankruptcy, held that the claim of the United States was barred by the statute cited. The appeal at bar followed.
The record in the case at bar is so incomplete that we have had great difficulty in attempting to ascertain the operative facts and even now are not sure that we have done so. The pertinent circumstances must be ascertained upon remand but we think there is enough in the record as supplemented by a certification by an employee .in the office of . the referee in bankruptcy to demonstrate the error of the parties and of the court below. It appears from the docket entries that on October 26, 1943 a petition was filed by the bankrupt, then a “debtor,” pursuant to Chapter XI of the Bankruptcy Act. A receiver was appointed on October 30, 1943. What actually transpired in the ensuing six months period is not clear but we may assume that no Arrangement could be effected under Chapter XI for on May 17, 1944 the referee in bankruptcy caused a notice to be mailed to the creditors of Marine Stevedoring Corporation, viz. “To the Creditors of the Above Named Bankrupt,” stating that “Notice is hereby given that on the 12th day of May, 1944, an order was entered withdrawing the plan of arrangement and adjudicating the debtor a bankrupt. Proofs of claim with itemized statement of account, must be legally proved; * * * They must be proved within three months of the date hereof and filed with the * * * Referee.” This notice was dated May 17, 1944, and signed by the referee to whom the matter stood referred. A trustee in bankruptcy was appointed by the referee on May 20, 1944 according to the docket entries and on the same day (probably at a slightly later time as suggested by the order of the docket entries) an order was made adjudging the debtor a bankrupt pursuant to Section 376(2) of the Bankruptcy Act, 11 U.S.C.A. § 776(2). Apparently the first meeting of creditors was not held by the referee pursuant to Section 55 of the Bankruptcy Act, 11 U.S.C.A. § 91, as required by Section 355 of the Bankruptcy Act, 11 U.S.C.A. § 755, albeit the notice to file claims quoted above was sent out in accordance with Section 355 of the Bankruptcy Act. Apparently the referee “continued” as trustee in bankruptcy the trustee appointed in the Chapter XI proceeding, whether the latter came into office just prior to the adjudication in bankruptcy or eight days later. See note 2 supra.
Upon remand the referee in bankruptcy must set a date for the first meeting of creditors and give notice thereof pursuant to Section 55 as required by Section 355 of the Act. Thereafter, all creditors, save ■those who have special status by reason of the provisions of Section 57, sub. n of the Bankruptcy Act, to be dealt with hereinafter, must file their claims within three months as required by Section 355 if not filed during the course of the Chapter XI proceeding. In this connection attention is directed to the clear and explicit opinion of Judge Chesnut of the District Court of Maryland in In re Credit Service, 38 F.Supp. 761, and in particular to the contents of pages 763, 764. See also the opinion of Judge Clark in Hi-Flier Mfg. Co. v. Haberman, 2 Cir., 115 F.2d 918, and the opinion of Judge Chesnut in In re Credit Service, D.C.D.Md., 45 F.Supp. 890, 892, 893. See also Collier on Bankruptcy, Vol. 8, 14th Ed., p. 1011. What these authorities have so well stated need not he repeated in this opinion.
Qaims of the United States or of any State or subdivision thereof are awarded a special period for filing under Section 57, sub. n, which in pertinent part provides : “ * * * all claims provable under this Act, including all claims of the United States and of any State or subdivision thereof, shall be proved and filed in the manner provided in this section. Claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed: Provided, however, That the court may, upon application before the expiration of such period and for cause shown, grant a reasonable fixed extension of time for the filing of claims by the United States or any State or subdivision thereof. * * * ” Claims of the United States are barred only under Section 57 sub. n, which bars them if not filed within six months after the first date set for the first meeting of creditors unless an extension be procured as provided by the statute. In this connection attention is called to the well considered opinion of Judge Goddard in In re Dorb The Chemist Pharmacies, D.C.S.D.N.Y., 29 F.Supp. 832, 833, 834, in which it is stated: “Section 57, sub. n, of the Bankruptcy Act was amended by the Chandler Act, 11 U.S.C.A. § 93, sub. n, to provide that all claims, including claims of the United States, or any state or subdivision thereof, must be filed within a six months’ period. The amendment expressly includes them so as to bar such claims after six months. Such claims are barred only under § 57, sub. n, of the Bankruptcy Act which bars them if not filed within six months after the first date set for the first meeting of creditors. Evidence that the Congress intended the six months’ period to apply to such claims when reorganization under Chapter XI failed and adjudication ordered, is found in § 378, sub. 2 of the Bankruptcy Act, 11 U.S.C.A. § 778, sub. 2, which provides that when in a Chapter XI proceeding, bankruptcy is directed to be proceeded with, the proceeding thereof shall be conducted as far as possible ‘in the same manner and with like effect as if a bankruptcy petition for adjudication, in bankruptcy had been filed * * */ It seems clear therefore that the Congress, in enacting the Chandler Act expressly intended the six months’ bar to cover claims of the United States, a state, or a municipality, for if the Congress had desired to make the three months’ bar apply to such claims, it would undoubtedly have included them in § 355.”
Since the first meeting of creditors has not been held as required by Section 55 of the Bankruptcy Act the time limit imposed by Section 57, sub. n, upon the filing of claims by the United States has not yet begun to run and the claim of the United States based on fraud is not barred., Under the circumstances it would he bootless to embark upon any interpretation of the provisions of Section 57, sub. n, as to whether a claim of the United States based upon fraud would be barred if not filed within six months after the first date set for the first meeting of creditors or within such extension of time as might have been granted by the court.
The judgment of the court below will be vacated and the case will be remanded with directions to proceed in conformity with this opinion.
it is not clear from the record when the claim was offered for filing to the referee. The date is stated in the briefs of the parties as “on or about August 7, 1946”. Tho precise date is immaterial for the reasons stated in this opinion.
The following order was made by this court to the end that the inadequate record filed herein might be supplemented: “And now, to wit, this 23rd day of July, 1948, it is ordered that the Clerk of the District Court of the United States for the District of New Jersey forthwith certify to the Clerk of this Court a copy of the notice setting the first date for the first meeting of creditors of the above named bankrupt as the same shall be certified to him by the referee to whom the above entitled matter stands referred.”
A certified copy of this order was forwarded to the Clerk of the District Court for the District of New Jersey who responded to it by causing the office of the referee in bankruptcy to communicate with the writer of this opinion by the letter set out in note 4 infra, enclosing a certified copy of the notice set out in the body of the opinion and a certification that that notice was mailed to the creditors named in the bankrupt’s schedule.
We take occasion to point out that the records of the referees in bankruptcy are records of the respective district courts of the United States and that the clerks of the district courts may certify such records on certification to them by the referees.
The Clerk of this court will be directed to place the communication from the referee and its attendant papers with the record in this case.
The notice recites that an order was made adjudicating the debtor a bankrupt on May 12, 1944. The docket entries show that an order was entered adjudicating the debtor a bankrupt pursuant to Section 376(2) of the Bankruptcy Act, 11 U.S.C.A. § 776(2), on May 20, 1944. We will assume the docket entries to be correct in respect to this matter which is immaterial insofar as the real issue presented by the appeal is concerned.
In a letter to the present writer dated July 27, 1948, signed by the referee in bankruptcy by an agent, purportedly in compliance with the order of this court referred to in note 1, supra, the following is stated: “I herewith enclose proof of mailing notice of time for filing claims. In as much as the trustee, nominated in the Chapter XII proceedings, was appointed in the bankruptcy, the enclosed notice [quoted in the body of this opinion] was mailed in accordance with Section 355 of the Bankruptcy Act No notice of first meeting was mailed.”'
No reason appears in the record to-justify the appointment of a trustee in a Chapter XI proceeding at such a lato date. Such a practice, if it was effected, has the effect of circumventing the provisions of Section 55.
The record does not disclose that a first meeting of creditors as required by Section 55 of the Bankruptcy Act has been held or that any notice of a meeting was given. The briefs of the parties are ambiguous on these points. The brief of the appellant speaks of «* * * notices * * * directed [in] accordance with the usual practice of the United States District Court * * The brief of the appellee contains a substantially similar statement.
No notice of the first meeting of creditors has been certified to us by the Clerk of the District Court in accordance with our order of July 23, 1948. The referee’s office, however irregular the form of the communication, states categorically that no notice of a first meeting of creditors was dispatched. Under the circumstances we think it may be assumed that no notice as required by the Act was given and, in the interests of expedition it has seemed desirable to dispose of the substantial question presented by the appeal without the delay ■ necessarily encumbent upon the . procurement of an adequate and proper record.
Wo note parenthetically, that the attorney for the United States is under the impression (see p. 1 of his brief) that the bankrupt prior to its adjudication was in an equity receivership in the New Jersey Court of Chancery. Compare the docket entries in the case at bar. This is the only suggestion of a proceeding in a State court contained in any of tlxe papers. In any event any proceeding in equity is irrelevant to the issue which was before the court below.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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sc_authoritydecision
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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.
DUNAWAY v. NEW YORK
No. 78-5066.
Argued March 21, 1979 —
Decided June 5, 1979
Edward J. Nowak argued the cause for petitioner. With him on the brief was James M. Byrnes.
Melvin Bressler argued the cause for respondent. With him on the brief was Lawrence T. Kurlander.
Richard Emery and Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Mr. Justice Brennan
delivered the opinion of the Court.
We decide in this case the question reserved 10 years ago in Morales v. New York, 396 U. S. 102 (1969), namely, “the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.” Id., at 106.
I
On March 26, 1971, the proprietor of a pizza parlor in Rochester, N. Y., was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi of the Rochester Police was told by another officer that an informant had supplied a possible lead implicating petitioner in the crime. Fantigrossi questioned the supposed source of the lead — a jail inmate awaiting trial for burglary — but learned nothing that supplied “enough information to get a warrant” for petitioner’s arrest. App. 60. Nevertheless, Fantigrossi ordered other detectives to “pick up” petitioner and “bring him in.” Id., at 54. Three detectives located petitioner at a neighbor’s house on the morning of August 11. Petitioner was taken into custody; although he was not told he was under arrest, he would have been physically restrained if he had attempted to leave. Opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116, 117. He was driven to police headquarters in a police car and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner waived counsel and eventually made statements and drew sketches that incriminated him in the crime.
At petitioner’s jury trial for attempted robbery and felony murder, his motions to suppress the statements and sketches were denied, and he was convicted. On appeal, both the Appellate Division of the Fourth Department and the New York Court of Appeals initially affirmed the conviction without opinion. 42 App. Div. 2d 689, 346 N. Y. S. 2d 779 (1973), aff’d, 35 N. Y. 2d 741, 320 N. E. 2d 646 (1974). However, this Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of the Court’s supervening decision in Brown v. Illinois, 422 U. S. 590 (1975). 422 U. S. 1053 (1975). The petitioner in Brown, like petitioner Dunaway, made inculpatory statements after receiving Miranda warnings during custodial interrogation following his seizure — in that case a formal arrest — on less than probable cause. Brown’s motion to suppress the statements was also denied and the statements were used to convict him. Although the Illinois Supreme Court recognized that Brown’s arrest was unlawful, it affirmed the admission of the statements on the ground that the giving of Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements. This Court reversed, holding that the Illinois courts erred in adopting a per se rule that Miranda warnings in and of themselves sufficed to cure the Fourth Amendment violation; rather the Court held that in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment.
In compliance with the remand, the New York Court of Appeals directed the Monroe County Court to make further factual findings as to whether there was a detention of petitioner, whether the police had probable cause, “and, in the event there was a detention and probable cause is not found for such detention, to determine the further question as to whether the making of the confessions was rendered infirm by the illegal arrest (see Brown v. Illinois, 422 U. S. 590, supra).” People v. Dunaway, 38 N. Y. 2d 812, 813-814, 345 N. E. 2d 583, 584 (1975).
The County Court determined after a supplementary suppression hearing that Dunaway’s motion to suppress should have been granted. Although reaffirming that there had been “full compliance with the mandate of Miranda v. Arizona,” the County Court found that “this case does not involve a situation where the defendant voluntarily appeared at police headquarters in response to a request of the police....” App. 117. The State’s attempt to justify petitioner’s involuntary investigatory detention on the authority of People v. Morales, 22 N. Y. 2d 55, 238 N. E. 2d 307 (1968)— which upheld a similar detention on the basis of information amounting to less than probable cause for arrest — was rejected on the grounds that the precedential value of Morales was questionable, and that the controlling authority was the “strong language” in Brown v. Illinois indicating “disdain for custodial questioning without probable cause to arrest.” The County Court further held that “the factual predicate in this case did not amount to probable cause sufficient to support the arrest of the defendant,” that “the Miranda warnings by themselves did not purge the taint of the defendant’s illegal seizure [,] Brown v. Illinois, supra, and [that] there was no claim or showing by the People of any attenuation of the defendant’s illegal detention,” App. 121. Accordingly petitioner’s motion to suppress was granted. Ibid.
A divided Appellate Division reversed. Although agreeing that the police lacked probable cause to arrest petitioner, the majority relied on. the Court of Appeals’ reaffirmation, subsequent to the County Court’s decision, that “[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights.” 61 App. Div. 2d 299, 302, 402 N. Y. S. 2d 490, 492 (1978), quoting People v. Morales, 42 N. Y. 2d 129, 135, 366 N. E. 2d 248, 251 (1977). The Appellate Division also held that even if petitioner’s detention were illegal, the taint of his illegal detention was sufficiently attenuated to allow the admission of his statements and sketches. The Appellate Division emphasized that petitioner was never threatened or abused by the police and purported to distinguish Brown v. Illinois, The Court of Appeals dismissed petitioner’s application for leave to appeal. App. 134.
We granted certiorari, 439 U. S. 979 (1978), to clarify the Fourth Amendment’s requirements as to the permissible grounds for custodial interrogation and to review the New York court’s application of Brown v. Illinois. We reverse.
II
We first consider whether the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported him to the police station, and detained him there for interrogation.
The Fourth Amendment, applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), provides: “The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause....” There can be little doubt that petitioner was “seized” in the Fourth Amendment sense when he was taken involuntarily to the police station. And respondent State concedes that the police lacked probable cause to arrest petitioner before his incriminating statement during interrogation. Nevertheless respondent contends that the seizure of petitioner did not amount to an arrest and was therefore permissible under the Fourth Amendment because the police had a “reasonable suspicion” that petitioner possessed “intimate knowledge about a serious and unsolved crime.” Brief for Respondent 10. We disagree.
Before Terry v. Ohio, 392 U. S. 1 (1968), the Fourth Amendment’s guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term “arrest” was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The “long-prevailing standards” of probable cause embodied “the best compromise that has been found for accommodating [the] often opposing interests” in “safeguard [ing] citizens from rash and unreasonable interferences with privacy” and in “seek[ing] to give fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U. S. 160, 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest “reasonable” under the Fourth Amendment. The standard applied to all arrests, without the need to “balance” the interests and circumstances involved in particular situations. Cf. Camara v. Municipal Court, 387 U. S. 523 (1967).
Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an “arrest.” Nevertheless, the Court held that even this type of “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” constituted a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” 392 U. S., at 20, 17, and therefore “must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Id., at 20. However, since the intrusion involved in a “stop and frisk” was so much less severe than that involved in traditional “arrests,” the Court declined to stretch the concept of “arrest” — and the general rule requiring probable cause to make arrests “reasonable” under the Fourth Amendment — to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis “rubric of police conduct,” ibid. And to determine the justification necessary to make this specially limited intrusion “reasonable” under the Fourth Amendment, the Court balanced the limited violation of individual privacy involved against the opposing interests in crime prevention and detection and in the police officer’s safety. Id., at 22-27. As a consequence, the Court established “a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id., at 27. Thus, Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment “seizures” so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment “seizures” reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.
Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons. Two subsequent cases which applied Terry also involved limited weapons frisks. See Adams v. Williams, 407 U. S. 143 (1972) (frisk for weapons on basis of reasonable suspicion); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (order to get out of car is permissible “de minimis” intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after “bulge” observed in jacket). United States v. Brignoni-Ponce, 422 U. S. 873 (1976), applied Terry in the special context of roving border patrols stopping automobiles to check for illegal immigrants. The investigative stops usually consumed less than a minute and involved “a brief question or two.” 422 U. S., at 880. The Court stated that “ [b] ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest.” Ibid. See also United States v. Martines-Fuerte, 428 U. S. 543 (1976) (fixed checkpoint to stop and check vehicles for aliens); Delaware v. Prouse, 440 U. S. 648 (1979) (random checks for drivers’ licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion).
Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that “seizures” such as that in this case may be justified by mere “reasonable suspicion.” Terry and its progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the “long-prevailing standards” of probable cause, Brinegar v. United States, 338 U. S., at 176, only because these intrusions fell far short of the kind of intrusion associated with an arrest. Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated: “The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” 422 U. S., at 881-882 (emphasis added). Accord, United States v. Martinez-Fuerte, supra, at 567.
In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was “free to go”; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an “arrest” under state law. The mere facts that petitioner was not told he was under arrest, was not “booked,” and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U. S. 291 (1973), obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are “reasonable” only if based on probable cause.
The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Henry v. United States, 361 U. S. 98, 100 (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.” Id., at 101 (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the “reasonableness” requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, supra, at 175-176.
In effect, respondent urges us to adopt a multifactor balancing test of “reasonable police conduct under the circumstances” to cover all seizures that do not amount to technical arrests. But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the “often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948). A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite “balancing” has been performed in centuries of precedent and is embodied in the principle that seizures are “reasonable” only if supported by probable cause.
Moreover, two important decisions since Terry confirm the conclusion that the treatment of petitioner, whether or not it is technically characterized as an arrest, must be supported by probable cause. Davis v. Mississippi, 394 U. S. 721 (1969), decided the Term after Terry, considered whether fingerprints taken from a suspect detained without probable cause must be excluded from evidence. The State argued that the detention “was of a type which does not require probable cause,” 394 U. S., at 726, because it occurred during an investigative, rather than accusatory, stage, and because it was for the sole purpose of taking fingerprints. Rejecting the State’s first argument, the Court warned:
“[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Id., at 726-727.
The State’s second argument in Davis was more substantial, largely because of the distinctions between taking fingerprints and interrogation:
“Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the ‘third degree.’ Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time.” Id., at 727.
In Davis, however, the Court found it unnecessary to decide the validity of a “narrowly circumscribed procedure for obtaining” the fingerprints of suspects without probable cause— in part because, as the Court emphasized, “petitioner was not merely fingerprinted during the... detention but also subjected to interrogation.” Id., at 728 (emphasis added). The detention therefore violated the Fourth Amendment.
Brown v. Illinois, 422 U. S. 590 (1975), similarly disapproved arrests made for “investigatory” purposes on less than probable cause. Although Brown’s arrest had more of the trappings of a technical formal arrest than petitioner’s, such differences in form must not be exalted over substance. Once in the police station, Brown was taken to an interrogation room, and his experience was indistinguishable from petitioner’s. Our condemnation of the police conduct in Brown fits equally the police conduct in this case:
“The impropriety of the arrest was obvious; awareness’ of the fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was 'for investigation’ or for 'questioning.’... The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up.” Id., at 605.
See also id., at 602.
These passages from Davis and Brown reflect the conclusion that detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.
Ill
There remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner’s illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches. See Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939); Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920).
The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were “voluntary” for purposes of the Fifth Amendment. But Brown v. Illinois, supra, settled that “[t]he exclusionary rule,... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth,” 422 U. S., at 601, and held therefore that “Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.” Ibid.
“If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.... Arrests made without warrant or without probable cause, for questioning or 'investigation/ would be encouraged by the knowledge that evidence derived therefrom, could well be made admissible at trial by the simple, expedient of giving Miranda warnings.” Id., at 602.
Consequently, although a confession after proper Miranda warnings may be found “voluntary” for purposes of the Fifth Amendment, this type of “voluntariness” is merely a “threshold requirement” for Fourth Amendment 'analysis, 422 U. S., at 604. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached.
Beyond this threshold requirement, Brown articulated a test designed to vindicate the “distinct policies and interests of the Fourth Amendment.” Id., at 602. Following Wong Sun, the Court eschewed any per se or “but for” rule, and identified the relevant inquiry as “whether Brown’s statements were obtained by exploitation of the illegality of his arrest,” 422 U. S., at 600; see Wong Sun v. United States, supra, at 488. Brown’s, focus on “the causal connection between the illegality and the confession,” 422 U. S., at 603, reflected the two policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.
Brown identified several factors to be considered “in determining whether the confession is obtained by exploitation of an illegal arrest [: t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances,... and, particularly, the purpose and flagrancy of the official misconduct.... And the burden of showing admissibility rests, of course, on the prosecution.” Id., at 603-604. Examining the case before it, the Court readily concluded that the State had failed to sustain its burden of showing the confession was admissible. In the “less than two hours” that elapsed between the arrest and the confession “there was no intervening event of significance whatsoever.” Ibid. Furthermore, the arrest without probable cause had a “quality of purposefulness” in that it was an “expedition for evidence” admittedly undertaken “in the hope that something might turn up.” Id., at 605.
The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police conduct was “highly protective of defendant’s Fifth and Sixth Amendment rights.” 61 App. Div. 2d, at 303, 402 N. Y. S. 2d, at 493. This betrays a lingering confusion between “voluntariness” for purposes of the Fifth Amendment and the “causal connection” test established in Brown. Satisfying the Fifth Amendment is only the “threshold” condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow “law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth.”
Reversed.
Me. Justice Powell took no part in the consideration or decision of this case.
See opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116-117. An informant had reportedly told the other detective that one James Cole had said that he and someone named “Irving” had been involved in the crime. The informant did not know “Irving’s” last name, but had identified a picture of petitioner Dunaway from a police file. After hearing this information, Fantigrossi interviewed Cole, who was in jail pending an indictment for burglary. Cole denied any involvement in the crime, but stated that he had been told about it two months earlier by another inmate, Hubert Adams. According to Cole, Adams had mentioned that his younger brother, Ba Ba Adams, had told him that he and a fellow named “Irving,” also known as “Axelrod,” had been involved in the crime.
See 61 App. Div. 2d 299, 301, 402 N. Y. S. 2d 490, 491 (1978). The first statement was made within an hour after Dunaway reached the police station; the following day he made a second, more complete statement.
We granted certiorari in Morales and noted that “[t]he ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Sibron v. New York, 392 U. S. 40 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U. S. 721 (1969).” Morales v. New York, 396 U. S. 102, 104-105 (1969). Nevertheless, inadequacies in the record led us to remand for further development and to reserve the issue we decide today for a record that “squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises.’’ Id., at 105. On remand, the New York courts determined that Morales had gone to the police voluntarily. People v. Morales, 42 N. Y. 2d 129, 137-138, 366 N. E. 2d 248, 252-253 (1977).
App. 118; see Brown v. Illinois, 422 U. S., at 602, 605.
61 App. Div. 2d, at 303-304, 402 N. Y. S. 2d, at 493. Two of the five members of the court dissented on this issue. Id., at 304, 402 N. Y. S. 2d, at 493 (Denman, J., concurring); id., at 305, 402 N. Y. S. 2d, at 494 (Cardamone, J., dissenting).
“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has'seized’ that person.” Terry v. Ohio, 392 U. S. 1, 16 (1968). Respondent contends that petitioner accompanied the police voluntarily and therefore was not “seized.” Brief for Respondent 7-9. The County Court found otherwise, App. 117, quoted supra, at 205; and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion. See 61 App. Div. 2d, at 302-303, 402 N. Y. S. 2d, at 492. See also ALI, Model Code of Pre-Arraignment Procedure § 2.01 (3) and commentary, p. 91 (Tent. Draft No. 1, 1966) (request to come to police station “may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen”).
Both the County Court and the Appellate Division'found that the police lacked probable cause, and respondent does not question those findings here. See 61 App. Div. 2d, at 302, 402 N. Y. S. 2d, at 492; App. 120, citing Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1964).
See, e. g., Warden v. Hayden, 387 U. S. 294 (1967) (hot pursuit); United States v. Watson, 423 U. S. 411 (1976) (felony arrests in public places).
“Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested].” Brinegar v. United States, 338 U. S. 160, 175-176 (1949), quoting Carroll v. United States, 267 U. S. 132, 162 (1925). See generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 436-480 (1978).
See Gerstein v. Pugh, 420 U. S. 103, 111-112 (1975); Ker v. California, 374 U.S. 23 (1963).
The Court stressed the limits of its holding: the police officer’s belief that his safety or that of others is in danger must be objectively reasonable — based on reasonable inferences from known facts — so that it can be tested at the appropriate time by “the more detached, neutral scrutiny of a judge,” 392 U. S., at 21, 27; and the extent of the intrusion must be carefully tailored to the rationale justifying it.
Terry specifically declined to address “the constitutional propriety of an investigative'seizure’ upon less than probable cause for purposes of 'detention’ and/or interrogation.” Id., at 19 n. 16. Mr. Justice White, in a concurring opinion, made these observations on the matter of interrogation during an investigative stop:
“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.
“[B] ecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.” 422 U. S., at 881.
The factors that respondent would consider relevant in its balancing test, and the scope of the rule the test would produce, are not completely clear. The Appellate Division quoted two apparently different tests from the Court of Appeals opinion in People v. Morales, 42 N. Y. 2d 129, 366 N. E. 2d 248 (1977):
“£[L]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights’ (42 NY2d, at p. 135). '“[A] policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter” ’ (42 NY2d, at p. 137, quoting from People v. De Bour, 40 NY2d 210, 219).” 61 App. Div. 2d, at 302, 402 N. Y. S. 2d, at 492.
Then, in characterizing the ease before it, the Appellate Division suggested yet a third “test”:
“[T]his case involves a brief detention for interrogation based upon reasonable suspicion, where there was no formal accusation filed against defendant and where great public interest existed in solving a brutal crime which had remained unsolved for a period of almost five months.” Id., at 303, 402 N. Y. S. 2d, at 492.
See n. 14, supra.
While the rule proposed by respondent is not entirely clear, the Appellate Division cited with approval a test that would require an officer to weigh before any custodial interrogation “the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.” See n. 14, supra.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_authoritydecision
|
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.
RENO, ATTORNEY GENERAL, et al. v. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE et al.
No. 97-1252.
Argued November 4,1998
Decided February 24, 1999
Malcolm L. Stewart argued the cause for petitioners. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, and Douglas N. Letter.
David D. Cole argued the cause for respondents. With him on the brief were Steven R. Shapiro, Lucas Guttentag, Marc Van Der Rout, and Paul L. Hoffman
Briefs of amici mriae urging reversal were filed for the Criminal Justice Legal Foundation by Kent S. Sekeidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. the American
Briefs of amici mriae urging affirmance were filed for the American Bar Association by Philip S. Anderson, Jeffrey L. Bleich, and Carol Wol-chok; for the American Immigration Law Foundation et al. by Ira J. Kurz-ban and Nadine K Wettstein; for the Brennan Center for Justice at New York University School of Law by Burt Neubome; and for the National Immigration Law Center by Linton Joaquin and Gerald L. Newman.
Justice Scalia
delivered the opinion of the Court.
Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which contains a provision restricting judicial review of the Attorney General’s "decision or action” to "commence proceedings, adjudicate eases, or execute removal orders against any alien under this Act.” 8 U. S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents’ suit.
I
The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the MeCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who “advocate... world communism.” See 8 U. S. C. §§ 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status. See 8 U. S. C. §§ 1251(a)(2) and (a)(9) (1988 ed.).
Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the MeCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy-of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating “the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers” and “the unlawful damage, injury, or destruction of property.” See 8 U. S. C. §§ 1251(a)(6)(F)(ii)-(iii) (1982 ed.). INS regional counsel William Odenerantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents’ deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045, 1053 (CA9 1995) (AADC I). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.
Since this suit seeking to prevent the initiation of deportation proceedings was filed — in 1987, during the administration of Attorney General Edwin Meese — it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh’s claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here.
AADC I, supra, was the Ninth Circuit’s first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General’s argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U. S. C. § 1105a, precluded review of such a claim until a deportation order issued. See 70 F. Bd, at 1056-1057. The Ninth Circuit remanded the case to the District Court, whieh entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General’s request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP.
While the Attorney General’s appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in § 1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. § 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that § 1252(g) deprived them of jurisdiction over respondents’ selective-enforcement claim. The District Court denied the motion, and the Attorney General’s appeal from that denial was consolidated with the appeal already pending in the Ninth Circuit.
It is the judgment and opinion in that appeal which is before us here: 119 F. 3d 1367 (CA9 1997). It affirmed the existence of jurisdiction under § 1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374-1376. The Attorney General’s petition for rehearing en banc was denied over the dissent of three judges, 132 F. 3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U. S. 903 (1998).
II
Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U. S. C. § 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for... the judicial review of all final orders of deportation” shall be that set forth in the Hobbs Act, 28 U. S. C. §2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see §2342. Much of the Court of Appeals’ analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F. 3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the ease to the agency, see 28 U. S. C. § 2347(e), or transfer it to a district court, see § 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents’ only means of obtaining factual development and thus judicial review of their selective-enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U. S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U. S. C. § 1331, or the general jurisdictional provision of the INA, see 8 U. S. C. § 1329.
Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, § 1105a continues to apply to this ease. On the surface of things, at least, it does not. Although the general rule set forth in § 309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of § 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA’s effective date, see note following 8 U. S. C. § 1101 (1994 ed., Supp. Ill), § 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows:
"(g) Exclusive Jurisdiction
"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.”
This provision seemingly governs here, depriving the federal courts of jurisdiction “[ejxcept as provided in this section.” But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated § 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as “a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals.” Supplemental Brief for Appellants in No. 96-55929 (GA9), p. 2. Respondents have described it as applying to “most of what INS does.” Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of § 1252(g), combined with IIRIRA’s effective-date provisions, creates an interpretive anomaly. If the jurisdiction-excluding provision of § 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) “[ejxeept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” § 1252 provides jurisdiction is simply to say that § 1252’s jurisdictional limitations apply to pending cases as well as future cases — which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase “[except as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252 — if § 1252(g) stood alone, so to speak — judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order.
The Attorney General would have us avoid the horns of this dilemma by interpreting § 1252(g)’s phrase “[ejxeept as provided in this section” to mean “except as provided in § 1105a.” Because § 1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit’s position in AADCI that application of § 1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General’s interpretation is that it is impossible to understand how the qualifier in § 1252(g), “[ejxeept as provided in this section” (emphasis added), can possibly mean “except as provided in § 1105a.” And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a “literal application” of the statute “would create an anomalous result.” Brief for Petitioners 30, n. 15.
Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under §1252. They argue that § 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase “[ejxeept as provided in this section” can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of § 1252. But this approach collides head-on with §306(c)’s prescription that § 1252(g) shall apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. Ill) (emphasis added). (Respondents argue in the alternative, of course, that if the Attorney General is right and § 1105a does apply, A ADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA, will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.)
The Ninth Circuit, for its part, accepted the parties' broad reading of § 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant § 1252(g) to stand alone:
“Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute’s enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result.” 119 F. 3d, at 1372.
It recognized, however, the existence of the other horn of the dilemma (“that retroactive application of the entire amended version of 8 U. S. C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA,” ibid.), and resolved the difficulty to its satisfaction by concluding that “at least some of the other provisions of section 1252” must be included in subsection (g) “when it applies to pending cases.” Ibid, (emphasis added). One of those provisions, it thought, must be subsection (f), entitled “Limit on Injunctive Relief,” which reads as follows:
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated.”
The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present ease. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by § 1252(b)(9), which provides:
“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.”
The Ninth Circuit replied that, even if § 1252(b)(9) were one of those provisions incorporated into the transitional application of § 1252(g), it could not preclude this suit for the same reason A ADC I had held that § 1105a could not do so— namely, the Court of Appeals’ lack of access to factual findings regarding selective enforcement.
Even respondents scarcely try to defend the Ninth Circuit’s reading of § 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear.
We think the seeming anomaly that prompted the parties’ strained readings of § 1252(g) — and that at least accompanied the Court of Appeals’ strained reading — -is a mirage. The parties’ interpretive acrobatics flow from the belief that § 306(c)(1) cannot be read to envision a straightforward application of the “[ejxcept as provided in this section” portion of § 1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that § 1252(g) covers the universe of deportation claims — that it is a sort of “zipper” clause that says “no judicial review in deportation cases unless this section provides judicial review.” In fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.
It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetie to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated by the text of § 1252(b)(9), which stands in stark contrast to § 1252(g).
It could be argued, perhaps, that § 1252(g) is redundant if it channels judicial review of only some decisions and actions, since § 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only § 1252(g), and not § 1252(b)(9) (except to the extent it is incorporated within § 1252(g)), applies to what § 309(e)(1) calls “transitional eases,” that is, eases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review — even as to transitional cases otherwise governed by § 1105a rather than the unmistakable “zipper” clause of § 1252(b)(9) — certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, § 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of § 1105a, are covered by the “zipper” clause of § 1252(b)(9). It is rather the Court of Appeals’ and the parties’ interpretation which renders § 1252(g) entirely redundant, adding to one “zipper” clause that does not apply to transitional eases, another one of equal scope that does apply to transitional eases. That makes it entirely inexplicable why the transitional provisions of § 306(c) refer to § 1252(g) instead of § 1252(b)(9) — and why § 1252(g) exists at all.
There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commencing] proceedings, adjudicating] cases, [and] executing] removal orders” — which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. As one treatise describes it:
“To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A ease may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §72.03[2][h] (1998).
See also Johns v. Department of Justice, 653 F. 2d 884, 890-892 (CA5 1981). Since no generous act goes unpunished, however, the INS’s exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it.
“[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative discretion.... Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.” Gordon, Mailman, & Yale-Loehr, supra, § 72.03[2][a] (footnotes omitted).
Such litigation was possible because courts read §1105a,s prescription that the Hobbs Act shall be “the sole and exclusive procedure for the judicial review of all final orders of deportation” to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. INS, 392 U. S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95-01851 (D. D. C., July 23, 1996) (review of execution of removal order), described in and rev’d on other grounds, 114 F. 3d 1210 (CADC 1997); AADC I, 70 F. 3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F. 2d 187, 195 (CA2 1975) (same, dicta). Section 1252(g) seems clearly designed to give some measure of protection to “no deferred action” decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.
Of course many provisions of IIRIRA are aimed at protecting the Executive’s discretion from the courts — indeed, that can fairly be said to be the theme of the legislation. See, e. g., 8 U. S. C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); § 1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); § 1252(a)(2)(C) (barring review of final removal orders against criminal aliens); § 1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). It is entirely understandable, however, why Congress would want only the discretion-protecting provision of § 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.
Our narrow reading of § 1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between § 306(c)(1) and § 809(c)(1). In cases to which § 1252(g) applies, the rest of § 1252 is incorporated through the “[e]xcept as provided in this section” clause. This incorporation does not swallow §309(c)(l)’s general rule that §§ 1252(a)-(f) do not apply to pending cases, for § 1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to § 306(e)(l)’s command that § 1252(g) be applied “without limitation” (i. e., including the “[e]xeept as provided” clause) to "claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.”
Respondents’ challenge to the Attorney General’s decision to “commence proceedings” against them falls squarely within § 1252(g) — -indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind — and nothing elsewhere in § 1252 provides for jurisdiction. Gf. § 1252(a)(1) (review of final orders); § 1252(e)(2) (limited habeas review for excluded aliens); § 1252(e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, § 1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant.
Ill
Finally, we must address respondents’ contention that, since the lack of prior factual development for their claim will render the § 1252(a)(1) exception to § 1252(g) unavailing; since habeas relief will also be unavailable; and since even if one or both were available they would come too late to prevent the “chilling effect” upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret § 1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter — and assuredly in the context of claims such as those put forward in the present case — an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.
Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive — its prosecutorial discretion — we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce “clear evidence” displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U. S. 456, 463-465 (1996). We have said:
“This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government’s enforcement priorities, and the ease’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.” Wayte v. United States, 470 U. S. 598, 607-608 (1985).
These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien’s status will change — by, for example, marriage to an American citizen — or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements. And as for “chill[ing] law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry”: What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and tech-ñiques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat — or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals — and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases — the interest of the target in avoiding “selective” treatment — is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see Carlson v. Landon, 342 U. S. 524, 537 (1952). In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing.
To resolve the present controversy, we need not rule out the possibility of a rare ease in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.
* * *
Because 8 U. S. C. § 1252(g) deprives the federal courts of jurisdiction over respondents’ claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court.
It is so ordered.
Justice Breyer joins Parts I and II of this opinion.
Respondents Barakat and Sharif were subsequently granted legalization and are no longer deportable based on the original status violations. Brief for Petitioners 11, n. 5.
When the MeCarran-Walter Aet was repealed, a new “terrorist activity” provision was added by the Immigration Act of 1990. See 8 U. S. C. § 1227(a)(4)(B) (1994 ed., Supp. III). The INS charged Hamide and She-hadeh tmder this, but it is unclear whether that was in addition to, or in substitution for, the old McCarran-Walter charges. and for
The amended complaint was styled as an action for “damages and for declaratory and injunctive relief,” but the only monetary relief specifically requested was “costs of suit and attorneys fees.” App. 20, 51.
This latter provision was subsequently amended by IIRIRA to make clear that it applies only to actions brought by the United States. See 8 U. S. C. § 1329 (1994 ed., Supp. III).
Section 309(c)(1) provides:
“(c) Transition for Aliens in Proceedings.—
“(1) General rule that new rules do not apply. — Subject to the succeeding provisions of this subsection [§309(a) carves out § 306(c) as an exception], in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date—
“(A) the amendments made by this subtitle shall not apply, and
“(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.” 110 Stat. 3009-625.
It is undear why the Attorney General has not exercised this option in this case. Respondents have taken the position that the District Court’s injunction prevents her from doing so. Brief for Respondents 41, n. 38.
There is disagreement on this point in the Courts of Appeals. Compare Hose v. INS, 141 F. 3d 932,
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_trialpro
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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 any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
RAYTHEON MFG. CO. v. RADIO CORPORATION OF AMERICA.
No. 2946.
Circuit Court of Appeals, First Circuit.
April 8, 1935.
Edward F. McClennen, of Boston, Mass. (E. Curtiss Mower, Jr., and Edward Williamson, both of Boston, Mass., on the brief), for appellant.
Richard C. Curtis, of Boston, Mass. (John L. Hall, of Boston, Mass., on the brief), for appellee.
Before WILSON and MORTON, Circuit Judges, and MORRIS, District Judge.
MORRIS, District Judge.
This is an appeal by the plaintiff, appellant, from what is termed a final decree in equity entered February 19, 1934, in the United States District Court of Massachusetts.
The action was brought December 14, 1931, by the plaintiff as an action at law. It is based upon the Anti-Trust Laws, US CA, title 15, c. 1, § 15 (Clayton Act § 4).
Triple damages are sought totaling $9,-000,000. The plaintiff’s declaration, as amended, contains two counts; one under the Sherman Anti-Trust Act (15 USCA § 1 et seq.), and the other under the Clayton Act (38 Stat. 730). The facts set forth are substantially the same in the two counts. The plaintiff alleges that in the year 1926, it was engaged in the manufacture, distribution, and sale in interstate commerce of tubes known as Raytheon rectifying tubes for use in radio receiving sets, and that it had built up a large and valuable good will in this interstate commerce business, and a large trade from which it realized in 1926 a net profit of $454,935, and that the defendant through manipulation and conspiracy with others has established a monopoly and totally destroyed plaintiff’s business.
The defendant, the present appellee, for answer, filed a general denial and set up a general release under seal alleged to have been executed on or about March 19, 1929. Plaintiff’s declaration referring to this alleged release says it was executed under legal duress. Defendant’s answer denies duress.
After some sparring between the parties involving a motion to strike, demurrer, a motion for specifications, and various amendments on one side and the other, the pleadings were finally perfected.
On October 10, 1932, the defendant filed a motion to transfer the case to equity for a preliminary hearing upon the validity of the release. The motion was based upon the following grounds: “1. In its answer the defendant has alleged that the plaintiff released the defendant from all claims. 2. The plaintiff has conceded in paragraphs 36 and 37 and counts 1 and 2 of its declaration that the plaintiff did execute such a release, but the plaintiff alleged that the said release was executed under duress. 3. The said release was under seal in that the plaintiff adopted the seal of the other parties who signed the release. 4. A release under seal cannot be avoided in an action at law. 5. Great delay and expense would be saved by preliminary hearing on this issue.”
On November 8, 1932, the defendant’s motion to transfer the case to equity was granted by the District Judge, and on November 9, 1932, plaintiff’s bill of exceptions to the order was filed and allowed.
On November 12, 1932, the plaintiff filed a motion for the framing of an issue to be tried by jury upon the issue of the validity of the release executed by the plaintiff. The motion was denied April 4, 1933.
On January 3, 1934, the plaintiff filed a motion on the law side of the docket that the order of November 8, 1932, transferring the case to equity be rescinded or be vacated or be superseded. In this motion the plaintiff disclaimed any right or remedy in equity to be relieved from the operation of the release, but claimed that a court of equity is without jurisdiction of these issues when presented in an action at law in which as to such duress neither party claims an equitable right or seeks an equitable remedy ; that the plaintiff has and claims a right to trial by jury on this issue which arises in an action at law.
The foregoing motion was denied February 2, 1934.
On February 12, 1934, the plaintiff filed the following motions for entry of final decree :
“The plaintiff insists on its obj ections to the jurisdiction of this court in equity and to the order of transfer thereto and without waiving said objections says as follows:
“1. The plaintiff hereby discontinues, becomes nonsuit and dismisses before any hearing in equity any and all allegations and claims that in equity the release alleged in the plaintiff’s declaration and in the defendant’s motion for transfer is invalid in equity more than at law and that the plaintiff has any equitable right to a decree declaring said release invalid or to any relief in equity.
“2. The plaintiff admits and avers that it has no right in equity or to any remedy therein and because, and that, it has a plain, adequate and complete remedy at law in that a court of law will not give force or effect to a release obtained in the manner alleged and having said unlawful effect il enforced.
“3. The plaintiff tenders in equity no evidence in support of any right to relief in equity and now has no such evidence and, therefore, before hearing, announces the conclusion of its evidence in equity in support of any such right in equity, to the same extent and with the same effect as if the court in equity should now have set this case for hearing of evidence against the plaintiff’s protest.
“4. This suit' in equity is now before hearing ripe for final disposition.
“Wherefore the plaintiff moves that a final decree be entered in equity No. 3767, (1) dismissing said suit in equity No. 3767 for the reasons aforesaid, or (2) terminating said suit in equity No. 3767 in such manner as, in this state of the record, equity requires and (3) thereupon returning the papers originally filed in law No. 5021 to the court of law.”
The above motion came on for hearing February 19, 1934. After hearing, the District Judge filed a rescript of his findings of fact and conclusions of law in which he set forth the various motions and rulings thereon, and in conclusion said: “Upon the issues submitted aforesaid to the Court sitting in equity, I, therefore, rule that the release is valid.”
A final decree was entered in accordance with the findings of the court, February 19, 1934.
No evidence was offered or introduced at any stage of the proceedings but the court examined a copy of the contract between the parties embodying the release.
Exceptions were taken, filed, and allowed to each of the foregoing orders.
Plaintiff’s petition for appeal is as follows :
“The plaintiff, aggrieved by the final decree entered in this case on Feb. 19, 1934, and by the proceedings on which the same is based, in the respects described in the assignment of errors herewithin, appeals to the Circuit Court of Appeals for the First Circuit from said final decree except so far as said decree transfers this case .back to law, and from said proceedings, and prays that this, its claim of appeal, may be allowed and that the transcript of the record proceedings, bills of exceptions and papers upon which the said decree was based, duly authenticated may be sent to said Circuit Court of Appeals.”
The order of the District Court upon plaintiff’s petition is as follows: “March 9, 1934. Bond approved and above appeal allowed not as a supersedeas.”
Plaintiff assigned the following alleged errors:
“First. In allowing on or about November 8, 1932, the defendant’s motion to transfer case to equity for a preliminary hearing upon the validity of the release given by the plaintiff.
“Second. In denying on or about April 4, 1933, the plaintiff’s motion for framing jury issues.
“Third. In denying on or about February 2, 1934, the plaintiff’s motion to rescind or to vacate or to supersede the aforesaid order of this court entered on or about November 8,1932, whereby the defendant’s motion to transfer to equity was allowed.
“Fourth. In adjudging affirmatively, without evidence and in equity, in its finding and in its final decree entered February 19, 1934, upon the plaintiff’s motion of February 12, 1934, but contrary thereto, that the release set forth in the defendant’s answer and elsewhere is both valid and binding and that the further proceedings at law shall be in accordance with this decree.”
No judgment of any kind has been entered in the action at law. It is pending for trial. D.uring the progress of the oral arguments a question was raised as to whether or not this court had jurisdiction to entertain the appeal. The defendant does not challenge the plaintiff’s right to appeal any of the orders and decrees in question. Both parties express the hope that, in the interests of directness and economy, this court will entertain it. We have every disposition to deal in a practical way with practical questions, but, as our jurisdiction is involved, we cannot pass the matter by without consideration. Consent of the parties is not sufficient. The right of appeal is strictly statutory. The provisions of the Judicial Code on which appeals ordinarily rest are sections 128 and 129 (28 USCA §§ 225, 227). Section 129 relates to appeals from interlocutory orders and decrees in proceedings for injunctions and receivers. Appeals are referred to in section 274b (28 USCA § 398), but there is nothing in its language expressly authorizing the right of appeal from an interlocutory order or decree. The question is whether the order of the District Court entered ’November 8th, transferring the case from law to equity, is appealable by reason of the provisions of section 129 when construed in conjunction with section 274b.
The latter section reads as follows:
“In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or-plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review; be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.”
The right of the defendant to file an equitable defense in the action at law is not questioned. Upon its being so filed, the District Court transferred the issues raised to the equity side of the docket for trial by the court. This was in a sense an interlocutory order. As to whether or not an appeal therefrom to this court would lie was at the time of the hearing a question upon which circuit courts of appeal had reached conflicting decisions. In the following cases jurisdiction was denied, Emlenton Refining Co. v. Chambers (C. C. A.) 14 F.(2d) 104; Weaver v. Atlas Oil Co. (C. C. A.) 39 F.(2d) 847; Cox v. Graves, Knight & Graves, Inc. (C. C. A.) 55 F.(2d) 217; while in the case of American Cyanamid Co. v. Wilson & Toomer Co. (C. C. A.) 62 F.(2d) 1018, jurisdiction was sustained.
The question has now been determined by the opinion of the Supreme Court in the case of Enelow v. New York Life Insurance Company, 293 U. S. 379, 55 S. Ct. 310, 311, 79 L. Ed. —, in an opinion handed down January 7, 1935. We quote from the language of Chief Justice Hughes as follows:
“It is thus apparent that when an order or decree is made under section 274b (28 USCA § 398), requiring, or refusing to require, that an equitable defense shall first be tried, the court, exercising what is essentially an equitable jurisdiction, in effect grants or refuses an injunction restraining proceedings at law precisely as if the court had acted upon a bill of complaint in a separate suit for the same purpose. Such a decree was made in the instant case, and therefore, although interlocutory, it was ap-pealable to the Circuit Court of Appeals under section 129, as amended (28 USCA § 227).”
This appears to settle the jurisdictional question, as it is quite clear from a reading of the plaintiff’s petition for appeal and its allowance by the District Court that the appeal was not only from what was termed a final decree, but from all orders on which it was based, and we now proceed to consider the merits of the controversy.
The several motions and rulings of the court present rather unusual and somewhat tangled questions involving distinctions between the jurisdiction of a court of law as distinguished from equity jurisprudence; distinctions that are by no means clearly marked.
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Such is the guarantee of the Seventh Amendment to the Federal Constitution. Const. (USCA, part 2, p. 581), Amend. 7.
Neither the Congress nor the courts can deprive a litigant of this right. It follows that if the plaintiff in this action is entitled to a trial by jury of the issues raised by the pleadings it must be held error on the part of the District Court to transfer the case from law to equity against plaintiff’s protest.
If error was committed in this first order, all the subsequent orders made by the court of equity must be extrajurisdictional.
If the order of transfer was right, no sound reason is presented why the subsequent orders should not be sustained and the final decree of the District Court affirmed. It may be conceded that if the defendant’s answer and plaintiff’s anticipatory replication set forth any ground for equitable relief, no error was committed by the order of transfer dated November 8, 1932; but no equitable relief is sought. The release was set up as a defense in the action at law. The order of transfer to equity cannot be sustained upon this ground.
It has been argued that a distinction should be made between a release obtained by fraudulent misrepresentations where the instrument is consciously executed knowing it to be a release and one obtained by trickery such that the signer has no knowledge of the contents of the paper he has signed. It is contended that the latter may be pleaded in bar of an action at law, but that the former can be set aside only in a court of equity. Cases may be found supporting this distinction. See Heck v. Missouri Pac. Ry. Co. (C. C.) 147 F. 775; Hill v. Northern Pacific Ry. Co. (C. C.) 104 F. 754; Vandervelden v. Chicago & N. W. Ry. Co. (C. C.) 61 F. 54.; Hoad v. New York Central R. R. Co. (D. C.) 6 F. Supp. 565. A long list of them may be found in the opinion of Lowell, J., in the case of Pringle v. Storrow (D. C.) 9 F.(2d) 464.
A very exhaustive discussion of the point may be found in the case of Wagner v. National Life Ins. Co. of Montpelier, Vt. (C. C. A.) 90 F. 395, and the court composed of Taft and Lurton, Circuit Judges, and Clark, District Judge, reached the conclusion that it is proper in a suit at law for the plaintiff to meet a plea of release by a replication that the release was obtained by fraud, whether the fraud is in the execution or in misrepresentation as to material facts inducing execution, where the issue involves simply a question of fraud between the parties. However, it is noted that the release in issue in that case was not under seal.
While it is true that fraud often furnishes ground for equitable relief, it more often creates an issue of fact peculiarly for a jury in actions at.law. There seems to be no logical reason for submitting to the jury issues of fraud in ordinary actions of contract and denying to submit the issue in an action involving a release which is no more than a form of contract. Carey v. McMillan (C. C. A.) 289 F. 380, 387.
The courts in this jurisdiction, in more recent cases, both federal and state, have made no such distinction, but when a question of fraud has been raised in a replication to a simple release, not under seal, pleaded in bar, the entire issue has been submitted to a jury in a single trial in a court of law. Phoenix Mut. L. Insurance Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; Cable v. U. S. Life Ins. Co. 191 U. S. 288, 24 S. Ct. 74, 48 L. Ed. 188; Kansas City Southern Ry. Co. v. Martin (C. C. A.) 262 F. 241; Southern Ry. Co. v. Clark (C. C. A.) 233 F. 900; Columbia-Knickerbocker Trust Co. v. Abbott (C. C. A.) 247 F. 833; Plews v. Burrage (C. C. A.) 274 F. 881; Suravitz v. Pristasz (C. C. A.) 201 F. 335; American Sign Co. v. Electro-Lens Sign Co. (D. C.) 211 F. 196. The last-mentioned case contains an extended discussion of the point.
We hold that the plaintiff cannot be deprived of his right to a jury trial upon any such narrow grounds as what now appears to be a fast disappearing distinction between a release obtained by fraudulent misrepresentations and one obtained by fraud in its execution.
No reason is suggested why a release obtained by duress should receive more favorable consideration than one obtained by fraud. In fact, if it were a moral question the odds would be in favor of the latter. It has been held that the same principles- of law apply. Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St. Rep. 446.
The defendant’s plea alleges that the release is under seal, and it is argued that therefore it can be set aside only by a separate action in equity. If this is so, it follows that the order of- the District Court transferring the case from law to equity must be sustained.
An examination of the release discloses that there is no seal set opposite the signature of the plaintiff. Five signatures appear with only one seal which is set opposite the name of the General Electric Company. It is alleged in defendant’s motion to transfer the case to equity that “said release was under seal in that the plaintiff adopted the seal of the other parties who signed the release.” Whether the adoption of a seal affixed by another person is a question to be determined by extraneous evidence when there is nothing in the final wording of the . instrument indicating that the parties “have hereunto set their hand and seal” raises a rather delicate question, but one which we do not find it necessary to determine. See Hudson v. Webber, 104 Me. 429, 72 A. 184; Barnet v. Abbott, 53 Vt. 120; State v. Humbird, 54 Md. 327; Jacksonville, etc., Ry. v. Hooper, 160 U. S. 514-519, 16 S. Ct. 379, 40 L. Ed. 515. It is quite evident that the judge of the District Court treated the release as under seal. No question to the contrary appears to have been raised before him by plaintiff’s counsel. We do not think the question should be raised for the first time in this court. It well might have been considered that the plaintiff adopted the seal that was affixed to the release. C. F. Starita Co. v. Compagnie Havraise Peninsulaire (C. C. A.) 52 F.(2d) 58; Cammack v. J. B. Slattery & Bro., Inc., 241 N. Y. 39, 148 N. E. 781; Tasker v. Bartlett, 5 Cush. (Mass.), 359.
Treating the release as a document under seal, it does not necessarily follow that the plaintiff should be deprived of his right to a trial by jury when the nature of the present action is considered. Neither does it follow that an order transferring the case from law to equity against the protest of the plaintiff can be sustained when no affirmative equitable relief is sought.
We are cognizant of the fact that following the lead of the Supreme Court in Hartshorn v. Day, 19 How. 211, 15 L. Ed. 605 (1856), and George v. Tate, 102 U. S. 564, 26 L. Ed. 232 (1880), various lower federal courts have maintained a distinction between a simple contract not under seal and a specialty holding to the ancient doctrine that a sealed instrument can be set aside for fraud only in a court of equity. The Hart-shorn Case, because of its complications, was clearly a case for a court of equity. The George Case was tried before a jury, but evidence of fraud was ruled out/ and the ruling sustained by the Supreme Court. We find no suggestion that the procedure followed in that case was improper.
After citing the above-mentioned cases, defendant cites to the point, that a sealed instrument cannot be set aside except in equity, three cases in none of which a sealed instrument was involved. Union Pacific R. Co. v. Syas (C. C. A.) 246 F. 561; Caven-der v. Virginia Bridge & Iron Co. (D. C.) 257 F. 877; Penn. R. R. Co. v. Hammond (C. C. A.) 7 F.(2d) 1010. It is rather significant that the industry of counsel has failed to cite for our examination a single Supreme Court case reaffirming the principle laid down in George v. Tate, supra.
While 274b of the Judicial Code (28 US CA § 398) permits the filing of equitable defenses in an action at law, it does not change legal defenses into equitable defenses. Although defendant’s answer may be filed as an equitable defense, it does not follow that it is such. It must be considered as though the allegations of the answer and replication were set forth in an independent suit in equity. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232; People of Porto Rico v. Livingston (C. C. A.) 47 F.(2d) 712.
In view of the decisions above referred to, we are unable to agree that, in all cases in which no affirmative equitable relief is sought by either plaintiff or defendant, one who signs a release, does, by the mere act of affixing a seal thereto, necessarily convert a legal into an equitable defense, thereby depriving himself of his constitutional rights to a trial by jury if it later appears that the transaction was conceived in fraud or was the result of duress. Cases involving the reformation or rescission of written contracts which by reason of mistake fail to express the intention of the parties of which McIsaac v. McMurray, 77 N. H. 466, 93 A. 115, L. R. A. 1916B, 769, is an illustration should be carefully distinguished.
While it may not appear that the case of George v. Tate has been expressly overruled, it appears to have been questioned and sometimes disregarded. Am. Mills Co. v. Am. Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306; Manchester St. Ry. v. Barrett (C. C. A.) 265 F. 557; Plews v. Burrage, supra; Nat. Aniline & Chemical Co. v. Arnhold (D. C.) 298 F. 755.
Union Pacific Railway v. Harris, 158 U. S. 326, 15 S. Ct. 843, 39 L. Ed. 1003, has been cited by some of the lower federal courts as sustaining the case of George v. Tate, but we find nothing in it that indicates that such was the intention of the Supreme Court, and it seems rather significant that no mention of the George Case is found in the opinion, and that a large number of cases decided in various state Supreme Courts are referred to.
Assuming, but not determining as a matter of law, that the District Court correctly held that the release is under seal by adoption, and assuming that the distinction between fraudulent misrepresentations and fraud in the execution of a sealed instrument still exists according to the greater weight of authority, the former as an equitable defense, the latter as a defense at law, we are still of the opinion that the assumptions cannot avail the defendant in this action.
The plaintiff’s declarations set up as a cause of action a contract made in violation of the anti-trust laws; a contract which is declared by a statute to be illegal. Whether plaintiff can establish his claim is of no consequence in the determination of the present issue. Duress is a ground upon which the plaintiff seeks to avoid the consequences of his own act in entering into an illegal agreement.
Conceding that in ordinary cases an instrument executed under duress is voidable not void (Duignan v. U. S., 274 U. S. 195, 47 S. Ct. 566, 71 L. Ed. 996; J. M. Robinson & Co. v. Belt, 187 U. S. 41, 23 S. Ct. 16, 47 L. Ed. 65; Southern Cotton Oil Co. v. Shelton [C. C. A.] 220 F. 247), this cannot be so if the effect would be to give life and substance to an illegal contract.
In the case before us the release alleged to have been signed under duress enters into and forms an integral part of an agreement alleged to be illegal because establishing a monopoly in restraint of interstate trade. If the agreement is void the release is void, and requires no court of equity to so declare it. The primary issue is the validity or invalidity of the contract. A distinction is still made in cases following George v. Tate between instruments void and those voidable. A release obtained by trickery is treated in an action at law as if it were never made. It will admit of a replication or plea of non est factum. So, also, a releas.e, even though under seal, is void not voidable when, if given effect, it would result in affirming a contract declared illegal by statute. As a matter of pleading such a release, filed as an answer in a suit at law, will admit of a replication setting out that the release is void. The principle that invalidity of a sealed contract may be set up as a defense in an action at law is not of modern origin. It dates back to the time of Coke’s Reports. In Whelpdale’s Case, found in Coke’s Rep. vol. 3, p. 241, it is held that infancy and duress are defenses in an action at law under a plea of non est factum, while deeds void by act of Parliament require a special plea setting out the grounds of invalidity, and ending, “and so the said deed is void.”
In the case of Maine Northwestern Development Co. v. Northern Commercial Co. (D. C.) 213 F. 103, 106, it is held that fraud inducing the execution of a contract which is of such a nature as to render it against public policy or illegal is available as a defense in an action on a contract at law. Judge Neterer says; “It would indeed be a harsh system of jurisprudence that would lend any of its courts to the enforcement of contracts in violation of fiduciary relations. While the distinction between law and equity is studiously preserved in our federal system, that distinction does not go to the extent of compelling one court to enforce agreements which the other would abhor. Both are established to promote the well-being of society, and this may not be promoted by encouraging the violation of the most sacred duties known to the law.” See Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227, 261, 29 S. Ct. 280, 53 L. Ed. 486.
It is impossible to harmonize the conflicting decisions of the District Courts or even those of the Circuit Courts of Appeal. Each seems to follow its own line of decisions.
We hold that the validity of the contract is the primary issue to be tried, and that it raises a mixed question of law and fact entitling the plaintiff to a trial-by jury. ' The order transferring the action at law to equity filed November 8, 1932, cannot be sustained.
Only one more question requires attention for a final disposition of the case, in so far as the issues now before us.
After the case had been transferred to equity, the plaintiff moved the court to frame ' issues to be submitted to a jury, and it may be suggested that he thereby waived his right of trial by jury in an action at law.
When a court of equity calls a jury it is only for the purpose'of enlightening its conscience and not to control its judgment. Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800.
Framing issues for a jury in actions in equity does not meet or secure the right to trial by jury as guaranteed by the Seventh Amendment. In the case of Cates v. Allen, 149 U. S. 451, 13 S. Ct. 883, 885, 977, 37 L. Ed. 804, Chief Justice Fuller uses the following language: “As the ascertainment of the complainants’ demand is by action at law, the fact that the chancery court has the power to summon a jury on occasion cannot be regarded as the equivalent of the right of trial by jury secured by the seventh amendment.” See, also, New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Company (C. C.) 190 F. 861, 869.
In view of the fact that the plaintiff immediately filed a bill of exceptions to the order of transfer which was allowed November 9,1932, and has consistently claimed throughout the course of proceedings in equity that it is entitled to a jury trial, we hold that it has not waived its right by its motion to frame issues to be tried by jury after the case was transferred to equity. See American Surety Company v. American Mills Co., supra; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 380, 14 S. Ct. 127, 37 L. Ed. 1113.
The several orders and decrees of the District Court are vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant to have costs in this court.
MORTON, Circuit Judge, concurs in the result. _ .
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
INTERCO INCORPORATED, Appellant, v. NATIONAL SURETY CORPORATION; Federal Insurance Company, Appellees.
No. 89-1607.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 13, 1989.
Decided April 13, 1990.
Lynn Chipperfield, St. Louis, Mo., for appellant.
Robyn Griefzu Fox, Charles E. Reis, IV, St. Louis, Mo., for appellees.
Before ARNOLD and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.
MAGILL, Circuit Judge.
Appellant, Interco Incorporated (Interco), brought a declaratory judgment action to determine the liability of second- and third-tier excess liability carriers as a result of the insolvency of a first-tier excess carrier. Appellee, National Surety Corporation (National), moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted, and Interco moved for summary judgment, pursuant to Fed.R.Civ.P. 56, against National. The district court found that neither National nor Federal Insurance Company (Federal) was obligated to pay any loss within the policy limits of the insolvent first-tier excess carrier and granted National’s Rule 12(b)(6) motion to dismiss after converting it, pursuant to Fed.R.Civ.P. 12(b)(6), into a summary judgment motion. Interco’s motion for summary judgment was denied. Finally, the district court granted summary judgment sua sponte and entered judgment in favor of Federal. We affirm.
I. FACTS
In 1984 Interco maintained $100 million in blanket excess public liability insurance coverage spread among three carriers. Mission Insurance Company (Mission), the first-tier excess liability carrier, became insolvent on February 24, 1987. Mission would have been liable for $450,841 in excess liability incurred by Interco in 1987. Interco requested that the district court interpret the operative language in the second-tier excess liability policy (the National policy) and the third-tier excess liability policy (the Federal policy) to determine whether “drop down” was triggered by the insolvency of Mission.
A. The National Policy Language
The National policy provided $40 million in excess coverage “[t]o indemnify the Insured for the Insured’s ultimate net loss in excess of the insurance afforded under the Blanket Excess Liability or ‘Umbrella’ policies specified in Item 7 of the Declarations (the Mission policy), hereafter called underlying insurance,” for an annual minimum premium of $12,000. Blanket Excess Liability Policy, dated March 8, 1984, between Interco and National, Insuring Agreement 1, as amended (emphasis and parenthetical added) (hereinafter referred to as the National coverage clause). The scope of coverage was limited under the terms of the policy, in that
[t]he Company shall be liable only for the limit of liability stated in Item 3 of the Declarations ($40 million) in excess of the limit or limits of liability of the applicable underlying insurance policy or policies (Item 4: $30 million) all as stated in the declarations of this policy.... provided, however, in the event of reduction or exhaustion of the applicable aggregate limit or [sic] limits of liability under said underlying policy or policies solely by reason of losses paid thereunder on account of occurrences during this policy period, this policy shall in the event of reduction, apply as excess of the reduced limit of liability thereunder.
Id. at Insuring Agreement 2, as amended (emphasis and parentheticals added) (hereinafter referred to as the National limit of liability clause). In addition, Condition 1 of the National policy, entitled “Maintenance of Primary Insurance,” provided in pertinent part that Interco, the insured, warranted that it would maintain the scheduled underlying insurance
... except for reduction of aggregate limits solely as a result of payment of claims arising out of occurrences during this policy period. If such underlying insurance is not maintained in full effect by the Insured or if there is any change in the scope of coverage under any underlying insurance, the insurance afforded by this policy shall apply in the same manner as though such underlying policies had been so maintained and unchanged.
Id. at Conditions 1 (emphasis added) (hereinafter referred to as the National maintenance clause).
B. The Federal Policy Language
The Federal policy provided $30 million in third-tier excess liability coverage and provided that:
In consideration of the payment of the required premium [$7,500] and subject to all the terms of this policy, the Company agrees to pay on behalf of the insured LOSS resulting from any occurrence insured by the terms and provisions of the First UNDERLYING INSURANCE policy scheduled in Item 6 of the Declarations [the Mission policy] (except for the Limits of Liability and defense provisions, if any). The insurance afforded by this policy shall apply only in excess of and after all UNDERLYING INSURANCE [the National policy] (as scheduled in Item 6 of the Declarations) has been exhausted.
Excess Liability Policy, dated March 6, 1984, between Interco and Federal, Policy Provisions, Insuring Agreement 1 (emphasis and brackets added) (hereinafter referred to as the Federal coverage clause). The Federal policy explicitly provided for “drop down”
[i]n the event of reduction or exhaustion of the aggregate limit or limits designated in the underlying policy or policies solely by payment of losses in respect to (accidents) or (occurrences) during the period of such underlying policy or policies, it is hereby understood and agreed that such insurance as is afforded by this policy shall apply in excess of the reduced underlying limit or, if such limit is exhausted, shall apply as underlying insurance, notwithstanding anything to the contrary in the terms and conditions of this policy.
Id. at Endorsement 3 (emphasis added) (hereinafter referred to as the Federal endorsement clause). Like the National policy, the Federal policy included a maintenance of underlying insurance clause which provided that:
[T]he Insured agrees that the First UNDERLYING INSURANCE policy, and other UNDERLYING INSURANCE following the terms and provisions of the First UNDERLYING INSURANCE policy (except for limit of liability and defense provisions, if any), shall be maintained in full effect during the currency of this policy except for any reduction of the aggregate limit or limits contained therein solely by payment of claims in respect of occurrences happening during the period of this policy. The failure of the Insured to comply with the foregoing shall not invalidate this policy but in the event of such failure the Company shall only be liable to the same extent as if the Insured had complied with this condition.
Id. at Policy Provisions, Maintenance of Underlying Insurance 5 (hereinafter referred to as the Federal maintenance clause).
II. DISCUSSION
Interco requested that the district court interpret the National and Federal policy language to ascertain the potential obligations of its second- and third-tier excess liability carriers as a result of the insolvency of its first-tier excess liability carrier. State law is controlling regarding the rules for construction of insurance contracts. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Insurance contracts must be construed to afford plain meaning to unambiguous language and read ambiguous terms against the insurer. Fremont Indem. v. Lawton-Byrne-Bruner Ins. Agency Co., 701 S.W.2d 737 (Mo.App.1985). Under Missouri law, an allegedly ambiguous phrase must be considered in the context of the policy as a whole. Nixon v. Life Investors Ins. Co., 675 S.W.2d 676 (Mo.App.1984). Ambiguity exists in an insurance contract if duplicity, indistinctness or uncertainty of meaning is evident. Id. For example, if there is doubt or uncertainty regarding the meaning of policy language and the language is fairly susceptible to two interpretations, then the language is ambiguous.
A. National Policy Coverage
Interco takes issue on appeal with the district court’s conclusion that the National policy language in the coverage clause, “in excess of the insurance afforded ...” (under the Mission policy) (emphasis added), was unambiguous as a matter of law. Interco contends that the policy language, specifically the word “afforded,” is susceptible to two reasonable interpretations. Interco believes the clause could be fairly and reasonably interpreted to cover insolvency because the use of the term “afforded” could indicate an agreement by National to pay in excess of insurance payments actually furnished. Interco theorizes that since Mission was insolvent, it was incapable of making payments to satisfy its excess liability. Therefore, Mission “afforded” zero insurance and National should drop down and incur liability for any excess liability incurred by Mission.
In United States Fire Ins. Co. v. Coleman, 754 S.W.2d 941 (Mo.App.1988), the Missouri court of appeals considered the following coverage clause:
[T]he company’s liability shall be only for the ultimate net loss in excess of the insured’s retained limit defined as ...
(a) the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other insurance collectible by the insured; ...
and concluded that “collectible” could only reasonably be interpreted to modify “any other insurance,” and not “the underlying policies” indicating a drop down obligation. The National coverage clause exhibited even less of a potential for ambiguity. There is no indication that “afforded” could reasonably mean anything but “covered.”
Interco attempts to distinguish Coleman by classifying it as a case where coverage was restricted to amounts in excess of specific dollar amounts. Appellant cites the fact that the National and Federal policies indicate no amount certain as a minimum threshold for coverage. However, the National clause required indemnification for losses “in excess of the insurance afforded” under specific umbrella policies incorporated by reference. In addition, the limit of liability clause tied coverage to the specific underlying limits of the Mission policy. Finally, the “not recoverable” or analogous language, like that considered in Coleman, was omitted. Therefore, no specific intent existed to provide for coverage in the event of the insolvency of an underlying insurer.
There is a difference between the fact of coverage and the extent of coverage. Garmany v. Mission Ins. Co., 785 F.2d 941 (11th Cir.1986). Excess coverage is liability that attaches only after a predetermined amount of primary coverage is exhausted. Ordinarily, excess insurers are not deemed to have provided drop down coverage in the event of an underlying insurer’s insolvency. Highlands Ins. Co. v. Gerber Prods. Co., 702 F.Supp. 109 (D.Md.1988). Therefore, we must examine the triggering language in the excess policies to determine whether the excess insurer could reasonably be said to have insured against the insolvency of the underlying insurer.
If an excess insurance policy requires the excess insurer to indemnify the insured for losses in excess of the amount specified in an underlying policy, the insolvency of the underlying insurer should not create a lower minimum threshold triggering liability on the part of the excess insurer. In Continental Marble & Granite v. Canal Ins. Co., 785 F.2d 1258 (5th Cir.1986), the court of appeals held that the insolvency of the primary insurer did not render the primary insurance “inapplicable.”
Construing the National policy to require indemnification would essentially make the policy a guaranty of the solvency of Mission. Excess policies are intended to provide low cost coverage for catastrophic losses beyond the bounds of ordinary primary limits, and the insurer must be able to ascertain the point at which its liability will attach in order to evaluate the insurable risk and its cost of coverage. Fried v. North River Ins. Co., 710 F.2d 1022 (4th Cir.1983). We should not construe a policy to subject the insurer to unforeseeable and variable risks. Therefore, the National coverage clause should not be read to create an obligation to pay losses within the policy limits of the insolvent underlying insurer.
Appellant interprets Insuring Agreement 2, which indicates that underlying insurance must be “exhausted,” to require that underlying coverage be unavailable for payment for any reason whatsoever. This interpretation is contrary to the plain meaning of the National limit of liability clause. The clause provides for drop down in the event of exhaustion “solely by reason of losses paid.” The limit of liability clause must be read in conjunction with the National maintenance clause which precludes drop down in other instances. An instance of insolvency would be governed by the maintenance clause. It is clear that the parties intended “exhaustion” to mean payment and not insolvency. Therefore, the insolvency of an underlying carrier like Mission does not constitute exhaustion of underlying insurance within the meaning of the National policy triggering drop down.
A federal district court in Maryland has considered the issue of whether second-tier excess insurers were required to drop down when the first-tier excess insurer became insolvent. Highlands, 702 F.Supp. 109. The Highlands court interpreted four standard second-tier excess liability policies and granted summary judgment to the second-tier excess insurers because (1) the policies specifically limited liability to situations where losses exceeded a sum certain, (2) the maintenance provisions directly tied exhaustion to the triggering limit, and (3) the limit of liability provisions clearly indicated that excess liability would apply only in addition to the limits of the underlying insurance and addressed reduction or exhaustion by expressly referring to “losses paid thereunder.” The Highlands court considered the same language that Interco requested the district court to interpret. We believe the analysis employed by the Highlands court in interpreting each policy as a whole to determine potential ambiguity was sound. When we interpret the National policy as a whole, we are compelled to conclude that the district court did not err in finding that the policy was unambiguous as a matter of law.
B. Federal Policy Coverage
The Federal coverage clause states that “insurance afforded by this policy shall apply only in excess of and after all UNDERLYING INSURANCE ... has been exhausted” (emphasis added). The Federal endorsement clause indicates that Federal coverage would only be triggered by the exhaustion of underlying insurance through the payment of claims. A similar clause was interpreted by the Seventh Circuit to mean that an excess insurer will only drop down “when exhaustion occurs by reason of losses paid under the policy.” Zurich Ins. Co. v. Heil Co., 815 F.2d 1122, 1126 (7th Cir.1987) (citing Mission Nat’l. Ins. Co. v. Duke Transp. Co., 792 F.2d 550, 553 (5th Cir.1986)).
Further analysis involving the Federal maintenance clause leaves no question that drop down was precluded. The clause provides that if Interco failed to maintain underlying insurance, by reason other than payment of claims, the excess insurers would be liable to the same extent as if the underlying insurance had been maintained. Read as a whole, the Federal policy prevented drop down to cover a reduced limit by reason of insolvency of the underlying insurer.
C. Summary Judgment Sua Sponte
Appellant argues on appeal that the district court’s sua sponte grant of summary judgment in favor of Federal was improper. Interco claims that the lack of notice, analysis, briefing or argument regarding the language of the Federal policy precluded a grant of summary judgment in the absence of a motion by a party. Citing differences in policy language between the National and Federal policies, Interco contends that the Federal policy presented separate issues for interpretation.
A federal district court may grant summary judgment, pursuant to Fed.R.Civ.P. 56, sua sponte, provided that the party against whom judgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should not be granted. 10A C.A. Wright, A.R. Miller & M.K. Kane, Federal Practice and Procedure § 2720, p. 27 (2d ed. 1983). The granting of summary judgment sua sponte is consistent with the expeditious disposition of cases, a primary objective of Rule 56.
Federal correctly contends that the district court properly granted summary judgment. The issue on which judgment was granted, that no genuine issue of material fact as to an excess liability insurer’s obligation to drop down and afford coverage provided by an insolvent underlying insurer existed, was presented and argued by In-terco. Interco brought the original action requesting declaratory relief from the district court. In addition, in response to National’s motion to dismiss, Interco alternatively moved for summary judgment against National. In its motion, Interco asserted that no genuine issue of material fact existed and that the only issue was the interpretation of policy language, a question of law for the court. The district court reasonably applied this assertion to Inter-co’s claim against Federal and properly granted summary judgment sua sponte in favor of Federal.
Federal also asserts that Interco had no basis for a claim after summary judgment was granted in favor of National, and therefore the district court’s grant of summary judgment sua sponte in favor of Federal was proper. See Union Nat’l Bank of Little Rock v. F.N.M.A., 860 F.2d 847 (8th Cir.1988). Any obligation on the part of Federal to drop down would be contingent upon the finding of such liability on the part of National. Therefore, the district court was correct in granting summary judgment on a claim dependency theory.
We have consistently required strict compliance with the Rule 56 motion, opportunity for service of opposing affidavits, and hearing requirements. See, e.g., Williams v. City of St. Louis, 783 F.2d 114 (8th Cir.1986); Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236 (8th Cir.1977); Twin City Fed. Savs. & Loan Ass’n v. Transamerica Ins. Co., 491 F.2d 1122 (8th Cir.1974). Our concern in the above-mentioned cases was a district court’s tendency to engage in issue determination rather than issue identification, when granting summary judgment sua sponte. However, in the instant case there was no genuine issue of material fact as to Federal’s potential drop down obligation because summary judgment was granted to National from whom Federal’s liability would have been derived. In granting summary judgment in favor of Federal, the district court did not posit an issue and proceed to determine it, but rather properly concluded that no genuine issue of material fact existed.
CONCLUSION
We believe the district court properly found that the National second-tier and the Federal third-tier excess liability policies were unambiguous as a matter of law in precluding drop down coverage in the event of the insolvency of Mission, the first-tier excess liability carrier. No genuine issue of material fact existed regarding coverage. Therefore, we affirm the district court’s granting of summary judgment in favor of National pursuant to motion and Federal sua sponte.
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.
. Interco’s insurance carriers were as follows:
Tier Insurance Premium Coverage
Primary $500,000
1 Mission $27,000 $30
2 National $12,000 $40 million
3 Federal $ 7,500 $30 million
.Interco settled a lawsuit for $779,797, and recovered $500,000 from its primary carrier. The remaining $279,797 was payable by Mission as Interco's first-tier excess liability carrier. On June 19, 1987, Interco obtained an unrelated judgment against Mission for $147,639, payable under the first-tier excess liability policy. On or about May 1, 1987, Interco paid a judgment of $23,405 recoverable under the Mission policy.
. See, e.g., Transco Exploration Co. v. Pacific Employers Ins. Co., 869 F.2d 862 (5th Cir.1989); Molina v. United States Fire Ins. Co., 574 F.2d 1176 (4th Cir.1978); Zurich Ins. Co. v. Heil Co., 815 F.2d 1122 (7th Cir.1987); Rapid City Regional Hosp., Inc. v. South Dakota Ins. Guar. Ass'n, 436 N.W.2d 565 (S.D.1989); Seaway Port Auth. of Duluth v. Midland Ins. Co., 430 N.W.2d 242 (Minn.Ct.App.1988).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNION WIRE ROPE CORPORATION v. ATCHISON, T. & S. F. RY. CO.
No. 9468.
Circuit Court of Appeals, Eighth Circuit.
July 20, 1933.
Harry L. Donnelly, of Kansas City, Mo. (Phil D. Morelock, Perry W. Shrader, and William M. Cave, all of Kansas City, Mo., on the brief), for appellant.
Dean Wood, of Kansas City, Mo. (Cyrus Crane and George J. Mersereau, both of Kansas City, Mo., and E. E. Melnnis, of Chicago, Ill., on the brief), for appellee.
Before STONE and KENYON, Circuit Judges, and REEYES, District Judge.
STONE, Circuit Judge.
This is an action by appellee for interstate freight undercharges. Of the forty-three counts, one was for a shipment of wire and the others for separate shipments of wire rope from Kansas City, Mo. From a judgment upon all counts, aggregating $3,024.49, defendant brings this appeal.
The sole substantial issue here is whether these shipments were entitled to be made under a stoppage in transit through rate tariff in force by the Wabash Railway Company, the initial connecting carrier. That issue arises as follows: Appellant bought steel rods at Chicago and shipped them via the Wabash to Kansas City, where it operated a wire rope factory. At Kansas City, the rods were subjected to a heating process and certain chemical treatment to prepare them for drawing into wire. Then they were, in repeated operations, drawn through dies of lessening sizes into steel wire. This wire was woven into strands which were woven about a central core of manila rope so as to form wire rope, the finished product. It is this wire and wire rope which were shipped to various interstate destinations over the line of appellee that are the subject of this action. The Wabash had in force a tariff (I. C. C. No. 6286) governing “Transit Privileges on Iron or Steel Articles.” Under the subheading “Rates,” this tariff provides as follows: “(a) When the unfabrieated material covered by the inbound billing matched against outbound shipments originates at a point from which a joint through rate is in effect via the transit point, the rate to be charged will be the lawful through rate on the unfabrieated or fabricated material, whichever is higher from origin point to final destination, in effect at the time of shipment from such origin point, plus fabrication charge of two (2) cents per 100 pounds.”
In each of these shipments there was a “joint through rate” on the Wabash and appellee via “the transit point,” Kansas City. It was this through rate which was paid to the appellee. This action is for the difference between the through joint rate and the local rate from Kansas City. Under the subheading “Application of Tariff” is the following: “Articles of Iron and Steel, viz.: * * * rods * * * May be Stopped at * * !i Kansas City, Mo. * * * For the purpose of Reworking or assembling (called fabrication herein).” There is no dispute that the conditions of the above tariff were complied with in all except the disputed respeet, which is whether what appellant did to the rods in Kansas City is “reworking,” within the meaning of this tariff.
A rate tariff is in essence a statement by the carrier to possible shippers that it will furnish certain services under certain conditions for a certain price. When a tariff has beeomo legally promulgated, it is binding upon both the carrier and any shipper taking advantage of it, and its terms (in essence) become, in such respects, the only contract between the two allowed by law. Since the tariff is written by the carrier, all ambiguities or reasonable doubts as to its meaning must be resolved against the carrier. Not only is this simply an application of the general rule as to construction of written contracts and instruments, but, when the place occupied by transportation and the situation of shippers are considered, it is particularly useful in application to tariffs. Tho construction should be that meaning which the words used might reasonably carry to the shippers to whom they are addressed. If the tariff is addressed to a special class of shippers and uses words which have a particular or customary import among such class of shippers, that meaning should be given to such words, for that is how they reasonably would understand them. For example, if a tariff provided a lower rate upon “culls” in apple shipments, that word must find its definition in what apple shippers honestly regard and treat as “culls.” When the carrier addresses a word to a class, it must abide by the established or customary meaning of that word in that class. This rule works out justice'. Always the carrier can avoid such words or it can make clear the meaning it intends them to have. On the other hand, the shipper would naturally and reasonably understand the words in their customary meaning, and to hold him to something else after he had become obligated through reliance thereon would result in deception and loss caused by the carrier to its advantage.
The tariff involved here is addressed to a class. That class is those who work upon “Articles of Iron and Steel, viz.: Angles, Bars, Beams, Bolts, Castings, Channels, Columns, Girders, Nuts, Plates, Rivets, Bods, Sheets, Tees, Tubular Iron or Steel (unfabricated from rolling mills) or Zees” (italics added). The tariff tells that class what they can do with the above iron and steel articles at the transit points and retain the tariff through rate. What they can thus do is stated as “Reworking or assembling (called fabrication herein).” These words “Reworking or assembling” are broad and general in ordinary moaning.
Our first search is to ascertain whether the carrier has given any guide, in the tariff itself, to the meaning it intends these words to convey. A designated note (“ * * * ”) to this statement of the tariff calls attention to the fact that this tariff has changed an earlier one by eliminating (as to these transit points) the words, “and there fabricated into Iron or Steel framework or sections for bridges, buildings or ears.” That is, the limitation of the former tariff as to the kinds of articles to he there made is withdrawn, and the shipper is permitted to do anything reasonably included in the words “Reworking or assembling.” Since these words are “called fabrication herein” (meaning the entire tariff), we examine the use of the word “fabrication” in other parts of tho tariff. It is frequently used therein, but the only use pertinent to our inquiry is “Rule 25,” entitled “Consolidation,” which reads as follows: “The fabricator is not required to preserve the identity of unfabrieated material; it may be consolidated in the fabricating plant and applied in accordance with the provision shown on page 3 against the tonnage balances of each carrier'without regard to the origin of the material.”
From this it appears (a) that tho identity of the shipped in material need not be preserved, and (b) that such may be “consolidated in the fabricating [reworking or assembling] plant.” Obviously Rule 25 suggests a broad rather than a narrowed meaning of “Reworking or assembling.”
We next turn to tho ordinary meaning of these two words. They are used in the disjunctive, and are properly to be taken as meaning different things. “Reworking” is the important word here, and means working again. “Working again” necessarily refers to a prior working. It means that the articles have been “worked” before they reach the transit point, and that the tariff allows them to be there worked again. How had these rods been worked before they reached Kansas City? The evidence shows the only working t« be the manufacture at the rolling mills of the rods. That process is described as follows: “Tho rod is made in tho open hearth furnace; the steel is poured into moulds called ‘ingots.’ These ingots are put in a soaping pit to become white hot throughout and are then rolled down in the blooming-mill to bloom. These blooms are cut up into billets. These billets are reheated in another furnace in tho rod mill and are rolled into tho rods. These rods are formed into coils.”
From this wording of the tariff and its application to actual conditions affecting the articles dealt with therein when initially shipped, it would appear that the shipper would reasonably and properly understand the tariff as giving him a wide range of change and treatment of the rods at 'the transit point.
In this connection it is pertinent to observe that more than 90 per centum of the steel rod tonnage produced annually is made into wire and wire products (Chain Iron and Steel, etc., 151 I. C. C. 83, 86), and the general classification of iron and steel articles for rate-making purposes includes rods and wire in closely related classifications as shown in the last-cited case at page 84, where the Commission says: “In a general way iron and steel articles for rate-making purposes are separated into three groupings; first, pig iron and articles taking pig-iron ratés; second, steel billets, and articles taking billet rates, including rods, ingots, skelp, slabs, and waste materials; and third, the manufactured iron and steel list which embraces all other iron and steel articles which have progressed in manufacture beyond the billet stage, including bars, tank plates, structural shapes, wire, wire nails, wire fencing, bolts, nuts, ear axles, beams, chain or link belting, corrugated or plain culverts (knocked down), locomotive frames, girders, and boiler plate. Articles in the billet list take sixth class or commodity rates slightly lower. Articles in the manufactured iron and steel list take fifth class or commodity rates slightly lower, minimum 36,-000 pounds.”
The third approach to a construction of this tariff is required by the contention of appellant that “working” and “reworking” have a customary meaning in the iron and steel trade. This contention is supported by evidence tending to show that such meaning covers what appellant did here. There is no evidence to the contrary.
From what has been said, the conclusions' are that the tariff is very broad and general in its definition of what may be done to the rods at the transit points; that the evidence and findings strongly tend to prove the treatment of the rods by appellant to be within the tariff whether construed in the ordinary meaning of the words as applied to the situation or in the customary meaning of the trade to which they are to be applied; that appellee has failed to sustain its burden of proof to show that such treatment was outside the tariff; and that the judgment must be reversed.
Contentions of Appellee.
Appellee advances several contentions which merit examination.
The first is that “the trial court, by its special finding of fact, has conclusively established on this appeal that the wire and wire rope, produced by the appellant * * * was a new manufactured product of the original rods” because (a) a special finding of fact by a court, sitting as a jury, is binding if there is any substantial evidence to support it; (b) the appellant did not call the trial court’s attention to appellant’s objection; (e) it cannot be said, as matter of law under the evidence that the wire and wire rope is not a new manufactured product of the original rods. As to (a), the situation is that the sole issue in the Case was the construction of a tariff; that the essential facts upon which that issue was to be determined were stipulated and were all found by the court (the evidence as to a trade meaning being the exception, that evidence being undisputed and the court making no specific finding thereon); that the “finding” of the court, which is here attacked, is the ultimate conclusion that what appellant did was not within the tariff as construed by the court. Obviously, whether the tariff was to be construed to cover the situation shown by the stipulated facts is a question of law and not of fact. Were this otherwise, a question of jurisdiction might arise. See Turner, Dennis & Lowry Lumber Co. v. C. M. & St. P. Ry. Co., 271 U. S. 259, 46 S. Ct. 530, 70 L. Ed. 934; Penn. R. R. Co. v. Kittaning I. & S. Mfg. Co., 253 U. S. 319, 40 S. Ct. 532, 64 L. Ed. 928; Northern Pac. Ry. Co. v. Solum, 247 U. S. 477, 38 S. Ct. 550, 62 L. Ed. 1221; Texas & Pac. Ry. Co. v. American Tie & Timber Co., 234 U. S. 138, 34 S. Ct. 885, 58 L. Ed. 1255. If the court had found the stipulated facts (without more) and applied its construction of the tariff thereto, it would have completely disposed of the issue. The facts were never in dispute. The meaning of the tariff was disputed, and that was a matter of law. As to (b), the record shows denial of requests for “findings” presented by appellant to find for it upon the stipulated facts — really a request for a conclusion of law. As to (e), it is sufficient to say that whether it can be said (as matter of law) that the wire and wire rope are “new manufactured” products from the rods is not really determinative (as treated hereinafter) of the meaning of the tariff. The essence of this appeal is to test whether the real facts found support the judgment.
Appellee advances related contentions as follows: That the Interstate Commerce Commission has ruled that tariff transit arrangements should be strictly construed, that is, that it must plainly appear that what the shipper does is permitted by the tariff; that the Commission has consistently held manufactoring is not within a tariff permitting fabrication, as applied to iron and steel articles; that the Commission has consistently regarded wire and wire rope as a manufactured product distinct from rods; that these-holdings by the Commission are not to be disturbed except for cogent reasons.
The Commission has held that “transit rights must be specifically authorized by tariff provision; they can not be inferred.” Armour & Co. v. D., L. & W. R. R. Co., 101 I. C. C. 337, 339; Swift & Co. v. C., B. & Q. R. R. Co., 50 I. C. C. 233, 234. Also see Moore Stave Co. v. Morgan’s L. & T. R. & S. S. Co., 41 I. C. C. 472, 473. Such statements in the just above citations were not used in connection with ambiguous or doubtful expressions in tariffs. Of course, the authority for any charge, condition, practice, or service must be found in the tariff, and nothing not so found can be inferred or added thereto, hut, where expressions in a tariff are doubtful in meaning — are ambiguous — all reasonable doubts must bo resolved in favor of the shipper. United States v. Gulf Refining Co., 268 U. S. 542, 546, 45 S. Ct. 597, 69 L. Ed. 1082; Atl. C. L. R. Co. v. Atlantic Bridge Co., 57 F.(2d) 654, 655 (C. C. A. 5); Southern Pac. Co. v. Lothrop, 15 F.(2d) 486 (C. C. A. 9).
Appellee contends that the Commission has consistently held that “fabrication” does not mean or include “manufacture” as applied to iron and steel articles. The word “fabrication” in this tariff is not the controlling term. “Reworking” is the word of concern. The use of “fabrication” in the tariff is, at most, as a convenient term to include “Reworking or assembling.” If such is its use, it is defined by the two words “reworking and assembling,” which gets ns baek to the prime importance of the meaning of “reworking,” However, the decisions cited fall short of giving “fabrication” a technical meaning in iron and steel article tariffs which must operate to circumscribe the meaning of that word whenever found in such tariffs. The first of these is Fabrication-in-Transit Charges, 29 I. C. C. 70, which involved an investigation into the propriety of increased charges (from 1% to 2% cents per hundredweight) for transit privileges concerning “structural steel to be fabricated in transit,” and of changes in rules governing the same. The industry with which that decision and the tariff therein were concerned was structural steel. What “fabrication” meant in that industry was cutting the “various structural steel shapes [constituting the in shipment] to the required length,” punching, drilling, planing the ends, and riveting the structural steel together, and that trade so understood the word “fabrication.” Page 73. The Commission said (page 73): “A clear distinction exists between the' process by which structural steel is manufactured and the subsequent process by which it is adapted for use in bridges, buildings, and other structures. In connection with the latter, custom has established the use of the word ‘fabrication’ to distinguish it from the previous one of manufacture.”
Parkersburg Rig & Reel Co. v. B. & O. R. Co., 63 I. C. C. 363, involved the reasonableness and prejudice of a rate according transit fabrication privileges on steel articles, including “plates” but not “sheets.” Preliminary to the discussion of whether “sheets” were equivalent to “plates,” the Commission described what took place at the transit point plant where steel tanks were made, and said (page 364) : “Fabrication, which means bending, bolting, boring, burning, countersinking, cutting, drilling, flanging, gagging, painting, planing, punching, reaming, riveting, sawing, shearing, straightening, tapping, threading, and welding, takes place at complainant’s plant. The tank material after it has undergone the process of fabrication, is shipped, in an unassembled state, to destinations where it undergoes additional fabrication, is assembled, and erected by complainant’s employees.”
Magor Car Corporation v. D., L. & W. R. Co., 144 I. C. C. 135, was an investigation to determine the reasonableness and equality of a tariff allowing fabrication in transit which apparently designated the articles which might be fabricated, but omitted “car trucks.” In describing the shipper’s process, the Commission said (page 135): “Complainant purchases most of the iron and steel parts, used in the fabrication of ear trucks in and around Pittsburgh, Pa., in what is known as the Pittsburgh steel-producing district. The process of fabrication consists of cutting the material to length, punching, drilling, planing, riveting, and fitting together.”
Also, in Fabrication of Iron and Steel at Chicago, Rock Island and Pacific Points, 190 I. C. C. 583, 584, the Commission describes what the shipper does in “fabricating” wire into hay bales, nails, etc., as follows: “By authority of the general designation of ‘also iron or steel’ respondent permits fabrication in transit of wire into hay-hale ties, barbed wire, wire nails, staples, and other wire products, based on the rates and charge just stated. The process of fabrication consists of feeding wire into machines which perform various operations, such as straightening, cutting, bending; and twisting, necessary to manufacture such commodities.”
It is noted that the terras “fabricate” or “fabrication” and “manufacture” are used interchangeably in the case last above and in Chain Iron and Steel, and Bolt, Nail, Rivet, and Wire Rods in Official Classification Territory, 151 I. C. C. 83.
A companion to the contention just above is the position of appellee that the Commission has consistently regarded wire and wire rope as a manufactured product distinct from rods for rate-making purposes. We have examined every decision cited by counsel on both, sides, and have been unable to find such a determination as contended for. We do find the Commission using the word “manufacture” in connection with wire, but such use is in connections not at all calling for or intended to be a careful use of words or any distinction between fabricating and manufacturing.
From the above it is evident that we are unable to find any holdings by the Commission which are persuasively binding, or even greatly helpful, to us here.
Appellee argues that the term “fabrication,” in the trade, does not include manufacture, and that what appellant does is a manufacturing process. The supporting citation is Transit on Iron and Steel Articles at Parkersburg’, W. Va., 115 I. C. C. 381. That case was an investigation of proposed charges for out-of-line hauls on iron and steel articles fabricated in transit at Parkersburg. It involved no issue as to what the shipper did at Parkersburg. In its statement of the ease, the Commission describes the action of the shipper as operating a plant “for the fabrication of iron and steel articles into tank, tank-tower, and derrick material,” and that the tariff authorized transit privileges at Parkersburg “for the purposes usually included in the term ‘fabrication’ and reforwarding in an unfinished state, knocked down, to points of destination in the same direction. '* * * ” This record here contains undisputed evidence that what appellant did is understood by the trade to be “working” or “reworking.”
•Appellee argues that wire rope is a “new manufactured product of the original rods” and that “fabrication” cannot mean manufacture. The word “manufacture” is a broad general term susceptible of many applications and meanings. Like many general words, it invites uses which are definable only in connection with the immediate use. This is illustrated by a legion of eases dealing with definition of it. 38 C. <7. 965-972; Anheuser-(Busch Brewing Assoc, v. United States, 207 U. S. 556, 560, 28 S. Ct. 204, 52 L. Ed. 336; Allen v. Smith, 173 U. S. 389, 19 S. Ct. 446, 43 L. Ed. 741; Tide Water Oil Co. v. United States, 171 U. S. 210, 18 S. Ct. 837, 43 L. Ed. 139; Seeberger v. Castro, 153 U. S. 32, 14 S. Ct. 766, 38 L. Ed. 624; Hartranft v. Wiegmann, 121 U. S. 609, 7 S. Ct. 1240, 30 L. Ed. 1012; Lawrence v. Allen, 7 How. 785, 12 L. Ed. 914; United States v. Hathaway, 4 Wall. 404, 18 L. Ed. 395; United States v. Potts, 5 Cranch, 284, 3 L. Ed. 102; In re Tecopa Mining & Smelting Co. (D. C.) 110 F. 120; Foppes v. Magone (C. C.) 40 F. 570. Broadly, to manufacture means to make (State v. Marastoni, 85 Or. 37, 165 P. 1177, 1178; 38 C. J. 966), to process (Merrill v. Yeomans, 94 U. S. 568, 570, 572, 24 L. Ed. 235), to compose (Anheuser-Busch Brewing Assoc, v. United States, 207 U. S. 556, 562, 28 S. Ct. 204, 52 L. Ed. 336), to fabricate (Anheuser-Busch Brewing Assoc. v. United States, 207 U. S. 556, 562, 28 S. Ct. 204, 52 L. Ed. 336; Commonwealth v. Lowry-Rodgers Co., 279 Pa. 361, 123 A. 855, 856; Carlin v. Western Assur. Co., 57 Md. 515, 526, 40 Am. Rep. 440; Benedict v. Davidson County, 110 Tenn. 183, 67 S. W. 806, 808; Kohlsaat & Co. v. O’Connell, 255 Ill. 271, 99 N. E. 689; State Tax Collector v. Brown, 140 La. 928, 74 So. 253, 255; and see Bouvier’s Law Dictionary and general dictionaries as to meaning of “manufacture” and of “fabricate”).
From the above, it is clear that, while “manufacture” and “fabricate” have meanings and applications which may differ, yet they are often, and in their broadest sense, interchangeable in meaning, and that the definition in any particular instance must depend upon the environment of the particular use of either. We have been able to find no reason for narrowing the word “fabrication” in this tariff to exclude what appellant did here, although it would fall within some meaning of “manufacture.”
In connection with the general thought of transit privileges involving manufacture, two observations seem not out of order. First, this case involves no issue of the reasonableness or equality of a transit privilege. The parties here treat the tariff arrangement as valid and dispute only as to its meaning. Therefore decisions of courts or of the Commission defining the purposes or bases of transit privileges (such as Central It. R. Co. v. United States, 257 U. S. 247, 43 S. Ct. 80, 66 L. Ed. 217, and Leader Iron Works v. Ill. Central R. R. Co., 182 I. C. C. 17, 21), or determining the administrative policy of the Commission in allowing or denying such privileges (as Leader Iron Works Case, supra, page 22 of 182 I. C. C.), are not pertinent to our inquiry. Second, transit privileges more clearly involving a process of manufacture than this tariff have been allowed by the Commission; for example, the canning of raw citrus fruiis (Jacksonville Traffic Bureau, Incorporated v. Seaboard Air Line Ry. Co., 178 I. C. C. 629) and the milling of grain into mixed feeds (Grain and Grain Products, etc., 173 I. C. C. 511) or into flour (Royal Milling Co. v. G. N Ry. Co., 47 I. C. C. 263, 270; Missouri River-Illinois Wheat and Flour Rates, 27 I. C. C. 286).
Appellee contends that “reworking” cannot mean “manufacture,” and that this is manufacture. If our conception of “reworking” (as above herein set out) is correct, this contention that reworking cannot mean manufacture is not sound.
We think the court erred in its judgment for appellee and should have entered judgment for appellant on the facts found by the court.
The judgment is reversed, and the ease remanded for a new trial.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Jose LOPEZ and First National Bank in Albuquerque, Co-Administrators and Personal Representatives of the Estates of Cecilia Cardiel de Lopez, et al., Plaintiffs-Appellees, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant-Appellant, Third Party Plaintiff, v. The CITY OF ALAMOGORDO, NEW MEXICO, Third Party Defendant-Appellee.
No. 73-1675.
United States Court of Appeals, Tenth Circuit.
Argued March 21, 1974.
Decided July 1, 1974.
Rehearing Denied July 25, 1974.
W. B. Kelly, Santa Fe, N. M., for defendant-appellant, third party plaintiff.
Richard E. Ransom, Albuquerque, N. M., for plaintiffs-appellees.
Edward E. Triviz, Las Cruces, N. M., for third party defendant-appellee.
Before HILL and DOYLE, Circuit Judges, and DURFEE, Judge.
Honorable James R. Durfee, United States Court of Claims, sitting by designation.
HILL, Circuit Judge.
In this diversity action Southern Pacific Transportation Company appeals a $150,000 jury verdict awarded appellees for the wrongful deaths of three members of the Domingo Lopez family. Appellant also challenges the trial court’s dismissal of the City of Alamogordo, New Mexico, as a third party defendant.
Pertinent facts leading up to this appeal include the following. The Domingo Lopez family lived in a residential area outside the city limits of Alamogordo, New Mexico. Their main access to the City was Canal Street crossing, a railroad crossing using standard city stop signs and standard railroad cross-bucks to warn motorists of approaching trains. On the evening of May 3, 1972, Domingo, his wife Cecilia, and two of their ten minor children were on their way to Alamogordo when their pickup truck collided with a Southern Pacific freight train at the Canal Street crossing. All four members were killed instantly.
Appellees, as personal representatives for the benefit of 'the eight surviving Lopez children, brought this action in the United States District Court for New Mexico to recover for alleged acts or omissions of negligence on the part of appellant. Their complaint in essence stated that appellant failed to adequately warn motorists of approaching trains. Specifically, appellant failed to construct and maintain a reasonably safe crossing; failed to exercise reasonable care in the operation of its equipment; failed to install and maintain adequate warning signs or signals; and failed to maintain proper control of its train. Appellant denied any negligence and filed a third-party complaint against the City of Alamogordo, alleging that the injuries were proximately caused by the willful negligence of third-party defendant, including failure to construct and maintain a reasonably safe crossing and approach; failure to install and maintain adequate warning signs and signals; and knowingly maintaining extra hazardous conditions at an unusually dangerous crossing. Appellant also alleged the City of Alamogordo should provide one-half contribution for any verdict rendered against the railroad.
At trial appellees’ evidence included the following. Mrs. Greenwood, the only eyewitness to the accident, testified that she was driving along Canal Street shortly after 8:00 o’clock in the evening of May 3, 1972; it was then dusk but not dark. Upon approaching the Canal Street crossing she pulled up to the crossing and stopped with the front end of her car a little past the stop sign. She then started to go on but saw the train approaching and .^stopped again. She testified that she first saw the train when the front end of the engine was less than 100 yards from the crossing. Mrs. Greenwood did not hear any whistle until about the time she saw the train ánd even then the whistle was only a short blast. The front windows on the driver’s side and the passenger’s side of her station wagon were open. She did not have a radio in her car which might have obstructed her hearing. Mrs. Greenwood further testified the Lopez truck, which was approaching the crossing from the opposite direction, was near the railroad tracks by the time the train whistle was blown.
Policeman Jerry Lilley, a patrolman for the Department of Public Safety, City of Alamogordo, investigated the accident and found that Domingo’s truck had left 24 feet 9 inches of tire marks to a point six inches over the west rail. Although it cannot be determined from the skid marks how fast Domingo was going, other testimony indicated he was approaching the tracks within the speed limit of 25 miles per hour. Domingo did, however, drive right onto the railroad tracks.
The train brakeman, Morris Crump, stated that he first saw the pickup when it was over a block from the crossing. Crump does not remember taking his eyes off the pickup after he first saw it, and admits that he was concerned about the approaching truck’s failure to stop because so many vehicles try to beat a train through crossings. Nevertheless, Crump did not make any statement to the engineer about the approaching pickup truck. He further testified that nothing the Lopez truck did or any actions of its occupants indicated they knew the train was there.
Certain facts not in dispute were presented to the jury. These include: (1) that rules and regulations of the Transportation Department of the Southern Pacific Transportation Company require a train’s whistle be sounded continuously a quarter mile from a public crossing until the train crosses» the public roadway; (2) the collision between the front end of the locomotive and the truck occurred at approximately 8:05 to 8:10 p. m., sunset having been at approximately 7:45 to 7:49 p. m.; (3) the City of Alamogordo had installed stop signs on each side of the railroad crossing on Canal Street, these stop signs were in place at the time of the accident and installed in accordance with the agreement of easement with the Southern Pacific Transportation Company.
With regard to the Canal Street crossing, the evidence indicated that in 1969 Alamogordo widenéd the grade crossing. At that time appellant inquired of the City for an approximate daily vehicular traffic count and whether automatic protection had been considered. The City replied that an eleven hour traffic count from 8:30 a. m. to 7:30 p. m. reflected 824 motor vehicles using the crossing and also stated that automatic protection was not desired. Appellant then granted the City an easement upon the condition that the City install and maintain stop signs at the crossing.
Professor Baerwald testified as an expert on traffic safety. When asked his opinion as to the reasonableness of the protection devices at the Canal Street crossing he replied that more was needed than passive devices such as stop signs and crossbucks. He pointed out these passive devices only told the motorist of the existence of the crossing and failed to tell the motorist of the proximity of any oncoming train. In arriving at this conclusion Baerwald determined that based upon the number of automobiles using the Canal Street crossing and the number of trains running across Canal Street every day the exposure factor was almost twice the value used for considering the employment of flashing lights. Baerwald also pointed out that due to sharp curves in the road and potential conflicts with vehicles entering Canal Street from side roads, a vehicle approaching the crossing is faced with intermittent interruptions along the roadway. He further stated that in fyis opinion railroad grade crossings are ineffective as a protective device. Another hazard at the Canal Street crossing, Baerwald testified, are the night lights along White Sands Boulevard, a street paralleling the tracks. It was Baerwald’s opinion that as the lights were turned on along White Sands Boulevard it became increasingly difficult for motorists to distinguish train lights from boulevard lights.
Concerning the lighting condition on the evening of May 3, several other witnesses stated that lights were on along White Sands Boulevard when the accident occurred.
Appellant’s first defense witness, Hattie Shirley, testified that she lived within several blocks of Canal Street crossing and that she heard the train whistle as it passed her home on the evening of May 3. Mrs. Shirley stated the whistle was a long, continuous blast. John Crain, Mrs. Shirley’s nephew who was visiting the Shirleys at the time of the accident, testified the train did whistle as it passed the Shirley house but the whistle was only a short blast. Carlene Moten, who also lives near Canal Street crossing, said the train blew its whistle while approaching the crossing. Ethel Adams, who was visiting Mrs. Moten, testified the train was making a continuous whistle and had its light on while nearing the crossing.
Vernon G. Donlin, retired railroad manager for the New Mexico State Highway Department, testified that in 1971 the state took a count of all railroad crossings in New Mexico. From this survey it was found that New Mexico had 772 crossings: 29 were protected by gates; 106 were protected by flashing lights or cantilever lights; 15 were protected by stop signs; 527 were protected by crossbucks; and 95 had no protection. Donlin further stated that according to his method of determining safety at railroad crossings the Canal Street crossing was adequately protected with the stop signs and crossbucks.
Jack V. Butchofsky, train engineer, testified that he was traveling about 45 miles per hour upon approaching the Canal Street crossing and was blowing the whistle continuously. He had said at the time of the accident however that he was traveling about 60 miles per hour. He stated the pickup truck was traveling slow enough that it could have stopped at any time.
After both sides rested, the City of Alamogordo’s motion for a directed verdict was granted on grounds the City did not have the same responsibility as appellant for making the crossing safe. Appellant’s motion for a directed verdict with respect to Domingo Lopez was also granted since Domingo failed to stop at the stop sign, which constituted contributory negligence as a matter of law. With respect to the three passengers in the truck, the jury was instructed that damages were permissible if the passengers were not guilty of contributory negligence and appellant’s negligence was a proximate cause of the accident. The jury returned a verdict in favor of appellees in the sum of $100,000 for the wrongful death of Cecilia Lopez and $25,000 each for the wrongful deaths of the two minor children.
Appellant’s first argument on appeal is that appellees have failed to present substantial evidence showing that negligence by Southern Pacific proximately caused the accident. Appellant strongly argues the sole proximate cause of the accident was failure of Domingo to stop at the railroad tracks. In determining this issue we will view the evidence, including all reasonable inferences, in the light most favorable to the prevailing party. Following this standard of review, we first note that Domingo was driving his truck within the speed limit of 25 miles per hour along Canal Street. The train brakeman observed the truck over a block from the crossing and although he was concerned it might not stop, he failed to notify the engineer of the potentially dangerous situation. The engineer was running the train at approximately 60 miles per hour yet he failed to blow the whistle until he was less than 100 yards from the crossing. Even then the whistle was merely a short blast, although Southern Pacific regulations require the whistle to be blown continuously once the train is within a quarter mile of a railroad crossing.
Other evidence indicated the Canal Street crossing was dangerous because there was insufficient protective devices warning motorists of approaching trains. Although stop signs and cross-bucks were placed at the crossing, these were inadequate in view of the large volume of vehicles and trains using the crossing. The evidence suggested these passive devices did not sufficiently warn motorists, who were negotiating sharp curves and looking for traffic at intersections, that a train was approaching. Further evidence indicated a potentially dangerous situation existed from the fact that White Sands Boulevard paralleled the railroad tracks; at dusk train lights easily could be confused with boulevard lights. Although appellant could have at least partially remedied this dangerous situation by installing rotating lights on its trains it had failed to do so.
From the above recital it is clear there is sufficient evidence for the jury to reasonably determine that appellant was negligent in operating its train and/or negligent in failing to provide adequate protective devices at the crossing. We cannot say as a matter of law that Domingo’s running of the stop sign was the sole proximate cause of the accident. New Mexico law states that the proximate cause of an injury “need not be the last act, or the nearest act to the injury, but may be one which actually aided in producing the injury. Proximate cause need not be the sole cause, but it must be a concurring cause.” Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563, 567 (1970). In New Mexico there can be more than one proximate cause and based upon the evidence the jury could reasonably determine that appellant’s negligence was one of the proximate causes.
The jury was instructed that if it found the passengers contributorily negligent in causing this accident the verdict must be for appellant. Contributory negligence is an affirmative defense which must be proved by the appellant. Absolutely no evidence was offered by appellant indicating that either minor child failed to exercise due care for her own safety; or failed to keep a proper lookout; or failed to stop, look and listen. With respect to Mrs. Lopez, the only evidence is that she had traveled Canal Street on numerous occasions and thus knew or should have known of the potentially dangerous crossing. Although a passenger who is aware of potential danger must take steps to avoid it, the passenger has no duty or obligation to keep a lookout on behalf of the driver and need only warn of imminent danger of which the passenger is aware and the driver unaware. See Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966). As pointed out above, there is sufficient evidence that Mrs. Lopez was not aware of the impending danger. There were intermittent interruptions along Canal Street which could have diverted her attention. The approaching darkness reduced visibility and the lights on White Sands Boulevard may have hindered her vision of the approaching train. With respect to Domingo’s running of the stop sign, there is no evidence that Mrs. Lopez should have foreseen this event. A daughter testified that Domingo always stopped at railroad crossings and looked both ways before proceeding. As Domingo approached the railroad tracks he was traveling at a speed which one witness testified was slow enough to have allowed stopping of the vehicle at any time. From the evidence the jury could reasonably infer that under the circumstances Mrs. Lopez had no reason to be aware of danger and therefore was not contributorily negligent. Even without these inferences, however, it is clear appellant failed to meet its burden of proving negligence on her part.
While appellant suggests the passengers committed contributory negligence as a matter of law there was sufficient evidence on this question to allow a jury to resolve the dispute. See DePadilla v. Atchison, T. & S. F. Ry. Co., 16 N.M. 576, 120 P. 724 (1911). The jury rejected appellant’s affirmative defense and we are bound by their decision.
The second alleged basis for reversal is the trial court’s refusal to give appellant’s requested instruction on independent intervening cause. Appellant’s contention is the independent intervening cause that clearly resulted in this accident was the undisputed negligence of Domingo in failing to stop at the Canal Street stop sign as required by New Mexico law. Unquestionably a party is entitled to an instruction based on his theory of the case if there is evidence in the record to support it. Clifton v. Mangum, 366 F.2d 250 (10th Cir. 1966). In New Mexico an independent intervening cause will prevent recovery if the act or omission of a wrongdoer (1) interrupts the natural sequence of events following from the first act or omission; (2) turns aside their cause; (3) prevents the natural and probable results of the original act or omission; and (4) produces a different result that could not have been reasonably foreseen. Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955). Appellant failed, however, to present any evidence that Domingo’s running of the stop sign produced a result that could not have been reasonably foreseen. The evidence showed that Southern Pacific knew a high percentage of motorists failed to stop at their railroad crossings. Brakeman Crump testified that he was concerned the Lopez truck might not stop before entering the crossing. • No evidence was offered indicating Domingo’s failure to stop produced a result that could not be reasonably foreseen to be a result of appellant’s failure to provide adequate warning devices and/or failure to properly blow the train whistle. We therefore find no error in the trial court’s refusal to instruct the jury on independent intervening cause.
Appellant's third argument is the trial court erred in submitting to the jury issues on the train’s speed, failure to warn, proper lookout, and the adequacy of lights on the railroad engine. Appellant’s position is there was no substantial evidence to support these issues. The trial court, as part of .its instructions, stated the following:
[T]he deaths which Plaintiffs claim were proximately caused by one or more of the following claimed acts or omissions of negligence: The train whistle was sounded unreasonably late to avoid the danger of a crossing collision; Engineer Butchofsky did not keep a proper lookout and brakeman Crump did not timely warn' engineer Butchofsky of the approaching Lopez pickup truck; Engineer Butchofsky did not maintain proper control of the train’s speed so as to avoid placing city residents in danger and so as to avoid an accident at the city grade crossing; The Southern Pacific did not operate its locomotive with adequate lights, including a moving headlight, to give motorists reasonable warning of the approach of a train;
There is no law that regulates the speed of a railroad train except the basic principle that it shall exercise ordinary care, and therefore any speed consistent with such care is lawful and proper.
With respect to the issue of speed, appellant .argues that its train was within the 60 miles per hour speed limit. Hence, the court should not have allowed the train’s speed to be an issue. In light of the circumstances surrounding this case, however, we" disagree with appellant’s contention. There is evidence suggesting the train was traveling 60 miles per hour as it approached a residential subdivision’s only major access to the City. Because this access was used extensively by city-bound traffic, we believe it was proper for a jury to decide whether the train was approaching the crossing at a reasonable speed. Another reason for instructing on the train’s speed is so that the jury could determine whether appellant failed to adequately warn motorists of an approaching train. Landers v. Atchison, T. & S. F. Ry. Co. (II), 73 N.M. 131, 386 P.2d 46 (1963).
Appellant next states the court erred in allowing the jury to determine whether the train whistle was blown long enough to give motorists adequate warning. Appellant suggests the only evidence relating to the train whistle’s blast came from Mrs. Greenwood and her testimony is merely negative evidence that is entitled to no weight. We disagree. There is testimony from Crain that he too heard only a short blast; Mrs. Adams, in her deposition, testified the train did not blow its whistle until it was about a block from the crossing. Needless to say, there is sufficient evidence on the train whistle issue to send it to the jury. See Union Pac. Ry. Co. v. Burnham, 124 F.2d 500 (10th Cir. 1941).
Appellant argues there was no dereliction of duty in not equipping the train with a movable headlight. Secondly, there was insufficient evidence supporting appellees’ claim that engineer Butchofsky failed to keep a proper lookout and that brakeman Crump failed to give a warning. We believe there is sufficient evidence warranting a jury instruction on these two issues and thus will belabor the point no further.
With respect to keeping a proper lookout, appellant suggests the trial court should have given appellant’s requested instruction concerning the right of the crew to assume Domingo would stop at the crossing. While this specific instruction was not given it is clear the subject was thoroughly covered in the trial court’s foreseeability instruction and thus appellant suffered no prejudice.
Appellant alleges the court erred in submitting to the jury the issue of adequacy of warning devices at Canal Street crossing. It is appellant’s contention that because New Mexico follows the stop, look and listen rule the railroad company is not negligent in failing to maintain' automatic protection devices unless the crossing is more than ordinarily hazardous. 74 C.J.S. Railroads § 727. Although New Mexico courts have not defined the standard of care of a railroad for placing warning devices at public highway crossings we can infer from Landers v. Atchison, T. & S. F. Ry. Co. (II), supra, that a railroad is expected to exercise the standard of care of a reasonably prudent person. Under this standard we can infer that New Mexico would require railroads to give reasonable and timely warning of approaching trains. And whether reasonable care and prudence require under all the circumstances of this case that special warning facilities be maintained at a crossing is a question of fact for the jury. See Union Pac. Ry. Co. v. Lumbert, 401 F.2d 699 (10th Cir. 1968); Chicago & N. W. Ry. Co. v. Golay, 155 F.2d 842 (10th Cir. 1946). Appellant nevertheless argues the only evidence relating to inadequate warning devices comes from Baerwald, whose testimony was purely speculative. Baerwald testified that in his opinion the stop signs and crossbucks at Canal Street crossing were inadequate warning devices, that intermittent interruptions along Canal Street partially obstructed one’s view of approaching trains and that a nonrevolving train headlight could easily be confused with lights along White Sands Boulevard. We do not believe Baerwald’s testimony is so unrelated to the circumstances surrounding the accident as to be of no probative value. Whether Baerwald should have testified as an expert witness is a discretionary matter for the trial court. Landers v. Atchison, T. & S. F. Ry. Co. (I), 68 N.M. 130, 359 P.2d 522 (1961). And the weight to be given his testimony is for the jury rather than an appellate court. See Phelps Dodge Corp. v. Atchison, T. & S. F. Ry. Co., 400 F.2d 20 (10th Cir. 1968).
Appellant’s final argument is directed toward third party defendant. Appellant contends the court erred in granting the City of Alamogordo’s motion for a directed verdict because many of the hazardous conditions, such as dirt mounds, utility poles and vegetation along Canal Street were under the City’s control. The general rule is, however, “that in the absence of a statute a highway authority is not liable for personal injuries because it has allowed the view of an intersection to be obscured by high grass, weeds or bushes which have grown up in a portion of the street or along its boundary.” Hidalgo v. Cochise County, 13 Ariz.App. 27, 474 P.2d 34, 35 (1970). Nor do we believe the City was responsible for the signals at the railroad crossing; generally it is the railroad’s duty to provide adequate warnings at its own crossings. See Missouri-Kansas-Texas Ry. Co. v. Hayes, 445 P.2d 249 (Okla.1968). Without any statutory authority imposing a duty on the City to install and maintain railroad signs on crossings owned by the railroad, we do not believe the City is liable for the inadequate warning devices.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_authoritydecision
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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 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.
SCHALL, COMMISSIONER OF NEW YORK CITY DEPARTMENT OF JUVENILE JUSTICE v. MARTIN et al.
No. 82-1248.
Argued January 17, 1984
Decided June 4, 1984
Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellants in both cases. With her on the briefs for appellant in No. 82-1278 were Robert Abrams, Attorney General, pro se, Peter H. Schiff, Melvyn R. Leventhal, Deputy First Assistant Attorney General, George D. Zuckerman, Deputy Solicitor General, and Robert J. Schack, Assistant Attorney General. Frederick A. 0. Schwarz, Jr., Leonard Koerner, and Ronald E. Sternberg filed a brief for appellant in No. 82-1248.
Martin Guggenheim argued the cause for appellees in both cases. With him on the brief were Burt Neuborne, Janet R. Fink, and Charles A. Hollander
Together with No. 82-1278, Abrams, Attorney General of New York v. Martin et al., also on appeal from the same court.
A brief of amici curiae urging reversal was filed for the Commonwealth of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, Kathleen F. McGrath, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, John K. Van De Kamp of California, Jim Smith of Florida, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Michael T. Greeley of Montana, Paul L. Douglas of Nebraska, Gregory H. Smith of New Hampshire, Anthony J. Celebrezze, Jr., of Ohio, Dave Frohnmayer of Oregon, T. Travis Medlock of South Carolina, David L. Wilkinson of Utah, John J. Easton, Jr., of Vermont, Kenneth 0. Eikenberry of Washington, A. G. McClintock of Wyoming, and Aviata F. Faalevao of American Samoa.
Briefs of amici curiae urging affirmance were filed for the American Bar Association by Wallace D. Riley, Andrew J. Shookhoff, and Steven H. Goldblatt; for the Association for Children of New Jersey by Dennis S. Brotman; for the National Juvenile Law Center by Harry F. Swanger; for the National Legal Aid and Defender Association by Michael J. Dale; for the Public Defender Service for the District of Columbia by Francis D. Carter and James H. McComas; and for the Youth Law Center et al. by Mark I. Soler, Loren M. Warboys, James R. Bell, and Robert G. Schwartz.
David Crump filed a brief for the Texas District and County Attorneys Association et al. as amici curiae.
Justice Rehnquist
delivered the opinion of the Court.
Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a “serious risk” that the child “may before the return date commit an act which if committed by an adult would constitute a crime.” Appellees brought suit on behalf of a class of all juveniles detained pursuant to that provision. The District Court struck down §320.5(3)(b) as permitting detention without due process of law and ordered the immediate release of all class members. United States ex tel. Martin v. Strasburg, 513 F. Supp. 691 (SDNY 1981). The Court of Appeals for the Second Circuit affirmed, holding the provision “unconstitutional as to all juveniles” because the statute is administered in such a way that “the detention period serves as punishment imposed without proof of guilt established according to the requisite constitutional standard.” Martin v. Strasburg, 689 F. 2d 365, 373-374 (1982). We noted probable jurisdiction, 460 U. S. 1079 (1983), and now reverse. We conclude that preventive detention under the FCA serves a legitimate state objective, and that the procedural protections afforded pretrial detainees by the New York statute satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Appellee Gregory Martin was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. See Petitioners’ Exhibit lb. Martin had possession of the gun when he was arrested. He was 14 years old at the time and, therefore, came within the jurisdiction of New York’s Family Court. The incident occurred at 11:30 at night, and Martin lied to the police about where and with whom he lived. He was consequently detained overnight.
A petition of delinquency was filed, and Martin made his “initial appearance” in Family Court on December 14th, accompanied by his grandmother. The Family Court Judge, citing the possession of the loaded weapon, the false address given to the police, and the lateness of the hour, as evidencing a lack of supervision, ordered Martin detained under §320.5(3)(b) (at that time §739(a)(ii); see n. 2, supra). A probable-cause hearing was held five days later, on December 19th, and probable cause was found to exist for all the crimes charged. At the factfinding hearing held December 27-29, Martin was found guilty on the robbery and criminal possession charges. He was adjudicated a delinquent and placed on two years’ probation. He had been detained pursuant to § 320.5(3)(b), between the initial appearance and the completion of the factfinding hearing, for a total of 15 days.
Appellees Luis Rosario and Kenneth Morgan, both age 14, were also ordered detained pending their factfinding hearings. Rosario was charged with attempted first-degree robbery and second-degree assault for an incident in which he, with four others, allegedly tried to rob two men, putting a gun to the head of one of them and beating both about the head with sticks. See Petitioners’ Exhibit 2b. At the time of his initial appearance, on March 15, 1978, Rosario had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted. Probable cause was found on March 21. On April 11, Rosario was released to his father, and the case was terminated without adjustment on September 25, 1978.
Kenneth Morgan was charged with attempted robbery and attempted grand larceny for an incident in which he and another boy allegedly tried to steal money from a 14-year-old girl and her brother by threatening to blow their heads off and grabbing them to search their pockets. See Petitioners’ Exhibit 3b. Morgan, like Rosario, was on release status on another petition (for robbery and criminal possession of stolen property) at the time of his initial appearance on March 27, 1978. He had been arrested four previous times, and his mother refused to come to court because he had been in trouble so often she did not want him home. A probable-cause hearing was set for March 30, but was continued until April 4, when it was combined with a factfinding hearing. Morgan was found guilty of harassment and petit larceny and was ordered placed with the Department of Social Services for 18 months. He was detained a total of eight days between his initial appearance and the factfinding hearing.
On December 21, 1977, while still in preventive detention pending his factfinding hearing, Gregory Martin instituted a habeas corpus class action on behalf of “those persons who are, or during the pendency of this action will be, preven-tively detained pursuant to” § 320.5(3)(b) of the FCA. Rosario and Morgan were subsequently added as additional named plaintiffs. These three class representatives sought a declaratory judgment that § 320.5(3)(b) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
In an unpublished opinion, the District Court certified the class. App. 20-32. The court also held that appellees were not required to exhaust their state remedies before resorting to federal habeas because the highest state court had already rejected an identical challenge to the juvenile preventive detention statute. See People ex rel. Waybum v. Schupf, 39 N. Y. 2d 682, 350 N. E. 2d 906 (1976). Exhaustion of state remedies, therefore, would be “an exercise in futility.” App. 26.
At trial, appellees offered in evidence the case histories of 34 members of the class, including the three named petitioners. Both parties presented some general statistics on the relation between pretrial detention and ultimate disposition. In addition, there was testimony concerning juvenile proceedings from a number of witnesses, including a legal aid attorney specializing in juvenile cases, a probation supervisor, a child psychologist, and a Family Court Judge. On the basis of this evidence, the District Court rejected the equal protection challenge as “insubstantial,” but agreed with appellees that pretrial detention under the FCA violates due process. The court ordered that “all class members in custody pursuant to Family Court Act Section [320.5(3)(b)] shall be released forthwith.” Id., at 93.
The Court of Appeals affirmed. After reviewing the trial record, the court opined that “the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court concluded from that fact that § 320.5(3)(b) “is utilized principally, not for preventive purposes, but to impose punishment for unadjudi-cated criminal acts.” Id., at 372. The early release of so many of those detained contradicts any asserted need for pretrial confinement to protect the community. The court therefore concluded that § 320.5(3)(b) must be declared unconstitutional as to all juveniles. Individual litigation would be a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined.
There is no doubt that the Due Process Clause is applicable in juvenile proceedings. “The problem,” we have stressed, “is to ascertain the precise impact of the due process requirement upon such proceedings.” In re Gault, 387 U. S. 1, 13-14 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See id., at 31-57 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U. S. 358 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U. S. 519 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e. g., McKeiver v. Pennsylvania, 403 U. S. 528 (1971) (no right to jury trial). The State has “a parens patriae interest in preserving and promoting the welfare of the child,” Santosky v. Kramer, 455 U. S. 745, 766 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance — to respect the “informality” and “flexibility” that characterize juvenile proceedings, In re Winship, supra, at 366, and yet to ensure that such proceedings comport with the “fundamental fairness” demanded by the Due Process Clause. Breed v. Jones, supra, at 531; McKeiver, supra, at 543 (plurality opinion).
The statutory provision at issue in these cases, § 320.5(3)(b), permits a brief pretrial detention based on a finding of a “serious risk” that an arrested juvenile may commit a crime before his return date. The question before us is whether preventive detention of juveniles pursuant to §320.5(3)(b) is compatible with the “fundamental fairness” required by due process. Two separate inquiries are necessary to answer this question. First, does preventive detention under the New York statute serve a legitimate state objective? See Bell v. Wolfish, 441 U. S. 520, 534, n. 15 (1979); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). And, second, are the procedural safeguards contained in the FCA adequate to authorize the pretrial detention of at least some juveniles charged with crimes? See Mathews v. Eldridge, 424 U. S. 319, 335 (1976); Gerstein v. Pugh, 420 U. S. 103, 114 (1975).
A
Preventive detention under the FCA is purportedly designed to protect the child and society from the potential consequences of his criminal acts. People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 689-690, 350 N. E. 2d, at 910. When making any detention decision, the Family Court judge is specifically directed to consider the needs and best interests of the juvenile as well as the need for the protection of the community. FCA §301.1; In re Craig S., 57 App. Div. 2d 761, 394 N. Y. S. 2d 200 (1977). In Bell v. Wolfish, supra, at 534, n. 15, we left open the question whether any governmental objective other than ensuring a detainee’s presence at trial may constitutionally justify pretrial detention. As an initial matter, therefore, we must decide whether, in the context of the juvenile system, the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient to justify such detention.
The “legitimate and compelling state interest” in protecting the community from crime cannot be doubted. De Veau v. Braisted, 363 U. S. 144, 155 (1960). See also Terry v. Ohio, 392 U. S. 1, 22 (1968). We have stressed before that crime prevention is “a weighty social objective,” Brown v. Texas, 443 U. S. 47, 52 (1979), and this interest persists undiluted in the juvenile context. See In re Gault, supra, at 20, n. 26. The harm suffered by the victim of a crime is not dependent upon the age of the perpetrator. And the harm to society generally may even be greater in this context given the high rate of recidivism among juveniles. In re Gault, supra, at 22.
The juvenile’s countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well. See In re Gault, supra, at 27. But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Lehman v. Lycoming County Children’s Services, 458 U. S. 502, 510-511 (1982); In re Gault, supra, at 17. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. See State v. Gleason, 404 A. 2d 573, 580 (Me. 1979); People ex rel. Waybum v. Schupf, supra, at 690, 350 N. E. 2d, at 910; Baker v. Smith, 477 S. W. 2d 149, 150-151 (Ky. App. 1971). In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s “parens patriae interest in preserving and promoting the welfare of the child.” Santosky v. Kramer, supra, at 766.
The New York Court of Appeals, in upholding the statute at issue here, stressed at some length “the desirability of protecting the juvenile from his own folly.” People ex rel. Wayburn v. Schupf, supra, at 688-689, 350 N. E. 2d, at 909. Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity — both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child. See L. O. W. v. District Court of Arapahoe, 623 P. 2d 1253, 1258-1259 (Colo. 1981); Morris v. D’Amario, 416 A. 2d 137, 140 (R. I. 1980). See also Eddings v. Oklahoma, 455 U. S. 104, 115 (1982) (minority “is a time and condition of life when a person may be most susceptible to influence and to psychological damage”); Bellotti v. Baird, 443 U. S. 622, 635 (1979) (juveniles “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them”).
The substantiality and legitimacy of the state interests underlying this statute are confirmed by the widespread use and judicial acceptance of preventive detention for juveniles. Every State, as well as the United States in the District of Columbia, permits preventive detention of juveniles accused of crime. A number of model juvenile justice Acts also contain provisions permitting preventive detention. And the courts of eight States, including the New York Court of Appeals, have upheld their statutes with specific reference to protecting the juvenile and the community from harmful pretrial conduct, including pretrial crime. L. O. W. v. District Court of Arapahoe, supra, at 1258-1259; Morris v. D’Amario, supra, at 139-140; State v. Gleason, 404 A. 2d, at 583; Pauley v. Gross, 1 Kan. App. 2d 736, 738-740, 574 P. 2d 234, 237-238 (1977); People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 688-689, 350 N. E. 2d, at 909-910; Aubrey v. Gadbois, 50 Cal. App. 3d 470, 472, 123 Cal. Rptr. 365, 366 (1975); Baker v. Smith, 477 S. W. 2d, at 150-151; Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435, 438-439, 265 A. 2d 348, 349-350 (1970).
“The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).” Leland v. Oregon, 343 U. S. 790, 798 (1952). In light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the “fundamental fairness” demanded by the Due Process Clause in juvenile proceedings. Cf. McKeiver v. Pennsylvania, 403 U. S., at 548 (plurality opinion).
Of course, the mere invocation of a legitimate purpose will not justify particular restrictions and conditions of confinement amounting to punishment. It is axiomatic that “[d]ue process requires that a pretrial detainee not be punished.” Bell v. Wolfish, 441 U. S., at 535, n. 16. Even given, therefore, that pretrial detention may serve legitimate regulatory purposes, it is still necessary to determine whether the terms and conditions of confinement under § 320.5(3)(b) are in fact compatible with those purposes. Kennedy v. Mendoza-Martinez, 372 U. S., at 168-169. “A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, supra, at 538. Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Kennedy v. Mendoza-Martinez, supra, at 168-189. See Bell v. Wolfish, supra, at 538; Flemming v. Nestor, 363 U. S. 603, 613-614 (1960).
There is no indication in the statute itself that preventive detention is used or intended as a punishment. First of all, the detention is strictly limited in time. If a juvenile is detained at his initial appearance and has denied the charges against him, he is entitled to a probable-cause hearing to be held not more than three days after the conclusion of the initial appearance or four days after the filing of the petition, whichever is sooner. FCA § 325.1(2). If the Family Court judge finds probable cause, he must also determine whether continued detention is necessary pursuant to §320.5(3Xb). §325.3(3).
Detained juveniles are also entitled to an expedited factfinding hearing. If the juvenile is charged with one of a limited number of designated felonies, the factfinding hearing must be scheduled to commence not more than 14 days after the conclusion of the initial appearance. §340.1. If the juvenile is charged with a lesser offense, then the factfinding hearing must be held not more than three days after the initial appearance. In the latter case, since the times for the probable-cause hearing and the factfinding hearing coincide, the two hearings are merged.
Thus, the maximum possible detention under §320.5(3)(b) of a youth accused of a serious crime, assuming a 3-day extension of the factfinding hearing for good cause shown, is 17 days. The maximum detention for less serious crimes, again assuming a 3-day extension for good cause shown, is six days. These time frames seem suited to the limited purpose of providing the youth with a controlled environment and separating him from improper influences pending the speedy disposition of his case.
The conditions of confinement also appear to reflect the regulatory purposes relied upon by the State. When a juvenile is remanded after his initial appearance, he cannot, absent exceptional circumstances, be sent to a prison or lockup where he would be exposed to adult criminals. FCA § 304.1(2). Instead, the child is screened by an “assessment unit” of the Department of Juvenile Justice. Testimony of Mr. Kelly (Deputy Commissioner of Operations, New York City Department of Juvenile Justice), App. 286-287. The assessment unit places the child in either nonsecure or secure detention. Nonsecure detention involves an open facility in the community, a sort of “halfway house,” without locks, bars, or security officers where the child receives schooling and counseling and has access to recreational facilities. Id., at 285; Testimony of Mr. Benjamin, id., at 149-150.
Secure detention is more restrictive, but it is still consistent with the regulatory and parens patriae objectives relied upon by the State. Children are assigned to separate dorms based on age, size, and behavior. They wear street clothes provided by the institution and partake in educational and recreational programs and counseling sessions run by trained social workers. Misbehavior is punished by confinement to one’s room. See Testimony of Mr. Kelly, id., at 292-297. We cannot conclude from this record that the controlled environment briefly imposed by the State on juveniles in secure pretrial detention “is imposed for the purpose of punishment” rather than as “an incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U. S., at 538.
The Court of Appeals, of course, did conclude that the underlying purpose of §320.5(3)(b) is punitive rather than regulatory. But the court did not dispute that preventive detention might serve legitimate regulatory purposes or that the terms and conditions of pretrial confinement in New York are compatible with those purposes. Rather, the court invalidated a significant aspect of New York’s juvenile justice system based solely on some case histories and a statistical study which appeared to show that “the vast majority of juveniles detained under [§320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court assumed that dismissal of a petition or failure to confine a juvenile at the dispositional hearing belied the need to detain him prior to factfinding and that, therefore, the pretrial detention constituted punishment. Id., at B73. Since punishment imposed without a prior adjudication of guilt is per se illegitimate, the Court of Appeals concluded that no juveniles could be held pursuant to §320.5(3)(b).
There are some obvious flaws in the statistics and case histories relied upon by the lower court. But even assuming it to be the case that “by far the greater number of juveniles incarcerated under [§320.5(3)(b)] will never be confined as a consequence of a disposition imposed after an adjudication of delinquency,” 689 F. 2d, at 371-372, we find that to be an insufficient ground for upsetting the widely shared legislative judgment that preventive detention serves an important and legitimate function in the juvenile justice system. We are unpersuaded by the Court of Appeals’ rather cavalier equation of detentions that do not lead to continued confinement after an adjudication of guilt and “wrongful” or “punitive” pretrial detentions.
Pretrial detention need not be considered punitive merely because a juvenile is subsequently discharged subject to conditions or put on probation. In fact, such actions reinforce the original finding that close supervision of the juvenile is required. Lenient but supervised disposition is in keeping with the Act’s purpose to promote the welfare and development of the child. As the New York Court of Appeals noted:
“It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated.” People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 690, 350 N. E. 2d, at 910.
Even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3)(b) amounted to a due process violation. A delinquency petition may be dismissed for any number of reasons collateral to its merits, such as the failure of a witness to testify. The Family Court judge cannot be expected to anticipate such developments at the initial hearing. He makes his decision based on the information available to him at that time, and the propriety of the decision must be judged in that light. Consequently, the final disposition of a case is “largely irrelevant” to the legality of a pretrial detention. Baker v. McCollan, 443 U. S. 137, 145 (1979).
It may be, of course, that in some circumstances detention of a juvenile would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-ease basis. Section 320.5(3)(b) is not invalid “on its face” by reason of the ambiguous statistics and case histories relied upon by the court below. We find no justification for the conclusion that, contrary to the express language of the statute and the judgment of the highest state court, §320.5(3)(b) is a punitive rather than a regulatory measure. Preventive detention under the FCA serves the legitimate state objective, held in common with every State in the country, of protecting both the juvenile and society from the hazards of pretrial crime.
B
Given the legitimacy of the State’s interest in preventive detention, and the nonpunitive nature of that detention, the remaining question is whether the procedures afforded juveniles detained prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. See Mathews v. Eldridge, 424 U. S., at 335. In Gerstein v. Pugh, 420 U. S., at 114, we held that a judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime. We did not, however, mandate a specific timetable. Nor did we require the “full panoply of adversary safeguards — counsel, confrontation, cross-examination, and compulsory process for witnesses.” Id., at 119. Instead, we recognized “the desirability of flexibility and experimentation by the States.” Id., at 123. Gerstein arose under the Fourth Amendment, but the same concern with “flexibility” and “informality,” while yet ensuring adequate predetention procedures, is present in this context. In re Winship, 397 U. S., at 366; Kent v. United States, 383 U. S. 541, 554 (1966).
In many respects, the FCA provides far more predetention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein. The initial appearance is informal, but the accused juvenile is given full notice of the charges against him and a complete stenographic record is kept of the hearing. See 513 F. Supp., at 702. The juvenile appears accompanied by his parent or guardian. He is first informed of his rights, including the right to remain silent and the right to be represented by counsel chosen by him or by a law guardian assigned by the court. FCA §320.3. The initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court. §320.2(3). When his counsel is present, the juvenile is informed of the charges against him and furnished with.a copy of the delinquency petition. §320.4(1). A representative from the presentment agency appears in support of the petition.
The nonhearsay allegations in the delinquency petition and supporting depositions must establish probable cause to believe the juvenile committed the offense. Although the Family Court judge is not required to make a finding of probable cause at the initial appearance, the youth may challenge the sufficiency of the petition on that ground. FCA § 315.1. Thus, the juvenile may oppose any recommended detention by arguing that there is not probable cause to believe he committed the offense or offenses with which he is charged. If the petition is not dismissed, the juvenile is given an opportunity to admit or deny the charges. §321.1.
At the conclusion of the initial appearance, the presentment agency makes a recommendation regarding detention. A probation officer reports on the juvenile’s record, including other prior and current Family Court and probation contacts, as well as relevant information concerning home life, school attendance, and any special medical or developmental problems. He concludes by offering his agency’s recommendation on detention. Opposing counsel, the juvenile’s parents, and the juvenile himself may all speak on his behalf and challenge any information or recommendation. If the judge does decide to detain the juvenile under §320.5(3)(b), he must state on the record the facts and reasons for the detention.
As noted, a detained juvenile is entitled to a formal, adversarial probable-cause hearing within three days of his initial appearance, with one 3-day extension possible for good cause shown. The burden at this hearing is on the presentment agency to call witnesses and offer evidence in support of the charges. §325.2. Testimony is under oath and subject to cross-examination. Ibid. The accused juvenile may call witnesses and offer evidence in his own behalf. If the court finds probable cause, the court must again decide whether continued detention is necessary under § 320.5(3)(b). Again, the facts and reasons for the detention must be stated on the record.
In sum, notice, a hearing, and a statement of facts and reasons are given prior to any detention under § 320.5(3)(b). A formal probable-cause hearing is then held within a short while thereafter, if the factfinding hearing is not itself scheduled within three days. These flexible procedures have been found constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States, supra, at 557. Appellees have failed to note any additional procedures that would significantly improve the accuracy of the determination without unduly impinging on the achievement of legitimate state purposes.
Appellees argue, however, that the risk of erroneous and unnecessary detentions is too high despite these procedures because the standard for detention is fatally vague. Detention under §320.5(3)(b) is based on a finding that there is a “serious risk” that the juvenile, if released, would commit a crime prior to his next court appearence. We have already seen that detention of juveniles on that ground serves legitimate regulatory purposes. But appellees claim, and the District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled.
Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the District Court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” Jurek v. Texas, 428 U. S. 262, 274 (1976) (op
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Paul Wm. POLIN and Marsha Polin, Plaintiffs-Appellants, v. DUN & BRADSTREET, INC., a Delaware corporation, Defendant-Appellee.
No. 83-1952.
United States Court of Appeals, Tenth Circuit.
July 29, 1985.
Don E. Gasaway, Gasaway, Green & Harris, P.A., Tulsa, Okl., for plaintiffs-appellants.
Arthur E. Rubin, Gable & Gotwals, Tulsa, Okl., for defendant-appellee.
Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge, and BROWN, District Judge.
Wesley E. Brown, United States District Judge, District of Kansas, sitting by designation.
WILLIAM E. DOYLE, Circuit Judge.
Plaintiffs Paul and Marsha Polin appeal from a grant of summary judgment entered in favor of defendant Dun & Bradstreet, Inc. by the United States District Court for the Northern District of Oklahoma. We affirm the district court’s grant of summary judgment.
The problem here considered arose in the 1960’s. During that period Paul Polin worked as a business and financial consultant as well as an insurance agent. Marsha Polin assisted her husband in the consulting business and also sold life insurance. The Polins operated under several trade names.
In response to an inquiry from the Minnehoma Financial Company in 1966, defendant prepared a credit report on Mr. Polin. This report was sent to eight businesses and detailed Polin’s financial history. It listed four lawsuits filed against Polin for money due on accounts. Defendant prepared a similar report on Polin in 1968, pursuant to a request from Dallas Aero Services Company. The 1968 report, which was furnished to seven companies, contained much the same information as the 1966 report; it also listed three lawsuits pending against the Polins. The following year defendant revised its report on the Polins. At the same time it provided the new report to two businesses. The 1969 revision again listed the lawsuits pending against the Polins.
The businesses that received reports on the Polins did so pursuant to defendant’s standard subscription agreement. The agreement provides in pertinent part:
1. All information furnished to the subscriber by Dun & Bradstreet, Inc. is for the exclusive use of the subscriber as a basis for credit, insurance, marketing and other business decisions and for no other purpose. Such information shall be held in strict confidence and shall never be reproduced, revealed or made accessible in any manner whatever to the persons reported upon or to any others. It is expressly understood that the subscriber shall neither request information for the use of others, nor permit requests to be made under this subscription by others.
Defendant never obtained the Polins’ permission to investigate them, nor did defendant mail the Polins copies of the credit reports before the subscribers received them. In 1966 the Polins asked defendant to cease and desist from preparing the reports without first following the Oklahoma law on the making of credit reports. The Polins renewed their request in 1968, but defendant continued to furnish its subscribers with the reports.
In 1970 the Polins filed the instant action against defendant in the United States District Court for the Northern District of Oklahoma. Count I of their amended complaint alleged an invasion of common law and constitutional rights of privacy. Count II alleged violations of the Oklahoma Credit Ratings Act, Okla.Stat.Ann. tit. 24, §§ 81-82. The Polins sought $1,000,000 actual and $500,000 punitive damages on each count.
In 1977, at the request of the parties, the district court referred the case to a Special Master. The following year the Special Master granted defendant’s motion for summary judgment on both counts, Fed.R.Civ.P. 56(c), and the district court entered judgment “in conformity with” the Special Master’s order. In Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319 (10th Cir.1980) (en banc), we held that the district court had failed to review the Special Master’s report in conformity with Fed.R.Civ.P. 53(e)(4) and remanded the case for the proper review. On remand, the district court granted defendant’s motion for summary judgment, stating, “[T]he facts found by the Special Master do not as a matter of law constitute an invasion of privacy and do not as a matter of law constitute a violation of §§ 81 and 82 of the Oklahoma Credit Reporting [sic] Act that would allow any monetary recovery to the plaintiffs herein.” We now review the district court’s decision.
Count I of the Polins’ complaint fails to present any invasion of privacy claim for which relief can be granted.
First, the Polins have failed to state a cause of action for false light invasion of privacy under Oklahoma law. Oklahoma has recognized this tort as defined by the Restatement (Second) of Torts § 652E, which provides:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
See McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980). The Restatement defines “publicity” as meaning “that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts § 652D, comment a. It is clear that the element of publicity is lacking in the instant case. Defendant’s 1966 credit report on the Polins was sent to eight subscribers, the 1968 report to seven subscribers, and the 1969 revision to two subscribers. The Polins admit that the foregoing are the only ones having access to the credit reports, this being a condition of defendant’s subscription agreement. Plaintiffs’ Motion to Special Master to Reconsider Pre-Trial Order, June 7,1978. Because the Polins cannot prove the element of publicity, they do not have a claim for false light invasion of privacy under Oklahoma law.
Second, we accept the district court’s holding that “Oklahoma law does not require a credit or financial information reporting entity to obtain the consent of an investigated party prior to distribution of reports on such party....” Colonial Park Country Club v. Joan of Arc, 746 F.2d 1425 (10th Cir.1984) (district court’s understanding of unsettled law of its state is entitled to deference).
Third, the Polins have failed to establish any constitutional right to privacy in this case. Such a constitutional right exists only against the acts of a federal or state government, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); it does not extend to a private party such as defendant. The fact that defendant’s credit reporting operations are regulated by federal and state law is not sufficient to create state action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
We also must conclude that Count II of the Polins’ complaint fails to state any cause of action under the Oklahoma Credit Ratings Act, Okla.Stat.Ann. tit. 24, §§ 81-82, for which damages may be awarded. The district court, relying on Derryberry v. Retail Credit Co., 550 P.2d 942 (Okla.1976), correctly concluded that only § 83 provides for monetary recovery. Because the Polins did not allege any violation of § 83, the court properly granted summary judgment to defendant.
The judgment is affirmed.
. Sections 81 and 82 provide:
§ 81. Persons furnishing ratings to request statement of assets and liabilities
Any person, firm or corporation engaged in or purporting to furnish retail merchants the financial or credit rating of any person who is the actual or prospective customer of such retail merchant shall, before furnishing such rating, submit, either in person or by mailing to his last known postoffice address to the person whose rating is about to be reported, a request asking for a statement of the assets and liabilities of such person.
§ 82. Copy of opinion furnished person to whom it relates
Whenever an opinion in writing upon the financial or credit standing of any person is about to be submitted for the purpose of establishing a financial or credit rating of customers, to be used by the retail business concerns, the person, firm or corporation submitting such opinion shall first mail a copy of such opinion to the person about whom the opinion is given, at his proper postoffice address.
. Section 83 provided:
§ 83. False rating — Damages—Misdemean- or — Penalty
Any person, firm or corporation who knowingly promulgates or publishes a false opinion or statement in any book or list as to the credit or financial standing of any person, and circulates such book or list among wholesale or retail business concerns, shall be liable in damages to the person about whom the false opinion or statement is made, for the full amount of injury sustained, and in addition thereto for exemplary damages in any sum to be fixed by the jury, and shall also be guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum hot exceeding twenty-five dollars.
This section was amended in 1984.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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.
FIRST NAT. BANK OF WACO et al. v. SHEEHY. In re SOUTH BROS. TRUNK CO.
Circuit Court of Appeals, Fifth Circuit.
November 27, 1928.
No. 5331.
Allan D. Sanford and H. M. Richey, both of Waco, Tex., for appellants.
W. W. Naman, of Waco, Tex. (Spell, Naman & Penland, of Waco, Tex., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Rehearing denied January 12, 1929.
BRYAN, Circuit Judge.
The District Judge affirmed orders of the referee in bankruptcy which required the appellant banks to pay certain bank deposits over to the trustee in bankruptcy. The banks take the position on this appeal that they had the right to credit the deposits on notes which they held against the bankrupt
On September 17, 1926, the South Bros. Trunk Company had a deposit of $15 in the First National Bank of Waco, Tex., and owed that bank $17,500 on notes. On the same date the trunk company had a deposit of $4,489.06 in the Citizens’ National Bank of Waco, and owed that bank $10,000 on notes. At that time the trunk company was insolvent, and its stockholders turned its assets and the management of its affairs over to' a- committee, with authority to dispose of such assets as were necessary to pay its debts. The presidents of the twtf banks were stockholders of the trunk company, and they became chairman and treasurer, respectively, of this committee. The banks themselves and other principal creditors joined with the committee in sending out letters requesting the co-operation of the remaining creditors. The committee took eharge of the trunk company’s bank accounts, and transferred its bank deposits to the credit of the committee, in the name of the president of the Citizens’ National Bank for the account of the trunk company. The deposits in the banks were thereafter made to the credit of the committee, and were increased by collections to such an extent that, when the petition in bankruptcy was filed against the trunk company the deposits amounted to $5,760.66 in the First National Bank, and to $5,396.22 in the Citizens’ National Bank. In the meantime the notes held by the banks had not been reduced. When bankruptcy intervened, each of the banks credited the notes it held with the amount on deposit.
Section 68 of the Bankruptcy Act (11 USCA § 108) authorizes mutual debts or credits between the estate of the bankrupt and the creditors to be set off, and the balances to be allowed or paid. We are of opinion that the relation of debtor and creditor wMch ordinarily exists between banks and their depositors was so changed by the participation of the banks in the plan of the committee as to make the deposits a trust fund for the benefit, not only of the trunk company, but of all its creditors as well. Upon the creation of the committee the deposits no longer remained subject to cheek by the trunk company, but by agreement were turned over to the committee and placed to its credit. The banks waived their banker’s liens on deposits to the credit of the trunk company, by agreeing to the transfer of those deposits to the credit of the committee. To allow the banks afterwards to take credit, as against the trunk company, on their notes, would be to uphold a violation of the agreement under which all deposits were held in trust. May v. Henderson, 268 U. S. 111, 116, 45 S. Ct. 456, 69 L. Ed. 870; Merrimack Nat. Bank v. Bailey (C. C. A.) 289 F. 468; Wagner v. Citizens’ Bank, 122 Tenn. 164, 122 S. W. 245, 28 L. R. A. (N. S.) 484, 135 Am. St. Rep. 869, 19 Ann. Cas. 483.
The order appealed from is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_respondent
|
169
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
UNITED STATES v. CALDERON.
No. 25.
Argued October 21, 1954.
Decided December 6, 1954.
Assistant Attorney General Holland argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Marvin E. Frankel, Ellis N. Slack, David L. Luce, Joseph M. Howard, Fred G. Folsom and Dickinson Thatcher.
Joseph W. Burns and Norman Herring argued the cause and filed a brief for respondent.
Mr. Justice Clark
delivered the opinion of the Court.
The issue in this case is similar to the question presented in Smith v. United States, ante, p. 147, on the corroboration of respondent’s extrajudicial statements concerning his “opening net worth.” The admissibility of these statements is not questioned.
Respondent, an operator of a legitimate coin-machine business, was tried and convicted on four counts charging him with willful attempts to evade and defeat his own and his wife’s income taxes for the years 1946 through 1949. The Government’s case rested primarily on a net worth, computation, which showed net worth increases and nondeductible expenditures of $62,993.47 for the prosecution period; during these same four years respondent declared only $16,775.14 income. It was stipulated that the computation was correct except as to the items "cash on hand” and “cash in bank.” Respondent’s bank balances were proved by introducing the bank records, and, with some minor adjustments, the Government’s net worth computation was amply verified in this respect. As to “cash on hand,” particularly the amount credited to the taxpayer as of the beginning of the prosecution period, respondent contends that the only evidence tending to substantiate the Government’s figures is the uncorroborated admissions of the accused. He argues that lacking independent evidence of the corpus delicti, the conviction cannot stand. The Court of Appeals agreed and reversed the judgment of conviction, observing that, absent a starting item such as cash on hand, “the remainder of the statement proves nothing.” 207 F. 2d 377. We granted the Government’s petition for certiorari. 347 Ü. S. 1008.
The Government credited the respondent with $500 cash on hand at the starting point. One of the Government agents testified that the $500 figure was an approximation based on respondent’s oral answer to a request that he estimate his year-end balances of cash on hand. According to the agent’s notes, respondent replied that he had “approximately $500.00 cash in his pocket. He believes that because it is his habit to carry about that much money in his pocket at all times.” It was admitted that the taxpayer might have had more than this amount on hand at certain times, since he had frequently made deposits in his bank accounts in sums of $1,000 and $2,000. It appears that the agent did not inquire into how much money respondent had in his safe or his business, as opposed to the funds in his pocket, maintaining that he was justified in treating the taxpayer’s statement regarding the $500 as covering his total cash on hand. Respondent contended that this figure failed to embrace a substantial sum in currency in his safe at the starting date. Both the Government and the respondent adduced a number of circumstances in support of their respective positions, and in interpreting the meaning of respondent’s statement the jury could readily have found the Government’s circumstantial proof more persuasive. In our view, it could have concluded from the evidence that respondent’s statement as to the $500 referred to his total cash on hand at the starting point.
Respondent also signed a written statement admitting to the same opening cash on hand. This document contained the over-all net worth computation relied on by the Government at the trial. The Government’s evidence tended to show that it had been signed by the respondent after the usual warning and after he and the agents had worked over the statement, item by item, for some eight hours. Though admitting that both he and his accountant had read the statement, the respondent sought to prove that he had not understood the net worth computation as a whole or the individual item of “cash on hand”; that before signing the statement he had asked his accountant whether it was correct, intending to rely on the latter’s judgment; and that the accountant, in giving defendant the go-ahead, had merely approved the method employed in compiling the statement without passing on the accuracy of the particular figures. Again it was for the jury to consider all these circumstances in determining the weight to be given the signed statement; we cannot say that the document should have been rejected as a matter of law.
But all these factors are relevant in determining whether the independent evidence provided adequate corroboration. As in Smith v. United States, the circumstances surrounding defendant's admissions cast some doubt on their reliability. The statements were made by a taxpayer anxious to cooperate with the Government in the hope of limiting civil liability and avoiding criminal prosecution. The oral statement, with its “in the pocket” terminology, is certainly not clear. And the Government’s own witness, the respondent’s accountant, testified that he had not verified the particular figures in the written statement when it was referred to him by respondent. Under these circumstances, the trial judge and reviewing courts should exercise great care in determining whether the statements of the accused were corroborated. The reviewing courts, however, can seek corroborative evidence in the proof of both parties where, as in this case, the defendant introduces evidence in his own behalf after his motion for acquittal has been overruled. Cf. Bogk v. Gassert, 149 U. S. 17.
Unlike Smith, there is not sufficient evidence here of the taxpayer’s financial history to substantiate directly the opening net worth. Proof that the taxpayer was impoverished by the depression, that he was working for his meals and $8 a week in 1935, is too remote, absent proof of the taxpayer’s financial circumstances in the intervening years. The respondent entered the coin-machine business in a modest way in 1935; he discon-turned his low-paying job in 1939; and, except for a short period during the war, he devoted his entire efforts to his coin-machine business until 1945, when he began to operate a café as well. The only evidence of defendant’s fortunes between 1935 and 1946, the first prosecution year, consists of his tax returns for 1944 and 1945 and some meager evidence with regard to his tax returns for 1941, 1942 and 1943. The latter apparently was obtained from the respondent, and, standing uncorroborated, cannot serve to corroborate respondent’s other admissions. The 1944 and 1945 returns show net taxable income of $4,162 and $7,328 respectively, with gross receipts from the coin machines of $9,266 and $10,302. This sketchy background can hardly give rise to an inference that defendant had no more cash at the starting date than the Government gave him credit for.
Accordingly, we must search for independent evidence which will tend to establish the crime directly, without resort to the net worth method. There are several evidentiary strands which merit inspection, the first of which is very similar to one employed in Smith. We held there that an inference of tax evasion could be based on the fact that the taxpayer’s visible assets greatly increased at a time when he was receiving unrecorded amounts of taxable income. In Smith v. United States, the taxpayer kept no records. Here the records were shown to be incomplete. Receipts from the coin machines were tabulated from a number of receipt books covering various locations. The receipt books were not numbered; the taxpayer was unsure of how many machines he had in operation; and there was considerable concern about receipt books being lost or misplaced. The loss of one receipt book would make a difference of from $1,000 to $1,500 in income. Eventually, on the advice of his accountant, respondent began to number the books. But, even after this safeguard was employed, unnumbered books continued to appear — and then disappear; two were lost, and subsequently recovered, in a period of three or four months. A system of recording receipts which rests on so unfirm a foundation hardly places the respondent in a very different class — for this purpose — than the taxpayer who keeps no books at all. Both are receiving unrecorded amounts of income.
The increase in respondent’s visible assets is considerably less than the increase presented in the Smith case. There the increment over a four-year period amounted to more than $196,000; the taxpayer’s declared income was less than $17,000; and his average personal living expenses were $3,500 a year. In this case, also over a four-year span, the figures are: increase in visible assets (excluding the cash item), $47,594; declared income, $16,775; living expenses, $3,000 yearly (plus some $1,900 in other nondeductible expenditures). The increase, though less than in Smith, is far from insubstantial. While reporting income only $4,775 in excess of his living expenses, the taxpayer increased his bank balances by over $16,000; added $1,000 to his holdings of United States Savings Bonds; increased his investments in land and buildings by over $9,000; and poured some $22,000 net additional capital into his business. These increments, when considered in the light of respondent’s receipt of unrecorded amounts of taxable income, are sufficiently at variance with his reported income to support an inference of tax evasion. The inference is buttressed in this case by the peculiar relation between the reported gains from respondent’s coin-machine búsiness and his investments in new equipment. In three of the four prosecution years the respondent reported a net loss on his coin-machine operation, and in the fourth a net gain of only $1,330. During the same period he made gross investments in new equipment totaling $37,555. The jury could readily find defendant’s investment policy inconsistent with his claimed losses. Furthermore, although respondent contends that the war years marked the peak of his business activity and that his apparent postwar increases came from profits accumulated during that period, it was not until 1947, the middle of the prosecution period, that his business became sufficiently large to require the full time of his accountant. We hold that the financial history of respondent and his business during the prosecution years provides sufficient independent evidence of the crime of tax evasion to corroborate his statements concerning cash on hand.
Even more conclusive corroboration, however, is respondent’s testimony at the trial that he had $16,000 or $17,000 cash on hand at the starting point. This conflicted with the statements being corroborated ($500) and respondent’s testimony at a prior trial ($2,000 to $9,000), but for the purpose of independently establishing the crime charged the jury could accept this testimony. Respondent further testified that he had $3,000 or $4,000 in cash at the end of the prosecution period. Taken together with the remainder of the net worth statement, which was stipulated or independently established, this testimony establishes a deficiency in reported income of more than $30,000. There could hardly be more conclusive independent evidence of the crime.
But one problem remains. The $17,000 hoard of cash could have absorbed the computed income deficiency for one or more of the prosecution years, and respondent was convicted on all four counts. It might be argued that independent evidence showing a $30,000 deficiency is not enough — that there must be evidence that this sum resulted in a deficiency for each of the years here in issue. There is no merit in this contention. In the first place, this evidence is merely corroborating respondent’s cash-on-hand admissions and need not comply with the niceties of the annual accounting concept. While the evidence as a whole must show a deficiency for each of the prosecution years, the corroborative evidence suffices if it shows a substantial deficiency for the over-all prosecution period. Independent evidence that respondent understated his income by $30,000 in the same four-year period for which respondent’s extrajudicial admissions tended to show a $46,000 deficiency is adequate corroboration. It provides substantial evidence that the crime or crimes of tax evasion have been committed'; the corroboration rule requires no more. Second, there is evidence in this case which tends to negate the possibility that the alleged $17,000 hoard could have absorbed the deficiency for any of the prosecution years. This money supposedly went toward the purchase of equipment in 1946 and early 1947. Almost $16,000 in equipment was purchased in 1946; this accounts for nearly all of the cash hoard and still leaves a deficiency in 1946 of over $5,000 in unreported income. The funds which remain are insufficient to absorb the income deficiencies of any subsequent prosecution years.
As we said, the circumstances surrounding respondent’s admissions create considerable doubt as to their reliability. We have therefore examined the independent evidence with great care to insure that the accused will not be convicted on the basis of a false admission alone. Although the evidence was insufficient to corroborate the opening net worth directly, we find the independent proof of tax evasion entirely adequate. Accordingly, the decision of the Court of Appeals setting aside the conviction is
Reversed.
Mr. Justice Douglas dissents.
By introducing evidence, the defendant waives his objections to the denial of his motion to acquit. Lii v. United States, 198 F. 2d 109; Leeby v. United States, 192 F. 2d 331; Gaunt v. United States, 184 F. 2d 284; Mosca v. United States, 174 F. 2d 448; Hall v. United States, 83 U. S. App. D. C. 166, 168 F. 2d 161. His proof may lay the foundation for otherwise inadmissible evidence in the Government’s initial presentation,. Ladrey v. United States, 81 U. S. App. D. C. 127, 155 F. 2d 417, or provide corroboration for essential elements of the Government’s case, United States v. Goldstein, 168 F. 2d 666; Ercoli v. United States, 76 U. S. App. D. C. 360, 131 F. 2d 354.
It is not clear from the record whether this numbering began during or after the prosecution period. Compare R. 130-131 with R.177-178.
The Government’s net worth computation, based on $500 cash on hand at the outset and $1,971.50 on hand at the conclusion of the prosecution period, yields a four-year net worth increase (with expenditures) of $62,993 — $46,218 in excess of declared income. Eliminating the cash items from the net worth statement, the deficiency is reduced by $1,471 — to $44,747. If the defendant’s testimony is accepted, of $17,000 cash on hand at the beginning and $3,000 at the end, the deficiency must be reduced by another $14,000, leaving $30,747.
The computed deficiency for 1947 was $7,393, and for 1948, $3,284.
The computed deficiency for 1946 was $21,019.
See notes 3 and 4. The computed deficiency for 1949 was $14,523.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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